Tuesday, July 28, 2009

TRAGIC CASE HIGHLIGHTS SYSTEM FAILURE

See this article from today's National Post . It highlights the failure of our refugee system. Readers should note that, when a permanent resident is convicted of a criminal offence, such as assault, he or she should become the subject of an immigration report detailing possible inadmissibility by reason of criminality, which should lead to a determination of whether or not the person should be deported. However, people determined to be "Convention refugees" can not be deported unless the Minister of Citizenship and Immigration issues a "danger opinion" , a very lengthy process, so usually those refugees convicted of relatively "minor" crimes get to stay. The question here is whether the timely intervention of the immigration system could have prevented this death, because the refugee had already pleaded guilty to two assault charges before the last and fatal encounter with the victim. Should the legislation be amended to facilitate the deportation o refugees who commit violent crimes? Or would that be "inhumane"?

Killer had remorse only for self: judge

Ethiopian Refugee; Gets life with no parole for at least 18 years

Shannon Kari, National Post

An Ethiopian refugee who brutally stabbed to death his 20-year-old girlfriend in her Toronto apartment was described yesterday as someone with remorse only for himself by an Ontario Superior Court judge who sentenced him to life in prison with no parole for at least 18 years.
Arssei Hindessa was a controlling and jealous boyfriend who killed Natalie Novak in May 2006 because the Ryerson University student was going to end their nearly two-year-long relationship, concluded Justice Anne Molloy.

"She stood up to him, told him it was over and he killed her," said Judge Molloy, who rejected defence arguments that Hindessa should be eligible for parole after spending 12 to 15 years in prison, a decision that was praised by Dawn Novak, the mother of the victim. "This sends a strong message that this case and others of violence against women are being taken seriously," she said outside court.

Hindessa, a 33-year-old Ethiopian refugee who came to Canada eight years ago, was convicted this spring of second-degree murder. The jury rejected his claims of being provoked by Ms. Novak or that he was inebriated and hallucinating when he stabbed her 10 times, after locking the door to the bedroom of her downtown apartment.

The verdict shocked the parents of Ms. Novak and many family members who were in the courtroom, since they believed the jury should have returned with a conviction on a charge of first-degree murder.

The pain felt by her family and friends was clearly on the mind of Judge Molloy during a sentencing ruling that took two hours to read out in court.

"I am aware of the utter devastation caused by her death. Natalie was a vibrant and exceptional young woman," said Judge Molloy. "But we do not differentiate between a lovely young woman and the killing of any other human being," said the judge, who explained she must follow "the rule of law" and accepted sentencing principles in Canada. "Vengeance plays no role in sentencing," she stated.

At the same time, the judge gave lengthy reasons as to why she was ordering that Hindessa serve at least 18 years in prison, instead of the normal range of 12 to 15 years as set out by the Ontario Court of Appeal for a murder in a domestic situation.

She noted several aggravating factors including previous incidents where Hindessa assaulted Ms. Novak, his repeated violations of no contact orders and the fact he walked to the kitchen in the apartment to retrieve a butcher's knife.

"This was a particularly brutal and savage crime. It was as close to first-degree as you can get," said Judge Molloy.

Ms. Novak was stabbed at least nine times in the chest area and there were many defensive wounds . "She fought for her life," Judge Molloy observed.

Hindessa slashed the throat of Ms. Novak before he fled her apartment and threatened to commit suicide a few hours later by jumping off a bridge, when arrested by police.
Ms. Novak came to Toronto from Bracebridge to attend Ryerson. She met Hindessa when she was 18 and he was 28-years-old.

During their relationship he pleaded guilty twice to assaulting Ms. Novak, which he claimed he did simply to get out of jail and alleged that his girlfriend was the aggressor.
"He lied about virtually everything to virtually everyone," said Judge Molloy, who noted that for several months before Ms. Novak was killed, Hindessa was subject to court orders not to have any contact with the woman.

While Ms. Novak initiated some of the ongoing contact, the judge stressed it was Hindessa who had the court orders.

The judge accepted that he had been imprisoned as a young man and tortured in Ethiopia, but she was skeptical about his claims of paranoia and mental illness.

She pointed out that the jury did not believe Hindessa who testified he was drunk, hallucinating and saw a "seven-headed beast" when he stabbed Ms. Novak.

Her father, Ed Novak, said there was a breakdown in the system that is supposed to protect victims of domestic violence.

The death of his daughter was "predictable and preventable" said Mr. Novak, because Hindessa was released from jail despite his assault convictions.

"In hindsight we can see that her killer's behaviour followed the same pattern as that of hundreds of other men who have murdered women in their lives," said Mr. Novak. "The safety net that is supposed to protect victims let Natalie's killer free, time and time again to stalk her, assault her and kill her when she tried to terminate the relationship."

Saturday, July 25, 2009

UNEMPLOYMENT RISING FASTER AMONGST RECENT IMMIGRANTS

Interesting article, bu tit misses the point that more immigrants lose their jobs because there ARE more immigrants in our society: over half the population of Toronto is foreign-born and that percentage is increasing, and since Canada admits over 260,000 new permanent residents each year, a greater percentage of the labour force is composed by immigrants. It stands to reason that the "older" , more established immigrants are better able to cope with the downturn than recent arrivals. This is hardly a surprising result. This calls into question the mix and number of the immigrant admissions, and how it should be related to the availability of jobs.

Immigrants take brunt of recession, recover less quickly - The Globe and Mail

Friday, July 24, 2009

SAFE THIRD COUNTRY EXEMPTIONS RESTRICTED

Canada narrows refugee eligibility - UPI.com

OTTAWA, July 24 (UPI) -- Refugee claimants from five countries will no longer be welcome in Canada if entering from the United States, the Canadian government announced.
Immigration Minister Jason Kenney said claimants from Afghanistan, the Democratic Republic of the Congo, Haiti, Iraq and Zimbabwe would be turned back if they tried to enter Canada from the United States, the Canwest News Service reported Friday.
The new rule would affect about 5,000 people each year, the government said.
The Conservative government is mandating people making refugee claims be required to seek protection in whichever of the two countries they enter first, be it Canada or the United States, the report said.
Earlier this week, the Czech Republic and Mexico filed diplomatic protests over Canada's new requirement their citizens have travel visas. The immigration department said there was a disproportionate number of travelers from those countries who sought refugee status.
Thursday's announcement also lifted a ban on deportations of immigrants to Burundi, Liberia and Rwanda, which would affect about 2,000 people, the report said.

Thursday, July 23, 2009

See this story appeared today in the National Post. I am just wondering how on earth decision-makers who are supposedly trained to apply the law can be so incredibly naive to grant a serial criminal with a history of convictions a "second chance" . This makes absolutely no sense to me. Have IRB decision-makers lost their mind?

Refugee board gave alleged killer chance

Deportation order lifted week before murder

Kim Bolan, Canwest News Service

A week before Babak Najafi Chaghabouri allegedly kidnapped and killed Vancouver resident Ronak Wagad, the Immigration and Refugee Board gave him one last chance to stay in Canada despite a series of convictions.
Mr. Chaghabouri convinced IRB member Renee Miller last Feb. 16 that he was turning his life around even though he had been ordered out of Canada in 2008 because of serious criminality.
On Feb. 23, Mr. Wagad disappeared. The remains of the 31-year-old were found near Chilliwack, B. C., on July 8.
This week Mr. Chaghabouri and Charles Anthony Leslie were charged with Mr. Wagad's first-degree murder, abduction and forcible confinement. Police said the victim and the accused killers were all involved in the mid-level drug trade.
There was no mention of drugs or gangs in Ms. Miller's ruling reversing Mr. Chaghabouri's deportation order, a copy of which was obtained by The Vancouver Sun.
She said Mr. Chaghabouri had demonstrated he deserved another chance even though he had a string of convictions between 2003 and 2007 for possession of a weapon, assault and forcible confinement, uttering threats and aggravated assault.
"Ultimately I was convinced that the appellant's prospects for rehabilitation are good," Ms. Miller said.
She cited a violence prevention course done by Mr. Chaghabouri as proof of his commitment to change.
"That course did not appear to have been completely successful because the appellant was involved in a subsequent violent offence while in custody and was convicted of that offence," Ms. Miller said. "However, he did provide evidence that he has competed two other preventative courses. Although I do not have the corroborative evidence, I accept his evidence on that point."
She said he seemed to be in a "stable relationship" and had obeyed all his probation conditions. "He told me that part of the efforts that he has made with regard to his rehabilitation is to avoid contact with the Persian community," Ms. Miller said. "I take the view that the appellant has demonstrated that he has made efforts towards rehabilitation and that there is more than a mere possibility that there is rehabilitation in his future, although clearly it is not complete."
Ms. Miller also said that Mr. Chaghabouri had not relied on welfare, which weighed in his favour. Nor did he explain how he earned a living. "Although his evidence of employment and ability to support himself was minimal, there was no evidence of any reliance on social assistance. However, it is hard to see how he could have supported himself on $3,500 per year," she said.
And Ms. Miller said that if Mr. Chaghabouri were to be deported to his native Iran, he could be in danger.
"There was evidence before me that there is a serious risk to the appellant if he were removed to that country, given his past political involvement in Iran and his current involvement in an organization which advocates for the separation of the Kurdish people from the government of Iran," she said.
The murder charge is not the only new allegation Mr. Chaghabouri has faced since having his deportation order overturned.
He was also convicted in two other cases, including one where he carried a knife and an imitation firearm on April 27.
The weapons charge led the public safety minister back to the IRB in June to get the deportation reinstated.
Mr. Chaghabouri was ordered deported a second time on June 29, just nine days before Mr. Wagad's body was found and three weeks before the murder charge was laid.
Mr. Chaghabouri came to Canada in 2001 at the age of 19 and got refugee status in November of that year.
His first run-ins with the law began two years later.
At one point he fled to Ontario to evade prosecution, Ms. Miller heard. "He may well have had an overpowering fear of the criminal justice system in Canada, but it is not a factor in his favour that he fled responsibilities," she said.
She did warn Mr. Chaghabouri that he had better stay on the straight and narrow. "If you continue on the course that you have been, which involves criminal convictions for violent offences or offences that involve weapons, at some point the balance will tip against you and the potential danger to you in return to Iran and the efforts that you have made to create a stable life for yourself in Canada will no longer outweigh the danger to the Canadian society," she said.
Even though the deportation order was ultimately reinstated, criminal proceedings must be completed before someone is removed from Canada.

