Ministry of the
Solicitor General

Deputy Chief Coroner's Review: COVID-19 Related Deaths of Temporary Foreign Agricultural Workers in 2020

Office of the Chief Coroner

Deputy Chief Coroner's Review: COVID-19 Related Deaths of Temporary Foreign Agricultural Workers in 2020


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Executive Summary

The COVID-19 pandemic has been a time of dramatic change. The impact it has had on the lives of those who have suffered through the disease as well as the families of those who have died from it continues to be an issue around the world. The Office of the Chief Coroner and Ontario Forensic Pathology Service (OCC-OFPS) has been one of the organizations that has responded to the need to provide information to help understand the virus, the disease and its impact on society. 

It has been the goal of the OCC-OFPS to investigate deaths that fit within our mandate, examine various circumstances surrounding these deaths, document pathological findings, and use this information to inform others regarding these deaths. This knowledge can be used to help prevent further morbidity and mortality. 

The specific goal of this review is to prevent further morbidity and mortality of Temporary Foreign Agricultural Workers (TFAWs or workers). For the purposes of this report, the use of the term “TFAWs” is intended to include workers from other countries, without any permanent status in Canada, working in the agricultural sector whether they were admitted through a government program or not (undocumented). The deaths of Bonifacio Eugenio Romero (May 30, 2020), Rogelio Munoz Santos (June 5, 2020), and Juan Lopez Chaparro (June 20, 2020), all citizens of Mexico and TFAWs exposed to SARS-CoV-2 in Ontario led to this report. As Deputy Chief Coroner, I was the investigating coroner for all three of these deaths. After the three TFAWs died early in the COVID-19 pandemic, our Office developed a greater understanding of the complex issues and multiple risk factors that existed for this population. COVID-19 caused or contributed to each of the three deaths.

The approach of this review was to consult with relevant parties in an attempt to draft practical, solutions- based recommendations.  The diversity of opinions received from participants greatly impacted on the recommendations of this review. This report does not represent full consensus between all of the participants. This is too complex an issue with a variety of opinions to achieve that. The recommendations were informed by the relevant death investigations and consultations with the participants. Further consultation with and direction should involve TFAWs and community-based advocates as the recommendations are being considered for implementation.

The OCC-OFPS has investigated 41 deaths of TFAWs since 2001 and last year investigated seven (cases are still being finalized) such deaths the first three of which led to this review. The highest number of deaths investigated in a single year was 12 (2012), a year in which ten workers died in the same motor vehicle collision. An inquest has not been called into any these 41.

Finally, and most importantly, we should not forget that this review and its recommendations arise out of the unfortunate and untimely deaths of three men who left their home country to work in ours. My deepest condolences go out to the families of these three men, their friends, co-workers, employers, and others impacted by their loss. It is our hope that these recommendations provide some comfort to those mourning their loss as the lessons learned from these deaths strive to prevent further deaths.

This review generated 35 recommendations. The various provincial ministries as well as the other groups and individuals who participated in this review were instrumental in the development of these recommendations. The Government of Canada’s responses were also instrumental in explaining its role in the Temporary Foreign Worker Program (TFWP). Its comments also clarified the federal government’s shared responsibilities with the provinces and employers for temporary foreign workers in Canada. Its voluntary participation was very much welcomed as it also elucidated the complexity of the TFWP. The interwoven and dynamic relationship of all the participants speaks to the challenges faced in protecting the health and safety of all workers in Canada, especially TFAWs.

Reuven R. Jhirad, MD, MPH, CCFP, FCFP
Deputy Chief Coroner for the Province of Ontario


Introduction

On March 11, 2020, the World Health Organization declared COVID-19 a global pandemic. The spread of SARS-CoV-2, the virus responsible for the disease, has led to a significant loss of life throughout the world. It was the deaths of Bonifacio Eugenio Romero (May 30, 2020), Rogelio Munoz Santos (June 5, 2020), and Juan Lopez Chaparro (June 20, 2020), all citizens of Mexico and TFAWs, that led to this report. All three men contracted the SARS-Cov-2 virus in Ontario, and it was COVID-19 disease that either caused or contributed to their deaths. The three workers were all under the age of 60. All three men worked on farms in Ontario, two of whom arrived in Canada through the Seasonal Agricultural Worker Program (SAWP – discussed below).

During these investigations, it became clear that there was a need to identify recommendations to prevent further deaths of Temporary Foreign Agricultural Workers (TFAWs or workers) during this pandemic. This review was established to further investigate and understand these deaths related to the COVID-19 pandemic pursuant to subsection 25.1(1) of the Coroners Act to prevent further deaths. To this end, it was determined that it was important to consult with several individuals and groups. The science of forensics is not synonymous with the science of death prevention. As a result, the recommendations should, in attempting to prevent deaths of workers, be informed by both the science of the investigations and the informed opinions of the many individuals and groups that were consulted in this review.

Several of the participants in this review were organizations that are also the recipients of the recommendations, including those involved with providing care to TFAWs, providing their employment and housing, inspecting their workplaces and residences, or developing the standards and policies regarding their ability to work in the province. Other participants included the families of three men who died, other TFAWs, embassy, and consular officials, as well other groups with the knowledge and expertise about TFAWs. One of the families expressed the importance of the SAWP to workers and their families and stated that the COVID-19 pandemic was an unexpected issue that resulted in the death of their relative.

During this review, it was noted that those participating were already aware of the deaths of the three men. This knowledge may have come from their personal or professional involvement with the workers, their expertise in working with TFAWs, or their expertise and knowledge from researching matters related to TFAWs and undocumented workers.

This review was carried out with the help of numerous individuals in our office as well as several individuals and organizations external to our office. There were also several others that were consulted but did not participate for the full duration of the review.  Regardless of whether an individual or organization participated once or numerous times, the information that was shared was invaluable. We would like to thank each and every participant who took the time to speak with us and share their knowledge and experiences.

This report illustrates that the issues involved with the deaths of TFAWs are complex and multi-layered. The circumstances of the three deaths were considered in the context of these issues, as well as emergency management and public health principles that were required during the pandemic. Also, the public health concepts of prevention, preparedness, mitigation, response and recovery were also considered throughout the development of the recommendations and helps explain the broader contextual themes in some of the recommendations.


