The Appeal CommissionThe Workers Compensation Act of Manitoba

Pursuant to The Workers Compensation Act (the “Act”), the WCB has authority to determine whether or not an employer’s undertaking is an industry within the scope of Part I of the Act and is, therefore, an industry to which compulsory workers compensation coverage is extended. The WCB also has the exclusive jurisdiction to determine the class, sub-class, group or sub-group to which an employer’s undertaking or any part, branch, department thereof should be assigned.

Specifically, subsection 60(2)(i) of the Act states:

60(2) “Without hereby limiting the generality of subsection (1), it is declared that the exclusive jurisdiction of the board extends to determining

(i) whether or not an employer’s undertaking or any part, branch, or department of an employer’s undertaking is in an industry within the scope of this Part, and the class, sub-class, group or sub-group to which an employer’s undertaking or any part, branch, or department thereof should be assigned.”

Section 79 of the Act requires that the Board assign each employer in an industry within the scope of Part I to an appropriate class, sub-class, group or sub-group. Section 79 reads as follows:

Assignment of industry to class, group

79 The board shall assign each employer in an industry within the scope of this Part to an appropriate class, sub-class, group or sub-group, as determined by the board, and where an employer’s undertaking includes departments that are assignable to different classes, sub-classes, groups or sub-groups, the board may

(a) assign the employer to the class, sub-class, group or sub-group of the principle department of the undertaking; or

(b) assign each department to the appropriate class, sub-class, group or sub-group.

In this case, the issue under appeal concerns the WCB’s classification of the employer as falling within industry code 701-05 “Resorts & Lodges”. The WCB Classification Manual for Industry Code 701-05, “Resorts & Lodges”, describes the activities included in this sub-group as follows:

Activities Included in Sub-Group

Employers in this class operate resorts or lodges including hunting and fishing resorts which provide overnight accommodation. Facilities may also include picnic areas, concessions or snack bars, guide services, boat and motor rentals, gas and propane sales, rental or sale of fishing equipment, golf courses, horseback riding or snowmobile rental and storage.

Hunting and fishing guides which do not provide overnight accommodations would be classed under 901-05 “Camps, Recreation”.

Other types of recreational activities such as campgrounds and beaches which do not provide overnight accommodations to the general public would be classed under 901-05 “Camps, Recreation”. (emphasis added)

The employer disagrees with this classification. Its position is that it should fall within the classification of the industries listed in Schedule A to Regulation 196/2005, under the heading: “Camps” that reads as follows:

Camps

22 Operation of a day camp, playground; operation of a campground, recreational vehicle or trailer park; provision of hunting or fishing guide services. (This category does not include a guide camp that provides overnight accommodation). (emphasis added)

Until Regulation 169/2008 came into force on January 1, 2009, the industries which fell within the definition of Part 22 “Camps” were described in the WCB Classification Manual for Industry Codes as falling within industry code 901-05 “Camps, Recreation”. As of January 1, 2009, when Regulation 169/2008 came into effect, “Camps” was taken out of industry code 901-05 and put into industry code 710-03 “Day Camps and Parks,” although the description of “Camps” in the classification manual did not change. More will be said about this legislative change, later in these reasons.

As stated, until January 1, 2009, “Camps” fell within industry code 901-05 and was listed under Regulation 196/2005 as an industry which was excluded from compulsory coverage. Effective January 1, 2009, however, compulsory coverage was extended to “Camps”, among other industries, pursuant to Regulation 169/2008 which amended Regulation 196/2005.

Accordingly, in anticipation of this extension of coverage occurring, in the fall of 2008 employers that appeared to be operating previously, as “Camps”, were notified of the new requirement to register with the WCB.

The appellant in this case was one of the employers contacted. In the course of discussions between the appellant and the WCB, the WCB discovered that the appellant employer provides overnight accommodations to campers.

The Assessment Services Department (“ASD”) advised the employer, therefore, that because it provides overnight accommodation it belongs in industry code 701-05, “Resorts & Lodges”, and was required to have had compulsory coverage, from whatever date it started providing overnight accommodations. In other words, the employer was not a newly covered industry brought in only by virtue of the new regulation. ASD also advised the employer, therefore, that the employer would be charged assessments for the current year (2008) and the two previous years.

