From Worker Victory to Policy Reform: Injured Migrant Workers Fight for Return to Work Justice in Workers’ Compensation in Ontario,Canada

Abstract

This article explores the challenges facing injured migrant farm workers in the workers’ compensation system in Canada's province of Ontario, with a focus on their fight for return to work justice. Told from the perspective of one of the lawyers who represented the workers, it highlights a recent victory achieved by 4 workers in the Seasonal Agricultural Worker Program in defending their rights to workers’ compensation support. The workers’ compensation tribunal decided that the workers’ compensation board must evaluate these workers’ ability to return to work, access retraining, and receive compensation based on their labor markets in Jamaica—instead of based on fictional job prospects in Ontario. The tribunal also called out the need to consider systemic anti-Black racism in workers’ compensation law and policy. The article analyzes how this legal victory could reshape workers’ compensation policy in Ontario for injured migrant farm workers. It also discusses the implications of the win for injured workers in other temporary work programs and precarious employment sectors.

The WSIB's failure to apply the law to migrant workers is rooted in the xenophobic and 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. —Chris Ramsaroop, Justicia for Migrant Workers

Injured migrant workers are suffering from breakdowns and being disregarded due to a lack of support and an unjust system. In spite of all their challenges, injured migrant workers persevered and raised awareness about the systemic issues to demand a better system for migrant workers. They firmly believe in our collective power to come together and hold the system accountable and responsible. —Sang-Hun Mun, IAVGO Community Legal Clinic

Overview

For decades, far from assisting them to recover and return to work, Ontario's workers’ compensation system has exacerbated the racism and discrimination that injured migrant workers face. Workers injured in Ontario as part of Canada's Seasonal Agricultural Worker Program (SAWP) are repatriated home and disposed of without access to jobs in Ontario or any ability to return to work in Ontario. Until this year, the workers’ compensation board in Ontario, called the Workplace Safety and Insurance Board (WSIB), has denied them any long-term financial or return-to-work support in almost all cases.

Figure 1.

Comparison of allowed claims with a NEL award between the agricultural section as a whole and the SAWP.

The WSIB alleged that, if not for their immigration status, injured migrant farm workers could get light jobs in Ontario as gas bar attendants or cashiers. According to the WSIB, these fictional jobs in Ontario would allow them to restore their livelihoods, so they didn’t need help to retrain or compensation for lost wages. This, even though most had been repatriated back to their home labor markets thousands of kilometers away from jobs in Ontario. The terms of the jobs that injured them “tie” them to work for a single employer and prohibit them from working in Ontario except doing heavy farm labor. In this way, the intersection of the federal SAWP and Ontario's provincial workers’ compensation system created a perfect storm of precarity—a series of government systems designed to ensure that racialized workers can be disposed of once injured.

This article aims to provide a window into the impact of the WSIB's approach to the claims of injured migrant farm workers—and into the fight that led to the WSIB finally conceding, in 2024, that its policy is unfair and unjust. After a review of the context of precarious migrant labor and the structures of the SAWP, this article outlines the heightened risks facing migrant workers who suffer workplace injuries. It explains how the workers’ compensation system functions for injured migrant workers and tells the history of xenophobic denial and exclusion that has been, and remains, embedded in that system. Told from the perspective of one of the IAVGO Community Legal Clinic lawyers who represented the workers, this article then explains a recent successful legal challenge by injured workers to the WSIB's unfair practices concerning wage loss benefits—a challenge that has set the stage for the expansion of meaningful return to work options for injured workers in the SAWP, as well as potentially for other migrant and precarious workers.

The Seasonal Agricultural Worker Program Creates a Precarious and Disposable Workforce

The History and Origins of the SAWP

The SAWP is a program through the government of Canada governed by bilateral agreements between Canada and the governments of the sending countries in Mexico and the Caribbean. ¹ The program brings about 18 000 workers to Ontario every year to work on Ontario farms. ² The SAWP lets employers hire temporary foreign workers for farm work if Canadians and permanent residents are not available to do the work. ³

The federal government created the SAWP in 1966 to address chronic, and critical, shortages in farm labor. ⁴ Ontario's agricultural industry is dependent on the labor provided by workers participating in the SAWP for its profitability. ⁵

Workers in the SAWP are only allowed to do farm labor for their assigned employer for a maximum of 8 months a year, and they must return to the sending country by December 15th of any given year. ³ Workers participate in the SAWP for an average of 7 to 9 years, with many participating for upwards of 25 years. This pattern has led researchers to note that the SAWP is more a “circular migration system” than it is a temporary migration program. ¹

