You hire a trusted neighbour to help with harvest. This neighbour is a mechanic in town and likes to have the extra six weeks of work to supplement his annual income. You’ve known him for years. You trust him with the equipment. He works hard and is reliable. It’s a great situation.
Then one evening after a long day in the combine, he slips climbing off and hits his head. It happens in a split second, but the resulting brain injury turns out to permanently affect his ability to work. He will never be the same man. He has to quit his job as a mechanic. His wife has three kids to look after. Now she has a husband who can’t function as he used to. She can’t work. She has no time for that. But their household will be destitute. She has no choice but to sue the farm for damages and to cover her husband’s lifetime of lost earning potential. She’ll probably win.
Two things can help protect the farm in this situation. Registration through Workers Compensation Board (WCB) and a farm safety program sanctioned by Workplace Safety and Health (WSH). How do these programs work, and what do they cost?
Workers Compensation Board
WCB provides employers with immunity from lawsuits from employees injured on the job, while also providing workers with wage replacement and healthcare coverage. (Note: WSH could still pursue a case if the farm fails to provide a safe workplace.) In Manitoba, signing up for WCB is mandatory in the scenario mentioned above where the mechanic was hired as an employee.
“If he was only hired as a contractor, then the insurance is optional,” says Shereese Qually, Lawyer at Taylor McCaffrey LLP in Winnipeg, Manitoba. “An option for the farmer would be to, by way of contract, require the contractor to confirm they have themselves registered for WCB or carry adequate insurance in case of injury or accident. Or just opt in.”
“However, they may have other liability insurance to cover injury of contractors – a general liability policy. One thing that can happen is finding that they actually were employees and should have been registered, resulting in retro premium pay and fines under the Act,” says Qually. She emphasizes the importance of obtaining proper insurance, so you and your employees or contractors are covered should an incident occur.
An important thing to note about WCB coverage in Manitoba is that family members are excluded under the Workers Compensation Act, according to the Manitoba Government website. Many farmers and ranchers rely on their families to help with daily operations. If an incident occurs with a family member (which can include your spouse, common-law partner, children, parents and siblings), you may want to have extra coverage to ensure everyone is protected, including yourself. Optional Farm Family Coverage with the WCB is available in Manitoba as well as Personal Coverage for farmers with families uninvolved in the business. Now that you know of a few options that are available for Manitoba farmers, how much will all this cost and what about farmers in other provinces?
Average WCB assessment rates for 2018 are $0.95 in Manitoba, $1.19 in Saskatchewan and $1.02 in Alberta. Industries where accidents occur more often will usually pay higher rates.
The above scenario would play out similarly in Alberta. As of January 1, 2016, WCB coverage in Alberta was extended to cover ranch and farm operations with non-family, paid employees. Andrea James, lawyer with Jamesco Barristers & Solicitors in Calgary, says farms in Alberta are required to have a WCB account if the farm employs workers who receive wages and who are not family members. This includes seasonal and casual employees.
If everybody who works on the farm is a family member or is a non-family worker who does not receive wages (for example, this could include a neighbour who helps out occasionally but who is not paid), then they will not automatically be covered by WCB. “It is possible to buy optional WCB coverage for those people, but it is not mandatory,” James says.
Farms are exempt from WCB coverage in Saskatchewan. However, farms can voluntarily sign up for WCB coverage. “Compared to Alberta, a key difference is that family members are automatically covered by WCB if they receive wages,” James says, adding that shareholders are not covered.
WorkSafe Saskatchewan, the WCB’s injury-prevention partnership with the Ministry of Labour Relations and Workplace Safety and the WCB’s prevention department, have been working with employers in higher-risk industries, such as some farms and ranches, to help put preventative measures in place as part of the Priority Employers program.
“At the end of the day, the job of keeping our workplaces safe is something that every single one of us shares a responsibility in,” Phil Germain said in an Occupational Safety article.
“For example, failing to invest in strong safety programs and adhere to preventative measures such as regulated personal protective equipment puts all of us at risk.”
When an incident does occur, it is extremely important to ensure you report it as soon as it happens, or within a few days. All workplace incidents must be reported to ensure lawsuits and monetary penalties are avoided.
“As an alternative to signing up for WCB coverage, farmers in Saskatchewan could buy third-party liability insurance,” James says.
Without due diligence, WSH can pursue
“Remember this is like a quasi-criminal regime where an injury must be reported and Workplace Safety and Health then has the right to investigate and prosecute for any failure to adhere to the WSH Act,” says Qually, referring to the scenario at the top of the article.
“The defence here is due diligence to ensure the farmer has adequate safety policies, training, procedures and safety equipment in place. No amount of insurance will cover this failure or address the prosecution if WSH and the Crown choose to pursue it,” says Qually. She stresses that an important thing to remember is that WCB insurance or even any other insurance may cover the loss, but a WSH investigation is still possible.
Farmers only need to ensure that themselves, their families and their employees are all covered if an incident should occur. Farmers should also take care to inform workers and keep them up-to-date on safety policies and procedures, to ensure that they have a safe workplace.