Author: Jesse Dunning, KSW Lawyers ([email protected])

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During the Covid-2019 pandemic, there has been a significant increase in home renovation and remodelling by homeowners.  While this has presented some homeowners with an opportunity to beautify and improve their homes, and while it has provided businesses with much-needed work during the pandemic, it also unfortunately presents some potential pitfalls which can trip up the unwary homeowner employer.  These potential pitfalls exist not only when a homeowner retains someone to work on a renovation, but also when they hire anyone to do work around the home, from nannies, to cleaners, to landscapers.

Under the Workers Compensation Act, RSBC 2019, c 1 (the “Act”), WorkSafeBC is empowered to promote the prevention of workplace injury, illness and disease, rehabilitate and compensate injured workers.  To that end, all eligible employers are required to register with WorkSafeBC.  What many homeowners don’t realize, is that under the Act, they can be found to be the employer of an individual working on their property, which can expose them to potentially significant financial penalties if a worker is injured while working on their property.

Oops! You are Actually an Employer!

Whether a homeowner is an employer who must register with WorkSafeBC is not decided by the homeowner and the party they have retained to work on their home, but is solely determined by WorkSafeBC.  Even in cases where both the homeowner and the worker honestly believe there to be no employment relationship, it is possible for WorkSafeBC to determine that the true relationship is one of employer and employee.

WorkSafeBC applies a few basic rules when determining if registration as an employer is required:

• If you hire someone to provide before or after school care, and they work 15 or more hours per week, WorkSafeBC coverage is required;
• If you hire someone to provide ongoing home services, such as a gardener or nanny, and they work 8 hours or more per week, WorkSafeBC coverage is required;
• If you hire one or more individuals to work on a one-time project, such as a renovation, and they work a combined total of 24 hours or more, WorkSafeBC coverage is required.

Please note that even if you are not required to register, it is still possible to purchase voluntary coverage in circumstances where the individuals you have hired do not meet the hour requirements.

Hiring an Independent Business

Not everyone a homeowner hires is necessarily an employee, even if they do more than the set number of hours of work.  A homeowner is not an employer according to WorkSafeBC if they hire an independent business, but it can be difficult for homeowners to make this determination.  Some of the key indicia for an independent business are that:

• The business is incorporated;
• The individual providing the service has multiple clients; and/or
• The individual providing the service supplies all the labour and materials for a fixed price.

Even when homeowners have retained an independent business, it is important that they do their due diligence to ensure that the contractor is in good standing with WorkSafeBC.  Homeowners who fail to do so can become jointly liable with the business for unpaid WorkSafeBC insurance premiums.  You can confirm a contractor’s status by getting a clearance letter from WorkSafeBC.

In summary, it is important that homeowners take steps to determine whether the party or parties they have retained are employees who must be registered, or an independent business.  If you are unsure, it is important that you contact WorkSafeBC or a qualified legal professional who can advise you on the matter.  Failing to do so can open you up to unexpected penalties.

Penalties for Failing to Register with WorkSafeBC

The penalties for inadvertently failing to register with WorkSafeBC as an employer can be much larger than most homeowners would expect.  In addition to potentially being required to pay premiums, there is a significant exposure under s. 263(2) of the Act, which reads as follows:

(2)Subject to subsection (4), the employer must, in addition to any penalty or other liability to which the employer may be subject, pay the Board the full amount or capitalized value, as determined by the Board, of the compensation payable in respect of an injury or occupational disease to a worker in the employer's employ that happens during the period of the default referred to in subsection (1).

In brief, under s. 263(2), if someone working in your home is injured while on the job, and they are determined to be an employee, and if you lack WorkSafeBC coverage, you can be required to pay all of the costs incurred by WorkSafeBC as a result of the injured worker.  In the case of major injuries, this can be extremely expensive.  In WorkSafeBC Review Decision R0076657, July 19, 2007, a carpenter was injured while working on a home renovation.  WorkSafeBC had incurred costs of over $54,000 at the time the decision was issued, costs which were still rising.

Relief from Penalties

Fortunately for homeowners who have been found liable under s. 263(2), they are not necessarily forced to pay, as WorkSafeBC has discretion under s. 263(4) to relieve an employer of an ‘excusable default’:

(4)If satisfied that the default was excusable, the Board may in a specific case relieve the employer in whole or in part from liability under this section.

In Decision R0076657, for example, WorkSafeBC exercised its discretion under the predecessor to s. 263(4), the largely similar s. 47(3) under the old Workers Compensation Act, RSBC 1996, c 492,, and relieved the homeowner of 90% of the penalty cost.  Such an exercise of discretion is by no means guaranteed; in Review Decisions 16905 and 16906, September 13, 2004, for example, WorkSafeBC refused to provide any relief, and charged the full amount to the homeowner for the costs incurred on behalf of an injured worker.

Accordingly, it is important to remember that relief is by no means guaranteed, and even if granted, the extent of the relief is within the hands of WorkSafeBC and the Workers Compensation Appeal Tribunal.  Their decision to grant or withhold relief will be guided by a number of considerations, including the following, as set out in item AP5-263-1 of the WorkSafeBC Assessment Manual:

• there has been a Board error;
• the employer contacted the Board prior to the injury with a view to registration, and the employer supplied the information required to proceed with registration within 30 days of the original contact;
• the employer is already registered as a different legal entity;
• the employer is a labour contractor who would be considered a worker if not registered;
• the costs associated with the claim are less than the minimum set by the Board;
• there is sufficient evidence that the employer mailed a registration form prior to the date of injury; or
• any other circumstances which the Board considers are consistent with the Act and the purpose of this charge.

If WorkSafeBC has made a determination and requested payment from a homeowner under s. 263, it is imperative they seek legal advice promptly, as there are deadlines limiting the time to seek a review or to bring an appeal against the decision.

Takeaways

• Homeowners should take care to determine whether they are required to register as an employer, paying particular attention to the hours worked by individuals in their home, and the nature of the service provided;
• Where homeowners have retained an independent business, they should always seek a clearance letter from WorkSafeBC to avoid potential exposure to premium payments;
• Homeowners should always consider seeking legal advice and/or contacting WorkSafeBC when retaining someone to work on their property;
• Homeowners should be aware that a failure to register exposes them to potentially serious financial penalties; and
• If homeowners have been found to be an employer, and had a penalty levied against them, they should seek immediate legal advice.

Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter, please contact Jesse Dunning at [email protected].

Jesse Dunning is an experienced employment and labour lawyer in Abbotsford and part of the Employment & Labour Group at KSW Lawyers (Kane Shannon Weiler LLP). Jesse assists both individuals and local businesses with workplace issues. His expertise covers all facets of the workplace as well as general civil litigation, estate disputes and personal injury.

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