While the migration of workers between countries is a centuries-old phenomenon, the creation of the SAWP was part of a newer global trend in countries like Canada of importing migrant laborers who are allowed to stay only temporarily and whose labor mobility is restricted or, in the case of the SAWP, tied to a single employer.^6–8 In Canada, prior to the 1960s, nonnationals who gained the legal right to participate in the Canadian labor market generally entered as permanent residents who could work freely in the labor market. ⁸

Workers in the SAWP Have Precarious Immigration Status and Few Rights

Migrant workers whose entitlement to be in a country is tied to a contract of employment with a particular employer are in an extremely precarious position—and the layers of vulnerability that they face compound that precarity.^8,9 Workers employed under the SAWP face many layers of vulnerability created by the government systems that bring them to work in Canada. They are racialized workers who are “tied” to one employer, are denied labor and social mobility, work in dirty, difficult, and dangerous work, and must return to their home country after the expiration of their contract. They live on their employers’ usually rural or remote, and isolated, premises. Many have low literacy and education. These characteristics of the SAWP make workers among the most vulnerable members of our society. ¹⁰

The structures of the SAWP allow for strong employer control over the SAWP's “racialized, gendered, precarious, second-tier workforce.” ¹¹ As observed by McLaughlin et al, even a former Canadian Immigration Minister commented that employers prefer temporary migrant workers because they “know they’re going to show up every day for work” and that these workers have “a kind of quasi-indentured status”.^11,12

To qualify for the SAWP each year, workers must pass a medical examination to ensure they are fit to perform heavy farm labor. This makes them an incredibly reliable source of labor for farmers. ¹³ As Andre expresses it, the structures of the program ensure “only the ablest workers are selected for the scheme.” ⁴

Workers in the SAWP are legally barred or practically prevented from accessing many of their legal rights as workers, including Employment Insurance and health and safety protections.^14,15 Workers are often unable to access or assert the rights they do have because of the constant threat that the employer will terminate their employment, repatriate them, and prevent them from returning to the program in subsequent years.^10,16

As racialized and Black workers, SAWP participants suffer systemic and structural discrimination in their access to community and government support and in the communities in which they live and work. ¹⁷ They have no pathways to permanent residency in almost all cases and remain fundamentally excluded from Canadian society.^18,19

Migrant Farm Workers Work in One of the Most Dangerous Industries in Ontario and Struggle to Access Healthcare

Agricultural work is one of the most dangerous industries in Ontario, with farming consistently ranked among the province's most dangerous occupations for both fatal and nonfatal work-related injuries. ²⁰ Farm workers often suffer from musculoskeletal disorders, cardiovascular disease, hypertension, premature death, certain cancers, hearing loss, dermatological concerns, eye and ear problems, infectious diseases (such as TB and various STIs), diabetes, respiratory and lung diseases, mental disorders (often related to stress), climate-caused illnesses, ulcers, bladder, kidney, and liver disorders, and reproductive problems such as infertility, birth defects, and miscarriages. Vulnerable groups such as seasonal and migrant workers and ethnic minorities are especially at risk. ^{13 p 285}

As a result of the structures of the SAWP, including crowded, inadequate and unsanitary housing, ¹⁷ and lack of health and safety enforcement, ¹³ migrant farm workers are even more vulnerable to injuries and diseases and, when injured on the job, are often unable to get health care or compensation for their injuries:

They are dependent on their employers often even to travel to health care for their injuries. Employers interfere and mediate their access to health care. ²¹

They are subject to abrupt repatriation (being deported to the sending country) without proper health care. ¹⁶

They are unable to qualify to return to work in the SAWP in subsequent years. ^{13 Appx 4.2B, 493, 22}

They have poor access to resources to defend their rights and fear reprisals for doing so. ¹⁰

These conditions often force workers and their families to endure severe economic hardship postinjury. Workers report struggling to pay tuition for their children to go to school. Some say they can’t feed their families. They cannot afford transportation, communication, and exam costs involved in booking medical care, leaving what researchers describe as “profound” effects on family dynamics and the sense of self-worth and dignity among workers and implications for their mental and emotional health. ^{13 p 495}

The Exclusionary History of Workers’ Compensation for Migrant Foreign Workers and Survivors

