Chapter 2.2 OSH and Workers’ Compensation Regulatory Overview

The Prevention of Occupational Injuries and Illnesses

At both international and national levels, the recent history of these regulatory developments in OSH demonstrates, according to Lippel and Walters (2019), a growing focus on process-based regulatory standards over more traditional prescriptive standards:

Thus, general requirements on duty holders to manage the risks to which workers (and sometimes others) may be exposed have increasingly come to provide over-arching and constitutive regulatory principles that require general duties from employers and others having control over work to evaluate and take the necessary steps to manage occupational risks to workers to acceptable levels. In theory these broad and constitutive principles should allow greater scope for addressing what is widely recognised as a rapidly changing structure and organisation of work and provide adequate protection of the safety and health of a diversified range of work situations. (321)

Relatedly, this type of framework should be sufficiently flexible to be responsive to challenges associated with employment-related mobility. In this review, we explore, in general terms, the extent to which this is the case in Canada.

Regulatory frameworks promoting OSH in Canada and many other jurisdictions generally rely on a three-pronged strategy in relation to workers’ rights. Workers have the right to information, including training, on the hazards in their workplaces and the tools and equipment for prevention; the right to participate in the identification and elimination of these hazards; and the right to refuse dangerous work.

In the case of federally regulated workplaces, the Canada Labour Code governs the prevention of occupational injuries and illnesses for federally regulated work: “The purpose of this Part [of the code] is to prevent accidents, occurrences of harassment and violence and physical or psychological injuries and illnesses arising out of, linked with or occurring in the course of employment to which this Part applies.”17 The Canada Labour Code applies to only approximately 7 percent of the Canadian labour force (ESDC 2022), but the legislation encompasses a variety of sectors involving extended/complex employment-related geographical mobility (ERGM), particularly in relation to transportation (for more on the legislative framework that applies to maritime workers in Canada, see Shan and Lippel 2019).

As the power to enact labour legislation generally stems from the province, each province and territory has its own OSH framework. Given the large number of provincial and territorial jurisdictions in Canada, we will focus on five jurisdictions: the federal legislation, Québec, Ontario, Alberta, and Newfoundland and Labrador (NL). In each of these jurisdictions (see table 2),18 the regulation’s general objective is to prevent work-related injuries and illnesses and to provide for mechanisms for the participation of workers, their associations, and their employers in the elimination of dangers to health and safety. These regulatory frameworks include provisions regarding the obligations for employers, employees, and sometimes other parties within the employment relationship.19 They all institute the right for workers to refuse dangerous work under certain conditions. At the federal level, the right to refuse work is different for employees on ships and aircraft.20

In Canada, the prevention of occupational injuries and illnesses is based on the “internal responsibility system,” which assumes that workers and employers share the responsibility to prevent injuries and illnesses (Foster and Barnetson 2016, 24). Different mechanisms exist in order to implement this obligation, such as joint health and safety committees and health and safety representatives. The requirements for such committees and for the presence of safety representatives may vary from one jurisdiction to the next, often varying according to the size of the organization (26). Foster and Barnetson (2016, 29) highlight the criticism of the internal responsibility system, including relating to its effectiveness: “The state has attempted to mediate the conflicting demands of workers (who want safety) and employers (who want flexibility to organize work in maximally profitable way). The result is a system that somewhat reduces, but does not eliminate, workplace injuries.” They add that it’s a system that tends to work for a more standard form of employment (stable, full-time job in a large organization), whereas workers in less traditional settings do not benefit as much from the internal responsibility system.

In addition to the internal responsibility system model, governments have established inspectorate systems, where inspectors conduct “work-site inspections in order to identify health and safety violations and ensure their remediation” (Foster and Barnetson 2016, 26). In fact, in every jurisdiction, the authority responsible for OSH21 will designate an “officer,”22 an “inspector,”23 or a “Head of Compliance and Enforcement,”24 who all have investigative powers. There are generally two main types of workplace visits conducted by the inspectorate: proactive and reactive. Proactive visits are typically unannounced and aim to increase awareness of OSH regulations, check compliance, and promote the collaboration of the workplace parties. Reactive visits occur in response to a fatality, a critical injury, a work refusal, or a complaint or when a health and safety event happens in the workplace. These visits typically happen when an employer files a report following an injury, in regard to its obligations. When officers or inspectors arrive at a workplace, they can write an order to ensure compliance, issue stop-work orders, and issue stop-use orders when they consider there is a danger to the health or safety of workers.25 At the federal level, it is specifically provided that in the event of a death that “results from a motor vehicle accident on a public road, as part of the investigation the Head shall obtain a copy of any police report as soon as possible after the accident.”26 However, research has highlighted major shortcomings in the implementation of the inspectorate roles, including the lack of resources and the priority accorded to more “so-called traditionally dangerous workplaces,” leaving other workplaces uninspected despite the importance of certain risks (Foster and Barnetson 2016, 232).

