Envisioning Equality: Analogous Grounds and Farm Workers' Experience of Discrimination

AuthorFay Faraday
Envisioning Equality:
Analogous Grounds and
Farm Workers’ Experience of
Fay Faraday
Legislative equality for agricultural employees is overdue. In
a society that is becoming highly conscious of civil rights
and equality before the law it seems unlikely that the right to
minimum protection on the job will continue to be denied to
farm workers, particularly in view of the increasingly indus-
trial nature of farming.
—Kathryn Nelson and Innis Christie (1975)1
A. Introduction
Since well before the Canadian Charter of Rights and Freedoms was
enacted, respected scholars have criticized the web of laws that deny
Ontario farm workers the core rights, including the right to bargain
collectively, that virtually all other workers enjoy. They argue that
this legal exclusion cannot be reconciled with principles of equality
and fairness. Building on this criticism, farm workers have long been
described as “among the most economically exploited and politically
neutralized individuals in our society.2 Even the Supreme Court of
Canada has accepted that agricultural workers are a particularly dis-
1 Kathryn Nelson & Innis Christie, “T he Agricultural Labourer in Canada: A Legal
Point of View” (1975) 2 Dal LJ 330 at 365.
2 David M Beatty, Putting the Charter to Work: Designing a Constitutional Labour Code
(Montreal: McGill-Queen’s Press, 1987) at 89 [Beatty, Putting the Charter to Work].
Fay Far aday110
empowered group in Canadian society. Writing in Dunmore v Ontario
(AG) in 2001, the majority of the Court found:
Distinguishing features of agricultural workers are their political impo-
tence, their lack of resources to associate without state protection and
their vulnerability to reprisal by their employers; . . . agricultural work-
ers are “poorly paid, face diff‌icult working conditions, have low levels of
skill and education, low status and limited employment mobility.”3
From the earliest days under the Charter it was predicted that farm
workers’ exile from core labour protections would be ended by the
new equality guarantee.4 And yet, four decades after Nelson and
Christie’s analysis, legislative equality remains overdue and courts
have failed to engage seriously with farm workers’ claims to equality
before and under the law and to equal protection and equal benef‌it
of the law.5
Through Cuddy Chicks,6 Dunmore,7 and Fraser,8 courts and com-
mentators have analysed agricultural workers’ struggle for collective
bargaining rights almost exclusively through the lens of freedom of
association. However, the workers’ legal claims have always simul-
taneously asserted their fundamental right to equality under section
15 of the Charter. Most recently in Fraser, the workers argued that
by excluding them from the wide range of protections for collect-
ive bargaining under the Labour Relations Act, 1995 and by relegat-
ing them to separate and unequal treatment under the Agricultural
Employees Protection Act (A EPA), the government denied agricultural
workers equal benef‌it and protection of the law.9 In summary, they
3 Dunmore v Ontario (AG), [2001] 3 SCR 1016 at para 41 [Dunmore].
4 Beatty, Putting the Charter to Work, above note 2 at 93.
5 Section 15(1) of the Charter guarantees as follows: “Every indiv idual is equal before
and under the law and has the right to the equal protection and equal benef‌it of the
law without discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
6 Cuddy Chicks Ltd v Ontario (Labour Relations Board), [1991] 2 SCR 5.
7 Above note 3.
8 Fraser v Ontario (AG), 2011 SCC 20 [Fraser (SCC)], reversing 2008 ONCA 760 [Fraser
(Ont CA)], which in turn had reversed (2006), 263 DLR (4th) 425 (Ont SCJ) [Fraser
(Ont SCJ)].
9 See the chapters by Wayne Hanley and Paul Cavalluzzo in this collection for a
more detailed discussion of farm workers’ exclusion from the Labour Relations
Act, 1995 and the nature of rights under the Agricultural Employees Protection Act,
2002, SO 2002, c 16. Brief‌ly, the AEPA pr ovides truncated rights to form employee
associations which can make representations to an employer. Multiple employee
associations are permitted in each workplace with no mechanism to monitor

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT