- Earnings basis (room and board)
- Procedure (alternative dispute resolution) (early intervention)
The worker was employed as a seasonal farm labourer in Ontario under the Seasonal Agricultural Workers Program. The worker received a 42% non-economic loss (NEL) award for multiple injuries to the head. The issue under appeal was whether the worker was entitled to a recalculation of his short-term and long-term earnings basis to include a reasonable value for employer-provided room and board up to the date of his accident.
This appeal was submitted through the Early Intervention Program. The Vice-Chair agreed with the proposed resolution to allow the appeal. OPM Document No. 18-02-02, "Determining Short-term Average Earnings," states that the value of room and board, which are part of the worker's earnings, is to be included in the calculation of short-term and long-term average earnings. Further, OPM Document No. 12-04-08, "Foreign Agricultural Workers," does not exclude room and board from a worker's earnings basis and states that room and board is to be included in calculating an employer's insurable earnings for foreign agricultural workers.WSIAT case law has also established that room and board provided by an employer to the worker form part of the remuneration package and that value for room and board should be included in both short and long-term earnings calculations (see Decision No. 166/07). While the WSIB's Adjudicative Advice document, "Coverage and Entitlement for Workers Hired under the Commonwealth Caribbean and Mexican Seasonal Agricultural Workers Program," suggests that room and board should be excluded when calculating the earnings of foreign agricultural workers, the Vice-Chair agreed with the reasoning of Decision No. 2055/11 that as this document conflicts with OPM Document No. 18-02-04, the WSIB policy is authoritative.