June 18, 2015

Can you be Employed and on Ontario Works or ODSP? YES!

Munroe v Gore Mutual Insurance Company, FSCO A14-000053, Arbitrator Stuart J. Mutch (Preliminary Issue)

 

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MVC December 19, 2012. At the pre-hearing, Gore Mutual Insurance Company (“Gore”) raised a preliminary issue: Was Mr. Munroe employed within the meaning of the Schedule at the time of the accident? Gore took the position that Mr. Munroe was not employed at the time of the accident because he did not have a permanent position and was working a series of temporary jobs.

At the time of the collision, Mr. Munroe had a relationship with Labour Ready Temporary Services (“LRTS”), a temporary employment agency. Upon entering into a contract with LRTS, it is within the individual’s discretion to accept work offered by the agency. The duration of assignments ranges between four hours and three weeks. If 30 days pass with no work undertaken by an individual, LRTS issues a Record of Employment. After 30 days of inactivity, the agency considers the individual to have resigned.

Mr. Munroe argued that he had an ongoing relationship with LRTS through which he obtained temporary employment on a sporadic, but steady basis. It was his positon that LRTS withheld amounts from his pay cheques for taxes, CPP and EI, as would any other employer, that he had not severed his relationship with LRTS nor had they issued a Record of Employment in the year before the accident, and that he was actually on his was to LRTS to enquire about work availability when the collision happened.

In April 2012, Mr. Munroe applied for assistance through Ontario Works. He was on a “deferment” at the time of the accident, which means that he was not required to search for work, or to be employed because of medical problems. Mr. Munroe had applied for, and began receiving income support from ODSP commencing in October 2012. Both Ontario Works and ODSP permit recipients to be employed. Mr. Munroe testified that he could not manage on Ontario Works payments, so he applied for employment at LRTS.
Documentation provided by LRTS showed that Mr. Munroe was paid for work assignments beginning April 27, 2012 and ending December 3, 2012 for a total of 56 working days. His T4 for 2012, issued by LRTS, showed an employment income of $4,760.75. Mr. Munroe testified that he attended LRTS once per month, and worked between one and two weeks. He had worked every month from April to December except for June.

Since the Schedule does not provide a definition of “employed” or “employment”, Arbitrator Mutch looked at previous FSCO arbitration cases that dealt with this issue. The reasoning in the cases suggested that whether a person is employed for the purposes of the Schedule depends on the intentions of the putative employee and employer, and upon the facts in each case.

Arbitrator Mutch concluded that Mr. Munroe was employed at the time of the accident within the meaning of the Schedule. In the five month period leading up to the accident, Mr. Munroe never had more than a one month gap in assignments, and at the time of the accident he had not worked for just over two weeks. He had resumed his contact with LRTS 14 days after the last day worked, and 4 days before the collision, and he was on his way to their offices when he was involved in the collision. This demonstrated a clear intention to be employed. There was also no evidence that LRTS had issued a Record of Employment to Mr. Munroe during the period between April 2012 and the collision, or that their relationship was severed in any other way.

Arbitrator Mutch did concede that Mr. Munroe had taken some steps that would seem inconsistent with an intention to be employed, such as completing a self-reporting form for ODSP benefits, where it was evident that Mr. Munroe considered himself disabled and unable to work due to medical issues. However, Arbitrator Mutch stated that despite this, Mr. Munroe continued to work on a steady basis even after making the report. Taking into consideration all of the evidence, Arbitrator Mutch concluded that there was a mutual intention to continue an employee/employer relationship.

 

 

Implications
“Employment” is not, and should not be considered legitimate only if it is permanent and structured in traditional forms. The types of available employment opportunities differ greatly amongst one another, meaning each case should be looked at individually. The fact that “employment” or “employed” are terms that are not defined in the Schedule further supports the position that strict and rigid rules were not meant to be applied when deciding these types of cases.

 

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