Decision Nº Released_Decisions from Workplace Safety and Insurance Appeals Tribunal of Ontario, 15-09-2023

• Judge: R. McCutcheon: Chair D. Thomson: Member Representative of Employers M. Tzaferis: Member Representative of Workers
• Judgment Date: 15 September 2023
• Neutral Citation: 2023 ONWSIAT 1420 DECISION(S) UNDER APPEAL: Workplace Safety and Insurance Board (WSIB) Appeals Resolution Officer (ARO) F. Bruno dated July 19, 2016 APPEARANCES: Lead counsel for the workers: Maryth Yachnin, Lawyer, IAVGO Community Legal Clinic For the worker in this appeal: Dora Chan, Lawyer, IAVGO Community Legal Clinic Troy Klassen, Law Student, Advocates for Injured Workers For the employer: Tribunal counsel: Ana Rodriguez Garcia, Lawyer For the intervenor: Teresa Gianfelice, Lawyer, Office of the Worker Adviser For the WSIB as amicus curiae: Allison Brar and Eric Kupka, Lawyers (via written submissions) Interpreter: Sandra Whiting, Jamaican Patois TABLE OF CONTENTS: WSIAT Leading Case Strategy in four appeals by Seasonal Agricultural Workers injured in the course of their employment in Ontario REASONS Part 1: The Leading Case Strategy and the Panel’s decision (a) Introduction to the appeal process (b) Leading case strategy: issues and decision overview Part 2: Analysis of text, context, and purpose: statutory interpretation of sections 42 and 43 of the WSIA to determine the scope of entitlement to LOE benefits and LMR services for injured migrant agricultural workers (a) Principles of statutory interpretation (b) Context: History and distinguishing features of workers’ compensation / workplace safety and insurance legislation (c) Text: entitlement to LOE benefits and LMR assessments and services (1) What is a loss of earnings “as a result of” the injury? (2) “Determine” vs. “deem” (3) What is “available” employment? (4) Tribunal case law interpretations in similar circumstances (d) Context: the Seasonal Agricultural Worker Program (SAWP) (e) Context: Board policies (1) The Foreign Agricultural Workers Policy: OPM Document No. 12‑04-08 (2) LOE and LMR Policies (3) Leaving the Province Policy: OPM Document No. 15-06-07 (4) Post-Accident Change Policy: OPM Document No. 15‑06-08 (f) The application of the WSIA as a provincial statute to SAWP workers who enter Canada pursuant to international agreements (g) Statutory purposes and scope (1) Is the limitation of LOE benefits and LMR services to SAWP workers justified by the principle of financial responsibility and accountability? (2) Should migrant workers be limited to 12 weeks of long-term LOE benefits and excluded from LMR services due to practical constraints? (h) Secondary source: the SAWP Adjudicative Advice Document (i) Secondary sources: the Meredith Report and research related to the law and policy of other provinces (j) Do the circumstances of these appeals trigger a policy referral under section 126 of the WSIA? (k) Summary of the Panel’s conclusions on the leading case issues Part 3: Context for weighing the evidence: systemic racism and the precarious employment status of SAWP workers (a) Systemic racism (b) The vulnerable and precarious employment status of SAWP workers Part 4: Assessment of the issues in this appeal (a) Background facts (b) Law and policy (1) Relevant statutory provisions (2) Policies and Board documents on Maximum Medical Recovery (MMR) (3) Policies applicable to foreign agricultural workers (c) Analysis (1) Testimonial evidence (2) The worker’s testimony (3) Testimony of the worker’s former supervisor, P.W. (4) Testimony of the worker’s spouse, D.S. (5) Summary of the testimonial evidence (6) Medical evidence (7) Relevant case law (8) Summary DISPOSITION REASONS Part 1: The Leading Case Strategy and the Panel’s decision Introduction to the appeal process The Panel heard this appeal together with three other appeals[1] because they raise similar issues with respect to benefits received by workers who are injured while employed in Ontario through the Seasonal Agricultural Worker Program (also referred to as the “SAWP” or “farm work program”). The hearing of the four appeals was coordinated in order to adopt a leading case approach to the issues.[2] The four appellants are workers who were injured in Ontario during their employment under the SAWP.[3] The injured workers currently reside in Jamaica and they testified and participated in the hearings by videoconference. The primary issues in these appeals relate to their entitlement to long-term loss of earnings (“LOE”) benefits and labour market re‑entry services under sections 42 and 43 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (the “WSIA”). The Panel has addressed procedural and preliminary issues in previous interim decisions.[4] The appellants challenge the practice of the Workplace Safety and Insurance Board (the “Board” or “WSIB”) to deem workers injured in the SAWP to be capable of earning income in employment in Ontario and to limit their long-term entitlement to loss of earnings benefits to 12 weeks or less. The appellants take the position that migrant agricultural workers injured in the course of their employment in Ontario and repatriated to their home countries after an injury ought to be granted LOE benefits and labour market re-entry services, based upon their actual local labour market where they live. The appellants submit that, under the WSIA, they are entitled to LOE benefits based upon the amount they are able to earn in suitable and available employment in Jamaica. They further submit that the cashier, customer service and/or parking lot attendant jobs in Ontario upon which their benefits are based are not “available” to them because they live in Jamaica. They submit that, because of their workplace injuries, they cannot return to work in Ontario through the SAWP and have no way to earn income in Ontario’s labour market; therefore, they argue, their benefits should not be reduced based upon deemed earnings in Ontario. In the event that the appeals are unsuccessful under the applicable legislation and policy, the workers’ representatives expressed their intention to challenge the WSIB’s Adjudicative Advice Document titled: “Coverage and entitlement for workers hired under the Commonwealth Caribbean and Mexican Seasonal Agricultural Workers Program” (the “SAWP Adjudicative Advice Document”) on the basis that it violates the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule B to the Canada Act, 1982 (U.K.) 1982, c. 11 (the “Charter”) and the Ontario Human Rights Code, R.S.O. 1990, c. H.19. The WSIB participated in the proceedings as amicus curiae and filed written submissions. The WSIB takes the position that the LOE benefits for migrant agricultural workers ought to be deemed based upon their potential earnings in Ontario, where they were injured, in accordance with the SAWP Adjudicative Advice Document. They submit that the WSIB does not provide labour market re-entry services to SAWP workers after repatriation because it is too costly and/or impractical. They further submit that the WSIA is Ontario legislation and it was not intended to take into account labour markets outside of Ontario. Tribunal counsel takes a neutral role in appeals and in this case, Tribunal counsel made submissions on several procedural issues during the hearing process. Tribunal counsel also assisted the Panel and the parties by providing documentation on legislation and policy approaches taken to the benefits of SAWP workers in other provinces. The Office of the Worker Adviser (“OWA”) accepted the Tribunal’s invitation to participate as an intervenor and made submissions. The Office of the Employer Adviser (“OEA”) declined the invitation to participate as an intervenor and the respondent employers in each case chose not to participate in the appeals. The employer in one of the appeals did file a written submission dated October 13, 2021, and the documentary record included references to written or oral statements made by the respective employers in each case. The Panel acknowledges the professionalism of all of the representatives who made submissions in these appeals. We also acknowledge the patience of the appellant workers during this multi-stage leading case process. Leading case strategy: issues and decision overview The four appellants are migrant agricultural workers who were injured in Ontario during the course of their employment under the SAWP. The nature of their injuries precludes them from returning to work in Ontario under the SAWP. The main issue to decide is the application of the SAWP Adjudicative Advice Document, which limits the long-term benefits for permanently injured SAWP workers to 12 weeks of LOE benefits and deems them to be able to work in the Ontario labour market. Given that their pre‑accident earnings in SAWP employment would generally be at the Ontario minimum wage, the application of the SAWP Adjudicative Advice Document effectively results in the termination of long-term LOE benefits after 12 weeks for many injured migrant agricultural workers. The sub-issues to consider are as follows: How should the loss of earnings benefits of migrant agricultural workers be calculated under section 43 of the WSIA? Is their entitlement properly limited to 12 weeks of long-term LOE benefits regardless of the extent of their injury and the actual circumstances of their labour market? Are migrant agricultural workers entitled to labour market re-entry (LMR) assessments and services under section 42 of the WSIA? For the reasons set out in this decision, the Panel concludes: The long-term LOE benefits for migrant agricultural workers ought to be based upon their ability to earn in their actual local/regional labour market. It is not appropriate to limit their entitlement to long-term LOE benefits to 12 weeks in every case without regard for their individual circumstances. Migrant agricultural workers are entitled to LMR assessments and services under section 42 of the WSIA in accordance with their actual labour market. It is therefore unnecessary to consider the challenges under the Charter and the Human Rights Code. As a starting point, there is no dispute that the WSIA applies to SAWP workers who are injured in the course of their employment in Ontario. This is codified in binding Board policy. The interpretation of sections 42 and 43 of the WSIA is central to these appeals. Section 42 provides that workers are entitled to a labour market re-entry assessment if it is unlikely that they will be able to return to work with their employer for various reasons. Section 43 of the WSIA applies to loss of earnings benefits, and establishes the following key principles: LOE benefits flow where the worker experiences a loss of earnings “as a result of the injury.” The Tribunal has interpreted this phrase to require a causal nexus between the workplace injury and the wage loss. The calculation of a worker’s LOE benefits is based upon 85% of the difference between their escalated pre-accident earnings and the amount that they are able to earn in suitable and available employment. The terms “suitable” and “available” are defined in binding Board policy. “Available” work means that the “employment must exist and be in demand in the labour market to the extent that the worker has a reasonable prospect of obtaining employment.”[5] “Suitable work” means post-injury work (including the worker’s pre-injury job) that is safe, productive, consistent with the worker’s functional abilities, and that, to the extent possible, restores the worker’s pre-injury earnings.[6] Upon consideration of the relevant text, context, and purpose of the WSIA, the Panel finds that there is no basis in the statute or binding policy to limit the LOE benefits of injured seasonal agricultural workers to 12 weeks of long-term LOE benefits without consideration of their actual circumstances, including their labour market in their home countries. Furthermore, we do not accept the WSIB’s submission that their wage loss is due solely to global economic disparities. The causal connection between a workplace injury and a loss of earnings is a factual determination. In each of the four cases, we find that the workplace injuries did make a significant contribution to the wage loss of these injured workers. We further find that there is no basis in the statute or binding policy to exclude SAWP workers, in every case, from entitlement to LMR services. In the analysis below, we review the text, context, and purpose of the WSIA and the Seasonal Agricultural Worker Program (SAWP), and we conclude that seasonal agricultural workers are entitled to benefits and services under sections 42 and 43 in a manner that takes into account their actual circumstances and their losses resulting from their injuries. Some earlier Tribunal decisions concluded that it was not intended that the WSIA would take into account the labour market of other jurisdictions; however, we decline to follow these decisions because they contain little analysis of the text, context or purpose of the WSIA. There are several circumstances in which the WSIB is required to and in fact does engage with other jurisdictions in the implementation of benefits. More recent decisions, including Decision No. 1773/17, 2017 ONWSIAT 2962, analyzed the issue in more detail and concluded that it is appropriate to consider a worker’s labour market outside of Ontario in determining entitlement to LMR services and LOE benefits. We agree with the approach adopted by the Panel in Decision No. 1773/17. The WSIB submits that the WSIA is a provincial statute and the relevant statutory provisions demonstrate that the WSIA does not authorize taking into account circumstances outside Ontario in the payment of benefits. The Panel finds that the WSIB’s submissions are not borne out by the language of the statute, the applicable policies, and the relevant context provided by the SAWP contracts and Memoranda of Understanding. The WSIB’s approach to long‑term LOE benefits and LMR services for SAWP workers is set out in the SAWP Adjudicative Advice Document, but not in any approved Board Policy. The SAWP Adjudicative Advice Document is not binding on the Tribunal pursuant to section 126 because it is not a Board policy.[7] The Panel declines to apply the limitations contained in the SAWP Adjudicative Advice Document because they are not supported by the text, context, and purpose of the WSIA. Many of the WSIB’s arguments in favour of its position focus on the practical difficulties and potential costs of offering LMR services and determining suitable and available employment given that the workers do not reside in Canada. The Panel sees these arguments as falling into two categories: The WSIB submits that it limits benefits and service to SAWP workers because section 1 of the WSIA states that the purpose of the Act is to accomplish the four enumerated objectives in a “financially responsible and accountable manner”; and In a broader sense, the WSIB generally submits that it is impractical to assess the loss of earnings and offer LMR services to injured migrant agricultural workers. While the Panel accepts that there is scope to consider financial implications and practical realities in the administration of the WSIA, in our view, such considerations do not override the ordinary and unambiguous meaning of the statutory text, context, and purposes of the WSIA and sections 42 and 43, more specifically. The appellants also presented evidence and arguments with respect to systemic anti‑Black racism and the precarious employment status of SAWP workers. As we will explain, the Panel finds that these factors provide relevant context for weighing the evidence in the individual appeals. Our reasons are structured as follows: Analysis of text, context, and purpose: statutory interpretation of sections 42 and 43 of the WSIA to determine the scope of entitlement to LOE benefits and LMR services for injured migrant agricultural workers; Context for weighing the evidence: systemic racism and the precarious employment status of SAWP workers; Weighing the evidence: evaluation of the individual facts and issues in each appeal. Part 2: Analysis of text, context, and purpose: statutory interpretation of sections 42 and 43 of the WSIA to determine the scope of entitlement to LOE benefits and LMR services for injured migrant agricultural workers Principles of statutory interpretation The issues in these appeals largely turn on the interpretation of the relevant statutory provisions. This Tribunal has followed the courts in adopting the modern principle of statutory interpretation, which requires that the words of an Act be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and object of the Act, and the intention of Parliament or the Legislature.[8] The Tribunal also applies section 64 of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, which provides that an Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.