Foreign migrant living illegally in Canada eligible for Ontario welfare, tribunal rules

The Ontario Legislature at Queen's Park in Toronto. Photo by Martin Bertrand/Hans Lucas/AFP via Getty Images

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Ontario must pay social assistance benefits to a foreign migrant living illegally in Canada a tribunal has ruled in a case revealing that welfare intake workers did not conduct an immigration check of the applicant to avoid jeopardizing his ability to remain in Canada.

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The Ontario Social Benefits Tribunal heard an appeal by the man who declared he had come to Canada in 1997 on a temporary work permit. Although his permit expired after four years, he never left.

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He was able to support himself by working cash jobs until 2023 when he entered the homeless shelter system, he told the tribunal.

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After he applied for welfare benefits last fall, the administrator of the provincial social assistance program called Ontario Works denied the man’s application because of his lack of immigration status in Canada, despite program staff trying to avoid flagging his immigration problem.

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An Ontario Works intake case officer had not conducted an immigration search to ascertain the man’s benefits eligibility, the tribunal found, “to avoid possibly jeopardizing the appellant’s situation in Canada.”

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The tribunal accepted the province’s position that the man “has no status in Canada and is here illegally” but heard the applicant’s arguments that the denial of benefits did not comply with provincial regulations.

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At issue at the hearing was the specific wording of the Ontario Works Act, the law regulating provincial welfare benefits.

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The act outlines the impact of an applicant’s immigration status on benefit eligibility and specifies three exclusionary classes: visitors, tourists and those with a deportation or enforceable removal order against them.

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Tribunal adjudicator Eric Brown, based in Waterloo, Ont., heard dictionary definitions and interpretations accepted at previous hearings and ruled that tourists and visitors are people who have entered Canada for a short period of time or for a temporary purpose.

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Brown said those definitions show the applicant reasonably fell outside the meaning of both tourist and visitor, “given the sheer length of time and the roots the appellant had established while in Canada.”

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No evidence was presented at the tribunal that he had been ordered out of Canada by federal immigration authorities.

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Brown then agreed with the applicant that legal immigration status in Canada is not a prerequisite for welfare under Ontario’s act, provided applicants didn’t fall under the three specifically named criteria.

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He ruled the man’s denial of benefits to be “incorrect and rescinded” and declared him eligible to receive financial benefits.

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The applicant is not identified in the decision, released in May, in accordance with the tribunal’s practice. The man’s lawyer, who works for a community legal clinic, did not respond to questions from National Post prior to publication deadline. A request for comment from the minister of Children, Community and Social Services was also not responded to before deadline.