- Employer (sole proprietorship)
- Executive officers
- Right to sue (statutory accident benefits)
- Worker (contract of service)
- Worker (test) (organization test)
The respondent was the driver of a car-hauler transport which was parked on the shoulder of a highway for a tire repair, when a transport owned by the co-applicant struck the vehicle and caused physical injuries to the respondent. The respondent filed a civil action as against the applicant and co-applicants. The applicant sought a declaration that the respondent was entitled to claim benefits under the insurance plan. The co-applicants sought a declaration that the worker's right to commence a civil action was taken away by section 28 of the WSIA.
The application was allowed. The respondent was entitled to claim benefits under the insurance plan and barred from pursuing a civil action. The respondent submitted that he was an executive officer under subsection 11(2) which stipulates: "the insurance plan does not apply to workers who are executive officers of a corporation". The applicants objected to the executive officer exception argument on the basis that establishing a corporation does not supersede the application of the Organizational Test (see Decision No. 941/20). The Vice-Chair agreed that in situations where a corporation is a one-person corporation, the organizational test under OPM Document No. 12-02-01, "Workers and Independent Operators", would apply.The case law provided in support of the "executive officer exception" indicates that merely being named an executive officer in the articles of incorporation of a company is insufficient. The evidence must support a determination that the individual is an executive officer "in substance". The Vice-Chair rejected the proposition that section 11(2) creates an exception to the application of the compensation scheme separate and distinct from a determination of independent operator status further to the organizational test. As noted in OPM Document No. 12-02-01, in looking at one-person corporations, the organizational test would still apply. In particular, the decision maker must consider whether a person is operating a business or solely using an incorporated structure. Further, it is the intention of the parties at the time of the index accident which are relevant. Based on the organizational test, the Vice-Chair concluded that the respondent was engaged in a contract of service and was a "worker" within the meaning of the Act. The respondent did not own the truck he was operating. Ownership of the truck is a particularly important factor in the trucking industry as it is determinative of the capacity to earn a profit or have a risk of loss (see Decision No. 516/22). The evidence established that the respondent did not have a potential for profit. There was also a significant risk of loss to the respondent, even if that risk was limited to his company. The Vice-Chair did not find that a risk of loss absent an opportunity for profit supported a finding of independent operator status. In the Vice-Chair's view, this was a contract of service with an unfavorable term which shifted risk to the worker. Although the respondent's company was paid bi-weekly by cheque, without any deductions, this did not outweigh the other factual elements which supported a determination that the respondent was engaged in a contract of service.