[9] The Supreme Court of Canada affirmed the modern principle of statutory interpretation in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII) (“Vavilov”). The Panel finds it instructive to review the reasons of the majority in Vavilov with respect to statutory interpretation (at paragraphs 118-121): [118] This Court has adopted the “modern principle” as the proper approach to statutory interpretation, because legislative intent can be understood only by reading the language chosen by the legislature in light of the purpose of the provision and the entire relevant context: Sullivan, at pp. 7-8. Those who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that has regard to the text, context and purpose, regardless of whether the entity tasked with interpreting the law is a court or an administrative decision maker. An approach to reasonableness review that respects legislative intent must therefore assume that those who interpret the law — whether courts or administrative decision makers — will do so in a manner consistent with this principle of interpretation. [119] Administrative decision makers are not required to engage in a formalistic statutory interpretation exercise in every case. As discussed above, formal reasons for a decision will not always be necessary and may, where required, take different forms. And even where the interpretive exercise conducted by the administrative decision maker is set out in written reasons, it may look quite different from that of a court. The specialized expertise and experience of administrative decision makers may sometimes lead them to rely, in interpreting a provision, on considerations that a court would not have thought to employ but that actually enrich and elevate the interpretive exercise. [120] But whatever form the interpretive exercise takes, the merits of an administrative decision maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision. In this sense, the usual principles of statutory interpretation apply equally when an administrative decision maker interprets a provision. Where, for example, the words used are “precise and unequivocal”, their ordinary meaning will usually play a more significant role in the interpretive exercise: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at para. 10. Where the meaning of a statutory provision is disputed in administrative proceedings, the decision maker must demonstrate in its reasons that it was alive to these essential elements. [121] The administrative decision maker’s task is to interpret the contested provision in a manner consistent with the text, context and purpose, applying its particular insight into the statutory scheme at issue. It cannot adopt an interpretation it knows to be inferior — albeit plausible — merely because the interpretation in question appears to be available and is expedient. The decision maker’s responsibility is to discern meaning and legislative intent, not to “reverse-engineer” a desired outcome. Thus, in Vavilov, the majority emphasized the primacy of text, context, and purpose in statutory interpretation. Administrative decision-makers are expected to follow general principles of statutory interpretation in their decisions, although a formalistic statutory interpretation exercise is not required in every case. In Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 SCR 900, (“Canada Post”), the Supreme Court of Canada addressed the role of an administrative decision-maker’s knowledge of practical implications in the exercise of statutory interpretation. At issue in that case was a provision of the Canada Labour Code, RSC 1985, c L-2, which requires covered employers to inspect every part of a workplace at least once a year. The Canadian Union of Postal Workers took the position that the provision required Canada Post to inspect letter carrier routes and locations where mail is delivered, in addition to Canada Post’s local premises in Burlington, Ontario. While the complaint related only to the 73 letter carrier routes in Burlington, the outcome had the potential to affect operations throughout the country. Canada Post estimated that letter carriers travelled 72 million linear kilometres delivering mail to 8.7 million points of call. In the Canada Post case, the Appeals Officer who adjudicated the dispute concluded that the relevant provision of the Canada Labour Code only applied to parts of the workplace over which the employer had control. The issue upon judicial review was whether the Appeals Officer’s interpretation of the relevant Code provisions was reasonable. The majority of the Supreme Court, per Rowe J., determined that the interpretation was reasonable and the reasons demonstrated that the adjudicator had appropriately addressed the question through the analysis of text, context, and purpose. In determining that the adjudicator’s analysis was reasonable, Justice Rowe also commented upon the role of “practical implications” in statutory interpretation. Justice Rowe observed that the reference to practical implications did not “supplant” the focus on text, context, and purpose, but rather, enriched and elevated the interpretative exercise, reasoning in part (paragraphs 42-43): [42] Where the meaning of a statutory provision is in dispute, the administrative decision maker must demonstrate in their reasons that they were alive to the “essential elements” of statutory interpretation: “the merits of an administrative decision maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision” (Vavilov, at para. 120). Because those who draft statutes expect that the statute’s meaning will be discerned by looking to the text, context and purpose, a reasonable interpretation must have regard to these elements — whether it is the court or an administrative decision maker tasked with the interpretative exercise (Vavilov, at para. 118). In addition to being harmonious with the text, context and purpose, a reasonable interpretation should conform to any interpretative constraints in the governing statutory scheme, as well as interpretative rules arising from other sources of law. In this case, the Appeals Officer’s interpretation was constrained by interpretative rules within the Code, the Interpretation Act, R.S.C. 1985, c. I-21, and common law rules of statutory interpretation. [43] The Appeals Officer’s interpretation was guided by the general rule set out in s. 12 of the Interpretation Act that “[e]very enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects” (quoted in OHSTC reasons, at para. 91). As I discuss below, the Appeals Officer’s reasons amply demonstrate that he considered the text, context, purpose, as well as the practical implications of his interpretation (see West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 S.C.R. 635, at para. 41). His focus on practical implications did not supplant the need to ensure consistency with the text, context and purpose of the provision, but rather “enrich[ed] and elevate[d] the interpretive exercise” (Vavilov, at para. 119). He demonstrated a sustained effort to discern legislative intent throughout his analysis, and did not simply “‘reverse-engineer’ a desired outcome” (Vavilov, at para. 121). Justice Rowe went on to consider the role of the statutory purpose of the relevant part of the Code. In particular, Justice Rowe found that the decision under review was reasonable in part because it demonstrated that the analysis was informed by the relevant overarching statutory objectives (paragraphs 54-56): [54] The purpose of Part II of the Code is provided at s. 122.1: “The purpose of this Part is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment to which this Part applies.” A reasonable interpretation of any provision under Part II should be informed by the overarching objectives of Part II of the Code. [55] The Appeals Officer concluded that in order to fulfil the obligation in para. (z.12), control over the work place is necessary because the purpose of the work place inspection obligation is to “permit the identification of hazards and the opportunity to fix them or to have them fixed” (para. 96). He considered the practical implications of the interpretation in light of the purpose of the provision, and agreed with the submissions of Canada Post that “it would be impractical for an employer to perform [the work place inspection] obligation in respect of structures it neither owns nor has a right to alter” (para. 97). A reviewing court must pay “[r]espectful attention to a decision maker’s demonstrated expertise” when considering whether an outcome reflects a reasonable approach given the “consequences and the operational impact of the decision” (Vavilov, at para. 93). Here, the Appeals Officer had “dealt with and implemented most, if not all, of the employer obligations under subsection 125(1)” (para. 94), and also demonstrated this expertise through his reasons by, for example, demonstrating his familiarity with the statutory scheme and the different types of obligations it imposes on employers (para. 95; see also Vavilov, at para. 94). While the parties’ concessions on this point are not binding on us, they do, in this case, speak to the Appeals Officer’s findings on the point. The purpose of the obligation as described by the Appeals Officer appears to have been accepted by the parties before the Court of Appeal (F.C.A. reasons, at para. 18, per Near J.A.). In my view, the purpose of para. (z.12) imputed by the Appeals Officer is consistent with the broad, purposive interpretation afforded to remedial legislation. [56] In accordance with the statutory purpose of Part II of the Code, the Appeals Officer noted that Canada Post promotes the health and safety of its employees “in all the elements of their work” through its various policies and assessment tools, even though it lacks the necessary control over the work place to fulfil the inspection obligation under s. 125(1)(z.12) (para. 100). For example, the Appeals Officer referred to the WHPP, which sets out a “detailed protocol for letter carriers and supervisors with respect to delivery hazards, including the identification, investigation, and resolution with customers” (OHSTC reasons, at para. 60). The WHPP was developed by Canada Post and the Union as a prevention program in accordance with the obligations of the Code, the Regulations and the Collective Agreement (see Code, s. 125(1)(z.03) and Regulations; see also A.R., vol. III, at p. 22). In accordance with the reasoning in Vavilov and Canada Post, the Panel’s interpretation of the relevant provisions in these appeals will be informed by the broader statutory purposes of the WSIA and the large and liberal interpretation accorded to remedial legislation. The Panel has also considered the discussion on statutory interpretation contained in Administrative Law in Canada, 7th Ed., by Sara Blake. At §8.05 Statutory Interpretation, the author discusses statutory interpretation in part as follows (including footnotes from original text): A standard of “robust reasonableness” applies to a decision maker’s interpretation of statute. A tribunal does not have free rein to interpret a statute so as to expand its powers or alter the law that was enacted. The legislator expects that its laws will be interpreted in accordance with established principles of statutory interpretation, rather than what the tribunal thinks the law ought to be or what is the right thing to do in the public interest or in its view of practical realities. This serves the rule of law and the principle of democratic accountability. The court reviews the decision maker’s interpretation to ensure that it is justified by reference to the text, context and purpose of the provision. These are the established principles of statutory interpretation.[10] To assist statutory decision makers to meet this standard of review, I offer a basic step‑by-step method of statutory interpretation following the Supreme Court of Canada’s typical analytical approach.[11] It is a common-sense exercise based on a careful reading of the statute without resort to external sources. First, analyze the text of the provision and statutory definitions of terms used in the provision. (1) Every word contributes to the meaning. No word is redundant. (2) Words and phrases take their meaning from their context. Carefully review the whole section to discern their meaning. (3) Limits and exceptions prescribed by the section must be given effect. (4) If the statute is enacted in both English and French, review both because the meaning may be clearer in one language than the other. The interpretation must make sense in both language versions. Second, review the broader context of the provision in the statute as a whole. (1) Are the same terms used elsewhere in the statute? A repeated term has the same meaning throughout the statute and its interpretation must make sense in every provision in which it is used. In contrast, a statutory use of different terms that might have similar meanings indicates that a different meaning is intended by a different legislative choice of words. (2) Do any other provisions apply to the circumstance at issue? An applicable specific provision prevails. A general provision must be interpreted consistently with the specific provision. (3) Are there any provisions that limit the application or reach of the provision at issue or that require a balancing of competing considerations? The meaning given to the provision must respect these limits.[12] Third, identify the statutory purposes. The Interpretation Acts require that every statute shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.[13] Does the statute contain provisions that describe its purposes? Is there a specific purposes provision in the part of the Act containing the section? (1) Typically, a section of an Act should be interpreted in accordance with the purposes of the section, the purposes of the part of the Act in which it is situated and the purposes of the Act as a whole. (2) The purposes analysis may include consideration of practical realities in the regulated field and the consequences of an interpretation.[14] What was the mischief that motivated the legislature to enact the statute or to enact this section? What societal problem was it enacted to address? (3) However, statutory purposes and practical realities may not override the terms of a statutory provision because not every section is enacted to further the statutory purposes. Some sections are enacted to address competing purposes or to impose limits. The specific words and purposes of a section prevail over inconsistent statutory purposes and the tribunal’s view of practical realities.[15] Fourth, if the section grants discretion, the scope of the discretion — the decision maker’s room to manoeuvre — must be determined when applying these established principles of statutory interpretation.[16] Ms. Blake, the author of the text, goes on to express the view that there are only limited exceptions that permit a resort to external sources in the statutory interpretation exercise: The exceptions that allow resort to interpretive guidance external to the statute are few. (1) Interpretation Acts contain definitions of common statutory terms and other instructions on statutory interpretation. (2) Otherwise, the interpretation of similar terms found in other statutes should not be applied in the absence of their adoption in the statute at issue or other principled reasons to adopt the same meaning.[17] (3) Do not resort to dictionaries, textbooks on statutory interpretation, Charter values, international doctrines or other external guides except in the rare case that a full interpretive analysis determines that the statutory language is ambiguous. Most statutory provisions, properly interpreted, are not ambiguous. Rather, they may be deliberately general or vague with the intention that the decision maker will add specifics when applying the principles of statutory interpretation to decide individual circumstances.[18] (4) If proper interpretation leaves doubt as to the statutory purposes or whether a provision is intended to apply to a particular circumstance, there may be resort to government explanatory notes, white papers, commission reports or the Minister’s explanation of statutory purposes in Hansard,[19] provided the statute as enacted resulted directly from this source.[20] To one experienced in the practical realities of the subject governed by the statute, the interpretation must make common sense in light of the text, context and purposes of the statute. Ms. Gianfelice, for the OWA as intervenor, expressed disagreement with Ms. Blake’s approach to the extent that it may be construed as limiting the scope for considering external sources in an exercise of statutory interpretation. She submitted that the scope for considering external sources was not as narrow as described in the text. In the Panel’s view, Ms. Blake’s emphasis on the text, context and purposes in statutory interpretation is consistent with the prevailing case law, including Vavilov, and is supported by numerous other authorities, as cited in the text. Accordingly, the Panel will frame its analysis around the text, context, and purposes of the WSIA in interpreting the question of whether these migrant workers are entitled to LOE benefits and LMR assessments based upon their ability to earn in their local labour market in their home country. This includes consideration of the statutory text as well as binding Board policies. In the unique circumstances of these appeals, we find that the nature of the Seasonal Agricultural Worker Program itself provides relevant context for the interpretation; therefore, we have also looked at the Memoranda of Understanding between the Government of Canada and sending countries, as well as the contracts entered into by SAWP workers, SAWP employers, the Government of Canada and the sending countries. The Panel accepts that resort to external sources in statutory interpretation is limited to circumstances in which there is ambiguity or as a supplement to interpretation (for example, limited use of dictionary definitions as an interpretative aid). Where we have found it appropriate to consider external sources, we explain our reasons for doing so. Context: History and distinguishing features of workers’ compensation / workplace safety and insurance legislation Before turning to the specific terms of sections 42 and 43, the Panel will situate the interpretation within the historical context of workers’ compensation. The history and purposes of workers’ compensation regimes are well-known and were notably recognized by the Supreme Court of Canada in Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), 1997 CanLII 316 (SCC), [1997] 2 SCR 890. Sopinka J., for the majority, gave an overview of the history and purposes of workers’ compensation schemes in Canada (at paragraphs 24-27), observing that the history of workers’ compensation is a system of compulsory no-fault mutual insurance administered by the state. In Canada, the history of workers’ compensation begins with the report of the Honourable Sir William Ralph Meredith, once Chief Justice of Ontario, who was appointed in 1910 to study systems of workers’ compensation around the world and make recommendations for Ontario. Sopinka J. summarized the four fundamental purposes underpinning workers’ compensation regimes, and their interrelatedness: (a) compensation paid to injured workers without regard to fault; (b) injured workers should enjoy security of payment; (c) administration of the compensation schemes and adjudication of claims handled by an independent commission; and (d) compensation to injured workers provided quickly without court proceedings. I would note that these four principles are interconnected. For instance, security of payment is assured by the existence of an injury fund that is maintained through contributions from employers and administered by an independent commission, the Workers’ Compensation Board. The principle of quick compensation without the need for court proceedings similarly depends upon the fund and the adjudication of claims by the Board. The principle of no-fault recovery assists the goal of speedy compensation by reducing the number [of] issues that must be adjudicated. The bar to actions is not ancillary to this scheme but central to it. If there were no bar, then the integrity of the system would be compromised as employers sought to have their industries exempted from the requirement of paying premiums toward an insurance system that did not, in fact, provide them with any insurance. Within this historic context, the WSIA contains unique provisions that distinguish it from an action in tort and other statutory regimes:[21] The system guarantees security of payment regardless of the employer’s financial solvency. It is unnecessary for a worker to establish an employer’s fault in order to qualify for benefits. A worker is entitled under the WSIA when the entitlement criteria are met, regardless of an employer’s fault or whether or not an employer could have prevented the injury from occurring.