Workplace Safety and Insurance Amendment Act, 2008, S.O. 2008, c. 20 - Bill 119

EXPLANATORY NOTE

This Explanatory Note was written as a reader’s aid to Bill 119 and does not form part of the law. Bill 119 has been enacted as Chapter 20 of the Statutes of Ontario, 2008.

Currently, optional insurance under section 12 of the Workplace Safety and Insurance Act, 1997 is available for independent operators, sole proprietors, partners in partnerships and executive officers of corporations. New section 12.2 of the Act makes insurance coverage mandatory for these categories of persons in the construction industry. Independent operators, sole proprietors who do not employ workers, and partners in partnerships that do not employ workers are also required to register with the Workplace Safety and Insurance Board under new section 12.3 of the Act.

However, mandatory insurance coverage and the registration requirement do not apply to these categories of persons if their only construction work is home renovation work performed in specified circumstances. Additionally, new section 12.2 of the Act permits the Lieutenant Governor in Council to make regulations to exempt certain partners in partnerships and certain executive officers of corporations from mandatory insurance coverage under that section if conditions prescribed by the regulations are satisfied. Those who are exempt by regulation are not required to register under new section 12.3 of the Act and are eligible for optional insurance coverage under section 12 of the Act.

Under existing section 141 of the Act, persons who retain contractors or subcontractors to perform Schedule 1 or Schedule 2 work may be deemed to be the employers of the contractors’ or subcontractors’ workers and may be liable to pay premiums (as determined by the Board) in respect of those workers. New sections 141.1 and 141.2 of the Act set out a different regime for the construction industry, as follows:

1. Only the person who directly retains the contractor or subcontractor to perform construction work may be liable for the payment obligations under the Act (as determined by the Board) in respect of the work.

2. A person who directly retains a contractor or subcontractor to perform construction work is required to obtain a certificate showing that the contractor or subcontractor has registered with the Board and complied with the payment obligations under the Act. The person must keep the certificate for at least three years. A contractor or subcontractor is prohibited from performing construction work for the person without a valid certificate.

3. These requirements do not apply to a person who directly retains a contractor or subcontractor to perform home renovation work in specified circumstances.

For enforcement purposes, additional offences are created in connection with new sections 12.2, 12.3 and 141.2.

The Bill provides for authority to make the following regulations:

1. Regulations providing for transitional matters arising out of the implementation of the Workplace Safety and Insurance Amendment Act, 2008.

2. Regulations requiring employers in construction to provide the Board with detailed information about their workers, and requiring workers in construction to have an approved identification card available for inspection when at work.

New section 182.1 of the Act allows independent operators, sole proprietors who do not employ workers, and partners in partnerships that do not employ workers to pre-register with the Board. This amendment comes into force on proclamation, and the remaining amendments come into force one year later, providing a 12-month period for pre-registration before the extended mandatory coverage scheme becomes effective.

Français

chapter 20

An Act to amend the Workplace Safety and Insurance Act, 1997

Assented to November 27, 2008

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

1. (1) Subsection 2 (1) of the Workplace Safety and Insurance Act, 1997 is amended by adding the following definition:

“construction” means any of the industries listed in Class G of Schedule 1; (“construction”)

(2) The definition of “independent operator” in subsection 2 (1) of the Act is repealed and the following substituted:

“independent operator”, subject to section 12.1, means a person who carries on an industry included in Schedule 1 or Schedule 2 and who does not employ any workers for that purpose; (“exploitant indépendant”)

(3) Paragraph 10 of the definition of “worker” in subsection 2 (1) of the Act is amended by striking out “under section 12” and substituting “under section 12 or 12.2”.

2. Subsection 4 (2) of the Act is amended by striking out “in the construction industry” and substituting “in construction”.

3. Subsection 11 (2) of the Act is amended by striking out “Subject to section 12” at the beginning and substituting “Subject to sections 12 and 12.2”.

4. Section 12 of the Act is repealed and the following substituted:

Optional insurance

Deemed workers

12. (1) Any of the following persons may apply to the Board for a declaration that he or she is deemed to be a worker to whom the insurance plan applies:

1. An independent operator who carries on business in an industry included in Schedule 1 or Schedule 2, other than construction.

