Board Orders (HSARB)

Schuyler Farms Limited v. Dr. Nesathurai, 2020 ONSC 4711 (CanLII)

[2] As part of the local response to the COVID-19 pandemic, Dr. Nesathurai issued an order to employers of migrant farm workers (“MFWs”) in the Haldimand-Norfolk region that required them to take measures to enable MFWs arriving from out-of-county to self-isolate for fourteen days (the “Order”). The Respondent in the present appeal, Schuyler Farms, requested a hearing before the HSARB regarding the appropriateness of the Order’s requirement that no single bunkhouse shelter more than three MFWs during the self-isolation period. The HSARB held that this requirement was arbitrary in that, among other things, it did not account for variations in the size and layout of bunkhouse facilities. On this basis, the HSARB struck this requirement from Dr. Nesathurai’s Order.

Issue 1: Did the HSARB apply the wrong test and too high a standard of proof?

[36] Dr. Nesathurai submits that it was not the Board’s role to decide if the impugned requirement was reasonably necessary; the HSARB’s role is not to stand in the place of the MOH and reconsider the exercise of that judgment; it had to determine whether the MOH had reasonable and probable grounds for finding that the requirement was necessary.

[41] The leading case in the HSARB’s jurisprudence on the standard of proof to be applied is 481799 Ontario Ltd. v. Waterloo Region of Public Health (Waterloo). That decision dealt with a health hazard under s. 13 of the HPPA, which is worded similarly to s. 22(2). Waterloo confirms that the “reasonable and probable grounds” requirement creates a standard of proof that is significantly lower than the civil standard. It held that the purpose of the HPPA helps to inform the question of what is reasonable in the circumstances. It accepts that one purpose of the HPPA, as its name suggests, is the protection of public health. It held that it is sufficient if the grounds are informed by scientific literature and exercised fairly and suitably under the circumstances.

Issue 2: Did the HSARB fail to consider that Dr. Nesathurai’s Order was a class order?

[55] The Appellant argues that the HSARB erred in failing to consider and treat the order as a “class order”. We agree.

[56] Section 22(5.0.1) of the HPPA specifies that an order made by the MOH under that section “may be directed to a class of persons who reside or are present in the health unit served by the medical officer of health”.

[57] The power to make a class order came into force during the SARS crisis in response to concerns expressed at the time over the need for public health tools that would allow for rapid and widespread responses to communicable diseases. Following the SARS crisis, the Standing Committee on Justice Policy held public hearings at which the Chief Medical Officer of Health in Ontario at that time, Dr. Sheila Basrur, gave the following evidence about the need for class orders in the context of a public health crisis:

One of the elements that arose during SARS was our inability to issue orders on anything but a person-by-person, one-at-a-time kind of basis. There was an instance wherein we had an entire group of people who needed to be put in quarantine on a weekend. It was physically and logistically impossible to issue orders person to person on a Saturday afternoon for 350 people who happened to live in three or four health units all at once, each with their own MOH, their own solicitors and so on. So now there is an amendment to the act. Again, that was processed even between phases one and two of the SARS outbreak. So things can happen fast when the will is there, but also when the need is apparent, such that orders can be issued against a class of persons. In a future pandemic or other wide-scale emergency, that will be a very helpful provision so we can issue mass orders if necessary and if warranted under the circumstances.

[62] The Respondent argues that the Board’s approach to the class order was not an error because it properly considered the impact of the order on the individuals affected. The suggestion is that a class order must have a similar impact on all members of the class, otherwise it is not justified. By way of example, the Respondent argues that the Federal Government Directive that requires six-foot distancing at all times has a similar impact on all bunkhouses, but the 3-person-per-bunkhouse rule does not have a similar impact. We do not accept that a class order can only be justified if it has an equal impact on all members of the class. Again, class orders are a tool given to public health officials to deal with urgent and widespread public health risks in the context of limited resources. The applicable test, as reviewed above, includes whether “the requirements specified in the order are necessary in order to decrease or eliminate the risk to health presented by the communicable disease”. There is no basis for finding that, in the case of a class order, the requirements must have an identical impact on each member of the class. By definition, necessity may justify using an approach that has a differentiated impact on different members of the class.

