In ‘show of good faith,’ Simcoe farmer ends legal battle with health unit over bunkhouse limit

·4 min read

The Simcoe farmer who has been at odds with the Haldimand-Norfolk Health Unit for months about how to safely quarantine migrant farm workers has ended his legal challenge to the three-person bunkhouse limit.

Brett Schuyler of Schuyler Farms said he withdrew his request to appeal his loss in divisional court because the protracted legal battle had become an impediment to the working relationship between the farm community and the health unit.

“By dropping the appeal, it should make it easier to co-operate,” Schuyler said.

There is another practical consideration to Schuyler ending the legal action. Even if the Appeal Court agreed to consider the case, it could take months to schedule the hearing.

Meanwhile, farmers would be operating under the existing quarantine rules as workers begin arriving in the new year.

“By the time we got through it all, the next spring session will be over with. Functionally, even if you win, you still lose,” Schuyler said.

A three-judge panel at divisional court ruled in favour of the health unit in August after Dr. Shanker Nesathurai, Haldimand-Norfolk’s medical officer of health, appealed the June decision of the province’s Health Services Appeal and Review Board. The review board had struck down the three-person limit, calling it “unreasonable” and “arbitrary.”

In September, Schuyler said he would seek leave to appeal the divisional court’s ruling that upheld the limit, criticizing the judges for taking a few hours to overturn a decision the review board had reached after considering six days of testimony.

Abandoning that effort now effectively ends the farmer’s legal challenge.

Nesathurai declined to comment on whether this latest development represents a vindication of his Section 22 order, issued March 24, which caps bunkhouse occupancy during newly arrived workers’ mandatory self-isolation period in the name of insulating workers against a potential COVID-19 outbreak.

In a media release, health unit spokesperson Matt Terry said the divisional court’s decision “strongly upheld” the three-person limit, which exceeds federal guidelines and is unique to Haldimand-Norfolk.

“The County has agreed to a payment arrangement for the previously awarded costs owed by Mr. Schuyler,” the media release said.

Schuyler confirmed his operation will be paying $50,000 of the health unit’s legal costs, as ordered by the court.

In a statement after the health unit’s divisional court win, Norfolk County Mayor Kristal Chopp said she “always had confidence in our medical officer of health’s approach to managing COVID-19 in the community.”

“I’m pleased that the court has agreed,” Chopp said. “We’re looking forward to working with our farming community, as well as the federal and provincial governments, to better prepare to manage COVID-19 next growing season.”

As part of those efforts, the board of health — which Chopp chairs — sent a letter to Ottawa and Queen’s Park “desperately seeking” clarity on COVID-19 safety rules for farms, plus additional funding to offset the cost of quarantining workers.

“Our community is looking to heal, move forward and continue to support food security, not only for the province but for all of Canada,” Chopp wrote to Prime Minister Justin Trudeau and Premier Doug Ford.

“Your support will ensure that all farm workers can arrive safely in 2021 and beyond, our farmers’ operations are not threatened, and Canadians can continue to have safe and healthy local fruits and vegetables on their plates.”

On Friday, Schuyler told the board of health in a letter that he ended his legal action “as a show of good faith and with a hope that there exists a true desire to move forward in a positive manner.”

He thanked board members for advocating for local farmers and urged the health unit to collaborate with the Norfolk Federation of Agriculture and the county’s agriculture advisory board to mend the “divisions” created by Nesathurai’s Section 22 order.

Schuyler Farms employs more than 200 seasonal workers, most of whom work on 1,500 acres of cherry and apple orchards. Some of those workers are currently in self-isolation as the farm manages a COVID-19 outbreak that was declared on Nov. 6 and has infected 13 workers.

According to Schuyler, a handful of the affected employees reported minor COVID-19 symptoms. None required hospitalization.

Schuyler said despite how things turned out in the courts, he does not regret pushing Nesathurai to amend a rule that some farmers argue puts Norfolk farms at a disadvantage and threatens food security by making it more difficult to bring in the workforce needed to plant and harvest crops.

“I’d do it again,” Schuyler said.

J.P. Antonacci, Local Journalism Initiative Reporter, The Hamilton Spectator