jswizzle3737/ontario_laws_and_regs huggingface dataset:
Schedules
2. A reference in this Act to Schedule 1, 2, 3 or 4, is a reference to Schedule 1, 2, 3 or 4, as the case may be, in the regulations. R.S.O. 1990, c. W.11, s. 2.
Seconded workers
3. Where the services of a worker are temporarily lent or hired out to another person by the person with whom the worker has entered into a contract of service, the latter person is deemed to continue to be the employer of the worker while the worker is working for the other person. R.S.O. 1990, c. W.11, s. 3.
Training agencies placing trainees
3.1 (1) In this section, “placement host” means a person with whom a trainee is placed by a training agency to gain work skills and experience; (“agent d’accueil”) “training agency” means, (a) a person who is registered, under the Private Vocational Schools Act, to operate a private vocational school; or (b) a member of a prescribed class who provides vocational or other training. (“organisme de formation”) Election: trainees as workers of training agency (2) A training agency that places trainees with a placement host may elect to have such trainees considered to be workers of the training agency during their placement. Restriction on election (3) Only a training agency that is in an industry included in Schedule 1 or 2 may make an election. Effect of election (4) Upon the Board receiving written notice of a training agency’s election, the following paragraphs apply with respect to each of the trainees the training agency places with a placement host: 1. The placement host shall be deemed, for the purposes of this Act, other than subsections 10 (9) to (12) and section 16, not to be an employer of the trainee. 2. The training agency shall be deemed, for the purposes of this Act, to be an employer of the trainee and the trainee shall be deemed, for the purposes of this Act, to be a learner employed by the training agency. Exception (5) Subsection (4) does not apply with respect to trainees who receive wages from the placement host. If trainee injured (6) If a trainee in respect of whom subsection (4) applies suffers a personal injury by accident or occupational disease while on a placement with a placement host then, despite subsection (4), (a) the trainee’s benefits under this Act shall be determined as if the placement host was the trainee’s employer; (b) section 54 does not apply to the placement host or the training agency. Revocation of election (7) An election may be revoked by giving the Board written notice of the revocation. Effective date of revocation (8) A revocation takes effect 120 days after the Board receives written notice of it. Limitation on revocation (9) An election that is revoked continues to apply with respect to an injury suffered before the revocation takes effect. 1994, c. 24, s. 3. PART I   COMPENSATION
Compensation to worker and dependants
4. (1) Where in any employment, to which this Part applies, personal injury by accident arising out of and in the course of employment is caused to a worker, the worker and the worker’s dependants are entitled to benefits in the manner and to the extent provided under this Act. Wages for day of accident (2) Where a worker is entitled to compensation for loss of earnings because of an accident, the employer shall pay to or on behalf of the worker the wages and benefits that the worker would have earned for the day or shift on which the injury occurred as though the injury had not occurred. Presumptions (3) Where the accident arose out of the employment, unless the contrary is shown, it shall be presumed that it occurred in the course of the employment and, where the accident occurred in the course of the employment unless the contrary is shown, it shall be presumed that it arose out of the employment. Decisions to favour claimant (4) In determining any claim under this Act, the decision shall be made in accordance with the real merits and justice of the case and where it is not practicable to determine an issue because the evidence for or against the issue is approximately equal in weight, the issue shall be resolved in favour of the claimant. Payment under subs. (2) (5) Where the worker has not been paid the wages and benefits prescribed by subsection (2), the Board shall pay to or on behalf of the worker the wages and benefits prescribed by subsection (2). Idem (6) Every employer who makes default in paying the wages and benefits prescribed by subsection (2) shall, in addition to any other penalty or liability, pay to the Board a sum equal to the amount of such wages and benefits and payment of such amount may be enforced in the same manner as the payment of an assessment may be enforced. Serious and wilful misconduct (7) Where an injury is attributable solely to the serious and wilful misconduct of the worker, no benefits or compensation are payable unless the injury results in death or serious impairment. R.S.O. 1990, c. W.11, s. 4.
Employers liable to contribute to the accident fund
5. Employers in the industries for the time being included in Schedule 1 are liable to contribute to the accident fund as hereinafter provided, but are not liable individually to pay compensation. R.S.O. 1990, c. W.11, s. 5.
Employers individually liable
6. Employers in the industries for the time being included in Schedule 2 are liable individually to pay compensation and health care. R.S.O. 1990, c. W.11, s. 6.
