It’s been nearly two years since the now infamous “Bill 6: The Enhanced Protection for Farm and Ranch Workers Act” (“Bill 6” or the “Bill”) was passed. As we all know, it was a Bill that was mired in controversy, met with protest, and plagued by “miscommunication”, misinformation, and confusion – even among those supporting it, and the agencies destined to enforce it. Yet despite all of that, it passed – albeit in a substantially amended form – and is now law. And, despite what some may think...it's a law that's likely to stick around, in one form or another, regardless of who is in power.
The reality is, as much as we might like to think that "things were fine the way they were" and/or "a new government will repeal the changes and get rid of all this nonsense", things weren’t actually fine beforehand. It’s just not for the reason that most people think. And arguably, it wasn’t tied to troubling accident/injury statistics.
To understand that, however, we need to consider why the exemption for farming and ranching was there in the first place, and recognize that it was never intended as a carte blanche type exemption for any and all farming and ranching operations. If you look at earlier versions of the OH&S Legislation, and specifically the Farming and Ranching Exemption Regulation, you’ll see that while certain farming and ranching operations were specifically excluded:
i.e. those operations directly or indirectly involved in: (a) the production of crops, including fruits and vegetables, through the cultivation of land, (b) the raising and maintenance of animals or birds, and (c) the keeping of bees,
others were specifically included:
i.e. (a) operations involved in the processing of food or other products covered by the exemption, (b) the operation of greenhouses, mushroom farms, nurseries, or sod farms, (c) operations involved in landscaping, and (d) operations involved in the raising and boarding of pets.
Yes, it’s strange that you could raise an entire herd of cattle without having to worry about complying with the OH&S Legislation, but not if you raised a family of Morkies … but I digress.
The important part of the distinction is seeing that the farming and ranching exemption was always intended, and set-up to be, limited in its scope. In very simple terms, it was there to protect the “family farm”. Of course, anyone that’s involved in farming operations knows that trying to define such an endeavor is an incredibly difficult task, but the legislature sought to do exactly that. The problem is, the language they ended up using didn’t work. Or perhaps it worked too well. Either way, the exemption ended up going far beyond what was intended, and protecting more than just the "family farm".
Case in point: R. v. Northern Forage Inc. You have Northern Forage, a company based in Nampa, AB, that produces “timothy hay”, largely for export overseas. As part of its operation it uses 40 acres of land; equipment for cutting, raking, baling, stacking, loading, and hauling; a 192,000 square foot building for storage; a 45,000 square foot building known as the “Compression Facility” that is equipped to store, de-stack, double compress, re-stack and load timothy for shipping; and a building used as an office, shop and drying facility. In other words, it’s not a small operation. And it’s certainly not what many of us would initially think of when picturing a “family farm”.
Nevertheless, facing charges under the Occupational Health and Safety Act (the “Act”) for a fatality at its Compression Facility, Northern Forage sought to rely on the farming and ranching exemption as a complete defence. And, noting the incredibly broad meaning that can be ascribed to a phrase like “directly or indirectly involved” in the production of crops through the cultivation of land, the Court ruled in its favor. So did the Alberta Court of Queen’s Bench, on appeal. The Court of Queen’s Bench even went one step further, noting that what took place at the Northern Forage Compression Facility was really no different than what took place in farming operations of the past, where the grain crop was cut by way of a binder, bound into sheaves, and then transported to the threshing machine, where the grain was separated from the straw and chaff.
Although the Crown tried to argue that the act of compressing the hay crop into bales at the Compression Facility was akin to the “processing of food or other products covered by the exemption”, such that the exemption should not apply, the Court would have nothing of it.
According to the Court:
[58] … The crop grown was the grain; the ultimate crop was the grain. The cutting, binding into sheaves, stooking, transporting the sheaves to the threshing machine and the ultimate separation of the grain from the straw and chaff was a continuous series of steps (or in the language of the Act and the Exemption Regulation “operations”), which are directly or indirectly involved in the production of the crop through the cultivation of land. I question what would be the position of the Appellant if the machinery involved in the compressing of the bales of hay in the Compression Facility were to be relocated to the field. According to the Appellant’s reasoning the relocation of this machinery and activity to the field would now make the compression activities a part of production and not processing and thereby exempt by virtue of the Exemption Regulation. I believe this conclusion, based upon location, leads to an absurd result.
