The Ontario Court of Appeal has upheld a lower court decision that production losses allegedly sustained by Ontario dairy farmers were not caused by a "tingle voltage" problem in their dairy barn. (Cowan v. Hydro One Networks Inc., CALN/2014-004,  O.J. No. 6018, Ontario Court of Appeal).
A Justice of the British Columbia Supreme Court has upheld a decision of the British Columbia Labour Relations Board concerning the involvement of Mexico and Mexico's Vancouver Consulate in a decertification application involving temporary foreign Mexican workers at a British Columbia nursery. The Court found that the Board was correct in concluding that it could consider evidence from former Mexican Consular employees in connection with Mexico's administration of the Federal Seasonal Agricultural Workers Program. The evidence concerned Mexico's policy of refusing to allow Mexican workers who support unions to return to Canada, and Mexico's refusal to send Mexican workers to unionized workplaces Mexico's assertion that this evidence could not be considered based on sovereign immunity was rejected. (United Mexican States v. British Columbia (Labour Relations Board), CALN/2014-005,  B.C.J. No. 41, Supreme Court of British Columbia).
A Justice of the British Columbia Supreme Court has concluded that 14 farm workers, who were forced to ride without seatbelts and in the box of a pick-up truck (if they did not wish to walk home), were not contributorily negligent for riding without seatbelts and the injuries they sustained when the truck left the road. The Court also concluded that the egg processing facility which had employed them was not contributorily negligent because it did not know of and was not involved in the transportation arrangements. (Tataryn v. Browne, http://getlink.quicklaw.com/find.php?QLINK=DQ CALN/2014-006,  B.C.J. No. 17, Supreme Court of British Columbia).
NEW CASE LAW
Negligence -- Utility Providers -- Liability of Electrical Utilities for "Tingle Voltage" Dairy Production Losses.
Ronald Cown, Helen Cowan and Shannon Cowan (the "Cowans") appealed the decision of an Ontario Superior Court Justice who dismissed the Cowans' claim against Hydro One Networks Inc. ("Hydro One") for milk production losses on the Cowans' dairy farm allegedly sustained as a result of "tingle voltage". (Cowan v. Hydro One Networks Inc., CALN/2011-036,  O.J. No. 4839, Ontario Superior Court of Justice).
Mr. Justice Gordon of the Ontario Superior Court concluded that the tingle voltage problem did exist and that Hydro One breached its duty of care to farmers to advise them of the risk. However, he held that the Cowans had failed to prove that their production losses resulted from the tingle voltage problem.
Decision: The Ontario Court of Appeal dismissed the appeal and upheld the trial Judge's decision that causation had not been proved [at para. 9]. With respect to the issue of whether tingle voltage can cause the type of harm alleged by the Cowans, the Court observed, at para. 4 through 7:
 While the trial judge accepted the evidence of the appellants' experts that tingle voltage can cause the type of harm which the appellants allege caused their loss, the reduced milk production, it did not on the facts before him do so in this case.
 The trial judge considered the whole of the evidence and importantly found that if tingle voltage had been the cause of the reduced milk production from 1997 forward, there would have been overt signs on the herd. He concluded that the evidence did not demonstrate such signs and accordingly the appellants had not established that the herd was being affected by tingle voltage. In his view, milk production had been relatively good in 1995 and 1996 and declined thereafter and there was no change in the hydro system that could account for the changes after 1997.
 The evidence of the appellants' experts was contrary to the evidence of the expert called by Hydro. The preponderance of scientific evidence suggested that the tingle voltage at the levels found at the appellants' farm would not cause the problems experience with this herd.
 While the appellant's experts testified to the contrary, this was a matter for the trial judge and he preferred the evidence of the respondent for the reasons he gave. We would not interfere with this finding.
Temporary Foreign Workers -- Participation in Unions -- Foreign Government Prohibition Against Union Participation.
The United Mexican States and Consulado General De Mexico en Vancouver ("Mexico") brought an application for judicial review of the decision of the British Columbia Labour Relations Board (the "Board") on the grounds that the Board erred in failure to give effect to sovereign privileges and immunities in considering whether to disregard a representation vote due to alleged improper interference by Mexico, through its Consulate, with temporary foreign Mexican workers.
The Board had concluded that the sovereign immunity codified in the State Immunity Act, R.S.C. 1985, c. S-18 (the "SIA") did not preclude the Board from considering and making findings regarding Mexico's conduct in a decertification application involving a Canadian union, a Canadian employer, and the temporary foreign Mexican employees for the purpose of deciding whether, because of improper interference, a representation vote was unlikely to disclose the true wishes of the employees.
The Board also concluded that it could consider testimony provided voluntarily by former consular employees of Mexico with respect to their official functions notwithstanding the absence of a waiver of Mexico of the privileges and immunities provided by the Vienna Convention on Consular Relations.
Mexico is a party to the Seasonal Agricultural Workers Program (SAWP), which is a federal program based upon bilateral agreements between the Government of Canada and a number of foreign governments including Mexico.
