Highlights of Noteworthy Decisions

Decision 1773 17
27/09/2017
M. Crystal - S. Sahay - K. Hoskin
  • Suitable employment
  • Loss of earnings {LOE} (deemed earnings) (relocation) (out of province)
  • Available employment (local labour market)
  • Farming (foreign seasonal worker)

The worker suffered a low back injury in August 2008, while working on a fruit farm. The worker was employed under the federal government's Seasonal Agricultural Worker Program (SAWP). The worker appealed a decision of the Appeals Resolution Officer finding that the worker was not entitled to LOE benefits after October 2008.

The Board identified an SO as a cashier and found that the worker was not entitled to further LOE benefits based on deemed earnings in the SO in Ontario. The worker had to return to his home country, as he was no longer able to work as an agricultural worker and, accordingly, no longer qualified for the SAWP.
The Panel found that the SO of cashier was not appropriate for the worker, as he did not have the basic numeracy that is essential for a person to perform such a job.
Section 43(2) of the WSIA refers to earnings that a worker is able to earn in suitable and available employment. Since the SO of cashier was not suitable for the worker, it was not necessary to determine whether it was available.
Section 43(4) requires the Board to determine earnings after the injury based on earnings the worker is able to earn from the employment or business that is suitable and available. Thus, it is necessary to identify an SO that meets both of these criteria. Board Operational Policy Manual, Document No. 19-03-03, also elaborates on the meaning of the term. Availability of an SO is first addressed in the local labour market, then expanded to the surrounding area and finally to the broader labour market. Although the policy does not provide geographical limits to the broader labour market, the Panel was of the view that a reasonable limit must be implied. If the broader labour market were interpreted to mean anywhere in the world, the requirement that an SO be available to an injured worker would be rendered essentially meaningless.
The Board applied its adjudicative advice document on the seasonal agricultural workers program. It provides for determining a SEB based on the employment available for the worker in the local Ontario labour market. The Panel noted that the adjudicative advice document is not Board policy. To the extent that an adjudicative advice document is inconsistent with the Act, the Act prevails and the adjudicative advice document would not apply.
The Panel found that, in the circumstances of this case, the approach prescribed by the adjudicative advice document was inconsistent with the Act and Board policy.
The worker was repatriated to his home shortly after the accident. He was partially impaired and fit for modified work. The Ontario labour market is thousands of kilometres from the worker's residence. Further, the worker does not have legal access to the Ontario labour market. Therefore, work which must be performed in the Ontario labour market is not work that is available to the worker.
The worker was entitled to LOE benefits based on an SO that is suitable and available to the worker within the labour market of the worker's home country.
The appeal was allowed.