Wednesday, July 22, 2009

The Editorial below was published by the Toronto Star. I find it interesting that the Star, typically a very "liberal" newspaper aligned with the "victim" point of view in many of its stories, and usually very critical of the Conservative government immigration and refugee policies, has published this Editorial. Is it perhaps that it senses that public opinion is turning and that Canadians are tired of a dysfunctional refugee system that rewards the bogus and crafty, but penalizes the real refugees who can not afford to buy fake documents to travel and procure the services of smugglers? The time for reform is long overdue.

TheStar.com Opinion Unbearable lightness of refugee policy

Unbearable lightness of refugee policy

July 21, 2009
Martin Regg Cohn

Imagine you are a Roma.People in your Czech homeland call you Gypsy and treat you like a second-class citizen. Your friends and family have claimed asylum in Canada and are still enjoying the good life here years later.

You'd be crazy not to join them.

And Canada would be crazy to let you get away with it. That's why Ottawa decided this month to reimpose a visa requirement on the Czech Republic and Mexico – two relatively democratic countries that have emerged as our biggest sources of refugee claimants.No one doubts that Romas face discrimination, just as natives and visible minorities sometimes do in Canada. But that doesn't make them refugees under the UN Convention – defined as having a well-founded fear of persecution.The Czech government doesn't persecute Romas the way Iran's theocracy torments Baha'i believers. Czech passports allow the Roma to live and work in any European Union country, so why treat Canada as a refuge of first resort?As for the thousands of Mexican migrants flocking here (many courtesy of human smugglers), 90 per cent of them are rejected. Adding to the absurdity, Mexico has traditionally been a destination for Latin Americans seeking political asylum; so how did it go from haven to hell for refugees?Ottawa's visa rules have been condemned as a sledgehammer approach – for smashing the travel plans of legitimate visitors, and bruising our diplomatic relations with friendly nations. But when your tool box is empty, a sledgehammer may be the only option.Few of the critics – opposition politicians, refugee advocates or immigration lawyers with a stake in the system – have proffered any useful policy tools. True, the Conservative government has been slow to fill vacancies on the Immigration and Refugee Board, but similar refugee spikes have plagued the system for years under the Liberals, creating today's backlog.The best, bluntest reality check came earlier this year in Prague, when Prime Minister Stephen Harper visited his Czech counterpart, Mirek Topolanek, and the Roma outflow came up:"Canada has a very soft asylum procedure," Topolanek retorted to reporters. "It is very easy to get an asylum in Canada and for that reason it is being targeted by individuals who are seeking economic, rather than any other asylum."He offered some free advice: "We have been asking Canada to list us as countries of safe origin."Some took offence at Topolanek's finger-wagging, but the fault lies with us.Australia long ago limited the grounds for judicial appeals that are now clogging Canada's courts. The U.K. has recently streamlined its system by giving more authority to immigration officers to fast-track a case. In Canada, refugee reform is politically unpalatable.When you waste time and resources processing refugee claims from (admittedly imperfect) democracies like Israel, Hungary, the Czech Republic and the U.S., you undermine confidence at home and encourage confidence-artists abroad. Bogus claimants impose a huge expense on the taxpayer and bog down the process – burdening legitimate refugees whose cases typically take 18 months.There is an even bigger potential cost: We risk undermining support for the refugee system. Public opinion polls show that growing dissatisfaction with our refugee system cannot be wished away.Consider how refugees became a volatile election issue in Australia a few years ago when human smugglers sent waves of boat people toward its shores: Politicians lapsed into populism as the public panicked; Australia tied itself up in knots for years.On refugee matters, you dare not wear blinkers. The more inconsistent Canada's rules become – and the more we allow refugee lawyers to clog our court system with endless appeals – the more we invite abuse by economic migrants and human smugglers gaming the system.How will Canada cope when a true refugee crisis arises down the road – say, an exodus of millions from North Korea, or a cry for help from the more than 300,000 Tamils being detained in Sri Lanka? What about the 10 million legitimate refugees in UN camps around the world who face a decade-long wait for resettlement?Our generous and forgiving refugee policy, like our defence policy, sounds noble but is primarily a product of our geography. Just as we live under the American defence umbrella, so too we rely on the U.S. border to buffer us from Mexico's illegal aliens; similarly, we are far removed from the waves of boat people landing on Australia's shores. Long distances and high airfares have long protected us from our short-term planning horizon.Every now and then, the real world catches up with us.

Martin Regg Cohn is the Star's deputy editorial page editor. His weekly column will return in September.

Monday, July 13, 2009

VISAS IMPOSED ON CZECH REPUBLIC AND MEXICO

Today, the government imposed visas on the Czech Republic can Mexico. The visa on Mexico is new, and the one on the Czech Republic is reimposed after three years of visa-free travel for Czech citizens. In both cases, the overwhelming number of refugee claimants and the imposition of visas a must.In the case of Mexico, the drug war, combined with the downturn in the US economy, heightened security at the Southern border and the availability of visa-free travel to Canada, made it a preferred destination of refugee claimants, both real and bogus, with the added concern that drug violence and criminals could be spilling over to Canada. In the case of the Czech Republic, the visa was reimposed after a failed experimenting with visa free travel resulted in large numbers of Czech of Roma origin once again seeking asylum in Canada, as they had done in previous periods of visa-free travel. Of course, this should have been done much sooner, before things got out of control....but for now some sense of order will be restored. Here are the Citizenship and Immigration press releases.


Canada imposes a visa on the Czech Republic

Ottawa, July 13, 2009 —Beginning 12:01 a.m. EDT on July 14, 2009, Czech nationals will require a visa to travel to Canada, Citizenship, Immigration and Multiculturalism Minister Jason Kenney announced today. For the first 48 hours, Czech citizens may apply for entry on arrival in Canada. After 11:59 p.m. EDT July 15, 2009, a visa will be required.
Since the visa requirement was lifted on the Czech Republic in October 2007, nearly 3,000 claims have been filed by Czech nationals, compared with less than five in 2006. The Czech Republic is now the second top source country for refugee claims. The relatively higher acceptance rate of refugee claims originating in the Czech Republic masks the troubling fact that more than half of the claims are abandoned or withdrawn before a final decision is made by the Immigration and Refugee Board, indicating that many claimants may not be genuine refugees.
“In addition to creating significant delays and spiraling new costs in our refugee program, the sheer volume of these claims is undermining our ability to help people fleeing real persecution,” said Minister Kenney. “All too often, people who really need Canada’s protection find themselves in a long line, waiting for months and sometimes years to have their claims heard. This is unacceptable.
“The visa requirement I am announcing will give us a greater ability to manage the flow of people into Canada and verify bona fides. By taking this important step towards reducing the burden on our refugee system, we will be better equipped to process genuine refugee claims faster.”
“The visa process will allow us to assess who is coming to Canada as a legitimate visitor and who might be trying to use the refugee system to jump the immigration queue,” Minister Kenney said. “It is not fair for those who have been waiting patiently to come to Canada, sometimes for years, when others succeed in bypassing our immigration system.”
Canada regularly reviews its visa policies toward other countries. Countries are aware that if they do not satisfy the conditions of a visa-exemption, a visa may be imposed.
This change means that nationals from the Czech Republic who want to travel to Canada will first need to apply for a Temporary Resident Visa and meet the requirements to receive one. It is up to the applicant to satisfy the visa officer their visit to Canada is temporary, they will not overstay their approved time in Canada, they have enough money to cover their stay in Canada, they are in good health, they do not have a criminal record, and are not a security risk to Canadians. These requirements are the same for anyone who wants to visit Canada.
Applicants from the Czech Republic will submit their applications to the Canadian visa office in Vienna, Austria which currently serves nationals from several other European countries.
“Canada has strong ties with the Czech Republic,” said Minister Kenney. “We continue to welcome all genuine travellers to Canada from this country