Workers’ Compensation Is Supposed to Provide Coverage for Foreign Migrant Farm Workers

Workers’ compensation is a no-fault system of compensation designed to protect workers and communities from the devastating impact of workplace injury or disease, while also protecting employers from lawsuits related to workplace injury. It is entirely employer-funded. In exchange for no-fault compensation, injured workers have surrendered their rights to sue their employers for workplace injuries, even in the case of gross negligence. ²³ Workers’ compensation is administered by the WSIB, an arms-length agency of the Ontario government. ²⁴

As described by the Supreme Court of Canada, workers’ compensation legislation is designed to “prevent unfair treatment of injured workers based on their disability.” It seeks to ensure that the “rights of workers are protected as fully as possible so that the disabilities do not result in workplace discrimination.” ²⁵

Since its inception in Ontario in 1915, workers’ compensation has been intended to provide coverage to injured workers and their survivors without restrictions based on residency. If a worker is an Ontario worker when injured, they are entitled to compensation. In the 1913 public hearings that led to the foundation of the scheme, representatives expressed concerns that benefits to foreign survivors would “in result be greater to the foreigner than to the men at home; that was the argument.” Justice Meredith, the architect of the resulting workers’ compensation system in Ontario, who presided over the hearings, responded, “Would it not be rather an unjust law that forbade giving compensation to the dependents of a man because they happened to live in a foreign country?” ²⁶

Workers’ compensation has also provided mandatory coverage to workers in Ontario's agricultural industry since 1966—the same year that the SAWP was established.^27,28

Many Migrant Workers Can’t Access WSIB Support

Though the workers’ compensation legislation grants them entitlement without limitations based on their residency, migrant farm workers struggle to access support from WSIB.

Racialized and immigrant workers as a whole have greater difficulties in accessing all elements of workers’ compensation and returning to work postinjury. They experience greater barriers with medical, legal, and administrative issues than nonimmigrants. ²⁹ Injured migrant workers face compounded barriers to accessing the workers’ compensation system. Research suggests that most don’t know how to file a WSIB claim. In 2010, the Joint Centre of Excellence for Research on Immigration and Settlement interviewed about 600 SAWP workers and found that 93% of workers did not know how to make claims through the WSIB, 45% of workers knew colleagues who worked while sick or injured because they were afraid of reporting health problems to employers, and that 15% had experienced a workplace accident; and of those, 76% did not claim WSIB. ³⁰

Even where workers are able to file a claim, they struggle to access support. Often employers or doctors don’t file the necessary forms to allow a claim to continue. ^{13 p 461} Even if workers can establish entitlement to WSIB, once repatriated, their claims are often left unresolved, and they are “caught in a confusing and bureaucratic maze” of doctors’ reports, government agents, and a system that does not take into account the structural barriers workers face in getting ongoing health care in their home country. ^{13 p 489}

Indeed, only a few SAWP workers each year have an ongoing entitlement to workers’ compensation support, as evidenced through WSIB recognition of their permanent impairments. ³¹ Below at Figure 1 is a chart provided to IAVGO by the WSIB (in response to a Freedom of Information request) representing the number of allowed claims where the WSIB recognized the worker had a permanent injury (represented by a “NEL” award) in the agricultural sector as a whole, from 2004 to 2015, compared to only claims from workers in the SAWP.

These statistics show that, despite constituting about 25% of Canada's agricultural workforce, ³² SAWP workers have as few as 2% of allowed permanent impairment claims by farm workers before Ontario's WSIB, showing the vast underrepresentation of these workers in allowed WSIB claims.

Workers’ Compensation Rights to Loss of Earnings and Return to Work Support Are Based on the Suitable Job the Worker Can Do Postinjury

The workers’ compensation system in Ontario ties entitlement to loss of earnings and return to work support to the WSIB's assessment of how much money a worker can earn after their workplace injury. This WSIB generally picks a new, often “light,” job (called “suitable employment”) that the worker can do that accommodates their injury. The WSIB may provide retraining support if needed, and then it will base any ongoing loss of earnings on the selected suitable employment—whether or not the worker has found a new job. This process is often called “deeming.” “Deeming” is unfair to many injured workers who are unable to return to work but who are nonetheless “deemed” able to work and denied income support.^33,34

But in the case of migrant farm workers, the injustice is even starker—because the WSIB's policy directs it to “deem” repatriated farm workers (who live in the Caribbean or Mexico and can only work in the Caribbean or Mexico) as if their suitable employment is in Ontario and they are earning wages in Ontario.

