Deeming and the Seasonal Agricultural Worker Program: Updates from Decision No. 1169/20I2

  • 02 mars 2023
  • Teresa Gianfelice

The Workplace Safety and Insurance Appeals Tribunal (WSIAT or Tribunal) recently released Decision No. 1169/20 I2.  In these batched appeals, the Tribunal is taking a leading case approach to the issue of how post injury earnings should be calculated for workers in the Seasonal Agricultural Worker Program (SAWP).  The Panel, led by the Tribunal’s Chair, is considering four appeals within this batch.  This interim decision dealt with a few preliminary issues, including the following:  

  • Should the Panel hear from an expert witness whose report was on record?
  • Should the Panel allow a large number of observers (about 50) to attend the scheduled appeal hearing?
  • Should the Panel invite the WSIB to participate as an amicus curiae?

This review provides a bit of background on the issues and focuses on the amicus analysis. 

Background

Many workers come to Ontario under the SAWP from the Caribbean and Mexico.  If these workers are injured, they are entitled to WSIB benefits.  However, if they cannot return to farm work because of their compensable injury, the WSIB will determine their post-injury earnings based on what they might be able to earn in the Ontario labour market even though they are not eligible to work in Ontario outside the agricultural sector.

In Decision No. 1169/20, several SAWP workers are challenging the WSIB’s practice of using the Ontario labour market to determine their post-injury earnings. These hearings have been bifurcated and currently WSIAT is considering the merits of the case and the argument that, based on the legislation and policy, the WSIB should be using the labour market in the workers’ home country (Jamaica in these four appeals). If the appeals don’t succeed on the merits, the worker representatives, all from the IAVGO legal clinic, will pursue a Charter challenge.

The accident employers are not involved and the Office of the Employer Advisor declined the invitation to intervene.  The only intervenor is the Office of the Worker Advisor.