In all jurisdictions, the regulatory frameworks provide the possibility to impose fines and other sanctions when violations of standards are identified. The sanctions vary significantly from one jurisdiction to another, as in some cases, courts have the authority to impose imprisonment (with the exception of Québec). Fines can vary widely, with some jurisdictions allowing for substantial penalties, reaching up to $1 million in specific cases, while others have considerably lower fines.

The Compensation of Work Injuries and Illnesses in Canada

Workers’ compensation is one of the oldest social protection programs in Canada, dating back to the early twentieth century (for a broad overview of these systems and their challenges, see Foster and Barnetson 2016; Ison 1996). It is exclusively governed by provincial legislation, which applies to federally regulated enterprises, including interjurisdictional trucking, the airline industry, and shipping (Lippel and Walters 2019).27 Rights to workers’ compensation of employees of the federal government are also governed by provincial legislation, Parliament having delegated by reference the determination of coverage for government employees.28 Specific legislation governs compensation of seafarers who, if ineligible to claim under provincial or territorial legislation, may turn to the Merchant Seamen’s Compensation Act.29

The workers’ compensation regimes across Canada work on a no-fault basis, meaning that how the injury occurred—whether it was the worker’s or the employer’s fault—is not relevant. Prior to the implementation of this regime, workers had to sue their employer, thus proving their fault, which often proved impossible or extremely costly: “In exchange for immediate, predictable, and stable compensation, injured workers gave up their right to sue their employer for workplace injury. This exchange is often called the historic compromise” (Foster and Barnetson 2016, 35).

Even though these regimes are based on the same basic principles, not all of them provide the same level of protection and coverage. For example, in 2021, the coverage of the workforce in Alberta (81.76 percent) and Ontario (75.89 percent) was significantly less than in Québec (92.90 percent) or NL (97.40 percent; see AWCBC, n.d.; most recent data doesn’t include Ontario and NL). This means that all workers are not equally protected from one province to the next. For mobile workers, this holds significant importance, as they might be unaware of potential changes in their coverage when they move between jurisdictions (AWCBC 2024).

All Canadian compensation regimes guarantee the right to compensation for eligible workers injured out of and/or30 in the course of employment. Foster and Barnetson (2016) outline the general principles for the requirement of work relatedness:

Injuries arise out of employment when they are caused by the nature, conditions, or obligations of employment. That is to say, injuries arise from employment when they are caused by an employment hazard. Injuries that happen at times and places consistent with the obligations and expectations of employment occur in the course of employment. This can include injuries that occur outside of normal hours of work or off the employer’s premises (e.g., running an errand for your employer on your drive home) so long as there is some relationship between employment expectations and the time and place of the injury. (36)

Deciding whether injuries or disease “arise out of employment” and thus compensation eligibility is usually straightforward for acute injuries that happen in a fixed workplace but becomes more complex when dealing with injuries that occur while mobile to, within, or between workplaces, and while living at work. It is also more challenging to establish the relationship between chronic injuries and occupational diseases and work; these challenges can be exacerbated by ERGM. These issues are the focus of future chapters.

