Canada: The Agricultural Employees Protection Act: Is Marijuana An Agricultural Commodity?

Last Updated: March 29 2016
Article by Evan Campbell

In United Food and Commercial Workers Canada v MedReleaf Corp. the Ontario Labour Relations Board ("OLRB") was tasked with determining whether marijuana is an agricultural commodity in relation to an application for certification under the Labour Relations Act.

The United Food and Commercial Workers Canada ("UFCW") commenced the certification application seeking to represent the employees of MedReleaf Corp. ("MedReleaf"). The employer argued that the OLRB did not have jurisdiction to hear the matter as the application related to employees who fell within the definition of "agricultural" and as such fell within the jurisdiction of the Agricultural Employees Protection Act and not the Labour Relations Act.

The Labour Relations Act outlines the general procedure that unions must follow when seeking to organize and represent employees in Ontario. However, there are various sectors (such as policing or universities) which do not fall within the jurisdiction of the Labour Relations Act with one such exception being agriculture. The Agricultural Employees Protection Act outlines the rights and procedures for employees employed in agriculture to join an employees' association. The Agricultural, Food and Rural Affairs Appeal Tribunal has exclusive jurisdiction in relation to matters regarding the Agricultural Employees Protection Act.

The key issue in UFCW v MedReleaf Corp. was whether the growing of marijuana fell within the definition of agriculture. The Agricultural Employees Protection Act defines agriculture as follows:

"agriculture" includes farming in all its branches, including dairying, beekeeping, aquaculture, the raising of livestock including non-traditional livestock, furbearing animals and poultry, the production, cultivation, growing and harvesting of agricultural commodities, including eggs, maple products, mushrooms and tobacco, and any practices performed as an integral part of an agricultural operation, but does not include anything that was not or would not have been determined to be agriculture under section 2 of the predecessor to the Labour Relations Act, 1995 as it read on June 22, 1994.

The UFCW argued that marijuana did not fall within the definition of "agriculture" because it was not an agricultural commodity. Specifically, the UFCW argued that marijuana was akin to a pharmaceutical as it was highly regulated through various statutes including the Controlled Drugs and Substances Act and the Narcotics Control Regulations. In dismissing this argument, the OLRB concluded that medical marijuana was not akin to a pharmaceutical as it was a plant that was grown and harvested and not a prescription drug as specified under the Food and Drugs Act. The OLRB also noted that tobacco was explicitly included in the definition of agriculture and found that there was no difference for the purposes of the analysis between tobacco and cannabis.  

The OLRB noted the following facts regarding the MedReleaf operation: MedReleaf grows and sells a dried version of the cannabis plant to patients; a sophisticated irrigation system exists to feed the plants; the business is run out of a 55,000 square foot building with 69 employees; the building consists of production area in which the cannabis is bred, grown, cultivated and packaged; the building also houses administrative and shipping/packaging departments.

The OLRB noted that the fact that the MedReleaf operation does not resemble the quintessential family farm is not determinative. Agricultural activities which are highly technological and commercial do not result in those activities becoming non-agricultural. Ultimately, the OLRB concluded that MedReleaf grows, harvests and sells plants regardless of the plants use. As such, the OLRB held that the growing of marijuana in a commercial operation falls within the definition of "agriculture" and as such, within the exclusive jurisdiction of the Agricultural Employees Protection Act and the Agricultural, Food and Rural Affairs Appeal Tribunal for the purposes of labour relations.

Historically, agricultural workers in Ontario have been excluded from the Labour Relations Act. In Dunmore v Ontario, a challenged advanced by the UFCW, the Supreme Court of Canada held that the exclusion of agriculture workers from the Labour Relations Act violated their constitutional right to organize. The Supreme Court of Canada gave the Ontario government eighteen (18) months to comply with the decision and provide agricultural employees the right to organize. The Agricultural Employees Protection Act was developed by the Ontario government in direct response to the Supreme Court of Canada decision. In Ontario v Fraser, also a challenge initiated by the UFCW, the Supreme Court of Canada held the Agricultural Employees Protection Act constitutionally valid as it provides agricultural employees the minimum constitutional right to organize. The decision in MedReleaf Corp. provides further confirmation of the wide interpretation of "agriculture" and far reach of the Agricultural Employees Protection Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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