List of Participants and Stakeholders

Families of Bonifacio Eugenio Romero, Juan Lopez Chaparro, and Rogelio Munoz Santos

Several Temporary Foreign Agricultural Workers Currently Working in Ontario

Employers

  • Contractor 77
  • Foreign Agricultural Resource Management Services
  • Woodside Greenhouses

Experts

  • Susana Caxaj, Assistant Professor, Arthur Labatt Family School of Nursing, University of Western Ontario*
  • Eduardo Huesca, Program Coordinator and Outreach Worker, Occupational Health Clinics for Ontario Workers*
  • Fay Faraday, Lawyer, Faraday Law
  • Janet McLaughlin, Associate Professor, Department of Community Health, Wilfrid Laurier University*
  • Michelle Tew, Occupational Health Nurse, Occupational Health Clinics for Ontario Workers*
  • Eric Tucker, Professor, Osgoode Hall Law School, York University*
  • Leah F. Vosko, Professor and Tier 1 Canada Research Chair, Department of Politics, York University*

* Member of Migrant Worker Health Expert Working Group

Healthcare Organizations

  • Erie Shores HealthCare
  • Windsor Regional Hospital

Government Organizations

  • Government of Canada
  • Government of Ontario
  • Government of Mexico
    • Consulate General of Mexico in Toronto and Consulate of Mexico in Leamington
    • Embassy of Mexico in Canada
  • Ontario Health

Public Health

  • Windsor-Essex County Health Unit

Support Group

  • United Food and Commercial Workers Union

Additionally, we have also met with the following groups for preliminary meetings, however, these groups did not participate beyond the initial consultations:

Advocacy Groups

  • Justice for Migrant Workers
  • Migrant Workers Alliance for Change

Employers

  • Scotlynn Group

Temporary Foreign Agricultural Workers in Canada and Ontario

The Government of Canada allows employers to hire temporary foreign agricultural workers in occupations and activities related to primary agriculture through the Primary Agriculture Stream (PAS) of the Temporary Foreign Worker Program (TFWP), which includes the SAWP and the Agricultural Stream[1].  Employers may seek to hire workers from these streams when Canadian citizens and permanent residents are not available[2]. The specifics of SAWP can be found on the Government of Canada’s website.

Employers seeking to hire workers through the non-SAWP streams of the TFWP are responsible for all activities associated with the recruitment and hiring of the TFAW. Work permits issued under the TFWP are employer specific and can be valid up to two years. Employers hiring workers through the Agricultural Stream of the PAS are required to provide housing. However, workers in this stream may choose not to reside in the employer’s housing and may find alternate accommodations. TFAW employers recruiting through the PAS low and high-wage streams are not required to provide the workers with accommodations.

The SAWP, which involves TFAW from Mexico or other participating Caribbean countries, operates according to bilateral agreements between Canada and participating countries. These agreements outline the respective roles of participating countries in such areas as recruitment, ensuring necessary paperwork for workers, maintaining a pool of qualified workers, salaries, housing, and appointing representatives to assist workers while in Canada. As with other streams under the TFWP, work permits issued under this program are employer-specific. They also require that the participating countries have a consulate or liaison office to help support the workers while they are in Ontario. There are also other streams of employment, as mentioned above, for TFAWs such as the Agricultural stream (TFAW from any country). Undocumented TFAWs are workers who were not registered in any of these streams and, as a result, do not hold a legal work permit for their agricultural work.  These workers are often hired to work through temporary hiring agencies.

The Primary Agriculture Streams facilitates the migration of up to 20,000 workers annually to Ontario, the most of any province in Canada. The majority of TFAWs working in Ontario have come through the SAWP.

Although the majority of workers are employed through the PAS of the TFWP, there are a significant number of other TFAWs who are employed in this industry every year. Some of these workers may have found employment in the agriculture industry after arriving in the country for a different reason. One individual whose death was included in this report was an undocumented TFAW[3]. The Ministry of the Solicitor General recently released information regarding human trafficking that included migrant workers as an at-risk group. Several participants raised human trafficking and undocumented TFAWs as a significant issue and identified the unique risks to this population’s health and well-being. However, this issue was not within the scope of this review.


COVID-19 Related Deaths of TFAWs

The pandemic introduced dramatic changes to Canadian society. This manifested itself in lockdowns, introduction of physical distancing, consistent use of personal protective equipment (PPE), quarantine and isolation requirements, and changes in access to healthcare and healthcare-related services. The understanding of the spread of SARS-CoV-2 in the community and through TFAWs has evolved during the course of the pandemic. There were no specific pandemic-related preparations or guidelines for TFAWs who arrived prior to March 2020 when the pandemic was declared. However, over the past year, there have been significant changes and adaptations by those involved with TFAWs, including the workers themselves, to ensure their health and safety. 

As part of the SAWP’s annual process, routine workplace and housing inspections are conducted[4]. Prior to the pandemic, inspections did not address the presence of public health requirements such as the need for physical distancing, use of face masks, and other personal protective equipment (PPE).

There were several possible exposure points for the three men identified in this review. As they were infected weeks or months after they arrived in Canada, they were exposed to the virus in their local communities, residences, or workplaces. Due to the congregate living and working situations, TFAWs are at higher risk for contracting infectious diseases such as COVID-19, and its complications including death. The identification of these risks has resulted in the development of recommendations from this review. 


Review Process

As with any coroner’s investigation which could include a Deputy Chief or Regional Supervising Coroner review, committee review, or other analysis the process is often the same. There is a thorough review of the facts, involving as many other individuals as necessary. All the participants were notified about the public release of the report from the onset. It was also stated from the beginning that this process was separate from and not intended to replace an inquest. This review involved individual and roundtable meetings with individuals and key participants with government and non-governmental organizations, and meetings with independent experts and researchers. We also obtained information from families, other workers, relevant governmental agencies, employers, and several agencies who work directly with and/or advocate for TFAWs.

Meetings, discussions and/or correspondence with participants were held between December 2020 and March 2021, individually and in groups.

The specific details of the death investigations of the three men are not specifically mentioned in this report to respect the privacy of the men and their families.

