27 Aug Real Estate Agents and WCB

Posted at 09:24h in News by Acheson Sweeney Foley Sahota

A recent Workers Compensation Act case, WCAT-2015-02345, involved Ms. Schumann, a real estate agent injured in a motor vehicle accident.  ICBC argued that she was a “worker” as defined by the Workers Compensation Act at the time of the collision and therefore not entitled to compensation from ICBC.  Ms. Shumann argued she was an “independent contractor”, not covered by WCB and therefore entitled to compensation from ICBC.

The Workers Compensation Appeal Tribunal was responsible for deciding this issue.  To determine whether a real estate agent is “worker”, the Tribunal considered a practice directive stating that if three criteria are met, a realtor will be presumed to be an independent contractor:

  1. a) The realtor must pay a fixed amount of not less than $100 per month to

the agency for administrative and operating costs regardless of whether

any sales are made or commissions are earned.

  1. b) The realtor must be responsible for his or her own expenses

(e.g.,personal promotion, advertising, or travel and vehicle expenses).

  1. c) The realtor must be entitled to the full amount of the gross commissions

earned.

Depending on the realtor’s contractual agreement with their agency, some firms require realtors to pay a percentage of their commissions to the agency.  In previous decisions, the Tribunal has determined that realtors are “workers” because this criterion was not met.  [See Leslie v Parkes at: http://www.wcat.bc.ca/research/decisions/pdf/2014/08/2014-02484.pdf]

In Ms. Shumann’s case, the Tribunal noted that it was the first case decided based on the most recent practice directive.  The Tribunal also noted that Leslie v. Parkes had been decided on a differently worded practice directive.  As a result, the Tribunal decided that even if the three criteria are not met, a realtor may still be an independent contractor based on the overall consideration of whether the realtor exists as an independent business enterprise.  Some of the facts supporting that she was an independent contractor were that she had no supervisor, she provided her own “tools of the trade”, she paid her own expenses and she had complete autonomy.

This is a helpful case for realtors who consider themselves independent contractors but find that ICBC is denying them coverage on the basis that they are a “worker”.