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Workplace Safety and Insurance Act, 1997

S.O. 1997, CHAPTER 16
Schedule A

Consolidation Period: From July 1, 2007 to the e-Laws currency date.

Last amendment: 2007, c. 7, Sched. 41.

SKIP TABLE OF CONTENTS

CONTENTS

PART I
INTERPRETATION

Purpose

1.  The purpose of this Act is to accomplish the following in a financially responsible and accountable manner:

1. To promote health and safety in workplaces and to prevent and reduce the occurrence of workplace injuries and occupational diseases.

2. To facilitate the return to work and recovery of workers who sustain personal injury arising out of and in the course of employment or who suffer from an occupational disease.

3. To facilitate the re-entry into the labour market of workers and spouses of deceased workers.

4. To provide compensation and other benefits to workers and to the survivors of deceased workers. 1997, c. 16, Sched. A, s. 1; 1999, c. 6, s. 67 (1); 2005, c. 5, s. 73 (1).

Definitions

2.  (1)  In this Act,

“accident” includes,

(a) a wilful and intentional act, not being the act of the worker,

(b) a chance event occasioned by a physical or natural cause, and

(c) disablement arising out of and in the course of employment; (“accident”)

“Appeals Tribunal” means the Workplace Safety and Insurance Appeals Tribunal; (“Tribunal d’appel”)

“attorney” means a person authorized under a power of attorney for property given under the Substitute Decisions Act, 1992; (“procureur”)

“Board” means the Workplace Safety and Insurance Board; (“Commission”)

“child” means a child within the meaning of subsection 1 (1) of the Family Law Act; (“enfant”)

“dependants” means such of the following persons as were wholly or partly dependent upon the worker’s earnings at the time of his or her death or who, but for the incapacity due to the accident, would have been so dependent:

1. Parent, stepparent or person who stood in the role of parent to the worker.

2. Sibling or half-sibling.

3. Grandparent.

4. Grandchild; (“personnes à charge”)

“earnings” or “wages” include any remuneration capable of being estimated in terms of money but does not include contributions made under section 25 for employment benefits; (“gains” ou “salaire”)

“emergency worker” means a person described in paragraph 6, 7 or 8 of the definition of worker who is injured while engaged in the activity described in that paragraph; (“travailleur dans une situation d’urgence”)

“employer” means every person having in his, her or its service under a contract of service or apprenticeship another person engaged in work in or about an industry and includes,

(a) a trustee, receiver, liquidator, executor or administrator who carries on an industry,

(b) a person who authorizes or permits a learner to be in or about an industry for the purpose of undergoing training or probationary work, or

(c) a deemed employer; (“employeur”)

“guardian”, except in subsections 30 (7) and 60 (4), means a guardian of property appointed under the Substitute Decisions Act, 1992 or a statutory guardian of property designated by or appointed under that Act; (“tuteur”)

“health care practitioner” means a health professional, a drugless practitioner regulated under the Drugless Practitioners Act or a social worker; (“praticien de la santé”)

“health professional” means a member of the College of a health profession as defined in the Regulated Health Professions Act, 1991; (“professionnel de la santé”)

“impairment” means a physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss; (“déficience”)

“independent operator” means a person who carries on an industry included in Schedule 1 or Schedule 2 and who does not employ any workers for that purpose; (“exploitant indépendant”)

“industry” includes an establishment, undertaking, trade, business or service and, if domestics are employed, includes a household; (“secteur d’activité”)

“insurance fund” means the fund described in section 96; (“caisse d’assurance”)

“insurance plan” means the benefits and obligations set out in Parts III to IX; (“régime d’assurance”)

“learner” means a person who, although not under a contract of service or apprenticeship, becomes subject to the hazards of an industry for the purpose of undergoing training or probationary work; (“stagiaire”)

“Minister” means the Minister of Labour; (“ministre”)