Canada imposes a visa on Mexico

Ottawa, July 13, 2009 — Beginning 12:01 a.m. EDT on July 14, 2009, Mexican nationals will require a visa to travel to Canada, Citizenship, Immigration and Multiculturalism Minister Jason Kenney announced today. For the first 48 hours, Mexican citizens may apply for entry on arrival in Canada. After 11:59 p.m. EDT July 15, 2009, a visa will be required.
Refugee claims from Mexico have almost tripled since 2005, making it the number one source country for claims. In 2008, more than 9,400 claims filed in Canada came from Mexican nationals, representing 25 per cent of all claims received. Of the Mexican claims reviewed and finalized in 2008 by the Immigration and Refugee Board, an independent administrative tribunal, only 11 per cent were accepted.
“In addition to creating significant delays and spiraling new costs in our refugee program, the sheer volume of these claims is undermining our ability to help people fleeing real persecution,” said Minister Kenney. “All too often, people who really need Canada’s protection find themselves in a long line, waiting for months and sometimes years to have their claims heard. This is unacceptable.
“The visa requirement I am announcing will give us a greater ability to manage the flow of people into Canada and verify bona fides. By taking this important step towards reducing the burden on our refugee system, we will be better equipped to process genuine refugee claims faster.”
“The visa process will allow us to assess who is coming to Canada as a legitimate visitor and who might be trying to use the refugee system to jump the immigration queue,” Minister Kenney said. “It is not fair for those who have been waiting patiently to come to Canada, sometimes for years, when others succeed in bypassing our immigration system.”
Canada regularly reviews its visa policies toward other countries. Countries are aware that if they do not satisfy the conditions of a visa-exemption, a visa may be imposed.
This change means that nationals from Mexico who want to travel to Canada will first need to apply for a Temporary Resident Visa and meet the requirements to receive one. It is up to the applicant to satisfy the visa officer their visit to Canada is temporary, they will not overstay their approved time in Canada, they have enough money to cover their stay in Canada, they are in good health, they do not have a criminal record, and are not a security risk to Canadians. These requirements are the same for anyone who wants to visit Canada.
Citizenship and Immigration Canada (CIC) has been working to increase processing capacity in Mexico City. Nevertheless, the imposition of the visa will mean short-term delays in travel as CIC puts resources in place. Applicants are encouraged to send their applications by courier or registered mail and to avoid visiting the Embassy unless specifically invited for an interview.
“Canada has strong ties with Mexico,” said Minister Kenney. “We continue to welcome all genuine travellers to Canada from this country.”

Saturday, July 11, 2009

FUTURE LABOUR SHORTAGES WILL CREATE WINNERS AND LOSERS

Help desperately wanted

Dan Bortolotti, FP Magazine



Here's a suggestion for people with a death wish. Stroll through Windsor, Ont., or a Newfoundland outport, and chat up the older residents about their employment prospects. After you've listened to their tales about massive layoffs in the automotive sector and dried-up opportunities in natural resources, tell them that Canada is facing a labour shortage. Then start running.

Along with sticks and stones, your pursuers will hurl statistics at you. In May, the country hit its highest level of joblessness since 1998 - 8.4% - and staffing firm Manpower Canada reports that a mere 16% of companies are planning to hire new workers in the third quarter of 2009. Canada's GDP shrank by an annual rate of 5.4% in the first quarter of this year, its worst contraction since 1991. Those are dramatic numbers. But they're merely snapshots of the recent past, not a trailer for the feature film. What's coming soon to a city near you are workplaces that will be desperate for young, highly skilled workers. Unlikely as it sounds, Canada is actually in the midst of an ongoing labour shortage.

It's a shortage that will have a substantial impact across wide sectors of the economy as we pull out of the recession, and will grow over the years to follow. According to predictions from the Conference Board of Canada, Ontario may face a shortfall of 190,000 workers by 2020, while Quebec may be short 363,000 workers by 2030. The think tank predicts that British Columbia may be in need of 160,000 employees by 2015, while Alberta may have 332,000 unfilled positions by 2025.

The apparent contradiction between the unemployment rate, which is at an 11-year high, and a labour shortage can be explained by separating the current economic woes from the people in the workforce. The economy can turn around - for better or worse - in mere months, but overall skill levels and demographic patterns take years or decades to change, and it's these long-term trends that are behind the coming crunch. "Right now, with unemployment where it is, labour shortages are the furthest thing from people's minds," says Jim Milway, executive director of the Martin Prosperity Institute, a Toronto-based economic think tank. "But mark my words, this recession will end - whether in six, or nine, or 12 months - and those ‘Help Wanted' signs will be going back up."

To understand why, it helps to point out that the current overall employment situation is not nearly as bleak as the headlines suggest. The numbers are highly skewed by the carnage in manufacturing and construction. Since the spring of 2008, Canada has shed more than 200,000 manufacturing jobs, a staggering decline of about 10%, and lost an additional 100,000 jobs in construction. "Manufacturing of both durable and non-durable goods is the weakest we have seen in our surveys since the first quarter of 1978," says Lori Rogers, vice-president of staffing services for Manpower Canada. It's a rotten time to be a middle-aged auto worker, but routine-oriented physical jobs have been in decline for decades. These occupations have unemployment rates approaching 13%, with little hope for improvement.

The big picture looks quite different, however. Statistics Canada divides the Canadian workforce into two broad categories: the goods-producing sector (manufacturing, construction, agriculture, natural resources and utilities) and the service-producing sector, which lumps together everything else. This latter sector - which employs three and a half times more people than the goods-producing sector - has seen a net increase of 24,000 jobs in the last year. So while the demise of manufacturing jobs has meant hardship for thousands, the service economy is providing livelihoods for more than 13 million Canadians, and that number is growing.

True, recent job gains in the service sector have been modest, well off the growth we saw from 2006 through 2008. But that was during an economic boom and was unsustainable: We had three straight years of unemployment under 7%, a streak we've not seen since the 1960s, before women entered the labour force in significant numbers. In fact, the average annual jobless rate over the past 33 years has been 8.5% - a tick higher than it was in May. We've merely come down from Mount Everest and settled at sea level.

The current hiring freeze at many companies is not going to change the long-term trend. "The recession is actually masking a talent shortage, not only in Canada, but globally," says Manpower's Rogers. There's already a dearth of skilled workers in a wide variety of occupations. Many economists would classify a level of unemployment under 3% as an acute labour shortage, and creativity-oriented workers - a diverse group including scientists and technologists, managers and analysts, lawyers and accountants - now have a jobless rate of just 2.7%. "Unemployment among this creative class is up a bit because of the recession, but it's nothing compared with what you see among blue-collar workers," says Milway.

For example, in high-tech fields such as IT, demand for highly skilled workers remains strong. "I don't think it's ever easy to find good people," says Sarah Weiss, manager of campus programs for IBM Canada. Another sector where worker demand is strong is public administration - local, provincial and federal government departments and agencies, as well as courts and correctional institutions. In nursing, meanwhile, unemployment levels are a minuscule 0.6%, far lower than in any other profession. "There is a well recognized global nursing shortage," says Dr. Sally Thorne, director of the School of Nursing at the University of British Columbia.
And despite the fact that many Canadians seem eager to run their investment advisers out of town, the labour market for business and finance professionals is also tight. A 2009 Manpower survey ranks financial jobs number eight among hard-to-fill positions. Statistics Canada confirms that unemployment in the sector is a mere 2.7% - up from 1.9% in 2008, but still very low. "When it comes to business and finance, contrary to the general perception, in Canada it seems there is still a shortage," says Roger Sauvé of People Patterns Consulting, which specializes in the labour market.

It's worth stressing that creativity-oriented jobs like these are not a lone bright spot in an otherwise dark economic future. On the contrary, they are Canada's economic future, and will be the engine of growth in the years to come. As the number of creative jobs grows, Milway says, they create other opportunities in the service industries. More high-tech workers means more office cleaners to vacuum the cubicles; more accountants working overtime means more take-out restaurant visits on the way home. The Martin Prosperity Institute estimates that creativity-oriented jobs and the services they spawn will make up almost 90% of new positions by 2016. According to Milway, it will be difficult to fill all these new jobs, and while immigration will help, it won't be enough to prevent worker shortages.
Another major factor driving the shortage is our aging population. According to Sauvé, the number of workers aged 55 to 64 has doubled since 1989, while the number over 65 has increased by an astonishing 129%. When the Baby Boomers finally retire, they will leave enormous career opportunities in their wake.

The recession has merely slowed down this demographic inevitability. In many jobs, workers with seniority are the least likely to be laid off, and some workers have delayed retirement so they can rebuild their savings. All of which is creating obstacles for younger people getting jobs - but only temporarily.