[22] While this is not unique in modern times, it was novel when it was introduced in 1914. Furthermore, the serious and wilful misconduct of a worker does not necessarily disentitle them to benefits in the case of a serious accident. Section 17 provides that, “If an injury is attributable solely to the serious and wilful misconduct of the worker, no benefits shall be provided under the insurance plan unless the injury results in the worker’s death or serious impairment.” Any agreement between a worker and his or her employer to waive or forego any benefit to which workers or their survivors are or may become entitled under the insurance plan is void (WSIA section 16). This precludes a worker and employer from enforcing the terms of a settlement agreement in which a worker agrees not to pursue a workplace injury claim in exchange for payment by the employer. This distinguishes the workplace insurance scheme from both an action in tort and a labour arbitration proceeding, among other remedies.[23] The standard of proof is the balance of probabilities; however, where the evidence is approximately equal in weight, the benefit of the doubt is resolved in favour of the claimant (WSIA sections 119; 124). The Tribunal shall make its decision based upon the merits and justice of a case and it is not bound by legal precedent (WSIA section 119).[24] The WSIA creates a relatively simple administrative scheme that is intended to be less time consuming and less formal than the courts. Strict rules of evidence do not apply: the WSIB and this Tribunal may admit such evidence as is considered proper, whether or not it would be admissible in a court (WSIA section 132). The history and unique features of the workers’ compensation regime in Ontario suggest to the Panel that the Legislature intended that entitlement to benefits for injured workers ought to be construed broadly on the merits, rather than narrowly on technical grounds. Our attention was not drawn to any provision of the WSIA which specifically addresses the entitlement of SAWP workers or other migrant workers injured in Ontario. Section 18 of the WSIA addresses circumstances in which workers injured outside of Ontario may be entitled to benefits under the WSIA. There are no statutory provisions that limit benefits for workers who leave the province after their injury for any reason. There are categories of workers who travel to Ontario from other Canadian provinces to work in Ontario in industries such as Great Lakes shipping, for example, and we will discuss those cases in more detail below. Text: entitlement to LOE benefits and LMR assessments and services In these appeals, the workers seek entitlement to LMR assessments and LOE benefits in a manner that takes into account their actual circumstances. Section 42 of the WSIA governs the provision of labour market re-entry (LMR) assessments and services.[25] Section 43 governs entitlement to and calculation of LOE benefits. The appellants and the OWA as intervenor have emphasized amendments to these sections, which came into effect on July 1, 2007. They emphasized that the amended language of the legislation provides that the payment of LOE benefits must take into account the type of employment that is suitable and available to the worker. The amendments were made pursuant to the Budget Measures and Interim Appropriation Act, 2007, S.O. 2007, c.7 (“Bill 187”), which included the following relevant provisions: SCHEDULE 41 WORKPLACE SAFETY AND INSURANCE ACT, 1997 1. (1) Subsection 42 (3) of the Workplace Safety and Insurance Act, 1997 is amended by striking out “is suitable for the worker” and substituting “is suitable for the worker and is available”. (2) Subsection 42 (6) of the Act is amended by striking out “is suitable for the worker” and substituting “is suitable for the worker and is available”. 2. (1) Clause 43 (2) (b) of the Act is repealed and the following substituted: (b) the net average earnings that he or she earns or is able to earn in suitable and available employment or business after the injury. (2) Subsection 43 (4) of the Act is repealed and the following substituted: Earnings after injury (4) The Board shall determine the worker’s earnings after the injury to be the earnings that the worker is able to earn from the employment or business that is suitable for the worker under section 42 and is available and, (a) if the worker is provided with a labour market re-entry plan, the earnings shall be determined as of the date the worker completes the plan; or (b) if the Board decides that the worker does not require a labour market re-entry plan, the earnings shall be determined as of the date the Board makes the decision. In summary, Bill 187 enacted the following changes to section 42 (LMR) and section 43 (LOE), effective July 1, 2007: Adding the requirement that a suitable employment or business (SEB) objective identified through LMR must also be “available”; Adding the requirement that LOE benefits be based upon a suitable employment or business objective that is “available”; Replacing the term “deem” with the term “determine” in subsection 43(4) of the WSIA with respect to LOE benefits. In addition, the first draft of Bill 187 was changed to remove the term “likely” from the final version of the legislation in clause 43(2)(b). With respect to the interpretation of these changes, we note the submissions of the OWA as intervenor, which cited presumptions surrounding the interpretation of amendments to a legislative provision. These presumptions include: That statutory change is purposeful and is made by the Legislature for an intelligible purpose and not without reason. This is described as a strong presumption.[26] That substantive change is intended unless there is internal or admissible external evidence that “only language polishing” was intended.[27] Consistent expression – that language is carefully and consistently chosen by the Legislature such that the same words have the same meaning and different words have different meaning. By extension, one may infer a change in meaning or a different meaning is intended when different words are chosen in relation to the same subject.[28] Turning to the text of the relevant provisions of the WSIA, as amended by Bill 187, subsection 42(1) of the WSIA states that the Board shall provide a worker with a labour market re-entry assessment if any of the following circumstances exist: If it is unlikely that the worker will be re-employed by his or her employer because of the nature of the injury. If the worker’s employer has been unable to arrange work for the worker that is consistent with the worker’s functional abilities and that restores the worker’s pre-injury earnings. If the worker’s employer is not co-operating in the early and safe return to work of the worker. 1997, c. 16, Sched. A, s. 42 (1). Subsection 42(2) provides that, based upon the results of the assessment, the Board shall decide if a worker requires a labour market re-entry plan in order to enable the worker to re-enter the labour market and reduce or eliminate the loss of earnings that may result from the injury. Subsection 42(3) indicates that, in the determination of whether a plan is required for a worker, the Board shall determine the employment or business that is suitable for the worker and is available. The underlined language was added effective July 1, 2007, pursuant to Bill 187. The term “available” is also used in section 43 with respect to LOE benefits and we will examine its meaning in more detail below. Subsection 42(5) provides that the labour market re-entry plan shall be prepared in consultation with The worker and, unless the Board considers it inappropriate to do so, the worker’s employer; and The worker’s health practitioners if the Board considers it necessary to do so. Subsection 42(7) requires a worker to co-operate in all aspects of the labour market re‑entry assessment or plan provided to the worker. Part VI of the WSIA addresses Insured Payments and section 43 governs entitlement to LOE benefits. Pursuant to subsection 43(1), a worker who has a loss of earnings as a result of the injury is entitled to payments under the section beginning when the loss of earnings begins. Section 43 also sets out specific rules about how LOE benefits are calculated. The payments continue until the earliest of the day on which the worker’s loss of earnings ceases; the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury; two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury; the day on which the worker is no longer impaired as a result of the injury. Subsection 43(2) states that, subject to subsections (2.1), (2.2.), (3) and (4), the amount of the payments is 85 per cent of the difference between, the worker’s net average earnings before the injury; and the net average earnings that the worker earns or is able to earn in suitable and available employment or business (“SEB”) after the injury. Where a worker is co-operating with health care measures and early and safe return to work or an LMR plan, the worker is entitled to benefits calculated as 85 per cent of the difference between their net average earnings before the injury and any net average earnings the worker earns after the injury (subsection 43(3)). Subsection 43(4) is a key provision because it effectively governs long-term entitlement to LOE benefits. It states: (4) The Board shall determine the worker’s earnings after the injury to be the earnings that the worker is able to earn from the employment or business that is suitable for the worker under section 42 and is available and, (a) if the worker is provided with a labour market re-entry plan, the earnings shall be determined as of the date the worker completes the plan; or (b) if the Board decides that the worker does not require a labour market re-entry plan, the earnings shall be determined as of the date the Board makes the decision. [underlining added] The underlined terms represent the replacement of the word “deem” with “determine,” and the addition of “available” as a modifier of the suitable employment or business in which the worker is able to earn income. Subsection 43(7) provides that LOE benefits may be reduced or suspended during any period when a worker is not co-operating in health care measures, early and safe return to work, or all aspects of a LMR plan. Before we turn to parsing the terms in sections 42 and 43, we will begin with a summary of the purposes of these sections. To borrow Ms. Blake’s words, what mischief were they meant to address? In our view: Under section 42, the provision of a LMR assessment and services is meant to assist injured workers who are unable to return to work with their employers to find alternative employment that reduces their wage loss as a result of the injury. Under section 43, LOE benefits are tailored to allow benefits for the wage loss that a worker experiences because of the injury. The detailed calculation provisions are directed at determining the difference between the worker’s pre-accident earnings and the amount that they are able to earn, taking into account their injuries and other circumstances, including employment that is “suitable” and “available” to them. In the next sections, we will examine the following relevant terms and concepts: What does it mean for a loss of earnings to “result from” the injury? What is “available employment”? What is the significance, if any, of the amendment to use the term “determine,” rather than “deem”? What is a loss of earnings “as a result of” the injury? The Tribunal has developed a vast jurisprudence interpreting section 43 and the provision of LOE benefits to injured workers. Decision No. 2474/00, 2004 ONWSIAT 1381, is a leading decision that was released prior to the statutory amendments contained in Bill 187, but the decision remains influential in its evaluation of the purpose of section 43. Decision No. 2474/00 addressed the issue of whether a Board policy that required notice of non-cooperation before the suspension of benefits under subsection 43(7) was consistent with the WSIA. Decision No. 2474/00 stands for the proposition that subsection 43(1) establishes the requirement of a causal connection between the workplace injury and the loss of earnings by stating that a worker is entitled to benefits for the loss of earnings that he or she experiences as a result of the injury. Therefore, a worker’s refusal of suitable and available modified work may result in a reduction in LOE benefits under subsection 43(1) and 43(2) of the WSIA on the basis that the wage loss no longer results from the injury, but rather, the loss is causally related to the worker’s decision to decline suitable work. By definition, such work is also available, if the evidence establishes that a bona fide offer of employment has been made. The cause of a worker’s wage loss is often central to determining LOE benefits. It is well-established in the Tribunal’s case law that the analysis of section 43 focuses on whether the worker has a loss of earnings as a result of the injury, and if so, to what extent. It is a question of causation, to which the Tribunal generally applies the significant contribution test. A significant contributing factor is one of considerable effect or importance. It need not be the sole contributing factor. See, for example, , 1987 CanLII 1996 (ON WSIAT). The Tribunal has also evaluated the distinction, if any, between the significant contribution test and the “but for” test to determining causation. Decision No. 1472/05R, 2010 ONWSIAT 1496, addressed the Tribunal’s approach to causation in light of Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333. In Decision No. 1472/05R, the Vice-Chair noted that in Resurfice, the Court confirmed the use of the “but for” test for causation in civil litigation. The Vice-Chair noted that the Tribunal had employed a “significant contributing factor” test, based on the Supreme Court of Canada’s decision in Athey v. Leonati, [1996] 3 SCR 458, and earlier jurisprudence, and not the “but for” test per se. Upon consideration of the authorities, the Vice‑Chair concluded that Resurfice may be important in the workplace insurance context because it confirms that, except in specific cases of narrow facts involving evidentiary difficulties, the results of the two tests will be the same. The Vice-Chair found further support for this interpretation in the decision of the Ontario Court of Appeal in Monks v. ING Insurance Co. of Canada (2008), 90 O.R. (3d) 689. Returning to the text of the statutory provision on LOE benefits, we note that the language of section 43 requires consideration of whether workers have a loss of income “as a result of” their workplace injuries. The Panel does not agree with the WSIB’s assertion that the income losses of injured migrant agricultural workers are due solely to the global economic disparity between Ontario and the sending countries, without any connection to the injury. In determining the causal role of the injury in the worker’s loss of earnings, the Tribunal and the Board have long taken into account the injured worker’s relevant personal and vocational characteristics such as age, level of education, transferable skills, geographic location, and language ability (see, for example, Decision Nos. 1214/15, 2015 ONWSIAT 1873, and 248/06, 2006 ONWSIAT 565). The Panel agrees with the WSIB’s assertion that LOE benefits are meant to compensate for the wage loss caused by the injury. We do not accept, however, the assertion that the status of migrant agricultural workers, in itself, constitutes an intervening factor that negates the wage loss directly connected to their injuries and their resultant inability to work in the SAWP in Ontario. The statutory language calls for an individual determination of the worker’s circumstances in determining entitlement to LOE benefits. Causation is a factual determination to be made on the evidence in each case. However, the WSIB’s approach under the SAWP Adjudicative Advice Document precludes consideration of the actual role of the workplace injury in a migrant agricultural