“occupational disease” includes,

(a) a disease resulting from exposure to a substance relating to a particular process, trade or occupation in an industry,

(b) a disease peculiar to or characteristic of a particular industrial process, trade or occupation,

(c) a medical condition that in the opinion of the Board requires a worker to be removed either temporarily or permanently from exposure to a substance because the condition may be a precursor to an occupational disease,

(d) a disease mentioned in Schedule 3 or 4, or

(e) a disease prescribed under clause 15.1 (8) (d); (“maladie professionnelle”)

“permanent impairment” means impairment that continues to exist after the worker reaches maximum medical recovery; (“déficience permanente”)

“personal representative” means a personal representative as defined in subsection 1 (1) of the Succession Law Reform Act; (“représentant successoral”)

“prescribed” means prescribed by the regulations made under this Act; (“prescrit”)

“Schedule 1 employer” means an employer in a class or group of industries included in Schedule 1 but does not include an employer who is a Schedule 2 employer (other than a Schedule 2 employer declared by the Board under section 74 to be deemed to be a Schedule 1 employer); (“employeur mentionné à l’annexe 1”)

“Schedule 2 employer” means an employer in a class of industries included in Schedule 2; (“employeur mentionné à l’annexe 2”)

“silicosis” means a fibrotic condition of the lungs caused by the inhalation of silica dust that is sufficient to produce a lessened capacity for work; (“silicose”)

“spouse” means a person,

(a) to whom the person is married, or

(b) with whom the person is living in a conjugal relationship outside marriage, if the two persons,

(i) have cohabited for at least one year,

(ii) are together the parents of a child, or

(iii) have together entered into a cohabitation agreement under section 53 of the Family Law Act; (“conjoint”)

“student” means a person who is pursuing formal education as a full-time or part-time student and is employed by an employer for the purposes of the employer’s industry, although not as a learner or an apprentice; (“étudiant”)

“survivor” means a spouse, child or dependant of a deceased worker; (“survivant”)

“worker” means a person who has entered into or is employed under a contract of service or apprenticeship and includes the following:

1. A learner.

2. A student.

3. An auxiliary member of a police force.

4. A member of a volunteer ambulance brigade.

5. A member of a municipal volunteer fire brigade whose membership has been approved by the chief of the fire department or by a person authorized to do so by the entity responsible for the brigade.

6. A person summoned to assist in controlling or extinguishing a fire by an authority empowered to do so.

7. A person who assists in a search and rescue operation at the request of and under the direction of a member of the Ontario Provincial Police.

8. A person who assists in connection with an emergency that has been declared by the Lieutenant Governor in Council or the Premier under section 7.0.1 of the Emergency Management and Civil Protection Act or by the head of council of a municipality under section 4 of that Act.

9. A person deemed to be a worker of an employer by a direction or order of the Board.

10. A person deemed to be a worker under section 12.

11. A pupil deemed to be a worker under the Education Act. (“travailleur”) 1997, c. 16, Sched. A, s. 2 (1); 1999, c. 6, s. 67 (2-4); 2002, c. 18, Sched. J, s. 5 (1); 2005, c. 5, s. 73 (2-4); 2006, c. 13, s. 4 (1); 2007, c. 3, s. 1.

Schedules

(2)  A reference in this Act to Schedule 1, 2, 3 or 4 means the schedules as established in the regulations made under this Act. 1997, c. 16, Sched. A, s. 2 (2).

Human Rights Code

2.1  (1)  A provision of this Act or the regulations under it, or a decision or policy made under this Act or the regulations under it, that requires or authorizes a distinction because of age applies despite sections 1 and 5 of the Human Rights Code. 2005, c. 29, s. 7.

Same

(2)  Subsection (1) applies with necessary modifications to any predecessor to this Act or the regulations under it, or any decision or policy made under such an Act or regulation. 2005, c. 29, s. 7.

