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Background and parties
The case of Palmer v. Attorney General of Canada concerns a proposed class action brought on behalf of thousands of migrant farmworkers who have participated in Canada’s Seasonal Agricultural Worker Program (SAWP) since 1 January 2008. The representative plaintiffs, Kevin Palmer and Andrel Peters, both worked in Canada under SAWP for several years. They claim that the federal government, through the design and operation of SAWP and related Employment Insurance (EI) rules, has violated their constitutional rights and been unjustly enriched at their expense. The defendant is the Attorney General of Canada, representing the federal Crown as the designer and administrator of the immigration and employment framework that governs SAWP. The decision deals solely with the plaintiffs’ motion to certify the proceeding as a class action under Ontario’s Class Proceedings Act, 1992, not with the final merits of the constitutional or monetary claims.
Facts about the Seasonal Agricultural Worker Program
SAWP is a long-standing seasonal visa program that permits foreign nationals from 12 participating states (11 English-speaking Caribbean nations plus Mexico) to work in Canada for limited periods in specified agricultural commodities. The program is anchored in Memoranda of Understanding between Canada and those states and operates under the Immigration and Refugee Protection Act and its Regulations. Under SAWP, Canada issues temporary work permits and visas, and designates how many foreign workers each approved agricultural employer may hire. The participating foreign governments recruit and select workers and maintain pools of agricultural labourers to fill Canadian positions annually. Each worker, employer and a federal representative sign a standard three-party SAWP Contract that imposes terms and obligations beyond those found in provincial employment standards legislation. That contract has evolved over time but still contains features central to the plaintiffs’ challenge, including limitations on who the workers can work for, where they can live, and how long they can remain in Canada. Work permits under SAWP are issued for up to eight months, valid between 1 January and 15 December in a given year, reflecting the seasonal nature of agricultural work. These permits tie workers to employment with SAWP-approved employers only, though workers can now transfer between approved employers within the season without applying for a new permit, as long as another approved employer agrees to hire them. Workers cannot extend a SAWP work permit or apply for another SAWP permit from within Canada; if they do not transition into another immigration stream, they must depart Canada by the end of the authorized period. Residential accommodation is provided by SAWP employers. Historically, workers were contractually required to live in employer-provided housing; even where that formal requirement has softened, geography, isolation and their temporary status effectively compel most to reside in such housing. The plaintiffs characterize these combined features—tied employment, strict seasonality, non-renewable permits and employer-controlled housing—as structurally coercive and rights-infringing; the Crown describes them as lawful, legislated conditions of a voluntary program that provides economic opportunity to participating workers.
Historical evidence of discriminatory origins
A significant evidentiary feature of the certification record is the extensive historical material about the origins of SAWP and its precursor policies. The plaintiffs filed an affidavit from Professor Victor Satzewich, a sociologist whose research focuses on Canadian immigration policy, multiculturalism and race relations. Drawing on mid-20th-century government memoranda and archival documents, he traces how Canadian officials simultaneously sought to fill chronic agricultural labour shortages and to keep racialized workers from becoming a permanent part of the Canadian population. Internal memoranda from the 1940s and 1950s show explicit policies of restricting the admission of “coloured or partly coloured persons,” often targeting potential migrants from the Caribbean. Officials justified exclusion by invoking perceived poor assimilation, racialized stereotypes and supposed inability to adapt to Canadian climatic conditions. When pressure from farmers for additional agricultural labour grew, the federal government eventually accepted the need to admit workers of colour on a temporary basis. Professor Satzewich explains that tied, seasonal employment and geographic confinement were adopted as tools to control these workers’ presence in Canada and to prevent their integration into urban, industrial settings where their social contacts and settlement prospects would be harder to control. The development of SAWP in the 1960s and its expansion to include Mexican workers in the 1970s, according to the expert evidence, were influenced by stereotypes about Caribbean and Mexican workers, their poverty and their supposed suitability for “field” rather than factory work. Archival documents show officials treating Caribbean and Mexican workers as a virtually unlimited, controllable labour supply and expressly discussing how to avoid social “difficulties” from mixing racialized male workers with Canadian women in non-agricultural workplaces. The plaintiffs rely on this history to argue that SAWP was built on systemic racism and economic exploitation, and that its modern features continue to reflect and perpetuate that discriminatory purpose and impact.
