An unusual legal attack from a London lawyer continues to bedevil Norfolk and Haldimand’s board of health.
Andrea Plumb is legal counsel for Schuyler Farms of Simcoe, which is challenging the counties’ three-man-to-a-bunkhouse cap for migrant workers while they serve their mandatory, 14-day quarantine upon arrival in Canada.
Plumb successfully argued against the cap during a six-day hearing before Ontario’s Health Services Appeal and Review Board in May.
On June 12, the review board struck down the cap as “arbitrary” and “unreasonable.” Dr. Shanker Nesathurai, Norfolk and Haldimand’s medical officer of health and author of the order, has appealed the decision to Divisional Court.
In an unusual move last month, Plumb continued her assault on the cap in two letters to the board of health, which she also shared with the media. The letters were included in the agenda of the June 19 board of health meeting but later stricken as inappropriate public documents.
“There is a legal process,” clerk Andy Grozelle explained to Norfolk council, which serves as the board of health for both counties. “And it is not the board of health.”
The correspondence has occupied several hours of the board’s deliberations over two meetings.
Board members wanted to discuss the June 19 letter in open session again on June 30. However, they could not muster the two-thirds majority needed to revisit the matter, which was closed at the June 19 meeting. Plumb’s correspondence was stricken from the record, Grozelle said, because it refers to sensitive legal matters involving Norfolk, Haldimand and their respective taxpayers. Their inclusion, he said, was a mistake.
At last Tuesday’s meeting, Delhi Coun. Mike Columbus wanted to discuss Plumb’s correspondence further because it suggests board of health members could be held personally liable for the losses farmers incur due to the three-man cap.
Large employers complain that Nesathurai’s order is preventing them from situating the workforce they need to plant, tend and harvest their usual production. Many are angry that Norfolk and Haldimand is the only health jurisdiction in Ontario encumbered by this stipulation.
Grozelle said it is “unwise” to discuss sensitive legal issues in public because what board members say can and will be dissected in a court of law. Grozelle added he has never seen a lawyer so aggressively and openly pursue ongoing litigation in front of a municipal body. The board of health and county solicitor Paula Boutis went in-camera to discuss Columbus’s concerns.
Divisional Court won’t hear Nesathurai’s appeal until July 29. A decision is expected in the first week of August.
If the review board’s findings are upheld, Nesathurai has the option of referring the matter for a third opinion to the Ontario Court of Appeal. If it comes to that, Nesathurai’s order will be a fait accompli for 2020 regardless of what others have to say.
For his part, Nesathurai says the three-man cap is essential to limiting the spread of COVID-19 in agricultural settings and keeping any outbreaks manageable. These outbreaks have the potential to debilitate large operations, spread to the wider community, and possibly overwhelm local health-care resources.
Nesathurai defends his order as a humane gesture ensuring that migrant workers serve their quarantine in relative comfort.
“We cannot ask to diminish the health status of a migrant worker so we can effectuate an improvement to the financial status of a farmer,” Nesathurai said at the June 19 board of health meeting.