Same

(3)  Subsections (1) and (2) apply even if the facts in respect of which the requirement or distinction is made occurred before the day on which this section comes into force. 2005, c. 29, s. 7.

PART II
INJURY AND DISEASE PREVENTION

Application

3.  This Part applies with respect to workplaces governed by the Occupational Health and Safety Act and the employers and workers to whom that Act applies and to employers engaged in any class of farm-related activity in Schedule 1 and their workers. 1997, c. 16, Sched. A, s. 3.

Functions of the Board

4.  (1)  In order to promote health and safety in workplaces and to prevent and reduce the occurrence of workplace injuries and occupational diseases, the Board’s functions include the following:

1. To promote public awareness of occupational health and safety.

2. To educate employers, workers and other persons about occupational health and safety.

3. To foster a commitment to occupational health and safety among employers, workers and others.

4. To develop standards for the certification of persons who are required to be certified for the purposes of the Occupational Health and Safety Act and to approve training programs for certification.

5. To certify persons who meet the standards.

6. To develop standards for the accreditation of employers who adopt health and safety policies and operate successful health and safety programs.

7. To accredit employers who meet the standards.

8. To designate safe workplace associations, to designate medical clinics and training centres specializing in occupational health and safety matters and to oversee their operation and make grants or provide funds to them.

9. To provide funding for occupational health and safety research.

10. To develop standards for training about first aid and to provide funding to those offering such training.

11. To advise the Minister on matters relating to occupational health and safety that are referred to the Board or brought to its attention.

Payments to construction workers

(2)  The Board shall pay persons who are regularly employed in the construction industry for the time they spend fulfilling the requirements to become certified for the purposes of the Occupational Health and Safety Act.  However, the Board shall not pay persons who may represent management as members of a joint health and safety committee. 1997, c. 16, Sched. A, s. 4.

Advisory council

5.  (1)  The Board may establish a workplace health and safety advisory council to advise the Board on such issues as it considers appropriate.

Composition

(2)  The council shall be composed of such members as the Board may appoint. 1997, c. 16, Sched. A, s. 5.

Safe workplace associations, etc.

6.  (1)  The Board may designate an entity as a safe workplace association or as a medical clinic or training centre specializing in occupational health and safety matters if the entity meets the standards established by the Board.

Standards

(2)  The Board shall establish standards respecting governance, objectives, functions and operations to be met by an entity before it is eligible to be designated.  The Board may establish standards respecting other matters and may establish different standards for associations, clinics or centres serving different industries or groups.

Charges to employers

(3)  Any funds paid to a safe workplace association under section 7 shall be charged against the class, subclass or group represented by the association and shall be charged as expenses of the Board to any Schedule 2 employer represented by the association.

Same

(4)  Any funds paid to a medical clinic or training centre under section 7 shall be charged as expenses of the Board. 1997, c. 16, Sched. A, s. 6.

Designated entities

7.  (1)  This section applies with respect to an entity designated under section 6 as a safe workplace association, a medical clinic or a training centre.

Effect of designation

(2)  An entity is eligible for financial assistance from the Board and shall operate in accordance with this section and the standards established by the Board.

Monitoring

(3)  The Board shall monitor the operation of entities and may conduct such audits as it considers necessary.

Directions

(4)  The Board may direct an entity to take such actions as the Board considers appropriate.  The governing body of the entity shall comply with the direction.

Failure to comply

(5)  If an entity does not operate in accordance with this section and the standards established by the Board,

(a) the Board may reduce or suspend its financial assistance while the non-compliance continues;

(b) the Board may assume control of the entity and responsibility for its affairs and operations;

(c) the Board may revoke the designation and cease to provide financial assistance to it; or

(d) the Board may take such other steps as it considers appropriate. 1997, c. 16, Sched. A, s. 7.

Appointment of administrator

8.  (1)  For the purposes of assuming control of an entity and responsibility for its affairs and operations pursuant to clause 7 (5) (b), the Board may appoint an administrator.

