Ontario temporary foreign worker denied OHIP for being employed by company outside province

An Ontario woman has lost her OHIP coverage because she was working remotely for an employer that doesn’t have an office in the province, according to a tribunal decision that may affect other work permit holders here.

 

The temporary foreign worker has been employed full time since October 2021 by Fieldcore Services Solutions Co., a wholly owned affiliate of GE, as a project controls adviser, working from Ontario on projects in the province. However, Fieldcore only has offices in Nova Scotia and Quebec.

 

After successfully obtaining her OHIP and renewing it once, she learned from the Ministry of Health that she was previously provided the coverage “in error” because “she is not employed by an employer in Ontario” as stipulated, although she and her family all live in the province and her T4 also indicates that her province of employment is Ontario.

 

The rationale for providing OHIP coverage to temporary foreign workers is to attract and retain skilled workers in Ontario and to fulfil its labour market needs, and hence the requirement, the Health Services Appeal and Review Board said in upholding the ministry’s decision.

 

The case underlines a shortcoming in OHIP eligibility as more people are living in one province and employed in another.

“In an age of remote work, where an employee can meet the labour market needs of a jurisdiction (such as Ontario) by working for an employer that may be physically based in another province, the policy rationale for the ‘employer in Ontario’ requirement may no longer be as relevant as it once was,” the tribunal admitted in a decision released this month.

 

University of Ottawa law professor Yin-Yuan Chen said he could see why the appeal board landed on this decision but questioned if it was fair, because all Ontario residents pay income tax federally and provincially, and a part of that is specifically designated as an Ontario health premium.

 

“So you pay into a system and somehow you don’t get anything back,” said Chen, who specializes in health and migration laws, and is not involved in the case. “So in terms of ethical considerations, there is a lack of reciprocity.

 

“As far as I know, for all the other jurisdictions, temporary foreign workers just need to show that they are residents in that province or territory … This raises the question of why Ontario is doing this.”

 

The Star is withholding the name of the appellant, who represented herself in the appeal and did not respond to a reporter’s repeated requests for comments.

 

At the hearing in February, the woman told the tribunal she and her husband were issued work permits in 2022 that have since been renewed and are valid until 2026. From January 2022 until January 2023, the couple and their eight-year-old daughter were covered by OHIP.

 

Their first OHIP renewal was initially denied because she was working for an employer based outside Ontario. But the decision was reversed upon an appeal to the Health Ministry’s OHIP eligibility review committee. As a result, their coverage was resumed until Jan. 31, 2024.

 

When she tried to renew her OHIP at the end of last year, health officials said they had made a mistake and she should have been ineligible for the coverage in the first place. She appealed to the tribunal.

 

The woman argued that her eligibility for OHIP as a temporary foreign worker should be considered in light of the unique circumstances of multinational companies like GE as well as the recent advent of remote work.

 

The ministry, however, contended that granting OHIP to employees of businesses located outside Ontario does not align with its policy, which is meant to fill a labour market need in the province. It said no discretion was allowed under the regulation.

 

The tribunal said it had considered whether “work full-time for an employer in Ontario” could be interpreted to simply mean “work full-time in Ontario.”

 

“The Appeal Board concluded, however, that when read in its entire context and grammatical and ordinary sense, the phrase ‘work full-time for an employer in Ontario,’ could only mean that the employer must be physically located in Ontario,” it said. “The Appellant does not have an OHIP-eligible status.”

It is not known if the woman was working remotely from home or on job sites in Ontario, but the tribunal decision was based on the fact that Fieldcore did not have an office in the province. The company’s employment letter specifies that she has been hired to work in Ontario.

 

Chen pointed out that the law currently does not clearly define what exactly working for an employer in Ontario means and the tribunal decision was based on its own interpretation.

 

“If this case ever gets appealed to the court, who knows whether the judge will agree or not,” he said. “I would simply say that this is a phrase that is undefined. And in my view, it’s unclear.”

 

Chen said Ontario currently allows residents who study outside the province to maintain their OHIP and the law could be easily amended to adapt to the remote-work trend.

 

“If the law remains how it is today, we are going to continue to see this kind of cases.”

 

The Ministry of Health said it cannot comment on this case because the appellant still has options to challenge the tribunal decision. It did not say if the government would consider changing the regulation.

 

 

 

This article was first reported by The Star