Law assumes employer is always guilty of something, critic says
HAMILTON — Ontario’s first-ever prosecution for an alleged breach of occupational health and safety laws in connection with a COVID-19 outbreak ended last month with a settlement in which the involved farm pleaded guilty to only one of 27 charges.
Scotlynn Sweetpac Growers Inc. of Vittoria, in Western Ontario, will pay a $125,000 fine plus $31,250 in court cost after entering a guilty plea to the single provincial offence of “failing to take reasonable precautions to protect employees.” The fine is about 10% of the potential maximum $1.5-million fine.
Multiple charges were laid against the company and its owner, Scott Biddle, after a 2020 COVID-19 outbreak among 200 foreign farm workers at the vegetable operation. Fifty-five-year-old Juan Lopez Chaparro, of Mexico, died after contracting the virus. According to an agreed statement of facts, Scotlynn did not take reasonable precaution in isolating COVID-19 symptomatic workers and did not enforce screening for COVID-19 symptoms. Several workers did not report cold-like symptoms to their supervisor and the supervisor failed to report symptoms to management unless symptoms were persistent, court was told.
Biddle reportedly told Post Media it made no business sense to fight a court battle for years against the one charge that wasn’t dropped, and that the plea deal showed investigators were “overreaching.”
“It’s unfortunate. We were running an essential business in the time of a pandemic with no perfect blueprint as to how to do it, so to have those types of charges laid against us was unreasonable. That was understood by the court,” Biddle reportedly told Post Media.
Farmers Forum could not reach Biddle for comment.
Ken Forth, Chair of the Labour Section of the Ontario Fruit and Vegetable Growers’ Association, said the law unfairly assumes the employer is guilty of something.
Reflecting on farm businesses reacting to changing COVID rules in 2020, he noted that “We all learned as we went along in this pandemic. You can’t criticize people in 2022 for something they did in 2020 when nobody knew a damn thing.”
Scotlynn was the first enterprise prosecuted in relation to a workplace COVID-19 outbreak involving a fatality. In October 2021 a London, Ontario, nursing home was charged with breaching occupational health and safety law in connection with the May 2020 death of a nurse.
Forth observed that the long-term care sector presided over many thousands of COVID deaths. “Where are the fines for that?” he says. It was “weird” that a vegetable farm was the first to be pursued by the authorities, he added.
In his industry capacity, Forth also says he was “interrogated” twice by Ontario’s deputy coroner as part of the process of creating the coroner’s report into Chaparro’s death. He found it a frustrating experience.
Forth says he was asked how he might have prevented that fatality — even though he didn’t know the circumstances, wasn’t the employer, and didn’t know if the deceased had any underlying medical conditions. His answer to the question: “Don’t produce any food. So we don’t have any workers, no food, and everybody stays in their house. I don’t know how we’re going to eat but …”
Ontario labour law presumes every workplace death is preventable and that the employer is automatically at fault if an employee dies, according to Forth, who previously represented the agricultural sector at the Workers’ Compensation Board. He says there’s no recognition an employee’s own momentary lack of focus may be the sole cause of death. “It’s called human nature, and I believe there will always be accidents. Hopefully, we can prevent as many as we can.”
Migrant Workers Alliance for Change Executive Director Syed Hussan complains that “multi-national, multi-million-dollar” Scotlynn got a slap on the wrist from the court. “The fine will go to the municipality,” Hussan says, without reparations to the family of the deceased. “There is no justice done here.” The organization wants Canada to grant permanent residency to migrant agricultural workers.