Employment benefits for injured workers
7.(1) An employer, throughout the first year after an injury to a worker, shall make contributions for employment benefits in respect of the worker when the worker is absent from work because of the injury. Deeming provision (2) For the purpose of determining a worker’s entitlement to benefits under a benefit plan, fund or arrangement, a worker shall be deemed, for one year after the date the injury occurred, to continue to be employed by the worker’s employer on the date of the injury. Penalty (3) If the Board finds that an employer has not complied with its obligations under subsection (1), the Board may levy a penalty on the employer to a maximum of the amount of one year’s contributions for employment benefits in respect of the worker. Liability for loss (4) The employer is liable to a worker for any loss the worker suffers as a result of the employer’s failure to make the contributions required by subsection (1). Eligibility (5) Contributions under subsection (1) 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 absent from work. Emergency workers (6) If a worker is injured while engaged in employment described in subsection 1(2) or (4), the worker’s employer, other than the employer described in subsection 1(2) or (4), shall be deemed to be the employer for the purposes of this section. Idem (7) If an employer makes contributions under subsection (1) in respect of a worker described in subsection (6), the employer described in subsection 1(2) or (4) shall reimburse the employer for the contributions. Multi-employer benefit plans (8) Subsection (1) does not apply to an employer who participates in a multi-employer benefit plan in respect of a worker if, throughout the first year after the worker is injured whenever the worker is absent from work because of the injury, (a) the plan continues to provide the worker with the benefits to which the worker would otherwise be or become entitled under the plan; and (b) the plan does not require contributions from the employer during the absence and does not require the worker to draw on the worker’s benefit credits, if any, under the plan during the absence. Amendment of multi-employer benefit plans (9) On and after the 2nd day of January, 1992, a multi-employer benefit plan shall contain and, if it does not do so, shall be deemed to contain provisions sufficient, (a) to enable all employers who participate in the plan to be exempted under subsection (8) from the requirement to make contributions; and (b) to provide each worker with the benefits described in subsection (8) in the circumstances described in that subsection. R.S.O. 1990, c. W.11, s. 7.
Where compensation payable by law of foreign country, worker to elect
9.(1) Where by the law of the country or place in which the accident happens the worker is or his or her dependants are entitled to compensation in respect of it, they shall be bound to elect whether they will claim compensation under the law of such country or place or under this Part and to give notice of such election, and, if such election is not made and notice given, it shall be presumed that they have elected not to claim compensation under this Part. How election to be made (2) Notice of the election, where the compensation under this Part is payable by the employer individually, shall be given to the employer and, where the compensation is payable out of the accident fund, to the Board, and shall be given in both cases within three months after the happening of the accident or, in case it results in death, within three months after the death or within such longer period as either before or after the expiration of such three months the Board may allow. R.S.O. 1990, c. W.11, s. 9.
Election where compensation payable outside Ontario
9.1 (1) If a worker or his or her dependants are entitled, in connection with an accident in Ontario, to compensation under this Part and under the law of a country or place outside Ontario, they shall elect whether they will claim compensation under this Part or under the law of that country or place. Notice of election (2) A worker or dependants who make an election shall give notice of it in accordance with subsection 9 (2). Effect of failure to elect (3) If an election is not made and notice given, it shall be presumed that the worker or his or her dependants have elected not to claim compensation under this Part. 1994, c. 24, s. 4.
Employers and contractors
11.(1) The workers of a contractor or subcontractor executing any work in or for the purposes of an industry under this Part, carried on by another person, in this subsection and in subsection (2) referred to as the principal, shall be deemed to be the workers of the principal unless such contractor or subcontractor is, in respect of such work, assessed, or added and assessed, as the case may be, as an employer in Schedule 1, or, in cases where such contractor or subcontractor is, in respect of such work, individually liable for payment of compensation, unless the Board finds and declares that the responsibility of such contractor or subcontractor is sufficient protection to the workers for the benefits provided for by this Act. Right of principal employer to reimbursement from contractor (2) Where a principal has made payment of assessment or compensation or furnished health care that, but for subsection (1), the principal would not have been liable to pay or furnish, the principal is entitled to reimbursement from the contractor or subcontractor to such extent as the Board finds such contractor or subcontractor would have been liable. Liability of principal to pay assessments (3) Where a person, whether carrying on an industry included in Schedule 1 or not, in this subsection and in subsection (4) referred to as the principal, contracts with any other person, in this section referred to as the contractor, for the execution by or under the contractor of the whole or any part of any work for the principal, it is the duty of the principal to see that any sum that the contractor or any subcontractor is liable to contribute to the accident fund is paid, and if any such principal who fails to do so is personally liable to pay it to the Board, and the Board has the like powers and is entitled to the like remedies for enforcing payment as it possesses or is entitled to in respect of an assessment. Right of indemnity (4) A principal who is liable to make payment to the Board under subsection (3) is entitled to be indemnified by any person who should have made such payment and is entitled to withhold out of any indebtedness due to such person a sufficient amount to answer the same, and all questions as to the right to and the amount of any such indemnity shall be determined by the Board. Liability of contractor or subcontractor to contribute (5) Nothing in this section prevents a worker from claiming compensation or the Board from collecting contribution to the accident fund from the contractor or any subcontractor instead of the principal. R.S.O. 1990, c. W.11, s. 11.