Workers’ Compensation Access for Migrant Farm Workers Has Been Restricted by Policy

Since at least the mid-2000s, and probably before, the WSIB has employed an internal policy that repatriated SAWP workers receive only a few weeks of loss of earnings payments and no retraining assistance, based on the assumption that, if not for their limited immigration status, they could find suitable employment in Ontario. The WSIB's logic is that, if in Ontario with the legal ability to work and retrain, they could be parking lot attendants or cashiers and this would eliminate their loss of earnings—and that therefore their loss of earnings is not disability-related but related to immigration status.

Around 2007, the WSIB shared an internal policy document with stakeholders, which it later published on its website. The WSIB's policy document set out that:

The WSIB will identify suitable employment for repatriated SAWP workers with “regard for the (job) available in the local Ontario (labor) market where the worker was employed at the time of the work-related injury/illness.”

Repatriated SAWP workers receive 4 (later 12) weeks of loss of earnings payments, instead of compensation for as long as the injury stops them from restoring their earnings

Migrant workers can’t participate in return-to-work services, so they have no entitlement to return to work or retraining services. ³⁵

Migrant farm workers who suffer injuries can’t return to work in Ontario because they can’t do the heavy farm labor required, and they can’t requalify for the SAWP once injured. ¹³ But according to the WSIB, fictional jobs in Ontario would allow them to restore their livelihoods, so they don’t need help to retrain or compensate for lost wages. Yet, most have been repatriated back to their home labor markets thousands of kilometers away from jobs in Ontario. The terms of the jobs that injured them “tie” them to work for a single employer and prohibit them from working in Ontario except doing heavy farm labor.

Tribunal Decisions Treat Canadian Workers Differently From Racialized Workers From the Global South

In several instances, decision-makers at the Workplace Safety and Insurance Appeals Tribunal, the final level of appeal in the workers’ compensation system in Ontario, found that racialized migrant workers from the global South should be treated as the WSIB had suggested—denied benefits because their loss of earnings are caused by the immigration limitations that govern the terms of their employment.

In the first decision about an SAWP worker, issued in 2003, a tribunal decision-maker stated that any disparity in a SAWP worker's postinjury earnings is attributable to “disparities between the [2] jurisdictions entirely unrelated to the worker's accident”:

Further, any disparity between what the worker would be likely to earn after his accident in suitable and available employment in Ontario and suitable and available employment in Jamaica could potentially be attributable to disparities between the two jurisdictions entirely unrelated to the worker's accident. Compensation paid pursuant to the Act must be attributable to the worker's workplace injury rather than potential economic disparities between jurisdictions. ³⁶

The tribunal adopted the logic of this decision again in 2013 ³⁷ and in 2016. ³⁸

These decisions stand in contrast to some tribunal decisions deciding that—for Canadian migrant workers working in Ontario but resident in another Canadian province—it was not the disparity between jurisdictions that caused their losses but rather the injury. In these cases, the tribunal found that it was appropriate to pay workers’ benefits based on their actual ability to work and earn in their home province. ³⁹ For example, a tribunal vice-chair ordered the WSIB to compensate a worker based on the lower salary he could make after injury in his home labor market in Nova Scotia. ⁴⁰

The disparity in tribunal decisions reflects and furthers the systemic exclusion of racialized foreign workers from the global South from the legal protections provided to other workers.

History of Worker Challenges to the WSIB Policy

For years, migrant workers and their supporters met with WSIB management and senior officials to press for change to its denial of return to work and loss of earnings support to injured migrant workers. Eventually, sustained pressure by migrant workers through protests and campaigns—combined with legal challenges by workers with the support of advocacy groups—started to move the needle.

