Farm work justice

Jamaican wins landmark case in Canada

Friday, October 06, 2017

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A Jamaican farm worker who suffered an on-the-job injury nine years ago in Canada was handed a major victory by a tribunal which ruled that a policy that cuts benefits to injured migrant farm workers was illegal.

In the landmark decision, which was handed down last week but made public yesterday, the Workplace Safety and Insurance Appeals Tribunal ordered the Workplace Safety and Insurance Board (WSIB) to compensate Michael Campbell based on the type of job that is available to him in Jamaica, and not on a job that is unavailable to him in Ontario.

According to the tribunal, the cuts to Campbell's loss-of-earning entitlement are an “abrogation” of the WSIB's legal obligations.

A news release yesterday from Campbell's attorney, Maryth Yachnin of IAVGO Community Legal Clinic, and Chris Ramsaroop, organiser at Justicia for Migrant Workers, explained that after Campbell injured his back in 2008 he had to return to Jamaica.

“His injury has caused him to lose his livelihood and his ability to work in Ontario. He and his family fell into poverty,” they said.

The advocates explained that, as a migrant worker, Campbell was tied to one employer, did not have any form of labour or social mobility, and did not have permanent immigration status in Canada.

However, after he was injured on a peach farm the WSIB determined that he was not entitled to loss-of-earnings benefit. The board subsequently decided that he could find a job as a cashier in Ontario, even though he was not academically qualified for that type of job, and his injury prevents him from returning to Canada under the Seasonal Agricultural Workers Programme.

“The WSIB's decision in Michael's case was based on its policy to end migrant workers' compensation as if they can live and work in Ontario, even though they cannot,” Campbell's representatives said in the news release. “The WSIB tells migrant workers, like Michael, that they can do at least a minimum wage job in Ontario and cuts their compensation as if they were doing that job, even though that work is not available to them.

“Michael didn't think this policy was fair. He fought for nine years to bring his case to the tribunal. Last week the tribunal agreed with him and said that the WSIB's policy was not fair and not legal,” the advocates added.

“What the WSIB does is unfair. WSIB needs to change its policy now so no one else has to go through what I went through,” the release quotes Campbell who lives in St Elizabeth.

Yesterday, the Toronto Star report on the case noted that, while the tribunal ruling is only binding in Campbell's case, it opens the door for other migrant workers, who appealed slashed benefits, to be compensated.

“This decision supports protecting the rights of injured migrant workers, and the tribunal should be commended,” the release quotes Airissa Gemma, community legal worker at IAVGO who also represented Campbell. “The WSIB needs to take immediate steps to change this cruel and unlawful policy.”

In his reaction, Ramsaroop said, “Countless injured migrant farm workers and their families have become impoverished and destitute from this WSIB policy. This decision proves what many have been advocating for years, and to no avail — their policy is unfair and that it has to stop.”

The Toronto Star reported that WSIB spokesperson Christine Arnott said the board will study the ruling.

“We are carefully reviewing the tribunal's comments and will look at what, if any, changes may be made to our policies and procedures to ensure we're achieving the right outcome for people,” the newspaper quoted Arnott as saying in an e-mail.

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