[1]                                         The appellant employer (“employer”) appeals the December 8, 2014 decision of Board Appeals Resolution Officer (“ARO”) K. Azzopardi. ARO Azzopardi concluded that Mr. “P.S.” was, at the relevant time, a worker, not an independent operator of the employer. Accordingly, the ARO did not reverse the accident costs arising out of a November 20, 2013 accident in the employer’s workplace.

[2]                                         The ARO came to this conclusion based upon a review of the record, without an oral hearing.

[3]                                         The issue before me is whether Mr. P.S. was a worker or an independent operator (also described as an “independent contractor”) of the employer on November 20, 2013 when P.S. sustained an injury while performing the duties for which he was employed/engaged. If I find that P.S. was an independent operator, then the costs associated with the November 20, 2013 accident would be reversed, and not be part of the employer’s WSIB cost statement.

[4]                                         It is worth memorializing that ARO Azzopardi stated that the decision which the ARO made was “limited to whether P.S. was a worker or independent operator at the time of his accident and not his entitlement to benefits”. I too do not address entitlement issues in this decision.

[5]                                         P.S. was a longtime tool and die specialist who, with a business partner, from 1999 until 2013 ran a company called “T”. T manufactured dies, made component parts for dies, and performed related services. As of 2013, unfortunately, T was no longer a viable business. Thus, P.S. and his partner were in the process of closing it down.

[6]                                         The employer had over the years before 2013 regularly engaged the services of T. Mr. “B.G.,” a “tooling engineer” for the employer in or about 2013, was thus familiar with P.S. and his expertise. In 2013 the employer was in process of receiving a number of dies manufactured in China, which dies would once installed at the employer’s premises require calibration and adjustments. B.G. thus extended an offer to P.S. to, for a finite period of time, perform the specific service of calibration and adjustments on the new dies in order to make them function to the requisite specifications.

[7]                                         It is not certain how the topic of compensation arose, yet it appears from the evidence likely that B.G. extended an offer to P.S. of $35 hourly. As B.G. testified, this offer was greater than what an employee at the employer would receive, given that P.S. would not receive benefits but rather just the income. P.S. accepted this employment/engagement so, in or about August 2013, he began servicing the dies at the employer’s premises.

[8]                                         On November 20, 2013 P.S. unfortunately experienced a significant workplace accident. This included the necessity of an amputation of his left little finger. The Board provided WSIB benefits to P.S. until, as confirmed in the Case Manager’s June 10, 2014 letter to P.S., P.S. wanted to close his WSIB claim.

[9]                                         The employer has asserted consistently, including on its Form 7 report, that P.S. “is not one of our employees”. Indeed, it only completed the Form 7 report on January 22, 2014 as the employer then asserted that P.S was not its employee with no need to report to the Board at all. The Board concluded otherwise. The ARO confirmed that P.S. was a worker of the employer, and that he was in the course of employment on November 20, 2013 when the accident occurred. The employer appeals from this conclusion.

[10]                                      Interestingly, P.S. does not oppose the employer’s position. Rather, he supports it. His testimony was that, contrary to what he wrote in his Form 6 report and on his WSIB questionnaire, he in reality was an independent operator and not an employee when the accident occurred.

[11]                                      Since the injury occurred in 2013, the Workplace Safety and Insurance Act, 1997 (the “WSIA”) is applicable to this appeal.

[12]                                      Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #9, would apply to the subject matter of this appeal:

[13]                                      I have considered these policies as necessary in deciding the issues in this appeal. I have paid particular reference to the Board’s Operational Policy Manual (OPM) Document No. 12‑02-01, “Workers and Independent Operators”.

[14]                                      Counsel for the employer suggested and I agreed that the two witnesses should be excluded from the hearing room while opening statements were presented. Subsequently, P.S. testified first. Only after his testimony was completed did B.G. enter to provide his testimonial evidence.

[15]                                      I find relevant that neither of these witnesses are connected any longer to the employer. P.S. went on to complete his training as a gas fitter and now performs other work, engaged through an agency. B.G. continues as a tooling engineer, for another company, having left the employer in this matter in or about 2015. The two witnesses attended pursuant to summonses.

[16]                                      It is helpful to begin my discussion of the evidence with the legal premise which governs this case. Section 2(1) of the Act describes both an “independent operator” as well as a “worker”.

[17]                                      OPM Document 12-02-01 confirms that the Board has authority to determine who is a worker or independent operator under the Act. The policy outlines criteria considered by the Board when it makes that determination. That includes the Board’s reliance on the well-known “organizational test” as well as the Board’s questionnaires. OPM Document No. 12-02-01 makes clear that incorporation alone does not determine whether someone is or is not an independent operator. The policy document discusses the issues of “profit or loss” and, when determining such status, issues of how integrated or not integrated the individual is with the business of the employer.

[18]                                      Addressing the relevancy of the Board’s questionnaire, which in this case P.S. did complete subsequent to the accident, the employer contends that it is rather a blunt instrument with little room for nuance. Given that the questionnaire is meant to address a plethora of situations, I tend to agree that the answers on it are not always determinative of the outcome. Rather, consideration of the particular, individual facts which can arise in these cases is required.

