Trucker kids as employees – further details emerge

When we wrote about our client a few days ago, we decried the WSIB’s rush to judgment in declaring this Independent Owner/Operator (IO/O) to have employees when, in fact, he does not. We’ve now learned the confusion might have arisen because of the tax receipts the corporation issued to acknowledge income splitting. But that won’t excuse the WSIB from exercising poor judgment.

WSIB matches up records with Canada Revenue Agency and they received a report that this IO/O had issued T4 slips to his children. From the WSIB perspective, that appears like there are employees in this corporation. The IO/O, on the other hand, does not have a WSIB account because he is entirely self-employed and has his own private disability insurance. Like many independent operators, though, he does exercise his right under CRA rules to split income with family members.

So WSIB sent him a letter on September 30, 2010 demanding that he register an account. When he didn’t reply by October 13th, they called him and were advised that both he and his accountant were on vacation when the letter arrived, and were still away. WSIB was apparently unwilling to wait a short while for their return.

For their part, WSIB defends their action by saying they did write to the IO/O for clarification. But they waited two weeks for an answer and, even knowing he wasn’t available to answer, went ahead without hearing from him. They waited two weeks! When is the last time WSIB made a decision within two weeks?

Here’s the problem – issuing the tax forms appears to be an accounting matter. We’re told the T4 may not be the best way to share profits (note: we are  not taxation experts); but it was the issuing of those forms that got WSIB excited in the first place. So you would think a reasonable and sensible solution would be a discussion with the IO/O and an inquiry into whether or not there are any ‘employees’ under a contract of service with the corporation. Nope. Rather than a discussion, or to await the IO/O’s return from vacation, WSIB arbitrarily registered an account, listing the two children as employees, and demanded two years of retroactive premiums. [It isn’t hard to tell WSIB is getting desperate for money these days.]

These kids are NOT employees. No documentation filed, correctly or incorrectly, with any agency changes that fact. It cannot create an employee where none exists. Both WSIB and the Workplace Safety and Insurance Appeals Tribunal tell us this regularly, when ruling on the ’employee versus independent operator’ issue. You cannot create an ‘independent operator’ simply by completing enough documentation (or even forming a Corporation) to generate the appearance of independent status as a way of avoiding the ball-and-chain that an employer/employee relationship involves. In the same way, WSIB shouldn’t be permitted to create an ’employee’ out of thin air, or thin paper, as it were, simply by completing their own forms.

CRA permits the splitting of income and that does NOT create an employer/employee relationship.  There is no contract of service, no service performed, and hence no need for premiums and no ’employer’ as defined by  WSIB’s own governing legislation. To see just how little sense this makes, we can ask: “who would these premiums be protecting?” and “who could possibly file a WSIB claim”?  The director who drives the truck has valid private disability insurance and absolutely no need for WSIB protection. There is no one else to protect.

In a subsequent discussion with the manager in charge at WSIB, she refuses to even consider that this decision was simply wrong and offers the appeal process instead. There is no reason this IO/O should need to go through the expense of an appeal over a situation so inane. Far too often, adjudicators and managers who do not want to be held accountable for objective, legal, and evidenced-based decisions just pass the buck to Appeals, having no regard for the cost and the valuable resources being wasted.

It is quite clear that the WSIB rushed to judgment and has an incomplete understanding of the concept of income splitting, and even their own legal definition of an ’employer’. That is scary. We wonder how many ‘documentary’ deemed employers have been created in Ontario? As we pointed out in our last blog, there is not a lot of value to WSIB connecting and sharing information with CRA if they can’t grasp how to properly use the information the taxman gives them.

Posted by Paul Harris/Cézanne Charlebois

WSIB Funding Review needs to hear from you

The WSIB funding is being reviewed for major overhauls. Professor Harry Arthurs is charged with the review and recommendations.  This review will make sweeping recommendations on how the WSIB is funded, or, put into simple terms: experience rating will change; SIEF may go; rates will increase.

The committee will not be addressing worker benefits, only funding. The construction sector will likely face a cost burden that could cripple some employers.

The WSIB Task Force represents the construction industry and has produced a very detailed submission to be presented at a Hearing to take place:

Delta Chelsea
33 Gerrard St. West, Toronto, Ontario
April 28th, 2011 –  2:25 @ p.m.

Please spread the word to encourage others to attend and fill the audience. Details can be found at: http://www.wsibfundingreview.ca/faq.php

If we do not support the Task Force recommendations, the results could be very costly.

The independent third party review is part of the WSIB’s response to concerns about the size of its unfunded liability (UFL). This independent review will consult with the public on ways to make the WSIB a more financially sustainable system for the future. The goal of the funding review is to establish a dialogue and seek input from workers, labour, employers and employer associations on a range of public policy issues relating to the WSIB’s financial future.

Professor Harry Arthurs has been invited to Chair the Funding Review. Professor Arthurs is a former Dean of Osgoode Hall Law School and former President of York University. He has extensive experience as a labour lawyer and mediator and recently led a review of Ontario’s workplace pension system.

Professor Arthurs will be advised by a small committee to provide their insights and varied perspectives on the social and economic issues that arise in the context of Ontario’s workplace safety and insurance system. Members of the Advisory Committee are:

  • Maureen Farrow – is an external advisor on the WSIB Board of Directors’ Investment Committee. She is President of Economap Inc., a Director of the Equitable Life Insurance Company of Canada.
  • Buzz Hargrove – is the former National President of the Canadian Auto Workers. He is currently serving as a Distinguished Visiting Professor at Ryerson University’s Ted Rogers School of Management.
  • John O’Grady – is Chair of the Institute for Work and Health. As a consulting economist, he specializes in labour market and industry analysis.
  • John Tory – is a former leader of the Progressive Conservative Party of Ontario. He is now a broadcaster and volunteer Chair of the Toronto City Summit Alliance.

The Chair of the Funding Review will meet with stakeholder groups and will conduct public hearings across the Province. In addition, interested parties who prefer not to make a public presentation or are unable to attend a session will be able to submit their ideas in writing for improving the WSIBs financial position. The WSIB Funding Review website is also an excellent way to contact the Funding Review. The website address is www.wsibfundingreview.ca or you can email the Review at: questions@wsibfundingreview.ca.

Posted by Guy St-Gelais