Canada: Agricultural Law Netletter - August 7, 2018

HIGHLIGHTS

• A Justice of the Ontario Superior Court of Justice has concluded that the use of foreign agricultural workers in a large scale illegal marijuana grow operation is an aggravating factor which, together with other factors, justified a sentence of 2 years imprisonment in a penitentiary for the vegetable farmer who employed them. (R v Just, CALN/2018-019,[2018] O.J. No. 3471, Ontario Superior Court of Justice)
• A recent decision of the British Columbia Supreme Court has highlighted the importance of the provisions in insurance policies related to insurance coverage for farms, whether members of a farm family who work on a farm fall within the definition of an employee under the policy and whethey they are as a result, entitled to insurance coverage. Although this case does not involve a farm family, it does extensively review and rely on earlier Saskatchewan Court decisions which consider this issue in some depth in a family farm setting. [Editor's note: The issue of whether members of a farm family are considered to be insured "employees" is of particular importance in Alberta, as Worker's Compensation coverage in Alberta may not extend to members of a farm family. It may also be important in other jurisdictions, depending on whether or not Worker's Compensation coverage is afforded.]. (Economical Mutual Insurance Company v Optimum West Insurance Company Inc., CALN/2018-020,[2018] B.C.J. No. 1312, Supreme Court of British Columbia)

NEW CASE LAW

R v Just;

Ontario Superior Court of Justice, Lacelle, J,

June 28, 2018.

CALN 2018-019

Full Text: [2018 ] O.J. No. 3471 | 2018 ONSC 4088

Foreign Agricultural Workers — Working in Illegal Marijuana Grow Ops — Sentencing.

Alexander Just ("Just") plead guilty to 2 counts of production of cannabis marijuana and one count of possession of cannabis marijuana for the purposes of trafficking, contrary to the provisions of the Controlled Drugs and Substances Act.

Just is a vegetable farmer who lived in rural Ontario. He cultivated marijuana on a farm he was renting from another farmer, as well as his own residential land.

Police seized a total of 3,775 cannabis plants from both properties weighing approximately 932 lbs. as well as 186 lbs. of "bud" and 237 lbs. of "shake", all of which had an estimated street value of $1.28 million.

Just employed 4 men through the Canada/Mexico Agricultural Workers Program to work in the growing operation.

The only issue before the Court was what was an appropriate sentence.

The Crown argued that Just had exploited foreign workers for his own financial gain. Decision: Lacelle, J sentenced Just to 2 years imprisonment in a penitentiary [at para. 41].

Lacelle, J considered the fact that Just had used a federal government program to hire foreign workers to support his enterprise to be an aggravating factor [at para. 25], and the fact that he had done so illustrated both planning and lack of remorse [at para. 28].

Lacelle, J concluded [at para. 41]:

[41] I find that the offender's degree of responsibility for the offences, the scope of the operation involved, and his use of a federal program to enlist four foreign workers to further offences he committed for profit require that a penitentiary sentence be imposed. Giving my best consideration to all the factors at play in this case, the need for a sentence that is the least restrictive in fulfilling the sentencing objectives I have identified, and having regard to the excellent rehabilitation prospects of this offender, I conclude that a global sentence of 2 years is fit.

Economical Mutual Insurance Company v Optimum WestInsurance Company Inc.;

Supreme Court of British Columbia,

Funt, J, July 5, 2018.

CALN/ 2018 -020

Full Text: [2018] B.C.J. No. 1312 | 2018 BCSC 1116

Insurance Coverage for Personal Injuries Caused or Sustained by Farm "Employees" — Whether Family Members are Employees.

Economical Mutual Insurance Company ("Economical") sought a declaration of the right of contribution against Optimum West Insurance Company Inc. ("Optimum") for damages and costs in relation to an August 24, 2007 accident involving an infant who suffered serious electrical burns as a result of putting the electrified end of an extension cord in her mouth.

Johnny Wong and his wife were Hong Kong residents who purchased a rental property in North Vancouver. They were the named insureds under a policy issued by Optimum that provided liability coverage.

