Chapter 4.4 Access to Workers’ Compensation Regimes for Mobile Workers

Eligibility for Workers’ Compensation and Claiming Challenges

As noted in chapter 2, a key difference between the provincial regulatory frameworks is the percentage of the labour force eligible for workers’ compensation and the list of excluded occupations and sectors (see variability in percentage of eligibility and list of exclusions by Canadian jurisdiction in AWCBC [2024]). Given this variability, international migrant workers (IMWs) and interjurisdictional workers may be particularly likely to not know about their eligibility, with higher risk among the precariously employed (see, e.g., MacEachen, Senthanar, and Lippel 2021; Lippel, MacEachen, and Senthanar 2020) and among home care, fishing, and agricultural workers. For most workers, including particularly IMWs and the precariously employed, the very process of initiating a workers’ compensation claim is not without pitfalls (Lippel 2012; Lippel et al. 2005; MacEachen et al. 2010; Visotzky-Charlebois 2021a, 2021b; Premji, Begum, and Medley 2023), and when adding the mobility component, more challenges may arise. If workers are interjurisdictionally mobile, for example, further complexities may also arise when it comes to claiming, since they need to navigate the laws and regulations of different jurisdictions. Access to workers’ compensation can be complicated by a failure to meet deadlines for filing claims found in provincial workers’ compensation regulations. Delays in identifying the workers’ compensation board (WCB) responsible for compensating a particular injury increase the risk that the “correct” jurisdiction will deny the claim because it was filed beyond the time limits provided for in the legislation.9

The nature of the injury that occurs may lead to further complexities for mobile workers. Some occupational diseases occur rapidly after exposure, as is the case for dermatitis, for example. Others, such as hand-arm vibration syndrome or noise-induced hearing loss, develop over time, and some, such as mesothelioma10 and other occupational cancers, have a long latency period so that exposure may have occurred decades before symptoms occur and could have happened in one or more jurisdictions. The interjurisdictional complexities that exist in injury claims are clearly exacerbated when the claim is for occupational disease. For example, a worker’s claim for hand-arm vibration syndrome following exposure to vibrating tools over the course of his career was denied in Québec because only 5 percent of the worker’s exposure occurred when he was working for Québec employers. The appeals tribunal referred the case back to the Québec WCB so that it could undertake discussions with its Ontario counterpart regarding the claim.11 If a Québec-domiciled worker was only exposed outside the province, working for an employer who did not have a Québec establishment, he would not be able to claim in Québec.12 Further complexities may arise for federal workers. As we have seen in chapter 2, federal employees will be covered by provincial regulation, but in some cases, the particular status of federal employees may impede access to compensation. For example, claims may be denied because the worker’s disease was contracted in a province other than the province where the worker is now employed.13

Workers’ compensation legislation in all Canadian jurisdictions covers the initial injury but also allows a worker to claim for recurrences of that injury. For example, if a compensated work injury is stabilized and then, years later, requires surgery, the disability associated with the surgery is deemed to be the consequence of the initial injury and compensable. What happens when the initial injury is compensated in one province and the recurrence manifests when the worker lives in another province? In theory, one would expect that the recurrence would be compensable by the same compensation board that recognized the initial injury;14 however, this may not always be consistently applied. In Québec, the appeals tribunal rejected the claim of a worker, stating that the worker, whose injury was initially recognized as compensable under Québec law, was no longer residing in Québec nor working for a Québec employer at the time of the recurrence.15

Every Canadian jurisdiction has legislation or policy providing compensation for work-related mental disorders. However, the scope of coverage varies based on the type of mental disorder, its cause, and the diagnostic criteria required (Lippel and Sikka 2010).16 In recent years, several jurisdictions, including Alberta and Ontario, have facilitated access to workers’ compensation for first responders who suffer from post-traumatic stress injuries.17 In Québec, the worker has to demonstrate “having carried on any work involving repeated or extreme exposure to serious injury, sexual violence or threatened death, or to actual death not resulting from natural causes.”18 NL adopted a similar approach in 2018, including a post-traumatic stress disorder presumption for workers exposed to “a traumatic event or events in the course of the worker’s employment” and diagnosed by a psychiatrist or registered psychologist.19 When workers travel between provinces for work, the jurisdiction elected for the compensation of a mental health claim will determine eligibility for benefits, and it is unclear how regulators deal with workers who were exposed to stressors in several provinces, some of which provide coverage and some that don’t.

What It Means to Be “in the Course of Employment” for a Mobile Worker

When discussing commuting and transportation to work, the question that arises is whether or not the worker was “in the course of employment” when injured. There appear to be different interpretations of what it means to be in the course of employment, even in the jurisdictions where comprehensive policy about this matter exists.20 In each case, adjudicators will look at the list of potential links between work and the circumstances in which the injury occurred and weigh the evidence to determine if, in balance, the injury occurred in circumstances that were sufficiently linked to work before accepting a workers’ compensation claim.

In Québec, the expression “in the course of employment” is not defined by the law, but the jurisprudence has enumerated several criteria to assess this issue—namely, the place of the event, the time of the event, the remuneration of the activity carried out by the worker at the time of the event, the existence and degree of employer authority or subordination to the employer when the event does not occur on the premises or during working hours, and the purpose of the activity carried out at the time of the event, whether it is incidental, ancillary, or optional to the workers’ working conditions and whether the activity is related or relatively useful to the performance of the work.21 According to the analysis of Bruno, Martel, and Vallée (2018), there are two jurisprudential streams that speak to what it means to be “in the course of work.” As a result, workers subject to similar availability requirements may not have the occupational nature of their injury recognized in an equivalent manner (277–78).

