- Reconsideration (error of law)
- Loss of earnings {LOE} (deemed earnings) (relocation) (out of province)
- Available employment (local labour market)
- Farming (foreign seasonal worker)
- Procedure (constitution of Panel)
The worker suffered a low back injury in August 2008, while working on a fruit farm. The worker was employed under the federal government's Seasonal Agricultural Worker Program (SAWP). The worker appealed a decision of the Appeals Resolution Officer finding that the worker was not entitled to LOE benefits after October 2008.
The Board identified an SO as a cashier and found that the worker was not entitled to further LOE benefits based on deemed earnings in the SO in Ontario. The worker had to return to his home country, as he was no longer able to work as an agricultural worker and, accordingly, no longer qualified for the SAWP.In Decision No. 1773/17, the hearing panel found that the SO of cashier was not appropriate for the worker. The worker was entitled to LOE benefits based on an SO that is suitable and available to the worker within the labour market of the worker's home country.The Board applied for reconsideration of Decision No. 1773/17. The Board accepted that the SO of casher was not appropriate for the worker. The reconsideration application was limited to the determination that available employment was employment available to the worker in the worker's home country.The Tribunal Chair found that, in this case, it was not necessary to determine whether Decision No. 1773/17 made a significant error in its interpretation of available to mean available in the worker's home country rather than available in Ontario. If the appeal were re-opened, it is likely that the worker would be found to be not capable of earning income in suitable and available employment in either Ontario or his home country. If the Board's interpretation were accepted that available employment is limited to the Ontario labour market, it would require an analysis of a community in Ontario similar to the worker's home community, that is, a small rural community. This is consistent with the Board's adjudicative advice document, which provides that the Board has regard to SOs available in the local Ontario labour market where the worker was employed at the time of the accident. In this case, the worker was injured on a peach farm in a rural location in Ontario. Considering the worker's age, transferable skills, results of psycho-vocational testing and the nature of the injury, the Chair did not think it probable that the worker would be found capable of earning income in suitable and available employment in the local labour market in Ontario or in the worker's home country.The application to reconsider was denied.The Chair noted that Decision No. 1773/17 did not have the benefit of submissions from the accident employer or the Board. The Chair also noted that there is another line of Tribunal decisions finding that the analysis of whether suitable work was available is limited to Ontario.There is another case at the Tribunal where the worker was employed under the SAWP, with similar issues. Given the divergence in approach taken by the Tribunal with respect to these issues, the Chair considered it appropriate to appoint a panel of five members to hear and decide that appeal.