Term of appointment

(2)  The appointment of the administrator remains valid until it is terminated by the Board.

Notice

(3)  The Board shall provide 30 days written notice to the board of directors of the entity before appointing the administrator, but if there are not enough members of the board of directors to form a quorum, the Board may appoint an administrator without notice.

Powers and duties of administrator

(4)  The administrator has the exclusive right to exercise all the powers and perform the duties of the board of directors and its officers and exercise the powers of its members.

Same

(5)  The Board may specify the powers and duties of the administrator in the appointment and the terms and conditions governing those powers and duties.

Additional power of administrator

(6)  The board of directors and officers may continue to act to the extent authorized by the Board in the notice, but any such act is valid only if approved, in writing, by the administrator.

Report, directions

(7)  The administrator shall report to the Board as required by it and shall carry out its directions.

Meeting of members

(8)  Before the termination of an administrator’s appointment, the administrator may call a meeting of the members to elect a board of directors in accordance with the Corporations Act.

Unincorporated entity

(9)  This section applies with necessary modification to an entity that is not incorporated. 1997, c. 16, Sched. A, s. 8.

Fees

9.  The Board may charge fees for programs or services provided by the Board under this Part. 1997, c. 16, Sched. A, s. 9.

First aid requirements

10.  (1)  The Board may require employers in such industries as it considers appropriate to have such first aid appliances and services as may be prescribed.

Repeal

(2)  This section is repealed on a day to be named by proclamation of the Lieutenant Governor. 1997, c. 16, Sched. A, s. 10.

PART III
INSURANCE PLAN

Insured Employment, Injuries and Diseases

Insured workers

11.  (1)  The insurance plan applies to every worker who is employed by a Schedule 1 employer or a Schedule 2 employer.  However, it does not apply to workers who are,

(a) persons whose employment by an employer is of a casual nature and who are employed otherwise than for the purposes of the employer’s industry; or

(b) persons to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, repaired or adapted for sale in the person’s own home or on other premises not under the control or management of the person who gave out the articles or materials.

Exception

(2)  Subject to section 12, the insurance plan does not apply to workers who are executive officers of a corporation. 1997, c. 16, Sched. A, s. 11.

Deemed workers (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 who 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.  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 such conditions as it considers appropriate.  The declaration may provide that the person is deemed to be a worker for only such period as 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. 1997, c. 16, Sched. A, s. 12.

Insured injuries

13.  (1)  A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan.

Presumptions

(2)  If the accident arises out of the worker’s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown.  If it occurs in the course of the worker’s employment, it is presumed to have arisen out of the employment unless the contrary is shown.

Exception, employment outside Ontario

(3)  Except as provided in sections 18 to 20, the worker is not entitled to benefits under the insurance plan if the accident occurs while the worker is employed outside of Ontario.

Exception, mental stress

(4)  Except as provided in subsection (5), a worker is not entitled to benefits under the insurance plan for mental stress.

Same

(5)  A worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment.  However, the worker is not entitled to benefits for mental stress caused by his or her employer’s decisions or actions relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment. 1997, c. 16, Sched. A, s. 13.

Note: Section 14 comes into force on a day to be named by proclamation of the Lieutenant Governor.

Restriction re chronic pain

14.  (1)  A worker is entitled to benefits under the insurance plan for chronic pain as defined in the regulations but only in such circumstances as may be prescribed.

Extent of entitlement

(2)  The benefits to which the worker is entitled for chronic pain are subject to such limits and exclusions as may be prescribed. 1997, c. 16, Sched. A, s. 14.

See: 1997, c. 16, Sched. A, s. 184 (2).

Occupational diseases

15.  (1)  This section applies if a worker suffers from and is impaired by an occupational disease that occurs due to the nature of one or more employments in which the worker was engaged.

Entitlement to benefits

(2)  The worker is entitled to benefits under the insurance plan as if the disease were a personal injury by accident and as if the impairment were the happening of the accident.

