In Peart v the Ministry of Community Safety and Correctional
Services, the Ontario Human Rights Tribunal ("HRTO")
considered whether the Coroner's Act was
discriminatory against migrant farm workers.
Ned Peart, a seasonal worker from Jamaica employed under the
Seasonal Agriculture Workers Program ("SAWP"), was
tragically crushed to death by a 1,000 pound steel bin which he was
attempting to move. Despite multiple requests, the Office of
the Chief Coroner refused to hold an inquest into the death.
The Coroner's Act appoints physicians with the
mandate to conduct investigations and preside over inquests in the
public interest. A formal inquest does not occur into every death.
Section 10 (5) of the Coroner's Act requires a
mandatory inquest in circumstances involving the accidental death
of a worker at or in a construction project, mining plant or mine.
The Applicant commenced the complaint with the OHRT arguing that
section 10 (5) of the Coroner's Act discriminated
against migrant farm workers as it denied them the benefit of a
mandatory inquest into workplace deaths.
The HRTO applied the two-step analysis under section 15 of the
Canadian Charter of Rights and Freedoms in assessing the
complaint. Specifically, the HRTO considered (1) whether section 10
(5) of the Coroner's Act creates a distinction based
upon a ground protected under the Ontario Human Rights
Code; and (2) whether the distinction creates a disadvantage
by perpetuating prejudice or stereotyping.
The HRTO found that the first step of the test was met on the
basis of constructive or adverse effect discrimination. The section
was found to be discriminatory as migrant farm workers, who were
identified by prohibited grounds of citizenship and race, did not
receive the benefit of section 10 (5) of the Coroner's
Act. Of note, the HRTO found that as a result of the structure
of the SAWP the workers are uniquely vulnerable. In reaching this
conclusion the HRTO accepted evidence that SAWP workers are
reluctant to make complaints about their employers, including
regarding health and safety issues, are more likely to continue
working while sick or injured, and are less likely to take issue
with challenging work demands placed on them.
At the second stage of analysis the HRTO found that the
requirement that a mandatory inquest be held for deaths suffered in
the mining industry and not by migrant farm workers was not
discriminatory. The tribunal noted that the comparison of the
workplace hazards experienced by migrant farm workers and in the
mining industry must be made in the context of the purpose served
by the mandatory inquest. The primary purpose of Section 10 (5) of
the Coroner's Act is to provide recommendations to
prevent future deaths.
The Tribunal accepted evidence that those employed in mining and
construction industries are at a greater degree of risk of
traumatic workplace fatalities then migrant farm workers. Further,
the HRTO noted that there are a greater number of ways in which
workplace fatalities can occur in the mining industry. Therefore,
the requirement of a mandatory inquest into every workplace
fatality in the mining industry results in useful recommendations
which prevent similar workplace accidents.
Employers of migrant workers should consider the HRTO's
comments regarding the vulnerability of migrant workers in relation
to their obligations under applicable health and safety
legislation. The vulnerability of migrant workers could be
a factor considered by a Court when assessing whether an employer
has established a due diligence defence following a workplace
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