Who is Covered by Workers’ Compensation Act in British Columbia?
March 22, 2023
Who is Covered by Workers’ Compensation Act in British Columbia?
For additional information about workplace injuries, compensation claims, and the Workers’ Compensation system in British Columbia, please also review the following articles:
- Workplace Injuries and Workers Compensation Claims
- Overview of Workers’ Compensation in British Columbia
- WorkSafeBC Claims Guide for Injured Workers
- Navigating WorkSafeBC: Independent Contractors, Employees and Your Coverage
The BC Workers' Compensation Act (WCA) applies to approximately 231,000 employers and over 2.33 million workers in the province of British Columbia. Where a person or entity is determined to have status as an employer under the WCA, that employer is liable to pay assessments in respect of any workers it employs and must meet all other statutory obligations of an employer such as reporting injuries to the Board and providing estimates of payrolls.
Employers Under the WCA
The definition of “employer” in section 1 of the WCA includes “every person having in their service under a contract of hiring or apprenticeship, whether the contract is written or oral, express or implied, a person engaged in work in or about an industry.”
It is important to note that in determining whether an entity is an employer under the WCA, the Board is not bound by the common law principles relating to “contract of hiring or apprenticeship”. The Board has the exclusive power to determine whether a particular relationship is one of employment for workers compensation purposes. The following are some general principles the Board applies:
• An employer may be a sole proprietor, a partnership, a corporation or some other type of legal entity.
• A corporation is considered an employer of:
- the workers employed by the corporation;
- family members or principals or shareholders for whom earnings are reported for income tax purposes; and
- directors, officers, shareholders and principals of the corporation who are active in the operation of the business.
• Societies, co-operatives, Indian Bands, and trade unions are employers if they have workers.
Employers as Workers
Employers may also be considered workers and receive compensation if they are injured. For example, an officer or principal of a corporation, society, cooperative, trade union or other similar entity who is active in the operation of the entity is considered a worker of the entity. However, self-employed persons or partners who have not voluntarily registered under the WCA are not considered workers unless they have incorporated a limited company.
Generally, workers include individuals not employing other individuals and who fall into the following categories:
• Individuals paid on an hourly, salaried or commission basis.
• Individuals paid on commission or piecework where the work is performed in the employer’s shop, plant or premises.
• Individuals paid commission, piecework or profit sharing where they are using equipment supplied by the employer.
• Individuals operating under circumstances where the “lease” or “rental” of equipment or “purchase” of material from their employer is merely a device to arrive at a wage or commission amount.
• Labour contractors who elect not to be registered as independent operators.
Volunteers are not generally considered workers although volunteer firefighters are specifically covered by the definition of “worker” in section 1 of the WCA. Members of the public conscripted to fight forest fires are also considered workers.
Federal government workers who work in the province are not covered by the WCA but are covered by the Government Employees Compensation Act, R.S.C. 1985, c. G-5 (GECA), which is administered by the Board in British Columbia. Under the GECA, federal employees who suffer workplace injuries are entitled to compensation “at the same rate and under the same conditions” as provided under the provincial law where the employee is usually employed.
The Board is also empowered to direct that the provisions of the WCA apply to an employer “as though the employer was a worker” and to an independent operator who is neither an employer nor a worker “as though the independent operator was a worker”. The Board has therefore created a personal optional protection scheme, permitting an employer who is not an active principal of a corporation and an unincorporated independent operator without workers to purchase compensation coverage. To learn more, please review our article on: Navigating WorkSafeBC: Independent Contractors, Employees, and Your Coverage.
This term is not defined in the WCA. Item AP1-1-1 of the Assessment Manual sets out that the criteria for determining whether a person is an independent operator, and therefore not a worker under the WCA, are those used to determine whether a contract creates an employment relationship or a relationship between independent firms. Where the contract does not create what the Board considers to be an employment relationship, the person will be considered an “independent firm.”
Exemptions and Exclusions from Coverage
The Board may exempt employers or workers from application of the WCA by order. The current exemptions include:
• Certain types of individuals employed by an owner or occupier around a private residence.
• Both spouses involved in an unincorporated business in certain circumstances.
• Certain employers with no place of business in the province who temporarily carry on business in British Columbia but do not employ British Columbia residents.
• Professional sports competitors or athletes.
• Certain types of personal financial holding companies.
The WCA may not apply to some workers and employers. For example, the WCA will not apply to a worker who does not have a sufficient connection to the province so that his presence in the province is merely transitory.
Extra Provincial Coverage
In some circumstances, an employer’s worker who is injured while working elsewhere than in British Columbia may be eligible for compensation. If all of the following criteria are met the Board must pay compensation:
• A place of business of the employer is situate in British Columbia.
• The residence and usual place of employment of the worker are in British Columbia.
• The employment is such that the worker is required to work both in and out of British Columbia.
• The employment of the worker out of British Columbia has immediately followed the worker's employment by the same employer within British Columbia and has lasted less than six months.
Where a British Columbia employer employs British Columbia workers to work in another province or territory, those workers may also be workers under the compensation laws of the other jurisdiction. In order to avoid employers having to pay double assessments for the same work, to help workers or dependants where more than one workers’ compensation authority is involved in a claim and to provide a system to solve disputes between workers’ compensation authorities, all Canadian workers’ compensation authorities have entered into an Interjurisdictional Agreement on Workers’ Compensation. The agreement sets out rules for selection of forum by injured workers, clarifies what assessments the employers pay and provides a system of reimbursement of claims costs between workers’ compensation authorities.
Note to Readers: The information in this article is not legal advice. If you are looking for legal advice in relation to a particular matter please contact our experienced Employment & Disability Group.
Chris Drinovz is a Partner at KSW Lawyers and the founder and leader of the Employment & Labour Group. His calling is to excellence through the mastery of his craft and tireless dedication to his clients. He is described as hard-working, analytical, trustworthy, and genuine. Chris works with business leaders and union and non-union organizations to solve workplace legal problems and achieve long-term solutions that align with his client’s values. He is a dedicated advisor and an experienced courtroom advocate with a track record of success.
Kirsten Hildebrandt is a paralegal working for the Employment & Disability Group at KSW Lawyers. She was raised in Abbotsford, BC and grew up with a passion for learning. She graduated from high school with an International Baccalaureate Diploma and then moved to Kelowna, BC to study history and political science at the University of British Columbia – Okanagan Campus. In 2013, she concluded the rigorous Paralegal Diploma Program at Capilano University and was awarded her Paralegal Diploma with Distinction.
Have questions? Need insight? Our team can assist you in examining your options and determining which path best suits your needs.
Disclaimer: the information you obtain at this site is not, nor is it intended to be, legal advice. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create a lawyer-client relationship. Please do not send any confidential information to us until such time as a lawyer-client relationship has been established. By checking this box you agree to receive communications from KSW Lawyers, which may include quarterly email Newsletters containing legal updates (may easily unsubscribe at any time).