Role of Community Legal Clinics

IAVGO Community Legal Clinic, a specialty legal clinic founded in 1975 to represent injured workers in their claims for fair compensation and funded by Legal Aid Ontario, started to work alongside migrant workers in 2006 after its staff visited farms and malls to speak with migrant farm workers alongside grassroots organizers and activists from Justicia for Migrant Workers. Community legal worker Airissa Gemma recalls her first meetings with workers at the bunkhouses where they lived, “I was in shock, it was so dirty and cramped.” She also could not believe the WSIB's policy to refuse to pay any long-term benefits, stating in 2018 of one client, “He was a long-term worker. As a migrant worker, he’d been coming here for years. And it was just despicable the way that he was treated in terms of [being told], ‘Go back home and fend for yourself’.” ⁴¹

When IAVGO first learned of this WSIB's “deeming” practice in 2006, staff wrote to the Chair of the WSIB, explaining that the WSIB needed to undertake a comprehensive review of its treatment of the claims of migrant agricultural workers. Though the WSIB did engage in consultations with workers and legal clinics, its “deeming” practice continued unabated for almost 20 years. The intractable nature of the policy reflects the systemic disregard of racialized workers from the global South. In the words of long-term worker advocate Alec Farquhar, the WSIB's approach typifies “the classic case of the disposable racialized worker—valued for (their) willingness to do tough jobs that most Canadians refused to do, and then abandoned to poverty when injured.”

Increasing Recognition of the Precarious and Vulnerable Status of Migrant Farm Workers

In recent decades, a growing body of research and literature has begun to expose how the structures of the SAWP create a uniquely vulnerable group of people who live and work in Canada—but are excluded from Canadian society and face increased dangers in the workplace with little access to rights and health and safety protections.^{1,4,5,10,13,16}

Utilizing this research and evidence base, as well as increasing public awareness of the situation of migrant farm workers, ⁴² workers started to bring legal challenges to assert their health and safety,^43,44 employment,^45,46 statutory,^47,48 and human rights.^49–51 These legal challenges created a body of law in Canada acknowledging the “uniquely vulnerable” status of foreign agricultural laborers and the increased dangers they face in the workplace.

Increasing Legal Pressure

In 2017, Michael Campbell, an injured migrant worker from Jamaica who, after suffering a life-changing back injury, was “deemed” able to work as a cashier in Ontario and denied loss of earnings or return to work support, was the first to successfully argue at the tribunal that the WSIB's policy was wrong. ⁵² His plight was covered in the media, including in the Toronto Star ⁵³ and the New York Times. ⁵⁴

The tribunal in Michael's case stated that the WSIB's policy “abrogates” the requirements of the legislation and that “apart from the fact that a job in the Ontario [labor] market is geographically located thousands of kilometers from the worker's residence, for administrative reasons, through no fault of his own, the worker does not have legal access to the Ontario [labor] market.” ⁵³

As Michael's representative Airissa Gemma of IAVGO said following his victory in 2017, “This decision supports protecting the rights of injured migrant workers and the tribunal should be commended. The WSIB needs to take immediate steps to change this cruel and unlawful policy.”

However, the WSIB refused to implement the tribunal's findings and change its policy. Instead, it tried to have Michael's decision reversed by asking the tribunal to reconsider its decision. The WSIB's attempt to have Michael's decision reversed was unsuccessful. The tribunal, however, determined that it would assign a new panel to address the legal issue again with the benefit of submissions by employers or the WSIB. ⁵⁵

After 2017, the WSIB continued to refuse migrant farm workers compensation or return to work support.

Successful Legal Challenge to the “Deeming” Policy

Four Workers Argue Together Before the Tribunal That the WSIB Is Wrong

On December 15, 2022, 4 migrant farm workers from Jamaica—all of whom had suffered life-changing permanent work injuries but received almost no compensation—argued that the WSIB's “deeming” policy was wrong. They won.

Injured workers, migrant injured workers, allies from Justicia for Migrant Workers, IAVGO, and other solidarity groups gathered in the days leading up to the hearing to protest the WSIB's continuing refusal to acknowledge its obligations to Ontario's injured migrant workers. They explained that employers and businesses benefit from the labor of migrant workers and that—while migrant injured workers are made invisible and disposable—employers received $1.5 billion in rebates of their premiums. ⁵⁶

Over 50 injured workers and supporters attended the December 15, 2022 tribunal hearing in support of the 4 workers fighting against the WSIB policy. This was remarkable because tribunal hearings were not open to the public, and the tribunal allowed the observers to attend because of the significance of the legal issue being decided. ⁵⁷

As Belia Berrocal, an IAVGO community legal worker observed:

The workers in this batch appeal are people of color, immigrants, low income, and with some language barriers, many of these disadvantages have been part of my life experience. Therefore, it is especially gratifying to see the successful outcome and the workers’ empowerment having brought some light to the low-income, people of color, and immigrant communities fight for fairness and equity in their overwhelming issues … the active support from the community partners in this appeal was beneficial for all because partners got some inside knowledge of workers issues and workers felt the partners’ solidarity at the hearings.