The knowledge and expertise of the participants contributed to the identification and understanding of the issues and the development of recommendations to prevent further deaths of TFAWs. The recommendations are not intended to convey absolute consensus. There was a diversity of opinions, all of which were very important and contributed to the final version of this review. While this review was unable to address all the issues identified, this should in no way minimize the nature and extent of challenges facing TFAWs.


Recommendations

This review generated 35 recommendations. The various provincial ministries as well as the other groups and individuals who participated in this review were instrumental in the development of these recommendations. These recommendations were shared with the Government Canada, and its responses to the recommendations are included directly into the report.

Leadership

  1. It is recommended that the Government of Ontario, with the support of the Government of Canada, work through its appropriate ministries, Ontario Health, and service-providing agencies, such as public health units, local health providers and institutions plan, strategize, coordinate, and integrate the overall management of TFAWs in Ontario to:  
    1. Work with each other to establish and maintain a database of TFAWs in Ontario. This database would include arrival and return dates, employment information, and emergency contacts. During the pandemic, outbreak data, including information of workers during isolation, should be included in this database.
    2. Ensure there is a primary resource for all TFAWs to access information about living and working in Ontario.
    3. Create a strategy to improve conditions for TFAWs. The strategy should include, but not limited to, a vision, objectives, and performance measures. The strategy should take into consideration TFAWs who are in Ontario as documented or undocumented workers, as well as the learning points from the pandemic.
    4. Coordinate with service-providing agencies, such as public health units, local healthcare providers and institutions, and occupational health clinics, to:
      1. Coordinate and designate quarantine sites (e.g. hotels) after TFAWs arrive to Ontario during a pandemic/infectious disease outbreak by ensuring that the sites meet public health standards.
      2. Provide educational workshops for TFAWs on Ontario labour laws, rights and responsibilities, how the provincial healthcare system works, and resources available within their communities.
      3. Provide information and/or connect TFAWs with primary care clinicians and services, especially those that may have a practice focused on providing care to TFAWs.
      4. Ensure completion of any appropriate screening tests required by public health and other regulations and/or accepted guidelines. These tests and their results should not impact the worker’s status in the program and their employability, and results should remain confidential whenever possible (i.e. the employers should not be given any information regarding these tests unless required by public health processes, such as contact tracing).
      5. Ensure completion of enrollment and/or education about health care (including OHIP health cards), Workplace Safety and Insurance Board (WSIB), Canada Pension Plan (CPP), and Employment Insurance (EI), if not already completed.
      6. Provide any necessary immunizations as required by public health or as requested and consented to by the TFAW.
      7. Continue to lead and implement necessary and emerging testing protocols related to COVID-19.

Deputy Chief Coroner’s Comments: Currently, several organizations facilitate and coordinate the arrival of TFAWs in Canada after acceptance into SAWP. Several community groups are also accessed and trusted by the TFAWs in their local communities, and it is important to ensure these resources be utilized to their full potential. It was also stated that several organizations have databases regarding these workers.  These resources have been established for years and have evolved during the pandemic. There was information provided that there are current discussions involving the federal government regarding the enhancement of on-farm quarantining for new arrivals.  It was also reported that some educational workshops are currently provided by the liaison/consulate offices for their respective workers.

This arrival and review process were recommended to ensure that there was a singular provincial database of information. It would utilize existing resources and supports for TFAWs as well as ensure that each worker received all the appropriate information and education required for their stay in the province.

The importance of clear communications between all governmental partners with involvement in this area regarding preventing and unnecessary delays in the necessary information being shared as necessary was discussed.

Government of Canada’s Comments: Although TFAWs may be arriving in Canada under one of the temporary work programs offered to foreign nationals by the Government of Canada, immigration is a shared responsibility between the federal government and the provinces/territories (PTs). Further, many of the protections and services available to TFAWs are within PT jurisdiction, such as setting employment standards, health and safety regulation, the provision of health care, and enforcing housing standards. Accordingly, information regarding TFAWs is spread amongst federal and PT departments and organizations.

With the April 2020 amendments to the IRPR, the Government of Canada has taken steps to better protect TFAWs. As a result, employers cannot do anything to prevent the foreign national from complying with the requirements of an order or regulation under the Emergency Act or the Quarantine Act and any provincial laws governing public health in response to COVID-19. For employers who are required to provide accommodations, the TFAWs are expected to complete their initial, legally required 14-day quarantine period at their employer provided accommodation, separate from those who are not in quarantine.
The employer must also provide cleaning products to clean and disinfect the accommodations regularly, as well as wages during that initial quarantine period.

If a SAWP TFAW becomes infected with or develops signs or symptoms of COVID-19, the employer is required to provide separate accommodations with a private bedroom and bathroom for the use of the employee while they self-isolate. To satisfy these legal requirements, it is necessary for the employer to be informed of a worker’s COVID-19 test results. 

Even for those TFAWs who choose to secure their own accommodations (depending on when the infection expresses itself during the quarantine period) testing results may still need to be provided to the employer if the quarantine period needs to extend beyond the initial 14-day period. Also, if these TFAWs are infected at any other time during their employment, this information would also need to be communicated to the employer, since the TFAW would need to be away from work to self-isolate and would need to be kept separate from the other uninfected TFAWs until their infection has been cleared.

The Government of Canada agrees in principle to Ontario creating a lead organization for the benefit of TFAWs who are destined for workplaces in Ontario.

Recognizing the need for better coordination with PT governments, the federal government is already organizing regular Assistant Deputy Minister (ADM)-level meetings between federal and PT departments with one of the aims being to establish a new central point of contact to improve coordination between the federal government and PT partners. This is to ensure that authorities are able to respond quickly to emerging issues within their areas of responsibility, including COVID-19 outbreaks.

The roles of each level of government in the oversight and collection of information will need to be well-defined through a robust Information Sharing Agreement or Memorandum of Understanding. This will be essential in order to underscore jurisdictional authorities and to ensure the protection of private information. This could be done, for example, in conjunction with, or as a supplement to the existing Federal/Provincial/Territorial Memorandum of Understanding on the Sharing of Information During a Public Health Emergency.


