CA 250

WSIB Law for Employers

Veritas and another Day of Kayaking! Sometimes PTSD is not PTSD: Entitlement Overturned

CezanneCharlebois_20141020_3110-vert_WEB_Large_435x653Veritas is a statue outside of the Supreme Court of Canada in Ottawa, Ontario. She is the goddess of truth and justice. Read this stunning decision from the WSIB in which the Board reversed entitlement to Traumatic Mental Stress (the worker was claiming PTSD) and you will feel the immensley satisfying victory of justice that she represents. Upon reviewing the in-store surveillance months after the alleged incicdent the employer was shocked to see what appeared to be an entirely different version of the facts. We analyzed the video second-by-second and obtained measurements of all floor space seen on the video. After that, it became apparent that what was alleged to have occurred could not possibly have happened. The worker had stated that she was physically, sexually and verbally assualted and threatened with death, in what could only have been a 10-second time frame, by an elderly slow-moving widow in his 80's. The worker had been assessed by her psychologist to have a "permanent impairment" such that she could never return to work because of the PTSD. Based upon the psychological assessment, and declared permanent impairment, this claim was destined to max out and cost the Board and more importantly, employers in Ontario hundreds of thousands of dollars.

KayakingThis case tragically reveals how on so many levels it is easy for workers to feign and malinger claims relating to mental illness or traumatic mental stress. The tragedy of this story does not end here though. In another blog post, we will share how the local municipal police force came and attended the scene of this alleged workplace incident. The parties agreed to a "no trespass order" as the elderly gentleman seemed entirely harmless and somewhat confused. Later, after the worker filed an official complaint against the local police, they charged him criminally with assault and utter threat to cause death (to make her happy and silence her). They did not analyze the in-store surveillance nor interview witnesses all whom were seen on the video, including a female staff person who was on the other side of the wall the entire time this alleged incident took place. This saga continues and we will keep you posted. For now, I chaulk up another day of kayaking, which I give myself every time we win for employers. CC

Employer wins extension of Time Limit to Appeal and then successfully appeals Entitlement


The claim was initially allowed after the worker suffered multiple injuries (fracture and sprain) falling from a counter-top in the cafeteria in which the worker was employed. The incident occurred outside of the worker’s usual working hours and did not involve a task for which the worker was being compensated by the employer in any manner. The worker did however have permission of the employer to decorate the room after hours. The fact that the employer had granted permission to three employees to decorate the cafeteria for a colleague who was transferring to another department, that the injury took place on the employer’s premises and that the activity allegedly benefitted workplace morale led to the WSIB seeing the activity as “reasonably incidental” to the workplace.

The employer initially proclaimed their objection to entitlement on the Form 7, and later in a telephone conversation with the Eligibility Adjudicator, a conversation which was mentioned in the Adjudicator’s decision. They faxed their written objection the day the decision was received, but upon reviewing this claim as new employer representatives it was discovered that there had been an error message on the fax transmission sheet and that the written objection had never been received by the WSIB. A new objection was submitted, citing the employer’s intention to object as expressed in the Form 7 and over the phone. The Eligibility Adjudicator denied the employer’s right to object on the grounds that the timeline had not been met. We appealed this decision on the merits and justice of the case, asking that the employer’s clear intent to object be recognized in spite of their unfortunately unnoticed mistake. Nearly four years after the date of injury, the Appeals Resolution Officer agreed and allowed the employer to proceed with their objection.

Four months later, an Appeals Resolution Officer (ARO) overturned entitlement . The employer’s appeal focused on three elements of the case: 1) the worker was engaged in a personal activity not reasonably incidental to their employment, and 2) the incident happened outside of working hours and was not organized or paid for by the employer, and 3) the employer did not experience any direct benefit from the actions of the worker. In fact, this large employer (hospital) with approximately 2000 employees would suffer a detriment if workers were regularly granted permission to engage in this type of personal activity.The Director of Food Services, in granting permission for the workers to engage in this personal activity very wisely set out some clear guidelines which were: 1) it had to be done on their own time 2) It had to be done after work 3) the decorations had to be removed after the day was completed and 4) the decorations had to be acceptable to their public health and safety. Even with these very clear restrictions, the claim for an injury arising out of a personal activity after work was still allowed by the WSIB. This claim cost the employer over $80,000 which will now be refunded by way of a manual adjustment plus interest.  

The ARO found particularly convincing that the employer had no involvement in the activity other than providing permission, that the worker was acting to satisfy a personal need rather than a professional one and that the activity engaged in by the worker was not at all typical for employees but rather if conducted at all, would be performed by management.  Both of these employer appeals were done by written submission only.



