Highlights of Noteworthy Decisions

Decision 3354 17
21/11/2017
J. Dimovski
  • Assessment of employers (retroactivity)
  • Executive officers (construction industry)
  • Schedule 1 employer (compulsory coverage) (construction)

The employer was in the construction business. The Board conducted an audit in May 2014. During the audit, the employer provided a signed declaration for exemption from compulsory coverage in the construction industry for its executive officer. The Board accepted the exemption as of May 2014. For the period from January 1, 2014 to May 2014, the earnings of the executive officer were recognized as insurable earnings under Rate Group 755 for non-exempt executive officers in construction. For the period from January 1, 2013 to January 1, 2014, the Board classified the earnings of the executive officer as insurable earnings under Rate Group 723. The employer appealed.

Effective January 1, 2013, s. 12.2 of the WSIA provides that every executive officer of a construction company is a deemed worker, except as otherwise provided by regulation. Section 1 of O. Reg. 47/09 provides that one executive officer of a construction company is exempt if the executive officer does not perform any construction work and a declaration is filed with the Board. Section 1(3) provides that the exemption is effective from the day the Board receives the declaration. Board Operational Policy Manual, Document No. 12-01-06, on expanded compulsory coverage in construction, contains similar provisions. For non-exempt executive officers, the policy states that the Board will allow the earnings to be reported under a separate rage group (Rate Group 755).
The regulation and Board policy were clear and unambiguous that the exemption is effective from the date the declaration is received by the Board. There was no basis to make the exemption retroactive. The employer was entitled to the exemption as of May 2014, when it provided the declaration to the Board.
Since the exemption could not be retroactive, the employer requested that the non-exempt executive officer status be applied retroactive not just to January 1, 2014, but to January 1, 2013. The Vice-Chair noted that there was no law or policy limiting retroactive classification of executive officers in the non-exempt category of Rate Group 755. Generally, the Board policy on retroactivity permits a two-year retroactive premium adjustment, but that does not apply to classification changes. There were no exceptional circumstances warranting a two-year retroactivity in this case.
The appeal was dismissed.