In Alberta, NL, and Ontario, the WCBs have comprehensive policies related to what it means to be “in the course of employment.” In Alberta, an accident occurs in the course of employment when it happens at a time and place consistent with the obligations and expectations of employment.22 Coverage is not extended for routine commuting, regardless of any remuneration. However, if the worker is required to take a company vehicle to and from the work site for a work-related purpose (e.g., being available for service calls), they will be covered while travelling (WCB-Alberta 2023c, ques. 3–5). A worker would likely be covered when they go directly from their home to an off-site business meeting (WCB-Alberta 2023c).

In NL, the phrase “arising out of and in the course of employment” means the injury is caused by “some hazard which results from the nature, conditions or obligations of the employment and the injury happens at a time and place, and in circumstances consistent with and reasonably essential to the employment” (WorkplaceNL 2001, 1). No single criterion is conclusive, and various indicators are used for guidance, including

whether the injury occurred on the premises of the employer; whether it occurred in the process of doing something for the benefit of the employer; whether it occurred in the course of action in response to instructions from the employer; whether it occurred in the course of using equipment or materials supplied by the employer; whether it occurred in the course of paid employment; whether the risk to which the worker was exposed was the same as the risk to which he/she is exposed in the normal course of production; whether the injury occurred during a time period for which the worker was being paid; and whether the injury was caused by some activity of the employer, a fellow worker, or a third party. (WorkplaceNL 2001, 1–2)

In Ontario, to determine if an injury occurred in the course of employment, the decision-maker will also apply the criteria of place, time, and activity (WSIB Ontario 2004a). It is generally considered that workers are in the course of employment when the conditions of the employment require a worker to drive a vehicle to and from work for the purpose of that employment, with the exception of when a “distinct departure on a personal errand takes place en route.”23 As in other jurisdictions, a worker is generally not considered to be in the course of the employment when travelling to or from the workplace (WSIB Ontario 2004e). In one case, workers working remotely and living in an employer-paid motel accommodation got in a car accident when they were returning from lunch at the only restaurant available. In that case, the decision-maker considered that the individuals were in the course of their employment “or engaged in an activity reasonably incidental thereto.”24

A Supreme Court of Canada decision previously addressed the issue of the nature of the activities leading to the injury to see if they fell in the professional or personal spheres. The Supreme Court then noted how these activities can be interrupted and then resumed or even succeed each other.25 The interference of the personal sphere is often discussed and not always interpreted evenly between the jurisdictions. Thus, it was found that an Ontario worker who did a slight detour to get something to eat “did not negate the overarching work-related purpose behind his activity at the time of the accident.”26 In Québec, a food inspector was hit by a car while going to retrieve her scarf in the restaurant where she had eaten before going to another establishment for an inspection. Her claim was rejected; the appeals tribunal concluded the injury did not occur “in the course of work” because “not only did it occur on the public highway, but . . . the court found that the purpose of the activity was of great importance, whereas it was purely personal in this case.”27 Other circumstances will rarely, if ever, be considered the basis for a compensable injury by any Canadian WCB, such as an injury occurring while the worker stopped on her way to or from work for personal reasons, perhaps to visit a relative on the way to work.28 Generally, the fact that the employer owns the vehicle is not a relevant factor; the determination will be based on the purpose of the trip and the control or direction the employer exercises.

Healing at Home

What happens if a worker whose family is living in another province or country is injured on the job? Can they return home after the injury and continue to receive benefits? In theory, the answer is yes; many decisions and policies address the situation of workers who return home after their injury, with the approval of the compensation board and without being penalized.29 Nevertheless, doing so can impede full access to benefits.

In Alberta, Ontario, NL, and Québec, all four WCBs have more or less comprehensive policies related to what happens when a worker is injured and wishes to heal at home. The general principle is that a worker who wishes to leave the province after an injury needs to notify the board. Failure to do so may result in the suspension of benefits, and the file could be closed (WSIB Ontario 2021c, 2023; WCB-Alberta 2018d; WorkplaceNL 2021b; CNESST 2023).30 The WCB normally continues compensation following notice of a worker’s intention to leave the province, unless it is evident that by leaving the province, the period of disablement may be extended (WCB-Alberta 2018d; WorkplaceNL 2021b; CNESST 2023). The WCB may stop benefits if the worker consciously chooses to delay their rehabilitation program for personal reasons and leaves the province. A worker can usually choose to receive health care in the province where they got injured or in the community where they reside; however, when leaving the province is considered to interfere with the required treatments, the benefits will likely be suspended and lead to further litigation.31

In Alberta, the WCB may reimburse reasonable expenses resulting from necessary travel within Alberta when the WCB directs a worker to report in Alberta but will consider that the expenses that result from travelling from the worker’s place of residence to the Alberta provincial boundary would be the worker’s own responsibility (WCB-Alberta 2018c, ques. 7). In some cases, the appeals tribunal may order the independent medical examination to take place closer to the worker’s home if they relocate to another province after the injury.32

Québec’s WCB has some specific guidelines when it comes to border regions, defined as a region of Québec located within a radius of less than eighty kilometres from a point of contact with the province of Ontario, New Brunswick, or NL (CNESST 2023). When a worker suffers an occupational injury in a border region, Québec’s WCB will cover the cost of care and treatment received in a hospital centre, as well as the services of physicians, dentists, optometrists, or pharmacists received outside Québec. In cases where the worker moves to a country with which there is an agreement, the WCB assumes the cost of health professional services, according to terms and conditions set out in the agreement (see chapter 2). If the worker moves to a country with which there is no agreement, the WCB assumes the cost of the services of health professionals according to the rates provided for similar services under the Québec public health insurance plan.

