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March 12, 2013 - By Ashley Winberg

Managing Your Risk

The Workplace Safety and Insurance Board (the “WSIB”) provides no-fault workplace insurance for employees suffering from a work related injury and/or illness. The insurance program has traditionally been funded by employer contributions, which have been mandatory since 1997.

Prior to January 1, 2013, workers’ compensation coverage was only mandatory for employees, leaving independent operators, often referred to as independent contractors, exempt from the requirements related to the same under the Workplace Safety and Insurance Act, 1998 (the “WSIA”). This discrepancy created a fundamental imbalance in the competitive marketplace as independent operators were able to bid on the same projects as employers at more attractive rates as they were not required to contribute to the WSIB’s no-fault insurance program. Condominium corporations in turn reaped the benefits of the reduced rates of independent operators, as the same were often the more cost-effective alternative in comparison to employers. While this discrepancy may have created a competitive advantage for independent operators, these individuals were being exposed to the same occupational hazards as employees, yet had no form of job protection or compensation if injured while on the job. Accordingly, the Province amended the WSIA to make compensation coverage mandatory for independent operators in the construction industry effective January 1, 2013.

Pursuant to the WSIA’s amendments, independent operators are required to register with the WSIB prior to commencing any construction work. Condominium corporations also have a statutory obligation to request copies of WSIB Clearance Certificates from all independent operators before the commencement of any work at the condominium property. WSIB Clearance Certificates indicate that the independent operators have registered with the WSIB and have complied with all of their obligations under the WSIA. Thus, the amendments prohibit independent operators from performing any construction work without valid WSIA Clearance Certificates and condominium corporations must ensure that no construction work is performed where no WSIA Clearance Certificate is in effect. Condominium corporations that fail to obtain WSIB Clearance Certificates from independent operators prior to the commencement of any construction work could be fined up to $100,000. However, the WSIB has announced that until December 31, 2013, it will waive all penalties and refrain from investigating and/or laying any applicable charges against principals, such as condominium corporations, if the same are found to be in violation of any of the foregoing obligations.

While it may appear to be advantageous for a condominium corporation to hire an independent operator who is not registered with the WSIB because it is cheaper, cheaper may not be better as doing so runs the risk of the condominium corporation being held liable for any damage or injury sustained by the individual while working on the condominium property and being charged with a provincial offence under the WSIA. It is therefore advised that condominium corporations only retain the services of independent operators, who are registered with the WSIB prior to commencing any construction work.


All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.

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