COVID-19 Isolation Centres

To manage and care for TFAWs who may be exposed to SARS-CoV-2 while they are in their places of employment, it is recommended that the municipal, provincial, and federal governments, with local public health units, and the support of healthcare institutions and other service providers ensure:

  1. COVID-19 isolation centres be created and maintained, as required by the situation, in the communities where they are employed (e.g. hotels, farms, and field hospitals) utilizing standard emergency management processes (i.e. Incident Management System framework).
  2. An analysis be conducted to ensure that there are enough centres to manage outbreaks at any time during a pandemic. This analysis should include data related to outbreaks on farms and their isolation abilities. The analysis should be shared with Ontario Health.
  3. At these COVID-19 isolation centres, it is recommended the Government of Ontario, possibly through the leadership of Ontario Health, ensure:
    1. Centres be managed 24-hours a day to allow timely admissions and discharges as required throughout the day.
    2. Provision of adequate and culturally appropriate food, physical distancing, and access to safe outdoor activities.
    3. Safe transportation, when required, is provided to and from centres.
    4. Infection prevention and control requirements of the local public health unit should be followed.
    5. TFAWs have access to telephones and/or internet services with clear instructions on how to contact emergency service providers to ensure effective, timely transport to hospitals as needed.
    6. Medical directives be developed by local clinicians and service agencies/hospitals providing the medical oversight of these centres whether they are at the farms or an external location. These directives will require collaboration from appropriate physician(s), nursing, and allied medical professional services. 

Deputy Chief Coroner’s Comments: Information was provided regarding how isolation centres were developed and evolved over the course of the pandemic. There were some challenges with the sharing of information and overlapping responsibilities of the various agencies in monitoring and providing services at these locations. Some of the workers discussed during this review did have issues obtaining emergency care and treatment of their medical concerns.

Utilizing the Incident Management System (IMS)  (an accepted and widely used framework for the management of emergency and other significant situations) with clearly established principles for decision making, provision of services and sharing of information, would contribute to a standardized, organized and efficient response to the complex and varied challenges experienced during a pandemic.

Isolation centres were not necessarily located at a single location but rather in multiple locations including hotels/motels as well as the farms/workplaces.

The importance of these centres being appropriately funded by the federal, provincial, and municipal governments was also discussed. Issues of ongoing communications with workers in isolation locations, their daily assessments as well as access to culturally acceptable food and recreation was discussed.

TFAWs’ ability to communicate with emergency services and access urgent care was also discussed. The independence of the public health units and their decision-making processes from the Ministry of Health (MoH) was discussed as well as the fact that not all the funding for these units is solely from the Ministry of Health. 

Government of Canada Comments: In April 2020, the IRPR was amended in response to COVID-19 in order to better protect TFAWs. The amendments include requirements imposed on employers to not prevent TFAWs from complying with their obligations under the Emergency Act or the Quarantine Act.  The amendments also require employers to provide a bedroom and a bathroom solely for the use of a TFAW who becomes infected or develops signs and symptoms of COVID-19.

The Government of Canada agrees in principle to the creation of COVID-19 isolation centres. However, given that relevant information is dispersed among the various federal and PT partners, there would need to be put in place a robust information sharing protocol to ensure that the privacy of TFAWs is strictly protected.

The Government of Canada could assist Ontario in liaising with other PTs in the identification of best public health practices.

Since July 2020, Canada has supported the operations of the Canadian Red Cross TFW isolation site in South Western Ontario. Work is currently underway with the City of Windsor-Essex to set up a Safe Voluntary Isolation Site in order to ensure that proper isolation capacity is in place for members of the community, including TFAWs.

Additional financial support was also made available to employers through the Mandatory Isolation Support for Temporary Foreign Workers Program, the Emergency On-Farm Support Fund, and the Emergency Processing Fund. These funds assist with the incremental costs associated with a 14-day quarantine period; are used to improve health and safety on farms and in employee living quarters; and to help employers implement changes to safeguard the health and safety of workers and their families due to the impacts of the COVID-19 pandemic.

Federal and Provincial Governments

  1. The results of all workplace inspections where TFAWs are employed should be made available upon request to other investigative agencies. This includes inspections related to workplace operations, fire and building code compliance, and compliance with housing standards. These inspections should be available to the local health units, provincial ministries, and federal departments. Consideration should be given to making these reports accessible to the public.
  2. Guidelines that document clear expectations on how information is shared amongst all governmental and other service-providing agencies should be developed. The guidelines should specify when memorandums of understanding, policies, or directives are required.
  3. The federal government should provide information to the provincial government regarding the workers registered in the program each year when the information is available. This could be a tri-party agreement between federal and provincial governments to manage the SAWP.
  4. Consideration should be given to the establishment of a “Good Samaritan Healthcare Provision” act (similar to the Good Samaritan Drug Overdose Act) that would apply to any TFAWs (documented or undocumented) or the person(s) transporting them for emergency support due to a medical concern.  The importance of ensuring the compatibility of this concept with current laws to ensure the health and well-being of TFAW and Canadian Society, as a whole, require that specific details be clearly addressed (see Government of Canada comments).

Deputy Chief Coroner’s Comments: The sharing of information amongst the various agencies involved with working with and providing services to these workers was discussed and noted to be a concern by several groups. Currently, the federal government does not formally share information with the provincial government. The federal government oversees this program that brings workers to the province and once they are here, they are subject to the laws of the province (e.g. labour laws, occupational health, and safety). There were discussions about the concerns of seeking healthcare by some workers as well as others.

Government of Canada Comments: The Government of Canada is engaging in discussions with its departments and agencies, as well as with PTs, about information sharing. The aim of these discussions is to craft information sharing agreements which may allow for the sharing of findings as they relate to employer compliance inspections in the TFWP

However, the protection of personal information is paramount in any information sharing agreement in order to prevent any unlawful dissemination of TFAWs personal information. Since the holders and recipients of the information are cross-jurisdictional with varied mandates and responsibilities, the inter-governmental exchange of information must be guided by the relevant federal privacy legislation, including the Privacy Act and the Department of Employment and Social Development Act (DESDA), in addition to any PT privacy legislation. Given the breadth of each department’s mandate and responsibilities, and the novel approach suggested in the recommendation, the Government of Canada would suggest that a coordinated legal analysis be undertaken prior to the establishment of such an information sharing protocol.

