Law
s.11(2)
Subject to section 12, the insurance plan does not apply to workers who are executive officers of a corporation.
s.12(1)
Upon application, the WSIB may declare that any of the following people is deemed to be a worker to whom the insurance plan applies
- An independent operator carrying on business in an industry included in Schedule 1 or Schedule 2
- A sole proprietor carrying on business in an industry included in Schedule 1 or Schedule 2
- A partner in a partnership carrying on business in an industry in Schedule 1 or Schedule 2.
s.12(2)
Upon the application of a Schedule 1 or Schedule 2 employer that is a corporation, the WSIB may declare that an executive officer of that corporation is deemed to be a worker to whom the insurance plan applies. The WSIB may make the declaration only if the executive officer consents to the application.
s.12(3)
The WSIB may make a declaration subject to such conditions as it considers appropriate. The declaration may provide that the person is deemed to be a worker for only such period as is specified.
Policy
The WSIB reserves the right to determine whether an individual is a worker, an employer, an independent operator, or an executive officer.
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, refer to 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
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).
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 Act.
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, 2004 and relates to the status of individuals on or after January 1, 2004.
Document history
This document replaces 12-03-03 dated July 19, 2004.
References
Legislative authority
Workplace Safety and Insurance Act, 1997, as amended
Sections 2(1), 11(2), 12, 26, 28
Minute
Administrative
#8, June 2, 2004, Page 359