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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 283 13
3/22/2013
S. Martel

  • Independent operator (sales)
  • Board Directives and Guidelines (class of employer) (Board audit)
  • Independent operator (installer)

The employer manufactured kitchen and bathroom cabinets. The employer appealed a decision of the Appeals Resolution finding that its installers and sales agents were workers and not independent operators. The evidence in this case was very similar to the evidence in Decision No. 382/06 regarding the installers. They owned their own vehicles and tools, and had considerable mobility. The Vice-Chair concluded that the installers were independent operators, except for one apprentice who was a worker. The Vice-Chair distinguished Decision No. 799/09 regarding the status of the sales agents. In Decision No. 799/09, the sales agents could work for others and hire their own workers. They also paid their own expenses for trade shows. In this case, however, the sales agents could only sell non-competing products, and the employer paid trade show expenses. The Vice-Chair concluded that the sales agents in this case were workers of the employer. The Board issued a notice of audit in August 2004. The employer submitted that the audit was spent because the Board did not issue a final decision until December 2007. However, the Vice-Chair found that a notice of audit is only spent if it takes too long for the audit results to first be communicated to the employer. In this case, the auditor advised the employer of the results of the audit in March 2005, only seven months after the notice. The auditor advised that she would consider any further information submitted by the employer but that did not change the nature of her decision to an interim decision. The appeal was allowed in part.