Each province and territory has a workers’ compensation board (WCB) that assesses the eligibility of a claim made by a worker. In doing so, the WCB will assess the merits of a claim based on the balance of probabilities, asking if it is more likely than not that the injury arises out of the employment. It is a burden of proof that is much lower than in criminal matters, where the reasonable doubt is the standard. In many jurisdictions, there are also presumptions, which means that if, for example, a worker does a preidentified type of work or meets certain criteria and suffers from a preidentified illness, that illness will be presumed to have arisen in the course of employment, unless proven otherwise.31

Once the WCB finds that the injury is compensable, the worker will be eligible to receive wage-loss, medical, and vocational rehabilitation benefits. If the claim is made by the family of a deceased worker, their dependents are eligible to receive fatality benefits, including funeral costs and wage-loss benefits (Foster and Barnetson 2016, 37). Because they are no-fault, these regimes curtail workers’ rights to sue under tort law, so even negligent employers or those responsible for sexual harassment are protected from civil liability if the injury incurred is potentially covered under the provincial workers’ compensation legislation, whether or not the worker or the worker’s estate has actually filed for workers’ compensation.32 It is often assumed that employers would prefer injuries and illnesses not be compensable because of potential consequences for compensation premiums and other compensation-related obligations, but in some cases, as within the mobile labour force, employers might prefer injuries to be deemed compensable to avoid the risk of being sued. Furthermore, there are numerous specificities with regard to scope, coverage, benefit levels, and adjudication that differ from one province to another. Obligations are also different, as, for example, in Québec, the worker is the one who must declare the injury or illness to the WCB, whereas in Ontario, the employer is required to report an injury to the WCB.33

Eligible workers in all Canadian jurisdictions have the right to appeal WCB decisions—a right that is particularly important in the case of situations where claims are denied and work relatedness can be ambiguous. One key regulatory difference between the province of Québec and the provinces of Alberta, NL, and Ontario is that the policies adopted by the WCB (see table 3) are binding for the appeals tribunals in the latter three provinces but not in Québec. In Alberta, the Appeals Commission is the appeal body34 and is “bound by the board of directors’ policy relating to the matter under appeal.”35 In NL, the Workers’ Compensation Independent Review Board is the appeals tribunal. Its commissioners are also bound by the policies of WorkplaceNL.36 In Ontario, the Workplace Safety and Insurance Appeals Tribunal is the appeal body responsible for hearing the appeals of the Workplace Safety and Insurance Board (WSIB): “If there is an applicable Board policy with respect to the subject-matter of an appeal, the Appeals Tribunal shall apply it when making its decision.”37 In Québec, the appeals tribunal is the Administrative Labour Tribunal, and several laws, including the Act Respecting Industrial Accidents and Occupational Diseases (AIAOD), fall under its jurisdiction. However, the Administrative Labour Tribunal’s jurisdiction is de novo, which means it is bound not by any internal policies adopted by the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST) but only by the laws and regulations. For the sake of clarity, for all provinces, we have identified these appeals commissions or tribunals as “appeals tribunals.”

It is important to note that compensation boards rely exclusively on funding from employers’ premiums. While specificities vary across jurisdictions, the fundamental principle governing this mechanism is called experience rating. The idea is simple: Lower rates of occupational injuries will reduce the premiums paid. There is thus supposed to be a financial incentive for employers to prevent such injuries. However, researchers have documented undesirable effects of this mechanism, in particular a greater propensity to appeal workers’ claims and rushing workers back to work without making any health and safety improvements, which can also have the effect of lowering premiums (MacEachen et al. 2012; Tompa, Trevithick, and McLeod 2007; Charbonneau and Hébert 2020). The potential effect of experience rating on encouraging injury prevention in the context of different forms of mobile work needs to be investigated, as potential issues with visibility and jurisdictional differences could encourage claim suppression and other practices to avoid paying higher premiums.

In the next section, we will start to explore more closely how mobility—within, across, and outside jurisdictions—may impact the effectiveness of the provisions that are supposed to protect workers and compensate them for work-related injuries and occupational diseases.

Mobile Workers and the OSH Regulatory Framework

First, since in each case, provincial and territorial OSH legislation does not have extraterritorial application, its territorial scope can limit the effectiveness of OSH protections for internationally and interjurisdictionally mobile workers. For Canadian workers who are internationally mobile, their recourse might be limited. Canadian workers working in other countries may face specific hazards that arise from the specificities of the political or geographical context of the country where they work, but they may not be adequately protected since they cannot refuse a deployment in a war zone or obtain support from inspectors without fearing reprisals. To illustrate, in Québec, a 1987 decision38 found that a worker who refused to undertake a trip overseas—exercising the right to refuse dangerous work provided for in the OSH legislation—did not have regulatory protection for his refusal (Lecavalier and De Aguilar 2015),39 a situation revealing a clear gap in current regulatory protections.