Liability of licensee to pay assessments
12. (1) If a licence is granted under Part III of the Crown Forest Sustainability Act, 1994 and forest resources are harvested or used for a designated purpose under that Act by a person other than the licensee, it is the duty of the licensee to see that any sum that the other person is liable to contribute to the accident fund is paid, and a licensee who fails to do so is personally liable to pay the sum to the Board and the Board has the like powers and is entitled to the like remedies for enforcing payment as it possesses or is entitled to in respect of an assessment. 1994, c. 25, s. 86. Right of indemnity (2) A licensee who is liable to make payment to the Board under subsection (1) is entitled to be indemnified by any person who should have made such payment and is entitled to withhold out of any indebtedness due to such person a sufficient amount to answer the same and all questions as to the right to and the amount of any such indemnity shall be determined by the Board. R.S.O. 1990, c. W.11, s. 12 (2).
Person may be deemed to be worker
13.(1) On application, an employer, an independent operator, a person the Board deems to be an employer, or an executive officer of a corporation may elect to be deemed a worker for the purposes of this Act, provided that, (a) he or she is carried on the payroll of the business at his or her actual earnings for the year, or files with the Board a statement of his or her estimated earnings for the year which is acceptable to the Board; and (b) he or she consents to the application. Idem (2) A person shall not be deemed under subsection (1) to be a worker unless the rate of his or her estimated or actual earnings yields the minimum amount of compensation provided by section 39. Entitlement to compensation (3) No person deemed a worker under subsection (1) shall be entitled to more compensation than the maximum provided by sections 38 and 41. R.S.O. 1990, c. W.11, s. 13.
No action to be brought to recover compensation
14. No action lies for the recovery of compensation whether it is payable by the employer individually or out of the accident fund, but all claims for compensation shall be heard and determined by the Board. R.S.O. 1990, c. W.11, s. 14.
Where worker residing out of Ontario entitled to compensation
15. If a worker receiving a weekly or other periodical payment ceases to reside in Ontario, the worker is not thereafter entitled to receive any such payment unless a medical referee certifies that the impairment resulting from the injury is likely to be of a permanent nature, and, if a medical referee so certifies and the Board so directs, the worker is entitled quarterly to the amount of the weekly or other periodical payments accruing due if the worker proves in such manner as may be prescribed by the regulations his or her identity and the continuance of the impairment in respect of which the same is payable. R.S.O. 1990, c. W.11, s. 15.
Provisions of Act in lieu of all rights of action against employer, etc.
16. The provisions of this Part are in lieu of all rights and rights of action, statutory or otherwise, to which a worker or the members of his or her family are or may be entitled against the employer of such worker, or any executive officer thereof, for or by reason of any accident happening to the worker or any occupational disease contracted by the worker on or after the 1st day of January, 1915, while in the employment of such employer, and no action lies in respect thereof. R.S.O. 1990, c. W.11, s. 16; 1994, c. 24, s. 5.
Determination of right to bring action
17.(1) Any party to an action may apply to the Appeals Tribunal for adjudication and determination of the question of the plaintiff’s right to compensation under this Part, or as to whether the action is one the right to bring which is taken away by this Part, or whether the action is one in which the right to recover damages, contribution, or indemnity is limited by this Part, and such adjudication and determination is final and conclusive. R.S.O. 1990, c. W.11, s. 17. Automobile accidents (2) An insurer from whom statutory accident benefits are claimed under section 268 of the Insurance Act may apply to the Appeals Tribunal for adjudication and determination of the question of the claimant’s right to compensation under this Part, or as to whether the claimant’s right of action is taken away by this Part, or whether the claimant’s right to recover damages, contribution or indemnity in an action is limited by this Part, and such adjudication is final and conclusive. 1993, c.10, s.55(2).
Right to compensation may not be waived
18. It is not competent for a worker to agree with his or her employer to waive or to forego any of the benefits to which the worker or his or her dependants are or may become entitled under this Part and every agreement to that end is void. R.S.O. 1990, c. W.11, s. 18.