The labour shortage will create winners and losers. On one hand, a tight labour market can create big problems for businesses. As companies are forced to raise wages to compete for fewer skilled employees, their costs go up. At the same time, however, a backlog of unfilled positions leads to a drop in production levels. This double whammy of rising costs and lower production is what economists call "wage-push inflation." It can slow economic growth, contribute to a lower overall standard of living, and make the country less competitive in the global marketplace.

The real casualties in Canada's evolving labour force will continue to be those who work in the goods-producing sector, especially manufacturing. Some will successfully complete retraining programs and find work in new fields. Many more, unfortunately, face years of hardship as they compete for a shrinking number of jobs in industries that continue their steady decline.

The winners, of course, will be those with the schooling and skills suited to the new economy. As companies demand more creative, highly skilled workers - a trend already well underway - young, well-educated Canadians can look forward to a fertile job market in the months and years ahead. In the sectors with the greatest needs, the small number of qualified workers should be able to demand higher wages and better working conditions. When the economy improves and these young guns are in high demand, look for them to push back against their employers, lobbying for more flexible hours and family-friendly policies.

The cloud of recession is still hovering above us, and there may be more rain in the coming months. But young Canadians and people in skilled fields can look forward to their day in the sun. "It sounds heartless to say this now," Milway says, "but high unemployment is not a long-term problem."

Friday, July 10, 2009

INTERVIEW ON BNN "HEADLINE"

I was interviewed last night in the prime time program "Headline" on Business News Network (BNN) on the impact of the economic downturn on immigration and business. Here is the clip of the interview:

http://watch.bnn.ca/headline/july-2009/headline-july-9-2009/#clip191933

Saturday, July 4, 2009

NO SPECIAL MEASURES TO DEAL WITH MEXICAN GANGS

This is quite troublesome: in the name of political correctness, police forces are not targeting Mexicans who come to Canada unscreened, even though they are aware of a burgeoning problem concerning drug trafficking and criminal activity. Is this sensible? Or is Canada the land of the naive? Do we need to have a problem when it Can be avoided? If so, why? Does this approach make any sense? This is a head-scratchier....

No measures to counter Mexican gang activity: RCMP

No measures to counter Mexican gang activity: RCMP

Giuseppe Valiante, National Post

Despite a sharp rise in the number of refugee claimants from Mexico, a senior RCMP official says the police force is not taking extra measures to counter possible gang activity.
"Keeping with our biased-free strategy of policing, we are not profiling. You know all the issues around that. And that's something we steer clear of," said Superintendent William Malone, the force's director of organized crime. "We would focus on the criminal group, not necessarily the country in which they come from."
In the first four months of 2009, 4,768 asylum applications from Mexico were referred to the Immigration and Refugee Board, the highest of any country of origin. The number of applications has jumped since Mexican President Felipe Calderon started cracking down on drug cartels in the past couple of years.
While Mexican cartel operatives have taken over some established criminal organizations in the United States in order to expand into the cocaine retail market, Supt. Malone said there isn't any evidence of that occurring here.
"As far as I know, we have nothing at this point in time," he said on the phone from his Ottawa headquarters. "Are we concerned? Of course we're concerned.... The Mexican and U. S. authorities are having an impact on what's going on and are having some significant challenges down there, but in my opinion they are doing an excellent job at keeping them at bay."
A spokesman from the Mexican embassy in Ottawa told the National Post recently that a high percentage of applications from Mexico are denied and there is a significant amount of scam artists who charge Mexicans for false information about coming to Canada.
A spokesperson for Citizen and Immigration Canada said they could not get into specifics about their efforts to curtail immigration fraud from Mexico: "We do work with the local authorities to ensure that [fraudsters] are prosecuted."
Canada Border Services Agency wouldn't comment specifically on Mexico either.
"The CBSA's enforcement activities are essential to preserving the integrity of the immigration and refugee program, and protecting the safety and security of Canada's communities," wrote spokeswoman Tracie LeBlanc in an email.
Carlos Spector, a Texasbased immigration lawyer who represents many refugee claimants in the United States, said Canada is more favour-able than the United States as a destination because a refugee claimant entering America will be greeted with between seven and 12 months detention at large border facilities.
Refugee applicants who are referred to the IRB in Canada, meanwhile, are permitted to live freely until their hearing, which takes on average 16½months.
Mr. Spector said Canada can expect more refugees as Mexican citizens flee the cartels and the military, which has thousands of troops stationed in northern Mexican towns, many of whom are corrupt.
He added that the government has opened up anonymous hotlines for citizens to report the cartels, but people are too scared to use them.
"The drug cartels find out who is calling and you're finding people in their trunks, dead," Mr. Spector said.

Friday, July 3, 2009

INTERESTING WSIB CASE

This is an interesting case, and , in my humble opinion, poorly argued by the employer. If the employer would have sought immigration advise, he would have been told that employing a worker without legal status is an offence under the Immigration and Refugee Production Act. Surely, he could not be forced to employ someone who is not entitled to work in Canada. Further, the WSIB does not seem to know that even though the worker, a rejected refugee claimant, has "applied" to get "status" in Canada, such status is unlikely to be granted in many circumstances, and at this point, is only a mere possibility that it would be granted.

DECISION NO. 1648/05

The reasons for decision were rendered by B. Wheeler, Member and A. Grande, Member. Separate dissenting reasons were rendered by B. Kalvin, Vice-Chair.

REASONS

(i) The Appeal Proceedings

1 The worker appeals the decision of the Workplace Safety and Insurance Board (the "Board") rendered by Appeals Resolution Officer, M. De Marco, on February 26, 2004. That decision concluded that the worker is not entitled to compensation for loss of earnings for a workplace accident beyond September 1, 2003. The Appeals Resolution Officer also decided that the worker is not entitled to labour market re-entry services.
2 This appeal began in Toronto on September 13, 2005 and reconvened on September 25, 2008. The worker appeared and was represented by R.A. Fink, a lawyer. The employer was notified but chose not to attend.


(ii) The Issues

3 The issues before the Panel are entitlement to loss of earnings (LOE) benefits subsequent to September 1, 2003 and entitlement to labour market re-entry (LMR) services

(iii) Background

4 On July 30, 2002, while disembarking an industrial lawnmower, the worker, a labourer for a landscape, industrial maintenance and snow removal company, sustained significant injuries to his left foot. The worker's left foot was caught under the lawnmower causing severe open fractures and dislocation of the foot. The worker underwent surgery. The operative report notes irrigation and debridement of the wounds with open reduction and percutaneous pinning of 1st, 2nd, 3rd and 4th metatarsal fractures and metatarsophalangeal dislocations. The worker's left foot was placed in a cast postoperatively.
5 The report from the surgeon, Dr. Terry S. Axelrod, dated November 11, 2002, notes the worker then commenced a physiotherapy program. The Physiotherapist's Treatment Extension Request dated February 21, 2003 notes the end date of physiotherapy as March 6, 2003.
6 The worker was also referred for orthotics. The report dated January 17, 2003 from Kathryn Callfas, Certified Pedorthist, Sunnybrook Centre notes:
[The worker] was evaluated today for his footwear and orthotic needs based on a referral from his orthopaedic surgeon, Dr. Terry Axelrod.
[The worker] had a crush/incomplete amputation injury to the left forefoot. He now has a rigid forefoot due to multiple factures of the metatarsals. He is unable to toe-off due to restricted extension of the metatarsophalangeal joints causing excessive pressure at the MTJt's. The first toe is particularly painful for him to weight bear on, the second toe to a lesser degree. He also has a soft tissue thickening on the dorsum of the foot in particular the midtarsal and proximal metatarsal region.
I have recommended a UCBL style orthosis, he will require a pair to be worn in his everyday shoes, and a pair in safety boots. He will also require an external shank for his runners. At this time we are going to try to accommodate him in off the shelf safety boots. In the event that they don't work he will require custom made safety boots ...
7 The Board's Unit Medical Advisor notes in Memorandum No. 29A, dated February 4, 2003, that the worker has permanent precautions of no prolonged walking, no walking over rough ground, no heavy weight bearing, no ladder climbing and use of stair at own pace. On June 26, 2003 the worker was rated for a Non-Economic Loss award and granted 10%.
8 In a letter dated December 19, 2002, the accident employer, whose business is landscaping, industrial maintenance and snow removal, made the worker an offer of modified work as of December 23, 2002. No specific position was identified nor was any description of the job offer provided. The same letter stated: "It is also the expectation that you will provide a social insurance number or proof that you have applied four weeks after your return to work. If this information is not given you are forewarned that it is grounds for termination".
9 Despite the offer of modified employment, the worker did not return to work, as he felt he could not perform it until he was fitted with custom orthotics in February, 2003. He then contacted the employer about the offer of modified work.
10 In a letter dated July 2, 2003, the worker's representative, R. A. Fink, advised the Board that the worker was being required by the employer to get a SIN. The worker's representative further advised the Board that the "worker did not have legal status in Canada and currently has engaged a lawyer to obtain such." The worker returned to work with the accident employer on September 1, 2003.
11 The worker's LOE benefits were initially reduced by the Claim Adjudicator based on the employer's offer. The ARO later reinstated full LOE from December 23, 2002 to September 1, 2003, the date the worker returned to work with the employer. The ARO decision dated February 26, 2004 notes "the worker confirmed receiving the employer's letter dated December 19, 2002 in which an offer of employment was made. However, he indicated his condition did not permit a return to work in view of the discomfort and limited walking tolerance. He testified that it was not until February 2003 that he was prescribed/fitted with custom orthotics and felt capable of returning to work. He subsequently contacted the employer, however, was advised no modified duties were available. The worker stated the employer's activities during the winter involved snow removal and in this respect doubts whether modified employment was actually available in December 2002." The ARO found that "the job offer is not viewed as being in good faith." The ARO concluded that "in the judgement of the appeals resolution officer, the worker is entitled to full LOE benefits from December 23, 2002 to September 1, 2003, the date he returned with the accident employer. The worker attempted to contact the employer on several occasions prior to September 2003 to arrange a return to work however he was informed work was not available."
12 The worker returned to work with the accident employer on September 1, 2003 and was terminated at the end of October 2003.
13 The ARO notes the worker returned to work with the employer in September 2003. The ARO concluded that, "subsequently [the worker] demonstrated the ability to perform his regular work activities, with the injury not viewed as limiting or impacting on his ability to restore his pre-accident earnings. The lack of a SIN lead to his termination. LMR services are not warranted as the worker demonstrated the ability to perform his pre-accident duties. Furthermore, the worker's current legal status in Canada does not allow him to attend any educational institution or partake in any academic professional or vocational training course." The worker appeals this decision.