Any potential agreement should be limited to sharing relevant information with the appropriate entity, since not all governments departments or agencies inspect using the same criteria, nor require the same level of access to personal information. To accommodate this, the type of information gathered and the purpose for which the information may be shared should be clearly defined in any information sharing agreement.

The Government of Canada’s Response and Actions Taken: The Government of Canada supports the improvement of information sharing across jurisdictions and departmental authorities. In response to COVID-19, the TFW ADM Working Group and TFW Logistics Task Team were established to share information between federal departments, PT governments, and agencies. These teams facilitate communications, quickly identify issues in the evolving pandemic environment, and find and implement solutions.

Greater clarity is required regarding the scope of protections envisaged by a potential “Good Samaritan Healthcare Provision” with respect to TFAWs and their employers.  There are challenges to instituting “Good Samaritan” provisions to protect workers without status and their employers in the same manner as the Good Samaritan Drug Overdose Act (GSDOA) provisions suggested in recommendations 8. The two challenges are 1) how an amnesty for an undocumented worker would function in regards to an ongoing offence, such as being in Canada without status; and 2) how an employer amnesty for bringing an illegally employed person in for medical treatment could potentially inhibit a wider ranging investigation of that same employer.

Workers discovered to be without status or employed without authorization when seeking medical attention are potentially in breach of the IRPA. They would continue to be in breach of the IRPA for as long as they remained without status. It is the ongoing nature of the IRPA contravention/offence that differentiates it from a GSDOA offence, as it cannot be characterized as a discrete incident that triggers the amnesty. Instead, the amnesty would have to last not just for the date that the person was discovered to be in breach of the IRPA, but for the entire time they remained in Canada without status. An amnesty triggered by a non-status worker seeking medical attention would effectively prohibit the Government of Canada from ever seeking the removal of that particular worker.

Employing a foreign worker in a capacity not authorized under the IRPA is a potential offence and the employer’s conduct may attract criminal sanctions, depending on the nature and extent of the IRPA violation.  At the time of the foreign worker’s medical treatment, the nature and extent of an employer’s criminal conduct may not be fully understood by the authorities. There may be for example, other workers employed in the same manner or other aggravating factors regarding employer conduct warranting further investigation and possible sanction. It would be incongruous to have an employer in breach of the IRPA provided with an amnesty for bringing the employee in for treatment only to discover later that the breaches are not limited to that individual worker and that the alleged criminal conduct of the employer is far more serious than what was initially discovered


Federal Government

  1. The Government of Canada should coordinate regular meetings and/or communication with relevant local public health units regarding issues pertaining to TFAWs and preventative measures in place to provide an opportunity for all to share best and common practices and consistent messaging. Consideration should be given to the provision of electronic updates directly to all relevant agencies regarding housing-related and general public health-related orders for temporary foreign worker-related residences and requirements for work-related settings.
  2. The Government of Canada should work closely with the provinces to develop and/or update standards for housing inspection for on-site locations for TFAWs, including while workers are present as required. Inspections should both be scheduled and unannounced, when appropriate.
  3. The Government of Canada should consider a review of the work permit provision in the context of considering more open work permits (or agricultural sector-specific permits) versus closed/specific work permits regarding time and location. The provision of these permits to TFAWs as well as undocumented workers should be considered. Their provision should also be considered and/or provided during any conflict resolution process between a worker and their employer.
  4. The Government of Canada should reinforce clarification that TFAWs receive their pay and benefits for the quarantine/isolation periods (as required by Public Health) and that the workers are not to work during their quarantine period.

Deputy Chief Coroner’s Comments: The role of housing and employment as significant determinants of health are well established and even more so in the midst of a pandemic.

While there are already communication channels that exist between public health units locally, provincially and federally, a more formalized communication process during pandemics would help to ensure standardized management processes between the local, provincial, and federal levels (i.e. interprovincial standardization).

Although there are already housing inspections in place, there is a need for ongoing regular and random inspections of work locations, including housing and work-related areas. Information was provided regarding the responsibility of the federal government with regards to worker representatives in addressing issues at the workplace (e.g. labour, occupational health and safety).

It was reported that there had been no employer penalized by the federal government for violation of provincial standards.

The difficulties workers had accessing open work permits whose work terms were terminated or shortened were discussed. The presence of undocumented workers was also discussed regarding the issue of open work permits.

The importance of providing a safe, secure, working environment, in keeping with public health directives during the pandemic for these workers was discussed by all the participants. In general, the participants felt that the federal government should be responsible for ensuring that all the above standards are in place. During the pandemic, it was noted that several provincial government ministries, such as Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) and Ministry of Labour, Training and Skills Development (MLTSD), have participated in joint update teleconferences to ensure coordinated communications. This serves to document that some of these processes have already and continue to be developed.

Government of Canada Comments: TFAW employers received notice of the amendments made to the IRPR in April 2020, including notice of their obligations towards foreign workers who are subject to the orders made under the Quarantine Act. Inspections may be initiated if an employer hires a TFAW who is or was subject to an order or regulation made under the Emergencies Act or Quarantine Act, or if notice is received that there has been an introduction or spread of a communicable disease in the workplace.

The employer compliance regimes under the TFWP are intended first and foremost to detect and deter employers who are not respecting the program conditions, to encourage compliance and to educate employers about their obligations under the program. In addition, the Government of Canada regularly provides information sessions to employers and employer organizations in order to proactively promote compliance. Employers are also given the opportunity to provide explanations if they are found to be non-compliant with the regulatory requirements.

Generally, the establishment of housing standards and related inspections conducted prior to the arrival of workers is under the responsibility of PTs. In some cases, this responsibility is delegated to municipalities or private inspectors.

The Government of Canada’s Response and Actions Taken: In general, PT legislation governs local public health units. The Government of Canada is of the view that recommendation 9 should be organized in collaboration with PTs. The federal government’s role is to provide a broad national facilitation and supporting role to PTs. The PTs, in turn, work with the local health authorities. The Government of Canada also works with local public health units for follow up with travelers. The federal government only works with TFAWs who are subject to federal orders during the period of their mandatory quarantine.