This is also an issue for interjurisdictional workers within Canada. As Lippel and Walters (2019, 326) note, “The regulator’s jurisdiction stops at the border of their province, so this limitation applies when hazardous conditions arise in another Canadian province not just in another country.”

In Québec, the appeals tribunal declined jurisdiction for the claim of a worker resident from Québec, hired by a Québec employer to work on a twelve-day contract in Ontario. Once in Ontario, the employer advised the worker that he had to buy protective gear. The worker refused, saying that under the Act Respecting Occupational Health and Safety (AOHS), the Québec legislation, it was the employer’s duty to provide such gear. The employer fired the worker. The worker filed a claim saying that he was penalized for exercising a right under the AOHS. The appeals tribunal declined jurisdiction, stating that the “AOHS does not apply in Ontario; had the facts occurred in Québec, the worker’s complaint could have been upheld but, given the circumstances of this case, it must be dismissed.”40 However, in Ontario, a worker hired by an Ontario company to work temporarily in BC complained to his supervisor about his health and safety concerns regarding conditions of work on a BC work site. He was asked to return to Ontario, where he was fired two weeks later. He filed a complaint in Ontario alleging he was fired because of the health and safety issues he had raised. His employer, unsuccessfully,41 pleaded that the Ontario Labour Relations Board had no jurisdiction on the complaint, ostensibly because Ontario health and safety legislation did not apply to conditions in BC. Because the employment relationship was rooted in Ontario and the Occupational Health and Safety Act (OHSA) governed the worker’s obligation to express his health and safety concerns, the Ontario Labour Relations Board found it had jurisdiction over the complaint of the worker. These two cases illustrate the complexity and jurisdictional challenges that can arise when workers try to mobilize the legislation to enforce their rights to a safe work environment.

A second potential issue with regulatory effectiveness around prevention of injuries is related to federal/provincial jurisdictional overlap. This can lead to uncertainty and confusion, especially in scenarios like reporting accidents or responding to them, as well as when workers need to refuse dangerous tasks. This is perhaps particularly obvious at the interface between OSH regulators and those called upon to regulate transportation as public regulators, many of whom are within the federal jurisdiction. For example, air travel, rail travel, seafaring, and interjurisdictional trucking all fall within the scope of federal jurisdiction, although local rail travel and fisheries within provincial waters would fall under provincial jurisdiction. This has implications for injury prevention and accident investigation in these sectors, as transportation is often federally regulated, but health and safety are provincial/territorial responsibilities and can thus lead to uncertainty about who should investigate and the law that applies. For Desai Shan (2022a, 2), fishing health and safety governance is a “wicked problem,” partly because of jurisdictional issues. Shan presents a telling example of how a seemingly straightforward situation becomes significantly more complex to navigate, owing to the coexistence of different regulators:

Noise exposure and hearing loss are identified as an occupational hazard for fishing workers in Atlantic Canada. If noise exposure is recognized as an occupational health issue, provincial OSH authorities should take measures to eliminate and control noise on board fishing vessels. However, noise sources can be related to fishing vessel design and construction, which falls under federal jurisdiction. (2022a, 7)

Thirdly, jurisdictional confusion around injury prevention and investigation may also arise from the division of responsibilities between different actors or agencies within a province. For example, if a traffic accident occurs in Ontario involving the death of IMWs transported between the farm and the housing provided, if it may be work related, WSIB investigators would examine the circumstances of the accident for the purpose of determining contraventions under the Ontario OHSA and compensability, as would the Ontario police, who would be called upon to apply a variety of provisions in the Highway Traffic Act and the Criminal Code applicable to motor vehicle accidents (e.g., criminal negligence, dangerous driving, and impaired driving).42 In contrast, if an accident occurs while a worker is returning to their residence during the usual extended commute between work and home, it is unlikely that the WCB would investigate the circumstances of the accident, as it would not be considered to be work related (see chapter 4). Lippel and Walters (2019, 327), in their research, report that “the delimitations are unclear, and [they] were told that multiple inspectorates, including police forces, often attend the scene of an accident and do multiple factual analyses to determine which regulation/regulator has jurisdiction over the incident.” Such intrajurisdictional ambiguity and potential confusion have reduced the quality of the oversight, thus contributing to unsafe working conditions for both IMWs and workers who work with them.