Agreement as to compensation not valid unless approved by the Board
19.(1) Where the compensation is payable by an employer individually, no agreement between a worker or dependant and the employer for fixing the amount of the compensation or by which the worker or dependant accepts or agrees to accept a stipulated sum in lieu or in satisfaction of it is binding on the worker or dependant unless it is approved by the Board. Idem (2) Subsection (1) does not apply to compensation for temporary disability lasting for less than four weeks, but in such cases the Board may, on the application of the worker or dependant, or on its own motion, set aside the agreement on such terms as may be deemed just. Idem (3) Nothing in this section shall be deemed to authorize the making of any such agreement except with respect to an accident that has happened and the compensation to which the worker or dependant has become entitled because of it. R.S.O. 1990, c. W.11, s. 19.
Deduction not to be made from wages
20.(1) It is not lawful for an employer, either directly or indirectly, to deduct from the wages of any of the employer’s workers any part of any sum that the employer is or may become liable to pay to the worker as compensation under this Part or to require or to permit any of the employer’s workers to contribute in any manner towards indemnifying the employer against any liability that the employer has incurred or may incur under this Part. R.S.O. 1990, c. W.11, s. 20 (1). (2) Repealed: 1995, c. 5, s. 2.
Compensation not assignable or liable to attachment
21. Unless with the approval of the Board, no sum payable as compensation or by way of commutation of any weekly or other periodical payment in respect of it is capable of being assigned, charged or attached, nor does it pass by operation of law except to a personal representative nor shall any claim be set off against it. R.S.O. 1990, c. W.11, s. 21.
Overpayments
21.1 (1) An overpayment made by the Board to a person who receives compensation under the Act is a debt due and owing to the Board at the time the overpayment is made. Amount (2) The amount of the overpayment is as determined by the Board. 1995, c. 5, s. 3.
Notice of accident
22.(1) Subject to subsection (5), compensation or health care is not payable unless notice of the accident is given as soon as practicable after the happening of it and before the worker has voluntarily left the employment in which he or she was injured and unless the claim for compensation or health care is made within six months from the happening of the accident or, in case of death, within six months from the time of death. Nature of notice (2) The notice shall give the name and address of the worker and is sufficient if it states in ordinary language the cause of the injury and where the accident happened. Service of notice (3) The notice may be served by delivering it at or sending it by registered mail addressed to the place of business or the residence of the employer or, where the employer is a body of persons, corporate or unincorporate, by delivering it at or sending it by registered mail addressed to the employer at the office or, if there are more offices than one, at any of the offices of such body of persons. Notice to Board (4) The notice shall also be given to the Board by delivering it to or at the office of the secretary or by sending it to the secretary by registered mail addressed to his or her office. Failure to give, or defect in notice not to affect right to compensation in certain cases (5) Failure to give the prescribed notice or to make such claim or any defect or inaccuracy in a notice does not bar the right to compensation if in the opinion of the Board the employer was not prejudiced thereby or, where the compensation is payable out of the accident fund, if the Board is of opinion that the claim for compensation is a just one and ought to be allowed. R.S.O. 1990, c. W.11, s. 22.
Material change in circumstances
22.1 A person receiving benefits or who may be entitled to receive benefits under the Act shall notify the Board of a material change in circumstances in connection with his or her entitlement to benefits within 10 days after the material change occurs. 1995, c. 5, s. 4.
Medical examination
23.(1) Subject to subsection (2), where an employer so requires, a worker who has made a claim for compensation or to whom compensation is payable under this Act shall submit to a medical examination by a medical practitioner selected, and paid for, by the employer. Appeal (2) Where a worker objects to the requirement of the employer to submit to a medical examination or to the nature and extent of the medical examination, being conducted by a medical practitioner the worker or the employer may, within a period of fourteen days of the objection having been made, apply to the Appeals Tribunal to hear and determine the matter and the Appeals Tribunal may set aside the requirement or order the worker to submit to and undergo a medical examination by a medical practitioner or make such further or other order as may be just. R.S.O. 1990, c. W.11, s. 23.
Special medical treatment in certain cases
24. Where in any case, in the opinion of the Board, it is in the interest of the accident fund to provide a special surgical operation or special medical treatment for a worker, and the furnishing of the same by the Board is, in the opinion of the Board, the only means of avoiding heavy payment for compensation, the expense of such operation or treatment may be paid out of the accident fund. R.S.O. 1990, c. W.11, s. 24.
Review of compensation
25. Any weekly or other periodical payment under section 37 to a worker may be reviewed at the request of the employer or the worker or on the Board’s own motion and on such review the Board may put an end to or diminish or increase such payment to a sum not beyond the maximum amount payable under that section. R.S.O. 1990, c. W.11, s. 25.