(iv) Worker's Testimony

14 The worker provided testimony regarding his work history, the accident, the nature of his injury, work history with the accident employer, his return to work in September 2003, the termination in October 2003 and job search efforts thereafter.
15 The worker testified that he came to Canada as a visitor in March 2000. He began working two weeks later in a factory. He did not have legal status to work and had no document.
16 He testified he commenced work with the accident employer about a year and a half prior to his injury. He was employed as a labourer, doing landscaping, industrial maintenance and snow removal earning $10.00 per hour. The worker testified the employer was aware he did not have legal status to work at the time of hire. The accident employer did not ask for any documents or a SIN when first hired or at any other time during that year and a half of employment prior to the injury of July 30, 2002.
17 The worker testified that in December 2002, when the employer made the offer of modified work, he was unable to do any work due to his compensable accident. In February 2003, after he was fitted with the necessary orthotics he began contacting the employer, however he was advised no modified duties were available. At that time the employer's activities involved snow removal.
18 In September 2003 the worker returned to work with the accident employer doing landscaping. The worker testified he had a lot of difficulty as he was required to do a great deal of standing and walking on uneven ground and this would cause him much left foot pain. He also testified wearing safety boots was a problem as his foot would hurt when he would bend his foot to walk. His foot would swell up and it would be difficult to wear the required safety boots. He testified he has difficulty weight bearing. He testified he never again went back on a lawnmower. He stated he did what he could but was restricted from doing the job as he had done previously. He testified that he did not feel this work was suitable for him but he was forced to do it as he needed the money.
19 He testified that it was only after the accident that the employer began asking for a SIN. He found this strange as the employer knew he did not have a SIN or legal status to work, but he assured the employer that he had a lawyer and was in the process of getting legal status. The worker testified that that at the end of October 2003, as per the employer's request, he provided the employer with papers that showed he had made application and was in the process of getting legal status. The employer terminated him at the end of October 2003 regardless of this proof.
20 The worker testified that he did not believe the reason he was terminated was the lack of a SIN number and legal status, as he had provided the employer with proof of application as requested. He further stated that he was never provided a letter from the employer explaining the reasons for termination.
21 The worker testified that as a result of his application, he was granted refugee status on November 3, 2003 and a work permit in January 2004. Documents confirming such were provided to the Panel at the hearing.
22 The worker testified that after he was terminated in October 2003 he immediately began searching for work. After a few months of searching, with the help of a friend he located a job as a butcher. He claims to have suffered a wage loss as he was earning $7.50 an hour to start and about a year later he was paid $8.00 per hour. He stated there was a lot of standing in this position and after an hour of standing he would begin experiencing pain and swelling. He does not feel this job was appropriate for his disability either but he had to do it because he was desperate for money. While at this job he continued to suffer a wage loss.
23 In January 2006 the worker was deported. He recalls not working at that time. He stated he was uncertain how long he had been out of work prior to being deported. He believes it may have been a few months.
24 The worker was away from Canada from January 2006 to September 22, 2007. While back home he did work about 8 months as a cook. He found this difficult as well but again felt he had no choice. He had only worked in construction in his home land previously but could no longer work in this field with his left foot injury.
25 The worker also testified that he returned to Canada on September 22, 2007 as a landed immigrant. In April 2008 he returned to working in landscaping but just raking leaves. He was required to do a lot of walking which caused him much left foot pain. He worked for a couple of other landscaping companies but testified he found the work unsuited to his disability. He stated he experienced the same difficulties he had experienced when he returned to work with the accident employer. He testified he did not know what else he could do. He knew that this kind of work was not appropriate for his condition but he does not have the education, skills or experience to do anything else.
26 He testified he needs retraining to locate a job suitable for his condition.

(v) Medical Evidence

27 The worker under went surgery for the traumatic injury to his left foot on July 30, 2002. The report from his treating surgeon, Dr. Axelrod, referenced earlier, notes irrigation and debridement of the wounds with open reduction and percutaneous pinning of 1st, 2nd, 3rd and 4the metatarsophalangeal dislocations. The worker's foot was placed in a cast post-operatively.
28 Dr. Axelrod reports on November 11, 2002 that the worker has difficultly putting pressure on his foot, a very stiff great toe and difficulty with mobilization. "There is a lot of stiffness of the second toe in extension. There is a fair amount of scar tissue. Overall, he is doing moderately well." Dr. Axelrod started the worker on a physiotherapy programme and also referred him to Dr. David Stephen, "our foot and ankle specialist, for an opinion on whether or not anything more can be done for this man." A December 17, 2002, report from the Fracture Clinic records the referral to Dr. Stephen. It indicates that while the wound seemed to be nicely healed, "the toes are very stiff, especially the first MTP with very minimal range of motion which is painful." Shoe inserts and stiff soled shoes are recommended, and if this does not work, the worker may require fusion of the first MTP joint. The report indicates that the worker is to return to the Clinic in three months and "we will take things from there." There are no further reports of any visits to the Fracture Clinic.
29 A January 17, 2003 Progress Note from the Sunnybrook Centre for Independent Living indicates the worker "now had a rigid forefoot due to multiple fractures of the metatarsals. He is unable to toe-off due to restricted extension of the metatarsophalangeal joints causing excessive pressure at the MT Jts. The first toe is particularly painful for him to weight bear on, the second to a lesser degree. He also has a soft tissue thickening on the dorsum of the foot in particular the midtarsal and proximal metatarsal region." The clinical coordinator/certified pedorthist recommended a UCBL orthosis for his shoes and safety boots and an external shank for his runners. A modified safety boot and orthosis were supplied March 5, 2003. A physiotherapist's treatment extension request dated February 21, 2003 describes the results of the treatment to date as "swelling decreasing, ROM increasing, strength continues to slowly increase." It notes pain with prolonged weight-bearing and walking and recommends continuing physiotherapy for an estimated four weeks; however, it does not appear that the worker received any further physiotherapy.
30 The Board's Unit Medical Adviser notes in Memorandum No. 29A, dated February 4, 2003, that the worker has permanent precautions of no prolonged walking, no walking over rough ground, no heavy weight bearing, no ladder climbing and use of stair at own pace. On June 26, 2003 the worker was rated for a Non Economic Loss award and granted 10%.
31 There is a gap in the medical evidence.
32 In a report dated November 22, 2007, Dr. H. E. Rosenfeld, Doctor of Podiatric Medicine, confirms that the worker continues to experience significant difficulties with his foot.
Conclusion & Recommendations:
[The Worker] had a catastrophic injury to the left forefoot that left him with a rigid, painful and numb appendage. It is remarkable that the orthopaedic surgeon did not amputate his forefoot considering the damage done. It was obvious from his gait that bending the forefoot is quite uncomfortable for him and that any type of force needed to bend the foot increases his discomfort. With that in mind, here are my recommendations for him regarding future treatment and work related activities.
Treatment:
First, I would start by getting him into a soft orthotic, not the rigid UCBL type proposed by the pedorthist. Next, his footwear would be large enough to accommodate the tissue expanse of the dorsal forefoot, maybe even a custom make safety boot or shoe. It would have steel toes and steel shank so that bending the foot would not be an option. I would also like to see external modifications done to the footwear on the outside of the MPJ area. That would include an aggressive rocker bottom sole, so that he could roll over the affected forefoot instead of having to bend it. As well, cushioning and padding the entire inside of the shoe would help. Another idea would be to wear an Aircast devise. It is a removable cast that can divert direct pressure from the plantar foot itself. This might give him the mobility he needs to complete a full work day. At some point in the future, if the hardware that is in place in the 1st ray could be removed, he might ambulate better.
Tolerances:
Working with an injury to a left foot like [the worker's] is a tenuous situation at best. It is hard to ascertain exactly when the foot will become painful and rest is needed. Even standing in front of a counter will eventually become intolerable should he do it long enough. It is with that thought in mind that I would recommend that any job he gets he is able to take rest as needed and then return to the task at hand. Firstly, I would say that a standing job is probably the best job for him. He could probable go for a 1 hour to 1.5 hours before he needs to break. The task that requires more exertion and bending of the forefoot, i.e. pushing objects, pulling objects, would involve less time, maybe .5 to 1 hour before he must sit. Because the foot is rigid and cannot accept loads or adjust to uneven terrain well, carrying heavy objects even with help will also reduce the time using the foot. Manual snow removal requires pushing, pulling, bending and lifting, which would make the foot painful in a shorter period of time. Of course, if he drives a machine then his time at work is limitless as weight bearing is not an issue. As far as limits are concerned, he could potentially work an 8 hour/day shift as long as he had the opportunity to rest as needed. The only jobs that I would have him avoid would be ones where his employers insist on continuous standing, walking or bending. In short, [the worker] still has the capability of working but not in a multiple hour situation with rest. He could not tolerate it.