A final issue stems from the nature of some of the work that is performed by mobile workers. ERGM does not necessarily imply that the worker is spatially separate from the employer. For example, once they’ve arrived at the workplace, IMWs may well be under the direct supervision of their employers during all work activities, in their accommodations, and, in some cases, when travelling for supplies or medical care. However, other mobile workers—including those who travel for work (e.g., truckers); those who work in multiple, transient workplaces (e.g., tree planters and home care workers); and those driving or being flown in and out of remote communities—are often at some distance from their supervisors or employers. In those cases, understanding the effectiveness of OSH legislation must be informed by an understanding of employer oversight and communication and by the monitoring of site safety by managers and employers. These mobile workers are required to get to, travel within, and leave work, sometimes with little information or control over hazards, including the state and means of transportation that are being provided. The employer may also turn a blind eye to these conditions or may not be in a geographic location that permits adequate supervision. This further shows the limits of the provisions supposed to safeguard workers when mobility comes into play and will be discussed in more depth in chapter 3, where we explore the peculiar hazards that mobile workers face and assess whether the legislation in place can effectively protect mobile workers from these hazards.

These examples highlight the complex nature of the challenges that may arise and underscore the limitations of laws intended to safeguard mobile workers. Additionally, mobility can create confusion because of the interjurisdictional and intrajurisdictional complexities it involves.

The Territorial Scope of Compensation Schemes

As previously mentioned, as with OSH, each province and territory has a regulatory framework for the compensation of workplace injuries or illnesses. Each act and set of regulations has different dispositions about who is a worker and an employer covered under the act and hence is eligible for workers’ compensation. In this section, we will see how mobility may muddy the waters when workers need compensation.

It must first be noted that specific rules apply to employees of the federal government. The right to compensation of employees of the federal government or of a Crown corporation such as Canada Post or Air Canada is governed by specific legislation that provides for compensation according to the rules of the province in which the employee is usually employed.43 For workers who work within Canada, each province’s WCB is thus called upon to adjudicate claims from these federal workers according to local provincial legislation, interpreted in light of the specificities identified in the Government Employees Compensation Act (GECA). If the federal employee is usually employed outside of Canada, section 6 of the GECA provides that it is the Ontario legislation that applies to a claim for an injury occurring or a disease contracted outside of Canada.44

When ERGM involves mobility across provincial or national boundaries, before a claim is accepted, there is a determination as to which WCB should provide coverage to the worker. In some cases, the compensation board will accept claims for all accidents occurring within the province or territory; however, each jurisdiction has specific rules and policies governing the territorial scope of its legislation, as can be seen in the appendix. In this context, as illustrated by the case law, there is a possibility that workers may be deemed ineligible for compensation in multiple jurisdictions—a risk exacerbated by variations in compensation policy across provinces. Of the four provinces examined, Alberta and Ontario appear to be most likely to compensate for any accident that happens in their jurisdiction or outside of it, irrespective of the location of the employer and domicile of the workers, but even here there are exceptions. It is worth mentioning that if a worker is denied compensation, they may be entitled to sue in a civil case, following the principles of civil liability or tort law, in which case they would need to demonstrate fault (not a requirement for compensation), damages, and the causal link.

In Québec, the legislation covers work accidents occurring in Québec that involve a worker working for an employer with an establishment in Québec.45 However, if the worker’s employer does not have an establishment in Québec, an accident that occurs in Québec and affects a worker residing in Québec will not be covered under the AIAOD. There are several cases where the tribunal has been called upon to interpret the meaning of “establishment.”46 Thus, an Ontario-based employer who bid on contracts on Québec soil was found to have an establishment in Québec because the private residence of the president of the company (rented, not owned by him), situated in Québec, included a garage in which construction equipment was stored, and thus the compensation claim, for the injury incurred in Québec by the Québec resident, was found to be compensable.47 In a case where a Québec-domiciled construction worker only worked in Québec for a construction company based in Ontario, the Ontario WCB denied coverage, given that links to Ontario were insufficient; the worker did not challenge this decision; and the Québec WCB48 accepted the claim. However, the employer then contested the decision relating to its status as a Québec employer, specifically for the purpose of determining whether or not it was obliged to pay premiums. The final decision regarding the obligation of the employer to pay premiums concluded that it had no establishment in Québec, and the Commission de la santé et de la sécurité du travail (CSST) then suspended the worker’s benefits because the employer was found to not have an establishment in Québec. The appeals tribunal49 reinstated the worker’s benefits on a procedural question, but this case raises a serious issue. Essentially, while in theory, this worker who had an accident that was compensable, by its nature, in both provinces could have lacked coverage in both provinces because the employer had no establishment in Québec and the worker and work accident had insufficient ties to Ontario.50 This litigation provides a glimpse into the mechanisms by which it is conceivable that mobile workers in Canada injured at work can fall through the cracks created by interjurisdictional conflict.

