Attorney General of Ontario v. Michael J. Fraser on his own behalf and on behalf of the United Food and Commercial Workers Union Canada, et al., 32968, pending JUSTICIA FOR MIGRANT WORKERS and INDUSTRIAL ACCIDENT VICTIMS GROUP OF ONTARIO
Supreme Court of Canada – Oral Arguments - December 17, 2009
Delivered by Selwyn A. Pieters, B.A., LL.B.
Barrister, Solicitor & Notary Public
1. Good afternoon, Chief Justice and Justices:
The Central Issue of Worker Agency
2. Justicia for Migrant Workers and the Industrial Accident Victims Group of Ontario are here today, on the eve of the International Day of Migrant Rights, to focus on the substantive equality rights of workers under sections 15(1) and 2 (d) of the Charter, and the central issue of worker agency, in particular, the rights, human rights and agency of migrant agricultural workers, other temporary foreign workers and undocumented workers.
3. We submit that the current model for labour relations in Ontario, by its very nature, excludes marginalized workers and is insufficient to protect the Charter rights of these workers. This Honourable Court must focus on the exclusionary effect of this model on workers that:
a. minimizes worker agency;
b. sustains differential treatment towards them as workers, and as members of Canadian society; and
c. results in systemic discrimination against them.
4. First, I will begin by presenting the historical context of the process of racialization in labour relations. Next, I will submit that this Court should find “Agricultural Worker” to be an analogous ground for the purposes of s. 15. Then I will describe the human dignity interests that not only underlie Charter values, but also the agency of migrant agricultural workers, temporary foreign workers and undocumented workers. Last, I will conclude that the current labour relations model is a barrier to worker agency and the exercise of meaningful Charter rights under s. 15(1) and s. 2 (d).
Worker Agency – Historical Context
5. History informs current statutory regime. It is no coincidence that the process of racialization in labour relations that existed with slavery and indentureship persists today, where descendents racialized bodies including Blacks, and Aboriginals were subjected to incomprehensible exploitation and were unable to avail themselves of the protections of labour and employment law legislation, including collective bargaining rights.
6. Migrant agricultural workers, temporary foreign workers and undocumented workers continue to be employed in the difficult, dirty and dangerous work Canadians are not willing to do. The emergence of employer-driven, labour migration programs – programs of hyper-exploitative relationship between workers and employer – is evident in the federal Seasonal Agricultural Workers Program (SAWP). As Irving Andre describes:
[…] the Program approximates much of the control (although not the brutality) inherent in slave labour but avoids the universal opprobrium attached to that system of labour.” (Irving Andre, “The Genesis and Persistence of the Commonwealth Caribbean Seasonal Agricultural Workers Program in Canada” at p. 246)
7. Again, it is no coincidence. [FN1 Racialized migrant workers continue to face exploitation and segregation in the labour market and with respect to the rights of other privileged workers through the current model of labour relations in Ontario.]
“Agricultural Worker” as an Analogous Ground
8. “Agricultural workers” are not solely identified as a group because they work in a particular sector in the Canadian economy, they are identified by immutable characteristics, that is, by the persons they are. [fn2 In Benner v. Canada (Secretary of State),  3 S.C.R. 389, an immutable characteristic is determined by an “on-going condition,” such as citizenship: “[t]he preferable way [...] to characterize the appellant’s position is in terms of status or on-going condition (Benner at para. 52) [Emphasis mine]. For migrant workers, this Court should interpret an “on-going condition” to include the longstanding conditions that support labour exploitation in Canada, and bring the human dignity of workers into play.
9. It is our submission that this Court must recognize the intersecting enumerated and analogous grounds of race, gender, disability and citizenship that underlie the occupational status of many agricultural workers. [See, Law v. Canada (Minister of Employment and Immigration),  1 S.C.R. 497, para. 6 ]. And, of course, Justice Abella spoke this morning about Marital Status that underlie common law relationships as an analogous ground.
10. The full arguments are set out in paragraphs 5- 12 of our Factum.
Worker Agency is About Human Dignity
11. The social vulnerability that has been ascribed to the workers implies a lack of agency. This detracts from the responsibility of legislators, and others who hold political, social and economic power, to proactively remove barriers to the realization of equality and associational rights. While “vulnerability” has been understood as a personal characteristic, in the agricultural labour context it is a result of unequal power relations and systemic barriers. Furthermore, as submitted in paragraph 17 of our factum, the Court’s analysis in assessing whether the legislative exclusion from collective bargaining substantially orchestrates, encourages or sustains the violation of fundamental freedoms should not rest on the deemed “vulnerability” of agricultural workers at the expense of a meaningful equality rights analysis.
