- Assessment of employers (retroactivity)
- Class of employer (waterproofing)
- Class of employer (multiple rates) (dual rates)
The employer was a construction company with operations throughout the Province of Ontario. Of relevance to the present appeal were operations in two Ontario cities, for which the employer had separate WSIB accounts. On February 25, 2022, the employer requested that NAICS code 238390, Other Building Finishing Contractors, Class G5 be added as a separate premium rate, with respect to the group of workers who were engaged in "waterproofing activities". This request was denied with respect to operations in that NAICS code in both cities. The issue under appeal was whether the accident employer should have an additional separate premium rate.
The Panel allowed the appeal.The Panel found that the waterproofing operation was both significant and not integrated with the employer's other operations. Consequently, the Panel confirmed that a separate premium rate for the employer's business activities in NAICS code 238390, Other Building Finishing Contractors, Class G5 was warranted under Policy 14-01-07.The Panel then considered whether Policy 14-01-07 requires a three-year period of "insurable earnings" within the new classification before it can be considered for a separate premium rate. The Panel found that the requirement that, for consideration of a separate rate premium, the "insurable earnings" must have already been within the new classification for a three-year period does not appear on a plain reading of Policy 14-01-07 and Policy 14-02-06. There is no compelling reason for the "three-year review period" to apply when an employer has not changed their business activity but has rather only requested a change in their classification due to an existing business activity being a better fit under a different NAICS code. Under Policy 14-02-06 the adjustments to the employer's premiums as a result of this addition to the employer's NAICS code would go back to January 1, 2022.The employer had been engaged in the business activity of NAICS Code 238390, Waterproofing, and had provided evidence of insurable earnings in that business activity for the prior three years. This satisfied the policy requirement. The fact that the insurable earnings were not technically attributable to NAICS Code 238390, Waterproofing, because that classification had not yet been attributed by the WSIB did not take away from the fact that the employer was previously engaged in that activity and had demonstrated insurable earnings attributable solely to the business activity in that classification. To read in a further three-year review period as a result of a requested addition of a classification addition would put Policy 14-01-07 at odds with Policy 14-02-06. The Panel interpreted the two policies in such a way as to ensure consistency between the two policies.The Panel noted that imposing a three-year waiting period following the attribution of a new classification upon this employer would not appear to achieve any policy objective since the insurable earnings information the WSIB requires to make its decision was available at present, and furthermore, it would lead to inconsistency between Policy 14-02-06 and 14-01-07.