The Evidence About the SAWP Program Showed That Workers With Disabilities Can’t Qualify to Return to Work in Ontario

Evidence before the tribunal in the 4 workers’ appeals showed that migrant farm workers are made more vulnerable to health and safety risks because of the structures of the farm work programs that bring them to Canada, and that, once injured, most struggle to access health care and workers’ compensation and are unable to return to work in Ontario. ⁵⁸

The tribunal admitted expert evidence from Drs Janet McLaughlin and Tanya Basok about the ways in which migrant worker programs create systems of precarity for workers. These systems of precarity relate to the following:

Their tied work permits and temporary status in Canada mean that SAWP workers live and work under precarious and contingent circumstances.

SAWP workers are exposed to physical and psychological risks in Canada.

Most workers reported minimal knowledge of occupational risks and health and safety-related information or training.

The structural conditions of the SAWP foster mistreatment and exploitation of workers. Jamaican workers report experiencing unsafe and/or abusive work environments, exploitative scheduling, and inadequate housing, and because they live under the constant threat of repatriation, they feel unable to do much about these factors.

Many migrant workers do not report health concerns/issues for fear of immediate repatriation to their home country, and when they do report it, it is not quickly addressed.

Workers who become ill or injured in Ontario and wish to independently access health care encounter numerous practical barriers.

Injured SAWP workers face challenges accessing health care when they return home.

In addition, the workers gathered through freedom of information requests the Memoranda of Agreement between the government of Canada and the governments of Jamaica and Mexico setting out the terms requiring sending countries to vet workers as being physically able to perform farm labor. These Memoranda of Agreement prove that injured and disabled workers can’t return to work through the SAWP and so have their careers ended by workplace injury or disease.

• (1) Mexico

(2) Jamaica

(b) Will only select for the Program persons who are capable of performing agricultural work and who meet Canadian health requirements, will arrange a medical examination according to the November 1994 Medical Processing Guidelines, and will advise the worker to have available his/her own medical history.

The WSIB's Position

In submissions before the tribunal, and echoing earlier tribunal decisions on the issue, the WSIB argued that compensating workers in the SAWP for their actual losses would improperly require the workers’ compensation fund to remedy the negative impact of the “global economic disparity” at the center of the SAWP. The WSIB also argued that workers in the SAWP “choose to participate in the SAWP, and accept the conditions the agreement imposes” and “derive benefits from the program.” ⁵⁹

The 2023 Tribunal Victory

On September 15, 2023, the tribunal rejected the WSIB's position and decided that the 4 workers must receive compensation based on their actual postinjury and postrepatriation circumstances.

Accepting evidence that the 4 workers were unable to return to work in Ontario once injured, the tribunal decided that the WSIB was legally required to provide the 4 workers compensation and return to work support based on their abilities to work in the labor markets available to them in Jamaica. The panel declared that the WSIB's “deeming” policy toward migrant farm workers ran contrary to the requirements of the Workplace Safety and Insurance Act, 1997:

Migrant agricultural workers are entitled to retraining assessments and services tailored to their actual labor market prospects.

There is no legal basis to curtail earnings benefits for injured SAWP workers; instead, the law requires an evaluation of each worker's actual circumstances.

The WSIB's assertion that income losses of migrant agricultural workers were solely due to “global economic disparities” was wrong and overlooked the direct impact of workplace injuries on wage loss—especially since their injuries prevented the 4 workers from returning to SAWP employment.

The panel rejected the WSIB's contention that limitations on benefits and return to work services were justified because workers choose to participate in the SAWP—this argument was both irrelevant, in the panel's view, and countered by “volumes of evidence” showing that the balance of power in the SAWP employment relationship tilts against foreign agricultural workers. The panel concurred with the workers’ assertion that compensating foreign workers was an integral part of the workers’ compensation regime in Ontario from its inception.

In what appears to be the tribunal's first analysis of its ability to take judicial notice of racism, the panel also decided that it may take notice of anti-Black racism and other forms of discrimination when weighing evidence and interpreting the statute.