The Government of Canada supports PT COVID-19 health concerns and coordination through the Special Advisory Committee, for which all PTs have their respective chief medical official (or alternate) that addresses regional issues regarding COVID-19.

A broader integrated oversight mechanism would be needed in order to implement this recommendation given that public health is part of a complex TFAW environment. Considering public health independently of this complex environment and all its other factors and pressures would be ineffective. A holistic approach is required.

The Government of Canada has taken steps to enhance the compliance regime by increasing administrative monetary penalties The Government of Canada will continue to engage with employers to ensure they are better educated about their obligations and have the necessary information to fully comply with requirements under the Quarantine Act.

The Government of Canada is also working on improving and updating information sharing agreements across jurisdictions and departmental authorities, as mentioned above. Such agreements may facilitate the exchange of findings with respect to employer compliance inspections under the TFWP.

In October 2020, consultations were undertaken with PTs, employers, workers and foreign partner countries with respect to a proposal to establish minimum requirements regarding employer-provided accommodations for employers who participate in the TFWP/PAS. The goal of this measure is to improve the consistency and quality of living conditions for workers while they are in Canada.  Recognizing the PT’s jurisdiction over housing standards, the intent of the consultations and the proposed measure is to identify requirements that would complement existing provincial-territorial housing standards and identify measures to strengthen the oversight for pre- and post-arrival inspections of worker accommodations. The input received during this consultation is currently being reviewed, and will inform next steps, including the continued collaboration with PTs and program partners.

The Government of Canada supports the exploration of options to provide TFAW with improved/increased labour mobility within the agricultural sector. These options should not, however, extend to undocumented migrants (i.e. individuals who do not have status/visa to remain in Canada) due to their inadmissibility under the IRPA. Undocumented migrants seeking to regularize their immigration status could, however, apply to regularize their status under the existing pathways noted above.

Regulatory amendments were made to the IRPR in 2019 to introduce an open work permit for vulnerable workers (OWP-V). These amendments allow workers in Canada who are in possession of an employer specific work permit (or those who have applied to renew their employer-specific permit) to access an open work permit when there are reasonable grounds to believe that the foreign national is experiencing, or is at risk of experiencing, abuse in the context of their Canadian employment.

The Government of Canada also provided assistance to TFAWs from Trinidad and Tobago (and other source countries) who worked in Canada in 2020 by way of a public policy implemented on December 12, 2020. The policy facilitated their eligibility for an open work permit. Since these TFAWs were unable to return home due to their country’s requirements for returning nationals, the open work permits allowed them to maintain immigration status and work in Canada while they awaited their ability to return home.

Provincial Government

  1. Develop a translated, culturally appropriate education campaign for TFAWs on the risks and benefits of COVID-19 vaccine to address any misconceptions regarding the vaccine. TFAWs should be considered as a high priority population and receive vaccination for COVID-19, if the TFAW consents after given full and accurate information regarding the vaccine. Their eligibility to work should not be dependent on whether they receive the vaccine or not.

Deputy Chief Coroner’s Comments: TFAWs are included in the Phase 2 rollout of COVID-19 vaccine distribution between April to July 2021, depending on availability of vaccines. It was discussed during the meetings that some TFAWs, similar to the general public, may have misconceptions about COVID-19 vaccines. A culturally appropriate campaign could help to dispel these misconceptions, so that TFAWs and communities be given accurate information.

Ministry of Labour, Training, and Skills Development

  1. Consider enhancing access to an anonymous phone line for temporary foreign workers, or those communicating on their behalf, to report any workplace concerns. These concerns include those regarding employment standards as well as occupational health and safety concerns. Consideration should be given to:
    1. How TFAWs can easily access this phoneline (for example, languages other than English/French, online phone access);
    2. Providing the caller with information regarding their rights against any reprisals for their reporting (i.e. explain provincial protections for workers) as well as how to submit a complaint to either the MLTSD or the Labour Relations Board.
    3. Enhancing online access to similar services.
  2. Ensure that there is a TFAW is designated, ideally selected by co-workers, as a trained occupational health and safety representative at each employment location through proper training and occupational health and safety oversight for both the employers and the workers.

Workplace Safety Insurance Board

  1. WSIB should consider the continued provision of supports/crisis counselling to all families of those impacted by the death of a TFAW as well as providing educational resources on other support services available to all TFAWs

Deputy Chief Coroner’s Comments: The importance of safe and secure employment as a social determinant of health was discussed with a view to ensuring the health and well-being of TFAWs as well as its role in preventing future deaths.

Information was provided regarding the current MLTSD phoneline and its limitations. There are separate phone lines for employment standards and occupational health and safety respectively. It is only provided in English and French and there may be challenges in navigating the menu of the phone line before speaking with a live agent. Other people, such as consular offices, friends, and other supportive persons, can call on behalf of a worker as well to increase their access. Provision of services in the appropriate languages in a culturally sensitive manner was reviewed. The frequent use of specific messaging internet apps was also discussed.

The need for TFAWs to be educated regarding their rights to a safe workplace and to be provided with safety against reprisals for reporting violations was also reviewed. References were made to the Expert Advisory Panel on occupational health and safety report in 2010 and its recommendations regarding many of these recommendations.

The importance of knowing who is working on the farms, greenhouses and/or food processing plants was discussed. It was discussed that there are three possible types of workers on the farms, greenhouses or food processing plants: TFAW foreign workers arriving from other countries (federally controlled), workers that may be undocumented TFAW from temporary agencies, and Canadian citizens working at the locations. These lists are not currently required by MLTSD (except for the client business obligations to keep records of the hours worked in each day and week by employees of temporary agencies as required by the Employment Standards Act) but this was reviewed in discussions. Section 15 of the Employment Standards Act requires every employer to keep records that could be useful for the creation of these lists to help public health with contact tracing. 

