In this case, the Ontario Divisional Court reviewed a Human Rights Tribunal decision that dismissed a worker’s discrimination claim at an early age. Ali Bokhari, an ambulance driver, injured his ankle and requested two weeks off work to recover. Shortly after, his employer terminated his employment. Mr. Bokhari filed a human rights application alleging discrimination based on disability.

Before holding a hearing, the Human Rights Tribunal dismissed his application on the basis that it did not fall within its jurisdiction. The Tribunal concluded that his ankle injury was a temporary condition and not a “disability” under the Human Rights Code. It also applied a new “balance of probabilities” test when screening the application. Mr. Bokhari sought judicial review because of this.

The Divisional Court allowed his application. The Court found that the Tribunal improperly treated the issue as a jurisdictional question instead of a merits issue. Determining whether an injury qualifies as a disability requires a full, contextual analysis and cannot be decided at an early screening stage. The Court also ruled that it was unreasonable for the Tribunal to lower its usual “plain and obvious” threshold for dismissing cases at the jurisdiction stage. The Court set aside the Tribunal’s decision and ordered that Mr. Bokhari’s application proceed before a different adjudicator.

In this case, the Ontario Divisional Court reviewed a decision denying a migrant farm worker’s request for more time to appeal the rejection of his workplace injury claim. Glen Grant, a seasonal agricultural worker from Jamaica, injured his knee while working on a tobacco farm in Ontario in 2005. His claim for benefits was denied in 2008. He did not receive notice of that decision until 2010, after the appeal deadline had passed. Mr. Grant, who is illiterate and unfamiliar with Ontario’s workers’ compensation system, said he relied on a liaison officer to assist him and continued to make efforts to follow up on his claim.

More than ten years later, with help from a legal clinic, he attempted to revive his appeal. The Workplace Safety and Insurance Appeals Tribunal (WSIAT) refused to grant him an extension of time, finding that he had not acted diligently and that the case had become “stale.” A reconsideration request was also denied. Mr. Grant asked the Court to overturn those decisions. He argued that the Tribunal failed to properly consider his circumstances as a vulnerable migrant worker and miscalculated the delay.

The Court dismissed his application. It found that the Tribunal applied the correct legal test, took a “holistic approach” to the delay, and reasonably considered his personal circumstances. The Court concluded that the Tribunal’s decision was justified, transparent, and reasonable.

The Ontario Divisional Court considered whether two migrant worker advocacy organizations, the Migrant Farmworker Legal Clinic and Justicia for Migrant Workers, could participate in a judicial review as interveners (friends of the court). The organizations asked for permission to file written arguments and make oral submissions. The Tribunal opposed their involvement, arguing that they did not offer a distinct perspective and appeared to be trying to introduce new evidence.

The Court allowed the organizations to intervene, but only under strict conditions. They were permitted five minutes of oral submissions, could not repeat the applicant’s arguments, could not introduce new evidence, and were not allowed to take a position on how the case should ultimately be decided.

Nell Toussaint, an irregular migrant worker, brought this constitutional case after being denied essential healthcare in Canada. Toussaint alleged Charter violations under sections 7 and 15, as well as breaches of Canada’s duty under the International Covenant on Civil and Political Rights. When she did not receive domestic remedies, Toussaint took her case to the UN Human Rights Committee, which found that Canada had violated her rights and should provide redress, to which Canada did not comply. Toussaint sought a court order for compliance and $1.2M in damages. Nell Toussaint passed away, and her estate continued the case.

The court granted amicus curiae (friend of the court) status to organizations whose involvement was helpful due to distinct and relevant perspectives on the constitutional and human rights issues at hand. 

The organizations that were granted intervener status included the Migrant Worker Coalition, composed of Justicia for Migrant Workers (“J4MW”), the Migrant Farmworker Legal Clinic (“MWFC”), and the Industrial Accident Victims Group of Ontario Community Legal Clinic (“IAVGO”)

Other organizations included the Canadian Council for International Cooperation, Amnesty International, ESCR-Net, and Colour of Poverty Coalition 

Canada opposed the Migrant Worker Coalition’s involvement because they said it would expand the issues of the case, that the case is not about migrant workers, and that there were already multiple interveners

A landmark decision on workers’ compensation for racialized migrant farmworkers on the issue of “deeming”

Four injured agricultural workers under the SAWP challenged the WSIB’s prior practice of capping LOE benefits at 12 weeks, disregarding the workers’ actual ability to return to work.

Even with permanent injuries, expired work permits, or repatriated status to countries with no employment options, WSIB used to presume injured workers could re-enter the Ontario labour market

Workers were cut off from benefits while unable to work

The Appeals Tribunal rejected this blanket approach, ruling it was unfair and inappropriate without individual assessment. 

The panel held that each worker’s actual circumstances and home country labour market should be considered, and any Labour Market Re-entry assessments should be based on realistic employment opportunities where they live, instead of just in Ontario

There was acknowledgement that SAWP workers should be entitled to full WSIB benefits in respect to their lived realities, not assumptions.

April 22, 2024

Town of Kingsville, 2021 Division Road North, Kingsville, ON N9Y 2Y9 RE:

NOTICE OF MOTION – BOARDING, LODGING, ROOMING HOUSE (BLRH) LICENSING

JOINT SUBMISSION TO THE CITIZENSHIP AND IMMIGRATION COMMITTEE

December 15, 2023

Submitted by Justicia for Migrant Workers & Migrant Farmworker Clinic – Windsor Law

Justicia/Justice for Migrant Workers

Submissions Re: Poor Outdoor Air Quality and Workplace Health and Safety