The Adjudication of Occupational Disease Claims and PTSD Claims by the WSIB: What Employers should know

Cézanne will be guest speaking on Tuesday November 17 at the Casablanca Winery Inn in Grimsby Ontario.

Although you would think that the Adjudication of Occupational Disease claims at the WSIB would be completed by some medically and/or legally trained Claims Adjudicators due to the complexity of both the legal and medical issues that must be assessed. They are not. One Ontario employer’s experiences with three terribly adjudicated Occupational Disease claims causing death is shocking. Read about how Charlebois Associates overturned these three claims and how vigorously the Board resisted even acknowledging their errors. In fact they never did.  Now, there appears to be a similar trend of inadequate adjudication regarding PTSD claims by the WSIB. Clinically, these claims are very easy for doctors to misdiagnose because they are based exclusively on the symptomology presented by patients. There is no objective medical test to refute or confirm the diagnosis. The WSIB fails to provide the assessing doctors with  sufficient information, concerns raised by the employer, or enough valid accurate collateral information upon which feigning and malingering could even be considered. In one of our recent cases, a Psychiatrist who had been seeing an injured worker for the past two years noted one year earlier in a written report that the worker was involved in a ‘fatal MVA’ and was suffering from PTSD since then.  Not a single person from the Board noticed this important piece of incorrect and highly relevant mis-information provided by the worker. The worker had been in a single vehicle, at-fault incident and there were no fatalities. The worker had also been in numerous other at-fault incidents and was already told that he would be dismissed from employment if there were any more. This information was never provided to any of the many assessing health care professionals over the two years that the worker had been receiving full LOE benefits. PTSD claims adjudication at the WSIB needs much improvement and costs employers in Ontario hundreds of thousands of dollars. Skilled surveillance is just about the only tool available to employers for refuting these diagnoses. Even then, the employer will likely be met with more bureaucratic resistance.  The Claim’s Manager is very likely to tell the employer that he or she is not willing to reverse all the previous decisions made in the claim despite the overwhelming evidence the employer presented because he or she is not allowed to create such an “unrecoverable overpayment or debt”. Of course this is unacceptable and contrary to Board Policy. 

More Information on 3 Overturned Occupational Disease Claims...

More Information on Guest Speaking Nov 17...


Overturned Entitlement Decisions Reveal Waste & Mismanagement at the WSIB

Three recent decisions at the Workplace Safety and Insurance Board (WSIB) have raised serious questions of mismanagement of our province’s workers’ compensation system. Tasked with making decisions on claims of workplace illness or injury, the WSIB mistakenly allowed three claims, each which attributed the death of a worker to an Ontario masonry company, the most recent of which was successfully appealed in September of 2014. The appeals of London lawyer Cézanne Charlebois have compelled the WSIB to halt ongoing benefits, but the substantial sums already paid out are entirely unrecoverable. Charlebois, a Certified Specialist in Workplace Safety and Insurance Law, estimates that the cost of these incorrectly decided claims is likely over $1 million dollars.

The case facts present a damning picture of the struggling WSIB, who are currently carrying a multi-billion dollar unfunded liability, which, according to the Board, will take until 2027 to eliminate.

Two of the three claims were filed within six months of each other by a Toronto-area worker representative who alleged that employees of the masonry company were required to mix and spray asbestos, and were left to work alongside similar uses of asbestos by coworkers. The representative used these two claims to validate each other as independent allegations of asbestos exposure.

Particularly alarming is the fact that the paralegal who had misled the Board into paying nearly a million dollars in undeserved benefits was a 25-year veteran of the WSIB. This connection had neither been publically disclosed by the paralegal nor admitted by Board employees until after Charlebois disclosed that she found the connection. Charlebois maintains that these claims were accepted “without question, verification or investigation” on behalf of the WSIB adjudicators, some of whom were on a first-name basis with the worker representative. “It’s definitely very interesting that a former Board employee would appear to be blatantly misrepresenting the job duties of the worker, and even more intriguing that her claims went through with barely any scrutiny,” Charlebois asserts.

“The ease with which the Board allowed such unsound claims at such high cost to the employers of Ontario is astounding”, says Charlebois. According to the case files, one of the workers was quoted in a medical report denying any contact with asbestos. However, a family member of that (then deceased) worker later testified to the Board that the worker had told stories of “white asbestos powder falling out of the air.” Despite the contradictory nature, this hearsay statement was deemed sufficient to validate the alleged exposure and used by the WSIB to justify nearly a million dollars in benefits.

