A New Perspective on the Availability of Suitable Occupations for Migrant Workers

  • January 10, 2018
  • Rachel Weiner

In Decision No. 1773/17, a migrant worker successfully argued that the WSIB should determine his suitable occupation (SO) based on the labour market in Jamaica, where he lives, rather than in Ontario, where he was working at the time of his workplace accident. In finding for the worker, the Tribunal stated that the WSIB’s Adjudicative Advice Document for workers in the Seasonal Agricultural Workers Program (SAWP) should not apply. In doing so, the Tribunal concluded that this Adjudicative Advice Document is inconsistent with the Workplace Safety and Insurance Act (the WSIA) and WSIB policy.

The worker participated in the SAWP for eight years before his workplace injury. Every year, he arrived in Canada in June and picked peaches and plums. In the fall, he moved on to an apple farm to pick apples before returning to Jamaica at the end of October. In the winter, he worked on his farm in Jamaica, where he grew crops, working alongside other farmworkers he hired.

On August 11, 2008, the worker was picking up a basket of peaches and he felt a crack and a burning pain in his back. After his accident, the worker had trouble bending and lifting. He performed modified work at the peach farm for a short time, but was repatriated in September. Back in Jamaica, the worker was unable to return to farming. He also tried masonry work without success.

The worker reported his accident to the WSIB, who recognized his permanent impairment with a 16% Non-Economic Loss award. However, the worker received very little Loss of Earnings benefits because of the way the WSIB determined his SO.

The WSIB decided that the worker was able to work as a cashier in Ontario. The Tribunal explained that, according to the Appeals Resolution Officer, the WSIB was guided in this case by an Adjudicative Advice Document entitled “Adjudicative Advice: Coverage and Entitlement for Workers Hired under the Commonwealth Caribbean and Mexican Seasonal Agricultural Workers Program”. This document instructs that, if a SAWP worker is unable to return to work after an injury, the WSIB should determine an SO based on the Ontario labour market. It allows for four weeks of LOE benefits, instead of a four-week Job Search Technique Program. However, after the four-week period finished, this particular worker’s deemed wages meant that he was entitled to no further LOE.

The worker successfully argued before the Tribunal that his SO should be based on a category of jobs that was available to him in Jamaica. The Tribunal concluded that the WSIB’s Adjudicative Advice document was inconsistent with the Act and with WSIB policy, and decided not to apply it.

Notably, the Tribunal analyzed the issue of availability even though it was technically moot, as the worker’s limited literacy and numeracy skills meant that the cashier job was also unsuitable.

In deciding the question of availability, the Tribunal made the following significant observations:

  • The Tribunal acknowledged the legislature’s amendment of the WSIA in 2007 to add the word “available” to sections 43(2) and (4). This amendment demonstrated legislative intent that availability should be integral to determining a worker’s SO.
  • WSIB Policy No. 19-03-03 defines the labour market that is “available” to a worker as a location to which a worker could reasonably commute. By contrast, the Tribunal recognized that Ontario is located thousands of kilometers from where this worker lives in Jamaica.
  • The Tribunal held that this worker’s case was not comparable to other cases involving workers who made voluntary decisions to move outside of Ontario after a workplace accident. The worker would not have been able to pass the medical examination to return to Canada with the SAWP after his injury. Therefore, the merits and justice of the case supported the worker’s position, as he had no choice – he has no legal access to the Ontario labour market, as a result of his workplace injury.
  • Instead, the Tribunal relied on case law recognizing that an SO can be based on a labour market outside of Ontario where an injured worker reasonably returned to his or her home province. For example, in Decision No. 2037/06, the Tribunal decided that the WSIB should consider actual wages from a worker’s job in the home province; the worker was not offered modified work or retraining in Ontario, and the worker’s efforts to find a job in Ontario were reasonable. As well, in Decision No. 1720/12, the worker was an employee on a ship who was never otherwise based in Ontario. The Tribunal recognized that it would not be reasonable to expect this worker to move to Ontario to find a job. As in these cases, the Tribunal recognized that the SO in the present case should be based on the local labour market in Jamaica, rather than in Ontario.

This decision could have greater implications than this particular case, given the Tribunal’s decision to not apply the WSIB’s Adjudicative Advice Document that applies to all SAWP workers. As prior Tribunal decisions upheld the WSIB’s approach on this issue, Decision No 1773/17 represents a new perspective. Advocates and injured SAWP workers will have to wait and see whether this case, and this new approach, has a greater impact in the months to come.

About the author

Rachel Weiner is a Staff Lawyer at IAVGO Community Legal Clinic. Rachel represents injured workers before the WSIB and the WSIAT, and co-supervises IAVGO’s student clinic, Advocates for Injured Workers. Before she started at IAVGO in 2016, Rachel was counsel for the Constitutional Law Branch of the Ministry of the Attorney General, a Legislative Interpretation Specialist with the Office of the Worker Adviser, and a judicial law clerk for the Federal Court. 

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