Offences and Penalties - Employer

Document sections:| Law | Policy | Guidelines | References |

Law

Non-compliance offences

s.149(1)

A person who knowingly makes a false or misleading statement or representation to the WSIB in connection with any person's claim for benefits under the insurance plan is guilty of an offence.

s. 149(3)

Employer wilfully fails to inform the WSIB of a material change in circumstances respecting an obligation of the employer under the Act.

s.150

Contravening the rules regarding confidential information.

s.151

Failing to register as an employer within 10 days; failing to provide the WSIB with information necessary for classification; failing to properly close an account with the WSIB; or knowingly making a false or misleading statement regarding registration or classification.

s.152

Failing to keep records; failing to provide accurate statements of earned wages; failing to notify the WSIB of an accident; or failing to provide information about the accident.

s.153

Obstructing or hindering an inspection of an employer's books or accounts or an employer's premises.

s.154

Failing to give the WSIB security for payment when required to do so.

s.155

Deducting from workers, or requiring workers to contribute toward, an employer's WSIB liabilities.

s.156

Contravening a regulation.

s.157

Directors and officers who knowingly authorize, permit, or acquiesce in the commission of an offence under the Act are guilty of an offence, whether or not the corporation is prosecuted or convicted.

s.157.1(1)

The WSIB has two years from the date it becomes aware of the most recent occurrence of a s.150 to s.156 offence to lay charges.

s.157.1(2)

The WSIB has no time limit to lay charges of s.149 offences.

Fraud

Certain acts may constitute fraud under the Criminal Code of Canada (the Criminal Code). Acts that may be fraudulent include, but are not limited to

• modifying a clearance certificate, or
• intentionally reporting lower than real earnings or premiums.

NOTE

Other policies that relate to offences which may be prosecuted under the Workplace Safety and Insurance Act (the Act) are 22-01-05, Offences and Penalties - General, 22-01-06, Offences and Penalties - External Supplier of Goods and Services, and 22-01-07, Offences and Penalties - Worker.

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Policy

The WSIB aggressively pursues all employers who, through non-compliance with the provisions of the Act or through deceptive means, cause it real or potential loss. If an employer commits an offence, the WSIB takes all necessary action, including any of the following

• levying appropriate administrative penalties
• laying charges under the Act or the Criminal Code
• initiating civil action.

NOTE

This policy should be read in conjunction with 22-01-05, Offences and Penalties -- General. For adjustments in premiums see 14-02-06, Employer Premium Adjustments. To ensure that this policy is applicable with respect to registration non-compliance it must be read in conjunction with 14-02-15, Voluntary Registration which takes precedence if applicable.

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Guidelines

Action on offences under s.150 to s.156

For offences under s.150 to s.156, administrative penalties are levied where applicable.

Action on s.149 offences or possibly fraudulent activities

If a WSIB decision-maker suspects that an employer has

• knowingly made a false or misleading statement about a claim
• wilfully failed to inform the WSIB of a material change in circumstances in connection with the employer's obligation under the Act, or
• committed an act that may be fraudulent,

the decision-maker must immediately notify Regulatory Services.

Preliminary investigation

The decision-maker recommends how the account is to be managed. Recommendations may include, but are not limited to

• gathering necessary information by examining management reports and documentation in firm files, or making a referral for a field audit
• validating earnings, premiums and business operations
• making any relevant operational decisions (e.g., reclassifying an operation).

NOTE

WSIB field auditors conduct regular audits to verify employers’ industry classifications, proper method of reporting earnings and premiums, and compliance with reporting and payment obligations.

For s.149(3) offences, to determine if an employer has failed to inform the WSIB of a material change in circumstances the decision-maker refers to policy 22-01-01, Material Change in Circumstances - Employer.

Action following preliminary investigation

If, after reviewing the information gathered, the decision-maker finds no evidence of wrongdoing, the affected operating area applies its established policies and procedures to address and correct the situation where required.

However, if evidence of wrongdoing is found, the decision-maker promptly sends a detailed referral memo and the employer's file to Regulatory Services (see 22-01-05, Offences and Penalties -- General).

Ongoing management of employers’ accounts

While awaiting the findings and recommendations of Regulatory Services, the decision-maker may review the employer's classification, payroll records, premiums, and non-compliance penalties that have occurred to date and, after consultation with Legal Services, may take administrative action.

Such action must not conflict with prosecution by Regulatory Services (see 22-01-05, Offences and Penalties -- General).

Written notice

The WSIB notifies the employer in writing of any adjustments.

Recommendations of Regulatory Services

Regulatory Services sends a report of its findings and recommendations to the affected operating area

• at the conclusion of its investigation (if no charges are laid against the individual or corporation), or
• after the resolution of any charge(s) against the individual or corporation.

No charges laid or no civil action initiated

If charges under the Act or the Criminal Code are not laid and civil action is not recommended to Legal Services by Regulatory Services, the decision-maker

• reviews the employer's account
• confirms, amends, or revokes any previous decisions regarding the employer's classification, payroll, premiums, non-compliance penalties, or eligibility for clearance certificates.