Presumption re causation

(3)  If, before the date of the impairment, the worker was employed in a process set out in Schedule 3 and if he or she contracts the disease specified in the Schedule, the disease is presumed to have occurred due to the nature of the worker’s employment unless the contrary is shown.

Causation of disease

(4)  If, before the date of the impairment, the worker was employed in a process set out in Schedule 4 and if he or she contracts the disease specified in the Schedule, the disease shall be deemed to have occurred due to the nature of the worker’s employment.

Restriction, silicosis

(5)  A worker and his or her survivors are not entitled to benefits under the insurance plan for impairment from silicosis unless the worker has been actually exposed to silica dust for at least two years in his or her employment in Ontario prior to becoming impaired.

Restriction, pneumoconiosis, etc.

(6)  Subsection (5) applies, with necessary modifications, with respect to impairment from pneumoconiosis and stone worker’s or grinder’s phthisis.

Other occupational diseases

(7)  This section does not affect the right of a worker to benefits under the insurance plan in respect of an occupational disease to which this section does not apply if the disease is the result of an injury for which the worker is entitled to benefits under the insurance plan. 1997, c. 16, Sched. A, s. 15.

Presumptions re: firefighters, etc.

Heart injury

15.1  (1)  If a worker is prescribed under clause (8) (a) and sustains an injury to the heart in circumstances prescribed under clause (8) (c), the injury is presumed to be a personal injury arising out of and in the course of the worker’s employment as a firefighter or fire investigator, unless the contrary is shown. 2007, c. 3, s. 2.

Time of injury

(2)  The presumption in subsection (1) applies only to injuries sustained on or after January 1, 1960. 2007, c. 3, s. 2.

Injuries sustained before 1998

(3)  Where the presumption in subsection (1) applies in relation to an injury to the heart sustained by a worker before January 1, 1998, the rights of the worker or his or her survivor shall, subject to the presumption, be determined in accordance with Part IX. 2007, c. 3, s. 2.

Occupational disease

(4)  If a worker is prescribed under clause (8) (a) and suffers from and is impaired by a disease prescribed under clause (8) (d), the disease is presumed to be an occupational disease that occurs due to nature of the worker’s employment as a firefighter or fire investigator, unless the contrary is shown. 2007, c. 3, s. 2.

Time of diagnosis

(5)  The presumption in subsection (4) applies only to diseases diagnosed on or after January 1, 1960. 2007, c. 3, s. 2.

Diseases diagnosed before 1998

(6)  Where the presumption in subsection (4) applies in relation to a disease of a worker that is diagnosed before January 1, 1998, the rights of the worker or his or her survivor shall, subject to the presumption, be determined in accordance with Part IX. 2007, c. 3, s. 2.

Conditions and restrictions

(7)  The presumptions in subsections (1) and (4) are subject to any conditions and restrictions prescribed under clause (8) (e). 2007, c. 3, s. 2.

Regulations

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

(a) prescribing firefighters, fire investigators, or classes of firefighters or fire investigators, as workers to whom subsection (1) or (4) applies;

(b) defining “firefighter” and “fire investigator”;

(c) prescribing circumstances in which an injury to the heart is sustained for the purposes of subsection (1);

(d) prescribing diseases for the purposes of subsection (4);

(e) prescribing conditions and restrictions relating to the presumptions established by subsections (1) and (4), including, but not limited to, conditions and restrictions related to nature of employment, length of employment, time during which the worker was employed or age of the worker;

(f) providing that section 15.2, in whole or in part, does not apply in circumstances specified in the regulation;

(g) if a regulation is made under clause (f), providing for alternative rules to govern claims to which section 15.2, in whole or in part, would have applied;

(h) providing for such transitional matters as the Lieutenant Governor in Council considers necessary or advisable in relation to this section, the regulations under this section and section 15.2. 2007, c. 3, s. 2.

