Who is covered by the Workplace Safety and Insurance Act (WSIA)
Workers are covered by the WSIA. A “worker” includes anyone employed under a contract of service or apprenticeship with an employer carrying on a construction business.
As of January 1, 2013, Independent Operators (IOs), sole proprietors, partners, and executive officers in the construction industry are required to register with the Workplace Safety and Insurance Board (WSIB), and to pay WSIB premiums, unless one of the few exemptions from coverage applies. Under the WSIA, these individuals are deemed workers for benefit purposes, they are deemed employers for payment purposes, and they are entitled to WSIB benefits regardless of whether they are registered with the WSIB or not – although any unpaid WSIB premiums would be deducted from any WSIB benefits payable.
Compulsory coverage for IOs working in industrial, commercial or institutional construction, or in non-exempt home renovation work
An IO is an individual who does not employ any workers, who reports him/herself as self-employed under an Act/regulation of Ontario/Canada/another Canadian province/territory, i.e., for income tax purposes, and who is retained by more than one person during an 18-month period. Alternatively, an IO is an individual who is an executive officer of a corporation that does not employ any workers other than him/herself, and is retained by more than one person during an 18-month period. Non-exempt IOs must submit a signed declaration (“Independent Operator Self-Declaration”) confirming their IO status when they register with the WSIB.
Exemption for executive officers
The earnings for all executive officers and partners are assessable for WSIB premium payments. However, one executive officer or partner in each company, so long as they do not perform any construction work, may be exempt. Construction work is defined, for this purpose, as any skilled/unskilled manual work, the operation of equipment/machinery, or the direct on-site supervision of workers. Periodic site visits are allowed. The exemption form for executive officers (“Partner or Executive Officer in Construction – Exemption from Coverage,” Form No. 1208WA) is in the Employer Forms section of the WSIB’s website. Individuals seeking an exemption from coverage must print the form, complete the declaration on the second page, and send it to the WSIB.
In order to obtain this exemption, the executive officer’s name must be recorded in the employer’s corporate minute book, and his/her status needs to be confirmed by other documents that the WSIB can review, i.e., corporate by-laws, public records filed with other government authorities, resolutions by the board of directors, etc. The WSIB will look at the substance of the individual’s relationship with the corporation in order to determine whether, for WSIB purposes, the individual is an executive officer. The WSIB will provide written confirmation if the application is approved.
If there is a material change in the executive officer’s/partner’s non-construction work status, he/she must inform the WSIB within 10 days of the material change to avoid penalties.
Exemption for home renovation
IOs, partners, and executive officers who perform exclusively home renovation work, and who are directly retained by the property owner or his/her family member, are not required to register with the WSIB. Home renovators must provide estimates/contracts/invoices to the occupant or family member, in the contractor’s name, and must receive payment directly from the occupant or family member. The work must be done on an existing private residence that is, or will be, occupied by the person, or a member of the person’s family, who retains the contractor.
When home renovation work is not exempt
Construction work performed for individuals who are in the business of buying, renovating, and selling a dwelling that will not be occupied as a residence by the individual, or the individual’s family member, is not considered to be exempt home renovation work. Likewise, construction work that is performed on a structure located at the site of the residence used for commercial purposes is not considered to be home renovation work under the WSIA. If the scope of a home renovation project extends into any form of commercial work, the home renovator must be diligent in contacting the WSIB within 10 days to inform it of this material change.
Since coverage is mandatory for individuals performing non-exempt construction work, individuals who alternate between exempt and non-exempt work must ensure they have WSIB coverage. A minimum three-month period of coverage is required. Should an individual regain his/her exempt status at a later date, he/she must request an exemption from coverage.
The home renovation exemption also does not extend to a subcontractor who is, in turn, retained by the contractor who was directly retained by the property owner, or the property owner’s family member. The subcontractor must provide a clearance certificate to the contractor.