In Québec, the legislation allows the employer to require the worker to undergo an examination by a doctor designated by the employer. In these cases, the employer is responsible for the cost of the examination and any expenses incurred by the employee in attending.33 The issue of whether the absent worker has reasonable cause not to attend a medical evaluation required by the employer has been raised on some occasions. In one case, an IMW did not attend, as she had been deported from Canada after the expiration of her work permit, and the WCB suspended her benefits. The appeals tribunal refused to revoke payment of her permanent impairment benefits by reason of her absence at the time of the medical appointment.34

Dana Howse et al. (2018) reported on how some workers, including those mobile within provinces, may have to spend time away from home because of the treatment they need to receive, or they may have to travel back and forth (see also Howse and Neis 2026). There is limited research comparing compensation claim rates and outcomes across workers engaged in different types of ERGM. Cherry et al. (2019) used Alberta workers’ compensation records to compare claim rates among all workers with accepted injuries that resulted in more than five days of time loss between interjurisdictional migrant workers from NL and those injured workers resident in Alberta. They found a markedly lower injury reporting rate for the former rather than the latter, particularly for injuries resulting in one to thirty days off work.

Survey and interview findings from research done in Fort McMurray, Alberta, summarized in the same publication, indicated underreporting of injuries, with greater underreporting by workers from out of province or recently arrived. Reasons for underreporting among interprovincial workers included downplaying the seriousness of the injury and fear of blacklisting by contractors. Subsequent research by Cherry, Galarneau, and Haynes (2020, 154) using WCB data and interviews with Albertan and Atlantic Canadian workers injured in Alberta found the median number of days of wage replacement was longer for the workers from the Atlantic provinces than for the Albertans, particularly among those who recovered in their home province. Multiple factors could help explain this outcome, including poorer access to specialist medical services and to expedited access to treatment and rehabilitation in the home province. The higher wage replacement paid by the Alberta WCB—reflecting Alberta’s higher incomes—may have exceeded the earnings available to workers in Atlantic Canada and thus played a role. The authors conclude that “the higher costs for wage replacement associated with extended time off work could be inherent to the practice of employing out-of-province workers for jobs for which there is a shortage of local labour” rather than implying the need to require them to seek health care only in Alberta (146). Research has found more generally that

compared to non-mobile or less mobile workers, mobile workers experience poorer work disability and return-to-work (RTW) outcomes following work-related injuries and illnesses. This is supported by research on workers who experience work-related injuries in different jurisdictions from where they are resident, such as immigrant workers, and inter-jurisdictional workers in countries where workers’ compensation falls under different provincial, territorial or state jurisdictions. It is also evident in research that compares work disability of workers from different areas based on their population size and commuting patterns, as well as commuting time and sickness absence. (Macpherson et al. 2024, 6)

Return-to-Work Rules: An Overview

Once coverage is granted, workers will be eligible for—and in some provinces, obliged to take up—offers of modified work. In every jurisdiction, the law provides for ways for a worker to return to work before they reach the maximum medical recovery.35 RTW programs are designed to reintegrate injured workers into the workplace before or after the healing or stabilization of the injury. There are specificities in each province, but employers have economic incentives to offer modified work that allows claimants to remain active in the workplace (Lippel and Walters 2019, 334; for a recent overview of RTW policies in different Canadian jurisdictions, see Keefe et al. 2023). Modified work is often used by employers when workers are recovering from a temporary impairment that caused a disability: “Work hardening entails providing a worker with the opportunity to gradually return to work (via increasing hours and work demands) in order to build stamina” (Foster and Barnetson 2016, 212). As Foster and Barnetson explain, some evidence suggests that workers with back pain recover quickly when they remain active. However, it is not clear how work “is analogous to the more generalized term activity,” in particular because of the power relationship inherent to the employment relationship (215). In addition, if this early RTW may prove beneficial for workers with back pain, it may not be adapted to all types of injuries (Lippel and Sabourin 2020; MacEachen et al. 2010; Lippel 2010).

RTW processes may vary from one jurisdiction to another, but in all jurisdictions, both employers and workers have the duty to cooperate in RTW.36 The role of health professionals also varies from one jurisdiction to another (Hudon, Lippel, and MacEachen 2019, 545; Hudon, MacEachen, and Lippel 2022).

In Ontario, the RTW process consists of a series of activities and services, which can start as soon as the employer learns that a worker has suffered a work-related injury/disease. The employer may offer “suitable work,” which is defined as postinjury work that is safe, productive, and consistent with the worker’s functional abilities and that restores the worker’s preinjury earnings (WSIB Ontario 2021d). Eventually the WCB may have to identify a suitable occupation for the worker.

In Alberta, a worker may benefit from a temporary modified work program while still recovering. Temporary modified work includes any changes, restrictions, or limitations to a worker’s regular job duties required as a result of a work-related injury (WCB-Alberta 2023d, ques. 2). The goal is to return the worker to their preinjury job with the same employer. If that is not possible because of work restrictions, a suitable occupation could be determined, ideally with the employer or in the general labour market (WCB-Alberta 2021a).

NL’s WCB provides RTW services and programs. Workers may return to modified work or “ease back,” which is a gradual return to the preinjury employment. The need for modified work is usually temporary, but it may be required on a permanent basis in some cases. Ease back to regular work allows injured workers to return to their preinjury jobs gradually while building up strength and tolerance in the process (WorkplaceNL 2016). The workplace parties (worker and employer) are responsible for determining whether a particular job that becomes available is suitable for the worker. NL’s WCB will make the final determination if the workplace parties cannot agree (WorkplaceNL 2024). Suitable employment needs to meet the following criteria: “the work is within the worker’s functional abilities; the worker has, or is reasonably able to acquire, the necessary skills to perform the work; the work does not pose a health or safety risk to the worker or co-workers; and the work restores the worker’s pre-injury earnings, if possible” (WorkplaceNL 2023c, 2).