Increase of compensation to worker under 21
26. Where the worker was at the date of the accident under twenty-one years of age and the review takes place more than six months after the accident, the amount of a weekly payment may be increased to the sum to which the worker would have been entitled if his or her average earnings had at the date of the accident been equal to what, if the worker had not been injured, he or she would probably have been earning at the date of the review. R.S.O. 1990, c. W.11, s. 26.
Commutation of payments
27.(1) Where the compensation is payable by an employer individually or out of the accident fund, the Board may commute the weekly or other periodical payments payable to a worker or dependant for a lump sum, and may charge the same to the employer or to the accident fund, as the case may be. Lump sum to be paid to Board (2) Where the lump sum is payable by the employer individually, it shall be paid to the Board. Application of lump sum (3) The lump sum may be, (a) applied in such manner as the worker or dependant may direct; (b) paid to the worker or dependant; (c) invested by the Board and applied from time to time as the Board may deem most for the advantage of the worker or dependant; (d) paid to trustees to be used and employed upon and subject to such trusts and for the benefit of such persons as, in case it is payable by the employer individually, the worker or dependant directs and the Board approves, or, if payable out of the accident fund, as may be desired by the worker or dependant and approved by the Board; (e) applied partly in one and partly in another or others of the modes mentioned in clauses (a), (b), (c) and (d), as the Board may determine. Advances on account of compensation (4) In any case where compensation is payable and the Board is of the opinion that the interest or pressing need of the worker or dependant warrants it, the Board may advance or pay to or for the worker or dependant such lump sum as the circumstances warrant. R.S.O. 1990, c. W.11, s. 27.
Board may require employer to pay sum sufficient to commute
28. The Board may require an employer, who is individually liable to pay the compensation, to pay to the Board a sum sufficient to commute any weekly or other periodical payments that are payable by the employer, and such sum shall be applied by the Board in the payment of such weekly or other periodical payments as they from time to time become payable, but, if the sum paid to the Board is insufficient to meet the whole of such weekly or other periodical payments, the employer is nevertheless liable to make such of them as fall due after the sum paid to the Board is exhausted and, if the sum paid is more than sufficient for that purpose, the excess shall be returned to the employer when the right to compensation comes to an end, unless otherwise ordered by the Board. R.S.O. 1990, c. W.11, s. 28.
Board may require employer to insure workers
29. The Board may require an employer, who is individually liable, to pay the compensation to insure the employer’s workers and keep them insured against accidents in respect of which the employer may become liable to pay compensation in a company approved by the Board for such amount as the Board may direct and, in default of the employer doing so, the Board may cause them to be so insured and may recover the expense incurred in so doing from the employer in the same way as payment of assessments may be enforced. R.S.O. 1990, c. W.11, s. 29.
Where employer insured, Board may require insurer to pay amount payable to employer directly to Board
30.(1) Where an employer, who is individually liable to pay the compensation, is insured against the liability to pay compensation, the Board may require the insurance company or other underwriter to pay the sum that under the contract of insurance such company or underwriter would be liable to pay to the employer in respect of an accident to a worker who becomes or whose dependants become entitled to compensation under this Part, directly to the Board in discharge or in partial discharge of the compensation to which such worker or his or her dependants are found to be entitled. Notice to be given to insurer (2) Where a claim for compensation is made in any case to which subsection (1) applies, notice of the claim shall be given to the insurance company or other underwriter and to the employer, and the Board shall determine not only the question of the right of the worker or dependant to compensation but also the question whether the whole or any part of it should be paid directly by the insurance company or other underwriter as provided by subsection (1). Section 27 to apply (3) Section 27 applies to the compensation payable to the Board under subsection (1). R.S.O. 1990, c. W.11, s. 30.
In case of permanent impairment employer may be required to pay capital sum
31.(1) Where the accident causes total or partial permanent impairment or the death of the worker and the compensation is payable by the employer individually, the Board may require the employer to pay to the Board such sum as in its opinion will be sufficient, with the interest thereon, to meet the future payments to be made to the worker or his or her dependants, and such sum when paid to the Board shall be invested by it and shall form a fund to meet such future payments. or to give security for payment of compensation (2) Instead of requiring the employer to make the payment provided for by subsection (1), the Board may require the employer to give such security as it considers sufficient for the future payments. R.S.O. 1990, c. W.11, s. 31.
Requiring deposits by employers in Schedule 2
32. Where the Board considers it requisite for the prompt payment of claims, it may require any employer in Schedule 2 to make deposits of money with it from time to time, out of which it may pay compensation and health care for accidents to workers of such employer as they occur. R.S.O. 1990, c. W.11, s. 32.
