Bill 17 2013

An Act to amend the Workplace Safety and Insurance Act, 1997 to provide employers with the right to participate in alternate insurance plans

Note: This Act amends the Workplace Safety and Insurance Act, 1997.  For the legislative history of the Act, see the Table of Consolidated Public Statutes – Detailed Legislative History at www.e-Laws.gov.on.ca.

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

   1.  (1)  Subsection 2 (1) of the Workplace Safety and Insurance Act, 1997 is amended by adding the following definition:

"alternate plan" means a plan in which a Schedule 1 employer or a Schedule 2 employer has opted to participate under section 67 and under which workers of the employer are entitled to receive benefits from an insurer that is not a body that comes within the definition of "public sector" in subsection 2 (1) of the Public Sector Salary Disclosure Act, 1996; ("régime concurrent")

   (2)  The definition of "construction" in subsection 2 (1) of the Act is repealed.

   (3)  The definition of "independent operator" in subsection 2 (1) of the Act is amended by striking out "subject to section 12.1".

   (4)  Paragraph 10 of the definition of "worker" in subsection 2 (1) of the Act is amended by striking out "or 12.2".  

   2.  Part I of the Act is amended by adding the following section:

Alternate plans

   2.2  Subject to the regulations made under this Act, nothing in this Act applies to an employer or a worker employed by the employer if the employer has opted to participate in an alternate plan under section 67 and the alternate plan is in force, except if the context specifically provides otherwise.

   3.  (1)  Subsection 11 (1) of the Act is amended by striking out the portion before clause (a) and substituting the following:

Insured workers

   (1)  The insurance plan applies to every worker who is employed by a Schedule 1 employer or a Schedule 2 employer, except if the employer opts to participate in an alternate plan under section 67 and the alternate plan is in force. However, the insurance plan does not apply to workers who are,

.     .     .     .     .

   (2)  Subsection 11 (2) of the Act is amended by striking out "Subject to sections 12 and 12.2" at the beginning and substituting "Subject to section 12".

   4.  Sections 12 to 12.3 of the Act are repealed and the following substituted:

Optional insurance

   12.  (1)  Upon application, the Board may declare that any of the following persons is deemed to be a worker to whom the insurance plan applies:

    1.  An independent operator carrying on business in an industry included in Schedule 1 or Schedule 2.

    2.  A sole proprietor carrying on business in an industry included in Schedule 1 or Schedule 2.

    3.  A partner in a partnership carrying on business in an industry in Schedule 1 or Schedule 2.

Same, executive officer

   (2)  Upon the application of a Schedule 1 or Schedule 2 employer that is a corporation, the Board may declare that an executive officer of the corporation is deemed to be a worker to whom the insurance plan applies, but the Board may make the declaration only if the executive officer consents to the application.

Conditions

   (3)  The Board may make a declaration subject to the conditions that it considers appropriate. The declaration may provide that the person is deemed to be a worker for only the period that is specified.

Payment in advance

   (4)  The Board may require the employer to pay in advance all or part of any premiums payable in respect of the person. 

Revocation of status

   (5)  The Board may revoke a declaration that a person is a deemed worker if the employer at any time defaults in paying the required premiums in respect of the person.

Set-off

   (6)  If the employer defaults in paying the required premiums in respect of the person and the person or his or her survivors are entitled to receive payments under the insurance plan, the Board may deduct from the payments to the person or survivors the amount owed by the employer.

Employer

   (7)  For the purposes of the insurance plan, while a declaration with respect to a person is in force, the following person shall be deemed to be his or her employer:

    1.  In the case of an independent operator or a sole proprietor, the employer is the independent operator or the sole proprietor.

    2.  In the case of a partner, the employer is the partnership.

    3.  In the case of an executive officer of a corporation, the employer is the corporation.

   5.  Section 16 of the Act is amended by adding "or an alternate plan" after "the insurance plan".

   6.  Subsection 26 (2) of the Act is amended by adding "or an alternate plan" after "the insurance plan".

   7.  Section 27 of the Act is amended by adding the following subsection:

Same, alternate plan

   (1.1)  Sections 28 and 29 apply with respect to a worker who sustains an injury or a disease that entitles him or her to benefits under an alternate plan and to the survivors of a deceased worker who are entitled to benefits under an alternate plan.

   8.  Paragraphs 1 and 2 of subsection 29 (1) of the Act are amended by adding at the end "or an alternate plan" in each case.

   9.  (1)  Section 67 of the Act is amended by adding "unless the employer opts to participate in an alternate plan under subsections (3) and (4) and the alternate plan is in force" at the end.

   (2)  Section 67 of the Act is amended by adding the following subsections:

Definition

   (2)  In this section,

"Tribunal" means the Financial Services Tribunal established under the Financial Services Commission of Ontario Act, 1997.

Alternate plan

   (3)  A Schedule 1 employer or a Schedule 2 employer may opt to participate in an alternate plan if, under it, workers of the employer are entitled to benefits that are comparable to those to which they would be entitled under the insurance plan, as it exists on the day the Workplace Safety and Insurance Amendment Act (Alternate Insurance Plans), 2013 comes into force, if the employer had not opted to participate in the alternate plan.

Means of opting for alternate plan

   (4)  In order to opt to participate in an alternate plan under subsection (3), an employer shall file notice containing the prescribed particulars with the Board at the prescribed time.

Appeal

   (5)  If an employer has opted to participate in an alternate plan and the alternate plan is in force, the employer or any workers of the employer who are affected by a decision of the insurer under the alternate plan may appeal the decision to the Tribunal in accordance with the prescribed requirements, if any.