worker’s wage loss. The evidence here does not support a conclusion that global economic disparity overwhelms the causal role of the workplace injuries in the wage losses experienced by injured SAWP workers. To the contrary, in each of these four cases, we find on the evidence that the workplace injuries made a significant contribution to the workers’ wage losses. The Panel finds it relevant to refer here to Decision No. 915, 7 W.C.A.T.R. 1, an early leading decision of the Tribunal by a five-member Panel led by then Tribunal Chair S.R. Ellis. One of the issues addressed in that decision was the application of the “thin skull rule” to adjudication under workers’ compensation. The Panel found in Decision No. 915 that the thin skull principle does apply to workers’ compensation appeals, and we find their reasoning is apt by analogy: The thin-skull doctrine also applies in workers’ compensation cases and for two reasons. One reason is that permitting compensation to be denied or adjusted because of pre‑existing pre-disposing personal deficiencies would very substantially reduce the nature of the protection afforded by the compensation system as compared to the court system for reasons that would not be understandable in terms either of the historic bargain or of the wording of the Legislation. The other reason is that in a compensation system injured persons become entitled to compensation because they have been engaged as workers. They have functioned as workers with any pre-existing condition they may have had. It seems wrong in principle that conditions which did not affect their employment as workers should be relied upon to deny them compensation as injured workers. [Italics added] To echo the words of the Decision No. 915 Panel, it seems wrong in principle to find that conditions which did not affect the employment of SAWP workers as workers in Ontario should be relied upon to deny them compensation as injured workers. While we agree with the WSIB that the thin skull principle does not necessarily encompass the socioeconomic characteristics of workers, it has been recognized that injured workers must be taken as found. There is no language in the WSIA to suggest that there was a legislative intention to displace this general approach to LMR and LOE benefits for SAWP workers. In each of the four cases before us, the injured workers were repatriated because of their workplace injuries, and could not return to Ontario to work in the SAWP because of their workplace injuries. The weight of the evidence indicates to us that, but for the workplace injuries, these workers likely would have continued to work in Ontario for the remainder of the season and would likely have qualified for the SAWP in future years. It does not violate the principle of workplace causation to compensate their wage loss even though they have returned to their home countries, when their repatriation and resultant inability to return to work in the SAWP is caused by the injury itself. As we will discuss in more detail later in these reasons, the situation of SAWP workers is analogous to seasonal workers from other provinces who are injured while working in Ontario. In such cases, the WSIB has recognized that it is appropriate to consider the local labour market of such out-of-province workers in determining a suitable employment or business (SEB) and LOE benefits under section 43 of the WSIA. The SAWP is often referred to as a “circular migration” program in the literature.[29] The workers in each of these appeals testified that they would have remained in and returned to Ontario to continue working in the SAWP if they had not been injured. However, it is important to observe here that entitlement to LOE benefits generally is not based upon predictions of what a worker might have gone on to do if they had not been injured, but rather, section 43 is designed to capture the difference between the worker’s pre-accident escalated earnings and the worker’s post-accident ability to earn in suitable and available employment.[30] In the case of seasonal workers, the seasonal nature of their work is reflected in the calculation of their pre-accident earnings. Although we had evidence in each case that these workers would have chosen to continue in the SAWP if they had the ability to do so, section 43 is designed to avoid that type of speculation. The key questions are whether they have a loss of earnings as a result of the injury and what income they are able to earn in suitable and available employment after the injury. The WSIB submitted that compensating SAWP workers based upon the labour market in their home countries would amount to compensating workers for the effect of something other than their work-related injuries. As we explain in further detail, the Panel does not agree as this argument is not supported by the text of the WSIA or applicable Board policies. The significant contribution test applies to the determination of causation, and we find that the workplace injuries are a significant contributing factor to the income losses of these workers and their inability to work in the SAWP after their injuries. Furthermore, section 43 of the WSIA stipulates that LOE benefits are determined upon the amount that a worker is likely to be able to earn in suitable and available employment. It is inconsistent with these statutory provisions to deem their ability to earn based upon the legal fiction of being able to earn income in Ontario. “Determine” vs. “deem” Counsel for the appellants emphasized that Bill 187 replaced the term “deem” with the term “determine” in section 43(4). The Panel accepts that the term “deem” connotes a decision based upon notional circumstances whereas “determine” connotes a decision based upon actual circumstances. In the exercise of statutory interpretation, it is appropriate to focus on the textual or ordinary meaning of the terms, which is the “natural meaning which appears when the provision is simply read through.”[31] While a dictionary definition is not equivalent to the ordinary meaning, we agree with the submissions of the workers’ representatives and the OWA that dictionary definitions are useful in the analysis of the meaning of this statutory amendment. The Compact Oxford Canadian Dictionary provides the following definitions for the terms “determination” and “determine”: Determination n. 1. firmness of purpose. 2 a. the process of deciding, determining or calculating. b. the result of such consideration. 3 a. the conclusion of a dispute by the decision of a judge or an arbitrator. b. the decision so reached. Determine v. 1. tr. find out or establish precisely. 2. tr. decide or settle (determined who should go). 3. tr. be a decisive factor in regard to (demand determines supply). 4. intr. & tr. make or cause (a person) to make a decision (we determined to go at once). 5. tr. fix or define the position of. On the other hand, the term “deem” when used in legislation has a variety of purposes:[32] to create a legal fiction by declaring that something exists or has occurred regardless of the truth of the matter; to create a legal presumption by declaring certain facts are to be taken as established; to declare the law; to confer discretion. The meaning of the term “deem” to create a legal fiction is demonstrated in other sections of the WSIA. For example, section 54 of the WSIA deems a worker’s average earnings to be the maximum amount, even if their actual earnings were greater than that amount. Subsection 89(3) deems a training agency to be the employer of a trainee for the purposes of the WSIA, even though another company or business may be considered the employer for the purposes of employment law. The language of sections 42 and 43, as amended by Bill 187, leads the Panel to conclude that an injured worker’s entitlement to LOE benefits is meant to take into account a worker’s actual circumstances. The replacement of the term “deem” with “determine” signals the Legislature’s intention for an individualized assessment of the worker’s entitlement to LOE benefits. This language stands in contrast to the approach established in the SAWP Adjudicative Advice Document, which uniformly deems a worker’s entitlement to LOE benefits based upon a fictional assumption: namely, the ability to earn income in Ontario. What is “available” employment? A plain reading of sections 42 and 43, taking into account the Bill 187 amendments, conveys the Legislature’s intention that the Board’s decision regarding an appropriate LMR plan and LOE benefits ought to take into account suitable work that is available to the worker. In our interpretation, “available” work must take into account an injured worker’s actual labour market. The ordinary meaning of section 42 does not preclude the consideration of labour markets outside of Ontario in the consideration of what type of work is “available” to the worker. To the contrary, the specific addition of the term “available” connotes an intention to take into account a worker’s actual circumstances. The term “available” has been defined in Tribunal case law and in multiple versions of Board policy. The record includes OPM Document No. 19-02-01, Work Reintegration Principles, Concepts, and Definitions (December 3, 2012) (“the WR Policy”), which defines “available work as it relates to the labour market”: “Available means that employment must exist and be in demand in the labour market to the extent that the worker has a reasonable prospect of obtaining employment.” This definition reinforces our interpretation of the statute as requiring a realistic assessment of the worker’s ability to earn for the purposes of LMR services and LOE benefits. The job identified as the SEB under sections 42 and 43 must actually exist and the worker must have a reasonable prospect of obtaining it. This “real-world” approach to what constitutes available work is further supported by Tribunal case law. The Tribunal’s case law demonstrates that the interpretation of the word “available” with respect to post-accident employment takes into account the likelihood of the worker being able to secure the specified occupation based upon the evidence. For example, Decision No. 1865/12, 2012 ONWSIAT 2407, stands for the proposition that a job should be considered available if the worker will, with reasonable effort and determination, likely to be able to re-enter the labour market within the identified suitable employment or business. In Decision No. 1517/17, 2017 ONWSIAT 2413, the Vice-Chair considered the meaning of the term “available” in determining the appropriate suitable employment or business and LOE benefits for an injured worker who lived 50 kilometres outside of Windsor and did not drive. The Vice-Chair accepted that the injured worker’s status as a non-driver was a relevant pre‑existing personal characteristic for the LOE determination. The Vice-Chair held: “In my view, ‘available’ under the WSIA and the policy must mean that there are enough positions in the market, reasonably geographically accessible to the worker, that the worker has at least a reasonable chance of finding employment.” The plain and ordinary meaning of sections 42 and 43, when read in light of the context and purposes of the WSIA, does not support an interpretation that SAWP workers ought to have their benefits based upon notional earnings in occupations in Ontario. This is so because they have no reasonable prospect of obtaining such employment. In the language of the statute, these workers are not able to earn income as cashiers/parking lot attendants/customer service agents in Ontario, and these jobs are not available to them within the meaning of the terms as used in section 43 of the WSIA, because they were no longer able to obtain any work in Ontario as a result of their workplace injuries. Counsel for the WSIB did not draw our attention to any language in the WSIA which states, explicitly or implicitly, that the benefits of foreign agricultural workers should be calculated differently from workers who are residents of Ontario or other provinces or territories of Canada. Sections 42 and 43 of the WSIA contain no language that would require a different benefits calculation for foreign agricultural workers. These provisions also do not contain any language to suggest that the determination of suitable and available employment for an injured worker is limited to the Ontario labour market. Sections 42 and 43 stipulate that the SEB identified for an injured worker must be available. Section 43 states that the payment for loss of earnings is the difference between pre‑accident earnings and the amount that the worker is able to earn in suitable and available employment. The ordinary meaning of the terms suitable and available connotes that a worker’s actual ability to earn and the availability of employment is intended to be taken into account in determining earnings. The replacement of the term “deem” with “determine” also supports this interpretation. In the Panel’s view, the use of the term “determine” rather than “deem” and the addition of the term “available” signal the Legislature’s intention to base the LOE benefits of workers upon suitable employment that is actually available to them. Tribunal case law interpretations in similar circumstances Counsel for the WSIB suggested that the WSIA does not grant authority to consider any labour market other than Ontario when determining suitable and available employment. The Panel’s review of sections 42 and 43, within the broader statutory context, persuades us that there is no such limitation in the Act, and to the contrary, the use of the term “available” in section 43 indicates that the Legislature intended that the determination of a worker’s benefits ought to be based upon the reality of their circumstances rather than being “deemed” based upon a notional ability to work in Ontario. While the Tribunal’s case law has not been entirely consistent on this point, there are several Tribunal decisions which show that both the Board and the Tribunal have taken non‑Ontario labour markets into account in determining the type of work that is “available” for the purposes of LOE benefits. Analogous issues arise when out-of-province workers are injured in the course of seasonal work in Ontario. Like SAWP workers, these out-of-province workers may not reside in Ontario on a permanent basis and often return to their home provinces during the off-season. A review of the Tribunal’s decisions shows some variation in outcomes, with a gradual trend toward a consensus that the Board and the Tribunal may take into account the injured worker’s labour market outside of Ontario. The Panel finds it instructive to review Tribunal decisions which have addressed the benefits of out-of-province workers who are injured while employed in seasonal or other work in Ontario. These cases present many parallels to SAWP workers and demonstrate that the WSIB’s own decision-makers have recognized that it is appropriate to consider the labour conditions of the injured workers’ local labour markets outside of Ontario in determining suitable and available employment for the purposes of LOE benefits. There are several Tribunal decisions addressing employer appeals from WSIB decisions in which the WSIB based a worker’s LOE benefits on the labour market in their home province outside Ontario, for example: Decision Nos. 1617/12, 2013 ONWSIAT 905, 1428/09, 2012 ONWSIAT 521, and 1355/07, 2007 ONWSIAT 2373. These decisions reveal two sub-issues that arise in the consideration of entitlement to LOE benefits for a non-resident injured worker: Firstly, the appropriate labour market for determining what work is available to the worker. Secondly, what wage rates ought to be used if the worker is found to be employable in the local labour market. Some decisions have held that Ontario wage rates must be used even if it is accepted that the determination of suitable work may take into account the non-Ontario labour market where the worker is located. For example, Decision No. 1617/12 involved a worker who was a resident of Newfoundland, but was injured during the course of his employment on a ship in Ontario. The employer appealed a decision of the Board which found the injured worker was not capable of earning income, taking into account the nature of the labour market in his home province of Newfoundland. The WSIB Appeals Resolution Officer (ARO) found that the worker was not employable and was entitled to full benefits. In reaching this conclusion, the ARO took into account that the worker lived in a small community in Newfoundland, and it was unlikely that the worker would be able to find suitable work as a cashier or gas bar attendant in his local or regional labour market. The ARO also noted that relocation was not offered to the worker. The employer’s appeal to the Tribunal was denied in Decision No. 1617/12. Decision No. 1617/12 reviewed Tribunal decisions cited by the employer which found that, even if the labour market for return to work is outside of Ontario, the wage rates used (such as minimum wage), must be Ontario wage rates. For example, in Decision No. 1428/09, the Vice-Chair reviewed previous Tribunal decisions, including Decision Nos. 1564/09, 2009 ONWSIAT 2566, and 1093/11, 2011 ONWSIAT 1801, and concluded “it is apparent that as a general rule, Ontario wage guides are to be used in calculating benefits paid to workers injured in Ontario.” Decision No. 1428/09 discusses these cases as follows: In Decision No. 1355/07, the Vice-Chair concluded that there was no suitable employment or business for the worker; as such, it was not necessary to deal with the employer’s appeal regarding whether the worker’s LOE benefits should be based on deemed earnings at the Ontario or the Newfoundland minimum wage. I agree with this approach. If a suitable and available SEB is identified, then it may be appropriate to use Ontario wages in accordance with the decisions cited by the employer’s representative. The antecedent question, however, is whether a suitable and available