A migrant worker at a farm at the centre of a massive COVID-19 outbreak was fired and threatened with deportation — after being accused of speaking to journalists about unsafe living and working conditions, according to a new legal complaint obtained by the Star.
The reprisal complaint filed Wednesday evening to the Ontario Labour Relations Board claims Scotlynn Growers violated provincial health and safety laws when it fired 36-year-old Gabriel Flores for raising concerns about the spread of the virus that infected more than 200 workers and killed his bunkmate.
The complaint notes that as a seasonal agricultural worker, Flores is bound by his “restrictive work permit” that ties his right to be in Canada to an eight month contract with a single employer.
The result, Flores told the Star from a safe house where he has now taken refuge, is a system that disenfranchises workers.
“Supposedly we come to Canada with rights, but we do not have power,” he said.
In an interview with the Star on Wednesday evening, Scotlynn president Scott Biddle denied the allegations.
“We would never let a worker go, ever, for speaking to the press. Every health and safety concern is taking into consideration,” he said. “Those are false accusations.”
Karen Cocq, a co-ordinator with the Migrant Workers Alliance for Change (MWAC), said Flores’ case “proves that permanent resident status is essential for workers to be able to stand up for their rights, protect their health and safety, and protect themselves from exploitation.”
“The federal government knows that as long as workers can be deported at a moment’s notice, any other rights or protections they may have on paper will remain inaccessible,” she said.
The Star first spoke to Flores on the condition of anonymity in mid-June for an investigation into an outbreak at Scotlynn that ultimately claimed the life of 55-year-old father of four Juan Lopez Chaparro. That investigation revealed a history of complaints about crowded bunkhouses and unsafe working conditions at the farm.
In a June interview, which took place after the alleged termination, Biddle told the Star Scotlynn was committed to safe work and housing, adding that it “should never be a concern” for workers to raise issues.
“We’ve never sent a worker back for voicing his opinion,” he said.
Flores says he learned of Chaparro’s death on a late June evening when three unexpected visitors arrived at the apartment he shares with 13 other migrant workers. It was almost midnight when the county’s medical officer, a priest, and a farm supervisor showed up to deliver the news.
Flores, who had also contracted the virus and recovered, was shaken, he told the Star.
“We were very scared,” said Flores. “Any one of us could have been in (Chaparro’s) situation.”
That night, Flores spoke up, according to the reprisal complaint filed by Parkdale Community Legal Services.
He asked the three visitors about ongoing health risks to workers and the possibility of reinfection. He told them he believed Scotlynn should take stronger health and safety precautions, according to his complaint. He asked if the farm owner, known only to Flores as “el patron,” would “provide an explanation of what happened to Chaparro.”
He also asked whether he could take the next day, a Sunday, off to grieve his bunkmate’s death.
His supervisor gave Flores permission to do so, the complaint says; but in the morning, Flores was allegedly fired after being accused of speaking to the press.
The reprisal complaint says Flores had previously raised concerns about health and safety issues directly with his superiors. In May, the complaint says Flores had alerted three supervisors to COVID symptoms exhibited by Chaparro, and says Flores did not know what follow up action was taken.
Widespread testing of workers began on May 29, the complaint says, after several workers had been hospitalized.
Biddle has said his company, a multimillion dollar farm that describes itself as “North America’s Farm Stand,” provided timely support to Chaparro and spent $700,000 quarantining workers in hotel rooms after many tested positive for the virus. He said the farm could not achieve success “by treating employees negatively.”
After workers were informed of Chaparro’s death, and Flores raised further concerns, the complaint says Biddle’s father, Robert Biddle Jr came to Flores’ bunkhouse on the morning of June 21 and “angrily spoke to him in English.”
Biddle Jr then “held up a smartphone that contained a video image of an anonymous Scotlynn farm worker speaking about workplace safety conditions on the farm.” Flores “understood that Mr. Biddle Jr was accusing him of being the worker in the video” and that he would be sent back to Mexico, according to the complaint.
A Spanish-speaking supervisor then arrived and spoke with Biddle Jr, the complaint says. The supervisor confirmed in Spanish that “Scotlynn did not want Mr. Flores at farm” and that he would be put “on the first flight back to Mexico the following morning.”
Although Flores had indeed spoken with the Star in June, the complaint says the man in the video (an online press conference held by MWAC) was in fact another worker who had worn a face mask to conceal their identity.
In court documents from 2016, Biddle Jr is listed as a principal of Scotlynn Investments. Biddle said his father was not involved in the business and that Biddle himself is the sole owner of all Scotlynn companies. He said he could not confirm if Flores had been terminated.
Get the latest in your inbox
Never miss the latest news from the Star, including up-to-date coronavirus coverage, with our email newsletters
Sign Up Now
“I’m not even sure of that workers name or if he’s left the farm or if he works for me still. I have thousands of employees,” he said.
Flores was not given a plane ticket or termination letter, and was told he would be given paperwork to fill out later in the day, the complaint says.
Flores said the events rattled him: he is the breadwinner for his wife and two children, and he also supports his mother, who is disabled and recently underwent surgery that still needs to be paid for.
According to the reprisal complaint, he contacted a friend outside of the farm shortly after being fired. That individual reached out to MWAC, who arranged for Flores to be picked up and taken somewhere safe where he could access legal support.
The allegations in the claim have not been proven before the labour board, which often seeks to mediate settlements before ordering hearings. Under Ontario law, the onus lies with employers to refute reprisal claims.
Over the past decade, more than 5,500 migrant workers have been repatriated midway through a contract in Canada, according to data obtained by the Star from the Mexican Ministry of Labour. In 2014, research by the University of Toronto documented hundreds of cases of medical repatriation in which injured migrant workers were deported after an accident, usually against their will.
In a statement to the Star, a spokesperson for Employment and Social Development Canada said the federal government does not track data on repatriations of temporary foreign workers.
In light of the pandemic, Cocq says the task of overhauling the current system of temporary and restrictive work permits that allow repatriations to happen in the first place is more urgent than ever.
“Without permanent status, workers like Gabriel will continue to be denied the equality and the respect they deserve, and that means livelihoods and lives will continue to be at risk,” she said.
More than a thousand migrant workers have tested positive for the virus, according to a tally of media reports and public health unit data.
In response, the federal government has promised to ramp up inspections and improve an initiative that provides migrant workers who can document abuse with a non-renewable open work permit for up to a year.
But the government has not said if it will address what advocates call the key structural problem with Canada’s migrant labour program: workers’ precarious immigration status.
In a letter that will be delivered to the federal immigration minister Marco Mendicino’s office Thursday, Flores says his experience “can and does happen to many migrant workers.” The letter calls on the Mendicino to “do the right thing” and grant migrant workers permanent status in Canada.
The reprisal claim seeks $538 in unpaid wages for Flores for work before his termination, and around $27,500 for loss of future earnings because of the early end to his seasonal contract. It also seeks $10,000 in damages for pain and suffering.
Flores said he hopes to speak out not just for himself but on behalf of other migrant workers who “spend so much time in Canada that we are more Canadian than Mexican.”
But without permanent status, he said, that has not translated into concrete protections.
“It’s a system of work where we can’t speak out.”