(vi) Relevant Law and Policy

33 On January 1, 1998, the Workplace Safety and Insurance Act, 1997 ("WSIA") took effect and applies to this case.
34 The relevant section of the current Act relating to LOE benefits states as follows:
s. 43(1) A worker who has a loss of earnings as a result of the injury is entitled to payments under this section beginning when the loss of earnings begins. The payments continue until the earliest of,
(a)
the day on which the worker's loss of earnings ceases;
(b)
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;
(c)
two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury;
(d)
the day on which the worker is no longer impaired as a result of the injury.
(2)
Subject to subsections (3) and (4), the amount of payments is 85 per cent of the difference between,
(a)
the worker's net average earnings before the injury; and
(b)
the net average earnings that he or she earns or is able to earn in suitable employment or business after the injury.
...
(3)
The amount of the payment is 85 per cent of his or her pre-injury net average earnings less any earnings the worker earns after the injury if the worker is cooperating in health care measures and,
(a)
his or her early and safe return to work; or
(b)
all aspects of a labour market re-entry assessment or plan.
35 Provisions governing labour market re-entry and labour market re-entry assessment are set out in section 42 of the WSIA:
42.(1) The Board shall provide a worker with a labour market re-entry assessment if any of the following circumstances exist:
1.
If it is unlikely that the worker will be re-employed by his or her employer because of the nature of the injury.
2.
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.
3.
If the worker's employer is not co-operating in the early and safe return to work of the worker.
36 Board Operational Policy Manual Document No. 19-03-02, LMR Assessments, states:
Guidelines
The WSIB provides a worker with an LMR assessment if it is unlikely the worker will be re-employed by the accident employer due to the nature of the injury
The employer has been unable to arrange suitable and available work for the worker that restores the pre-injury earnings, or the employer is not co-operating in the early and safe return to work (ESRTW) process.
Following ESRTW
The WSIB also provides LMR assessments for workers who successfully returned to suitable employment through ESRTW if the work-related injury resulted in a permanent disability/impairment, and
The worker suffers a deterioration of the work-related injury, or
The worker is permanently laid off from that job and has not received LMR services previously.
...
Entitlement to LMR plan
Using the information gathered, the decision-maker identifies potential SEB options and determines entitlement to an LMR plan. The SEB options may include a return to suitable employment with the accident employer (see 19-03-04, Entitlement to LMR Plans). In determining entitlement to LMR plans the WSIB must have regard for workers' rights under the Ontario Human Rights Code. Workers are entitled to equal treatment, without discrimination, with respect to services, goods, and facilities. Therefore, when conducting an LMR assessment, the WSIB considers any non-work-related disability, handicap, or condition a worker may have.
(vii)
Majority's Conclusion
37 The worker seeks LOE benefits subsequent to September 1, 2003, as well as LMR services. The worker does not seek benefits for the period January 2006 to September 22, 2007 while out of the country.
38 Section 43(1) of the WSIA provides for a worker to receive LOE benefits when he or she has a loss of earning as a result of a work-related injury. The WSIB provides the worker with LMR services if the early and safe return to work activities do not result in a return to work that is suitable, available and restores the worker's pre-injury earnings.
39 While the Board granted the worker LOE benefits up to September 1, 2003 and a NEL, the Board denied subsequent LOE benefits and LMR services on the basis that the worker was able to perform his regular pre-accident work and further that the worker's loss of earning was not due to the compensable injury but rather his termination for not having legal work status.
40 The Majority concludes that the worker is entitled to LOE benefits subsequent to September 1, 2003 and to LMR services for the following reasons.
41 The Majority notes the evidence regarding the worker's permanent restrictions and the requirements of the pre-injury job. In particular, the Majority notes the medical opinion of Dr. Rosenfeld, Doctor of Podiatric Medicine, who, in a report dated November 22, 2007 confirms that the worker's ability to work is still seriously compromised,
Working with an injury to a left foot like [the worker's] is a tenuous situation at best. It is hard to ascertain exactly when the foot will become painful and rest is needed.
and that,
The task that requires more exertion and bending of the forefoot, i.e. pushing objects, pulling objects, would involve less time, maybe .5 to 1 hour before he must sit. Because the foot is rigid and cannot accept loads or adjust to uneven terrain well, carrying heavy objects even with help will also reduce the time using the foot. Manual snow removal requires pushing, pulling, bending and lifting, which would make the foot painful
42 The Majority of the Panel notes the worker's testimony that when he returned to work with the accident employer the job was not suitable as it required prolonged standing and walking on uneven ground while wearing safety boots. The prolonged walking would require continuous bending of the forefoot causing much discomfort to the left foot. The prolonged standing and weight bearing put a lot of pressure on the foot. The Majority further notes the worker was not operating the lawnmower any longer, which is an essential duty of the pre-accident job. Furthermore the worker would be precluded from engaging in snow removal activities.
43 The Majority further notes there is no evidence from the employer regarding available suitable work. In December 2002 the employer advised the Board that it did have suitable modified work but did not identify any specific job or provide any description of the modified work. The Majority further notes that the job offer was made at the end of the season when the worker would typically be involved in snow removal. During the period from February 2003 to September 2003 the employer advised the worker there was no suitable work available. The employer did not provide any information regarding the work provided to the worker in September and October 2003. The employer was advised of the Tribunal hearing but chose not to participate and therefore did not provide any information or clarification regarding the nature of the work available to the worker.
44 Therefore based on the evidence available to the Panel, the Majority finds that the worker was effectively required to perform the pre-injury job. This job was not suitable as it exceeded the worker's permanent restrictions nor was it sustainable. The employer was unable to arrange work that was consistent with the worker's functional abilities.
45 Given the nature and severity of the worker's foot condition, the absence of the medical follow-up anticipated by his treating health care providers at Sunnybrook, his limited transferable skills, his employer's inability to provide suitable work and the fact he had only performed manual labour, the Majority is satisfied that the worker was competitively unemployable. While he attempted, to the best of his ability, to return to work with the employer, he was not able to perform the job duties the way he had previously. We are satisfied the work he was performing prior to his termination was not suitable and not sustainable. Accordingly, he is entitled to full LOE benefits under Section 43(1) from the date of termination. It is unclear from the evidence to what extent he suffered a wage loss while working for the accident employer in September and October, 2003. He is also entitled to LOE benefits for any wage loss suffered during this period.
46 Given the worker's evidence that he continually looked for work following his termination, the Majority is satisfied the worker is entitled to full LOE benefits until he succeeded in finding employment with the butcher shop. It appears that he continued to suffer a wage loss after finding this job. His on-going entitlement to LOE benefits after he commenced working for the butcher shop is referred back to the Board.
47 While the finding that the worker is competitively unemployable at the time he was terminated is sufficient to dispose of the appeal, submissions were made on circumstances surrounding the worker's termination of employment in October, 2003. In the Majority's view, it is questionable whether the employer had just cause to terminate the worker on the grounds set out in the job offer. The job offer stated that there were grounds for termination if the worker did not provide "a Social Insurance Number or proof you applied." [emphasis added] The evidence indicates the worker did provide the employer with information that he had retained a lawyer, had made application and was in the process of obtaining legal status to work. The fact that the worker was granted refugee status on November 3, 2003 and a work permit in January 2004 further support his evidence that he had taken steps to get legal status to work, as required by the employer.
48 The Majority also notes the Tribunal decisions referenced by Tribunal Counsel who attended the second day of hearing which indicate that termination should be for reasons unrelated to the worker's compensable condition.
49 The worker in Decision No. 260/05 suffered a leg injury and returned to modified work but his employment was terminated one month after that. In this case, the Vice-Chair was not satisfied that the worker was dismissed solely due to his own misconduct. In reaching this conclusion, the Vice-Chair found that the return to work process was "less than ideal", there was "no clear evidence available to [him] as to the process carried out for the termination," and that the Board "did not fully investigate the reasons for the [worker's] termination. The Vice-Chair concluded that the worker was entitled to further LOE. In Decision No. 528/05, the Panel applied the same reasoning and allowed entitlement to LOE benefits. The Panel in Decision No. 2660/07 also adopted the same reasoning in allowing further LOE benefits. In that decision the Panel was not persuaded that "the reasons for the worker's loss of earnings was solely due to the termination of his employment".
50 Considering that the worker had taken steps to get legal status, as required by his employer, and that when he returned to work he was effectively required to perform his pre-injury job but was unable to do so properly because the job was unsuitable and unsustainable, we cannot conclude that he was let go for reasons unconnected to his compensable disability.
51 Turning to the worker's appeal for LMR services, subsections 42(1) and (2) of the Act that determine if a LMR Assessment and Plans are to be provided read as follows:
42.(1) The Board shall provide a worker with a labour market re-entry assessment if any of the following circumstances exist:
1.
If it is unlikely that the worker will be re-employed by his or her employer because of the nature of the injury.
2.
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.
3.
If the worker's employer is not co-operating in the early and safe return to work of the worker.
52 In this case the Majority has found that the worker's left foot impairment prevents the worker from returning to pre-injury employment and the employer has been unable to arrange work that is consistent with the worker's functional ability and that restores the worker's pre-injury earnings.
53 Accordingly, the Majority finds that the worker is entitled to LMR services to assist him in returning to suitable work and to re-establish his pre-accident earning. While the ARO noted terms in the worker's work permit which might have limited the range of LMR services available, this is no longer an issue as the worker is a landed immigrant.

