Should seasonal farm workers in Canada be eligible to claim employment insurance benefits while in their home countries between agricultural jobs?
A new proposed class-action lawsuit is arguing that the way the federal government’s seasonal agricultural worker program is currently laid out deprives migrant workers of rights and benefits.
The lawsuit, filed by two migrant farm workers, says the most acute way in which visa restrictions affect migrant workers is employee insurance (EI) and that while temporary migrant agricultural workers pay EI premiums, like any worker in Canada would, they are not able to claim insurance benefits when they most need it – when they have left Canada in between seasonal farm work.
The statement of claim, which was filed in the Ontario Superior Court of Justice last month, estimates that going back the last 15 years, the federal government owes damages worth $500 million to migrant farm workers.
In addition to being required to leave Canada every year and re-enter during growing season, migrant agricultural workers are also tied to specific employers. A tied work permit means they cannot quit their job and work for another employer except under exceptional circumstances, such as abuse.
According to the claim, the tied work permits that are at the root of the matter were “motivated by overtly racist policy objectives.”
“It’s set up in such a way that the government reaps hundreds of millions of dollars in premiums from these workers and never has to pay any regular benefits to them. And so, the government has been unjustly enriched over the years to the tune of hundreds of millions of dollars,” said Shane Martinez, one of the lawyers representing the workers.
An Employment and Social Development Canada (ESDC) spokesperson told Global News that a worker needs to be on Canadian soil to be able to claim these benefits under the law.
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“Clients who otherwise do meet the qualifying and entitlement conditions are not usually eligible to receive EI regular benefits while outside of Canada, unless the reason for the absence falls within those prescribed in the Employment Insurance Regulations,” the spokesperson said.
Labour rights lawyer Malini Vijaykumar said in most seasonal industries, workers are able to stack up hours in the active months so that they can claim insurance benefits for when they are out of work.
“If people are working in seasonally sensitive industries like construction, they may have a ton of hours stacked up over the spring and summer, and then they actually have enough hours to launch a regular EI application, which then tide them over until the construction season starts again next year,” she said.
Some temporary foreign workers are also eligible to receive EI benefits as long as they meet the criteria, including a requirement to show that they are “ready, willing and able” to work in Canada each day and are actively looking for work.
However, this does not apply to migrant farm workers, who Martinez says are not able to stay in Canada outside of their work through the seasonal agricultural program.
Martinez said this is unfair and that “the government has designed the program in such a way that they can’t stay here even if they want to.”
“It’s simply unconscionable to have a situation where somebody is paying for a benefit and it’s impossible for them to collect it.”
The legal challenge to the rules rests on the argument that it violates sections 7 (right to life, liberty and security of person) and 15 (right to equality) of the Canadian Charter of Rights and Freedoms.
Vijaykumar said the plaintiffs would need to prove that the program has an “adverse effect” on the rights of migrant farm workers in order to win.
“If this is an additional burden that these workers have to face, then that’s potentially an adverse effect that these workers have to suffer, which is not suffered by domestic workers,” she said.
She said the challenge might lie in convincing the courts that this is something that lies within the scope of judicial power, rather than a political and legislative choice that is the government’s prerogative to make.
Chris Ramsaroop with Justice for Migrant Workers, which is supporting the case, said the situation must be addressed because the terms of the seasonal agricultural worker program effectively tie workers to the Canadian economy and make it difficult for them to find work in their countries of origin during the off-season.
One seasonal farm worker not involved in the case described the challenges of finding employment in his home country in between the seasonal farm work in Canada. Nigel Johnson, speaking to Global News from Trinidad and Tobago, said employers in the Caribbean nation aren’t looking for workers who are only available for a short period of time.
“Sometimes, they may they might need somebody for long term,” he said. “When we have a contract, a job, it’s just, like, a month or two.”
He said having access to the EI benefits would help with things like affording bills and groceries while in between seasonal farm work and if he cannot get work at home.
“That would do a lot for me,” he said.
“It’s fine if we come back to Canada and they have to cut it off, no problem. Because in Canada, we work. It’s not like I’m going to con the Canadian government for the employment insurance. But what I’m saying is that if we pay into it, that we should be able to access it with any kind of questions.”
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