Tribunal slams WSIB practice that cuts benefits to injured migrant workers

Compensation board slashed benefits for illiterate migrant worker in Jamaica arguing he could work as a cashier in Ontario - even though he was no longer legally entitled to be in the country.

Thestar.com
Oct. 5, 2017
By Sara Mojtehedzadeh

A workers' compensation board practice that slashes benefits to injured migrant farm workers by deeming them capable of finding alternative employment in Ontario is illegal, an independent tribunal has ruled.

The landmark case at the Workplace Safety and Insurance Appeals tribunal is the result of nearly nine years of petition by Michael Campbell, a migrant worker from Jamaica who injured his back in a 2008 farm accident in Niagara-on-the-Lake. He returned home a month after his accident and his injuries prevented him from ever returning to Ontario under the Seasonal Agricultural Workers Program.

The Workplace Safety and Insurance Board subsequently cut his loss-of-earnings benefits arguing he could find a job as a cashier in Ontario - even though Campbell lives on a remote farm in Jamaica, has only basic literacy and numeracy skills, and has lost his legal right to live and work in Canada.

The tribunal found the cuts to his loss-of-earning entitlement, which are meant to recognize the reduced earning potential of an injured worker, an "abrogation" of the WSIB's legal obligations.

"The WSIB needs to change its policy now so no one else has to go through what I went through," said Campbell.

The tribunal ruling is only binding in Campbell's case, but it opens the door for other migrant workers who appeal slashed benefits to be compensated.

"We anticipate it is significant for other workers because it means they have a chance (at loss-of-earning benefits) if they get to the tribunal," said Maryth Yachnin, a lawyer with the Industrial Accident Victims' Group of Ontario, the legal clinic that represented Campbell.

The WSIB can legally cut loss-of-earnings entitlement if it deems an injured worker capable of finding alternative employment. A 2009 "adjudicative advice" document on migrant workers says the board should determine if there are suitable jobs in "the local Ontario labour market" when determining entitlement.

Migrant farm workers' right to be in Canada is tied to working at a single employer. If they are no longer able to perform their duties there, they can be repatriated. Indeed, under the Seasonal Agricultural Worker Program, employers can deport workers for "non-compliance, refusal to work, or any other sufficient reason."

Between 2004 and 2014, more than 780 migrant workers in Ontario were medically repatriated back to their home countries after injuries - nearly all of them against their will, according to a study for the Canadian Medical Association Journal.

The tribunal ruling noted that as a migrant worker, Campbell was "geographically located thousands of kilometres" away from Ontario, and that "through no fault of his own," could no longer legally work here.

"It is apparent that the worker does not have the numeracy and literacy skills necessary to perform the work of a cashier," the decision added, noting Campbell is unable to read or write beyond his full name.

"The system has always been Kafkaesque. I honestly could barely believe it when we had our first migrant worker client," said Yachnin.

"I still find it pretty stunning that they continue to say to workers, 'we know you can't work here' but treat them as if they can anyway.

The Star has previously reported on the difficulties migrant workers face in accessing the compensation they are legally entitled to after a workplace accident.

"This is the norm where workers are basically discarded, disposed of, and their health-care responsibilities are downloaded on their home communities," said Chris Ramsaroop of Justicia for Migrant Workers.

"The (WSIB) policy doesn't reflect the reality of migrant workers or their lives. It is an insult to the dignity of those migrant workers and their families," said Ramsaroop.

A psychologist report provided to the tribunal found Campbell possessed a "good work ethic" and was "industrious, dependable and conscientious." But as a result of his injury, a medical expert found he was no longer able to do manual labour or agricultural work. Campbell, who is now in his 50s, lives on a remote farm with his family, and testified that his accident has now made it difficult to earn a living.

The tribunal ruling has now ordered the WSIB to calculate and pay Campbell's loss-of-earning entitlements based on what alternative work he could be reasonably expected to find in Jamaica.

A WSIB spokesperson said the board will study the ruling.

"We are carefully reviewing the tribunal's comments and will look at what, if any, changes may be made to our policies and procedures to ensure we're achieving the right outcome for people," Christine Arnott said in an email.

Yachnin said overall policy change was needed to ensure injured migrant workers receive the treatment they are legally entitled to.

"They feel dismissed, that their losses are treated as not real. And I think the message that the WSIB sends is that their losses don't matter."