12. It is our submission that the court must rely on new insights in its equality rights analysis. This advanced analysis recognizes the essential human dignity and worth of workers as individuals with agency.
13. It is our position that worker agency is about human dignity, not inherent vulnerability. This dignity and respect that inherently belongs to all workers underlies equality rights jurisprudence. [fn4 In Lavoie, the “overarching” consideration under s. 15 is “whether the law perpetuates the view that non-citizens are less capable or less worthy of recognition or value as human beings or as members of Canadian society.” (Lavoie at para. 46) ] Therefore worker agency and human dignity are concepts that must underlie the s. 15(1) and the s. 2(d) analysis. In this case, the Labour Relations Act and the Agricultural Employees Protection Act perpetuates the view that migrant agricultural workers, other temporary foreign workers and undocumented workers are less capable or less worthy of recognition or value – or agency – as workers in Canada. The concept of agency is described in Lavoie v. Canada, 2002 SCC 23,  1 S.C.R. 769. Discrimination in work and employment:
….has the potential to marginalize immigrants from the fabric of Canadian life and exacerbate their existing disadvantage in the Canadian labour market.
14. In Action Travail des Femmes v. Canadian National Railway, et al.  1 S.C.R.
1114, this Court referred to [Justice] Abella’s Report on Equality in Employment which did not define systemic discrimination but set out its essentials as follows:
Discrimination…. Means practices or attitudes that have, whether by design or impact, the effect of limiting an individual's or a group's right to the opportunities generally available because of attributed rather than actual characteristics... [Justice Abella went to to say]
This is why it is important to look at the results of a system... ( at pp. 1138-1139). [Emphasis mine]
15. For over 40 years, since the inception of Seasonal Agricultural Worker Program, deliberate government policies have explicitly undermined the conditions that encourage and facilitate worker agency. The existence of these longstanding policies create a heightened need for this court to intervene and protect the rights of these workers.
16. We do not submit that the role of the court is to intervene to prevent or remedy worker vulnerability. Instead, this court must intervene to affirm worker agency. Worker agency requires the ability of workers to collectively withdraw labour power; as such, governments have the responsibility to enact labour laws that permit workers to protect themselves. [Fn5 We are submitting that there must be a removal of “unfreedoms,” that is, the government has an obligation to remove “unfreedoms” imposed on these workers].
17. Worker agency is also about a redistribution of power and removal of systemic barriers by, for example, allowing agricultural workers meaningful freedom of association under s. 2(d). In this way, the reality of migrant workers’ experiences, and their agency, must be recognized as the basis for the exercise of their Charter rights under s. 15(1) and s. 2(d).
Worker Agency and the Current Labour Relations Model
18. Agricultural workers, particularly, migrant agricultural workers, are in a fundamental imbalanced power relationship with all employers, whether on a small family farm or a large industrial-sized farm. Even if, as the Ontario Federation of Agriculture, submits this morning that 99% are family farm - we say size does not matter - because this is about affirming worker agency.
19. To remedy the historical and present-day exclusion of migrant workers from the dominant model of collective bargaining in Canada, this court should consider the model of sectoral bargaining as an alternative. We particularly rely on paras. 21-24 of our factum for this submission. However, I must direct your attention to the worklife report that is excerpted in our factum at para 23.:
23. Sectoral bargaining is a meaningful manifestation of any collective bargaining rights under s. 2(d). As described in The Worklife Report:
Collective bargaining is only viable when there are a sufficient number of employees to justify union organizing and collective bargaining efforts. It is simply impractical and unacceptably expensive for unions to organize and negotiate collective agreements for small groups of workers if their dues cannot begin to cover the costs involved in developing separate agreements for each of their work sites.
Recommendations for Labour Law Reform Report to British Columbia Ministry of Labour cited in Anonymous, "Sectoral Bargaining: Way of the Future?" (1993) 9:1 The Worklife Report at p. 7
20. Unless migrant agricultural workers, other temporary foreign workers and undocumented workers are provided with broad-based and inclusive forms of collective bargaining, the government’s positive obligation to implement statutory protections for freedom of association are not fulfilled.
21. This case is not about the inherent vulnerability of these agricultural workers it is about agency of these workers.
23. We are asking this court to intervene and affirm rather than trample on workers agency.
24. And those are my submissions, subject to any questions this Court may have.
25. Thank you.