Ruling could have far-reaching effects for injured migrants

In a major victory for seasonal migrant workers, a provincial tribunal has ordered the Workplace Safety and Insurance Board to pay compensation to four injured Ontario farm workers who were denied long-term benefits.

The Workplace Safety and Insurance Appeals Tribunal ruled the migrant workers, hired under the federal Seasonal Agricultural Worker Program, are entitled to proper loss-of-earnings benefits and retraining support — and that the WSIB was wrong for refusing to give it to them.

The four workers involved in the appeal, including one who worked in Niagara-on-the-Lake, now will receive proper compensation for their injuries.

The ruling isn’t necessarily binding on the WSIB in other cases, but the board says it is looking into how it might be applied.

Maryth Yachnin, a lawyer involved in the appeal, said, “These workers will get the compensation they’re entitled to and, in a few cases, retraining, like an assessment of their ability to work in Jamaica.”

The hearing panel, which was headed by Rosemarie McCutcheon, chair of the Workplace Safety and Insurance Appeals Tribunal, released its findings on Sept. 15.

The workers are not identified in the tribunal’s ruling. Some of the cases go back more than a decade.

Leroy Thomas, one of the workers who decided to speak out publicly, said in a statement that the decision has been a “long time coming” and that it’s been a rough road for migrant workers such as himself.

“We’ve been treated very dishonestly by (the board),” he said.

The three other workers, including one who worked at a farm in Niagara-on-the-Lake, chose not to speak out publicly.

The tribunal concluded that the workplace injury board has been wrongly limiting all injured seasonal migrant workers to only 12 weeks of long-term loss-of-earnings benefits.

Long-term benefits should be “based upon their ability to earn in their actual local (and) regional labour market,” the ruling says.

However, the board bases eligibility on the Ontario labour market and the money workers could make if they were employed here.

After someone is injured on the job, the WSIB assesses the province’s labour market and then often “deems” the injured worker able to go back to work at a job in Ontario – such as a gas station attendant.

In this case, all the workers are from Jamaica, so Yachnin says the board ruling means the WSIB now needs to take that country’s labour conditions into consideration.

The current practice is seen as unfair by many, since the injured workers are no longer living in Ontario and in many cases, they will be unable to ever again do the kind of work they did while in Canada.

Nor can they do an alternate job, like gas station attendant, because in the vast majority of cases, they are no longer in the country by that time – and probably won’t be returning, Yachnin said.

However, that doesn’t diminish the fact they were hurt on the job in Ontario.

“The board will pick a fake job that they could do in a world where they could work in Ontario,” she said.

As a result, the worker won’t get any lost wages and they’ll only receive 12 weeks “as a substitute for any ongoing loss of earnings,” she said.

The WSIB said in a statement to the tribunal that it doesn’t provide “re-entry services” to Seasonal Agricultural Worker Program workers after returning to their home country “because it is too costly and/or impractical.”

The tribunal ruling means that doesn’t matter. It demands the WSIB do right by the workers.

The tribunal rejected the board’s stance and said migrant workers are entitled to a labour market re-entry assessment and re-entry plan based on each worker’s actual labour market – in other words, wherever they are now living.

Yachnin said the ruling is significant and precedent-setting because the tribunal wanted this case to “help settle the law on this issue” – so, she anticipates it will influence the tribunal’s future decisions on similar cases.

“We do expect this to have precedential value for future cases of the tribunal,” she said.

Yachnin was also heartened to see the tribunal address other serious issues migrant workers face, such as access to health care, anti-Black racism and discrimination.

The tribunal’s decision referenced the vulnerability of migrant workers in the agricultural program due to two factors: the nature of their precarious employment status and the existence of systemic racism.

“There is no dispute that the courts have found it appropriate to take judicial notice of the reality of anti-Black racism in certain circumstances,” says the tribunal decision.

The appellants cited three Canadian legal cases that weigh in on the role of anti-Black racism in these matters and how they are adjudicated.

“The panel concludes that the (appeal tribunal) may take official notice of the existence of anti-Black racism and other forms of discrimination where it is relevant to the weighing of evidence,” the decision says.

Yachnin said, “As far as we know, that was the first time this tribunal has seriously addressed anti-Black racism.”

This is significant to Yachnin and her team at the IAVGO Community Legal Clinic in Toronto because it means other Black and racialized injured workers who have faced racism may be able to have it factored into determining a fair outcome in their appeals, she said.

While the tribunal can’t force the board to change its policy on injured workers, Yachnin hopes the WSIB will take the ruling seriously and review its practice.

“Because there’s obviously a clear indication that this practice is wrong,” she said.

On Sept. 22, one week after the ruling, the WSIB “launched a review of how claims for people in the federal Seasonal Agricultural Worker Program are handled,” said Christine Arnott, the board’s public affairs manager.

Asked if the review was in response to the ruling, Arnott said, “This is about doing the right thing and treating people with humanity, dignity and respect.”

She added that everyone deserves to feel safe on the job and that injured workers should have access to support no matter where they live.

She said the review is expected to be completed within six months and it will help the WSIB take a consistent and fair approach “that recognizes the realities of people’s local labour markets after they return home.”

“This review will clarify how the claims are adjudicated and will determine whether previous decisions should also be adjusted,” she added.

Any workers who have claims under review will be contacted by the board within the coming weeks, she said.

The legal clinic has been fighting to change the WSIB’s “unfair” policy on long-term benefits for close to 20 years, Yachnin said.

The policy is “farcical,” she said, and treats workers as disposable, adding that it not only reflects how poorly the board treats migrant workers, but how the wider system views them.

Yachnin hopes the ruling is a step toward getting injured workers the retraining they need in their home countries.

“It also pushes the whole system to not dispose of workers,” she said.

Normally, if any worker in Ontario is hurt on the job, they are entitled to loss-of-earnings benefits if they can’t return to work, and if they need it, they get retraining support so that they can find a suitable job if they can’t go back to their original role, she said.

Workers can also receive WSIB loss-of-earnings payments until they are 65 if they can’t return to work at all.

Arnott said there are different views about how to determine what work is “suitable and available” for an injured or ill migrant worker after they have returned to their home country.

She noted that the tribunal has supported the way the board has handled these claims in the past.

Yachnin feels optimistic for other workers who are going through similar situations, like Jeleel Stewart, a migrant worker who was injured on the job at Mori Nurseries in Niagara-on-the-Lake.

He’s been fighting for proper compensation since 2008.

Yachnin said she encourages all seasonal migrant workers who may have been injured to speak up.

“If they have a permanent injury, (if) they were injured in the program, to reach out and get some advice, to make sure that they’re getting compensation that they are due.”