If a worker domiciled in Québec and employed by a Québec-based employer has an accident outside of Québec, the Québec legislation will also apply, as it will if the worker who is no longer domiciled in Québec is injured within five years of leaving Québec while working for a Québec-based employer.51 If the worker cannot prove the identity of their employer, as happened in a case where a middleman recruited truckers for an unnamed company, the worker will not have coverage if he is injured outside the province.52 This case illustrates the vulnerability of workers in the informal workforce, who are highly precarious as well as being, in this case, mobile workers. When recruiting agencies are involved, the debate as to the “real” employer may also arise, and if the “real” employer does not have an establishment in Québec, the Québec-domiciled worker who is injured working outside of Québec will not have coverage under the Québec legislation.53

If the worker who is not domiciled in Québec is injured in Québec while working for an employer with an establishment in Québec, section 7 of AIAOD provides coverage; however, if the worker who is not domiciled in Québec is injured outside of Québec while working for a Québec-based employer, they will not have coverage,54 regardless of whether their salary has been included in the calculation of premiums paid to the Québec WCB by the employer.55 Not surprisingly, the issue of domicile has given rise to several disputes. For example, artists and dancers working for Québec-based dance troupes have filed for compensation when injury occurs while the dance company is on tour and have been found to be domiciled in Québec. The tribunal does not require proof of landed immigrant status if the evidence shows that the worker’s principal address is in Québec.56

This situation is quite different from that applicable to accidents occurring in Alberta. Pursuant to the Alberta Workers’ Compensation Board’s (WCB-Alberta) Policies and Information Manual (2023a), workers injured while working in Alberta would have coverage if the accident occurred in Alberta, regardless of their domicile, if the employer has, or should have, an account with the WCB-Alberta.57 The definition of employer in the Alberta Workers’ Compensation Act (WCA) has no requirement with regard to having an establishment in Alberta, referring only to an “individual, firm, association, body or corporation that has, or is deemed by the Board or the Act to have, one or more workers in the individual’s or its service.”58 Pursuant to section 14, the only exception can be found in the Workers’ Compensation Regulation,59 which provides for industries designated as being exempt from the WCA.

The Alberta WCA also allows for coverage for accidents occurring outside of Alberta if the worker is a resident of Alberta or if they have their “usual place of employment in Alberta and the work out of Alberta is a continuation of the employment by the same employer . . . and the nature of the employment is such that, in the normal course of the employment, the work or service the worker performs is required to be performed both in and out of Alberta,” and if the employment outside of Alberta has lasted for fewer than twelve months.60 These provisions provide for relatively large coverage for out-of-province Alberta workers and nonresidents who usually work in Alberta (WCB-Alberta 2024).

In Ontario, the law provides for different situations. When an Ontario worker is injured while being employed outside of Ontario, they will be covered by the act if the worker resides and is usually employed in Ontario, if the employer’s place of business is in Ontario, and if the employment has lasted fewer than six months, unless the board decides otherwise.61 If the worker is not an Ontario resident but is usually employed in Ontario, they will be eligible if the employer’s business is in Ontario and if the worker was out of Ontario for some temporary, work-related purpose. However, if an Ontario worker is travelling for work and the employer is paying premiums to the jurisdiction they are travelling in, it is that jurisdiction that will cover the worker. The nonresident Ontario worker will also be covered even if their employer’s business is not in Ontario if the worker is employed in Ontario but was out of the province “only for some casual or incidental work-related purpose, i.e., a salesman picking up his pay cheque” (WSIB Ontario 2008, para. 11).