2. A sole proprietor who carries on business in an industry included in Schedule 1 or Schedule 2, other than construction.

3. A partner in a partnership that carries on business in an industry included in Schedule 1 or Schedule 2, other than construction.

Exception, construction

(2) Despite paragraph 3 of subsection (1), a partner in a partnership that carries on business in construction may make an application under subsection (1) for a declaration that he or she is deemed to be a worker to whom the insurance plan applies for any period of time during which the partner is not deemed to be a worker under subsection 12.2 (1).

Deemed worker, executive officer

(3) A corporation that carries on business in an industry included in Schedule 1 or Schedule 2, other than construction, may apply to the Board for a declaration that an executive officer of the corporation is deemed to be a worker to whom the insurance plan applies.

Exception, executive officers re construction

(4) Despite subsection (3), a corporation that carries on business in construction may apply to the Board for a declaration that an executive officer of the corporation is deemed to be a worker to whom the insurance plan applies for any period of time during which the executive officer is not deemed to be a worker under subsection 12.2 (1).

Executive officer’s consent

(5) An application under subsection (3) may be made only with the executive officer’s consent.

Conditions

(6) The Board may make a declaration under subsection (1) or (3) subject to such conditions as it considers appropriate. The declaration may provide that the person is deemed to be a worker only for such period as is specified.

Deemed employer

(7) When the Board makes a declaration under subsection (1) or (3), the independent operator, sole proprietor, partnership or corporation, as the case may be, is deemed to be the employer for the purposes of the insurance plan.

Payment in advance

(8) The Board may require the employer to pay in advance all or part of any premiums payable in respect of the person.

Revocation

(9) The Board may revoke a declaration made under subsection (1) or (3) if the employer defaults at any time in paying the required premiums in respect of the person.

Set-off

(10) If the employer defaults in paying the required premiums in respect of the person and the person or his or her survivors are entitled to receive payments under the insurance plan, the Board may deduct from those payments the amount owed by the employer.

Exempt home renovation work

(11) Despite anything else in this section, subsections (1) to (10) apply, with necessary modifications, in respect of,

(a) independent operators and sole proprietors described in clause 12.2 (8) (a); and

(b) partners and executive officers described in clause 12.2 (8) (b).

Meaning of “independent operator” in ss. 12.2, 12.3 and 182.1

12.1 In sections 12.2, 12.3 and 182.1,

“independent operator” means,

(a) an individual who,

(i) does not employ any workers,

(ii) reports himself or herself as self-employed for the purposes of an Act or regulation of Ontario, Canada or another province or territory of Canada, and

(iii) is retained as contractor or subcontractor by more than one person during the time period set out in a Board policy, or

(b) an individual who is an executive officer of a corporation that,

(i) does not employ any workers other than the individual, and

(ii) is retained as contractor or subcontractor by more than one person during the time period set out in a Board policy.

Compulsory insurance — construction

Deemed workers

12.2 (1) The following persons are deemed to be workers to whom the insurance plan applies:

1. Every independent operator carrying on business in construction.

2. Every sole proprietor carrying on business in construction.

3. Except as otherwise provided by the regulations, every partner in a partnership carrying on business in construction.

4. Except as otherwise provided by the regulations, every executive officer of a corporation carrying on business in construction.

Deemed employer

(2) When a person is deemed to be a worker under subsection (1), the independent operator, sole proprietor, partnership or corporation, as the case may be, is deemed to be the employer for the purposes of the insurance plan.

Payment in advance

(3) The Board may require the employer to pay in advance all or part of any premiums payable in respect of the person.

Set-off

(4) If the employer defaults in paying the required premiums in respect of the person and the person or his or her survivors are entitled to receive payments under the insurance plan, the Board may deduct from those payments the amount owed by the employer.

Regulations, partners and executive officers

(5) The Lieutenant Governor in Council may make regulations,

(a) exempting a partner or executive officer from the application of subsections (1) to (4);

(b) prescribing the conditions that must be satisfied by the partner, partnership, executive officer or corporation, as the case may be, for the exemption to apply.

