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.