Issue 3: Did the Board Err in Finding that the “3 to a Bunkhouse” Rule is Arbitrary?

The “3 to a Bunkhouse” Rule is consistent with the Order’s purpose and is, therefore, not “arbitrary” as that term is understood in the case law

[68] In Flora v. Ontario Health Insurance Plan (2007), 2007 CanLII 339 (ON SCDC), 83 O.R. (3d) 721 2007, aff’d 2008 ONCA 538, 91 O.R. (3d) 412, at para. 217, this court dealt with the question of whether a law is arbitrary as follows:

Whether a law is arbitrary must be assessed in relation to its purpose. So long as the statutory provision is consistent with and connected to the legislative purpose, it is not arbitrary.

[69] This court considered the issue again in its recent decision in Sprague v. Her Majesty the Queen in Right of Ontario, 2020 ONSC 2335, at paras. 48-49:

The Visitor Policy is not arbitrary. An Arbitrary rule is one that is not capable of fulfilling its objective and exacts a constitutional price in terms of rights, without furthering the public good that is said to be the object of the law….

The policy to limit visitors is also not overbroad. An overbroad rule is one that takes away rights in a way that generally supports the object of the rule but goes too far by denying the rights of some individuals in a way that bears no relation to the object. For example, the policy to restrict visitors might be overly broad if it never provided for any consideration of exceptions.

[72] Here the goal of the s. 22 Order was to protect public health by decreasing or eliminating the risk posed by COVID-19 within the health unit (which includes the MFWs). This is the objective against which the “3 to a Bunkhouse” rule must be assessed.

[73] The evidence before the Board was clear that international travel and congregate living increase the risk of transmission and that, therefore, it was necessary to restrict the number of MFWs isolating together to a number that is fewer than the number that would usually occupy a bunkhouse. The uncontradicted evidence before the Board was that the best way to eliminate or decrease the risk posed by COVID-19 to MFWs was to have them self-isolate. Even the Respondent’s own expert witness agreed that “the ideal circumstances would be to provide each arriving migrant worker private accommodation for 14 days”. Again, this is what British Columbia has done.

[76] Moreover, the s. 22 Order provides for exceptions, which courts have recognized indicates that an order is not overbroad. The evidence was that if a farmer “subdivided” a bunkhouse into self-contained units (each with its own bathroom, kitchen, and sleeping facilities, with no ability for workers to pass back and forth between the two units), the health unit would allow three workers to be isolated in each self-contained unit. This allows farmers a degree of flexibility while still upholding the Order’s goal – to minimize the risk of spreading COVID-19 both to the general population, but most importantly to MFWs, a vulnerable class of workers.

Minimizing the Number of Workers Minimizes the Effect on Psychological Health

[83] According to Schuyler Farms, MFWs enjoy quarantining in larger groups. It is isolating alone that causes negative psychological effects. First, this evidence misses the point of Dr. Nesathurai’s evidence about the effect of quarantining on psychological health. How a particular group may “prefer” to quarantine is irrelevant, if the preferences of that group run counter to the purpose of the s. 22 Order, which is to minimize or eliminate the spread of a communicable disease. Dr. Nesathurai was not testifying as to the fact that his method of quarantining was the one that MFWs prefer. His evidence was that quarantining is psychologically difficult and that the longer one is forced to quarantine, the more negative the psychological effects. Therefore, it is important to design a quarantining situation that has the best chance of being as short as possible. Second, the evidence as to the preferences of MFWs did not come directly from any MFWs nor from any scientific study about the psychological effects of certain methods of quarantining on MFWs. It was second-hand evidence from the farmers themselves, all of whom have an economic interest in increasing the number of MFWs who can isolate together.

Limiting the Number of Workers is Necessary in Light of the Obligation to Migrant Workers as a “Priority Population” and in Light of Human Rights Obligations

[84] Dr. Nesathurai’s evidence is that MFWs are a “priority population”. The HSARB failed to take this into consideration in its decision.

[85] Ontario’s Health Equity Guideline, 2018 (“Guideline”) requires that public health authorities design “strategies to improve the health of the entire population while decreasing the health inequities experienced by priority populations” (Guideline, Requirement 2 (b)). Priority populations are populations in the health unit with poorer health or economic status. MFWs are one of the significant priority populations in the HNHU.

