A triumphant win against the WSIB’s practice of ending compensation to migrants

BY SIMONE J. SMITH

Migrant workers in Canada have faced various issues over the years, and these issues vary depending on the specific program, or sector in which they are employed. Migrant workers, particularly those in low-skilled or seasonal jobs, are vulnerable to exploitation and abuse by unscrupulous employers. These exploitations include wage theft, substandard working conditions, and violations of labor rights. They often face inadequate and substandard housing conditions provided by their employers, and this can include overcrowded housing, poor sanitation, and inadequate access to basic amenities.

Many migrant workers come to Canada through programs, which are designed to address labor shortages in certain industries. However, these programs often tie workers to specific employers, limiting their ability to switch jobs and making them more dependent on their employers. This leaves workers at risk of exploitation and abuse, and many migrant workers fear deportation if they report workplace violations or seek help from authorities. It is sad because it deters them from addressing their concerns or pursuing legal remedies.

The Canadian government has claimed to address some of these issues by implementing policy changes, increasing inspections of workplaces, and providing more protections for migrant workers. However, for some reason, even with the so-called government interventions, challenges persist, and advocacy groups and labor unions continue to push for further reforms to improve the rights and conditions of migrant workers in Canada.

In the latest fight for migrant farmworkers, advocacy groups have long called the WSIB’s practice of ending compensation to migrants outrageous, xenophobic, and deeply unjust. Last week, the Workplace Safety and Insurance Appeals Tribunal agreed.

“It’s been a long time coming and a rough road for us migrant workers when we pick up an injury and cannot come back or work and provide for our families. Justice served by the Tribunal can help other workers so that they don’t go through what we’ve been through. We’ve been treated very dishonestly by WSIB,” says Leroy Thomas, a migrant worker, who has bravely come forward about his experiences here in Canada.

As a participant on the Seasonal Agricultural Workers Program (SAWP), Leroy left his young family in Jamaica to work the fields in Ontario for up to eight months a year. In 2017, he suffered a permanent back injury that ended his 16-year career in Ontario.

The WSIB knew that Leroy could not come back to work in Ontario with his injury but cut his benefits as if he could. They told Thomas that, if he could still work in Ontario, he could restore his income with his disability by getting a job as a parking lot attendant. It ended his Loss of Earnings compensation shortly after his injury as if he was working that job.

The WSIB’s practice forced Leroy, and injured migrant workers like him, into poverty with no realistic way of restoring their income in Jamaica with their injuries. Leroy then started to organize with Justice for Migrant Workers and Injured Workers Action for Justice to press the WSIB for changes. He also appealed his case with three other injured migrant workers.

IAVGO Community Legal Clinic have come forward to represent Leroy Thomas and other workers in the appeal. IAVGO is a legal clinic funded by Legal Aid Ontario and fights for the rights of injured workers, including migrant and precarious workers.

This work was done with the support of Justice for Migrant Workers (J4MW) and Injured Workers Action for Justice (IWA4J). J4MW is a volunteer-based, grassroots organization based in Ontario and BC that promotes the rights of migrant workers both locally and transnationally. IWA4J is a group of injured workers and their supporters fighting for respect and fairness from the WSIB.

“The WSIB’s failure to apply the law to migrant workers is rooted in the xenophobic and a racist belief that injured migrant workers are disposable and their injuries are not worthy of compensation. This ruling unequivocally tells WSIB that they are wrong,” says Chris Ramsaroop, from Justice for Migrant Workers.

The Tribunal ruled that WSIB has been illegally reducing compensation of racialized injured migrant workers for decades. The victory is part of a long struggle by farmworkers and their advocates for justice for migrant workers injured in Ontario’s workplaces.

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 illegal, and reinstated Loss of Earnings compensation to a group of four permanently injured migrant workers from Jamaica.

The ruling stems from a WSIB practice that reduces partially injured migrant workers’ Loss of Earnings benefits after 12 weeks by pretending they can earn income from suitable work in Ontario even though such work is not available to injured migrants.

In their landmark decision, the Tribunal said that WSIB must provide meaningful retraining and/or compensation based on the individual circumstances and labour market realities that migrant workers face in their home countries. In doing so, it determined that migrant workers are entitled to the same interpretation of the Workplace Safety and Insurance Act as other Ontario workers.