Provision for funds to pay increased compensation
33.(1) The additional money necessary to provide for increases of compensation in respect of past accidents may be levied and collected by the Board from the employers carrying on or previously carrying on industries under this Part in such manner and at such time or times as the Board considers most equitable and most in accordance with the general principles of this Act, and, in the case of Schedule 1 employers, the levy and collection may be by way of addition to the usual assessment or by levy of special or additional assessment or assessments, and, in the case of Schedule 2 employers, by way of additional deposit or capitalized amount as may be necessary to provide for such increases. Power to grant exemptions in certain cases (2) Where by reason of limit of legal liability or for other cause the Board considers it inequitable or inexpedient to apply subsection (1) to any pension award, the Board has power to exempt the same accordingly. R.S.O. 1990, c. W.11, s. 33.
Compensation not payable during suspension
34. Where a right to compensation is suspended under this Part, no compensation is payable in respect of the period of suspension. R.S.O. 1990, c. W.11, s. 34. Scale of Compensation
When compensation payable
36. Compensation for disability shall be computed and payable from and including the day following the day of the accident or from the date of the disability, whichever is the later. R.S.O. 1990, c. W.11, s. 36.
Temporary total disability
37. (1) Where injury to a worker results in temporary total disability, the worker is entitled to compensation under this Act in an amount equal to 90 per cent of the worker’s net average earnings before the injury so long as temporary total disability continues or until the worker begins receiving payments under section 43. Temporary partial disability (2) Where temporary partial disability results from the injury, the compensation payable shall be, (a) where the worker returns to employment, a weekly payment of 90 per cent of the difference between the net average weekly earnings of the worker before the injury and a net average amount that the worker is able to earn in some suitable employment or business after the injury; or (b) where the worker does not return to work, a weekly payment in the same amount as would be payable if the worker were temporarily totally disabled, unless the worker, (i) fails to co-operate in or is not available for a medical or vocational rehabilitation program which would, in the Board’s opinion, aid in getting the worker back to work, or (ii) fails to accept or is not available for employment which is available and which in the opinion of the Board is suitable for the worker’s capabilities. Deductions for C.P.P. and Q.P.P. payments (3) In determining the amount to be paid under clause (2)(b), the Board shall have regard to any disability payments the worker receives under the Canada Pension Plan and the Quebec Pension Plan with respect to the injury and, if subclause (2)(b)(i) or (ii) applies, the compensation shall be a periodic amount proportionate to the degree of disability resulting from the injury as determined by the Board. R.S.O. 1990, c. W.11, s. 37.
Maximum earnings
38.(1) For the purposes of this Act, the maximum amount of average earnings upon which the loss of earnings is to be calculated, (a) effective on the 2nd day of January, 1990, is the maximum amount of average earnings determined under this section as it read immediately before the 2nd day of January, 1990; (b) effective on the 1st day of January, 1991, is $42,000; and (c) effective on the 1st day of January of each year after 1991, is 175 per cent of the average industrial wage for Ontario for the year, determined in accordance with subsection (3). Application of Part IV (2) Part IV of this Act does not apply to the maximum amount of average earnings determined under subsection (1). Determination of the average industrial wage (3) For the purposes of clause (1)(c), the average industrial wage for Ontario is an amount applicable from the 1st day of January to the 31st day of December in a year, the calculation of which is based upon the most recent published material that is available on the 1st day of July of the preceding year, and the amount of which is based upon the estimated weekly earnings industrial aggregate for Ontario as published by Statistics Canada. R.S.O. 1990, c. W.11, s. 38.
Minimum compensation
39.(1) The minimum amount of compensation payable for temporary total disability shall be, (a) $10,500 per annum where the net average earnings of the worker at the time of the accident are equal to or exceed $10,500 per year; or (b) the net average earnings of the worker at the time of the accident where the net average earnings are less than $10,500 per year. Idem (2) The minimum amount of compensation payable for temporary partial disability shall be a proportionate amount of the minimum compensation payable under subsection (1) in accordance with the degree of disability. Idem (3) The minimum amount of compensation to which a spouse and child or children of a deceased worker are entitled under subsection 35(4) shall be $11,025 per year. Idem (4) The minimum amount of compensation to which a spouse of a deceased worker is entitled under subsection 35(5) shall be $11,025 per year multiplied by the percentage prescribed therein. Idem (5) The minimum amount of compensation to which a child or children of a deceased worker is or are entitled under subsection 35 (6) shall be $11,025 per year multiplied by the percentage prescribed therein. R.S.O. 1990, c. W.11, s. 39.