Same

(9)  A regulation made under clause (8) (b) may define firefighter to include,

(a) volunteer firefighters; and

(b) workers who are not included in the definition of “firefighter” in the Fire Protection and Prevention Act, 1997. 2007, c. 3, s. 2.

Same

(10)  A regulation made under this section may be general or particular in its application. 2007, c. 3, s. 2.

Claims based on presumptions

15.2  (1)  This section applies where a regulation under section 15.1 is made or amended and, as a result, a presumption established under section 15.1 applies to an injury sustained by a worker or to a disease with which a worker is diagnosed. 2007, c. 3, s. 2.

New claims

(2)  If the worker or his or her survivor never filed a claim in respect of the injury or disease, the worker or his or her survivor may file a claim with the Board, and the Board shall decide the claim in accordance with section 15.1 and the regulations under it, as that section and those regulations read at the time the Board makes its decision. 2007, c. 3, s. 2.

Refiled claims

(3)  Subject to subsection (4), if the worker or his or her survivor filed a claim in respect of the injury or disease and the claim was denied by the Board or by the Appeals Tribunal, the worker or his or her survivor may refile the claim with the Board, and the Board shall decide the claim in accordance with section 15.1 and the regulations under it, as that section and those regulations read at the time the Board makes its decision. 2007, c. 3, s. 2.

Time limits

(4)  The time limits in subsections 22 (1) and (2) do not apply in respect of a claim that is refiled under subsection (3). 2007, c. 3, s. 2.

Pending appeal

(5)  If a claim is pending before the Appeals Tribunal, the Appeals Tribunal shall refer the claim back to the Board, and the Board shall decide the claim in accordance with section 15.1 and the regulations under it, as that section and those regulations read at the time the Board makes its decision. 2007, c. 3, s. 2.

Pending claim

(6)  If a claim is pending before the Board, the Board shall decide the claim in accordance with section 15.1 and the regulations under it, as that section and those regulations read at the time the Board makes its decision. 2007, c. 3, s. 2.

No waiver of entitlement

16.  An agreement between a worker and his or her employer to waive or to forego any benefit to which the worker or his or her survivors are or may become entitled under the insurance plan is void. 1997, c. 16, Sched. A, s. 16.

Serious and wilful misconduct

17.  If an injury is attributable solely to the serious and wilful misconduct of the worker, no benefits shall be provided under the insurance plan unless the injury results in the worker’s death or serious impairment. 1997, c. 16, Sched. A, s. 17.

Employment outside Ontario

18.  (1)  This section applies if the accident happens while the worker is employed outside of Ontario, if the worker resides and is usually employed in Ontario and if the employer’s place of business is in Ontario.

Outside Ontario less than six months

(2)  The worker is entitled to benefits under the insurance plan if the employment outside of Ontario has lasted less than six months.

Same, six months or more

(3)  Upon the application of the employer, the Board may declare that the insurance plan applies to a worker whose employment outside of Ontario lasts or is likely to last six months or more. 1997, c. 16, Sched. A, s. 18.

Accident outside Ontario

19.  (1)  A worker who resides outside of Ontario is entitled to benefits under the insurance plan if his or her employer’s place of business is in Ontario, the worker’s usual place of employment is in Ontario and the accident happens while the worker is employed outside of Ontario for a temporary purpose connected with the worker’s employment.

Same, non-Ontario employer

(2)  If the accident happens outside of Ontario, the employer’s place of business is outside of Ontario and the worker is entitled to compensation under the law of the place where the accident happens, the worker is entitled to benefits under the insurance plan only if the worker’s place of employment is in Ontario and the accident happens while the worker is employed outside of Ontario for a casual or incidental purpose connected with the worker’s employment.

Same, on a vessel

(3)  If the accident happens outside of Ontario on a vessel, the worker is entitled to benefits under the insurance plan if the worker resides in Ontario and,

(a) if the vessel is registered in Canada; or

(b) if the chief place of business of its owner or of the person who offers it for charter is in Ontario.