employment goal can be identified for the worker. Board policy contains specific provisions regarding the availability of employment. There is no indication in OPM Document No. 19-03-03 that it does not apply to out-of-province workers. Even if it if were appropriate to deem Ontario as the worker’s labour market, there would still be a question of where in Ontario should be deemed as the worker’s labour market. Ontario is a vast and diverse province of urban, suburban, rural, and remote communities. In my view, it would not be appropriate to deem a worker’s labour market to be an urban centre in Ontario, when that is not comparable to the worker’s actual community. Even if one were to deem an out‑of-province worker’s regional labour market to be in Ontario, it should be deemed to be in a location in Ontario that is comparable to the worker’s actual region. In Decision No. 1617/12, it was decided that the worker was not able to earn any income in suitable and available employment after his injury, and it was therefore unnecessary to consider the appropriate wage rate for partial LOE benefits. The appellants take issue with the statement in Decision No. 1617/12 that, if a suitable and available job is identified, “then it may be appropriate to use Ontario wages in accordance with the decisions cited by the employer’s representative.” The Panel observes that this comment was not necessary to the outcome of Decision No. 1617/12, but rather, it was made in response to the employer’s arguments and reflected the case law as it existed at that time. Upon review of subsequent developments in the case law, discussed further below, we conclude here that it is permissible and appropriate to use wage rates from outside Ontario for determining the LOE benefits of non-resident injured workers. As discussed above, with the Bill 187 amendments, the Legislature specifically added the requirement that the SEB identified for LMR assessments and LOE benefits must be “available” to the worker. It follows that the wage rate of the available employment must be considered in determining LOE benefits. Decision No. 1617/12 was followed in Decision No. 1720/12, 2015 ONWSIAT 846. This was also an employer’s appeal from a Board decision to base the worker’s LOE benefits on entry-level wages in Newfoundland, among other issues. The Panel reasoned in part: We now turn to which provincial jurisdiction ought to be used to determine the worker’s median level wages. ARO Marangoni, in the decision under appeal, concluded that Newfoundland wages ought to be used because the worker resides in that province and would be searching for employment in that provincial employment market. It was concluded that it would not be reasonable to expect the worker to move to Ontario to search for employment, especially given the specific facts in this case: that the worker was a worker on a ship and was not otherwise based in Ontario. The employer’s response is that it pays into the Ontario WSIB system, and the worker is compensated on that basis. We are not unsympathetic to that argument, and note also that many Tribunal decisions have defaulted to Ontario when determining which provincial rate to use. Yet using Ontario is not an absolute, especially considering that all cases are to be decided on the basis of considering the “merits and justice” of the particular facts of each particular case. In that regard we believe that Tribunal Decision No. 1617/12 addressed the matter quite well. That decision indeed noted that the “worker’s actual labour market is a relevant factor to consider”. In this case the worker’s actual labour market is neither Ontario nor Newfoundland. Rather, it is Alberta, where the worker has resided for at least a period of time. The above passage demonstrates to the Panel that the WSIB has used wage rates from outside Ontario for the calculation of LOE benefits and this approach has been endorsed by the Tribunal. A similar approach was adopted in Decision No. 1773/17, in which the Panel considered the appeal by a worker who had been employed under the SAWP. The injured worker had returned to his home country shortly after the accident. Applying the SAWP Adjudicative Advice Document, the WSIB denied ongoing LOE benefits, deeming the worker’s benefits on the basis of the ability to earn income as a cashier in Ontario. The worker’s representative in that case challenged the WSIB’s decision, arguing that the position of cashier was not suitable and also was not available within the meaning of section 43 of the WSIA. In the result, the Panel found that the position of cashier was not suitable in view of the worker’s physical restrictions, as well as his aptitudes. Accordingly, the question of whether the job was available was moot; however, the Panel went further, finding that the SAWP Adjudicative Advice Document was inconsistent with the WSIA and Board policy, and declined to apply it. The Panel directed the Board to identify an occupation for the worker which was both suitable and available. The WSIB requested a reconsideration of Decision No. 1773/17, leading to Decision No. 1773/17R, 2019 ONWSIAT 1817, a decision of Tribunal Chair D.N. Corbett, as he then was. The decision noted that the WSIB did not dispute the Tribunal’s determination that the job of cashier was not an appropriate suitable occupation (SO) for the worker. Instead, the Board’s reconsideration request was limited to the Tribunal’s determination that “available” employment means employment that is available to the worker in his home country, Jamaica. The Board’s position was that the Tribunal’s interpretation of sections 42 and 43 of the WSIA in Decision No. 1773/17 constituted an error of law. The Board argued that the interpretation was contrary to the principles of statutory interpretation and resulted in the applicable sections of the WSIA being construed in a manner that was not consistent with the legislative purpose of the WSIA. Further, the Board’s position was that the Tribunal’s interpretation, particularly the provision of labour market re-entry services, resulted in absurd and unintended consequences. In Decision No. 1773/17R, Chair Corbett denied the Board’s reconsideration request. He found that, even applying the interpretation put forward by the Board, it was unlikely that the worker would be able to secure suitable employment in Ontario. In reaching this conclusion, it was held that, even if the Board’s position were accepted that the determination of suitable available employment is limited to the Ontario labour market, the review would require an analysis of a community in Ontario similar to the worker’s home community – a small rural community. It was further noted that using a small rural labour market is also consistent with the Adjudicative Advice Document which provides that “[w]hen determining a SO, the WSIB has regard for the SOs available in the local Ontario labour market where the worker was employed at the time of the work-related injury/illness” (paragraph 38). Chair Corbett concluded that it was unlikely that the worker would be able to return to suitable work, whether the jurisdiction considered was Ontario or Jamaica. Decision No. 1773/17R noted that a factor considered in determining whether suitable and available work exists for a worker is the worker’s home location. Chair Corbett reviewed Tribunal decisions which have considered this in the context of workers who work in Ontario, but do not regularly reside in Ontario. For example, in Decision No. 1617/12, it was found that if the worker does not live in Ontario, the labour market location for the purposes of suitable employment should be a labour market in Ontario that is similar to a worker’s home location. The worker in that case resided in Newfoundland. Decisions No. 250/06, 2006 ONWSIAT 381, and 1355/07 were also considered, which took a similar approach to workers who were employed in Ontario, but lived in Newfoundland. Counsel for the WSIB cited earlier Tribunal decisions which determined that SAWP workers are not entitled to wage loss benefits based upon their home labour market. For example, Decision No. 334/03, 2003 ONWSIAT 2383, considered entitlement to future economic loss (FEL) benefits under the pre-1997 Workers’ Compensation Act. Decision No. 334/03 held that the Act was intended to provide compensation to workers injured in Ontario with compensation determined according to employment standards and conditions that exist in Ontario. The fact that a worker must leave Ontario soon after an accident, regardless of the reason for leaving, may have the incidental effect of increasing the magnitude of the economic loss experienced by the worker; however, the Vice-Chair held that such increased loss was not intended to be compensated by the Act. This approach was followed in Decisions No. 1559/13, 2013 ONWSIAT 2408, and 2031/16, 2016 ONWSIAT 2464. In this Panel’s view, these three decisions contain little reasoning in support of the assumption that the WSIA was not intended to compensate for losses that may occur in an injured worker’s home province or country outside of Ontario. These decisions do not undertake an analysis of the text, context, and purpose of the WSIA to reach these conclusions. As such, we have not found them to be persuasive. Decision No. 1773/17 contains a thoughtful analysis of the issues and concluded that the deemed occupation of cashier was not suitable in that case, and also went on to consider the meaning of “available” employment under section 43. The Panel reasoned as follows: Having determined that the SO of “Cashier”, identified by the Board for the worker, is not suitable for him, the question of whether this SO is available to him is moot. Since the worker is not capable of performing work as a cashier in any event, there is no point in attempting to determine whether such work is available to the worker. Nevertheless, we note that section 43(4) of the Act, requires that, in determining the worker’s entitlement to LOE benefits, the Board shall determine the worker’s earnings after the injury, in employment that is “suitable for the worker under section 42 and is available…” Although the question of whether work as a cashier is available to the worker is moot, we have directed the Board to identify an SO which is suitable for him. Given that the Act and the applicable Board policy, OPM Document No. 19-03-03, require that the SO be both suitable and available, it is necessary for the Board to identify an SO for the worker which meets both of these criteria. As was noted in the submissions provided by the worker’s representative, the original version of section 43 of the Workplace Safety and Insurance Act, 1997, enacted by the Ontario Legislature in 1997, did not include the word “available”, and that in the initial version of the Act, it was not an explicit requirement that an SO (or SEB) identified by the Board for a worker be “available”. Section 43 was amended in 2007 so that sections 43(2) and (4) included the word “available”. Although it might be considered to have been implicit in the original version of the Act that an SO must be work that is “available” to a worker, by making this amendment to the Act in 2007, it is apparent that the Legislature recognized the significance of the need for an SO to be “available” to the worker, and that it recognized that this requirement is integral to the operation of the provision. The significance of the requirement indicated in the Act that an SO be “available” to the injured worker in question is also highlighted by the fact that OPM Document No. 19‑03‑03 elaborates on the meaning of the term. The policy document states that the “availability” of an SO shall be addressed by first seeking to identify suitable employment “in the local labour market”, by looking next to the “surrounding area to which the worker may reasonably be expected to commute”, and finally by looking to “the broader labour market.” The policy document notes that “the local labour market is not limited to a particular city or town but also comprises any surrounding areas to which the worker might reasonably commute.” The policy document goes on to state that “if there are no SOs in the local labour market, the labour market may be expanded to the extent necessary to identify available SO opportunities.” It also notes that “relocation…may be considered when a SO is not available with the injury employer or in the local labour market.” Although the policy document does not provide geographical limits on “the broader labour market”, in our view, a reasonable limit must be implied for this term. If the “broader labour market” is interpreted to mean “anywhere in the world”, the requirement imposed by the Legislature that an SO be “available” to an injured worker would, in our view, be rendered essentially meaningless. The Panel in Decision No. 1773/17 went on to conclude that the SAWP Adjudicative Advice Document was inconsistent with the Act in limiting the LOE benefits of SAWP workers to 12 weeks and precluding LMR services. The Panel in Decision No. 1773/17 concluded that the approach adopted in the SAWP Adjudicative Advice Document abrogates the requirement set out in the Act, and referred to the applicable policy document, that when determining LOE entitlement, the employment must be “available” to the worker. The Panel concluded that any type of work which is to be performed in Ontario is not work which was “available” to the worker in that case since the worker, employed under the SAWP, had returned to his home country shortly after the accident. Our evaluation of the text, context and purpose of the WSIA leads us to agree with the Panel’s reasoning in Decision No. 1773/17. Section 43 provides that workers are entitled to benefits based upon the difference between their pre-accident earnings and the earnings they are capable of earning in “suitable and available employment.” The term “suitable” generally refers to whether the job is suitable for the workplace injury – both physical and psychological conditions and restrictions associated with the injury. In addition, the evaluation of suitable work also takes into account other factors such as a worker’s level of education, English language fluency, and transferable skills.[33] The term “available” generally refers to a job that exists in the worker’s labour market. Decision No. 1617/12 stands for the proposition that a job is considered available if the worker has a reasonable prospect of actually acquiring the job, and when it can be determined that the worker will, with reasonable effort and determination, likely to be able to re-enter the labour market within the chosen job. The WSIA states that a worker is entitled to LOE benefits based upon the difference between their escalated pre-accident earnings and the amount that they are able to earn in suitable and available employment. An examination of the text, context and purpose of the WSIA, in the context of Tribunal case law, persuades the Panel that the term “available” ought to be construed in its plain and ordinary sense for injured SAWP workers in the same manner as for injured workers who are residents of Ontario. “Available” employment means work that the worker has a reasonable prospect of obtaining where they actually live. Context: the Seasonal Agricultural Worker Program (SAWP) The SAWP, a federal program, provides relevant context for the interpretation of the WSIA as it applies to migrant agricultural workers. Applicable Board Policy recognizes the interaction between the terms of the SAWP and the benefits administered under the WSIA. The Government of Canada, pursuant to certain international agreements, arranges for workers from other countries to enter Canada for temporary periods of time as farm labourers to provide assistance during the agricultural season.[34] These temporary foreign agricultural workers are hired under the “Commonwealth Caribbean and Mexican Seasonal Agricultural Workers Program.”[35] Relevant international agreements include Memoranda of Understanding between the Government of Canada and other nations. The Memorandum of Understanding (MOU) between Canada and Jamaica refers to the contract to be signed by the parties. The contract addresses matters such as scope and period of employment; lodging, meals and rest periods; payment of wages; the health and safety of workers; and early cessation of employment. The contract is signed by the employer, the worker, and a government agent. The “GOVERNMENT” refers to the government of the sending country and is represented by the government agent. The Government of Canada is referred to in the contract as such. With respect to Governing Laws, the contract states: All provisions of this contract affecting the obligations created: Between the WORKER, the EMPLOYER and ESDC/SERVICE CANADA or the GOVERNMENT AGENT, the EMPLOYER and ESDC/SERVICE CANADA shall be governed by the laws of Canada, and of the province/territory in which the WORKER is employed; and Between the WORKER and the GOVERNMENT, shall be governed by the laws of the sending country. Provision 1(a) above demonstrates that the laws of Canada and Ontario govern the contractual obligations related to SAWP workers employed in Ontario. The laws of the sending country, in this case, Jamaica, apply to the relationship between the worker and the government of their home country. The evidence established that applicants to the SAWP go through a multi-phase process to qualify for the program. The Panel heard expert evidence from Dr. Janet McLaughlin on how the SAWP operates and the documentary record includes evidence about the SAWP. This evidence establishes that the SAWP has the following features: To qualify for the SAWP each year, workers must pass a medical examination, including a physical exam, urine and blood work, and chest radiography. Workers will not be accepted under the SAWP if they do not pass the medical examination. Workers in the SAWP may only work in agricultural labour. They are usually required to return to their home countries if they are not able to perform agricultural labour for any reason, including a workplace injury. Workers in the SAWP may only work for their designated employer, subject to limited exceptions. Workers in the SAWP may work no more than eight months in Canada per season and must leave Canada by December 15th each year. The SAWP employer may cease the worker’s employment for “non-compliance, refusal to work, or any other sufficient reason” with seven days’ notice. In three of the four cases before us, the workers were required to return home before the usual end of the season, as a result of their injuries.