A Jamaican migrant worker who was injured while picking fruit at an Ontario farm will be eligible to receive partial benefits for loss of his earning power, after a decision by the Ontario Workplace Safety and Insurance Appeals Tribunal.
The man received legal help from the Industrial Accident Victims’ Group of Ontario, which argued that he had a right to the benefits under the Workplace Safety and Insurance Act.
Maryth Yachnin, staff lawyer at the Industrial Accident Victims’ Group of Ontario, says the ruling is the first of its kind, because it opened the door for migrant workers to receive benefits past the 12-week mark if they’re injured on the job.
“Essentially, it gives migrant workers a chance at equal access to benefits, whereas before, they had no chance,” says Yachnin.
Yachnin says migrant workers who are injured on the job in Ontario “get a fraction of the benefits that Ontario workers get, even if they have just as serious injuries and are just as unable to work after injury.”
In the case, a Jamaican man seriously hurt his back in August 2008 while he was working at a farm picking fruit as part of the Seasonal Agricultural Worker Program.
In September 2008, he returned to Jamaica.
“The worker stated that, following his injury, he has had difficulty bending and lifting, and that he has been unable to perform farm work. He stated that, following his injury, because he has not been able to perform farm work, he has not tried to return to Ontario to work under the SAWP,” said the decision.
IAVGO, which is a non-profit legal clinic, said in a submission to the tribunal that the man had received “almost no compensation for his losses” and argued that the tribunal should order the board to pay the worker for loss of earnings after October 2008, based on wages he would be able to earn in suitable employment available to him in Jamaica.
“Like any other worker more vulnerable to the consequences of workplace injury, [the worker] should receive entitlement for his losses, even if these losses are more severe than for another worker,” said the submission.
The tribunal ruled that the worker was entitled to partial loss of earnings benefits for the period after October 2008 and that the work identified as a post-injury replacement for the worker — as a cashier in Ontario — wasn’t suitable and suitable work needed to be in his home country of Jamaica.
“The worker’s situation is not similar to the situation where a worker makes a personal choice to move or leave Ontario after a workplace accident,” said the ruling.
“In this case, the worker had no choice but to return to his home country.”
The tribunal sent the issue of calculating the quantum of the benefits back to the board to determine.
Yachnin says in the case that the board took the position that migrant workers who are injured are unable to participate in retraining in Canada and the reason they have a loss of earnings is their immigration status, not their disability.
“It effectively means that if you’re a migrant worker and you suffer even a very serious injury on the job and then you are sent back to your home country or you are here for medical treatment and unable to work, you will get 12 weeks of benefits, whereas other people will get benefits for the duration of the period of time where the disability prevents them from doing their pre-accident job or another safe, suitable job,” she says.
A spokeswoman for the Workplace Safety Insurance Board, Christine Arnott, said in an email statement that the board has requested reconsideration of the decision.
“Migrant workers are entitled to the same benefits and services as any person injured at work in Ontario. Decisions on whether migrant workers are allowed to remain in Ontario fall under federal jurisdiction; however, where possible we will work with the injured person and employer on a case-by-case basis if they should stay in Ontario during their recovery. Our goal is to get the best recovery and return-to-work outcomes for the people we’re here to help,” she said.
“To assist migrant workers who leave Ontario in receiving health care in their home country, we will help them find the appropriate treatment, pay the providers directly and arrange for pre-payment of travel expenses to and from their appointments.”
The board’s position still remains unchanged when it comes to benefits for migrant workers injured on the job, says Yachnin, but there is some room for hope.
“Before, there was no potential for any long-term benefits — really no matter the injury, and no matter the impact on someone’s life and their inability to work, that was the only chance they had — [it] was short term, three months of benefits,” she says.
The clinic continues to work on issues related to migrant workers, and another case involving a man from Trinidad and Tobago is pending before the Human Rights Tribunal of Ontario, says Yachnin.
Airissa Gemma, a community legal worker with the clinic, who was co-counsel on the matter, says she is pleased with the decision.
The tribunal’s decision was groundbreaking and will lead to beneficial results for other migrant workers, she says.
“He was a long-term worker. As a migrant worker, he’d been coming here for years. And it was just despicable the way that he was treated in terms of [being told], ‘Go back home and fend for yourself,’” she says.
Lorne Waldman, a lawyer who practises immigration and constitutional law in Toronto, says he supports the tribunal’s decision.
“I think migrant workers are extremely vulnerable and any decision of any tribunal that acknowledges this and in any way makes it easier for them to assert their legal rights for fair compensation is something that should be lauded and supported,” he says.