Use of parliamentary records and parliamentary privilege
The Crown attempted to exclude parts of the plaintiffs’ material that relied on parliamentary debates and statements, invoking parliamentary privilege. Among the challenged material were contemporaneous statements by the then-Minister of Immigration, Jean Marchand, who in 1966 publicly rejected “enslaving” European immigrant workers through tied employment contracts while, in the same period, endorsing SAWP arrangements that imposed exactly such tied conditions on Jamaican farmworkers. The Crown argued that parliamentary debates and statements cannot be used in court proceedings. The judge rejected this broad position. He held that modern evidence law and the doctrine of parliamentary privilege do not bar the use of parliamentary debates as historical facts or as interpretive aids, provided the court is not using them to question what was said in Parliament or to hold parliamentarians liable. Parliamentary records can be admitted to show what was said and when, and to illuminate legislative purpose, especially where they are not the only or primary basis for a finding. In any event, the court noted that the core narrative of racially discriminatory origins was amply supported by non-parliamentary archival documents, and the parliamentary material was essentially corroborative. This ruling on privilege is part of the broader evidentiary context supporting the plaintiffs’ argument that discriminatory intent and stereotypes were embedded in the creation of SAWP.
Policy terms of SAWP and the Charter issues
At the core of the plaintiffs’ constitutional case are specific SAWP-related terms and policies that they say infringe sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms. Under section 7, they allege that the state-designed structure of SAWP deprives workers of liberty and security of the person in ways not in accordance with principles of fundamental justice. In particular, they point to limits on the freedom to move between employers, pressure to reside in employer-controlled housing, heightened vulnerability to termination and repatriation, and dependency on being “named” by employers to return in subsequent seasons. These features, they say, make workers especially vulnerable to abuse and prevent them from protecting themselves from serious risks, drawing analogies to Supreme Court of Canada jurisprudence where state action that increases risk to vulnerable individuals has been found to engage section 7. The plaintiffs also plead that SAWP effectively denies them control over where to live, a form of coerced residency similar in principle to restrictions previously held to implicate liberty interests. They allege that the objectives behind these terms were and remain tainted by racist and discriminatory purposes; alternatively, even if the stated goal of addressing labour shortages is accepted as legitimate, they say the measures are arbitrary, overbroad and grossly disproportionate in their impact on workers’ dignity and safety. Under section 15(1), the equality provision, the plaintiffs allege that SAWP imposes burdens based on race, nationality, ethnicity and the analogous ground of citizenship. They argue that the conditions of tied employment, enforced seasonality, and de facto enforced residence in employer housing apply only to a predominantly racialized group of Caribbean and Mexican workers. They further allege that these conditions perpetuate historical disadvantage and stereotypes and are not incidental but central to the program’s design. The judge held, for certification purposes, that the pleadings track established Charter doctrine on both liberty/security and equality, and that it is not “plain and obvious” the claims must fail.
Employment Insurance premiums and alleged unjust enrichment
A major substantive theme of the case is the interaction between SAWP and Canada’s Employment Insurance regime, and the plaintiffs’ related unjust enrichment claim. Under the Employment Insurance Act and Regulations, all workers in insurable employment, including SAWP participants, must pay EI premiums, with employers also contributing. Premium payments are credited to a notional EI Operating Account but in reality flow into the federal Consolidated Revenue Fund; there is no segregated trust fund. Entitlement to EI benefits is not automatic upon paying premiums; claimants must apply and satisfy statutory conditions, including demonstrating availability for work with a valid work permit. The Crown’s evidence emphasizes these universal features and asserts that SAWP workers are, in principle, eligible for EI on the same terms as others while they hold valid permits. The plaintiffs counter that, in practice, SAWP workers almost never receive regular EI benefits because the immigration structure forces them out of Canada when their seasonal work ends, just when they are unemployed. They cannot renew SAWP permits in Canada or readily obtain alternative work permits, so the condition of being “available for work” in Canada with a valid permit is almost impossible to satisfy during the off-season. As a result, they say, SAWP workers are structurally excluded from the main benefit stream of a contributory program into which they are compelled to pay. This forms the basis of their unjust enrichment claim: the Crown is allegedly enriched by collecting EI premiums from SAWP workers; those workers suffer a corresponding deprivation; and there is no valid “juristic reason” for this outcome once discriminatory effects and Charter breaches are taken into account. The plaintiffs plead that EI provisions, as applied to SAWP workers, violate section 15 and therefore cannot justify the enrichment. The court found the unjust enrichment claim tenable at the certification stage.
