OHS Canada Magazine

Migrant workers denied EI benefits get new hearings

December 2, 2013

Transportation Farming Workers Compensation - Benefits Workplace Harassment/Discrimination

(Canadian OH&S News)

(Canadian OH&S News)

The Federal Court of Appeal has ordered new hearings for 102 migrant workers who were improperly denied Employment Insurance (EI) parental benefits.

In his Nov. 19 ruling, Judge John Evans set aside the 2012 decision from the Office of the Umpire, now the Social Security Tribunal and responsible for appeals under the Employment Insurance Act. The office had issued a single set of reasons for its refusal to antedate parental benefit claims for the 102 migrant workers.

Writing for the three-member court panel, Evans said that the umpire committed an “error of law” by failing to consider the facts pertaining to each claimant on a case-by-case basis and ordered this to be done.

The appeal court decision also struck down an earlier Employment Insurance Commission finding that lead applicant Genaro Cruz de Jesus’s eight-month delay in claiming parental benefits was excessive and that he had not established good cause for the delay. A subsequent decision from a board of referees found that Cruz de Jesus had good cause for the delay because he had taken the steps that a reasonable person in his situation would have taken to clarify his entitlement to parental benefits.


“In my opinion, when assessing the existence of good cause for delay, boards of referees had been correct in law to take into account the impact of the worker and other conditions of [Seasonal Agricultural Workers Program] claimants on their ability to access information about the benefits,” Evans wrote.

“The unique disadvantages in the Canadian labour market of agricultural workers as a whole, and migrant workers in particular, are well-known,” he continued. “These disadvantages commonly include: ineligibility for many social benefits, including most unemployment insurance benefits; exclusion from many statutory protections of workers (including representation by a union); low educational level, functional illiteracy and lack of knowledge of English or French; social isolation and lack of access to telephones, computers and urban centres; long and arduous working schedules with little free time; and fear of employer reprisal and deportation.”

The case dates back to July 2009, when Cruz de Jesus applied for parental benefits for his child born in September of 2008. Cruz de Jesus, who worked in Canada from April to November 2008 and had been a seasonal farm worker for 24 years, requested that his claim be antedated to commence in November of 2008, as he only learned of his entitlement shortly before making his application, the appeal court decision said.

The same issue was raised in 101 other appeals to boards of referees, who dismissed 18 of these appeals and allowed the others. Cruz de Jesus’s application for judicial review was filed as the lead application and consolidated with the remaining claims.

Foreign workers usually ineligible for EI benefits

Evans noted that as other employees do, migrant workers have EI contributions deducted from their paycheques, but unlike most employees, they are generally ineligible for benefits such as regular EI benefits because they leave Canada at the end of their seasonal employment. “Nonetheless, they are eligible for parental benefits, because eligibility for these benefits does not depend on a claimant’s availability for worker or presence in Canada,” he wrote.

Evans also pointed out that the availability of parental benefits to foreign workers was not widely known to employers and Cruz de Jesus was “severely hindered from finding out and understanding his rights and obligations regarding benefits.” Not only was he unable to read, write or comprehend English, but his employer did not explain his paycheque deductions.

Paul Meinema, president of the national council of the United Food and Commercial Workers union, said that he is pleased with the decision. “The unanimous ruling by the court reaffirms the tremendous obstacles that migrant workers face in Canada, and it clearly demonstrates the injustice that exists in the Employment Insurance system,” he said.

A spokesperson for Employment and Social Development Canada said that the government is currently reviewing the court decision.


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