By Maurice Dransfeld
Recent legislative proposals and changes in Alberta and Prince Edward Island have put the farming industry into the spotlight with respect to workers’ compensation coverage. The proposed changes bring these provinces in line with most other jurisdictions in Canada and offer an interesting glimpse into the regulation of a large, diverse and especially unique industry.
In late 2015, the newly elected Alberta NDP government introduced Bill 6: Enhanced Protection for Farm and Ranch Workers Act. Bill 6 was intended to extend the protections of health and safety legislation to farm and ranch workers in the province but immediately drew criticism from the industry. Angry that the bill was introduced before farmers and their various agricultural associations were consulted, thousands (including some farm animals) protested in front of the legislature in Edmonton over the course of several weeks — and with some success.
Amendments to Bill 6 were introduced and an after-the-fact consultation process is currently underway. As it stands, mandatory coverage is now the norm (since Jan. 1) but employers have until April 30 to register.
Most recently, P.E.I. has announced similar changes to its workers’ compensation regime. Mandatory coverage for P.E.I. farmers under the Workers Compensation Act will come into effect Jan. 1, 2017. However, P.E.I. took a much less divisive approach, starting with appointing a legislative review advisory committee in 2012 to take a close look at the Workers Compensation Act. This led to a recommendation to consult with the farming and agricultural industry in the province, which occurred over the course of the following year and a half.
The consultation process has concluded and mandatory coverage will become the reality in a province where signing up for coverage had been historically optional.
Currently, only Saskatchewan, Nova Scotia and P.E.I. (subject to change in 2017) continue with optional workers’ compensation coverage, meaning that farm operators can purchase coverage if they wish or they have the option to purchase private insurance instead. Coverage is mandatory in all other provinces.
In addition to these provincially specific considerations, farms that are accessing the agricultural stream of the federal government’s Temporary Foreign Worker Program or the Seasonal Agriculture Worker Program are required to carry workers’ compensation coverage.
Family farm exemption
Farm work and the agricultural sector at large present a number of unique characteristics, including the fact that family members, friends and neighbours carry out a significant portion of farming work — for free. According to Farm Credit Canada, 98 per cent of Canadian farms are family owned and operated, which sets the farming industry significantly apart from other industries.
As a result of this, one of the interesting features of workers’ compensation legislation dealing with the regulation of farming operations (and also one of the amendments introduced to the much maligned Bill 6 in Alberta) is the “family farm exception” and exceptions for workers who are not paid. This means workers’ compensation legislation, even where mandatory, may only apply to paid workers of agricultural employers in certain cases. This creates a blanket exemption for the unpaid family member or neighbour who assists with the farming work. Family farm or unpaid farm worker exemptions apply in Ontario, Manitoba, Alberta and British Columbia; however, differences remain.
Alberta’s Bill 6, and the regulations in many other provinces, go further in carving out an additional exemption for family owned farming operations. The family farm exemptions set out the conditions in which family farm owners and their family members may be exempt from coverage even when they are paid to work. Private insurance or optional coverage may be available, but the farm or agricultural operation will otherwise operate outside of the workers’ compensation board’s purview.
Different provincial boards tackle this issue in slightly different ways. For example, in Manitoba, the family exclusion creates an exemption for farmers and family members on farms that are owned or operated by the farmers, or, in the event the operation is run by a corporation, where the corporation is primarily engaged in farming; a majority of the shares are owned by the farmer (or a family member); and the farmer (or family member) controls the corporation.
Conversely, in Alberta, the exemption applies to family members of farms or ranches that are fully owned by family members themselves, whether sole proprietorship, partnership or corporation — placing a much heavier emphasis on ownership, as opposed to the general operation or control of the farm.
“Family member” tends to be broadly defined and would include categories such as the spouse or adult interdependent/common law partner, child, parent, grandparent, sibling, aunt, uncle, niece, nephew or first cousin.
However, the small differences in legislation can bring about real practical changes. For example, a small incorporated farming operation in Manitoba owned by three shareholders being a married couple and a business partner, each holding one-third interest, would attract the family exemption as long as one person in the marriage maintains legal control of the business as a director. In Alberta, the exemption would not be triggered due to the introduction of the third shareholder who is not a family member.
That being said, it is difficult to think of an employer that would be more concerned about safety than the one who employs its own family. As a result, family farm operators will continue to purchase private insurance or may select optional workers’ compensation coverage where available.
The unique circumstances of the farming industry have, in some provinces, led to regulatory changes to address these very issues. However, the resultant statutory schemes themselves are unique and, therefore, require careful consideration by those in the farming or agricultural industry so that employers understand their rights and obligations under the various workers’ compensation schemes.
Maurice Dransfeld is a lawyer in the Edmonton office of McLennan Ross who provides advice to employers on a variety of labour and employment issues. He can be reached at firstname.lastname@example.org or (780) 482-9223, or visit www.mross.com for more information.