The Ontario WSIB policy on “Non-Resident Workers” provides that “a non-resident worker or non-resident employer must have a substantial connection with Ontario in order to come within the scope of the Act [WSIA]. . . . A non-resident worker who works in Ontario normally has a substantial connection with Ontario unless the worker’s Ontario employment is so minimal that it is merely incidental to the worker’s employment in another jurisdiction” (WSIB Ontario 2007, paras. 1–3).

The notion of “substantial connection” is subject to interpretation, and the WSIB policy states that each case must be decided on its own facts. However, the policy specifies that a worker who works in Ontario for more than eleven days in the course of a year usually has a substantial connection with Ontario. These nonresident workers need not necessarily be injured in Ontario. For example, a worker domiciled in Nova Scotia, who was hired to work in Albania and was employed by an Ontario-based employer, was considered eligible for compensation under Ontario law. The panel found the worker had sufficient connection requirements for entitlement to compensation as a nonresident of Ontario under the provisions of section 19(1) of the WSIA.62

In NL, a new law came into force in September 2023.63 NL legislation specifies in which situations a worker working outside the province of NL will be eligible for compensation in case of a work injury. The employer must carry “on a business in the province that has a substantial connection with the province,” and the injury has to occur “out of the province to a worker who is employed by that employer.”64 The worker or dependents are entitled to compensation as if the injury had occurred in the province, with the exception being situations where the worker or dependents are entitled to compensation under the law of the place where the injury occurred.65 For NL workers injured outside of the province, it then seems that they may need to look at the law where the injury occurred before turning to WorkplaceNL. Also, WorkplaceNL (2023a) documentation mentions that the fact that an employer is located in the province of NL does not constitute by itself a substantial connection. As for nonresidents, section 57 of the Workplace Health, Safety and Compensation Act provides that “the commission may order that payments of compensation under this Act be made to persons living in another province, country or jurisdiction in respect of a worker killed or injured in this province.”66

It is also possible that a worker could have the right to compensation for an accident under several different regimes. In the four regimes examined here, an election disposition exists according to which workers must elect the province where they decide to claim benefits following a work injury within particular, interjurisdictionally variable time frames (see table 4). Here, as in other situations outlined earlier, workers need to be aware of their rights in order to preserve them.

French-speaking workers injured outside of Québec can encounter difficulties in relation to this requirement.67 In Ontario, for example, the employer can file a claim on behalf of a worker without necessarily informing the worker of their right to opt for compensation under the Québec compensation scheme. Benefits are different in each province, as is the role of the doctor in charge of the patient (Hudon, Lippel, and MacEachen 2019). Sometimes a worker only becomes aware of the obligation to choose between several applicable regimes when benefits run out and they seek counsel. The Québec Court of Appeal68 confirmed that a worker had not validly elected to be covered by the Ontario regime in a case in which the employer managed the claim in Ontario, and the worker received benefits without having formally opted for that regime. His claim for benefits in Québec was found to be validly submitted, although it is also clear that workers cannot keep benefits received for the same injury from two different compensation boards.69

The Ontario Superior Court of Justice concluded in 2020 that when a worker elects a jurisdiction for compensation, they cannot bring a legal action, such as a civil suit, against the same employer in another jurisdiction. The court invoked the “historic trade-off” and what it entails:

The workers’ compensation scheme established a “historic trade-off” by which workers lost their cause of action against their employers but gained compensation that depended neither on the fault of the employer nor ability to pay. The provision of workers’ compensation insurance was country-wide and each plan incorporated a provision reflecting the historical trade-off. There was no good reason to establish a tort haven amongst provinces that would encourage the circumventing of provincial workers’ compensation legislation by simply moving to a different province. The plaintiff’s tort action represented an attempt at relitigation of a matter covered by insurance to which the defendant had contributed, a circumvention of the historic trade-off, and an opportunity for double recovery and as such was an abuse of process.70

Thus, when an injury or fatality occurs, mobile workers or their dependents may need to quickly assess what to do. They may need to elect a jurisdiction, and the period allowed for election varies significantly from one jurisdiction to the next. Coverage and benefits also differ between provinces, sometimes quite substantially, and advantages of claiming under one regime versus another may be different for employers and workers. So in those cases where the worker may elect to be covered under one of two regimes, it is wise for the claimant to seek information before choosing a province—and the corresponding legislation governing the claim—and they need to do so in a timely manner. Given that employers are often more knowledgeable about workers’ compensation than workers themselves, this and the other complexities outlined earlier could potentially contribute to failed claims, lower benefits than they might have been formally eligible for, or even a reluctance to claim on the part of workers.