Same

(6) A regulation made under subsection (5) may prescribe conditions relating to, but not limited to,

(a) the minimum number of executive officers of the corporation;

(b) the nature of the work performed by a partner or executive officer;

(d) the number or the manner of determining the number of partners of a partnership or executive officers of a corporation that are exempt.

Same

(7) A regulation made under subsection (5) may,

(a) prescribe different conditions relating to partners and executive officers and to partnerships and corporations;

(b) prescribe such requirements as may be necessary to enable the Board to administer the regulation and to determine if, at any particular time, a partner or executive officer is exempt from the application of subsections (1) to (4).

Exempt home renovation work

(8) Subsections (1) to (4) do not apply in respect of,

(a) independent operators and sole proprietors who perform no construction work other than exempt home renovation work; and

(b) partners in partnerships and executive officers of corporations who perform no construction work other than exempt home renovation work.

Material change in circumstances

(9) A person in respect of whom the exemption set out in subsection (8) applies shall notify the Board of any material change in circumstances in connection with the exemption, within 10 days after the material change occurs.

Definitions

(10) In this section,

“exempt home renovation work” means construction work that is performed,

(a) by an independent operator, a sole proprietor, a partner in a partnership or an executive officer of a corporation, and

(b) on an existing private residence that is occupied or to be occupied by the person who directly retains the independent operator, sole proprietor, partnership or corporation, or by a member of the person’s family; (“travaux de rénovation domiciliaire exemptés”)

“member of the person’s family” means,

(a) the person’s spouse,

(b) the person’s child or grandchild,

(d) the person’s sibling, or

(e) anyone whose relationship to the person is a “step” relationship corresponding to one mentioned in clause (b), (c) or (d); (“membre de sa famille”)

“private residence” includes,

(a) a private residence that is used seasonally or for recreational purposes, and

(b) structures that are,

(i) normally incidental or subordinate to the private residence,

(ii) situated on the same site, and

(iii) used exclusively for non-commercial purposes. (“résidence privée”)

Registration

12.3 (1) Every independent operator carrying on business in construction shall register with the Board within 10 days after becoming such an independent operator.

Same

(2) Every sole proprietor who carries on business in construction and does not employ any workers shall register with the Board within 10 days after becoming such a sole proprietor.

Same

(3) Every partner in a partnership that carries on business in construction and does not employ any workers shall register with the Board within 10 days after becoming such a partner unless the partner is not subject to subsections 12.2 (1) to (4).

Information

(4) A person who registers with the Board under this section shall, when registering and at such other times as the Board may require, make and file with the Board a declaration containing such information as the Board may require to administer section 12.2.

Exempt home renovation work

(5) Subsections (1) to (4) do not apply in respect of,

(a) independent operators and sole proprietors described in clause 12.2 (8) (a); and

(b) partners and executive officers described in clause 12.2 (8) (b).

Material change in circumstances

(6) A person who registers with the Board under this section shall notify the Board of any material change in circumstances in connection with information given to the Board under subsection (4), within 10 days after the material change occurs.

Same, exemption

(7) A person in respect of whom the exemption set out in subsection (5) applies shall notify the Board of any material change in circumstances in connection with the exemption, within 10 days after the material change occurs.

5. Section 141 of the Act is repealed and the following substituted:

Contractors and subcontractors, except in construction

Application

141. (1) This section applies when a person retains a contractor or subcontractor to perform work in an industry included in Schedule 1 or Schedule 2, other than construction.

Deemed employer

(2) The Board may determine that the person is deemed to be the employer of the workers employed by the contractor or subcontractor to perform the work, and in that case the person is liable to pay the premiums payable by the contractor or subcontractor in respect of their workers as if the person were the contractor or subcontractor.

Right to reimbursement

(3) Subject to subsection (4), the person is entitled to be reimbursed by the contractor or subcontractor for amounts paid under subsection (2) in respect of workers employed by the contractor or subcontractor.

Same

(4) The Board shall determine the extent of the contractor’s or subcontractor’s liability under subsection (3).

Right of set-off

(5) The person may deduct amounts for which the contractor or subcontractor is liable under subsection (3) from money payable to the contractor or subcontractor.