Average earnings
40.(1) In determining the average earnings of a worker, the Board shall, (a) calculate the daily or hourly rate of the worker’s earnings with the employer for whom the worker worked at the time of accident as is best calculated to give the rate per week at which the worker was remunerated at the time of the accident; (b) if the calculation under clause (a) does not fairly represent the average earnings of the worker, upon application, the Board shall determine the worker’s average earnings with the employer for whom the worker worked at the time of the accident during the twelve months or such lesser period immediately preceding the accident when the worker was employed with the employer. Idem (2) Where owing to the shortness of the time during which the worker was in the employment of the employer or the casual nature of the employment or where it is impractical to calculate the average earnings at the time of the accident, regard may be had to the average earnings that during the twelve months prior to the accident was being earned by a person in the same grade employed at the same work by the same employer or, if there is no person so employed, then by a person in the same grade employed in the same class of employment in the same locality. Idem (3) Where the worker has entered into concurrent contracts of service with two or more employers under which the worker worked at one time for one of them and at another time for another of them, the worker’s average earnings shall be calculated on the basis of what the worker probably would have been earning if the worker had been employed solely in the employment of the employer for whom the worker was working at the time of the accident. Definition (4) For the purposes of subsection (2), “employed at the same work by the same employer” means employment by the same employer in the grade in which the worker was employed at the time of the accident uninterrupted by absence from work due to illness or any other unavoidable cause. Special expenses (5) Where the employer was accustomed to paying the worker a sum to cover any special expenses entailed on the worker by the nature of the employment, that sum shall not be reckoned as part of the worker’s earnings. Apprentices, learners and students (6) Despite subsection (1), if a worker was an apprentice, learner or student at the time of the accident, the Board shall determine the worker’s average earnings using such criteria as may be prescribed by regulation. Further benefits (7) Where a worker, who has become entitled to benefits under this Act and has returned to employment, becomes entitled to payment for temporary disability by reason of any matter arising out of the original accident, the compensation payable for such temporary disability shall be paid on either the average earnings at the date of the accident or the average earnings at the date of the most recent employment of the worker, calculated in accordance with this Act, whichever is the greater. R.S.O. 1990, c. W.11, s. 40.
Net average earnings
41.(1) The net average earnings of a worker shall be determined by the Board by deducting from the earnings of a worker, (a) the probable income tax payable by the worker on the worker’s earnings; (b) the probable Canada Pension Plan premiums payable by the worker; and (c) the probable unemployment insurance premiums payable by the worker. Idem (2) The Board shall on the 1st day of January in each year establish a schedule setting forth a table of net average earnings based upon the provisions of this section and such schedule shall be deemed conclusive and final. R.S.O. 1990, c. W.11, s. 41.
Benefits for loss of retirement income
44.(1) For the purpose of providing a worker who is receiving compensation under section 43 with a retirement pension, the Board shall set aside for the worker additional funds equal to 10 per cent of every payment made to the worker under section 43. Payments deemed to be made to worker (2) Payments to the spouse or dependants of a worker made by the Board under section 48 out of funds otherwise payable to the worker under section 43 shall be deemed to be payments to the worker for the purposes of subsection (1). Entitlement to retirement income (3) Each worker on whose behalf the Board sets aside funds under subsection (1), upon reaching sixty-five years of age, shall receive a retirement pension under this section. Survivor benefits (4) If a worker dies before beginning to receive or while receiving a retirement pension under this section, the spouse and dependants of the worker shall receive such benefits as may be prescribed by regulation. Exception (5) Despite subsection (4), a spouse and dependants who receive compensation under section 35 in respect of a worker are not entitled to receive benefits under this section in respect of the worker. Payment of retirement income (6) A worker for whom funds are being set aside under subsection (1) may select the payment scheme for the worker’s retirement pension from among the schemes and subject to the restrictions prescribed in the regulations. Idem (7) Despite subsection (6), if the annual pension to which a worker becomes entitled upon reaching sixty-five years of age is less than $1,000, the Board shall pay the worker’s retirement pension under this section as a lump sum. Calculation of pensions and benefits (8) Retirement pensions and other benefits payable to or in respect of a worker under this section shall be calculated on the basis of the funds set aside for the worker plus the accumulated investment income thereon. Employer payment (9) An employer that is individually liable to pay compensation under this Act shall pay the funds set aside under subsection (1) to the Board. Fund to be established (10) The Board shall establish a fund into which funds set aside under subsection (1) shall be deposited and shall invest the fund in accordance with such procedures and restrictions as may be set out in the regulations. R.S.O. 1990, c. W.11, s. 44.