The Interjurisdictional Agreement

The Interjurisdictional Agreement on Workers’ Compensation (IJA) also has to be considered (AWCBC 2017). The IJA binds the provincial and territorial WCBs that have committed to its provisions. Its intent is to avoid duplicate payment of employer premiums on workers’ earnings, to assist workers or dependents when more than one jurisdiction may be involved in a claim, to create a system to permit any board to provide services to another board’s claimant, and to provide a system for dispute resolution between boards (AWCBC 2017). There is also a dispute mechanism that provides for arbitration between two boards in the event that there is disagreement as to which board should assume the costs of benefits in a given case.

All provinces are part of the IJA, but Québec withdrew from section 7 concerning occupational diseases,71 which provides for the procedure when a worker has partial exposure within the jurisdiction of a particular board and discusses how the different boards will share costs associated with that claim. If a board receives a claim for an occupational disease, it will have to adjudicate the claim if 30 percent of the “total contributing exposure occurred in the jurisdiction of that Board” (AWCBC 2017, s 7.4[a]). Then the costs will be shared by the contributing boards (see s 7.7). In Québec, the board will only rely on what is provided by the AIAOD about the territorial scope and won’t apply section 7 of the IJA,72 meaning that if the Québec WCB or the appeals tribunal concludes that it doesn’t have to adjudicate a claim because only a small percentage of the exposure that caused the occupational disease took place in Québec, it should then transfer the worker’s file to the competent board to deal with the claim.73

The IJA also includes the Alternative Assessment Procedure. This policy applies to employers in different sectors such as interjurisdictional trucking, courier, and bus industries. Employers may elect to participate in the optional Alternative Assessment Procedure. Under the Procedure, these employers report earnings and pay premiums—for example, to Ontario for their Ontario resident workers who travel through other Canadian provinces and territories (WSIB Ontario 2018).

International Agreements on Social Security

Of relevance for IMWs, there are international agreements designed to ensure workers from outside Canada maintain their right to benefits once they return home, and these issues are also governed by specific contractual provisions policed by consulates in some cases. In Québec, the WCB participates in fifteen international social security agreements. These agreements include provisions relating to work-related accidents and diseases. They also promote cooperation between the different boards or organizations and provide, among other things, for specific rules in relation to occupational diseases and allocation of the costs of a claim (CNESST 2024). These agreements mainly concern countries of Europe: Germany, France, Norway, Sweden, Belgium, Greece, Poland, Denmark, Italy, Portugal, Finland, Luxembourg, Romania, Serbia, and Austria.

The WSIB of Ontario has entered into reciprocal agreements with Italy, Greece, and Portugal. These agreements apply to Ontario residents who move out of the country or when a person from another jurisdiction comes to Ontario. They provide a way for the WSIB to “review a worker’s degree of permanent impairment/disability, pay for necessary health care at the worker’s place of residence, and register a worker’s claim for exposure that may have resulted in an occupational disease” (WSIB Ontario 2004d). The WSIB also has a special policy that applies to workers participating in the Commonwealth Caribbean/Mexican Seasonal Agricultural Workers Program, which provides that “coverage begins as soon as workers reach the agreed-upon point of departure in their homeland, and remains in place until they return to their country” (WSIB Ontario 2009).

No similar agreements seem to be in force in Alberta or NL. The situation of a worker who wishes to leave the jurisdiction once their claim is recognized will be further discussed in chapter 4.

As we will see in subsequent chapters, even when IMWs have accepted claims and coverage in the province or territory in which they are injured, they may face challenges once they are required to or wish to return to their home country (Sikka, Lippel, and Hanley 2011), an issue that can also arise when a worker living in a province outside of where the claim is managed has returned home. Mobility can pose challenges in determining workers’ obligations to assume light work and in determining suitable employment for the worker whose injuries prevent them from returning to preinjury employment. Finally, in some cases, the calculation of benefits may be problematic, particularly for IMWs. These issues will be discussed in chapter 4. These are not legal obstacles to compensation, but the compensation process, which is already complex for many workers, becomes even more difficult to negotiate when the worker is no longer in the province where the claim has been filed.