Ministry of Health

  1. Work with and support Ontario Health to ensure that TFAWs (both documented and undocumented) have adequate access to health care as well as the knowledge on how to access this health care and their rights to this care given their specific work locations. The health service providers should establish processes and policies to enhance access to care that is not dependent on the involvement of employers
  2. Continue to facilitate and encourage information sharing between the Chief Medical Officer of Health and public health units regarding outbreaks, their management and the appropriate testing required. The provision of de-identified data could also be shared with other agencies (i.e. OMAFRA) as necessary to enhance provision of services to these workers. 
  3. Consider establishing a model for mobile health assessment teams for assessment of these workers in conjunction with public health, local healthcare providers, and institutions for pandemic and non-pandemic-related health concerns.
  4. Consider developing a campaign to inform and educate workers and employers on accessing the telehealth services for reporting health concerns or health risks for any specific work location or worker.
  5. Consider working with local institutions/service providers on providing counselling and spiritual care services.

Deputy Chief Coroner’s Comments: The importance of health care provision and access to primary care services was discussed during this review and noted to be an important issue during the investigation of the three deaths. Several comments were made regarding the importance of the provision of information, in a culturally and language-appropriate manner, to TFAWs regarding access to health care resources. It was also noted that there is often a perceived need by the TFAW to access health care resources by communicating this to their employers. The workers should be informed of their rights to confidentiality regarding their healthcare needs. The importance of standardized processes amongst the 34 public health units as well as with the Chief Medical Officer for the province and Public Health Ontario was discussed. The limited access to counselling and other support services was identified. 

Ontario Ministry of Agriculture, Food & Rural Affairs

  1. Continue to disseminate information to employers in farms and food processing operations from and to public health units, as well as with MoH and WSIB, as required.
  2. Ensure that information regarding the number of individuals working in and involved with various work locations is shared with the various groups involved in the health management of the workers.
  3. Ensure that there is an effective reimbursement process for the appropriate provision of infection prevention and control-related practices during emergencies such as a pandemic. This should include ensuring funding, as required, of appropriate locations for quarantine/isolation and meal provision that could be approved as required for any future emergency/pandemic. 

Deputy Chief Coroner’s Comments: The role of OMAFRA regarding information dissemination amongst the various agencies was discussed. Their role in helping to fund the need for appropriate PPE and other infection-prevention practices as well as the importance of funding high quality areas for isolation/quarantine was also discussed. Although most of OMAFRA’s support measures have not been legislative in nature, they have helped to provide enhanced training, funding, and working with other relevant government actors (e.g. MoH, Ontario Health and MLTSD) and stakeholders. This was done to help develop and disseminate broader prevention and control strategies and resources, to help farmers, food processors, and their workers. They also worked as a liaison between agri-food stakeholders and health partners to support asymptomatic testing campaigns in 2020 and rapid-testing in 2021.

Employers, including Temporary Agencies

  1. Continue to provide language and translation services to workers so that there is a clear understanding of directions provided by employers.
  2. Continue to ensure that specific work settings adhere to occupational and public health guidelines, such as proper physical distancing, provision of personal protective equipment, and appropriate cohorting of workers.
  3. Continue to ensure bunkhouses and other congregate living arrangements adhere to public health guidelines, such as appropriate infection prevention and control policies for living in congregate and shared-spaced settings.
  4. Consider separating full-time workers from daily temporary workers during pandemic/outbreak restrictions, if these are not already in place.
  5. Farms, greenhouses, and/or food processing operations should share lists of workers in isolation or quarantine to the other agencies, including Ontario Health, involved in the public health management of these workers during an outbreak/pandemic to ensure healthcare oversight and coordination for appropriate health assessments occurs. Maintenance of lists in accordance with Section 15 of the Employment Standards Act regarding workers on the farms, should also be kept allowing for communication with public health units requirements regarding contact tracing. 
  6. Employers have a documented list of workers that follows the relevant public health orders from the local health unit (for reporting purposes) to prevent individuals from working at multiple sites without observing the appropriate quarantine period.

Deputy Chief Coroner’s Comments: There were several issues identified regarding undocumented TFAWs and the limited number of supports and services provided for this vulnerable population. The role of temporary worker employment agencies and the complexity of issues that exist with these workers was discussed. Several issues regarding undocumented TFAWs working in various regions without the appropriate quarantine procedures were felt to increase the risk of disease transmission. Also, undocumented workers who do not have access to primary care were felt to be at increased risk of adverse health outcomes as well as being a risk of transmitting SARS-CoV-2 to other TFAWs as well as others. The importance of identifying and managing the healthcare needs of all TFAWs (documented and undocumented) in a non-judgmental manner toward the workers and their employer was discussed. The importance of being able to ensure an undocumented worker being brought for healthcare by an employer should not have repercussions on either the worker or the employer (as discussed in the recommendation pertaining to the concept of a Good Samaritan Provision). 

Public Health Agencies (Federal, Provincial, and Local)

  1. Random and directed testing of all workers for the presence of SARS-CoV-2 should be considered essential at the times of the inspections or at other times deemed necessary for the prevention and management of outbreaks. Testing by public health should be inclusive of input from local health care providers and institutions as necessary and with the worker’s consent.
  2. Ensure the provision of culturally appropriate services and testing of TFAWs. This could be achieved through collaboration and assistance from local resources, consulates or liaison officers.
  3. Local medical officers of health should and/or the Chief Medical Officer of Health for Ontario consider issuing orders (e.g. under section 22 under the Health Protection and Promotion Act), if the statutory test is met, for employment locations to maintain and provide a list of all workers to local public health units to assist in contact tracing or other necessary processes.

Deputy Chief Coroner’s Comments: There were discussions regarding Public Health Agency Canada as a coordinating body to exchange information regarding vulnerabilities faced by TFAWs. Some agencies were looking for federal documents directed toward employers that strengthened and supported PHAC’s responsibility for strong standards for public health in the province as well as across the country.

It was also noted that SARS-Cov-2 testing should be developed and administered with TFAWs individually on a consent-based system without employers present during the assessments or follow-up visits. The importance of developing protocols in coordination with primary, local, and institutional care providers for TFAWs was discussed. The inclusion of established processes to ensure the TFAWs have adequate assessment and follow-up plans to manage their SAR-Cov-2 status or COVID-19 disease (or other disease) was also reviewed.