Same, certain vehicles, etc.

(4)  If the accident happens outside of Ontario on a train, an aircraft or a vessel or on a vehicle used to transport passengers or goods, the worker is entitled to benefits under the insurance plan if he or she resides in Ontario and is required to perform his or her employment both in and outside of Ontario. 1997, c. 16, Sched. A, s. 19.

Obligation to elect, concurrent entitlement outside Ontario

20.  (1)  This section applies if a worker is entitled to benefits under the insurance plan relating to an accident and is also entitled to compensation under the laws of another jurisdiction in respect of the accident regardless of where the accident occurs.  This section also applies with necessary modifications if the worker’s survivors are so entitled.

Same

(2)  The worker shall elect whether to receive benefits under the insurance plan or to receive compensation under the laws of the other jurisdiction and shall notify the Board of the option elected.  If the worker is employed by a Schedule 2 employer, the worker shall also notify the employer.

Deadline for electing

(3)  The election must be made within three months after the accident occurs or, if the accident results in death, within three months after the date of death.  However, the Board may permit the election to be made within a longer period.

Failure to elect

(4)  If an election is not made or if notice of the election is not given, the worker is presumed to have elected not to receive benefits under the insurance plan unless the contrary is shown. 1997, c. 16, Sched. A, s. 20.

Notice of Accident and Claim for Benefits

Notice by employer of accident

21.  (1)  An employer shall notify the Board within three days after learning of an accident to a worker employed by him, her or it if the accident necessitates health care or results in the worker not being able to earn full wages.

Same

(2)  The notice must be on a form approved by the Board and the employer shall give the Board such other information as the Board may require from time to time in connection with the accident.

Failure to comply

(3)  An employer who fails to comply with this section shall pay the prescribed amount to the Board.  This payment is in addition to any penalty imposed by a court for an offence under subsection 152 (3).

Copy to worker

(4)  The employer shall give a copy of the notice to the worker at the time the notice is given to the Board. 1997, c. 16, Sched. A, s. 21.

Claim for benefits

Claim for benefits, worker

22.  (1)  A worker shall file a claim as soon as possible after the accident that gives rise to the claim, but in no case shall he or she file a claim more than six months after the accident or, in the case of an occupational disease, after the worker learns that he or she suffers from the disease.

Same, survivor

(2)  A survivor who is entitled to benefits as a result of the death of a worker shall file a claim as soon as possible after the worker’s death, but in no case shall he or she file a claim more than six months after the worker’s death.

Extension of time

(3)  The Board may permit a claim to be filed after the six-month period expires if, in the opinion of the Board, it is just to do so.

Form and contents

(4)  A claim must be on a form approved by the Board and must be accompanied by such information and documents as the Board may require.

Consent re functional abilities

(5)  When filing a claim, a worker must consent to the disclosure to his or her employer of information provided by a health professional under subsection 37 (3) concerning the worker’s functional abilities.  The disclosure is for the sole purpose of facilitating the worker’s return to work.

Failure to file

(6)  If the claimant does not file the claim with the Board in accordance with this section or does not give the consent required by subsection (5), no benefits shall be provided under the insurance plan unless the Board, in its opinion, decides that it is just to do so.

Notice to employer

(7)  The claimant shall give a copy of his or her claim to the worker’s employer at the time the claim is given to the Board.

Same, occupational disease

(8)  A copy of the claim for an occupational disease must be given to the employer who has most recently employed the worker in the employment to the nature of which the disease is due. 1997, c. 16, Sched. A, s. 22.

Continuing obligation to provide information

23.  (1)  A person receiving benefits under the insurance plan or who may be entitled to do so shall give the Board such information as the Board may require from time to time in connection with the person’s claim.

