By Gerald V. Paul
The good news could not have come at a better time for 102 migrant workers who had their Employment Insurance (EI) parental benefits claims turn down: the Federal Court of Appeal has ordered new hearings for them.
Most workers from the Caribbean, who have been coming to Canada under the federal Seasonal Agricultural Workers Programme (SAWP) since 1966, have been ineligible for regular EI benefits, because they return home in the off-season and are therefore not ready and available for work in Canada during that time.
But until Ottawa changed the rules late last year, the workers were eligible for up to 35 weeks of EI “special benefits” covering maternity, parental and compassionate leave, because there was no residency requirement at the time.
Advocacy groups for migrant workers began spreading the word about this fact in 2002, and helped workers apply.
But in 2008, Ottawa started denying backdated claims.
The workers appealed, and at the hearing, the Federal Court identified the vulnerabilities of these workers.
“When assessing the existence of good cause for delay, boards of referees had been correct in law to take into account the impact of the work, and other conditions of the SAWP claimants on their ability to access information about their benefits,” the Court of Appeal decision says.
The 102 workers involved in the case claimed there was no deadline for applying for EI, as long as the worker can show that they had a good reason for not applying earlier. All of the workers made EI contributions – for over 15 years in some cases – and were otherwise entitled to the parental benefit, a joint press release from the Income Security Advocacy Centre and Niagara North Community Legal Assistance stated.
“EI was approving migrant worker parental benefits for years, without questioning the length of delay,” said Jennifer Pothier, co-counsel at Niagara North Community Legal Assistance.
“The barriers migrant workers faced in applying were accepted by the Commission. But in 2008, they started denying all the applications. So what changed at EI? Now the Court has recognized the barriers and so must any future decision-maker,” she added.
“I am happy and excited about how the case went,” said Glendon Sanchez, one of the migrant worker applicants in the case. “But this is not simply about me. I hope that this can help the people coming after me. I also want to help my daughter. This money would greatly help towards her college fund.”
Unfortunately, this case will only help those migrant workers who applied before December 9, 2012. On that date, the government of Canada changed the law to make it even harder for migrant workers to access EI special benefits. Now migrant workers can only access parental, maternity and compassionate benefits during the period covered by their work permit.
The Seasonal Agricultural Workers Program was created in 1966. Since then, workers from the Caribbean and Mexico have been coming to Canada to plant and harvest the food for Canadians, the press release stated.
Like other Canadian workers, these workers make contributions to EI with every paycheque and have paid tens of millions of dollars into the EI fund. But because they are required to leave the country at the end of their work contract each year, they cannot qualify for most EI benefits.
To qualify for regular EI benefits, workers generally have to be living in Canada during the period of their unemployment in order to be “ready and available” for work.
“Special benefits”, like maternal, parental and compassionate benefits are the only exceptions. Parents caring for newborn children do not have to be in Canada to be eligible for EI parental benefits, as they are not expected to be “ready and available” for work.
No dates have been scheduled for the new hearings.