[90] In R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754, at para. 40, the Supreme Court held:

As a matter of statutory interpretation, legislation is presumed to comply with Canada’s international obligations, and courts should avoid interpretations that would violate those obligations. Courts must also interpret legislation in a way that reflects the values and principles of customary and conventional international law. [Citations omitted.]

[91] More recently, in Vavilov, the Supreme Court of Canada reaffirmed that the “modern principle” of statutory interpretation requires a purposive and contextual analysis that engages international human rights principles and that international law should inform administrative decision-making where relevant. The court observed the following at para. 114:

It is well established that legislation is presumed to operate in conformity with Canada’s international obligations, and the legislature is ‘presumed to comply with…the values and principles of customary and conventional international law.’ Since Baker, it has also been clear that international treaties and conventions, even where they have not been implemented domestically by statute, can help to inform whether a decision was a reasonable exercise of administrative power. (cites omitted).

[92] The Universal Declaration of Human Rights (“UDHR”) and the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) were acceded to by Canada on May 19, 1976, and form part of Canada’s international legal obligations. Furthermore the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (“UNDROP”) is part of the body of human rights law and norms to which Canadian adjudicators may look in interpreting statutory or common law obligations and in reviewing administrative decisions (see Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), 1999 SCC 699, [1999] 2 S.C.R. 817, at para. 70).

[93] Both ICESCR and UNDROP provide that everyone has a right “to the enjoyment of the highest attainable standard of physical and mental health”, which applies regardless of national origin, race, other status or rural employment. This right also extends to the determinants of health, including adequate housing and healthy occupational and environmental conditions. States are expected to respect, protect and fulfil the right to health, including regulating industrial hygiene. In particular, the obligation to protect requires States to prevent third parties from interfering with the right to health, which includes an obligation to adopt and enforce “preventative measures in respect of occupational…diseases” and to minimize, as far as is reasonably practical, the causes of workplace health hazards. In the context of a pandemic, States have a duty to adopt strategies of infectious disease control. The right to adequate housing includes providing the inhabitants with a space that will protect them from threats to their health and “disease vectors.”

[95] In the public health context, these principles require implementing measures that recognize the vulnerability and health inequities experienced by MFWs so as to eliminate the disproportionate impact of COVID-19 on them. These principles are consistent with the purpose of the Guideline, which obligated the MOH, when making an order under s. 22 of HPPA, to ensure that the quarantining conditions for MFWs did not expose them to more risk than the risk that would be tolerated among the other members of the health unit when they quarantined. Again, the Board erred by finding that Dr. Nesathurai’s Order was arbitrary in the face of the equity concerns that drove his Order and were mandated by both the Health Equity Guideline, 2018 and the need to conform to Canada’s international obligations. Dr. Nesathurai was motivated by these concerns when he made the “3 to a Bunkhouse Rule”, concerns that the Board failed to take into account in its decision.

Issue 4: Did the Board improperly take financial issues into consideration?

[111] The Appellant argues that the HSARB made an error because it took the Respondent’s financial interests into consideration in deciding that the 3-person-per-bunkhouse rule was arbitrary.

[114] It is important to note that while the pandemic is having a widespread financial impact, neither the MOH nor any level of government has caused this public health crisis or its financial impact. Rather, the MOH is fulfilling his statutory mandate to protect public health in the face of an unprecedented worldwide health crisis.

[115] The “necessity” test undoubtably suggests that there are to be restrictions on orders made under s. 22 of the HPPA to ensure that they do not impose unnecessary burdens. However, deciding whether to make an order is not meant to be a weighing exercise. If the order is necessary, especially in circumstances where the risk is high, then its financial impact is irrelevant. In this case, it appears that the Board may have improperly engaged in weighing the benefits of the rule against the financial burden on the Respondent when it found that the three-person rule was arbitrary.

[[116] Again, this finding is not necessary to the outcome of the appeal, but certainly supports our view that the Board did not approach the interpretation and application of s. 22 of the HPPA in accordance with the purpose of the statutory scheme and the evidence in the case.