Effect of non-compliance

(2)  If the person fails to comply with subsection (1), the Board may reduce or suspend payments to him or her while the non-compliance continues.

Notice of material change in circumstances

(3)  A person receiving benefits under the insurance plan or who may be entitled to do so shall notify the Board of a material change in circumstances in connection with the entitlement within 10 days after the material change occurs. 1997, c. 16, Sched. A, s. 23.

Wages and Employment Benefits

Wages for day of accident

24.  (1)  The employer shall pay a worker who is entitled to benefits under the insurance plan his or her wages and employment benefits for the day of the injury as if the accident had not occurred.

Payment by Board

(2)  If the employer fails to comply with subsection (1), the Board shall pay the wages and employment benefits to or on behalf of the worker.

Failure to comply

(3)  If the employer fails to comply with subsection (1), the employer shall pay to the Board a sum equal to the wages and employment benefits owing under that subsection.  This requirement is in addition to any other penalty imposed on the employer or liability of the employer for the failure to comply. 1997, c. 16, Sched. A, s. 24.

Employment benefits

25.  (1)  Throughout the first year after a worker is injured, the employer shall make contributions for employment benefits in respect of the worker when the worker is absent from work because of the injury.  However, the contributions are required only if,

(a) the employer was making contributions for employment benefits in respect of the worker when the injury occurred; and

(b) the worker continues to pay his or her contributions, if any, for the employment benefits while the worker is absent from work. 1997, c. 16, Sched. A, s. 25 (1).

Failure to comply

(2)  If the employer fails to comply with subsection (1),

(a) the employer is liable to the worker for any loss the worker suffers as a result of the failure to comply; and

(b) the Board may levy a penalty on the employer not exceeding the amount of one year’s contributions for employment benefits in respect of the worker. 1997, c. 16, Sched. A, s. 25 (2).

Contributions re emergency workers

(3)  The actual employer of an emergency worker shall make the contributions required by subsection (1), instead of the worker’s deemed employer.  The deemed employer shall reimburse the actual employer for the contributions. 1997, c. 16, Sched. A, s. 25 (3).

Certain volunteers

(3.1)  Subsection (3) applies with respect to a member of a municipal volunteer fire brigade or a volunteer ambulance brigade or an auxiliary member of a police force as though the person were an emergency worker. 2000, c. 26, Sched. I, s. 1 (1); 2002, c. 18, Sched. J, s. 5 (2).

Multi-employer benefit plans

(4)  Subsection (1) does not apply to an employer who participates in a multi-employer benefit plan in respect of the worker if, when the worker is absent from work because of the injury during the first year after it occurs,

(a) the plan continues to provide the worker with the benefits to which he or she would otherwise be entitled; and

(b) the plan does not require the employer to make contributions during the worker’s absence and does not require the worker to draw upon his or her benefit credits, if any, under the plan during the absence. 1997, c. 16, Sched. A, s. 25 (4).

Same

(5)  Every multi-employer benefit plan shall contain or be deemed to contain provisions that are,

(a) sufficient to enable all employers who participate in the plan to be exempted under subsection (4) from the requirement to make contributions; and

(b) sufficient to provide each worker with the benefits described in subsection (4) in the circumstances described in that subsection. 1997, c. 16, Sched. A, s. 25 (5).

Entitlement under benefit plans

(6)  For the purpose of determining a worker’s entitlement to benefits under a benefit plan, fund or arrangement, the worker shall be deemed to continue to be employed by the employer for one year after the date of the injury. 1997, c. 16, Sched. A, s. 25 (6).

Definition

(7)  In this section,

“contributions for employment benefits” means amounts paid in whole or in part by an employer on behalf of a worker or the worker’s spouse, child or dependant for health care, life insurance and pension benefits. 1997, c. 16, Sched. A, s. 25 (7); 1999, c. 6, s. 67 (5); 2005, c. 5, s. 73 (5).

Rights of Action

No action for benefits

26.