Document Details

2013-11-21

Vincent Donovan

Toronto Star

Canada’s Federal Court of Appeal has ordered new hearings for 102 migrant workers who had their Employment Insurance parental benefits claims turned down.
Ottawa had argued the workers took too long to apply and didn’t show good cause for the delay.
But citing “unique disadvantages’’ of migrant workers “in particular,’’ such as lack of knowledge in English or French, lack of access to telephones or computers, social isolation, long and hard work schedules with little free time, and ineligibility for many social benefits, the court ruled Tuesday that the Office of the Umpire must re-hear each of the 102 cases, keeping these vulnerabilities in mind.
The work of the office, responsible for hearings and appeals under the federal Employment Insurance Act, is being taken over by the new Social Security Tribunal.

“The Federal Court did make a very important statement about the need to consider the vulnerabilities of these workers. That’s different and that gives them a better chance of accessing the benefits these workers have paid for,’’ Jackie Esmonde, co-counsel for the applicants and a lawyer at the Income Security Advocacy Centre said in an interview Thursday.
The migrant workers were also represented by Niagara North Community Legal Assistance.
Workers from the Caribbean and Mexico have been coming to Canada under the federal Seasonal Agricultural Workers Program (SAWP) since 1966.
Most have been ineligible for regular EI benefits, because they return home in the off-season and are therefore not ready and available for work in this country during that time.
But until Ottawa changed the rules late last year, the workers were eligible for up to 35 weeks of EI “special benefits’’ covering maternity, parental and compassionate leave -- because there was no residency requirement at the time.
Advocacy groups for migrant workers began spreading the word about this fact in 2002, and helped workers apply.
But in 2008, Ottawa started denying backdated claims.
The lead claimant in the case the Federal Court of Appeal ruled on this week was Genaro Cruz de Jesus, a Mexican national, who applied to the Employment Insurance Commission in July 2009, for parental benefits for a child born Sept. 22, 2008. He sought to have his claim backdated to Nov. 20, 2008.
The commission refused to backdate his claim, arguing his approximate eight-month delay in claiming parental benefits was excessive and he had not established good cause for the delay, this week’s Federal Court of Appeal decision reads.
Cruz de Jesus appealed this decision to a board of referees, a federal body. The board allowed the appeal in Nov. 2009, stating he took steps a reasonable person in his situation would have to clarify the entitlement to parental benefits.
This same issue was raised in 101 other appeals by SAWP workers, to other boards of referees.
A series of further decisions followed, leading to an April 13, 2012 decision by an umpire who reversed the earlier board’s decision that allowed Cruz de Jesus’ appeal. In addition, the umpire’s ruling was applied to the other 101 claimants.
All 102 brought their cases to the Federal Court of Appeal, resulting in this week’s ruling, which said the umpire’s ruling must be set aside for an “error in law.’’
“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 work, and other conditions of the SAWP claimants on their ability to access information about their benefits,” the court of appeal decision says.
“I’m happy with the decision, not just for myself but for migrant workers paying into this benefit, Glendon Sanchez, 37, one of the 102 claimants, said in telephone call from Trinidad Thursday.
No dates have been scheduled for the new hearings.
A spokesperson for Employment and Social Development Canada said Thursday the department is reviewing this week’s court decision.
This week’s ruling only helps migrant workers who applied for EI before Dec. 9 2012. Since then, migrant workers can only access parental, maternity and compassionate benefits during the period covered by their work permits.
With files from Laurie Monsebraaten

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• http://www.thestar.com/news/canada/2013/11/21/migrant_workers_win_court_decision_on_benefits.html

Agriculture and horticulture workers, General farm workers, and Harvesting labourers

Public awareness and NGOs/community groups/solidarity networks

Ontario and National relevance

Law

English