When Charlebois took the file, these claims had already been allowed and the Board had already paid out substantial lump sum payments of up to $300,000. The estates of the workers were given numerous other benefits, including funeral and retroactive health care benefits, and a monthly survivor benefit of more than $2500 per month. Charlebois has since had both claims overturned, and benefits have stopped, but she worries about the damage that has already been done and what it means for the future of the Board.

“That the WSIB would make such reckless decisions is very disconcerting to my clients. These are Ontario businesses; their premiums fund the entire system. How can they have faith in a system that throws away their money so easily?”

In the third and most recent decision in which entitlement was overturned by Appeals Branch, the Board revealed an alarming unwillingness to examine their own decision making for these claims which pinned the death of three workers on one employer. Once the first two claims were overturned based upon the lack of exposure to asbestos, the Board then vigorously defended its incorrect entitlement decision by asserting that the lung cancer was now caused by exposure to silica. This new justification for the faulty decision making was made in February 2014, despite the fact that it had clearly been pointed out to them that here had never been any previous medical findings or diagnosis of silicosis before the unfortunate diagnosis of lung cancer. The Board’s own Respirologist consultant had told them in 2010 that with years of clear chest x-rays right up until the months before the onset of cancer, that this was non-occupationally caused lung cancer. In their lengthy February 2014 re-consideration decision in which they stubbornly affirmed initial entitlement for an occupational fatality that was now caused by silica exposure, the WSIB supplied their own internal “scientific research paper” as support. But even their own internal paper stated conclusively that a causative link between lung cancer and silica exposure could not be made without a diagnosis of silicosis.

Further exacerbating the problem is that fact that in the Occupational Disease division, the costs are shared among all employers. Employers (read: Ontario businesses) are reluctant to spend money challenging a decision that will not immediately financially harm them, and therefore many claims go unchallenged. The strain on the system is rarely a consideration for employers. According to the WSIB’s 2011 review, occupational disease claims are on average four times more expensive than regular injury claims. Asbestosis (not including death benefits) has accounted for over $84 million in Board spending since 1990, and in 2009, 261 deaths were attributed to occupational disease, suggesting nearly $100 million spent on survivor benefits and death settlements.

Eugene George, founder of GA Masonry, and the contractor noted in all three claims, hoped that his experience was not representative of the nature of the Occupational Diseases division.

“We took these appeals upon ourselves out of principle. They painted a picture, not just of us, but of our industry, and it was completely incorrect.”

Both George and Charlebois worry that these cases are not outliers, and that the WSIB does not critically examine each case as much as they should prior to making such costly determinations.

Mr. George (now deceased) managed his masonry company for 65 years and said that he was very proud to be a part of the masonry industry. “The Board did not even try to understand what we do. We feel we operate on a very professional basis, so it shocked us that the WSIB would defame our industry with these assumptions.”

In spite of the initial errors, Charlebois believes these decisions to be a coup of sorts for Ontario employers:

 “It’s encouraging that after years of bureaucratic defensiveness from a WSIB unwilling to admit its errors, AROs can and will find the truth. The Board itself displays organizational tolerance towards poor decision-making, which is frustrating to employers because they feel like it is inevitable that their objections will be disregarded. They need to understand that independent AROs are separate from, and not personally vested in the institutional resistance of the Board’s Operations Division. ”

Nevertheless, it is apparent that the burden of proof for the WSIB’s most costly decisions must be raised if employers are to have any faith in the sustainability of the workers’ compensation system.

And many thanks to Eugene, the incredible man that he was for fighting the good fight for Ontario employers. 


WSIB Adjudicator sees the light

In a blog posted here March 9 by Cézanne Charlebois, we advised of an adjudicator who refused to reconsider her entitlement decision, even in the face of incontrovertible proof that the worker had fabricated a story. There was video evidence and telephone records to prove that he was not where he claimed to be – in fact, nowhere near it – when he alleged to have sustained a workplace injury. He simply could not have injured himself as he claimed. This information had already been provided to the adjudicator by the employer, but she refused to consider it or to reconsider once she had made her ruling.

The employer felt so strongly about this injustice that they incurred the expense of hiring a lawyer. They, as we, also believed the worker needed to be held accountable for what was clearly an attempt to misrepresent.

We made a detailed submission to WSIB and we are pleased to report that the adjudicator relented and agreed to reconsider her decision. Further, the evidence presented was so persuasive that she reversed her initial ruling and has withdrawn WSIB entitlement from this worker.