[19]                                      To that end I agree with Tribunal Decision No. 2741/15. That decision stated in that regard as follows:

[20]                                      Moreover, P.S. in his testimony before me disavowed the answers he provided in the questionnaire, to the extent that these would indicate that he was an employee and not an independent operator. Counsel for the employer pointed out that there was lots of handwritten nuanced notes on P.S.’s questionnaire in any event, which made it clear that the answers were hardly “black or white”. P.S. also in his testimony disavowed the “additional information” which he wrote on his Form 6 report of injury.

[21]                                      It is, however, helpful to record what P.S. then wrote. Thus I excerpt the relevant portion of the “additional information” written by P.S. on his Form 6 report as follows:

[22]                                      This report was completed on December 2, 2013, approximately two weeks after the accident.

[23]                                      In his testimony, P.S. explained that he was in a great deal of pain at the time, and very upset that his little finger on his left hand had to be amputated. He testified that he did not know how he was going to survive financially, so he stated what he did in order to receive compensation.

[24]                                      Addressing his decision to end his participation with the WSIB and close his file, as discussed in the June 10, 2014 letter to P.S. by the Case Manager, P.S. stated that he was not happy with the support provided by the WSIB.

[25]                                      I closely questioned him on the nature of this decision, asking if there was any pressure for him to seek to close his WSIB claim. P.S. answered that there was no pressure. I also asked if he had received any inducement or payment for this, and again P.S. stated that he had not received anything of that nature. P.S.’s letter of June 2, 2014 is part of Volume II of the Case Record. It is addressed to Case Manager Brian Smith and is dated June 2, 2014. It indicates that P.S. as of that date will “drop or no longer comply in regards to [his WSIB claim].

[26]                                      There is no evidence before me that P.S.’s decision to close his WSIB claim was anything other than voluntary. Thus, for the purpose of this decision, despite it being a quite unusual event, I accept that as of June 2014 P.S. no longer wanted to continue interacting with the WSIB. Indeed he testified before me that he just wanted to put this matter behind him.

[27]                                      While I again find this course of action to be very unusual, perhaps it makes sense in the context of this matter. Yet, the other testimony of the other witnesses I found more convincing and reassuring. B.G. it must be remembered no longer has any ties to the employer in this case. B.G. I found testified in a candid fashion about the relationship, which he initiated between the employer and P.S (through P.S.’s corporate vehicle).

[28]                                      That P.S. no longer wanted to pursue his WSIB claim is of course not determinative of whether P.S. was a worker or independent contractor in 2013, when the accident occurred. Certainly, within two weeks of the accident, P.S. took the position, quite strongly, that he was a worker. In his testimony before me he takes the opposite position, equally strongly. B.G. also indicates that it was the employer’s intention to engage P.S. for a fixed purpose of calibrating and adjusting the new dies, and not for anything more than that.

[29]                                      P.S. was paid by the employer through his other company, which counsel described as a “shelf company” which P.S. seemingly dusted off and brought down from the shelf after T closed its doors. The file indeed contains invoices from P.S.’s other company “P” to the employer. The invoices from P set out the dates and hours worked, at $35 per hour, determining the invoiced amount which the employer was to pay to P.S. B.G. confirmed that P.S. would be recorded as having entered the employer’s facility through a scan, which could be used to verify the hours invoiced.

[30]                                      Both witnesses confirmed that P.S. could work the hours that he chose. P.S. testified that not to upset the other tool and die makers, he would usually start around 6 a.m. as they did. Yet, as the invoices indicate, he often worked well beyond 6 p.m., working some days as much as 10, 11, or 12 or more hours in a day. As both witnesses made clear, the goal was to get the dies in good operating condition so that they would contribute to the production needs of the employer.

[31]                                      P.S. also did not wear a uniform, as did the other employees. Rather, he wore his own clothes. He was not engaged in the typical work performed by the other tool and die makers, but was solely focused on the task of calibrating and adjusting the new dies from China in order that these would be fully operational.

[32]                                      In that regard, P.S. did not report to “M”, the lead hand with whom he explained he had conflict once B.G. left for China. P.S. stated that he reported to B.G., and not to the lead hand as did the other tool and die makers. This understanding was confirmed by B.G. when he gave evidence. Accordingly, the evidence indicates that P.S. was not integrated into the general production work of the employer. Rather, he solely worked on a special project.

[33]                                      P.S. did not work a uniform, as did the other employees. He did not report up the normal chain of leadership through the lead hand, to whom the other welders, employees of the employer, did report. Rather, P.S. reported to B.G., the individual with whom he made his arrangement in or about August 2013.

[34]                                      P.S. also continued to use a corporate vehicle in order to manage his affairs, as he had habitually done in his dealings with not only this employer but others, when he had his prior business. It can be concluded that there is a history between the two entities, the employer and P.S. with that relationship run through their respective corporate entities.