In Québec, the employer can offer a temporary assignment of work prior to maximum recovery; the health professional in charge approves the temporary assignment.37 Since 2021, the WCB can also grant workers rehabilitation measures that are adapted to the state of their health and favour their vocational reintegration. The WCB can implement measures, such as gradual RTW, and must submit the measure to the health professional, “unless this measure has no effect on the patient’s state of health.”38 When the injury is “consolidated,” if the worker cannot return to their preinjury job, the WCB will determine, with the collaboration of the worker and the employer, a suitable employment. If the employer has no available suitable employment, the worker may have their vocational potential evaluated to help them determine what employment with another employer would be suitable for them.39

Return to work while recovering: How does mobility come into play? As Lippel and Walters (2019) note, several issues may arise when it comes time to offer modified work to a worker who lives far from the job site and for those engaged in mobility as work (see Neis et al. [2025] on the specific challenges that seafarers and other maritime workers can face when returning to work following a workplace injury; see also Shan et al. 2025). Even though the ability to do the modified work may not in itself be problematic, the worker may have difficulty getting to the workplace or to the point of departure. In evaluating workers’ residual capacity before maximum medical recovery, it is possible that the actual travel requirements for getting to the place where suitably modified work is available will make it inappropriate for the worker to undertake the proposed assignment, even though the job itself could be compatible with the temporary functional limitations attributable to the occupational injury. Workers who decline opportunities offered may see their claims closed. There appear to be conflicting trends in case law as to how the health effects of travel are taken into consideration as well as important differences between jurisdictions. In fact, “some decision-makers refuse to consider the health effects of travel between the worker’s home and the new assignment and conclude that if the tasks assigned are safe, then the traveling arrangements are irrelevant” (Lippel and Walters 2019, 334).

When workers are employed on a remote site, availability of medical services may determine whether the assignment is acceptable. In a case in Alberta, the remoteness of the workplace and the transportation it would entail for the worker were taken into consideration when assessing the benefits of modified work, particularly in light of the treatments needed.40 In Québec, the appeals tribunal confirmed the appropriateness of light work offered to a worker who objected to a temporary assignment at the original work site, which required him to drive for several hours, because the employer had ensured that the required physiotherapy was available near the work site.41

As to travel requirements, Québec case law is divided on this issue. The appeals tribunal sometimes includes the travel requirements to get to work in its evaluation of whether or not the temporary assignment proposed is appropriate, given the worker’s functional limitations.42 However, some decision-makers have refused to consider the health effects of travel between the worker’s home and the new assignment and have concluded that if the tasks assigned are safe, then the travelling arrangements are irrelevant (Lippel and Walters 2019).43 In a case where the employer provided alternative transport to a worker who was unable to drive because of medication required by his occupational injury, the appeals tribunal found that the worker was not justified in refusing the modified work and further added that the employer was not required to provide alternative transport when the worker was unable to travel to and from work because of his injury.44

There are cases where the worker’s refusal to remain in a remote part of the province during their recovery was found to be unjustified, given that the employer offered an assignment in the remote workplace that was compatible with his abilities and that his reasons for not wishing to return to the remote workplace were not grounded in the evidence.45 In cases where the temporary assignment requires the worker to travel some distance from the usual work site, the worker will be justified in refusing that work if the conditions are inferior to the usual conditions because of the travel costs.46 However, if the conditions are similar, the fact that the assignment occurs in a different facility a little farther from the usual workplace will not justify the refusal.47

In provinces such as Québec, where the worker’s health professional must approve the temporary assignment of work proposed, there are cases where the health professional has refused the modified work because of travel requirements. This was the case for a worker whose employer offered an accommodation far from her home despite her temporary inability to drive to the work site. The worker had to care for a young child, and the health professional considered the remote accommodation wasn’t appropriate because of the worker’s personal situation.48 If the worker’s health professional refuses to authorize a temporary assignment proposed by the employer after a worker has moved to another city for personal reasons, the worker retains the right to benefits, as the treating health professional has the last word on the suitability of the modified work assignment in Québec.49 Also, if the assignment has an impact on the injury and the required treatments, the refusal to undertake such assignment might be justified.50

In Ontario, the evaluation of travel in determining the legitimacy of the worker’s refusal to take up the modified work will be considered. When the employer has suitable work available that is within the worker’s functional abilities but the worker is unable to get to and from work safely, RTW may not be appropriate. When looking at suitable work in Ontario, the WCB must consider the worker’s functional ability to travel safely to and from the proposed work site: Does the worker’s work-related injury restrict their capability for safe travel? Does the mode of transportation the worker is required to use to travel to the proposed work site pose a health or safety risk to them or to the general public (WSIB Ontario 2021b)? Decision-makers must consider multiple criteria:

Can the worker use the same method of transportation, with or without accommodation (e.g. stopping for stretch break along route or traveling during off-peak hours) . . . ? Are alternative methods of travel available to the worker? Do the alternative method(s) of travel unreasonably impact the worker’s commute to work? If the worker is able to travel to the worksite, are there any barriers to the worker getting to their workstation once at the worksite (e.g. the distance from the parking lot or bus stop, the terrain)? (WSIB Ontario 2021b)

Financial hardship will also be considered. In one case, the appeals tribunal concluded that “a worker should not have to incur additional travel expenses because the work-related injury temporarily dictates a particular mode of travel. When the employer has suitable work available that is within functional abilities, but the worker is unable to get to and from work safely, RTW may not be appropriate.”51 The appeals tribunal also concluded that a worker was justified in refusing the modified work offered by the employer on the basis that her injury made it too difficult for her to drive to her work site. She lived 125 kilometres from work and had to drive there, since there were no other reasonable alternative means for getting to work: “Decision-makers should consider factors including the worker’s normal method of transportation, whether the worker can still use that method considering the area of injury, whether alternative methods of travel are available and whether such alternative methods unreasonably impact the worker’s commute to work.”52

