Pandemic prosecution: Ontario employer pleads guilty to virus related violation of the OHSA

Nearly two and a half years after COVID-19 was declared a pandemic, Ontario’s first employer has been prosecuted under the Occupational Health and Safety Act (OHSA) for an incident related to the virus. The offence? Scotlynn Sweetpac Growers Inc. (Scotlynn), a farming operation, failed to isolate workers after they became aware of an outbreak. Although the conviction occurred on June 6, 2022, the incident dates back to almost the beginning of the pandemic, taking place between May 13, 2020, and June 1, 2020.

What happened? ^[1]

Scotlynn employed 216 workers on an agricultural farm, with employees staying in bunkhouses which accommodated between 8 and 50 people each. As an essential workplace, Scotlynn continued to operate even when many other businesses were shut down to contain the spread of the virus.

On May 28, 2020, the first employee tested positive for COVID-19. The local health unit declared an outbreak the next day because two or more cases were identified, and it was assumed that many others were infected as well.

After more testing was conducted in the following days, a total of 196 employees had positive results. Although most cases were asymptomatic, three people were hospitalized. Juan Lopez Chaparro, one of those three, died at age 55.

Although Chaparro had symptoms for several days, he was not isolated and remained in his bunkhouse with other employees. During this time, Scotlynn also failed to consistently enforce COVID-19 screening measures and permitted employees to self regulate masking. Flores, the bunkmate of Chaparro, told CTV News that “this situation created the perfect conditions for the COVID-19 outbreak that made us ill.”

How did Scotlynn breach the OHSA?

Scotlynn violated the OHSA by failing to take every precaution reasonable in the circumstances to protect workers. Specifically, they didn’t take the reasonable precaution of isolating symptomatic workers to help prevent transmission.

After pleading guilty, Scotlynn received a $125 000 fine, as well as a 25% victim fine surcharge.

Hidden consequences

Issues like these disproportionately affect migrant workers. Thousands of temporary foreign workers come to Ontario annually as part of the federal Seasonal Agricultural Worker Program. For many, this work is a critical aspect of their livelihood. Most of these workers will not report poor conditions because without permanent residency, they fear losing their jobs and being removed from Canada. Chaparro, the individual who died, was one of these migrant workers who travelled from Mexico to support his family.

Syed Hussan, the executive director of the Migrant Workers Alliance for Change, expressed disappointment at what he described as a small penalty for Scotlynn. He stated, “these minimal fines are simply the cost of doing business for corporations who can have a person die on their farm and hundreds of workers get sick, but they continue to make massive profits off the backs of migrants.” Many advocates are now calling for migrants to receive permanent resident status to help combat issues like those which arose at Scotlynn.

Conclusion and takeaways

With this case, the obligation to take “every precaution reasonable in the circumstances to protect workers” has grown to encompass protection from COVID-19 infections. Some precautions employers can take to fulfil this responsibility include:

• Following the guidance of your local public health unit
• Providing access to COVID-19 rapid tests
• Ensuring employees report positive test results or symptoms to supervisors and managers
• Instructing workers who are infected to stay home from work
• Requiring masking when employees must work in close proximity

It’s clear that the onset of unprecedented circumstances is no excuse for failing to take precautions to protect workers. When situations like these arise, employers need to adapt quickly.

---

[1] For more specifics about the offence, see the Ministry of Labour’s court bulletin