Certification as a class proceeding
The decision primarily addresses whether the action meets the five statutory criteria for certification under section 5(1) of the Class Proceedings Act, 1992. On cause of action, the court held that the plaintiffs’ pleadings disclose reasonable causes of action in section 7 and 15(1) Charter breaches and unjust enrichment, when assessed under the low “plain and obvious” standard. On the class definition, the action targets “current and former agricultural workers who are or were employed in Canada on a contract basis under the SAWP on or after January 1, 2008.” The federal government has already identified about 74,785 individuals who fall within this group. The court found the class definition objective, rationally connected to the issues, and not overbroad. On common issues, the plaintiffs proposed questions addressing whether SAWP conditions breach sections 7 and 15(1), whether any breaches can be saved under section 1 of the Charter, whether Charter damages are appropriate, and whether such damages and unjust enrichment remedies can be assessed in the aggregate, along with a question on punitive damages. The court held that these questions arise from standardized SAWP contractual and regulatory terms imposed uniformly on all class members, such that resolving them once will meaningfully advance all claims. It emphasized that Charter damages often focus on the defendant’s conduct, which lends itself to common treatment, and that unjust enrichment has been recognized as a fit subject for common issues in prior class action jurisprudence. On preferable procedure, the court found that a class proceeding is the appropriate vehicle to address systemic, program-wide constitutional and restitutionary claims, and promotes judicial economy, deterrence and access to justice. Finally, the court concluded that Palmer and Peters are suitable representative plaintiffs: they are within the class, have experienced the challenged conditions firsthand, understand their responsibilities, and have no apparent conflicts with other class members. The Crown’s argument that they were unsuitable because they had not formally applied for EI benefits was rejected as an overly formalistic requirement.
Relationship with the Quebec national class action
An important contextual issue was the overlap with a separate, already authorized Quebec class action, Association for the Rights of Household and Farm Workers v. Attorney General of Canada. That Quebec proceeding challenges “employer-tying measures” under the Immigration and Refugee Protection Regulations across all categories of temporary foreign workers in Canada from 1982 onward, invoking Charter sections 7, 12 and 15. Its class is national and much broader, encompassing numerous visa categories and industries, with SAWP workers only a subset. The Attorney General argued that the Quebec case is the preferable forum and that the Ontario action is duplicative, especially as the Quebec authorization decision expressly refers to SAWP in describing the history and features of tied work permits. The plaintiffs, together with Quebec class counsel, proposed a different approach: allowing the narrower Ontario SAWP class action to proceed while seeking a partial stay in Quebec for the SAWP portion of that case, so the broader Quebec litigation could continue on non-SAWP issues without duplication. The Ontario court recognized uncertainties around whether a Quebec court would grant such a stay but ultimately concluded that the two actions differ materially in scope and focus. The Ontario case targets the specific SAWP contract and conditions, raises an unjust enrichment and EI-focused claim absent from the Quebec action, and builds its section 15 theory around the particular racial and national identities of SAWP workers. By contrast, the Quebec case centres on the general legality of employer-specific work permits across many categories, does not directly challenge the SAWP Contract or the EI scheme, and involves a vast and heterogeneous class. The judge held that both actions can proceed in parallel for now; issues of double recovery and coordination can be managed at the stage of any settlement or judgment, when class members may have to choose between proceedings to avoid multiple recoveries for the same harm.
Outcome and next steps
In the result, the Ontario Superior Court of Justice granted certification of the action as a class proceeding. Kevin Palmer and Andrel Peters were appointed as representative plaintiffs, class counsel were approved, the class was defined as all SAWP contract workers in Canada since 1 January 2008, and the full list of proposed common issues on Charter breaches, unjust enrichment, aggregate remedies and punitive damages was accepted. For the purposes of this certification motion, the successful party is therefore the plaintiffs, as the court allowed their application to proceed as a class action. No damages, restitution, punitive damages or other monetary relief were awarded at this stage, and the court did not fix any costs amount in the certification ruling; it merely invited short written submissions on costs from both sides on a later timetable. As a result, the total monetary award, including any costs or damages in favour of the successful party, cannot yet be determined from this decision, and will only be known if and when a subsequent judgment or order addresses those issues.
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Plaintiff
Defendant
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Superior Court of Justice - OntarioCase Number
CV-23-00710918-00CPPractice Area
Class actionsAmount
Not specified/UnspecifiedWinner
PlaintiffTrial Start Date