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Meeting registration requirements ?may limit financial penalties

Late last year, Ontario’s Workplace Safety and Insurance Board (WSIB) undertook a marketing campaign reminding contractors in the construction industry of the obligation to register for coverage with the WSIB, and the potential for penalties if they failed to do so. The same marketing campaign reminded people hiring contractors to obtain "clearances” from anyone hiring them before the work begins. The marketing campaign reinforced that the obligation to register for coverage was already in place and enforcement activities were to begin.

Although the message from the WSIB was aimed more specifically at independent operators in the construction industry and the mandatory coverage requirements that came into effect in January 2013, the message regarding coverage applies to employers in all industry sectors and jurisdictions. Employers should be diligent about confirming whether or not they require workers’ compensation coverage in the jurisdictions in which they work, and register accordingly.

The question about whether or not to register seems to be more of an issue in jurisdictions where there are individuals and industries that are exempt from mandatory coverage. There are also those employers that do not consider themselves to be “employers” as defined by the workers’ compensation legislation, and that may not even realize coverage is required. An example of this type of employer is a homeowner who employs a nanny or other “domestic worker.”

In Ontario, for example, a person who hires a nanny or other domestic worker for more than 24 hours per week is required to register as an employer and pay premiums on behalf of the worker based on the worker’s earnings. By registering for coverage, the worker is eligible to claim for benefits in case of a workplace injury or illness, and the employer is generally protected from civil action by the worker. This is part of the “historic trade-off” of workers’ compensation coverage.

Throughout my career, I have encountered a number of situations where employers ought to have registered for coverage, but did not. Generally, they did not register for coverage because they did not know they had to. Examples have included employers from other jurisdictions that begin working in Canada and within specific provinces, and employers based in one province that begin operations in another province or territory.

Failing to register with your respective compensation board or boards may result in administrative penalties, retroactive premium requirements (plus interest) or prosecution with an associated fine upon conviction. As the penalties may be substantial, it makes good business sense to register, if registration is required.

So what should you do if you ought to be registered and have not done so? Generally, a call to the compensation board or a review of the applicable compensation board website will confirm whether or not you should register for coverage. If coverage is required, complete the registration process as soon as possible to become compliant with the applicable legislation. Registration can generally be completed either online or by obtaining a registration form from the compensation board. The compensation board may require payment of retroactive premiums, depending on when you first became an employer, but voluntary registration may give you some ability to negotiate the amount payable or any interest owing on those retroactive premiums.

Ontario, for example, has a permanent partial amnesty in place for employers that voluntarily register. That amnesty gives the WSIB the ability to waive penalties, limit the amount of retroactive premium to be collected, waive interest charges, and refrain from investigating and laying applicable provincial offences charges. The message here is that voluntary registration has some benefits and may limit some financial exposure, whereas being discovered by the compensation board and being required to register may not offer the same protection.

In terms of worker coverage, it is important to note that workers are generally covered in case of a workplace injury, regardless of whether their employer has registered for coverage. The question is only whether the employer ought to have been covered. If coverage was required, the compensation board will generally process the claim, then retroactively register the employer. Again, in this situation, the employer may be subject to penalties or prosecution.

As an employer, it is your responsibility to ensure you fulfill your obligations under the various pieces of provincial legislation, including workers’ compensation legislation. It is the employer’s responsibility to ensure that it registers for coverage when required to do so. If you hire workers, or own your own business, check with your respective workers’ compensation board to confirm whether you are required to register, then take the steps to do so as soon as possible.

David Marchione

David Marchione is an occupational health and safety consultant and paralegal at Fasken Martineau DuMoulin in Toronto. He can be reached at (416) 868-3468 or dmarchione@fasken.com, or visit www.ehslaw.ca for more information.
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