[36] The WSIB submitted that they wish to “highlight that [seasonal agricultural] workers choose to participate in the SAWP, and accept the conditions the agreement imposes” (italics in original). Moreover, counsel for the WSIB emphasized that “SAWP workers derive benefits from the program.” The WSIB’s submissions did not explain why the alleged benefit that seasonal agricultural workers receive from the SAWP is relevant to the interpretation of their entitlement to benefits under the WSIA. The record also demonstrates that Ontario agricultural employers benefit from the SAWP because these migrant agricultural workers fill a labour gap at a more affordable rate than local workers, yet, there was no argument that this should have any impact on the respective rights and obligations of SAWP workers and employers under the WSIA. From the perspective of statutory interpretation, the fact that workers may benefit from the SAWP (or any other employment arrangement) has no connection to the scope of their entitlement to LOE benefits in accordance with section 43 of the WSIA. The WSIB did not draw our attention to any authority that supports this proposition. Most employment arrangements typically confer benefits and obligations upon both the employer and the worker: that is why the parties enter such arrangements. The WSIA covers a broad range of types of employment, each with attendant advantages and disadvantages to the parties involved. The categories of employment arrangements addressed in the WSIA include: Apprenticeships and students, for which the statute and the applicable regulation set out specific provisions for the calculation of net average earnings (see subsections 53(3) and (4.1)). “Casual” workers and outworkers, as defined, are not covered by the WSIA (section 11). There are rules for deeming employers of volunteer workers and emergency workers (sections 70-71). Regulations may be established with respect to temporary help agencies (section 83). These provisions of the WSIA demonstrate that, where the Legislature intended to carve out unique rules for certain types of employment, or exclude certain employment from coverage, it has done so explicitly. The WSIA came into effect on January 1, 1998. When crafting legislation, the Legislature is presumed to be aware of relevant facts, information and data that is relevant to the law that it enacts. Accordingly, in passing the WSIA, the Legislature is presumed to have been aware of the SAWP, which has been in existence since 1966. Yet, there are no statutory or regulatory provisions with respect to SAWP workers to suggest that their coverage under the WSIA is intended to be circumscribed by the nature of their employment or any benefit that they derive from their employment. There are no provisions in the WSIA to remove SAWP workers from the regular administration of benefits. Furthermore, in the Panel’s view, the WSIB is essentially arguing that seasonal agricultural workers have waived their rights to benefits under the Act by choosing to enter into SAWP employment, and accept the conditions the agreement imposes. This argument is inconsistent with section 16 of the WSIA, which states that workers may not waive or forego their rights under the Act, and any agreement to that effect is void.[37] Section 16 is a unique provision that is fundamental to the operation of the workers’ compensation scheme. Therefore, the Panel rejects the WSIB’s argument that SAWP workers choose to accept a different approach to their benefits under the WSIA simply by participating in the SAWP. Even if we were persuaded that SAWP workers could legally choose to opt out of entitlement to LOE and LMR benefits under the WSIA, the contracts entered into by the SAWP workers, SAWP employers, and the respective governments of sending countries do not contain any language to suggest that SAWP workers waive their entitlement to certain types of workers’ compensation benefits. To the contrary, the contracts state that they are governed by the provincial laws in which the worker is employed. The WSIB also did not point to any provisions of the MOUs between Canada and Jamaica and/or Mexico which stipulate that SAWP workers forego their rights to compensation for injuries under the applicable legislation in Canada. The MOU between Canada and Mexico specifically states that they are entitled to workers’ compensation benefits. We further find that the WSIB’s submission is contrary to its own policy, the Foreign Agricultural Workers Policy, which contains no such limitation on the scope of entitlement of SAWP workers. The Foreign Agricultural Workers Policy states that injured SAWP workers are entitled to benefits under the WSIA and contains no provisions which limit the scope of their benefits. The Panel finds that this argument advanced by the WSIB does not fall within any of the relevant categories of statutory interpretation, namely, text, context, and purpose. Even if we were to consider this a relevant legal argument based upon secondary sources, there is little evidence to support the assertion that injured SAWP workers gain a disproportionate benefit from the SAWP employment arrangement that justifies the limitation of their benefits under the WSIA. To the contrary, the appellants submitted volumes of evidence which demonstrates that the balance of power in the SAWP employment relationship tilts against foreign agricultural workers. The WSIB submitted no countervailing evidence, and, as we review in more detail below, it was largely undisputed that SAWP workers are vulnerable to precarious employment circumstances. This evidence further undermines the persuasive value of the argument that SAWP workers make an informed choice to waive their benefits under the WSIA. The WSIB submitted that the limitation of LOE benefits and LMR services to injured SAWP workers is justified by the fact that they choose to participate in the SAWP and benefit from the arrangement. In summary, there are four reasons why this argument cannot succeed on either a legal or factual basis: For the purposes of statutory interpretation, it is irrelevant whether migrant agricultural workers benefit from their participation in the SAWP because this does not fall under the framework of text, context, and purpose; There is no language in the WSIA to suggest that the relative benefit that a SAWP worker gains from an employment relationship has an impact on their entitlement to LOE benefits, whereas the Legislature has set out specific rules for certain categories of employment relationships, such as learners and apprentices; This argument is contrary to section 16 of the WSIA, which provides that a worker may not waive or forego their entitlement to benefits under the Act; Even if we were to find that the worker’s net benefit from an employment relationship is a relevant consideration for entitlement to LOE benefits or LMR services, the evidence does not support a conclusion that SAWP workers benefit from the arrangement to a disproportionate extent such that it justifies limiting their benefits under the WSIA. The preponderance of the evidence establishes that the employment situation of SAWP workers is vulnerable and precarious. Context: Board policies The Tribunal is required to apply Board policy pursuant to section 126 of the WSIA. The Tribunal’s obligation to apply Board policy is subject to the following considerations: Where the merits and justice of the individual case warrant an exception to the strict application of the policy in the circumstances, the Tribunal may decide not to apply the policy to the individual case;[38] Where the Tribunal considers a policy to be inconsistent with or unauthorized by the WSIA, or not applicable to the particular appeal, section 126 establishes a mechanism by which the Tribunal may refer policies to the Board, after which the Board issues a direction with its findings regarding the policy. Pursuant to subsection 126(2) of the WSIA, the WSIB stated in writing which policies apply to the subject-matter of the appeals in each of the four cases.[39] The subject-matter in these appeals is the interpretation of sections 42 and 43 with respect to the entitlement of SAWP workers. The Panel makes the following observations with respect to the various policies which the Board stated to be applicable: There is no Board policy which restricts SAWP workers to 12 weeks of long-term LOE benefits. There is no Board policy that states that SAWP workers are not entitled to LMR services. There is no Board policy which states that the Ontario labour market must be considered in every case for the purposes of determining suitable and available employment under section 43 of the WSIA. The Panel reviews the relevant policies below. (1) The Foreign Agricultural Workers Policy: OPM Document No. 12‑04-08 To understand the scope of the WSIB’s jurisdiction with respect to SAWP workers, we start with a review of OPM Document No. 12-04-08, “Foreign Agricultural Workers.” The “Foreign Agricultural Workers Policy,” (dated June 15, 1999) was included in the statement of applicable policy under section 126 in three of the four appeals. This Policy addresses rules for coverage, premiums, participating countries, and filing a claim for injured SAWP workers. The Policy states that “Foreign agricultural workers who have entered into employment agreements with Ontario agricultural employers have coverage with the WSIB.” The Policy goes on to set out “rules for coverage,” which refers to coverage for injuries in the course of employment. The policy provides that coverage begins as soon as workers reach the agreed‑upon point of departure in their homeland, and remains in place until they return to their country. While travelling in Ontario, these workers are covered when In transit from an airport in Ontario to the employer’s premises and/or Using a means of transportation authorized by the employer, and Following a direct and uninterrupted route to or from the employer’s premises. In addition to coverage while in the course of employment, workers are also covered during periods of leisure, meals, and while sleeping in employer-provided quarters. These provisions establish an inclusive approach to determining whether a worker is in the course of employment for the purposes of coverage for an injury under the WSIA. Under the Policy, there are exceptions to coverage, such as recreational activities away from the employer’s premises, the repair of personal property, and activities not related to the employment. The Foreign Agricultural Workers Policy also sets out guidelines for average earnings and states that the WSIB generally calculates average earnings for foreign agricultural workers in the same manner as resident workers. However, where a long-term average earnings recalculation is required, decision makers may use: The worker’s actual earnings from employment outside of the agricultural employment agreement (including work outside Ontario in the off-season) (the Panel’s emphasis); Probable Employment Insurance (EI) benefits that would otherwise be payable to a resident worker because unlike seasonal resident workers, foreign agricultural workers are not eligible for EI. The Panel finds the Average Earnings provisions to be notable because they demonstrate that the WSIB does take into account evidence of a worker’s earnings outside of Ontario and does not suggest that the WSIB is limited to considering only Ontario wages. With respect to filing a claim, the Foreign Agricultural Workers Policy provides that injured workers must file a claim for benefits before leaving Canada, with reference to OPM Document No. 15-01-03, Worker’s Requirement to Claim and Consent. If the worker does not file before leaving Canada, the worker’s liaison officer is responsible for ensuring that the Form 6 (Workers’ Report of Injury/Disease) is completed by the worker and returned to the WSIB. If the worker is entitled to benefits under the insurance plan, the WSIB issues the first benefit payment (up to two weeks of loss of earnings benefits) even if the claim for benefits has not been received. However, no further benefits are provided until the claim for benefits is received, whether the worker is in or out of Canada. According to the Foreign Agricultural Workers Policy, liaison officers of the countries participating in the international migrant agricultural agreements are responsible for the worker’s interests and for the worker’s transportation needs to and from Canada. The WSIB’s agriculture sector office maintains a list of these liaison officers. The Foreign Agricultural Workers Policy states that the WSIB must be notified when injured workers leave the country, with reference to OPM Document No. 15-06-07, Leaving the Province/Country. In the Panel’s view, the Foreign Agricultural Workers Policy has the highest degree of specificity to the circumstances of these cases. We agree with the submission of the workers’ representatives that this policy specifically permits the WSIB to consider the home labour markets of SAWP workers to determine their pre-accident average earnings. It states that the Board can use earnings from “work done outside Ontario during the Ontario agricultural ‘off‑season’” to determine a SAWP worker’s pre-accident average earnings under section 53 of the WSIA. The WSIB Memoranda in these appeals demonstrate that the WSIB did in fact make inquiries through the Jamaican Liaison Office to determine whether the workers had “offshore earnings” that ought to be taken into account in determining their pre-accident earnings. In summary, the Foreign Agricultural Workers Policy does not contain any provisions on the limitation of entitlement to LOE benefits and it does not address the labour market to be used for determining suitable and available employment. It does not state that the long-term LOE benefit payable to SAWP workers is limited to 12 weeks and it does not indicate that SAWP workers are not entitled to labour market re-entry services in accordance with the provisions of the WSIA. To the contrary, the Foreign Agricultural Workers Policy affirms that such injured workers are entitled to benefits under the WSIA. (2) LOE and LMR Policies There are different versions of LOE and LMR policies based upon their effective date and the period of benefits at issue. In 2010, the WSIB introduced a new set of policies and introduced the terms Work Reintegration, Work Transition, and Suitable Occupation, whereas the statute uses the terms early and safe return to work, labour market re-entry, and suitable employment or business. In our analysis, the Panel will focus on the versions of policies contained in the record, which are the policies that the Board has stated are applicable to these appeals under section 126 of the WSIA. OPM Document No. 