In our eyes, the worker is guilty of violating s.149 of the Workplace Safety and Insurance Act and should face charges accordingly. That fight is still to come, but we have the satisfaction of knowing that his employer is not facing the costs of what amounted to a fraudulent claim.

WSIB adjudicator refuses to reconsider even with undeniable proof she is wrong

Recently, one of our clients presented WSIB with videotape evidence that a
 worker was not where he claimed to be. Since he said he had sustained an
 accident at that location, you might think the fact he wasn’t there at all 
was pretty compelling evidence.

Not for this Eligibility Adjudicator. The video camera used is motion
 activated so nothing is recorded until there is a vehicle or person entering
 the camera’s view. On the video, we see vehicles coming and going 
throughout the day but not one vehicle coming or leaving the company yard 
during the time when the worker claimed the accident occurred. Apparently,
 for her, proof of absence means the same as absence of proof.

The Eligibility Adjudicator refuses to even consider the video evidence as 
demonstrating that the worker was “not in the course of his employment” and
 says that she will not even review an expert report from an investigations
 company explaining that there is no vehicle entering or leaving the premises, 
and how “motion activated” recording works. She insists she has made up her
 mind, and that the expert report can be presented at an appeal. It does not 
matter to her that an Appeal will likely take up to 12 months to be heard.

Apparently this Adjudicator is unfamiliar with WSIB Policy 11-01-02, which 
states in part: “As an inquiry system (rather than an adversarial system),
the WSIB gathers relevant information, weighs evidence, and makes decisions.
The WSIB’s decisions and practices must be consistent with the provisions of 
the Act and the rules of natural justice.” It seems to me that 
incontrovertible proof ought to be considered ‘relevant information’ and 
that ‘natural justice’ would require the evidence be used as part of the
 decision-making process.

Not only should this claim be not allowed, the worker should be considered for section 149 charges.

What is really most stunning here is the Eligibility Adjudicator’s admission 
that, really, she can’t be bothered – she’s made up her mind and that’s all 
there is to it.

Trucker kids as employees – further details emerge

When we wrote about our client a few days ago, we decried the WSIB’s rush to judgment in declaring this Independent Owner/Operator (IO/O) to have employees when, in fact, he does not. We’ve now learned the confusion might have arisen because of the tax receipts the corporation issued to acknowledge income splitting. But that won’t excuse the WSIB from exercising poor judgment.

WSIB matches up records with Canada Revenue Agency and they received a report that this IO/O had issued T4 slips to his children. From the WSIB perspective, that appears like there are employees in this corporation. The IO/O, on the other hand, does not have a WSIB account because he is entirely self-employed and has his own private disability insurance. Like many independent operators, though, he does exercise his right under CRA rules to split income with family members.

So WSIB sent him a letter on September 30, 2010 demanding that he register an account. When he didn’t reply by October 13th, they called him and were advised that both he and his accountant were on vacation when the letter arrived, and were still away. WSIB was apparently unwilling to wait a short while for their return.

For their part, WSIB defends their action by saying they did write to the IO/O for clarification. But they waited two weeks for an answer and, even knowing he wasn’t available to answer, went ahead without hearing from him.They waited two weeks! When is the last time WSIB made a decision within two weeks?

Here’s the problem – issuing the tax forms appears to be an accounting matter. We’re told the T4 may not be the best way to share profits (note: we are  not taxation experts); but it was the issuing of those forms that got WSIB excited in the first place. So you would think a reasonable and sensible solution would be a discussion with the IO/O and an inquiry into whether or not there are any ‘employees’ under a contract of service with the corporation. Nope. Rather than a discussion, or to await the IO/O’s return from vacation, WSIB arbitrarily registered an account, listing the two children as employees, and demanded two years of retroactive premiums. [It isn’t hard to tell WSIB is getting desperate for money these days.]

These kids are NOT employees. No documentation filed, correctly or incorrectly, with any agency changes that fact. It cannot create an employee where none exists. Both WSIB and the Workplace Safety and Insurance Appeals Tribunal tell us this regularly, when ruling on the ’employee versus independent operator’ issue. You cannot create an ‘independent operator’ simply by completing enough documentation (or even forming a Corporation) to generate the appearance of independent status as a way of avoiding the ball-and-chain that an employer/employee relationship involves. In the same way, WSIB shouldn’t be permitted to create an ’employee’ out of thin air, or thin paper, as it were, simply by completing their own forms.