Charges laid or civil action initiated

If charges are laid or civil action is recommended, the decision-maker first consults with Regulatory Services regarding any conflicts (see 22-01-05, Offences and Penalties -- General). Then the decision-maker, in consultation with the manager, reviews the employer's account, including all division or branch accounts and those of any associated companies.

The decision-maker may

• withhold any credit adjustments to the employer's account
• withhold refunds of any kind
• withhold clearance certificates until the WSIB receives the total amount owing
• discontinue any payment arrangements in effect (see 14-04-04, Collections Based on Financial Hardship and 14-04-05, Alternative Payment Arrangements).

Response

The WSIB may respond in any or all of the following ways

• charge the relevant administrative penalty, where applicable
• negotiate a settlement with the employer
• file writs of seizure and sale (see 14-04-03, Writs of Seizure and Sale), or
• institute civil action for the recovery of unpaid premiums
• lay charges under the Act or recommend that the police lay charges under the Criminal Code.

Relief from delayed premiums

The WSIB does not allow relief from unpaid premiums, interest, or associated non-compliance penalties that result from the commission of an offence, nor is action to recover such revenue suspended because of an appeal, the prosecution of an offence, or for any other reason.

Recovery measures

Reporting and payment of premiums

If the WSIB decides to penalize an employer for inaccurate reporting of earnings and premiums (s.152) or non-payment of premiums (s.89), the employer will be charged for premiums deliberately evaded or withheld, plus interest and any other non-compliance penalties.

The WSIB may make retroactive adjustments to an employer's account, in any year in which premiums were payable, if the adjustment results from Regulatory Services finding that the employer has committed wrongdoing, whether or not charges are laid.

Recovery measures must not conflict with prosecution by Regulatory Services (see 22-01-05, Offences and Penalties -- General).

Maximum fines imposed upon conviction under the Act

See 22-01-05, Offences and Penalties -- General.

Time limits

The following chart shows

• the relevant time limits, and
• the date from when the relevant time limit applies.

Offence	Time limit	Date from when the time limit applies
s.149	No time limit	For all s.149 offences that the WSIB became aware of from June 29, 1999, forward, there is no time limit to lay charges.
s.150-156	Two years	The WSIB must lay charges within two years of the date that it becomes aware of the most recent occurrence of the offence. This two-year time limit applies to all offences committed on or after December 29, 2000.

Exception - An employer's failure to produce wage records under s.152 only became an offence as of June 29, 2001. For this type of offence, as of June 29, 2001, the WSIB has two years from the date that it becomes aware of the most recently committed offence to lay charges.

Example - Knowingly providing false information (no time limit)

On January 7, 2002, a worker had a work-related accident. The employer provided health care on-site, and told the worker to take two days off. Although the employer reported the accident to the WSIB on January 10th, the employer only reported the provision of health care; the employer did not report the two-day absence from work. As a result, the worker did not receive loss of earnings benefits to which the worker would have been entitled.

On May 15, 2002, the worker experienced a recurrence of the injury, and went to an emergency room for treatment. The emergency room physician submitted a medical report to the WSIB. In investigating the details surrounding the recurrence, the WSIB learned that the worker had, at the time of the original claim, lost time from work.

Regulatory Services recommended that the employer be prosecuted under s.149(1) of the WSIA, for knowingly making a false or misleading statement to the WSIB. Although the WSIB is committed to prosecuting all parties in a fair and diligent manner, in this case, the WSIB is not bound by a time limit to lay charges.

Example - Deducting premiums from worker's wages (2-year time limit)

From January 1st, 2001 until December 31st, 2001, an employer deducted an amount representing the premiums that were payable to the WSIB from a worker's wages. The WSIB became aware of this on April 1st, 2002.

Regulatory Services recommended that the employer be prosecuted under s.155(1) of the WSIA. In this case, the WSIB has two years from the date that it became aware of the most recent offence to lay charges. Because the WSIB became aware of this offence on April 1st, 2002, in this case, the WSIB has until March 31, 2004 to lay charges.

WSIB staff must be aware of the time limit for s.150 to s.156 offences, and refer all cases to Regulatory Services promptly.

For fraud

A person or corporation who commits a fraudulent act may also be charged and prosecuted under the Criminal Code, where no time limit for bringing an action applies.

Application date

This policy applies to all decisions made on or after April 7, 2008, all incidents of suspected wrongdoing discovered by the WSIB as of October 29, 2007 subject to the guidelines for Time limits.

Document history

This document replaces 22-01-08, dated October 27, 2007.

This document was previously published as:
22-01-08, dated October 12, 2004
11-02-05, dated May 24, 2002
11-02-05, dated August 18, 2000
01-03-04, dated March 4, 1997.

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References

Legislative authority

Workplace Safety and Insurance Act, 1997, as amended
Sections 149(3), 150, 151, 152, 153, 154, 155, 156, 157, 158

Minute

Administrative
#3, March 17, 2008, Page 459

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