Migrant Workers Win Right to Emergency Medical Coverage

The Seasonal Agricultural Workers Program (SAWP) was first established in 1966, but came under national scrutiny during the SCC labour decision in Fraser v. Ontario. The migrant workers under this program, primarily brought to Ontario from Mexico and the Caribbean, have won another small victory in a recent Health Services Appeal and Review Board (HSARB) of Ontario decision.

Kenroy Williams and Denville Clarke were under contract under the program with Chardy Produce Ltd. until Dec. 15, 2012. Within days of starting their jobs the two workers from Jamaica were in a serious motor vehicle accident on August 9, 2012 while being driven by the employer to their farm. One other passenger was killed, Williams experienced a mild traumatic brain injury (TMI) after the collision, and both suffered injuries to their necks and back.

Their injuries were sustained until after their contract had terminated, and the employer wanted to return them to their country of origin. The two men were successful in extending their stay in Canada as visitors through an extension with Citizenship and Immigration Canada in order to receive WSIB-sponsored treatment.The workers’ Ontario Health Insurance Plan (OHIP) health coverage, provided by the province under the Health Insurance Act, was terminated on the last day of their contract. Brad Murphy, the Program Manager for the OHIP Eligibility Programs, informed the two men,

A visitor permit is not an OHIP-eligible immigration document…

There is no authority in the regulation to allow the minister or any other person to use discretion to provide health insurance coverage to an individual who does not meet the definition of a resident. As [the Appellant] does not hold an OHIP-eligible status, his health insurance coverage cannot be renewed at this time.

This position appears to have been based on s. 1.5 of Reg 552, which provides the conditions for which a person is defined as a resident under the Act. The men argued that SAWP workers were exempt from s. 1.5, and instead should be defined as residents under s. 1.3(2), which explicitly mentions an exemption for SAWP workers under s. 1.3(2)4. Since their contract had expired the men were no longer SAWP workers under the Act and did not meet the exemption, and therefore were ineligible visitors.

The HSARB decision on Aug. 16, 2013 took guidance from the employment agreement between the farm and the workers, which stated:

The EMPLOYER will employ the WORKER assigned to him by the GOVERNMENT AGENT as approved by HUMAN RESOURCES AND SKILLS DEVELOPMENT CANADA (HRSDC), clearance order and the WORKER will serve the EMPLOYER at the place of employment subject to the terms and conditions herein mentioned provided, however, that such period of seasonal employment be not longer than eight (8) months nor less than 240 hours in a time of six (6) weeks or less unless HRSDC has agreed that an emergency situation exists, in which case the PARTIES agree that the minimum period of employment shall be not less than a term of 160 hours. The EMPLOYER shall respect the duration of the employment agreement signed with the WORKER(S) and their return to the country of origin by no later than December 15th with the exception of extraordinary circumstances (e.g. medical emergencies).
[emphasis added]

HSARB recognized that the agreement did contemplate emergency medical circumstances, and acknowledged that there might be other situations where workers could lose their residency status.

The recent ruling released this week was based on a reconsideration request  by the province and was also rejected:

…the previous decision is supported by the evidence that was before the panel and the panel addressed the legal issues raised by the Respondent. This panel is not persuaded that the previous decision should be varied.

A request for a stay while this reconsideration was pending was also rejected.

The analysis of the Aug. 16 decision seems to suggest that if these agreements did not contain such clauses then they could potentially be excluded from receiving emergency medical coverage. These employment agreements are standard form and offered by Employment and Social Development Canada. The agreements do not appear to be the result of bargaining between the farms and the workers or their associations, and the ability to engage in collective bargaining under the Agricultural Employees Protection Act is limited by the holding in Fraser.

If these employment agreements are modified, and HSARB subsequently finds the modified wording does affect residency status in emergency medical situations, this victory by Williams and Clarke may be short-lived for other migrant workers in the future.