[35]                                      The witnesses agreed that P.S. indeed worked alone. Other than a brief discussion in the morning between the two individuals who testified before me, wherein B.G. would ask P.S. to work on a particular machine, nobody monitored P.S. in the performance of his duties. He did not even report to B.G. other than to inform him that a die was ready to be tested or had been corrected, and he was ready to move on to the next unit. P.S. could come and go as he pleased, and would be paid for the hours he worked, nothing more. When P.S. took holiday time, which he stated in reality was a leave of absence in order to unravel some of the complications from the ending of his business, he did not receive any vacation pay. He also did not need permission to leave but simply informed B.G. of his need to do so.

[36]                                      P.S. also did not have his own workshop. While he had a workshop while he had his old company, working on these very large dies and other large equipment meant that this was typically performed on the customer’s site. Yet P.S. used his own tools of the trade. These were not significant, as his tools involved an Allen key and a calibration tool, yet they were his own tools nonetheless.

[37]                                      P.S. testified that if he had wished, and had time available, he could have worked for others, including competitors of the employer. Indeed, the file contains an invoice from an unrelated company for whom P.S. provided service, through the “shelf company” in July 2013, before he began his service with the employer. After finishing with the employer, once the machines were calibrated, P.S. indicated in his evidence that he would continue to operate in this same fashion. The accident, unfortunately, put an end to that opportunity.

[38]                                      Considering again the organizational test, it appears to me that P.S. was “his own man”. He had been engaged by the employer, on terms different from how the employer normally engaged its workers, and for a specific, “one-off” task in which its workers were not involved. The reporting relationship was different, the lack of a uniform helped to set P.S. apart from the employees, and his use of a corporate entity or vehicle to process his payment all are indicia of his lack of integration into the employer’s organization. The employer did not control P.S., nor did it own the tools of the trade which P.S. used to perform his task.

[39]                                      If that was the sum total of this matter, I would find on balance that P.S. was more likely than not an independent operator at the time of his accident. What has caused me to carefully consider this matter further is the method of payment of P.S., which I have discussed above. P.S. was paid on a straight hourly rate. He was not, for example, paid a flat rate, perhaps in several installments, no matter how long it would take him to finally calibrate all the machines to the requisite standard. If P.S. had been paid a flat rate and had completed the work in less time than he and the employer expected, P.S. arguably would have received a “windfall”, having achieved a profit and thus being able to go out and obtain other work more quickly. Conversely, if, after having negotiated a flat rate, it took P.S. perhaps several weeks or even a month longer to finish the task for the employer than was expected, P.S. at the end of that additional time would in effect be “donating” his hours. He would thus be operating at a loss, and may also have lost opportunities to take on other work given that the project dragged on longer than was expected.

[40]                                      That, however, is not how P.S. and the employer structured their arrangements. He was, instead of being exposed to such entrepreneurial risks, offered an hourly rate, with seeming no cap so that he could continue to work as many hours as he liked, earning as much as he liked. He clearly did have an opportunity to make more than perhaps a typical tool and die maker employed by this employer. As he was not on the employer’s benefit plan, the evidence before me also was that P.S. was paid a slightly higher hourly rate than others. It could thus be argued that P.S. had a risk of loss, in case he was unable to work, as he would then not be paid.

[41]                                      Yet there was no real chance of significant profits or chance of a significant financial loss. That lack in my view undercuts to a certain extent the element of “entrepreneurship” that is often very important in a case such as this.

[42]                                      I am of course cognizant of what is written in Tribunal Decision No. 1370/06. That decision stated in part as follows:

[43]                                      In that case the conclusion was ultimately that the individual was a worker, not an independent contractor. In this case, however, despite it being a close call, when considering the totality of the evidence I find that P.S. more likely was an independent operator, which conclusion I believe reflects the actual intentions of the parties at the time of his engagement.

[44]                                      I come to this conclusion despite what P.S. wrote in his Form 6 report, as I accept his testimony and the explanation he provided when he testified. Moreover, the other indicia, including that P.S. was paid a higher hourly rate than others because he had no benefits, he did not wear a uniform, and he used his corporate vehicle for invoicing and payment, all support his testimony and the testimony of B.G. that the parties intended a relationship of independent operator and principal at the outset rather than one of employment.

[45]                                      When taking into account the historic relationship of these parties, that there had always been a corporate relationship rather than an individual relationship, that the name of the corporate vehicle used by P.S. changed from T to P is I find of limited impact. The finite nature of the task for which P.S. was engaged, the fact that this task was meant to allow the employer to produce parts rather than itself being the actual production of parts (the later of which is an activity truly integrated into the business of the employer, given parts production was what that employer does), all leads me to conclude that, on the continuum in this case, P.S. is somewhat more toward the independent operator end of it.

[46]                                      For these reasons the employer’s appeal is granted. P.S. was an independent operator at the time of his November 20, 2013 accident. The accident costs associated with his claim are accordingly to be reversed from the employer’s account.

[47]                                      The employer’s appeal of the December 8, 2014 decision of the ARO is allowed. The individual P.S. was an independent operator and not a worker when the November 20, 2013 accident occurred at the employer’s work site.

[48]                                      Given that P.S. was not a worker, the claims costs attributed to the employer for this work accident should be reversed.