In Alberta, it seems to be accepted that the work proposed must not “create financial hardship for the worker (for example, shift changes that require additional childcare costs, unreasonable travel to another location, etc.)” (WCB-Alberta 2023d, ques. 3). Hence if a worker were provided with transportation to and from the remote location, including any necessary visits out for medical care, the appeals tribunal would likely conclude the absence of financial hardship.53 In one case, a worker alleged that the offered modified employment was “not suitable” because it required “unreasonable travel” to attend the work site. The worker had a problem not with the modified duties being offered by the employer but rather with the fact that he had a three-hour bus ride to get from his place of residence to the job site, both of which were in the same city. The appeals tribunal found that a “worker’s commute to and from the job site, which is in the same locale as his place of residence, is not a basis upon which to determine modified employment to be ‘unsuitable.’” The criteria stated in the policy about “unreasonable travel to another location” seemed to be interpreted by this appeals tribunal as only relating to modified work that is in a different and remote location from where the worker resides.54

In NL, when assessing the possibility for suitable employment, it is possible that the employer will offer work at another work site. In this case, the WCB will have to determine if the work sites are comparable. In doing so, the WCB will consider if “travelling to the proposed job is within the normal parameters of travel expected of a worker” (WorkplaceNL 2023c, 2).

It is also worth mentioning, as do Lippel and Walters (2019), the particular situation of fly-in/fly-out (FIFO) / drive-in/drive-out (DIDO) workers. As previously mentioned, these workers are usually hired on rotations that require intensive work shifts, followed by several days off, allowing them to return home between rotations when feasible. When light work or temporary assignment is offered, “the worker’s health may not permit intensive work so the alternative work may be only for a few hours a day, every day, potentially compelling the worker to stay in the remote location indefinitely. The worker must choose between remaining in the remote location or seeing benefits cut if he or she returns home” (Lippel and Walters 2019, 335).

What happens when a worker moves away from where they used to live and work? Compensation boards may have policies as to what happens when an injured worker moves out of the province after an injury. In Ontario, the worker would then receive partial benefits (WSIB Ontario 2021a). If a worker is unable to continue participating in an RTW plan55 in Ontario because they have permanently relocated to another province or territory or outside the country before the plan is completed, the RTW plan will be closed by the WCB.56 If the RTW plan is not fully designed to restore the preinjury earnings, the worker’s loss of earnings benefit will be adjusted based on the identified suitable occupation and the wages of an experienced worker based on Ontario wage information (WSIB Ontario 2021a). If an employer is unable to provide suitable work, a worker may be provided with RTW services even if they permanently relocate to another Canadian province or territory or outside the country (WSIB Ontario 2021a).

In Québec, the WCB may reduce or suspend the payment of an indemnity if the worker “neglects or refuses to avail himself of a rehabilitation measure or his personal rehabilitation program” or “neglects or refuses to perform the work temporarily assigned to him by his employer that he is required to perform.”57 The appeals tribunal has confronted this issue a few times. In one case, with consent from the WCB, a worker from France returned home for the period in which he was receiving therapy for a laceration, which confirmed that there were international social security agreements that allowed workers to return home under such circumstances.58 However, the appeals tribunal ordered the worker’s benefits to be suspended retroactively to the date of his departure, as he did not attend the medical exam required of him by the employer and did not furnish the name of his French physician to the WCB in a timely manner, which, according to the employer, prevented him from implementing the temporary assignment for the worker.

The same scenario would likely happen in Alberta; if a worker refuses the modified work proposed because they have moved out of the province, the WCB benefits will be terminated.59 In NL, if the worker leaves the province and notifies their case manager and health care provider and receives medical approval, benefits may continue as long as medical treatment and early and safe RTW or labour market re-entry programs are not interrupted, delayed, or discontinued (WorkplaceNL 2018, 13).

Return to work after recovery. Vocational rehabilitation and returning to work after an injury are cornerstones of compensation regimes designed to maintain the ability to work (Lippel 2012). As we have seen, it is possible for a worker to return to work prior to their maximum medical recovery. Once workers reach this plateau, they could well return to the preinjury job. In some cases, this is no longer possible, and suitable employment would then be identified by the WCBs. In Canada, employers have a duty to accommodate workers with disabilities. An employer must accommodate a worker’s physical or mental disability, up to the point of undue hardship.60 Once a worker’s condition is deemed to have reached maximum medical recovery, an evaluation of their ability to return to preinjury employment will be made. If permanent functional limitations prevent the worker from returning to preinjury employment, they will be admitted into a rehabilitation program.

For the mobile workforce, different issues can arise when it comes to returning to the same job or rehabilitation and retraining. In some cases, the consequences of the injury do not affect the workers’ ability to perform the work but may prevent them from travelling to and from work. Lippel and Walters (2019) emphasize that workers who used to be mobile, prior to their injury, may be presumed to be able to continue to be mobile workers once their injury has healed.61 But the difficulties associated with the travel to and from their original or new work may not be considered by the WCBs when assessing the worker’s ability to effectively return to work.

When workers cannot return to their preinjury job, WCBs provide vocational rehabilitation, which includes the determination of “suitable employment,” defining the objective of the vocational rehabilitation program, and determining the individual support that will be provided to the worker so they are able to return to the labour market. In some cases, the preinjury employer may offer the worker a job, and in those cases, it will be necessary to determine whether the job in question meets the regulatory criteria for “suitable employment.”

