Policy
The WSIB reserves the right to determine whether an individual is a worker, an employer, an independent operator, or an executive officer.
A person who is an independent operator, sole proprietor, partner or executive officer in the construction industry, may be eligible to obtain optional insurance if the person meets the criteria for exemption. See, 12-01-06, Expanded Compulsory Coverage in Construction.
Purpose
The purpose of this policy is to outline the individuals who are not automatically covered as workers under the Workplace Safety and Insurance Act, 1997 (WSIA). These individuals may apply for optional insurance.
Guidelines
Definition
Individuals who are not automatically entitled to benefits under the Act, but who the WSIB deems upon application to be workers to whom the insurance plan applies, are said to have optional insurance.
General
Individuals requesting optional insurance must indicate their consent by completing and signing the Optional Insurance Request/Change form. For information on how to apply for optional insurance, or to change the amount of optional insurance for those who currently have it, see 12-03-02, Optional Insurance.
Right of action
Individuals with optional insurance lose certain rights of action, see 15-01-05, Third Party Rights of Action. Those considering optional insurance may wish to consult a lawyer to evaluate whether optional insurance will benefit them.
Independent operators
Except in the construction industry, if an individual applies for optional insurance and his or her status as either a worker or an independent operator is unclear, the WSIB uses the organizational test to determine the applicant's status, see 12-02-01, Workers and Independent Operators.
In the construction industry, "independent operator" status will be determined by applying the definition as stated in policy 12-01-06, Expanded compulsory Coverage in Construction.
Executive officers
The WSIB determines who is an executive officer according to employer type. The following chart lists the positions that qualify as executive officer positions under this policy.
Employer Types and Executive Officer
| EMPLOYER TYPE | DESCRIPTION | EXECUTIVE OFFICERS |
|---|---|---|
| Limited liabilities companies | legally incorporated with share capital | - members of the board of directors - chair and vice-chair of the board of directors - corporate president, chief executive officer (CEO), chief operating officer (COO), chief financial officer (CFO), vice-president, general manager of the corporation, corporate secretary and treasurer |
| Non-Profit | non-incorporated, or legally incorporated without share capital | - directors of the governing board or the equivalent thereof |
| Municipalities | incorporated and non-incorporated, including cities, towns, villages and native bands | - all elected officials (e.g. mayors, city councillors) and temporary appointees to elected positions |
| Board or commissions | public health service facilities (e.g. hospitals), utilities, municipal agencies, school boards, colleges and universities | - members of the governing board, either appointed or elected or the equivalent thereof |
| Provincial government | - deputy ministers |
For the purpose of this policy, an individual such as a sole proprietor, a partner, or an independent operator who incorporates, is not considered an executive officer under section 11(2) of the WSIA.
Proof of executive officer status
The appointment of an executive officer must be verifiable through appropriate and current documentation such that
- The name of the executive officer must be recorded in the employer’s minute book and
- The status of executive officer can be verified in other documents that the WSIB may review including resolutions by the board of directors, corporate by-laws, or public records filed with other government authorities.
Notwithstanding the above, the WSIB reserves the right to determine who is an executive officer by examining factors related to the individual's role and responsibilities. Specifically, the WSIB will review the substance of the relationship between the individual and organization to consider relevant factors, for instance, if the individual
- has been delegated the authority to act independently on behalf of the organization
- is responsible for the overall direction and control of the company’s operations or financial affairs
- exercises a broad scope of authority to make decisions or formulate policies for the organization as a whole, rather than authority that is strictly limited to a specific branch or division
- has the ability to bind the organization.
Spouse and family members
For a spouse or family member to be eligible for optional insurance, he or she must be
- a partner or an executive officer, and
- active in the business, and in receipt of earnings.
Part-time domestic workers
The WSIB considers domestic workers to be independent operators eligible for optional insurance if they work
- 24 hours a week or less for a single employer, or
- more than 24 hours a week in total for more than one employer, but not more than 24 hours a week for any single employer.
For more information, see 12-04-14, Domestic Workers.
Homeowners employing domestics may not obtain optional insurance for themselves or the operations pertaining to their household.
Average earnings
For information on determining average earnings, see 12-03-02, Optional Insurance.
Application date
This policy applies to all decisions made on or after January 1, 2013.
Document history
This document replaces 12-03-03 dated October 12, 2004.
References
Legislative authority
Workplace Safety and Insurance Act, 1997, as amended
Sections 2(1), 11(2), 12, 12.2, 26, 28
Minute
Administrative
#6, December 18, 2012, Page 498