Canadian Employment Law Today

CASE IN POINT: Immigration 4 Canadian HR Reporter, a Thomson Reuters business 2014 Foreign workers denied medical coverage after status expires Coverage of foreign workers not meant to extend past end of work permits: Court BY SERGIO KARAS T wo foreign workers from Jamaica injured in an accident on the way to work are not entitled to medi- cal coverage after their work permits expire, the Ontario Divisional Court has ruled. Denville Clarke and Kenroy Williams ar- rived in Ontario in 2012 as participants in the Seasonal Agricultural Worker Program (SAWP), operated by the fed- eral government. e workers held work permits valid until Dec. 15, 2012, and worked for a company in Ontario. As part of their program, the workers signed an employment agreement with the employer, who was required to obtain insurance providing for compensation for the worker for personal injuries received or diseases contracted as a result of the employment — unless prevailing law al- ready did so. In addition, the employer was required to ensure that the workers obtained health coverage according to provincial regulations. e foreign work- ers were covered by insurance from the Worker's Safety and Insurance Board (WSIB) and health coverage by the On- tario Health Insurance Plan (OHIP). Accident in employer's vehicle injured foreign workers A few days after their arrival, the two workers were injured in a serious motor vehicle accident while being transported to work in their employer's van. e accident resulted in fatalities to other passengers. e workers received compensation benefi ts and medical care for their work-related injuries funded by the WSIB, but their medical treatment had to be extended beyond the date of expiry of their work permits. Faced with the prospect of being in Canada without status after the expiry of their work per- mits under the SAWP, the workers ap- plied for and were granted visitor status by Citizenship and Immigration Canada until February 2014. ey also applied for an extension of their OHIP coverage but were denied. ey appealed to the Health Services Appeal and Review Board, which determined the foreign workers were residents of Ontario and eligible for health insurance coverage, and were entitled to continue to receive medical services. However, the province appealed that decision. e issue on appeal was whether the foreign workers continued to qualify for OHIP coverage after the expiry of their work permits. e case turned on the in- terpretation of s. 1.3(2) of Regulation 522 under the Health Insurance Act, which prescribes that people who are present in Ontario because of a work permit under the SAWP are residents of the province, even if they do not meet any other quali- fying requirements. e legislative intent was to cover workers with valid work permits issued under the SAWP, so the question was whether the workers whose SAWP permits had expired continued to be covered by that section. e court discussed the appropri- ate standard of review and found it was agreed between the parties that such standard was one of reasonableness, as the board was interpreting a statute that is directly related to its core function. Further, the court relied on previous case law and held that where there is no real dispute on the facts and the tribunal need only determine whether an indi- vidual breached a provision of its con- stituent statute, the range of reasonable outcomes is much narrower. e province argued the foreign work- ers did not qualify as Ontario residents after the expiry of their work permits and the issue was not properly addressed by the board. Instead, the board had decided that, because the agreements signed by the foreign workers under the SAWP contemplated that, in certain cir- cumstance, persons in Canada under the program might not leave the country by the date stipulated in their work permits, they continued to be residents of On- tario. e board relied on the language in the contract that directed the foreign workers to return to their country of ori- gin at the expiry of their work permits with the exception of extraordinary cir- cumstances, including medical emergen- cies, and hastily concluded that the for- eign workers continued to be residents of Ontario and were entitled to continuing medical coverage. Coverage ends with work permit expiry In a unanimous ruling, the court dis- agreed. e court held the board's con- clusion was not reasonable in light of the plain wording in Regulation 522. e plain and ordinary meanings of the words used in s. 1.3(2) accords the status of residents to the foreign workers "because they have a work permit" under the SAWP. ere was no dispute the for- eign workers' permits expired on Dec. 15, 2012, and therefore they no longer had work permits. e court also rejected the foreign workers' contention that the work permits did not need to be valid in order to qualify as residents of Ontario. e court held that such conclusion was neither reasonable nor sensible, based on two main reasons. First, as a matter of basic statutory interpretation, there was nothing in the plain and ordinary meaning of the words used in the regulation that contemplat- ed its application beyond the situation where a worker is present in Ontario under the terms of the SAWP. e court held it was clear such plain and ordinary meaning of the words meant that cover- age was provided for people who were present in Ontario because they have a work permit under the program. e regulation expressly used the pres- ent tense, not the past tense. e court held the simple fact was there was no A RECENT decision of an Ontario Divisional Court panel concerning the entitlement of foreign workers to medical coverage under the Ontario Health Insurance Plan has potential far-reaching consequences and may result in the denial of medical benefi ts for thousands of foreign workers and students in Canada whose status has expired or changed. Immigration lawyer Sergio Karas discusses the case and its potential effects on foreign workers across Canada who may have work-related medical issues. BACKGROUND

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