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Divisional court hears appeal of bunkhouse cap

Judge says MOH has discretion to impose orders

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An Ontario Divisional Court judge suggested Wednesday that a medical officer of health is entitled to issue orders specific to a health unit jurisdiction regardless of rules at the provincial and federal levels.

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Justice Harriett Sachs made the observation while hearing an appeal involving a controversial order in Norfolk and Haldimand counties that caps bunkhouse occupancy at three while migrant workers perform their mandatory, 14-day quarantine.

Dr. Shanker Nesathurai, Norfolk and Haldimand’s medical officer of health, imposed the order March 27 in response to the COVID-19 pandemic emergency.

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“In terms of this particular virus, two of the biggest risk factors are international travel and isolating during the quarantine period,” Sachs said during the one-day proceeding, which was conducted by teleconference and broadcast live on YouTube.

“None of this is dealt with in the federal guidelines.”

Sachs made the observation in counterpoint to London lawyer Andrea Plumb, counsel for a Simcoe farming operation that successfully challenged Nesathurai’s order this spring. On June 12, Ontario’s Health Services Appeal and Review Board ruled that Nesathurai’s three-man cap is “arbitrary” and “unreasonable.”

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When Sachs interjected, Plumb was arguing that the review board was correct in its findings, in part, because Nesathurai’s order went beyond federal guidelines. Federal rules stipulate that bunkhouse occupants must social distance two metres at all times, a rule Plumb says provides its own formula for determining pandemic occupancy at any given bunkhouse.

The lawyer also cited federal documents saying health units have “a consultative” role to play in the housing of migrant workers.

“Service Canada is responsible for bunkhouse compliance, not the health unit,” Plumb said. “It’s being done by Service Canada. It’s not being done by the health unit. “They (Service Canada) have their own program for compliance.”

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The migrant worker program is a federal responsibility because it involves international travel and the employment of foreign nationals.

Plumb suggested Nesathurai’s order adds a needless, arbitrary layer of complexity that unfairly disadvantages local farmers. However, Sachs suggested provincial legislation empowers medical officers of health to act in their jurisdiction when, in their professional opinion, they deem it necessary.

“He has the authority to do what he finds to be necessary on reasonable and probable grounds,” Sachs said.

What this and other exchanges mean remains to be seen. Sachs is one of three justices hearing the appeal. Nesathurai launched the appeal June 12 hours after the health appeal board handed down its ruling.

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Farmers complain that Nesathurai’s order delays the situating of workers during a time-sensitive point in the growing season. Due to anticipated labour shortages, farmers warn yields will suffer as a result. Local farmers also say Nesathurai’s order puts them at a disadvantage because other growers in Ontario are not subject to the same limitation.

Representing Nesathurai were Toronto lawyers Jill Dougherty and Lara Kinkartz.

Dougherty said the review board gave insufficient weight to Nesathurai’s humanitarian and compassionate objectives. Nesathurai maintains the three-man cap creates a tolerable environment during a stressful period of self-isolation.

“Setting the limit at three is really a health equity issue,” Dougherty said.

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Dougherty added the review board erred when it suggested the health unit should factor in the circumstances of each farm and bunkhouse when determining the number of workers who can quarantine at any given time. Dougherty said the board’s position is impractical and unworkable.

“You’d have to do a deep dive,” Dougherty said. “You’d have to do it at the granular level. You’d have to do an on-the-ground analysis of pinch points and traffic flows in every bunkhouse. The health unit does not have the time, people or resources to do that deep dive.

“There’s lots for a health unit to do during a pandemic. It’s important to husband these resources.”

Schuyler Farms of Simcoe, a large employer of offshore labour, successfully appealed Nesathurai’s cap to the Ontario Health Services Appeal and Review Board in May.

Wednesday’s proceeding ended with the respective legal teams agreeing that the losing litigants will pay their successful counterparts $50,000 toward their legal fees. The panel reserved judgement.

Nesathurai’s order remains in effect for the duration of the appeal. The three-man cap applies to all bunkhouses in Norfolk and Haldimand regardless of size and configuration.

MSonnenberg@postmedia.com

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