CRA permits the splitting of income and that does NOT create an employer/employee relationship.  There is no contract of service, no service performed, and hence no need for premiums and no ’employer’ as defined by  WSIB’s own governing legislation. To see just how little sense this makes, we can ask: “who would these premiums be protecting?” and “who could possibly file a WSIB claim”?  The director who drives the truck has valid private disability insurance and absolutely no need for WSIB protection. There is no one else to protect.

In a subsequent discussion with the manager in charge at WSIB, she refuses to even consider that this decision was simply wrong and offers the appeal process instead. There is no reason this IO/O should need to go through the expense of an appeal over a situation so inane. Far too often, adjudicators and managers who do not want to be held accountable for objective, legal, and evidenced-based decisions just pass the buck to Appeals, having no regard for the cost and the valuable resources being wasted.

It is quite clear that the WSIB rushed to judgment and has an incomplete understanding of the concept of income splitting, and even their own legal definition of an ’employer’. That is scary. We wonder how many ‘documentary’ deemed employers have been created in Ontario? As we pointed out in our last blog, there is not a lot of value to WSIB connecting and sharing information with CRA if they can’t grasp how to properly use the information the taxman gives them.

Truckers who haven’t hired their kids might be surprised to learn WSIB disagrees

We have learned of an Independent Owner Operator (IO/O) who is the director of a corporation with no employees. His Articles of Incorporation list both him and his wife as directors – and, so far as they are concerned, there are no other people involved in the company.

Like many IO/Os, he splits income for taxation purposes – perfectly in accordance with Canada Revenue Agency rules. But on reviewing the shared information from CRA, the WSIB decided that his two children – with whom there was also income splitting – were employees. They determined that the IO/O was, in fact, an employer and they assessed premiums against him – retroactive for two years!

Now here’s the problem – these kids are NOT employees. CRA permits the splitting of income and that does NOT create an employer/employee relationship. There is no contract of service, no service performed, and hence no need for premiums. WSIB says they wrote a letter to the employer asking for clarification but when he didn’t respond, they simply went ahead and issued their order for the back premiums. They wrote to the IO/O on September 30, 2010 and followed up by telephone on October 13. They were advised that both the IO/O and his accountant were on vacation, but they just went ahead and ruled against him rather than await his return.

They waited two weeks! That must set a new record for decision-making at WSIB.

In subsequent discussion with the manager in charge at WSIB, she refuses to even consider that this decision was simply wrong and offers the appeal process instead. There is no reason this IO/O should need to go through the expense of an appeal over a situation so inane.

It is quite clear the WSIB rushed to judgment and has an incomplete understanding of the concept of income splitting. There is not a lot of value to them connecting with CRA if they can’t grasp the information the taxman gives them.

Employer in Ontario wins Appeal against Human Rights Tribunal

The Divisional Court found numerous deficiencies in both the “reasons” and “the process” of an HRTO Hearing that found that the employer had been discriminatory in a number of ways. These deficiencies were so significant, that it was “not possible to say that this was a fair hearing, nor that the findings of discrimination were reasonable”. In one instance, the Divisional Court stated that the HRTO’s finding was simply based on a “bald conclusion that is unsupported by any factual findings”. The now overturned October 7, 2009 HRTO decision found that the employer’s policies for dress code and rules for using the microwave were discriminatory. The Adjudicator also found that employer’s method of discipline was discriminatory and the employer failed to properly accommodate her religious attire. Finally, the Adjudicator also concluded that given all of this other discrimination that occurred, some degree of “discrimination” must have contributed to the dismissal itself. The employer no longer has to pay the $36,000 award and the employee is ordered to pay $10,000 in damages. The case is remitted back to the Tribunal for another hearing. The decision as a “whole is fatally flawed”, “patently unreasonable” and should be set aside. The entire decision will be enjoyable for employers to read.

Link: Divisional Court Decision

Link: HRTO Decision

Independent Operators and Transfer of Costs

Recently, one of our Ontario based Trucking clients contacted us regarding a unique and troubling situation they were facing. One of their Ontario domiciled Owner Operators (Independent Operator) was involved in a serious MVA with another Tractor Trailer. The driver of the other tractor trailer was an employee of another Ontario based Trucking Company, and was a ‘worker’ in the course of his employment for another Schedule 1 (WSIB covered) employer at the time of the MVA.

As per WSIB policy, Independent Operators are not required to have WSIB coverage, but they may “opt in” if that is their preference. The determination of who is or is not an independent operator for WSIB purposes, must be made by the WSIB.

