Farm Worker Exceptionalism: Past, Present, and the post-Fraser Future

AuthorEric Tucker
ProfessionResearch assistance of Alex Minkin is acknowledged
Farm Worker Exceptionalism:
Past, Present, and the post-Fraser
Eric Tucker*
A remarkable feature of the Supreme Court of Canada’s majority
judgment in the Fraser
1 case is the invisibility of Ontario’s agricul-
tural workers. Although the judgment makes clear that it is the con-
stitutionality of the Agricultural Employees Protection Act (AEPA)2 that
is in question, the history of farm worker “exceptionalism under the
law”3 and their specif‌ic circumstances are only referred in passing in
the recitation of the judicial history of case.4 However, beyond that
point, the reality of farm workers’ lives, their legal exclusion from
* Research assistance of Alex Minkin is acknowledged.
1 Ontario (AG) v Fraser, 2011 SCC 20 [Fraser].
2 SO 2002, c 16 [AEPA].
3 The term “farm worker exceptionalism under the law” is borrowed from Gr eg
Schell, “Farmworker Exceptionalism under the Law” in Charles D Thompson Jr &
Melinda F Wiggins, eds, The Human Cost of Food: Farmworkers’ Lives, Labor, and
Advocacy (Austin, TX: University of Texas Press, 2002) at 139 [Schell]. The f‌irst part
of the chapter draws from an earlier article, Eric Tucker, “Will the Vicious Circle
of Precariousness be Unbroken? The Exclusion of Ontario Farm Workers from
the Occupational Health and Safety Act” in Leah Vosko, ed, Precarious Employment
(Montreal and Kingston: McGill-Q ueen’s University Press, 2006) [Tucker, “Vicious
4 The court quotes Farley J, the applications judge in Frase r, when he cites a f‌inding
of Sharpe J, the judge of f‌irst instance in Dunmore, that agricultura l workers “are
poorly paid, face diff‌icult working conditions, have low levels of skills and educa-
tion, low status and limited employment mobility.” Fraser, above note 1 at para 13.
Justice Sharpe’s comments are from Dunmore v Ontar io (AG) (1997), 155 DLR (4th)
193 (ON Gen Div).
Farm Worker Exceptionalism: Past, Present, and the post-Fraser Future 31
protection, and the social effects of this exclusion play no role in
the remainder of the judgment. The difference between the Supreme
Court’s judgments in Fraser and Dunmore5 could not be more striking
in this regard. In Dunmore, the Court was explicitly concerned with
the inability of agricultural workers to enjoy freedom of association
because of their vulnerability, which was exacerbated by their histor-
ical and present exclusion from a statutory labour relations scheme
that protected f reedom of association.6 In contrast, the Court in
Fraser neither discusses the deep history of farm worker exception-
alism nor acknowledges their specif‌ic vulnerabilities. In part, this
difference in visibility is a function of the issue that was before the
Court. In Dunmore, the Court needed to establish that farm workers
were a vulnerable group in order to determine whether the state
was under a positive constitutional duty to protect their freedom
of association. In Fraser, their vulnerability was already a judicially
recognized fact and the central issue was what the Government of
Ontario was required to do in order to meet its constitutional obliga-
tion toward farm workers.
But this explanation of the difference in how the Court dealt
with the social reality and legal treatment of agricultural workers is
not suff‌icient; logically, the social and legal condition of agricultural
workers ought to be as important to the “what protection is due”
discussion as it was to the “whether protection is due” discussion.
Indeed, the position of the Supreme Court of Canada in Fraser that
the Charter does not require a uniform model of labour relations, but
does require state action to enable vulnerable workers to meaning-
fully exercise their freedom of association,7 would seem to demand
that the Court put, at the core of its analysis, the specif‌ic conditions
faced by vulnerable workers. The invisibility of agricultural workers
from the majority’s discussion of the AEPA is very peculiar. Surely,
the judges needed to be attentive to the conditions of agricultural
workers in Ontario generally, and to the situation of the particular
group of workers who brought the case, if they were serious about
inquiring into the adequacy of the AEPA as a vehicle that “provides
agricultural workers with the protection necessary for them to exer-
cise their constitutional freedom to form and maintain associations”8
and more importantly, post-Health Services, whether it protects “the
5 Dunmore v Ontario (AG), [2001] 3 SCR 1016 [Dunmore SCC].
6 Ibid at paras 39–48.
7 Fraser, above note 1 at para 47.
8 Dunmore SCC, above note 5 at para 67.

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