DISPOSITION

54 The appeal is allowed.
55 The worker is entitled to full LOE benefits from the date of his termination at the end of October, 2003 to the date he found employment as a butcher. He is also entitled to benefits for any wage loss suffered in September and October 2003. Ongoing entitlement to LOE benefits following his employment with the butcher shop is referred back to the Board.
56 The worker does not seek benefits for the period January 2006 to September 22, 2007 while out of the country.
57 The worker is entitled to LMR services.

DISSENT

REASONS

58 I have had the opportunity of having read the reasons for decision of my colleagues, and, with respect, I have come to a different conclusion.

(i) Background
59 The background to this appeal is as follows. The worker is 39 years old. He is originally from Grenada and came to Canada in March 2000 as a visitor. He subsequently made a claim for refugee status which was denied.
60 In June 2000, the worker began working for a landscape labourer. He did not have legal status to work in Canada at that time. On July 30, 2002, the worker was injured at work. While getting off a riding lawnmower he slipped and caught his left foot in the mower blades. He was taken to hospital where he underwent surgery. He was diagnosed with a "Traumatic left foot injury with 1st, 2nd, 3rd, and 4th metatarsophalangeal dislocations and 1st, 2nd, 3rd, and 4th, metatarsal fractures."
61 The worker made a claim to the Workplace Safety and Insurance Board (the "Board") for compensation benefits which the Board allowed. In addition to loss of earnings ("LOE") benefits, the Board granted the worker entitlement to a non-economic loss ("NEL") benefit as compensation for a permanent impairment of his left foot.
62 On December 19, 2002, the accident employer wrote to the worker offering him modified duties at graduated hours. However, the employer's offer was contingent on the worker obtaining legal status to work within four weeks of his return to work. The employer's letter reads, in part, as follows:
This letter confirms that [the employer] is offering you modified work, returning December 23, 2002.
The following schedule was determined, as advised by WSIB.
[The employer] will pay you the same previous wage for hours worked and WSIB will pay the balance.
It is also the expectation that you will provide a Social Insurance Number or proof that you have applied 4 weeks after your return to work. If this information is not given you are forewarned that it is grounds for termination.
63 The worker did not return to work in December 2002. The worker did not feel that he was physically capable of working at that time. The worker remained off work until he returned to work with the accident employer on September 1, 2003. It appears that the worker returned to his regular pre-accident duties and hours at that time. A month later, in October 2003, the worker was fired.
64 After he was fired the worker was out of work for several months before finding work as a butcher.
65 In January 2006, the worker was deported from Canada.
66 On September 22, 2007, the worker returned to Canada as a permanent resident. Shortly after his return he found employment as a landscaper. He continued that employment until a seasonal layoff for the winter. In April 2008, the worker found another job as a landscaper. He has worked as a landscaper since that time, although in the summer of 2008, he switched employers.
67 As noted earlier, after the worker's accident of July 30, 2002, he was granted entitlement to LOE benefits and a NEL benefit. A Board Claims Adjudicator determined that the worker was entitled to LOE benefits up to February 3, 2003. The Claims Adjudicator determined that as of that date the accident employer had suitable modified work available for the worker, and accordingly, the worker was not entitled to LOE benefits beyond February 3, 2003. The Claims Adjudicator also ruled that Labour Market Re-entry ("LMR") services were not warranted.
68 The worker objected to the Claims Adjudicator's decision. The worker's objection was considered at a hearing before an Appeals Resolution Officer ("ARO") in the Board's internal Appeals Branch. In a decision dated February 26, 2004, the ARO allowed the worker's objection in part. The ARO ruled that the worker was entitled to full LOE benefits from the date of his accident until his return to work with the accident employer on September 1, 2003. The ARO ruled as follows. The ARO ruled that after his return to work on September 1, 2003, the worker:
demonstrated the ability to perform his regular work activities, with the injury not viewed as limiting or impacting his ability to restore his pre-accident earnings. The lack of a SIN led to his termination. LMR services are not warranted as the worker demonstrated the ability to perform his pre-accident duties. Furthermore, the worker's current legal status in Canada does not allow him to attend any educational institution or partake in any academic, professional or vocational training course.
69 The worker now appeals the ARO's decision to this Tribunal. The worker claims entitlement to LOE benefits beyond October 2003, that is, the date he was fired by the accident employer. The worker also claims entitlement to an LMR assessment.