The WSIB examines the relationship between the person claiming to be an ‘independent operator’ and his or her contracting carriers (or the Principal using WSIB’s terminology).

The Owner Operator involved in the MVA had previously submitted his questionnaire to the WSIB to determine ‘Independent Status’ two years prior to the accident. This status is determined based on a series of questions contained on the WSIB 1149A questionnaire for those in the trucking industry. Shortly after submitting the questionnaire, the Owner Operator received a letter from WSIB confirming his ‘Independent Operator’ status, with respect to the specific relationship he had with the Principal (our Ontario-based trucking client). In lieu of mandatory WSIB coverage, the Owner Operator was required to purchase suitable WSIB Alternative Coverage from a Private Insurer.

As a result of the MVA, the employee Truck Driver sustained injuries which were determined to be severe, and as a result the recovery period would be prolonged. Because of the severity of the injuries, the carrier who contracted with the Owner Operator was levied a proportional surcharge based on this particular accident and their overall historical claims experience through WSIB’s NEER program (New Experimental Experience Rating program). On learning of the potential financial liability that would result from this specific accident, the Trucking Company quickly engaged the services of a third party WSIB consultant to address and help mitigate the issue. This consultant advised the client to apply for ‘Transfer of Costs’ from their WSIB account to the account of the Owner Operator’s contracting company (our client).

As a result of this application, WSIB quickly determined that our client’s Owner Operator was ‘at fault’ for the accident, and as such, the employer should be responsible for all, or the majority of the other employer’s financial liability – a calculated surcharge of $110,000.

Upon reviewing the facts with our WSIB lawyer, we quickly determined that a Transfer of Cost would have been appropriate had the Owner Operator been a ‘worker in the course of employment’ at the time of the MVA. However, since the Owner Operator had been declared an ‘Independent Operator’ who had contracted with the principal, any Transfer of Costs would not be applicable. Transfer of Costs can only occur when both parties involved in the work related incident are determined to be employees (Workers) of either a Schedule 1or Schedule 2 employer. Since the driver at-fault was an Independent Operator, transfer of costs should not be permitted. Upon appealing the decision, WSIB quickly reversed their previous decision and the impending penalty and costs were not levied against our client.

It should be noted that this ‘victory’ does also come with some risk of potential liability. Since the Independent Operator operates outside of the Act (Workplace Safety and Insurance Act), they are not protected from being sued. The Act protects Schedule I and Schedule 2 employers from being sued for injuries. Whenever a worker claims WSIB benefits the Board the worker’s legal rights are always subrogated to the Board. So if the worker could sue a Third Party for damages, the Board has the right to initiate that legal action to recover their costs. In this particular situation, the Board opted not to proceed with any legal action.

Action Items:

If the Owner Operator had not previously applied for Independent Operator determination from WSIB, it is quite possible that the Transfer of Costs would have been allowed. Here are some action items for you to take today:

1) If you contract with Owner Operators, do you have a letter confirming their ‘Independent Status’ from WSIB which names your company as ‘Principal’? If not, have each of your Owner Operators complete the following questionnaire and submit to the board as soon as possible:

      A) General Trucking:

      B) Courier:


Key Facts about Independent Operators (Ontario):

The act of incorporating a business DOES NOT automatically establish an ‘Independent Operator’. Trucking companies who think differently are placing themselves in a very risky situation in the event of serious, fatal, or catastrophic injury arising from an MVA. Although incorporating a business is an important step in establishing a formal business relationship with a contracting company, the WSIB is primarily interested in assessing the overall business relationship between the parties. Part of this involves determining the amount of investment the Owner Operator has made in his/her business and their respective degree of operational control. In a nutshell, here are some of the key items that WSIB will review in making their determination regarding Independent Status.:

1) The Owner Operator must Own or have financial control over his or her truck. This establishes the amount of ‘skin in the game’ that the Owner Operator has. Traditional financing through commercial loans and arm’s length leases can satisfy this requirement.

2) The Owner Operator must be responsible for the majority of the costs of operating his/her business – Maintenance, Fuel etc.

3) The Owner Operator must have market mobility and the freedom to contract with other carriers.

4) There should be a very clearly defined contractual relationship between the Owner Operator and the Carrier which formalizes their intentions to remain as two independent businesses who are in a business relationship.

5) There should also be an easily distinguishable relationship (policies, practices, actions) between the Carrier Company and their own employee drivers and the Carrier Company and the Independent Operators. They should not all be treated the same way