Matters to be considered in fixing payments
45.(1) In fixing the amount of compensation to be paid to a worker or his or her dependants regard shall be had to any payment, allowance or benefit paid to them by the worker’s employer in respect of the worker’s accident, including any gratuity or other allowance provided wholly at the expense of the employer. Payment to employer out of accident fund (2) Where the compensation is payable out of the accident fund, any sum deducted from the compensation under subsection (1) may be paid to the employer out of the accident fund. R.S.O. 1990, c. W.11, s. 45.
Provision for fortnightly or monthly payments
46. Where it is considered advisable, the Board may provide that the payments of compensation shall be fortnightly or monthly instead of weekly or, where the worker or dependant is not a resident of Ontario or ceases to reside therein, may fix the periods of payment otherwise or commute the compensation as the Board considers proper. R.S.O. 1990, c. W.11, s. 46.
Commuting compensation for lump sum
47. The Board, for the purpose of enabling the worker to obtain an artificial member, or in any other case where it considers it proper, may, at any time or times, make or direct partial commutation or lump sum payment of the worker’s compensation, or otherwise alter the form of payment, as in the circumstances seems most for the worker’s advantage. R.S.O. 1990, c. W.11, s. 47.
Deduction for family support
48. (1) This section applies if a person is entitled to compensation under this Act and his or her spouse (as defined in Part III of the Family Law Act) or dependants are entitled to support or maintenance under a court order or domestic contract. Same (2) The Board shall pay all or part of the amount owing to the person under this Act, (a) in accordance with a garnishment notice issued by a court in Ontario and served upon the Board; or (b) in accordance with a notice of a support deduction order served by the Director of the Family Responsibility Office upon the Board. Limits and procedures (3) For the purposes of this section, (a) garnishment of periodic payments is subject to the limits and procedures set out in subsections 7 (1) to (5) of the Wages Act and compensation payable under this Act, other than funds set aside under this Act for the purpose of providing a person who is receiving compensation under this Act with a retirement pension, shall be deemed to be wages for the purposes of the Wages Act; (b) deduction of compensation under a notice of a support deduction order shall be subject to the limits and procedures set out in the Family Responsibility and Support Arrears Enforcement Act, 1996. 1996, c. 31, s. 72 (1).
Payments in case of minor, etc.
49. If a worker or a dependant is under the age of eighteen years or is of unsound mind or in the opinion of the Board is incapable of managing his or her own affairs, any benefits to which the worker or dependant is entitled may be paid on his or her behalf to his or her parent, spouse or committee or to the Public Trustee or may be paid to such other person or applied in such manner as the Board considers in the best interest of such worker or dependant, and when paid to the Public Trustee, it is the duty of the Public Trustee to receive and administer any such money for the benefit of the worker or dependant. R.S.O. 1990, c. W.11, s. 49. Health Care
Reports of physicians, etc.
51. (1) Every physician, surgeon, hospital official or other person attending, consulted respecting, or having the care of, any worker shall furnish to the Board from time to time such reports as may be required by the Board in respect of such worker. R.S.O. 1990, c. W.11, s. 51. Report re return to work (2) Subject to subsection (3), a health professional who receives a request from a worker or the employer shall provide each of them and the Board with a report containing the prescribed information. Conditions under which report is required (3) A health professional is required to provide a report in accordance with subsection (2) only if, (a) the worker consents; and (b) the prescribed requirements, if any, are satisfied. Payment (4) The Board shall determine the reasonable costs of the reports provided under this section and shall pay them. Reports privileged (5) Every report under subsection (2) is deemed to be a privileged communication of the person making it, and unless it is proved that it was made maliciously, is not admissible as evidence or subject to production in any court in an action or proceeding against the person providing it. Definition of health professional (6) In this section, “health professional” means a member of the College of a health profession as defined in the Regulated Health Professions Act, 1991. 1994, c. 24, s. 9. Rehabilitation
Aid to injured workers
52. To aid in getting injured workers back to work and to assist in lessening or removing any handicap resulting from their injuries, the Board may take such measures and make such expenditures as it may deem necessary or expedient, and the expense thereof shall be borne, in Schedule 1 cases, out of the accident fund and, in Schedule 2 cases, by the employer individually, and may be collected in the same manner as compensation or expenses of administration. R.S.O. 1990, c. W.11, s. 52.
Board continued
55.(1) The body corporate known as the Workers’ Compensation Board is continued under the name Workers’ Compensation Board in English and Commission des accidents du travail in French. Corporations Act not to apply (2) The Corporations Act does not apply to the corporation and, subject to this Act, the corporation shall have the capacity and powers of a natural person. R.S.O. 1990, c. W.11, s. 55.