Notice of appeal

   (6)  A notice of appeal shall be in writing and shall be served on the insurer and filed with the Tribunal within 30 days after the date of the insurer's decision or within whatever other time period that is prescribed.

Hearing

   (7)  The Tribunal shall hold a hearing of an appeal.

Parties

   (8)  The parties to an appeal are the person who requests the appeal, the insurer and the other persons whom the Tribunal specifies.

Power of the Tribunal

   (9)  Upon hearing an appeal, the Tribunal may, by order, confirm, vary or rescind the decision appealed from or substitute its decision for that of the insurer.

Stay of decision

   (10)  The filing of a notice of appeal does not stay the decision of the insurer but the Tribunal may grant a stay until it disposes of the appeal.

Regulations

   (11)  The Lieutenant Governor in Council may make regulations,

  (a)  prescribing anything that is described as being prescribed under this section;

  (b)  specifying which provisions of this Act and the regulations made under it apply and do not apply to alternate plans and the circumstances in which the provisions apply or do not apply;

   (c)  providing for transitional matters to deal with an employer who opts to participate in an alternate plan;

  (d)  governing the conduct of an appeal to the Tribunal under this section and the powers and duties of the Tribunal and the parties to the appeal with respect to the appeal.

   10.  Subsection 75 (1) of the Act is amended by adding "except if the employer has opted to participate in an alternate plan under section 67 and the alternate plan is in force" at the end.

   11.  Sections 141, 141.1 and 141.2 of the Act are repealed and the following substituted:

Contractors and subcontractors

   141.  (1)  This section applies when a person retains a contractor or subcontractor to execute work in an industry included in Schedule 1 or Schedule 2.

Deemed employer

   (2)  The person shall be deemed to be the employer of workers employed by the contractor or subcontractor to execute the work and is liable to pay the premiums payable by the contractor or subcontractor in respect of their workers as if the person were the contractor or subcontractor unless,

  (a)  the contractor or subcontractor, as the case may be, is a Schedule 1 or Schedule 2 employer in respect of the work; and

  (b)  the Board decides that the responsibility of the contractor or subcontractor is sufficient protection to the workers for the benefits provided under the insurance plan.

Right to reimbursement

   (3)  Subject to subsection (4), the person is entitled to be reimbursed by the contractor or subcontractor, as the case may be, for amounts paid under the insurance plan in respect of workers employed by the contractor or subcontractor.

Same

   (4)  The Board shall determine the extent of the contractor's or subcontractor's liability under subsection (3).

Right of set-off

   (5)  The person may deduct from money payable to the contractor or subcontractor, as the case may be, the amount for which the contractor or subcontractor is liable under subsection (3).

Obligation to pay

   (6)  If the person is not deemed to be the employer, the person shall ensure that the contractor or subcontractor complies with his, her or its obligations to make payments under the insurance plan. The person is liable to the extent that the contractor or subcontractor does not meet those obligations.

Right of indemnity

   (7)  The person is entitled to be indemnified by the contractor or subcontractor, as the case may be, for payments the person makes under subsection (6).

Same

   (8)  The Board shall determine all issues relating to subsections (6) and (7).

Liability to contribute

   (9)  Nothing in this section prevents the Board from requiring the contractor or subcontractor to pay premiums or reimburse the Board in respect of workers who have a deemed employer under this section.

   12.  Subsection 148 (1) of the Act is amended by striking out "subsections 12 (8) and (9), subsection 12.2 (3) and sections 76, 137, 139 and 146" and substituting "subsections 12 (4) and (5) and sections 76, 137, 139 and 146".

   13.  Subsections 149 (4.1), (4.2) and (4.3) of the Act are repealed.

   14.  Sections 151.1 and 151.2 of the Act are repealed.

   15.  Sections 182.1 and 182.2 of the Act are repealed.

   16.  Subsections 183 (1.1), (1.2) and (1.3) of the Act are repealed and the following substituted:

Same, transitional matters

   (1.1)  The Lieutenant Governor in Council may make regulations providing for any transitional matters that arise out of the implementation of subsections 1 (2), (3) and (4) and 3 (2) and sections 4, 11, 12, 13, 14, 15 and 16 of the Workplace Safety and Insurance Amendment Act (Alternate Insurance Plans), 2013.

Commencement

   17.  This Act comes into force on the day it receives Royal Assent.

Short title

   18.  The short title of this Act is the Workplace Safety and Insurance Amendment Act (Alternate Insurance Plans), 2013.

 

EXPLANATORY NOTE

The Bill amends the Workplace Safety and Insurance Act, 1997 to allow an employer, at any time, to opt to participate in an insurance plan that is offered by a private sector insurer, instead of the insurance plan established under the Act, if the alternate plan offers benefits to the employer's workers that are comparable to those offered by the insurance plan as it exists under the Act as of the date that the amendments to the Act come into force. To exercise the option, an employer is required to file a notice with the Workplace Safety and Insurance Board containing the particulars specified in the regulations made under the Act. If an alternate plan is in force, the employer or any workers of the employer who are affected by a decision of the insurer under the alternate plan may appeal the decision to the Financial Services Tribunal.

The Bill also repeals amendments to the Act made by the Workplace Safety and Insurance Amendment Act, 2008 which came into force on January 1, 2013. Those amendments made insurance coverage mandatory in the construction industry for independent operators, sole proprietors, partners in partnerships and executive officers of corporations. As a result, insurance coverage for those categories of persons in the construction industry reverts to being optional.