SAWP requires the foreign government to designate an agent to look after the interest of its SAWP participant workers while they are in Canada. In the case of Mexico, the agent in British Columbia is its Consulate in Vancouver.
Under SAWP, Mexico selects and approves its citizens for participation in the program. Mexico is responsible for the conduct of its citizens who are temporarily in Canada for the purpose of participating in SAWP and has the power to repatriate any of its citizens or otherwise terminate their participation in SAWP at any time.
Sidhu & Sons Nursery Ltd. (the "Nursery") employed SAWP participants from Mexico.
The United Food and Commercial Workers International Union, Local 1518 (the "Union") was certified to represent SAWP employees employed by the Nursery.
On April 11, 2011, all of the SAWP employees at the Nursery applied to the Board for decertification from the Union. These SAWP employees were all participants from Mexico.
On April 19, 2011, the Union filed a complaint with the Board, seeking dismissal of the decertification application on the grounds that in its administration of SAWP, Mexico employs a policy of refusing to allow Mexican workers who support the Union to return to Canada, and has refused to send them back to a unionized workplace, requiring them to work at non-union worksites instead.
Most of the evidence in support of the Union's complaint concerned the internal administration of SAWP from within the Mexican Consulate in Vancouver.
The Board concluded that it had no jurisdiction to make a ruling against Mexico under the SIA. However, the Board also concluded that it could consider evidence with respect to the Consulate's involvement in the decertification application and that it could also hear voluntary evidence from former Consular employees.
Decision: Warren, J. upheld the Board's decision and dismissed the application for judicial review [at para. 156].
The decision contains a detailed scholary analysis of the immunity provided to Mexico pursuant to the SIA.
Contributory Negligence -- Farm Workers Riding in Truck Box without Seatbelts.
On November 17, 2006, 14 temporary farm workers were being transported in a truck riding in the box of the truck who sustained injuries when the truck left the road, and tumbled down an embankment. The farm workers were not wearing seatbelts. Three of the issues in the action were:
1. The temporary farm workers were contributorily negligent by reason of the fact that they were not wearing seatbelts.
2. The damages were caused or contributed by a processor, Sunshine Eggs Inc.
3. The Workers Compensation Act, R.S.B.C. 1996, c. 492 bars the Plaintiff's claim.
Decision: Hyslop, J. held [at para. 370] that the driver of the vehicle was liable; that none of the Plaintiffs were contributorily negligent, that Sunshine Eggs Inc. did not cause or contribute to the accident, and that the Plaintiffs' claims are not barred by the Workers Compensation Act.
Hyslop, J. concluded as follows with respect to the issues referred to above:
1. Contributory Negligence and Seatbelts
The defence alleged that the Plaintiffs were contributorily negligent in getting either into the box of the pick-up truck, or the cab of the truck without wearing seatbelt restraints.
Hyslop, J. commented [at para. 282] that it was "...obvious that the purpose of the box of the pick-up is to carry cargo and not people".
Hyslop, J. [at para. 284] made the following findings of fact:
- Sunshine sought workers who were residing in shelters by posting notices for work.
- Sunshine's manager was familiar with homeless people. He thought that in hiring these people, he was doing a kindness.
- Sunshine's manager worked alongside these workers.
- The farm on which the work was done had no public transportation, no lights or sidewalks.
- The workers were poor. Most were homeless, on social assistance and addicted to drugs or alcohol or both. One had a mental health condition.
Hyslop, J. concluded, at para. 297, 298 and 300:
 The workers were poor, homeless, and sick. They were told by Annie if they did not get in the truck they would have to walk home. Walking home was not an option. It was 15 kilometres to the NLM. It was dark. It was cold. There were no sidewalks, and no public transportation. Some, if not all of the workers, were not properly clothed and Mr. Moore needed his medication.
 By necessity, the workers had no option but to be passengers in the truck without seatbelts, either in the cab or the box of the pickup truck.
 Based on the circumstances facing each of these workers, I conclude that not one of them was contributorily negligent.
2. Whether the Claims were Barred by the Workers Compensation Act and whether Sunshine Eggs was Contributorily Negligent
The Workers Compensation Appeal Tribunal concluded that the conduct of the driver of the vehicle did not arise out of and in the course of her employment. However, Sunshine Eggs Inc. was an employer engaged in an industry within the meaning of the Act.
Sunshine took the position that it was immune from liability pursuant to the provisions of the Workers Compensation Act. This position was not successful. However, Hyslop, J. concluded [at para. 334 to 336] that Sunshine was not liable because it was not in the habit of transporting workers without seatbelts or in the back of pick-up trucks. This had only occurred on one previous occasion. Sunshine's manager did not know that the driver would act in the manner that she did and had no reason to believe that the driver would drive at an excessive speed or in a careless manner.
Originally published in LexisNexis Agricultural Law NetLetter - January 21 2014
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