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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 256 16
3/24/2017
S. Netten

  • Worker (contract of service)
  • Earnings basis (long-term)
  • Board Directives and Guidelines (earnings basis) (non-permanent or irregular employment) (break in employment pattern)
  • Board Directives and Guidelines (earnings basis) (dependent contractor)

The worker appealed a decision of the Appeals Resolution Officer regarding the earnings basis for calculation of benefits.
The worker began working on November 14, 2005, working full-time hours at $20 per hour, painting and sanding a private home that was under construction. The house was being built by the owner of a building supplies company for his private use. The worker's spouse had recently started working for the company. The worker and his spouse relocated for this purpose. The worker was injured on November 18, his fifth day of work.
The Board based short-term benefits on the basis of weekly earnings of $850 (8.5 hours per day at $20 per hour). Later, it determined that the worker was a dependent contractor, and based long-term benefits on earnings of $70 per week.
The Vice-Chair found that the worker was in an employment relationship with the homeowner. He was engaged to work at an hourly wage, performing painting-related tasks assigned by the owner or the foreman, using materials equipment supplied by the owner, and at hours set by the owner. The worker was not a dependent contractor, as that typically entails a negotiated payment for completion of a task rather than an ongoing hourly wage.
The worker was not in permanent employment. Rather, he was hired as a painter with the expectation that he would work full-time for the duration of the project. The Vice-Chair found that the worker was a temporary, full-time worker.
Prior to working for the homeowner, the worker had never had full-time employment since moving to Canada in 2001. There was a break in the worker's employment pattern when he relocated and began working for the homeowner in his first full-time job.
The accident occurred on the worker's fifth day of work. He had not been employed long enough to establish a pattern of employment. It was appropriated to consider the earnings of a similarly-employed worker. In the circumstances, such earnings would likely have consisted, at best, of 22 weeks at $20 per hour, four weeks at $25 per hour for specialty painting, a two-week transition period and 24 weeks of EI. The result was a long-term earnings basis of $630 per week.
The appeal was allowed.