By Ryan J. Conlin and Jeremy D. Schwartz
The Workplace Safety and Insurance Board has announced that eligible Schedule 1 employers will receive a significant premium credit in April of 2022 based on what the WSIB has described as a $1.5 billion dollar surplus in the operational fund. Eligible employers will receive a rebate of approximately 30% of 2019 or 2020 premiums (whichever premium amount was higher). Schedule 2 employers (who are primarily in the public sector) are not eligible for the rebate.
Employers will receive the rebate as a credit on their WSIB account and entities that are no longer active are ineligible for rebate. The WSIB has advised that it will consider issuing rebates in the future based on future financial performance and may use different eligibility criteria going forward.
Employers must meet the following criteria to be eligible for the rebate:
- have an active account as of January 31, 2022
- had premium obligations in either 2019 or 2020
- have not been convicted of a Workplace Safety and Insurance Act or an Occupational Health and Safety Act offence in a proceeding under Part III of the Provincial Offences Act, in 2021 or in 2022 up to and including the date the WSIB issues rebates
- have not been convicted in more than one such proceeding between 2017 and 2022 up to and including the date the WSIB issues the rebate
Based on the WSIB’s criteria, it is our view that an overwhelming majority of Schedule 1 employers will be eligible for a premium refund. The convictions referenced above relate to more serious matters. Convictions for “Tickets” issued under Part 1 of the Provincial Offences Act will not result in an employer being denied a rebate.
According to publicly available data from the Ministry of Labour, Skills Development Training, there were 907 “Part 3” convictions under the OHSA in the Ministry’s fiscal year 2017-18 and 922 “Part 3” convictions in the Ministry’s 2016-17 fiscal year. Some of these convictions will likely reflect multiple convictions against the same employer and others will likely relate to individuals.
According to a report issued by the WSIB, there were 40 employers convicted under Workplace Safety and Insurance Act in 2018, 32 employers were convicted in 2019 and 6 employers were convicted in 2020. The lower 2020 number likely reflects delays in the Courts caused by COVID-19.
These statistics seem to show that it will be a relatively small number of employers denied a rebate. We anticipate that this program may be controversial given that eligibility is denied based on regulatory convictions as opposed to anything to do with employer’s claims history with the WSIB.
However, others may argue that this program reflects the reality that the WSIB operates a “no fault” insurance scheme. A worker is entitled to benefits regardless of who is “responsible” for the accident if the injury occurred in and of the course of employment. Negligence does not form part of the analysis with respect to a worker’s entitlement to benefits.
Unlike WSIB claims, “Part 3” prosecutions require the Crown to prove that the employer breached a regulatory requirement beyond a reasonable doubt. In most prosecutions, an employer will be acquitted if it can prove that it took all precautions reasonable in the circumstances to prevent the prosecution. Therefore, where it has been proven in Court that an employer has breached workplace safety or workers’ compensation laws, the employer will be denied a significant premium rebate on top of the fines they have already paid.
If this type of practice continues, it represents an additional “administrative penalty” for employers who are convicted of workplace safety offences. For many larger employers, the penalty of being denied a rebate could be higher than the fine imposed by a Court. If rebates continue to be calculated utilizing these same criteria, some employers facing charges will need to consider this issue when determining whether to proceed to trial.
For more information, please contact:
Ryan J. Conlin at [email protected] or 416-862-1687
Jeremy Schwartz at [email protected] or 416-862-7011