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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 1568 14
9/2/2014
B. Kalvin

  • Employer
  • Independent operator (construction)
  • Worker (test)

The appellant did stucco work. He registered a business in 2003. In 2007, he started a relationship with a contractor. On November, 17, 2009, the appellant registered with the Board as an employer. He stated that his business operated as a sole proprietorship. The Board registered the business and issued a clearance certificate. On November 28, 2009, the appellant was injured while performing stucco work. The appellant appealed a decision of the Appeals Resolution Officer denying benefits for the accident on the grounds that the appellant was an employer rather than a worker. The Vice-Chair found that the preponderance of evidence supported a conclusion that the appellant was an independent operator who hired workers, thus making him an employer within the WSIA. It was significant that the appellant opened his business in 2003, four years before he began to work with the contractor. After 2007, the primary source of the appellant's work was from the contractor, but that was not his exclusive source of work. Occasionally, when there was a gap between jobs provided by the contractor, the appellant would do renovations and stucco work on his own. Most significantly, on occasion, the appellant hired workers to assist him with the work that he was given by the contractor. It was the contractor that urged the appellant to register with the Board but there did not seem to be any motive by the contractor to try to avoid responsibility of recognizing the appellant as a worker. Rather, it appeared that the contractor wanted to make sure that the appellant had the benefit of insurance coverage. The Vice-Chair noted that the Board offered the appellant the opportunity to purchase optional insurance but the appellant declined. The Board properly characterized the appellant as an employer and not a worker. The appeal was dismissed.