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review) (the “LOE Benefit Policy”), dated July 15, 2011, begins with a statement of the law under section 43 of the WSIA. The policy states that a worker who has a loss of earnings as a result of a work-related injury is entitled to payment of loss of earnings (LOE) benefits when the loss of earnings begins. The payment ends in circumstances which include the cessation of the loss of earnings, the resolution of the worker’s impairment due to the injury, or the worker reaching age 65. The LOE Benefit Policy sets out guidelines for the calculation of LOE benefits and addresses different scenarios in which LOE is payable. With respect to “determining post-injury earnings,” the Policy states that earnings may be determined when it is decided that a worker will not be provided with work reintegration (WR) services or a work transition (WT) plan is completed or closed. Those earnings are determined using the identified suitable occupation and the anticipated wages associated with the suitable occupation, which are determined using current wage and labour market information. If a worker obtains a job in the identified suitable occupation, the WSIB generally uses the actual employment earnings to calculate the partial LOE benefit. The LOE Benefit Policy goes on to address different scenarios which may occur after the completion or closure of a WT plan. The LOE benefit compensates workers for their loss of earnings resulting from the work-related injury. The LOE benefit is paid with reference to the established earnings in the suitable occupation. The Policy states that the LOE benefit should not be increased if reduced earnings are related to economic conditions or the worker’s choice to be under employed. If the worker remains unemployed at the completion or closure of the WT plan, the LOE benefits are paid using the earnings the worker would earn if employed in the suitable occupation specified in the WT plan. A worker is considered to be under-employed when they are employed in such a way that does not permit the use of their full abilities, skills, and training in mitigating the loss of earnings resulting from the work-related injury. The LOE Benefit Policy does not contain any provisions which suggest that labour market information used to determine current wages is limited to the Ontario labour market. As will be discussed below, there are decisions of the WSIB which show that WSIB decision‑makers have used labour market information from outside Ontario for determining a worker’s suitable occupation. OPM Document No. 19-02-01, Work Reintegration Principles, Concepts, and Definitions (December 3, 2012) (the “Work Reintegration Policy”), sets out guiding principles which underpin the legislation and policy: appropriate and early Work Reintegration (WR) that maintains the dignity and productivity of a worker plays an important role in the worker’s rehabilitation and recovery where recovery and WR barriers occur, they must be addressed quickly through early support and intervention a worker’s prospects for successful WR both in the short- and long-term are often best achieved by maximizing opportunities for return to work with the injury employer, including retraining for a suitable occupation (SO) with that employer a worker should be offered programs that are of a high quality and practical, and the WSIB must provide the worker with meaningful input and choice in relation to the programs offered, and WR is often part of the recovery plan. In the case of migrant workers, return to work with the accident employer is not an option. In the Panel’s view, the reference in policy OPM Document No. 19-02-01 to “high quality and practical” programs with “meaningful input” from the worker conveys an intention to provide real-world assistance to workers, rather than deeming them to be able to work in a notional job in a labour market that is not available to them. As noted above, the Work Reintegration Policy defines “available work as it relates to the labour market”: “Available means that employment must exist and be in demand in the labour market to the extent that the worker has a reasonable prospect of obtaining employment.” In addition, according to the policy, a suitable occupation represents a category of jobs suited to a worker’s transferable skills that are safe, productive, consistent with the worker’s functional abilities, and that, to the extent possible, restores the worker’s pre-injury earnings. The policy states that the suitable occupation must be available with the injury employer or in the labour market. OPM Document No. 19-03-03, Determining Suitable Occupation, (December 3, 2012) (the “Suitable Occupation Policy”), contains relevant definitions of local and regional labour markets. A “local labour market” is not limited to a particular town or city but also comprises any surrounding areas “to which the worker might reasonably commute.” In order to identify a reasonable commuting distance for a SO, the WSIB takes into consideration the following factors: The worker’s commuting pattern in the pre-injury job; The expected travel requirements of the suitable occupation; and The extent of the worker’s permanent impairment and any limitations on the worker being able to travel. According to the Suitable Occupation Policy, if there are no suitable occupations in the local labour market, the labour market may be expanded to the extent necessary to identify available SO opportunities. Relocation is a work reintegration option that may be considered when a suitable occupation is not available with the injury employer or in the local labour market. Relocation Services are addressed in another policy, OPM Document No. 19-03-11. The Panel notes that the Suitable Occupation Policy states that the WSIB uses the National Occupational Classification (NOC) system developed by Human Resources and Skills Development Canada, and labour market information from the Ontario government as the “primary source” of labour market information to help identify suitable occupations and work transition services the worker may require. The reference to the Ontario labour market information reflects the fact that the majority of injured workers covered by the WSIA are Ontario residents. However, the reference to the Ontario labour market as the “primary source” of information does not preclude the use of other sources of information, where applicable. The relevant policies as a whole convey an intention to focus upon potential suitable occupations that are available to the worker in their labour market and there must be a reasonable prospect that the worker can secure employment in the occupation. (3) Leaving the Province Policy: OPM Document No. 15-06-07 The WSIB’s written statements of applicable policy also included OPM Document No. 15-06-07, “Leaving the Province/Country,” dated July 18, 2008 (the “Leaving the Province Policy”). There is no language in this policy which states that it applies to SAWP workers or other out‑of‑province workers who are injured in Ontario. In the Panel’s view, the language of this policy suggests that it applies to workers who are residents of Ontario when they are injured and who decide after the injury to move residence for reasons unrelated to the injury. The Leaving the Province Policy sets out the general principle that a worker’s WSIB benefits may be affected when a worker/survivor leaves the province or country. To minimize the possibility of an interruption in benefits, workers who leave the province or country are expected to notify the WSIB beforehand. The Panel will review the Leaving the Province Policy in some detail to explain our reasons for our interpretation of this Policy: The main purpose of this Policy is to affirm a worker’s obligation to notify the WSIB in advance of a plan to move out of Ontario. This is consistent with a worker’s general statutory obligation to notify the WSIB of a material change in circumstances. Where a worker does not notify the WSIB of a plan to move out of Ontario, it may have an impact on the worker’s benefits and entitlement to other services, such as LMR. The Leaving the Province Policy contains no specific provisions about SAWP workers or other migrant workers (such as workers from other provinces), and does not contain any provisions limiting the benefits of seasonal agricultural workers. The Leaving the Province Policy does not stand for a general principle that LOE benefits may only be paid based upon the Ontario labour market, but rather, it sets out different outcomes depending on the circumstances of the case. The Leaving the Province Policy addresses vacations, temporary absences, and moving out of the province/country, with the latter category being the most relevant here in view of the WSIB’s submissions. The Policy provides that if the worker is on a medical rehabilitation (MR) program or is involved in WR activities is receiving temporary disability benefits, a future economic loss (FEL) supplement or loss of earnings (LOE) benefits, and notifies the WSIB that he/she is leaving the province/country, he/she will generally need to provide the WSIB with satisfactory clinical evidence and any other requested information to support ongoing entitlement to benefits. In the four cases before us, the injured workers were in receipt of, or entitled to, LOE benefits when they were required to leave the country because they had injuries that prevented them from performing their pre-accident work. The emphasis of the above provision from the Leaving the Province Policy is that workers are required to continue to provide relevant clinical and other information to support ongoing entitlement to benefits. This provision does not limit entitlement to benefits to 12 weeks of LOE when workers leave the province or the country, or otherwise prescribe the labour market to be used for the calculation. The four cases before us did not relate to a failure to notify the Board of a material change in circumstances, namely, being repatriated to one’s home country due to an injury. There is a further provision that the Panel finds to be applicable to the factual circumstances of these four cases. According to the Leaving the Province Policy, if a worker has returned to work, with or without a loss of wages/earnings, or has not returned to work, and is receiving temporary disability benefits; or FEL benefits or LOE benefits where a final review has not been completed, and notifies the WSIB that he/she is leaving the province/country, the WSIB may obtain any information necessary to conduct a review and following that review may confirm, vary or discontinue ongoing benefits.[40] This provision of the Leaving the Province Policy demonstrates that the WSIB may continue to review a worker’s circumstances after they leave the country to determine the worker’s ongoing entitlement to LOE benefits. The Policy does not limit a SAWP worker’s benefits to 12 weeks of LOE benefits if they leave the country, but rather, it suggests that further adjudication may occur, and further evidence may be gathered if necessary. As a result of this review, the worker’s benefits may be confirmed, varied or discontinued. Furthermore, the Policy does not restrict the labour market for calculating LOE benefits to Ontario. In the Panel’s view, there is no reasonable interpretation of this policy to justify the limitation of long-term LOE benefits to SAWP workers to 12 weeks or disentitle them to LMR services. In the Panel’s view, the Leaving the Province Policy does not suggest that a worker’s benefits are always terminated when they leave the province, but rather, the Policy gives rise to a number of elements to consider in determining ongoing entitlement: First, did the worker leave Ontario? If so, did they do so without notifying the WSIB? If that is the case, payments may be suspended and the claim file could be closed. However, benefits may be restored if the worker is available for examination and assessment by the WSIB. In the Panel’s view, the language of this Policy demonstrates that it does not apply to any of the four cases before us, nor does it justify the limitation of long-term LOE benefits to SAWP workers to 12 weeks, without regard for the worker’s circumstances. In each of the cases here, the determination of LOE benefits did not turn on a failure to notify the WSIB that the worker was leaving the country. In general, the records show that there were communications between the WSIB, the employers and the Liaison Office about the arrangements made for the workers to leave the country. The workers often were not engaged in the discussions about the manner of their repatriation, but rather, they were instructed by their employer and/or the Liaison Office about how and when they were to return to their home country. The evidence concerning the SAWP program indicates that, for these SAWP workers, and SAWP workers generally, leaving Ontario is generally not their own choice. The evidence before the Panel further shows that the communication about the SAWP worker’s repatriation usually comes from the SAWP employer and/or the Liaison Office from the worker’s home country. For the SAWP workers in the four cases before us, leaving Ontario was not their own choice and the WSIB was aware the arrangements in a timely manner. Furthermore, the Leaving the Province Policy demonstrates that, even if a worker does leave the province without notifying the WSIB, benefits may be restored once communication is re-established. The general principle is that workers are required to co-operate and report material changes in circumstances in accordance with specified policies and provisions of the WSIA. In submissions, the WSIB placed emphasis on the section which applies where “a worker is receiving permanent disability, future economic loss, or LOE benefits where a final review has been completed and notifies the WSIB that they are leaving the province or country, the WSIB will continue to issue benefit payments in the same manner as if the worker resided in Ontario.” Under the terms of the policy, if a worker has returned to work with or without a loss of wages/earnings, or has not returned to work and is receiving temporary disability benefits, or FEL or LOE benefits where a final review has not been completed, the WSIB may obtain any information necessary to conduct a review and following that may confirm, vary or discontinue ongoing benefits in accordance with specified policies. In its submissions, the WSIB emphasized the statement that the WSIB will continue to issue benefit payments in the same manner as if the worker resided in Ontario. However, the WSIB’s submissions do not address the full sentence contained in the Policy, which states that it applies where “a final review has been completed…” In these four appeals, and in most cases involving injured SAWP workers, the limitation of their benefits to 12 weeks of LOE occurs well before the final review, which, according to the statute, occurs 72 months after the injury (section 44). We note that most SAWP workers would not likely be permitted to remain in Ontario for 72 months after their injury, given the SAWP requirements to return to one’s home country by December 15th of each year. Therefore, this provision about calculating LOE benefits when a worker has left the country where a final review has been completed does not appear to have application to most SAWP workers and does not apply to the four cases before us. Therefore, in our view, the WSIB’s submissions rely on a provision of the Leaving the Province Policy that applies to factual circumstances that are distinguishable from those presented by these cases and by the circumstances of injured SAWP workers generally. The Leaving the Province Policy focuses on the responsibility of the worker to keep the WSIB informed about a change of residence, in keeping with the general obligation to report a material change in circumstances (section 23 of the WSIA). This Policy does not prescribe a specific outcome for SAWP workers, who are required to leave Ontario because their injury prevents them from continuing as agricultural workers. The weight of the evidence before the Panel demonstrates that migrant agricultural workers have little to no control over their ability to continue working in Ontario after an injury and little to no control of the timing or manner of their repatriation to their home countries. These four cases demonstrate that the communication about repatriation often occurs between the WSIB, the employer, and the Liaison Office, with minimal input from the worker, if any. In summary, the Panel finds: The Leaving the Province Policy does not dictate that LOE benefits must be based upon the Ontario labour market; The Leaving the Province Policy does not state that workers who leave the province are not entitled to LMR (WR) services; The Policy operates to suspend benefits where a worker does not report that they are leaving the province, which does not apply to the facts of these four cases; and The Policy manifestly does not limit the long-term benefits of SAWP workers to 12 weeks of LOE benefits. (4) Post-Accident Change Policy: OPM Document No. 15‑06-08 Counsel for the WSIB also relied upon OPM Document No. 15-06-08, Adjusting Benefits Due to Post-accident, Non-work-related Change in Circumstances (the “Post-Accident Change Policy”) in support of its position that SAWP workers are not entitled to LOE benefits or LMR services which take into account their actual labour market.[41] As with the Leaving the Province Policy, there is no language in this Policy to suggest that it applies to SAWP workers or other out of province workers who are injured in Ontario. To the contrary, the language of this policy suggests that it applies to workers who are residents of Ontario when they are injured and who decide after the injury to move residence for reasons unrelated to the injury. The Post-Accident Change Policy begins with the following general statement: “If a worker’s loss of earnings (LOE) is not solely[42] the result of the work-related injury/disease, benefits may be adjusted to reflect the degree of work-related impairment.” According to the Policy, examples of post-accident, non-work-related change in circumstances may include but are not limited to Injuries sustained as a result of a non-work-related accident Deterioration of a pre-existing condition Permanent relocation for reasons unrelated to the work-related injury Physical conditions (e.g. pregnancy, cardiac, hernia) An urgent family matter requiring the worker to leave the province/country for an extended period of time, or Incarceration. The Post-Accident Change Policy sets out consequences for temporary and permanent impacts in various scenarios which turn on the worker’s level of work-related impairment and the availability of suitable work with the accident employer. In terms of return to work with the injury employer, the Post-Accident Change Policy sets out the following principles and examples: No suitable work available If an ongoing work-related impairment exists and the injury employer has no suitable and available work that is consistent with the worker’s functional abilities for the work‑related injury/disease and pre-existing condition(s)/pre-accident disability(ies), full benefits are payable and the claim may be referred for a work transition (WT) assessment and/or plan, see 19-03-03, Determining Suitable Occupation. Suitable work available at a wage loss If an ongoing work-related impairment exists that prevents a worker from returning to preinjury employment, but the worker is either unable or unavailable, due to a post‑accident, non-work-related change in circumstance, to accept an offer of suitable work at a wage loss, a partial benefit is payable. Example #1 - unable to participate in WR with the injury employer (due to a non‑work‑related physical condition) Sandra sustained a work-related low back injury in September 2006. She notifies her decision-maker in December 2006 that she is pregnant and that her doctor advised her to avoid treatment and investigations for her lower back. Her employer is able to offer Sandra a job that is suitable for her low back injury but, according to the medical reports, the job is not suitable because Sandra is experiencing complications with her pregnancy. The job pays less than Sandra’s pre-accident earnings. Even though Sandra is not able to work at all, her benefits are reduced to reflect the difference between her pre-accident earnings and what she could be earning from the employer’s job offer. The decision-maker