The WSIB has the authority to determine who is a worker or an independent operator under the Workplace Safety and Insurance Act, 1997 (WSIA).
The WSIB uses questionnaires to gather information to help determine if a person is employed under a "contract of service." The questionnaires reflect the principles of the organizational test for independent operators (see below). Persons employed under a contract of service are workers. Independent operators are not employed under a contract of service.
In the construction industry, independent operators are automatically covered under the WSIA with certain exceptions. See 12-01-06, Expanded Compulsory Coverage in Construction.
The purpose of this policy is to outline the criteria used by the WSIB to determine a person's status as either a worker or independent operator.
A "contract of service", or employer-employee relationship, is one where a worker agrees to work for an employer (payer), on a full- or part-time basis, in return for wages or a salary. The employer has the right to control what work is performed, and where, when, and how the work is to be performed.
Workers - those who work under contracts of service - are automatically insured and entitled to benefits if injured at work. In addition, their employers must pay premiums to the WSIB.
A "contract for service", or a business relationship, is one where a person agrees to perform specific work in return for payment. The employer does not necessarily control the manner in which the work is done, or the times and places the work is performed.
Independent operators - those who work under contracts for service - are not automatically insured or entitled to benefits unless they voluntarily elect to be considered “workers” and apply to the WSIB for their own account and optional insurance, see 12-03-02, Optional Insurance. Independent operators may not be insured through the hiring company’s (payer’s) WSIB account.
The organizational test recognizes features of control, ownership of tools/equipment, the chance of profit/risk of loss and whether the person is part of the employer’s organization, or operating their own separate business.
The questionnaires apply to persons, usually contractors and subcontractors, who are unsure of their own status, or whose status is in question by the hiring company or the WSIB. Elements of the organizational test are incorporated into the questionnaires that the WSIB uses.
After completing and submitting the appropriate questionnaire to the WSIB, the WSIB determines whether persons are workers in an employer’s organization, or independent operators running their own separate business.
The WSIB does not automatically consider incorporation, on its own, as a sole factor in determining whether a person is an independent operator. One-person corporations still need to apply for independent operator status by completing the appropriate industry-specific or general questionnaire. The WSIB looks at whether the person operates a business or not, rather than just the incorporated structure of the operation.
Characteristics of workers and independent operators
The following list compares worker/independent operator characteristics. The statements on the left are more characteristic of the behaviour or situations of workers, while those on the right characterize the behaviour of independent operators. No single statement determines a person’s status. Decision-makers consider the information provided on the questionnaires, and any other information relevant to the terms and conditions of employment when making their determinations.
|Element of relationship||Workers||Independent operators|
|Hours of work||
|Order or sequence of work||
|Method of payment||
|Serving the public||
|Status with other government agencies||
Profit or loss
To determine what the opportunities are for the person to earn a profit or suffer a loss in doing the work, the decision-maker must consider:
- what assets (labour, materials, tools, and equipment) are used, operated, or put into action when doing the work, e.g., a lathe. These are to be distinguished from assets that are the subject of the work, or that are acted upon in doing the work, e.g., the table leg that is "turned" on the lathe.
- what costs are incurred in doing the work, including:
- costs of the acquisition, maintenance, operation and repair of assets
- financing and loan arrangements with respect to the work, and
- licensing and insurance fees
- who pays these costs - the employer or the person
- if the person pays the costs, does the person purchase items directly or indirectly from the employer or through an arrangement with the employer
- what decisions influence the costs and to what extent
- who makes and has the right (legal or otherwise) to make these decisions - the person or the employer, and
- the market mobility of the person or the demand that exists for these services.
Workers have the right to make decisions that, in comparison to those that the employer makes (or has the right to make), have an insignificant or lesser influence on the workers' opportunity to make a profit or suffer a loss in doing the work.
Independent operators have the right to make decisions that, in comparison to those that the hiring company makes (or has the right to make), have a significant influence on their opportunity to make a profit or suffer a loss in doing the work.
Other applicable criteria
To determine what other applicable criteria suggest about the status of the person, decision-makers consider the paired statements that follow. None of these statements, on their own, leads to the determination of status. Before making a determination, decision-makers must consider each statement in reference to all other features of the working relationship.
|Element of relationship||Workers||Independent operators|
|Continuing need for type of service||
|Hiring / supervising / paying assistants||
|Doing work on purchaser's premises||
|Oral and written reports||
|Right to sever relationship||
|Working for more than one firm at a time||
The decision-maker reaches a decision about the status of the person. When the criteria indicate the person has a separate business that is not integrated into the employer's business, then the person is an independent operator. If the decision-maker finds:
- that the person is subject to a high degree of control in doing the work, and
- that the decisions the person makes have an insignificant effect on the person's own opportunity to earn a profit or suffer a loss
the person is a worker and does not have a separate business, even if a review of "Other applicable criteria" suggests that some independence is afforded to the person in the relationship with the employer.
This policy applies to all decisions regarding worker or independent operator status made on or after July 1, 2023.
This document replaces 12-02-01, dated April 9, 2021.
This document was previously published as:
12-02-01 dated January 2, 2013
12-02-01 dated January 3, 2007
12-01-03 dated October 12, 2004
12-01-03 dated January 31, 2002
01-02-03 dated January 9, 1996.
Workplace Safety and Insurance Act, 1997, as amended
Sections 2(1), 11, 12, 12.1, 12.2
#1, June 29, 2023, page 618