Doris Wong is Johnny's Wong sister. She worked as a property manager for Johnny Wong in respect of which she received $50.00 to $100.00 per month for compensation to pay out-of- pocket expenses. She set up a bank account to collect rents. Doris Wong was a named insured under a policy issued by Economical which acknowledged coverage for the loss. Doris Wong was also an insured under the policy issued by Optimum to Johnny Wong if she fell within the definition of "residence employee" set out in the policy.

Johnny Wong, his wife and Doris Wong were held liable at trial for the infant's injuries. Liability was assessed equally.

The Optimum policy defined "residence employee" as follows:

The issue before the Court was whether Doris Wong was a "residence employee". If she was not, she would not be a "insured" as defined under the Optimum policy, and would not be covered by the Optimum policy.

Decision: Funt, J held [at para. 66] that Doris Wong was an insured and that Optimum was obliged to contribute 50% of all defence costs and damages awarded against Doris Wong.

In the course of Justice Funt's decision, he considered 2003/2004 decisions of the Saskatchewan Court of Queen's Bench and the Saskatchewan Court of Appeal involving the issue of whether or not a farmer's 18 year old son who was seriously injured in a farm accident was an employee, and whether the farmer's insurer was obliged to provide coverage with respect to the negligence of the son's father. In considering these decisions, Funt, J summarized the facts and quoted at length from them [Wawanesa Mutual INsurance Co. v Hewson, 2003 SKQB 116, [2003] S.J. No. 187, aff'd 2004 SKCA 112, [2004] S.J. No. 534,

stating as follows:

• [32] In the context of insurance coverage, the jurisprudence reflects an untroubled general approach. In Wawanesa Mutual Insurance Co. v. Hewson, 2003 SKQB 116m,[2003] S.J. No. 187, aff'd2004 SKCA 112,[2004] S.J. No. 534, the issue arose as to whether a policy issued to a farmer would apply to cover the farmer's 18-year-old son who was seriously injured while moving a bale of hay on the family farm. The son lived on the family farm.
  
  

  [33] Prior to the accident, there was a history of the son performing significant farm work, much beyond the usual chores of a son or daughter living on a family farm, while still attending high school on a full-time basis. The son was not paid wages but his father would give him cash, and each year give him a heifer and a steer calf and pay the related feed and medical expenses.

  [34] The relevant exclusion at issue under the policy issued to the farmer read:

  Exclusions: You are not insured for claims made or actions brought against you for:

  .

  (3) bodily injury to you or to any person residing in your household other than an employee.

  • [35] At trial, in holding that the farmer's son was an employee, Chief Justice Gerein stated:

    [40] The issue of whether a person is an employee is a factual one which must be determined upon a consideration of the particular circumstances. This case is no different. In coming to my conclusion, I have sought guidance from a number of decisions.

    I[41] make particular reference to these circumstances. Dayton Hewson did almost all the work involved in the cattle operation. The amount of work was significant, necessary and well beyond what is considered to be chores. It was performed on a daily basis. Yet while he did this work, it was done under the direction and control of Larry Hewson who also sometimes helped. While Larry Hewson would have acted in the capacity of Dayton's father, a role which never ceased, this did not preclude him for also acting as an employer. He was the owner of the cattle operation and he engaged his son to keep it functioning. Yet any profit or loss flowing from the cattle operation was that of the father. In short, the working arrangement was that of any business.

    [42] Dayton Hewson obtained compensation which was over and above normal care provided to a child by parents. The compensation was not fixed nor was it paid systematically. As well, it was inadequate for the work done. However, it was real. It consisted of cash payments on a fairly regular basis, delivery of cattle on a regular basis, supplying of feed for Dayton's animals and, on one occasion, the purchase of a vehicle. Perhaps some of this would have been provided absent the labour, but I am certain it would have been significantly less.

    I[43] recognize that there was not remittances for Employment Insurance, Workers' Compensation premiums or Canada Pension Plan contributions. As it happens, there was no requirement for this. Accordingly, no significance can be attached to it.

    [44] While there are usual indicia of employment, they are not rigid and all are not necessary to be present in each instance. When I consider the circumstances presented in this case, I am satisfied beyond any question that Dayton Hewson worked in the cattle operation as an employee of his father. It was in that capacity that he sustained bodily injury. It is in that capacity that he has commenced an action. It follows that the plaintiff is liable to indemnify the father, Larry Hewson, in respect to that claim.

    The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.