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If you are injured while working, determining whether you are legally considered a worker in the course of your employment, or an independent operator, is a critical question that could decide your right to sue for damages.

Although a third party could still be sued, the Workplace Safety and Insurance Act, 1997 (“WSIA”) takes away a worker’s right to sue their employer, or other employers, if that worker is in the course of their employment when injured. Independent operators are not considered workers however, and their right to sue an employer survives the WSIA.

The Workplace Safety and Insurance Board (“WSIB”) is the sole authority, empowered by law, capable of determining whether a person’s right to commence an action in court is taken away. The WSIB has the final word on the matter, and its decision is not open to question or review in a court.[1]

In considering the question of whether a person is a worker as opposed to independent operator, the WSIB must consider the factors outlined in the WSIA, the decisions of the Workplace Safety and Insurance Tribunals, and the policies of the WSIB.[2] The relevant factors the decision maker may consider include:

  • contract of service – an agreement to work for an employer on a full or part-time basis, where the employer has the right to control what work is performed, where, when, and how, is indicative of a worker;
  • contract for service – an agreement to perform specific work in return for payment, with control over when and in what manner the work is done, is indicative of an independent operator;
  • ownership of equipment used in the work or business – if the person is using equipment owned by the employer, the indication is that they are a worker;
  • form of compensation paid to the worker or independent contractor – earning on commission is indicative of independent operators;
  • business or government indicia – if the person operating under a business name, registered as a business or a corporation, or invoicing for services rendered this would indicate an independent operator;
  • evidence of coordinational control as to where and when the work is performed – where a person is allowed to use their own methods and not required to follow instructions is indicative of an independent operator. Where the person is told where to be and what to do, they are likely a worker;
  • the intention of the parties – whether the parties intend the relationship be worker and employer or independent operator is given substantial weight by the WSIB if supported by objective facts;
  • the economic or business market – if the person had the opportunity to increase his profit and carried the risk of loss this indicates an independent operator;
  • substitute service – where the person can hire others to do the work without the employer’s consent is indicative of an independent operator;
  • degree of integration – if the person was integral to the operation of the business is indicative of a worker.

Although helpful, the list of factors to be considered above is not exhaustive. Rather than exhaustively listing all factors that can be considered, the focus is on a flexible and adaptive approach, which focuses on the reality of the business relationship between the party and the potential employer. No one factor determines a person’s status, but rather the WSIB attempts to determine the reality of the business relationship between the parties, and whether the reality of the situation favours the finding of worker or independent operator.

[1] Workplace Safety and Insurance Act, 1997 SO 1997, c 16, Sch A, s 31

[2] Workers and Independent Operators, WSIB policy 12-02-01, January 2, 2013

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