IMPORTANT: If your accident occurred on or after April 1, 2019 the following may or may not apply.
WorksafeBC and WCAT are the only entities that can decide if someone is a ‘worker’ under the Workers Compensation Act. ICBC may claim that you and the other driver were both workers, but their decision has no legal effect, only WorksafeBC and WCAT can make a legal determination. Likewise, even if you enter into a contract with someone and you both agree that you are not a ‘worker’, WorksafeBC and WCAT are not bound by your agreement and they can overrule it.
Factors for Independent Operators
In order to ensure consistency in their decisions, WorksafeBC issues policies that control all decisions about whether someone is a worker. Those policies are available on their website. The most common policy is AP1-1-3, which deals with independent operators. That policy lists the following factors:
- whether the services to be performed are essentially services of labour;
- the degree of control exercised over the individual doing the work by the person or entity for whom the work is done;
- whether the individual doing the work might make a profit or loss;
- whether the individual doing the work or the person or entity for whom the work is done provides the major equipment;
- if the business enterprise is subject to regulatory licensing, who is the licensee;
- whether the terms of the contract are normal or expected for a contract between independent contractors;
- who is best able to fulfill the provisions and other obligations of an employer under the Act;
- whether the individual doing the work engages continually and indefinitely for one person or works intermittently and for different persons; and
- whether the individual doing the work is able or required to hire other persons.
Many WCB policies may apply to your situation, and if they conflict, it can be difficult to determine which one governs. Those cases are usually referred to WCAT, which issues a decision. When seeking to determine what policies apply and how to resolve conflicts between policies, it can help to review WCAT decisions. However, those decisions are not binding, and so WCAT can contradict any previous decision.
Usually, if ICBC asserts that both drivers were workers, they will apply for a WCAT decision. This is called a s. 257 application (named for the section of the Act that governs these applications). A s. 257 application usually takes a few months, and it generally involves each party making submissions, and then responding to the other parties’ submissions. This is generally done by writing – oral hearings are very rare. Once all the parties have filed their submissions and responses, the tribunal will render a decision, which will be published on the WCAT website.
To succeed in a s. 257 application, ICBC must prove that all the parties to the accident were workers, and they were all in the course of employment. However, if they do so, your ICBC claim would be dismissed and you will have to proceed with a WCB claim.
Consult with Simpson ThomasBook A Consultation