Obligation to pay

(6) If the person is not deemed to be the employer under subsection (2), the person,

(a) shall ensure that the contractor or subcontractor complies with the contractor’s or subcontractor’s obligations to make payments under the insurance plan as an employer; and

(b) is liable to the extent the contractor or subcontractor does not meet those obligations.

Right of indemnity

(7) The person is entitled to be indemnified by the contractor or subcontractor for amounts paid under subsection (6).

Role of Board

(8) The Board shall determine all issues relating to subsections (6) and (7).

Liability of contractor, subcontractor

(9) Nothing in this section prevents the Board from requiring the contractor or subcontractor to pay premiums or reimburse the Board in respect of workers who have a deemed employer under this section.

Certificates

(10) For the purposes of this section, the Board may issue a certificate to the person who retains a contractor or subcontractor, or to the contractor or subcontractor, on such terms and conditions as it considers appropriate, confirming that the contractor or subcontractor has complied with the contractor’s or subcontractor’s obligations to make payments under the insurance plan.

Contractors and subcontractors in construction

Application

141.1 (1) This section applies when a person directly retains a contractor or subcontractor to perform construction work.

Duty of person who retains contractor or subcontractor

(2) A person who directly retains a contractor or subcontractor to perform construction work,

(a) shall ensure that the contractor or subcontractor complies with the contractor’s or subcontractor’s payment obligations under this Act in respect of the work; and

(b) is liable for those obligations, to the extent that the contractor or subcontractor does not comply with them.

Right to reimbursement

(3) Subject to subsection (4), the person is entitled to be reimbursed by the contractor or subcontractor for amounts paid under subsection (2).

Same

(4) The Board shall determine the extent of the contractor’s or subcontractor’s liability under subsection (3).

Right of set-off

(5) The person may deduct amounts for which the contractor or subcontractor is liable under subsection (3) from money payable to the contractor or subcontractor.

Right of indemnity

(6) The person is entitled to be indemnified by the contractor or subcontractor for amounts paid under subsection (2).

Role of Board

(7) The Board shall determine all issues relating to subsections (2) and (6).

Exempt home renovation work

(8) Subsections (1) to (7) do not apply in respect of a person who directly retains a contractor or subcontractor to perform exempt home renovation work as defined in subsection 12.2 (10).

Exception, compliance with s. 141.2

(9) Subsections (1) to (7) do not apply in respect of a person who complies with section 141.2.

Construction work, obligations respecting certificates

Application

141.2 (1) This section applies in respect of a person who directly retains a contractor or subcontractor to perform construction work.

Obtaining certificate

(2) Before permitting the contractor or subcontractor to begin construction work, the person shall obtain a certificate or a copy of a certificate issued under subsection (3).

Issuance by Board

(3) If the Board is satisfied that the contractor or subcontractor has registered with the Board and complied with the payment obligations under this Act, it shall issue to the contractor or subcontractor or to the person, on request, a certificate that,

(a) confirms the registration and compliance; and

(b) states the period during which the certificate is in effect.

Revocation

(4) The Board may, at any time, revoke the certificate by giving a written notice of revocation to the contractor or subcontractor.

Notice

(5) On receiving the notice of revocation under subsection (4), the contractor or subcontractor shall immediately inform the person.

New certificate

(6) The person shall obtain a new certificate from the Board or from the contractor or subcontractor if, before the construction work is completed,

(a) the certificate expires; or

(b) the certificate is revoked and the person becomes aware of the fact.

Prohibition

(7) The contractor or subcontractor shall not perform construction work for the person during a period for which no certificate is in effect.

Same

(8) The person shall not permit the contractor or subcontractor to perform construction work for the person during a period for which the person is aware that no certificate is in effect.

Retention of certificate or copy

(9) The person shall keep a certificate or copy of a certificate obtained under this section for at least three years after the date it is obtained, and shall produce it for inspection at the request of the Board or of a person appointed or authorized by the Board.

Exempt home renovation work

(10) Subsections (1) to (9) do not apply in respect of a person who directly retains a contractor or subcontractor to perform exempt home renovation work as defined in subsection 12.2 (10).

6. Subsection 148 (1) of the Act is amended by striking out “subsections 12 (4) and (5) and sections 76, 137, 139 and 146” and substituting “subsections 12 (8) and (9), subsection 12.2 (3) and sections 76, 137, 139 and 146”.