A few cases have arisen in which workers could not get to work after recovery because their medication prevented them from driving or because the long distance to travel to get to work would exacerbate their condition. In Québec, the choice to live far from the place of employment is considered to be an individual preference, and as such, travel to and from work may not be considered in evaluating the individual’s ability to return to preinjury employment.62 In one case, the reasoning of the appeals tribunal was that if a commuting accident is not an occupational injury, then travelling to work is not part of the job’s tasks.63 In some cases, it will be necessary to determine whether travel requirements are suitable.64

In some of the Québec cases, the appeals tribunal overturned decisions of the WCB that had found employment suitable despite the travel requirements. In one case, for example, the appeals tribunal accepted the worker’s argument that the job proposed by the employer, which required him to travel three hundred kilometres each way, was not suitable. The appeals tribunal concluded the employment was not suitable as the travel required could exacerbate the worker’s back problems.65

For a worker with a pre-existing disability that prevented him from travelling in public transport, the proposed employment, which would have required a one-and-a-half-hour commute, was found to be unsuitable; his ability to travel to and from work was considered as part of the evaluation of suitability of the proposed employment.66 However, the Québec appeals tribunal has stated a few times that the lack of transportation for a worker does not constitute an obstacle to the identification of suitable employment, since “it is the responsibility of the worker to take appropriate measures to search for and obtain suitable employment.”67

According to the Alberta WCB policy, to be suitable, the work must meet three criteria: “a) the work can be performed without endangering the worker’s recovery or safety and the safety of others, b) the worker has the skills the work requires, and c) the work is reasonably available in a location to which the worker may reasonably commute or relocate” (WCB-Alberta 2021c, ques. 6). Even though the commute may seem to entail travelling a reasonable distance, the capacity of the worker to manage the daily commute has to be evaluated and taken into consideration by the Alberta WCB. In one case, the appeals tribunal found it was unable to determine if the position proposed was suitable, since it lacked information on whether the worker could take proper driving breaks during the commute because of his condition and could actually maintain this commute on a daily basis.68 In another case, a suitable occupation as an oil field dispatcher was found to be unreasonable because it was not in the worker’s locale and relocation of the worker was not reasonable because of his family situation. Here, the fact that the worker maintained at all times a permanent residence in another province and was never a resident in Alberta seemed to play an important role in the appeals tribunal’s decision.69 It is worth noting that a few studies suggest that the rehabilitation mechanisms available through workers’ compensation systems may not work as well when applied to workers living in rural areas and small towns (Lippel and Walters 2019, 337). In a study conducted in Alberta, the researchers concluded that Albertans living in rural areas had fewer modified work opportunities available and were less likely to be referred for rehabilitation than their urban counterparts (Lavoie et al. 2017).

In Ontario, the commuting capacity of a worker may be taken into consideration when determining if the proposed employment is suitable. In one case, the appeals tribunal had to evaluate whether the commuting asked of the worker in order to find suitable employment was reasonable, considering the functional limitations of the worker.70 In NL, if the workplace is not the same when modified work is assigned, a “comparable work site to the pre-injury work site” will be evaluated. Pursuant to its policies, the WCB will consider if “travelling to the proposed job is within the normal parameters of travel expected of a worker” (WorkplaceNL 2023c, 2); the geographic location of a work site has to be considered. NL’s WCB will evaluate if travelling to different job sites is the normal practice in the industry or was part of the employment contract. If an employer has numerous distinct plants or branches within the province, these have to be considered when looking at re-employment options (WorkplaceNL 2023d, 2024).71

It is also worth mentioning that in the four jurisdictions, the legislative frameworks foresee worker relocation as a vocational rehabilitation measure.72 In Ontario, if there is no suitable occupation in the local labour market for the worker, the labour market may be expanded to a broader market, and the WCB will pay for appropriate expenses associated with relocation (WSIB Ontario 2020). In Alberta, relocation might be deemed acceptable if the worker previously worked remotely.73 If the worker no longer wishes to relocate, the WCB may calculate their benefits as though they had relocated and accepted employment (WCB-Alberta 2021b, ques. 4).

Levels of benefits for mobile workers. When a worker is injured and unable to work due to that injury, workers’ compensation systems establish “wage replacement” mechanisms. Provinces have different wage replacement benefits for when a worker is unable to work. In Québec and Alberta, for example, it is set at 90 percent of the preinjury net income; in NL and Ontario, it is set at 85 percent. These benefits cannot exceed the annual maximum amount established by the WCB in each province. If the worker can return to their preinjury employment, this should allow them to regain their usual earnings. However, if a worker is left with a permanent injury and is unable to perform their preinjury job, suitable employment will be determined by the WCB, as discussed in the previous section. WCBs must assess the long-term consequences of the injury and determine a job that the worker can perform despite these limitations. An estimate will therefore be made of the worker’s future earning capacity. In many jurisdictions, this process relies on assumptions regarding a worker’s potential labour market participation after the injury, an approach that may generate important challenges and inequities for certain groups of workers. This process is called “deeming,” and it is much decried by injured workers in some provinces, since it presumes that the injured worker has postinjury earnings from employment, whether those earnings exist or not (see, e.g., Harvesting Freedom 2022; see also general demands from IAVGO, n.d.).

