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The WSIB pays workers 85 per cent of their salary if they are hurt on the job and unable to return to that role, but claws back money that is earned from other work.

WSIB president Jeff Lang says that is unfair for seasonal agricultural workers who return home after injury because they usually earn far less in their countries than if they worked the same job in Ontario full time.

Lang says he is sorry for what he called the province’s unfair treatment of those migrant workers.

He says the WSIB is reviewing 50 claims dating back to 2007 and will likely be paying out millions in retroactive compensation.

“These are some of the most vulnerable people, they came to work in Ontario, they got hurt, they got sent back to their home countries, and they got dinged for not being from Ontario,” Lang told The Canadian Press.

“And quite frankly, that’s just wrong, so we’re going to make it right.”

Years ago, four injured migrant workers in similar situations went to the Workplace Safety and Insurance Appeals Tribunal to argue for better compensation.

Last September, the tribunal ruled that the WSIB was wrong to assume seasonal migrant workers were eligible for a maximum of 12 weeks of income-loss compensation through the Seasonal Agricultural Worker Program if they had been injured.

It noted that the loss-of-earnings provisions of the Workplace Safety and Insurance Act assumed that after three months, all workers could return to work either in Ontario or their home country, without taking into account workers’ actual circumstances, such as whether they had recovered from their injury, were capable of working or finding a job.

The tribunal ruled that was not appropriate.

“The panel concludes: The long-term (loss of earnings) benefits for migrant agricultural workers ought to be based upon their ability to earn in their actual local/regional labour market,” it wrote.

The tribunal’s decision didn’t spark change at the WSIB as it had already decided to review its interpretation of the legislation, Lang said, but it convinced the organization it was on the right path to fix the problem.

“If you’re injured while working in Ontario or become ill, you are going to be treated equally, you’re going to be treated with dignity, you’re going to be treated with respect, you’re going to be treated with compassion,” Lang said.

But Chris Ramsaroop, an organizer with the Justice For Migrant Workers advocacy group, said the new changes are not being applied equally.

Foreign workers brought to Canada under a different temporary foreign worker program, known as the agricultural stream, are not included in the changes, he said.

“The same forms of discrimination that we’ve been arguing for 20 years will continue for that particular group of people,” Ramsaroop said. “It is not inclusive and thousands of workers will be excluded from this.”

The changes were not sparked out of the goodness of the WSIB, said Maryth Yachnin, a lawyer with community legal clinic Industrial Accident Victims Group of Ontario, or IAVGO, who was counsel on the tribunal case.

“My co-workers have been fighting for these kinds of basic elements of fairness in their WSIB claims for decades now and these changes are being made on the back of a significant decision of the Workplace Safety and Insurance Appeals Tribunal that found that the WSIB practice was wrong on the law,” Yachnin said.

Both Ramsaroop and Yachnin also took issue with the WSIB only reviewing cases from 2007 to present.

“The board has been treating injured migrant workers differently and unfairly in terms of their compensation for many decades and we don’t think the 2007 cutoff is reasoned or fair,” Yachnin said.

This report by The Canadian Press was first published May 15, 2024.