monitors Sandra’s medical progress to find out when she is fit to continue WR activities, or when she fully recovers from her work-related injury. The decision-maker adjusts Sandra’s benefits when she is ready to continue WR activities, sometime after the delivery of her child; or if she fully recovers from her work‑related impairment/disability. Example #2 - unable to participate in WR with the injury employer (due to relocation for reasons unrelated to the work-related injury) Sam sustained a right shoulder injury in February 2010. He was unable to return to his pre-injury job due to clinical restrictions related to the right shoulder injury. In April 2010, Sam notifies his decision-maker that he has decided to move to the Maritimes in order to be closer to his family. At the same time, it was confirmed that Sam’s injury employer is able to provide him with a SO. The SO pays less than Sam’s pre-accident earnings. Even though Sam is not available to accept the SO due to his decision to relocate, because the SO pays less than the pre-injury job, Sam's benefits are reduced to reflect the difference between his pre-injury earnings and what he could be earning in the SO. The decision-maker reviews and monitors Sam’s case to find out when he will fully recover from his work-related injury at which time benefits cease. (At this point, further payments can be made based on an estimate of the period benefits would likely be payable.) If it is established that a permanent impairment is evident and Sam is unable to return to his pre-injury employment, the WSIB may use the relevant information in the claim file to conduct a WT assessment in order to identify a SO. LOE benefits would then be recalculated using the wage associated with the SO that was identified for Sam. Because Sam was injured while working in Toronto, the wages associated with the SO would reflect wage information for the Greater Toronto Area, not those associated with Sam’s new place of residence. If Sam’s unavailability prevents the WSIB from conducting a WT assessment in order to identify a SO, benefits would be discontinued. NOTE The LOE benefit compensates workers for his or her loss of earnings due to the work‑related injury. The LOE benefit should not be increased if reduced earnings are related to the economic conditions of the worker’s new region. The example of a worker who is unable to participate in WR with the injury employer due to relocation for reasons unrelated to the work-related injury assumes that the injured worker is ordinarily resident in Ontario at the time of the injury and makes a choice to relocate after the injury for non-injury related reasons. In the case of both SAWP workers and other out‑of‑province workers, this assumption is usually not applicable. In these four cases, the injured workers were in Ontario solely for the purposes of work and then returned to their residences in their province or country of origin when they were no longer able to work in Ontario. In most cases – whether the injured workers are migrant workers or from other provinces – their injury prevents them from returning to work in Ontario. In the case of SAWP workers, the health examination requirements of the SAWP prevent these injured workers from qualifying to work in Ontario after an injury that has led to a permanent disability. Furthermore, in the case of SAWP workers (and perhaps other migrant workers), the relocation is in fact related to the workplace injury. But for the injuries, these workers would have likely remained in Ontario until the completion of their seasonal work term, and likely would have returned for future seasons, whether with the accident employer or a new employer in Ontario. Therefore, the loss of earnings is properly viewed as “a result of the injury” within the meaning of section 43, as we discussed above. The application of the WSIA as a provincial statute to SAWP workers who enter Canada pursuant to international agreements The WSIB argues that a “close reading of the Act in its entirety, including the context in which it was enacted, its scheme and objectives, indicates that its application is intended to be limited to Ontario.” The Panel finds that this argument is not supported by the relevant text and context of the WSIA, the applicable policies, or Tribunal case law. Furthermore, we find that the payment of LOE benefits and provision of LMR services based upon the actual labour market of SAWP workers does not exceed provincial jurisdiction. The WSIB refers to the Constitution Act, 1867, 30 & 31 Vict, c 3. Section 91 enumerates the classes of subjects which are within the exclusive legislative jurisdiction of Parliament. Section 92 is the source of provincial legislative authority. As stated at the outset, there is no dispute by any party that the WSIA applies to migrant workers who are injured in the course of their employment in Ontario. That is codified in Board policy and contained in the SAWP agreements entered into by SAWP workers, Ontario agricultural employers, the sending country, and the government of Canada. The Panel relies upon the reasons of the Supreme Court of Canada in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, to guide the analysis of section 92 of the Constitution Act. Major J., for the Court, set out the principles as follows: Section 92 of the Constitution Act, 1867 is the primary source of provincial legislatures’ authority to legislate. Provincial legislation must therefore respect the limitations, territorial and otherwise, on provincial legislative competence found in s. 92. The opening words of s. 92 — “In each Province” — represent a blanket territorial limitation on provincial powers. That limitation is echoed in a similar phrase that qualifies a number of the heads of power in s. 92: “in the Province”. The territorial limitations on provincial legislative competence reflect the requirements of order and fairness underlying Canadian federal arrangements and discussed by this Court in Morguard Investments Ltd. v. De Savoye, 1990 CanLII 29 (SCC), [1990] 3 S.C.R. 1077, at pp. 1102-3, Hunt v. T&N plc, 1993 CanLII 43 (SCC), [1993] 4 S.C.R. 289, at pp. 324-25, and Unifund Assurance Co. v. Insurance Corp. of British Columbia, [2003] 2 S.C.R. 63, 2003 SCC 40, at para. 56. They serve to ensure that provincial legislation both has a meaningful connection to the province enacting it, and pays respect to “the sovereignty of the other provinces within their respective legislative spheres”: Unifund, at para. 51. See also, generally, R. E. Sullivan, “Interpreting the Territorial Limitations on the Provinces” (1985), 7 Sup. Ct. L. Rev. 511. Where the validity of provincial legislation is challenged on the basis that it violates territorial limitations on provincial legislative competence, the analysis centres on the pith and substance of the legislation. If its pith and substance is in relation to matters falling within the field of provincial legislative competence, the legislation is valid. Incidental or ancillary extra-provincial aspects of such legislation are irrelevant to its validity. See Reference re Upper Churchill Water Rights Reversion Act, 1984 CanLII 17 (SCC), [1984] 1 S.C.R. 297 (“Churchill Falls”), at p. 332, and Global Securities Corp. v. British Columbia (Securities Commission), [2000] 1 S.C.R. 494, 2000 SCC 21, at para. 24. In determining the pith and substance of legislation, the court identifies its essential character or dominant feature: see Global Securities Corp., at para. 22, and Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31, at para. 16. This may be done through reference to both the purpose and effect of the legislation: see Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 2 S.C.R. 146, 2002 SCC 31, at para. 53. See also Fédération des producteurs de volailles du Québec v. Pelland, [2005] 1 S.C.R. 292, 2005 SCC 20, at para. 20. Accordingly, adopting the language of the Court, the Panel must consider the “pith and substance” of payment of LOE benefits based upon a SAWP worker’s local labour market “is in relation to matters falling within the field of provincial legislative competence.” If so, “the legislation is valid.” As noted above, the WSIA applies to migrant agricultural workers who are injured in Ontario in the course of performing their duties under the SAWP. The MOUs and the SAWP contracts confirm that they are governed by the laws of Canada and the province in which the SAWP worker is employed. The applicability of the WSIA is confirmed through the Foreign Agricultural Workers Policy. The Panel finds that the “pith and substance” of the payment of LOE benefits under the WSIA and applicable policy clearly falls within provincial purview. The essential character or dominant feature of LOE benefits is to compensate for the loss of income caused by the injury, which is the difference between an injured worker’s pre-accident earnings and what they are able to earn in suitable and available employment after the injury. In the case of migrant agricultural workers, the consequences of the injury include the inability to restore pre-accident earnings. Ontario agricultural employers and SAWP workers enter into contracts pursuant to the MOUs that the Government of Canada agrees upon with sending countries such as Jamaica and Mexico. Although there appear to be different versions of these contracts, the contracts generally provide that the worker, the employer and ESDC/Service Canada shall be governed by the laws of Canada, and of the province or territory in which the worker is employed. The record shows that the WSIB continues to administer entitlement to benefits under the WSIA to migrant agricultural workers after they are repatriated to their home countries. This includes communication with the liaison officers in the participating countries to arrange health care assessments and referrals to specific health care professionals. The WSIB also arranges for the assessment of non-economic loss (NEL) awards for permanent impairment for workers outside of the country without any suggestion that it exceeds provincial legislative jurisdiction. This is demonstrated in the applicable policy and the records of each of these four appeals. We find, therefore, that the WSIA can and does reach beyond the borders of the province of Ontario in certain circumstances, without trenching upon federal jurisdiction or the jurisdiction of other provinces. In summary, the Panel is not persuaded that it exceeds provincial legislative competence to recognize the actual post-accident ability to earn of injured SAWP workers when determining their LOE benefits. The Foreign Agricultural Workers Policy affirms that SAWP workers are entitled to benefits under the WSIA and the pith and substance of payment of benefits to injured workers under the WSIA falls squarely within provincial jurisdiction. The administration of benefits to workers located outside of Ontario, including their ability to earn income in their local labour markets, falls within provincial legislative competence as “incidental or ancillary extra‑provincial aspects” of the legislation that are “irrelevant to its validity.” Statutory purposes and scope Section 1 of the WSIA states that the purpose of the Act is to accomplish the following objectives in a financially responsible and accountable manner: To promote health and safety in workplaces. To facilitate the return to work and recovery of workers who sustain personal injury arising out of and in the course of employment or who suffer from an occupational disease. To facilitate the re-entry into the labour market of workers and spouses of deceased workers. To provide compensation and other benefits to workers and to the survivors of deceased workers. 1997, c. 16,. 1; 1999, c. 6, s. 67 (1); 2005, c. 5, s. 73 (1); 2011, c. 11, s. 19. The second, third, and fourth purposes focus on support for injured workers, their return to work, and the provision of compensation and benefits of injured workers. These are the core statutory purposes that are relevant to these appeals. Section 96 of the WSIA establishes the responsibility of the WSIB to maintain the insurance fund. In Ontario, the workplace insurance scheme is funded through premiums paid by employers covered by the Act. The industries subject to the WSIA are listed in Schedule 1 and Schedule 2 of Ontario Regulation 175/98. Employers under Schedule 1 pay premiums calculated based upon their payroll and the premium rate set by the WSIB (subject to rebates and surcharges which are generally based upon claims cost experience). Schedule 2 employers (primarily governments and governmental agencies) are individually liable to pay the benefits under the insurance plan respecting their injured workers (section 90). Various farm operations were added to the list of covered industries effective January 1, 1966,[43] and “Agriculture” is currently listed as Class A in the list of industries with compulsory coverage under Schedule 1. Is the limitation of LOE benefits and LMR services to SAWP workers justified by the principle of financial responsibility and accountability? In its submissions, the WSIB cited its obligation to accomplish the purposes of the Act in a financially responsible and accountable manner as a justification for limiting LOE benefits and LMR services to migrant agricultural workers. The Panel recognizes the importance of financial responsibility and accountability in the administration of the workplace and insurance scheme. This statutory purpose may inform the interpretation of benefit-conferring provisions of the Act where they are ambiguous and open to more than one interpretation; however, the Panel finds it is not appropriate to conflate the principles of good public administration with the substantive principles that govern the payment of benefits and other matters under the WSIA. Both the WSIB and WSIAT have important roles as stewards of limited resources and public funds[44] in the administration of our services to stakeholders, but there is a lack of authority for the proposition that financial concerns may be used as a justification to override the plain meaning of specific substantive provisions of the WSIA. Our interpretation is supported by Surdivall v. Director of the Ontario Disability Support Program, 2014 ONCA 240 (CanLII), which was cited by the workers’ representatives. In that decision, the Court addressed an issue regarding the recovery of an overpayment of benefits under the Ontario Disability Support Plan Act, 1997, S.O. 1997, c. 25, Sched. B. Laskin J.A., for the Court, addressed the issue with reference to the four objectives of the program, one of which is to be “accountable to the taxpayers of Ontario.” Laskin J.A. commented upon the interpretation of this phrase (at paragraph 44): I think that both the Divisional Court and the respondent have taken too narrow a view of the program's objective of accountability to Ontario’s taxpayers. This objective does not require that overpayments always be recovered. It requires that they be recovered if circumstances warrant their recovery. Thus, for example, if the cost of recovering an overpayment would exceed the actual recovery of the overpayment, then insisting on recovery would not further the program’s objective of accountability to Ontario’s taxpayers. For this reason, the Director’s own policy is not to recover overpayments of less than $2.50. In my view, the ODSP will be accountable to the taxpayers of Ontario if public funds are spent fairly, honestly and reasonably. The Director’s discretion over the recovery of overpayments is not open-ended. It must be exercised reasonably taking account of a disabled recipient’s individual circumstances. In some cases, it will not be reasonable for the Director to recover all or part of an overpayment. Forgoing recovery in these cases is still consistent with the program’s objective of accountability to the province’s taxpayers. We find Laskin J.A.’s comments to be applicable here. We interpret the statutory purpose of financial accountability to mean that the WSIAT and the WSIB are accountable in ensuring that funds are spent “fairly, honestly, and reasonably.” The WSIB cited Decision No. 1059/09I2, 2012 ONWSIAT 1554, in support of its position that the principles of financial accountability justified limiting the entitlement of injured SAWP workers to LMR services and LOE benefits. In that case, the Panel addressed a challenge to the WSIB’s policies with respect to clothing allowances and whether a change in the policy was warranted or arbitrary. The Panel held that the Board had improperly exercised its discretion in the 1996 clothing allowance policy when it reduced compensation for soft back supports by 50%. Counsel for the WSIB referred to the Panel’s interpretation of the phrase “financially responsible and accountable” (paragraphs 109-110): The Panel finds a plain reading of the statute to direct that compensation benefits to and associated services for injured workers must, within a financial context, be explicable, reliable, trustworthy and able to be accounted for. This does not denote that frugality ‑ saving money or cutting costs - will be the only consideration. The underpinning is one of good faith and the ability to explain any action, whether it is to cut, maintain, or increase spending in any given area. We agree with the above passage, but in our view, it does not suggest that the principle of financial responsibility justifies paying benefits in a way that is inconsistent with the substantive benefit-conferring provisions of the WSIA. Paying benefits to SAWP workers in accordance with section 43 of the WSIA and binding Board policy is consistent with the obligation to act in good faith and to be able to explain any action with respect to payment of benefits. The WSIB’s submissions also refer to Gouthro v.
• Judgement Number: Released_Decisions
• Hearing Date: 16 December 2022
• Issuer: Workplace Safety and Insurance Appeals Tribunal of Ontario

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