This mechanism is particularly problematic when applied to workers from outside of Canada (especially the Global South), who are injured in Canada and return to their country of origin after the injury. These workers receive significantly higher salaries in Canada than they would in their countries of origin and, therefore, have demonstrated that earning capacity but will see their compensation payments evaluated as if they were still working in Canada in the deemed occupation, even if they have returned home and are unable to return.74 As a result, their compensation benefits will not reflect their real loss of earnings, their earning capacity will never catch up to preinjury earnings, and no Canadian pension will be paid to offset the loss of earnings.75

As in other jurisdictions, the Ontario WCB has often considered that the legislation did not intend to take into account labour markets that are outside of Ontario when determining the appropriate wage of the suitable job identified.76 However, recent decisions rendered in Ontario by the appeals tribunal concluded otherwise in the cases of four Jamaican workers injured while working in Canada through the Seasonal Agricultural Worker Program (SAWP). The appeals tribunal considered their ability to earn income in their actual labour market, Jamaica, and not based on the Ontario labour market.77 The appeals tribunal decision led to an Ontario WCB policy change for SAWP workers in that province. As argued by Yachnin (2025, 102) in a recent review of this decision and policy change,

On May 15, 2024, the WSIB announced that, effective immediately, it will adjudicate SAWP workers’ benefits and right to return to work support based on the reality of their home labor markets. Its President and CEO stated that its deeming policy toward migrant workers was “not fair” and “just wrong.” The WSIB also committed that it would reconsider the decisions it had made in some 50 migrant worker claims dating back to 2007.

Unfortunately, the ruling only applies to those with permanent injuries and to those recruited through the SAWP program, not to IMWs coming into Ontario through other programs or to other provinces.

Interprovincial workers may face similar issues. Since Ontario’s WCB policies are silent on the issue of wages that should be used when a worker resides in another province, the appeals tribunal has dealt with this matter a few times and applied the Ontario rates to determine the wage of a Newfoundlander who was working as a seaman in Ontario.78 In Alberta, as is the case for modified work assignment prior to maximum recovery, if a worker moves out of the province after the injury, the WCB will estimate their earning capacity as if the worker had continued to work in suitable employment in Alberta,79 reflecting the higher wages available in the Alberta labour market (that province has one of the highest maximum annual compensable earnings at $102,100 as of January 1, 2023).80 The residual earning capacity of a worker from NL or Québec injured while working in Fort McMurray will be evaluated in light of the Fort McMurray labour market. If flying in and out of Fort McMurray is no longer feasible because of the worker’s disability, this might lead to a deemed earning capacity far higher than what they could realistically earn in NL.81 Thus, these workers may be encouraged to seek employment in Alberta, although in reality, they are more likely to be able to find and hold a real job, as opposed to a deemed job, in their home jurisdiction.

Extended Daily Commutes

In the case of extended daily commutes in Canada, hazards associated with the commute itself are not usually considered to fall within the purview of the employer’s duties of care. However, in some cases, appeals tribunals included the extended daily commute of a worker in the spectrum of “in the course of employment.” In a specific case, Alberta’s appeals tribunal concluded that an accident that occurred while a worker was returning to his temporary residence in east central Alberta after completing a one-day job in west central Alberta happened in the course of employment. The tribunal found it hard to imagine “this particular four and one half hour one-way commute to the job site constituted routine commuting.”87

In Ontario, the appeals tribunal will assess if the commute is a part of the conditions of employment or if the vehicle is under the control and supervision of the employer. In one case, the length of the drive to get to a remote work site wasn’t considered excessive, and thus the appeals tribunal concluded that the driving was not a condition of employment.88 In another case, a worker died in a motor vehicle accident while travelling from his home to a work site that was 360 kilometres away. The worker was paid a travel allowance and was travelling in a vehicle provided by the employer. Though the appeals tribunal concluded the commute was not part of the worker’s conditions of employment, it underlined that the employer had a detailed code of conduct relating to use of company vehicles. It was decided that the worker was travelling to and from work in a vehicle under the control and supervision of the employer and thus in the course of employment at the time of the injury.89

In Québec, the different aforementioned criteria are assessed on a case-by-case basis when deciding whether a worker is in the course of employment. The usefulness of the activity in relation to the accomplishment of the employee’s work will also be considered (Bruno, Martel, and Vallée 2018, 282); however, the fact that the worker is not travelling to their usual workplace but to another location may not transform the commuting into transportation controlled by the employer.90 Once again, if the employer doesn’t control the transportation mode or if they provide optional modes of transportation, it is less likely to fall within the scope of the compensation scheme.91 In one case, even though the worker was travelling to work with a colleague in the employer’s van, the appeals tribunal rejected the claim because it considered the employer had no contractual obligation to provide the worker with transportation between their residence and the workplace. The mere fact that the vehicle was owned by the employer was not sufficient to establish that the worker was under the employer’s responsibility and control when they suffered their injury.92

When a worker is unionized, decision-makers may look to the collective agreement for indications of whether the parties intended for travel to be considered as part of the job. For example, clauses may require the employer to pay for transit to the worker’s home in some circumstances.93

Long-Distance Commutes in Remote Regions

Important changes have occurred over time in the practices of the extractive industries as they ceased to promote the creation of company towns built near the extraction project, choosing instead FIFO/DIDO arrangements and the provision of temporary housing for the workers in either camps or adjacent communities (Ryser, Halseth, and Markey 2020). Because the employer requires that its workforce temporarily travel to remote locations, one might expect that the employer would bear the responsibility for the hazards associated with such commutes. In practice, things are more nuanced.

