Board strikes down bunkhouse cap

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A Simcoe farmer’s appeal of the three-worker-per-bunkhouse cap during the COVID-19 quarantine period has been approved.

The Health Services Review and Appeal Board struck down the cap on June 12. In its decision, the board said the three-man limit was “unreasonable” and “arbitrary” and could not be justified from a public-health standpoint.

That same afternoon, the Haldimand-Norfolk Health Unit said it is “disappointed” with the ruling and will mount an appeal.

Until that appeal is settled, the three-man cap on migrant workers in Norfolk and Haldimand during their mandatory 14-day quarantine period remains in effect.

“The health unit’s order is reasonable and effective at protecting farms from the disastrous effects of a widespread outbreak of COVID-19 during migrant workers’ initial self-isolation period,” said Matt Terry, a spokesperson for the health unit.

“As evidenced by the outbreak (at Scotlynn Group in Vittoria) which took place during the hearing, the virus can easily spread among large numbers of workers living in a congregate setting, significantly impacting farming operations.

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“The number of workers able to self-isolate in a bunkhouse (in Norfolk and Haldimand) remains at three during the appeal process.”

Brett Schuyler of Schuyler Farms organized the appeal. He acted because no other health-unit jurisdiction in Ontario was subject to the cap, which area farmers say was responsible for preventing them from processing and situating the migrant help they need to plant, tend and harvest crops this spring.

The appeal was heard by video link over six days, starting at the end of May. Under challenge was Dr. Shanker Nesathurai, Norfolk and Haldimand’s medical officer of health.

Nesathurai’s three-worker-per-bunkhouse rule exceeded provincial and federal specifications for situating offshore workers on farms.

This meant Norfolk and Haldimand farmers wishing to have their workers serve their mandatory 14-day quarantine could only house three workers at a time in a bunkhouse – regardless of whether it was 450 square feet in size or 5,000 square feet. Local farmers said this put them at a severe disadvantage compared to other health-unit jurisdictions in Ontario.

Farmers complained this would cause staffing bottlenecks during a time-sensitive period of the growing season. Some farmers walked away from large acreages of asparagus because they could not staff their operations in sufficient numbers to undertake a harvest.

The board’s ruling was signed by vice chair Thomas Kelly, who presided over the hearing, and review panelists Beth Downing and Michel Schofield. The board concludes that Nesathurai’s three-man cap is “unreasonable” and “arbitrary.”

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“With respect,” the 22-page judgement says, “The board finds the respondent’s (Dr. Nesathurai’s) position that it is not possible to have more than three migrant farm workers self-isolate in a bunkhouse — regardless of its design, size, layout and amenities — to be unreasonable.

“The explanation given was that there are various points in the bunkhouse which make it difficult to maintain the required social distancing, including the washroom, the stairway and entrance and exit points.

“The board finds the requirement of a maximum of three migrant farm workers per bunkhouse is arbitrary and does not take into account the specifics of each bunkhouse. There was no convincing reason given as to why there is a limit of three migrant farm workers to a bunkhouse.

“The board notes that (Nesathurai’s) order requires that a self-isolation plan be approved which enables public health unit staff to identify and consider the specifics of each bunkhouse and use their public health expertise to make a determination as to how many migrant farm workers would be allowed.

“The requirement of approval of a self-isolation plan by the public health unit prior to allowing entry of migrant farm workers to Canada serves to decrease or limit the risk of transmission to migrant farm workers as it puts in place a mechanism to provide appropriate accommodation for migrant farm workers in advance of their entry to Canada.”

In its decision, the board declined Schuyler Farms request that the Haldimand-Norfolk Health Unit pay for the cost of its appeal.

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