Further, the panel accepted the extensive evidence that the structures of the SAWP “create a precarious employment status for SAWP workers and impact their ability to access health care both in Ontario and in the home country.” ⁵⁹

WSIB Policy Changes Based on This Migrant Farm Worker Victory

Changes for Some Injured Migrant Farm Workers

On May 15, 2024, the WSIB announced that, effective immediately, it will adjudicate SAWP workers’ benefits and right to return to work support based on the reality of their home labor markets. Its President and CEO stated that its deeming policy toward migrant workers was “not fair” and “just wrong.” The WSIB also committed that it would reconsider the decisions it had made in some 50 migrant worker claims dating back to 2007.^59,60

Because of the victory these 4 workers achieved, some injured migrant farm workers will receive long-term income support after devastating workplace injury. They may also get help to return to work in lighter jobs in their home countries.

Significant Ongoing Unfairness

Unfortunately, the WSIB has left many unresolved issues for migrant farm workers—in reality, many or most injured Ontario migrant workers may remain shut out of WSIB financial and return to work support.

Based on information as provided to IAVGO as of the date of this writing, for instance:

WSIB is only changing its practices for migrant workers in the SAWP but not other similar programs, like the temporary foreign worker program—agricultural stream, that also result in workers being repatriated home with injuries that prevent them from working. The WSIB will continue to “deem” non-SAWP injured migrant workers based on Ontario wages.

WSIB is only changing its practices for workers with an accepted permanent injury. This means that:

○ Workers who don’t yet have a permanent impairment award (which can be recognized a few months or many years after injury) won’t receive loss of earnings benefits or return to work support.

○ Workers who never had their permanent injuries accepted—a common problem because repatriated workers often can’t access ongoing health care to prove their ongoing injuries—will not have their benefits reinstated.

○ Workers whose injuries healed but who faced months or years of lost wages while injured, will not be made whole.

WSIB is refusing to review cases where workers were injured before 2007.

As IAVGO community legal worker Jessica Ponting explains of the injustices the WSIB is continuing to perpetuate:

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.

In addition, workers have received no indication from other Canadian provinces’ workers’ compensation boards if they will follow Ontario's lead in starting to rectify historical injustices against injured migrant farm workers.

Implications for Other Precarious Workers Who Lack Labor Mobility

With continued worker pressure through organizing and legal efforts, the workers’ victory in this case may set the stage for changes not only for workers who are injured in the SAWP, but also for other precariously employed workers in Canada whose restricted labor mobility renders them unable to return to work once injured.

While the tribunal's decision only addressed the rights of migrant farm workers to workers’ compensation, it may assist in the expansion of workers’ compensation entitlements for other injured migrant workers lacking labor mobility, such as nonseasonal agricultural workers, domestic workers, food chain workers, workers in hotels and services, and workers who have precarious immigration status (including nonstatus workers) but who did not come to Canada through a formal migrant worker program—or those who did come through a migrant worker program and then fell out of status. ¹⁹

Just like workers injured while participating in the SAWP, these groups of precarious workers face barriers to employment that have been disregarded by the WSIB when assessing their ability to return to work after injury.^61,62 They too are told that their inability to work after injury is the fault of their immigration status and not their injuries. These barriers, which arise out of employers’ needs for low-cost and reliable labor, should not stop injured workers from receiving fair compensation and return to work support. If governments and employers are planning to continue to rely upon precarious, temporary labor, they can expect ongoing resistance to xenophobic practices that systematically exclude workers—and even, like the WSIB's “deeming” policy, that invent by policy or practice restrictions on entitlement that abrogate the minimum rights and entitlements owing to workers under the law.

Conclusions: Solidarity and Change

For Ontario advocates and supporters who have witnessed the seemingly continuous degradation of support to workers when they are injured and exploited at work, migrant workers’ victory over the intractable and racist policies of the WSIB is an inspiration. As organizer Sang-Hun Mun reflects, “My experience of organizing with injured migrant workers has been incredibly inspiring and empowering. Despite facing trauma and poverty every day, they persistently fight for their rights and build solidarity with other injured workers in Canada and migrant workers from different countries.”

Supplemental Material

sj-pdf-1-new-10.1177_10482911241311200 - Supplemental material for From Worker Victory to Policy Reform: Injured Migrant Workers Fight for Return to Work Justice in Workers’ Compensation in Ontario, Canada

Supplemental material, sj-pdf-1-new-10.1177_10482911241311200 for From Worker Victory to Policy Reform: Injured Migrant Workers Fight for Return to Work Justice in Workers’ Compensation in Ontario, Canada by Maryth Yachnin in NEW SOLUTIONS: A Journal of Environmental and Occupational Health Policy