And with that, the door was opened. The Crown did not pursue an appeal, and regardless of whether you agreed with the decision or not, one thing was clear. No longer was the farming and ranching exemption operating to protect the “family farm” in Alberta. Now it was available to protect large, sophisticated, and in some cases completely independent corporate entities that employed any number of workers from outside of the family unit. If you thought defining the “family farm” was difficult, you need only imagine the sheer number of organizations “indirectly” involved in that endeavor, or aspects of that endeavor, that would now start falling through the cracks.
Change was necessary. And that change needed to come from the Legislature. Even the Court acknowledged that, stating:
[68] … As with so many other trades, large-scale corporate integration has resulted in single corporations that conduct nearly every step in the production of agricultural materials, up to its final distribution and marketing.
[69] These large-scale agricultural businesses can be as highly mechanized and procedurally sophisticated as any factory, and without question operate in a manner that is very different from that of the traditional small-scale family farm. Nonetheless, that does not mean that highly mechanized, large-scale production of animals or plants is any less “agriculture” than what took place a century ago.
[70] However, of primary significance is the fact that in certain of these cases, due to the nature of the operations conducted in a large-scale, near industrial setting, the Exemption Regulation will exempt such an employer from the operation and requirements of the Act. Dependant upon the circumstances involved, this may not be a desired state of affairs if such situations lend themselves to undermine the intent of workers’ safety and health legislation. In this sense, in Elcan Forage Inc. v. Weiler (1992), 1992 CanLII 7979 (SK QB), 102 Sask.R. 197 at 202, 33 A.C.W.S. (3d) 249 (Sask. Q.B.), Wright J. noted:
... the legislature expressly excluded certain kinds of agricultural' operations from the exemptive provisions of the subsection. Nurseries are excluded for example. The exceptions to the definition strongly suggest that provincial law‑makers wanted to ensure that only traditional farming, ranching and market gardening operations were allowed the exemption in question. As counsel for the respondent pointed out during the course of his argument, any provisions which take away rights guaranteed to virtually all other employees of this province should be strictly construed. To do otherwise would mean that large numbers of people in what are often minimal pay situations would not have the protection of the legislation. By particularizing the kinds of agricultural operations not exempted, the legislature circumscribed the operation of the exemption. Thus, commercial operations of the kind conducted by Elcan do not fall within the exception. …
[71] The role of the judiciary is to interpret rather than draft the legislation. This latter role is the sole purview of the Legislature.
Granted, there was a lot of “miscommunication”, or just flat out misinformation, that was tabled when Bill 6 was first introduced. Despite all the rhetoric and follow-up statements from the Province that the changes were never “intended” to remove the exemption for the “family farm”, the fact is that the original version of the Bill did just that. It may not have been “intended” that way, but make no mistake that in effect, the OH&S Legislation would have applied full-bore to the “family farm” just like any other employer or industry. In very simple terms, the first draft of Bill 6 simply removed the farming and ranching exemption in its entirety. By removing the exemption, it removed the one (and only) thing that was preventing the OH&S Legislation from applying to farmers and ranchers. End of discussion.
While that in and of itself was a disaster of sorts, you can’t help but wonder just how much better the Bill would have been received, had some context for the changes, and more specifically, the need for changes, been provided. While modern day farming and ranching operations certainly aren’t always the small-scale operations they used to be, farmers and ranchers are reasonable, hard-working, salt-of-the-earth people. Provided with the right information, even they might take issue with a third-party trucking company, with no real ties to the ag industry and hired only to transport their product from one location to another, relying on the exemption. When explained (and tabled) properly, even they might acknowledge that some form of change was necessary.
That all being said, despite commentary from various different people and political parties alike that they’ll repeal Bill 6 in the event they take office, it’s unlikely they’ll repeal the parts relating to OH&S. Actually provide some guidance to farmers and ranchers via a new (or updated) Occupational Health and Safety Regulation and/or Code? For sure. Tweak the language of certain sections (so that the exemption also applies to married in brother-in-laws and sister-in-laws, for example)? Absolutely. But full-on repeal the changes ushered in by Bill 6 when at least a part of those changes are addressing a problem with the OH&S Legislation that’s been in existence for over a decade, while still preserving some semblance of the “family farm”?
That’s just not going to happen.
* Portions of this post were first presented for the Legal Education Society of Alberta program, "Rural Property Issues for Alberta Lawyers". They are reproduced with permission.