Canadian Employment Law Today

May 28, 2014 | Canadian Employment Law Today Canadian HR Reporter, a Thomson Reuters business 2014 other plausible meaning that could be giv- en to the regulation. Second, the court ruled the triggering event for residency under the regulation was the possession of a work permit, and therefore it was implicit that such work permit had to be a valid one. e sugges- tion the province would have passed a regulation that contemplated its applica- tion based on an invalid work permit was "irrational." e court also rejected the foreign work- ers' contention that OHIP coverage only ceases when there is no longer a causal con- nection between their physical presence in Ontario and the SAWP. e court held that when a work permit issued pursuant to the SAWP expired, it can no longer be reason- ably said there remains a causal connection between the person's physical presence in Ontario and the SAWP, and the person's employment is legally at an end. If the person continues to remain in Ontario, it is not an outcome connected to the SAWP. e court held that, if the foreign workers' contention was correct, any person whose seasonal worker permit had expired could continue to be entitled to OHIP coverage essentially in perpetuity. at was an outcome the legislature could never have intended, said the court. e court found the board erred because it did not consider the plain wording of the regulation and whether there was any am- biguity. e board did not engage in any analysis of the scheme of the act or the reg- ulation, did not identify any policy consid- erations that directed the adoption of any particular interpretation of the regulation. Instead, the board considered only the SAWP agreement between the foreign workers and the employer and used one provision of that agreement to base its con- clusion that section 1.3(2) of the regulation covered the foreign workers' situation. e board also failed to note the province was not a party to the SAWP agreement and it cannot have its interests aff ected by an agreement to which it is not a party, nor should its legislative or regulatory enact- ments be interpreted based on such an agreement, especially ones that can create fi scal responsibilities and liabilities. Eligibility for OHIP ended with permits In the court's view, the plain wording of the regulation allowed for no other conclusion than the foreign workers ceased to be eli- gible for OHIP once their work permits ex- pired on Dec. 15, 2012. e board's conclusion to the contrary was not a decision that "falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law," as outlined in Dunsmuir v. New Brunswick. Further, the court held that, if there is a gap in the parameters of the SAWP that does not ensure health care coverage for seasonal workers who are required to remain in Ontario for legitimate medi- cal reasons after the expiration of their work permits, then that gap should be fi lled either by requiring the employers to obtain supplemental health insurance, or through an agreement negotiated between the federal and provincial governments. However, it cannot be fi lled by a contrived interpretation of an existing regulation. is decision has potential negative con- sequences for all foreign workers and stu- dents whose permits have expired. Further to the court's decision, all foreign workers and study permit holders who are normal- ly entitled to OHIP can have their cover- age terminated if their permits are not ex- tended. e expiry of those permits would mean they would cease to be residents in the province for health insurance purposes as they would no longer be entitled to re- main in the province legally. It is noteworthy that, despite the fact the foreign workers in this case obtained visi- tor status, that was not suffi cient to main- tain their OHIP coverage, as visitors are not entitled to it. Employers should also be concerned by the suggestion the gap in coverage should be fi lled by private health insurance provided by employers, as the province should not assume those liabili- ties. For more information see: • Ontario (General Manager, Ontario Health Insurance Plan) v. Clarke, 2014 CarswellOnt 4203 (Ont. Div. Ct.). • Mills v. Ontario (Workplace Safety & In- surance Appeals Tribunal), 2008 Carswell- Ont 184 (Ont. C.A.). • Dunsmuir v. New Brunswick, 2008 Car- swellNB 124 (S.C.C.). About the Author SERGIO R. KARAS Sergio R. Karas is a certifi ed specialist in Canadian Citizenship and Immigration Law by the Law Society of Upper Canada and principal of Karas Immigration Law in Toronto. He is past chair of the Ontario Bar Association Citizenship and Immigration Section, past chair of the International Bar Association Immigration and Nationality Committee, and Editor of the Global Business Immigration Handbook. He can be reached at (416) 506-1800 or karas@karas.ca. CREDIT: ANTONIO GRAVANTE/SHUTTERSTOCK.COM

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