(ii) Issues

70 The issues which arise for determination on this appeal are as follows:
1.
Is the worker entitled to LOE benefits beyond October 2003?
2.
Is the worker entitled to an LMR assessment?
(iii) Analysis
Entitlement to LOE benefits beyond October 2003
71 Having considered the evidence and submissions put forward at the hearing of this appeal, and with respect to my colleagues who have come to a different conclusion, I find that the worker is not entitled to LOE benefits beyond October 2003. The basic reason for this finding is that the worker's loss of earnings beyond October 2003 is not attributable to his workplace accident.
72 Because the worker's accident occurred in 2002, his entitlement to benefits is governed by the Workplace Safety and Insurance Act, 1997 (the "WSIA"). Section 43 of the WSIA makes clear that a worker is entitled to LOE benefits only if the loss is "as a result of the injury." It reads as follows:
43(1) A worker who has a loss of earnings as a result of the injury is entitled to payments under this section beginning when the loss of earnings begins.
73 In this instant case, I find, on a preponderance of the evidence that the worker's LOE subsequent to October 2003 was not a result of his compensable injury. Rather, the worker's LOE was the result of his being fired by his employer because he was not legally authorized to work in Canada.
74 At the hearing of this appeal, the worker testified that he was unsure why he was fired in October 2003 and that no explanation was given to him. In my view, it is more likely than not that the worker was fired because he failed to provide the accident employer with proof of his legal capacity to work in Canada. As noted earlier, on December 19, 2002, the accident employer wrote to the worker and indicated that they had work available for him, but that he would be expected to provide them with proof, within four weeks, of his ability to work legally in Canada. The worker did not provide that proof to the accident employer and accordingly was fired.
75 Further support for the conclusion that the worker was fired for reasons unrelated to his compensable injury is the fact that the accident employer was not under a legal obligation to reemploy the worker after his injury-related layoff. Section 41 of the WSIA imposes reemployment obligations on an employer to reemploy an injured worker only if that employer employs 20 or more workers. That provision reads as follows:
41(1) The employer of a worker who has been unable to work as a result of an injury and who, on the date of the injury, had been employed continuously for at least one year by the employer shall offer to re-employ the worker in accordance with this section.
(2) This section does not apply in respect of employers who regularly employ fewer than 20 workers or such classes of employers as may be prescribed.
76 The evidence in this case is that the accident employer was not subject to the reemployment obligation. A memorandum written on July 14, 2003 by the Claims Adjudicator reads, in part, as follows:
Under section 41, employers have a legal responsibility to re-employ a work if the worker has been employed continuously for at least one year, and the employer regularly employs more than 20 workers.
Payroll records for 2002 provided by the employer suggests less than 20 workers were employed by the company prior to the 30JUL2002 work injury ...
77 Thus, the evidence is that the employer was not under a legal obligation to reemploy the worker after his injury-related layoff. The fact that the employer offered to take the worker back on the condition that he was able to obtain legal status to work in Canada, strongly suggests, in my view, that the worker's subsequent firing was a direct result of his failure to obtain such status and was not related to the worker's compensable injury. If the employer did not want to take the worker back because he was injured it could have achieved that result without taking him back conditionally and then firing him for failure to comply with that condition. I conclude on a preponderance of the evidence that the worker was fired because he could not provide the accident employer with proof of his legal status to work in Canada. At the time he was fired the worker was earning his pre-accident wages. Accordingly, the worker's LOE subsequent to October 2003 were not a "result of the injury." Rather, his LOE was a result of having been fired for a reason unrelated to his compensable injury.
78 I am fortified in this conclusion by the conclusions of the Panel in Decision No. 2035/00. In that case a worker who had previously had a compensable workplace accident resulting in a permanent impairment was subsequently fired by her employer for reasons unrelated to her compensable injury. The Panel described the circumstances of that case as follows:
In this appeal, the worker returned to work after a workplace injury performing light work for the accident employer at no wage loss. The worker has been awarded a 20% NEL benefit and a sustainability FEL benefit. She was subsequently terminated by the employer in May 1993. Subsequent to termination, the worker has been unable to restore her pre-accident earnings. The worker is seeking ongoing VR (or in the language of the current legislation, labour market re-entry (LMR)) services, in order to restore her earning capacity. She is also seeking to have her FEL benefit redetermined to reflect the wage loss she has experienced since her termination.
79 The Panel went on to state that should it come to the conclusion that the worker was terminated for just cause, then her subsequent wage loss could not be attributed to her compensable accident and accordingly, she would not be entitled to subsequent income replacement or LMR benefits:
Should this Panel determine that the worker was terminated for just cause, that is, as a result of her personal misconduct in the workplace, it follows that her subsequent wage loss and resulting requirement for LMR assistance resulted from the misconduct and not from her workplace injury. In that case, she would not be entitled to the benefits that she seeks in this appeal. LMR services and a FEL benefit are only available to workers where a wage loss is the result of a workplace injury.
80 The Panel then referred to Decision No. 1230/01 which denied further benefits to a worker who had been terminated for reasons unrelated to his compensable injury:
The Panel in that decision determined that the worker's employment had been terminated for reasons that were unrelated to his compensable injury. The Panel confirmed the worker's sustainability FEL award and determined that the worker was not entitled to further VR services. At paragraph [34], the Panel stated:
... In our view, the worker was suffering a wage loss in April 1995 and the employer no longer had suitable work available for the worker because the worker removed himself from the employer's workplace when he was terminated and accepted the settlement. As noted above, neither the worker's termination nor his acceptance of the settlement had anything to do with the worker's compensable injury.
81 The Panel in Decision No. 2035/00 concluded that a worker who is not experiencing a wage loss and is fired for just cause:
must be deemed to have taken him or herself out of the workplace through his or her own actions and a loss resulting from such actions would not be compensable under the Act in the absence of other relevant circumstances.
82 The Panel did not identify what other "relevant circumstances" might entail. The Panel concluded that the worker in that case was terminated for just cause and was therefore not entitled to further income replacement or LMR services.
83 I agree with the approach set out in Decision No. 2033/00. As noted above, I find that the worker in this case was fired in October 2003 for just cause. Accordingly, his "subsequent wage loss and resulting requirement for LMR assistance" did not result from his compensable injury. He is therefore not entitled to LOE benefits beyond October 2003 or to LMR services.
Entitlement to an LMR assessment
84 For reasons set out above, I find that the worker is not entitled to an LMR assessment.

DISPOSITION

85 The appeal is denied.

SERIAL OFFENDER ALLOWED TO STAY

It is hard to understand why someone with this criminal history in Canada should be shown any deference. Dozens of people are deported every month for much less, and many are hard working individuals without any criminal history. I find the IRB's quoted statement"on the balance of probabilities Mr. Noedost is a possible re-offender whose presence in Canada creates and unacceptable risk to the public." nothing short of bewildering when made in connection with an individual who has been convicted not only of drug trafficking and sexual assault, but according to the article below "also has prior convictions for drugs, fraud and mischief".If that is not danger to the public, what is? I am sure that the public will feel very reassured by the decision.Is the IRB dreaming? This decision is questionable at best. If I find the reported case, I will post it, although it takes several weeks for the cases to be released by the research tools.


Winnipeg Free Press - ONLINE EDITION

Sex offender allowed to remain in Canada

Immigration officials fear man's safety threatened if he's sent to Iran

By: Kevin Rollason

2/07/2009 5:02 PM

A convicted sex offender from Iran will be allowed to stay in Canada due to fears he would be killed if deported to his homeland.
During a hearing today in Winnipeg, Michael McPhelan of the Immigration and Refugee Board of Canada, agreed Farid Noedost’s fears for his life outweigh any fears by Canadians that he may commit another crime of violence.

In a video link from Vancouver to the Winnipeg courtroom, McPhelan ordered Noedost, 33, to comply with conditions mirroring his current parole conditions, including not being in the company of female minors and not changing his address or job without notification.
McPhelan also ordered additional conditions requested by the federal immigration minister, including meeting with immigration officials monthly and informing immigration officials if he is arrested.

Court documents show Noedost was sentenced to three years in prison in December 2007 on a charge of possession of cocaine for the purpose of trafficking. He was also given a three-year suspended sentence and probation in April 2008 on a sexual assault conviction. Two other sex assault charges were stayed by the Crown.

Noedost had been arrested in 2006 after two girls, aged 15 and 16, claimed they were abused after passing out from drugs and alcohol in Noedost's inner city apartment on three occasions. The alleged attacks were reported by Noedost's 16-year-old girlfriend, who told police she stumbled across videotape of two of the incidents. She claimed Noedost eventually destroyed the tape by throwing it in a fire.
Noedost also has prior convictions for drugs, fraud and mischief between 2000 and 2002. However, he didn't receive anything more than a fine. Noedost came to Canada years earlier as a refugee.

His deportation became mandatory after his latest sentence because it was a federal penitentiary term that exceeded two years.
"There is also a significant history of violence and hostility towards women, impulsiveness and a strong lack of concern for others along with a history of poor problem solving skills: e.g. resorting to violence towards individuals who cannot protect themselves," prison officials wrote in a recent report.

Federal immigration officials have also written that "on the balance of probabilities Mr. Noedost is a possible re-offender whose presence in Canada creates and unacceptable risk to the public."

Wednesday, July 1, 2009

HERE WE GO AGAIN....VISA FOR CZECH CITIZENS

Here is some deja-vu: The Canadian government lifted its visa on Czech citizens when the Czech Republic democracy took hold, and immediately a flood of Roma Czechs took advantage of the situation, flew to Canada and made refugee claims, mostly found unfounded. Then, as the situation stabilized, under pressure from the EU, the Canadian government lifted its visa requirement. The result? Another flood of Roma from the Czech Republic making refugee claims! Now the Canadian government is debating re-imposing a visa on the Czech Republic, making law abiding Czech citizens pay for the sins of the bogus refugee claimants. Unfortunately, there appears to be no otter choice. It is time to stem the flood.


Canada mulls visas as Czech asylum seekers pour in

Wed Jul 1, 2009 7:46am EDT

PRAGUE (Reuters) - Canada may reinstate a visa requirement on Czech visitors after hundreds of Roma from the Czech state sought asylum there over the past few months, the Czech Foreign Ministry said Wednesday.
The Roma asylum seekers say they have been discriminated against by the majority ethnic Czech population, a view supported by human rights agencies.
Minister Jan Kohout said he had met Canadian Citizenship and Immigration Minister Jason Kenney several days ago on the issue.
"I can confirm the Canadian side informed us about measures under consideration in reaction to the growth in the number of asylum seekers, including introduction of the visa requirement," Kohout told a news conference.
The Canadian embassy in Prague did not say if the visa requirement would be reinstated.
"In general, Canada takes into account a number of factors when deciding on (re-) instating the visa requirement," an embassy spokesman said in an email.
The Czech Republic, a European Union member since 2004, has been hit by the global economic crisis, with unemployment rising and the overall output falling 3.4 percent in the first quarter.
The Roma are mostly poor and less educated than other Czechs, and have been the target of several attacks in the past months including one by a petrol bomb that injured a baby girl.
A joint statement in April from the Vienna-based European Union Agency for Fundamental Rights, the Council of Europe, and the Organization for Security and Cooperation in Europe said the economic downturn was fuelling anti-Roma sentiment across the continent.
Last month 100 Romanians, most of whom were of the Roma or Gypsy ethnic group, fled Northern Ireland after their community came under attack by local Irish people.
Integration of the Roma community is not high on the agenda of the main Czech political forces and far-right activists have staged demonstrations in Roma districts in the past months. Extremist parties however failed to score in elections in the past years.
The Canadian embassy said 853 Czechs applied for refugee status in Canada last year, and 84 were granted it among the 195 cases that have been closed so far.
In the first quarter of this year alone, the number of applications rose to 653 and 34 have been granted out of 87 finalised cases.
There have been previous waves of Roma immigration to Canada and in 1997 visa requirements were re-imposed for 10 years.
(Reporting by Robert Mueller, writing by Jan Lopatka; Editing by Matthew Jones)
Visalaw International CS CBA OBA-ABO AILA IPBA NYSRA ABA IBA