WSIB compensation changes for migrant workers could still exclude thousands
May 16 2024 - 11:06AM
On Wednesday the Workplace Safety and Insurance Board (WSIB)
announced changes to the way it provides compensation to injured
migrant workers. IAVGO Community Legal Clinic welcomes the
long-overdue changes, but is alarmed that the WSIB may still
exclude thousands of injured migrant workers.
The WSIB has not yet committed to include
migrant workers in other programs like the Agricultural Stream of
the Temporary Foreign Workers Program and migrant workers injured
before 2007. The WSIB is also continuing to “deem” injured workers,
a harmful practice that hurts migrant workers and Ontario workers
alike.
The Issue
The WSIB pays Loss of Earnings benefits when
workers have a wage loss because of their workplace injury. Before
the changes announced Wednesday, the WSIB cut injured migrant
workers’ Loss of Earnings benefits after 12 weeks by pretending
workers did not have a wage loss.
When the WSIB acknowledged that injured migrant
workers could no longer do farmwork, it pretended that they could
return to a new, suitable occupation in Ontario with their injuries
(i.e.: parking lot attendant in Windsor). The WSIB then cut their
Loss of Earnings benefits as if they were earning those wages (a
practice known as “deeming”). This deeming was deeply unfair
because migrant farm workers, as a group, are only legally
permitted to work in farming.
The impact on injured migrant workers of having
their Loss of Earnings benefits cut based on jobs not available to
them has been devastating. Many migrant workers were sent home to a
life of poverty and ill health because of their workplace injuries
in Ontario. The WSIB treated these racialized migrant workers as
though the loss of their livelihoods didn't matter.
Migrant workers undertook a decades-long
organizing and legal effort with the support of Justice for Migrant
Workers, Injured Workers Action for Justice and IAVGO Community
Legal Clinic. After a protracted legal battle, the Workplace Safety
and Insurance Appeals Tribunal made a landmark ruling on the issue
last September.
In an extensive ruling that took official notice
of the institutional racism that migrant farm workers face, the
Tribunal determined that the WSIB’s practice of ending compensation
to migrant farm workers was contrary to the law because work in
Ontario in non-farming jobs was not available to migrant workers.
The Tribunal reinstated Loss of Earnings compensation to a group of
four permanently injured migrant workers from Jamaica.
Following the ruling, and as a result of actions
by the workers, the WSIB announced it will use migrant workers’
labour market in their home countries - not Ontario - to determine
the suitable work that is available to them where they are. This
change is likely to result in significant benefits for migrant
workers because it takes into account a more realistic picture of
the wage loss caused by their workplace injuries.
On Wednesday, the WSIB publicly apologized to
migrant farm workers who have been harmed by this practice, and
says that fixing it will result in millions of dollars to migrant
workers who have been injured in the Seasonal Agricultural Worker
Program since 2007.
Thousands of migrant workers are
excluded
- Other temporary foreign workers, like those in the Agricultural
Stream of TFWP
There are two main ways migrant farm workers
come to Canada to work. One is the Seasonal Agricultural Worker
Program, which is the program that WSIB is making the changes for.
The other is the Agricultural Stream of the Temporary Foreign
Workers Program, which is typically used by farm operations that
are not seasonal such as greenhouses and nurseries.
Workers in both programs are only allowed to
work in agriculture - they are legally prohibited from changing
occupations in Ontario to ones they can do with their injuries. But
WSIB isn't going to fix its unjust deeming of workers in the TFWP.
These workers will continue to be denied benefits based on a policy
that the WSIB's President now acknowledges was "unfair" and "just
wrong". It will continue to end their benefits as if they could
work in non-farming jobs in Ontario and leave them destitute.
According to Statistics Canada, in 2023 alone, there were 15,813
greenhouse, nursery and floriculture migrant workers in Ontario and
the number of migrant workers in that sector has been steadily
increasing.
- Migrant workers injured before 2007
The WSIB announced that its changes will only
affect workers with injuries from 2007. Deeming workers started in
1990, and the Tribunal’s decision applied to a worker injured in
2006. There is no reason to limit retroactively to 2007.
- The WSIB continues to “deem” all workers in phantom jobs
The WSIB’s changes do not respond to injured
workers’ long-standing call for WSIB to stop “deeming” workers in
phantom jobs. Many disabled workers are unable to find work after
their injury. WSIB’s practice of cutting off Loss of Earnings as
though they are working a suitable job has thrown Ontario and
migrant workers alike into crisis and continues to cause serious
harm to injured workers and their families.
Quotes
“It is not fair to compensate some workers and
leave others behind. We need a fair compensation system for injured
workers across the board. WSIB should treat all workers, regardless
of where they are from, as human,” says Capleton Thomlinson,
injured migrant worker and member of Injured Workers Action for
Justice, Injured Farmworker Group.
“The change in compensation announced by WSIB is a step in the
right direction, but there are thousands of migrant workers who
will be excluded for no good reason”, says Maryth Yachnin, staff
lawyer at IAVGO Community Legal Clinic and lead counsel on the
workers’ appeals that led to the review. “If WSIB is truly
committed to rectifying the historical injustice faced by this
group of racialized, immigrant and disabled workers, they will
ensure that all disabled migrant workers are properly compensated
for their wage loss.”
“It’s outrageous that WSIB continues to deny
injured migrant workers their rights under the law. WSIB continues
the racism and discrimination that migrant workers face by failing
to take responsibility for the workplace injuries of all migrant
workers. No one should be disposable after a workplace injury,”
says Jessica Ponting, Community Legal Worker at IAVGO Community
Legal Clinic.
Contact Information
Maryth YachninIAVGO Community Legal
Clinic416-924-6477 ext. 4531maryth.yachnin@iavgo.clcj.ca