7. Section 149 of the Act is amended by adding the following subsections:

Same, material change in circumstances, s. 12.2 (9)

(4.1) A person who wilfully fails to comply with subsection 12.2 (9) is guilty of an offence.

Same, false or misleading statement, s. 12.3 (4)

(4.2) A person who knowingly makes a false or misleading statement or representation in a declaration made under subsection 12.3 (4) is guilty of an offence.

Same, material change in circumstances, s. 12.3 (6), (7)

(4.3) A person who wilfully fails to comply with subsection 12.3 (6) or (7) is guilty of an offence.

8. The Act is amended by adding the following sections:

Offence, s. 12.3 (1) to (3)

151.1 A person who fails to comply with subsection 12.3 (1), (2) or (3) is guilty of an offence.

Offences, s. 141.2

151.2 (1) A person who fails to comply with subsection 141.2 (2), (6) or (9) or contravenes subsection 141.2 (8) is guilty of an offence.

Same

(2) A contractor or subcontractor who fails to comply with subsection 141.2 (5) or contravenes subsection 141.2 (7) is guilty of an offence.

9. The Act is amended by adding the following section:

Voluntary pre-registration

182.1 (1) Before the first anniversary of the day section 9 of the Workplace Safety and Insurance Amendment Act, 2008 comes into force, the following persons may make and file with the Board a declaration in a form approved by the Board, in order to allow the Board to prepare for the implementation of sections 12.2 and 12.3:

1. Every independent operator who carries on business in construction.

2. Every sole proprietor who carries on business in construction and does not employ any workers.

3. Every partner in a partnership that carries on business in construction and does not employ any workers.

Exempt home renovation work

(2) Subsection (1) does not apply in respect of,

(a) independent operators and sole proprietors described in clause 12.2 (8) (a); and

(b) partners and executive officers described in clause 12.2 (8) (b).

10. The Act is amended by adding the following section:

Deemed registration

182.2 Every person who has made and filed a declaration under subsection 182.1 (1) is deemed to have registered with the Board under section 12.3 on the first anniversary of the day section 9 of the Workplace Safety and Insurance Amendment Act, 2008 comes into force.

11. (1) Clause 183 (1) (a) of the Act is repealed and the following substituted:

(a) prescribing anything that must or may be prescribed under this Act other than anything in respect of which this Act expressly permits the Lieutenant Governor in Council to make a regulation;

(2) Section 183 of the Act is amended by adding the following subsections:

Same, transitional matters

(1.1) Subject to the approval of the Lieutenant Governor in Council, the Board may make regulations providing for any transitional matters that arise out of the implementation of the Workplace Safety and Insurance Amendment Act, 2008.

Same, identification of construction workers

(1.2) Subject to the approval of the Lieutenant Governor in Council, the Board may, by regulation, establish a system to identify workers performing construction work.

Same

(1.3) Without limiting the generality of subsection (1.2), the Board may, subject to the approval of the Lieutenant Governor in Council, make regulations,

(a) requiring each employer carrying on business in construction to provide to the Board, at the prescribed intervals,

(i) the name of each worker employed during a prescribed period,

(ii) any identifying number, symbol or other particular assigned to the worker by the employer,

(iii) information about the worker’s earnings during the prescribed period, and

(iv) any other information relating to the worker’s employment during the prescribed period that is specified in the regulation;

(b) requiring each worker in construction,

(i) to carry or have available for inspection, at all times when performing construction work, an identification card approved by the Board,

(ii) to produce the identification card for inspection on the request of the Board or of a person appointed or authorized by the Board, and

(iii) to do anything else in connection with the identification system that is specified in the regulation.

Commencement

12. (1) Subject to subsections (2) and (3), this Act comes into force on the day it receives Royal Assent.

Same

(2) Section 9 comes into force on a day to be named by proclamation of the Lieutenant Governor.

Same

(3) Sections 1 to 8, 10 and 11 come into force on the first anniversary of the day named under subsection (2).

Short title

13. The short title of this Act is the Workplace Safety and Insurance Amendment Act, 2008.

Français

Workplace Safety and Insurance Amendment Act, 2008, S.O. 2008, c. 20 - Bill 119

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