When long-distance commutes are required by work in remote regions, if transportation is organized by the employer, workers will generally be considered to be in the course of employment, even though they are travelling to or from work (WCB-Alberta 2023c; WorkplaceNL 2001; WSIB Ontario 2004c).94 If the worker is returning to a work camp or heading home from the work camp,95 the injury will generally be considered compensable if the transportation is under the control of the employer or part of the conditions of employment of the worker. In Alberta, a policy clearly states that when workers are travelling to take up employment at a distant location, coverage is extended when they have been assigned to the job, the distance from the worker’s home to the job is such that the worker must temporarily reside at the job location, and the employer has made a commitment to pay for the travel time or expenses (WCB-Alberta 2023c, ques. 18). However, if workers are free to take whatever route they want or to leave or stay at the camp, the WCB might conclude that the worker’s travel was “either personal in purpose and/or routine, but unrelated to his work duties.”96 In Québec, it was considered that the worker’s transportation from his place of work (a construction site far from major centres) to his place of residence, organized and paid for by his employer, was an activity that was part of his working conditions.97

The same logic operates in Ontario: The degree of control exercised by the employer over the transportation arrangements is a crucial factor. The appeals tribunal in that province has also taken into consideration the remoteness of the work site in order to assess whether the worker was or was not in the course of employment during the commute.98 For instance, the appeals tribunal considered that getting to the work site was recognized as a term of the employment arrangement and ruled that a worker injured on his way to the airport was engaged in an employment activity.99 In some cases, the long-distance commutes required by work in remote regions can be included within the purview of employment if obtained through either collective bargaining or individual contracts (nonunionized workers; for a detailed study of clauses in collective agreements in the construction sector, see Cake 2016).

Ownership of the Road

When the commute is not deemed to be a work-related activity, then duties set out in OSH regulatory frameworks are less likely to apply,100 unless some other factor ties the commute to the workplace, as in cases where workers are required to commute on private roads owned by the employer. When the worker is travelling on a private road owned or leased by the employer, the injury will usually be compensable.101 In Ontario, appeals tribunal cases have found a road to be considered as part of the employer’s premises based on aspects of control rather than outright ownership.102 NL’s WCB’s policy describes captive roads as a road that may be a public road but leads only to the premises of the employer and is under the control of the employer, meaning the employer is responsible for repair and maintenance of the road. In this case, the road is considered part of the employer’s premises (WorkplaceNL 2001). In a Québec case, even though the road wasn’t the employer’s property, an accident that occurred on a logging road led to a compensable injury. The appeals tribunal considered that the worker had not yet reached his personal sphere, since he had to follow safety instructions, use the employer’s vehicle, and transport his colleagues to the company’s head office.103

Workers with Multiple Workplaces or No Fixed Workplace

As for workers with no fixed workplace or multiple, transient workplaces, coverage will vary depending on the province in which the injury occurs. In Québec, if the worker who has multiple workplaces is injured while travelling to work from their home, going home after work, or going home for lunch, the injury will probably not be deemed to be work related, whether the worker is working for a temp agency104 or providing home care services.105 However, we have come across a few decisions where the worker was considered “in the course of employment” when an injury occurred prior to or after the workday. In one case, the appeals tribunal concluded that a home care worker was in the course of employment, since travelling to beneficiaries was part of her job duties.106 A few other Québec cases also provided coverage for an injury sustained by workers when they were travelling between their home and the first client.107 In these cases, the fact that the use of the vehicle was incidental to the work performance played a major role in the assessment. However, an employer appealed the decision of the WCB, which initially accepted the claim of a home care worker who, while between two clients, decided to drive around town. The appeals tribunal ruled in favour of the employer and concluded that the worker exited the professional sphere.108 Conversely, coverage will generally be provided if the worker is travelling between clients.109

Policy and case law in Alberta and Ontario converge toward a slightly broader inclusion criterion to foresee the reality of work arrangements that inherently require travel as a work task.110 In Ontario, “the worker is considered to be ‘in the course of employment’ when the conditions of the employment require a worker to drive a vehicle to and from work for the purpose of that employment, except when a distinct departure on a personal errand takes place enroute” (WSIB Ontario 2004e, para. 3).111 Nevertheless, in the case of a worker who was a cleaner and was injured when they stopped briefly for coffee, this was considered to be in the course of their employment.112 In another decision, the appeals tribunal concluded that “it was irrelevant whether the accident happened while the worker was on her way to see her first client in the morning, travelling between clients, or on her way home from her last client.”113

In Alberta, workers are not covered during routine travel to and from the work site unless there are employment obligations or duties associated with the travel, regardless of the remuneration received (WCB-Alberta 2023c, ques. 3). In one case, the appeals tribunal concluded that the travel to the first client of the day was an expected part of the worker’s duties, and thus compensable, because “when there are employment obligations or duties associated with the travel, workers are covered during routine travel to and from the worksite.”114

However, home care workers in NL are not covered for transit accidents to, from, or between clients according to a study by Fitzpatrick and Neis (2015, 58):

Homecare workers employed by an agency meet the definition of “worker” and are eligible for workers’ compensation if they are injured on the job while performing tasks approved by their homecare agency. Homecare workers injured while commuting between home and work are ineligible for compensation, but those injured while travelling for work are eligible. It is less clear whether workers injured while travelling between workplaces would be eligible for compensation. If homecare workers are injured while commuting between home and work when they have down time, such as when they work split shifts, they are not eligible for compensation. Conversely, full-time NL community nurses are likely to be eligible for workers’ compensation if they have an accident while travelling directly from one client to another (between workplaces) because they are paid a mileage allowance and travel time when driving between clients’ homes, as outlined in their collective agreement.

More generally, NL’s WCB policies do not cover all possible situations, leaving legal gaps for different forms of mobility. These policies only address the exclusion of routine commuting, the transportation controlled by the employer, deviations from the expectations and conditions of employment, and so on and not the situation of workers travelling between clients (WorkplaceNL 2001).

In Canada, compensating for transit accidents is contentious. The circumstances that will give rise to workers’ compensation coverage depend on a broad range of criteria. Injuries that occur while workers must undergo long-distance commutes to remote areas or while travelling on a private road owned or leased by the employer will generally be deemed compensable, but daily commutes are generally excluded from being considered in the course of employment. For workers with no fixed workplace or multiple, transient workplaces, coverage will vary depending on the province in which the injury occurs.

When looking at transit accidents, we can see clearly that the mobile labour force is, in multiple situations, excluded from access to adequate compensation.