Government of Canada’s Comments: Since early 2020, federal emergency Orders In Council under the Quarantine Act have been issued, with periodic renewals and updates. These Orders in Council implement pre-border, at-border and post-border public health measures that are generally applicable during the COVID-19 pandemic (with specified exemptions).

The Government of Canada aims to ensure that the right measures are in place to limit the transmission and manage outbreaks of COVID-19. To that effect, it is collaborating with the Government of Ontario to put in place a pilot in South Western Ontario. The pilot project is to periodically test and screen asymptomatic workers, with consideration being given to leveraging the unused antigen tests in the federal stockpile.

The Government of Canada’s Response and Actions Taken: The Government of Canada supports the development of public health guidance with federal and PT departments and other stakeholders that can be customized/adapted to PT and local settings.

In March 2020, Orders in Council were issued regarding prohibitions of entry into Canada. TFAWs with valid work permits were exempted and allowed entry into the country. However, TFAWs were not exempt from quarantine, and were required to quarantine for 14 days at a suitable location.

In January, February and March 2021, Orders in Council were also issued with respect to mandatory pre-border, on-arrival, and post-arrival testing for COVID-19 for all persons looking to enter Canada. TFAWs are not exempt from these requirements in the Orders in Council.

Office of the Chief Coroner and Ontario Forensic Pathology Service

  1. The Office of the Chief Coroner and Ontario Forensic Pathology Service should consider calling an inquest into the death of TFAW(s) during the COVID-19 pandemic.
  2. The Office of the Chief Coroner and Ontario Forensic Pathology Service should consider ensuring that the death of vulnerable persons, such as TFAWs (both documented and undocumented), be mandatory to report under the Coroners Act.

Deputy Chief Coroner’s Comments: There are two recommendations directed to the OCC-OFPS. While one may ask why make recommendations to our own office when the changes could potentially be simply instituted, we wished to ensure open and transparent disclosure of what was learned through this process.

An inquest is a public hearing held in order to ascertain the facts around a particular death and, where appropriate, make recommendations to prevent further deaths. While the focus of this review was on the more immediately achievable recommendations, it may be appropriate to conduct an inquest into a TFAW death(s) in order to more deeply analyze the structural systems, issues, processes and working relationships that, if improved, could prevent further deaths.

One of the deaths was initially declined for investigation by a coroner as it was felt that because COVID-19 is a natural disease, the case did not warrant an investigation by a coroner. Further review resulted in reversing this decision as the importance of understanding the risks to TFAWs, increased by the presence of the pandemic, from a public health and societal point of view was noted to meet the standards for requiring an investigation.

Government of Canada Comments: The Government of Canada has demonstrated its commitment to the health and safety of all TFWs. The Government of Canada’s actions throughout the COVID-19 pandemic have already resulted in several enhancements to the TFWP/PAS. Further actions continue to be coordinated for rapid implementation.

The Government of Canada proposes to maintain open communications with the OCC-OFPS and continue to share publicly available information - such as information relating to regulatory amendments, Orders in Council, or other enhancements to the TFWP/PAS - as such measures are developed and implemented. The unprecedented circumstances of the COVID-19 pandemic led to the unique approach taken in this review. This ultimately included comprehensive stakeholder input and resulted in public recommendations. It is suggested by the Government of Canada that at this stage and in these circumstances, the continued sharing of information relevant to these recommendations  could be a more resource efficient approach than an inquest


Conclusion

It was most evident during the review that there are several individuals and organizations that care deeply for TFAWs. We would like to acknowledge and thank them for sharing their knowledge and experiences with us. It is hoped that the issues identified in this report will provide an opportunity for the improvement of health, work, and living conditions for TFAWs.

While this report will be made publicly available, we will also forward them to the organizations that are the recipients of these recommendations. We will follow up on the status of recommendations, whether they are accepted and implemented, within six months and again a year later.

 

[1] The Immigration and Refugee Protection Regulations (IRPR) defines “primary agriculture” as farm-related work that involves the operation of agricultural machinery or the production or harvesting of plants or animals/animal products. The Temporary Foreign Worker Program Primary Agriculture Stream is an umbrella program where employers can hire a temporary foreign worker from four possible streams: the Seasonal Agricultural Worker Program (SAWP), Agricultural Stream, Low-Wage Stream and High-Wage Stream.

[2] The Temporary Foreign Worker Program (TFWP) aims to fill labour market needs where Canadians or permanent residents are not available. It includes agricultural workers and other workers who typically qualify under primary agriculture and low-wage categories of the TFWP. The employment of these workers requires a labour market impact assessment (LMIA) to ensure that there is a legitimate need for the TFW and their employment will not have a negative impact on the Canadian labour market. All work permits issued under the TFWP are employer-specific.

[3] A TFAW who was not admitted via SAWP may still be a legitimate worker under one of the other TFWP/PAS streams. A non- SAWP TFAW is not necessarily an undocumented worker. For example, they may be a TFAW under the Agricultural stream of the TFWP/PAS or a foreign national with an open work permit. Further, as noted, foreign nationals must be authorized by a work permit or the Immigration and Refugee Protection Regulations (IRPR) to work in Canada. Working without authorization is grounds for a finding of inadmissibility under the Immigration and Refugee Protection Act (IRPA). Individuals working without a work permit or authorization may be subject to enforcement action or removal from Canada due to their inadmissibility. There currently are a number of ways that undocumented workers might regularize their immigration status, if, in addition to working without authorization, they over-stayed a visa, study permit or work permit, were refused refugee status and did not leave; entered Canada illegally; or were trafficked or smuggled into Canada.. These include obtaining permanent residence under humanitarian and compassionate grounds; the restoration of their temporary resident status; obtaining a temporary resident permit; or benefitting from a temporary public policy that provides a longer window of time to apply for restoration and does not preclude those who have engaged in unauthorized work.

[4] Employers are subject to unannounced inspections. They may be inspected at random; if there is a history of non-compliance; if there is a reason to suspect non-compliance based on a tip; or if there is a complaint. With the amendments implemented to IRPR in April 2020, compliance inspections can also be initiated if a notification is received that either there was an introduction or spread of a communicable disease at the work place, or if the employed TFW is (or was) subject to an Order or Regulation under the Quarantine Act or the Emergencies Act.