Coverage Generally

Under the Act, compulsory coverage applies to all employers and all workers in all industries in Manitoba except those excluded by Regulation. Specifically, the Act provides,

Application of Part I

2 This Part applies to

(a) all employers and all workers in all industries in Manitoba except those excluded by Regulation under section 2.1 (exclusion)

Exclusion of industries, employers or workers

2.1(1) The Lieutenant Governor in Council may, by regulation, exclude an industry, an employer or workers from being within the scope of this Part and, in doing so may

(a) provide that the regulation applies to only part of the province or the whole of the province;

(b) permit the inclusion of artisans and mechanics employed full-time at their trade in the excluded industry.

For the most part, industries have always been included in or excluded from coverage, based upon the industry in which the employer is engaged.

Coverage in this case

In this case, the employer has described itself as running children and youth week-long summer camps as well as weekend programs. On its website, it lists the facilities it provides. Those include 10 cabins with 5 bunk beds in each. In a telephone conversation with a WCB employee on October 30, 2008, the employer confirmed that the operation it runs does provide overnight accommodation to campers and counselors as well as overnight accommodation to other organizations that rent the camp.

It is clear, therefore, that this employer provides overnight accommodation.

Accordingly, the panel is of the view that the employer’s activities should be classified under industry code 701-05, “Resorts & Lodges” which applies to employers who provide overnight accommodation. It is because the employer does provide overnight accommodation that it does not fall within the industries under “Camps”, which are now classified under industry code 710-03, “Day Camps & Parks.” That classification, on the very face of its wording, clearly applies to day camps, of which this employer is not one.

The principal rationale for the distinction between industry code 701-05, “Resorts & Lodges,” and what was formerly industry code 901-05, “Camps Recreation,” is described in the submission from the Chair of the Assessment Committee, to the Appeal Commission, dated February 20, 2009.

He states:

“There are major differences between the structure, staffing and amenities of camping facilities that provide overnight accommodations, and those which do not provide overnight accommodations. As a business venture providing overnight accommodations to campers, this employer meets the requirements for compulsory coverage under the Act. Therefore the employer must be registered and is required to report the assessable workers’ earnings.”

Legislative history

For the sake of clarity, the history and evolution of industry code 901-05, “Camps, Recreation,” is set out below, although, because we have determined that the employer falls within industry code 701-05, “Resorts & Lodges,” this has no impact per se on this decision.

Industry Code 901-05

Prior to January 1, 2009, industry code 901-05 was entitled: “Camps, Recreation.” It included Part 22 “Camps,” of Schedule A, of Regulation 196/2005. When the Regulation was amended by Regulation 169/2008, “Camps” was removed from the excluded classification and reclassified into the compulsory sector as part of industry code 710-03 “Day Camps and Parks.” At the same time, industry code 901-05 was reclassified and named “Recreation.” It continues to apply to the non-compulsory sector but is restricted to Part 26(4) of Regulation 169/2008, “Recreation” which reads:

“Operation of a recreational and sporting facility, including an amusement park, archery range, arena, cricket field, community recreation centre, curling rink, golf driving range, gun club or shooting range, ice or roller skating rink, lawn bowling greens, miniature golf course, race track, ski resort, squash, racquetball or badminton club, swimming pool, tennis club or water slide.”

Effect of legislative changes

In any event, although the coverage classification of “Camps” from non-compulsory, to compulsory, has changed, the description of the industries to which it applies, has not. It clearly applies to the operation of day camps and facilities which do not provide overnight accommodation and is, therefore, classified in the industry code which applies to day camps – 710-03 “Day Camps & Parks.” Based on a description of the facilities and activities provided by the appellant, the classification which applies to this employer is and always has been industry code 701-05, “Resorts & Lodges,” which applies to facilities which provide overnight accommodation. While the industry code which applies to “Camps” did not fall within compulsory coverage until January 1, 2009, the industry code which applies to facilities that provide overnight accommodation has always been a compulsory industry.

Issue No. 2 – Retroactivity

This takes us to the second issue to be determined by the panel as to whether or not the employer is required to report retroactive workers’ earnings and pay premiums as assigned.

Since we have determined that this employer was in a compulsory industry as of 2008 when it was assessed, we have also determined that it is required to report workers’ earnings information retroactive to 2006. Under the Act, when an employer which is liable to assessment is not assessed in any year, it is nevertheless liable to pay the Board the amount for which it ought to have been assessed. The Act provides as follows:

80(7) Where, for any reason, an employer liable to assessment is not assessed in any year, he is nevertheless liable to pay to the board the amount for which he should have been assessed; and payment of that amount may be enforced in the same manner as the payment of an assessment may be enforced.

In dealing with the issue of retroactivity applicable to this employer, the Assessment Committee, according to the minutes of a meeting dated November 27, 2008, determined that: