Court decides if man employed

Insurance company says, "no". Court says, "yes".

In Ontario an arbitrator found that Dennis Ferguson is considered to be employed. Ferguson was seriously injured in a car crash in August 2007. It is very sad, the crash took the lives of his stepdaughter, two-month old daughter, and fiancée.

Just before the accident Ferguson had shut down his owned business, DH Custom Auto and go to work for MS Welding, an auto body and repair shop. He made a verbal agreement that he would go to work for a weekly salary of $1,200. Ferguson was given a cash advance with an agreement that he would pay this advance off at a certain amount each week from his salary.

The accident prevented Ferguson from returning to work. His new employer told him that the money advanced was all he would get. So now how much money will Ferguson get from the insurance company for his claim?

If Ferguson is considered to be self-employed then his weekly benefit is only $27.70. Fortunately the arbitrator found Ferguson met the legal definition of being an employee due to the following conditions:

  • did not own any part of MS Welding business;
  • did not have a location for his own "business" (since he performed duties at MS Welding shop);
  • did not have the discretion to refuse the work assigned to him;
  • did not participate in the everyday operations of MS Welding, other than in the duties assigned to him;
  • did not determine his own hours; and
  • received a set wage.

Once it was determined that Ferguson was entitled to the benefits of a person who was employed then his income was based on the last four weeks before the accident. His benefits were thus calculated to be $294.12 per week.