CITATION: Ireland v. EFCO Canada Corp, 2017 ONSC 188
DIVISIONAL COURT FILE NO.: DC-15-143-JR
DATE: 20170110
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, HAMBLY and MEW JJ.
BETWEEN:
MERVIN IRELAND and ROSE MARIE IRELAND
Applicants
– and –
EFCO CANADA CORP., JAMES McGERRIGLE and the WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL
Respondents
G. Hayes Murphy and Elliot Braganza for the applicants
James G. Norton for EFCO Canada Corp. and James McGerrigle
Daniel S. Revington for Workplace Safety and Insurance Appeals Tribunal
HEARD: 20 October 2016, at Brampton
REASONS FOR DECISION
(Application for Judicial Review)
MEW J.:
[1] On 10 November 2007, Mervin Ireland was operating a screed machine on a bridge under construction over 18 Mile River in Bruce County, when the bridge collapsed, injuring Mr. Ireland and destroying the machine.
[2] The screed machine was owned by Ireland Bros. Ltd. That company was incorporated by Mr. Ireland and his brother Lorne Ireland in 1994. The company carried on a business of owning and operating screed machines, used for finishing cement on bridges and roadways. Each brother is a 50% owner of the company. Lorne Ireland has always been the president of the company, and Mervin Ireland the vice president.
[3] An action for recovery of damages for personal injury and for the loss of the machine was commenced in the Superior Court by Mr. Ireland, his wife, Rose Marie Ireland (as a Family Law Act claimant) and Ireland Brothers Ltd. (as owner of the machine) against, among others, EFCO Canada Corp., which had had been hired to supply materials used to provide structural support while the concrete that would form the bridge cured and hardened, and its employee James McGerrigle, who was alleged to have been the engineer in charge of the design and installation of the form work.
[4] EFCO and Mr. McGerrigle pleaded in their statement of defence that the action against them was statute barred as a matter of law under the provisions of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16 (the “Act’).
[5] The existence of a no-fault compensation system between workers and employers on which the workplace insurance scheme was founded is often referred to as the “historic trade-off”: injured workers gave up their rights of action in return for compensation that is not dependent on either the fault of the employer or its ability to pay.
[6] Specifically, sections 27(1) and 28(1) of the Act disentitle a worker, who is employed by a “Schedule 1” employer (as defined by the Act) and who sustains an injury that entitles him or her to benefits under the insurance plan, from commencing an action in respect of the worker’s injury against Schedule 1 employers or against those employed by a Schedule 1 employer. Section 27(2) disentitles such a worker’s spouse from commencing an action under s. 61 of the Family Law Act.
[7] However, Section 11(2) of the Act (as it read on 10 November 2007) provided that, subject to s. 12, the insurance plan does not apply to workers who are executive officers of a corporation. Section 12, as it read in 2007, nevertheless provided that upon an application, the Workplace Safety and Insurance Board (“WSIB”) could declare that an executive officer of a corporation (s. 12(2)) or an independent operator (s. 12(1)) is deemed to be a worker to whom the insurance plan applies.
[8] The Act does not (and did not in 2007) define the term “executive officer”. But WSIB’s Operational Policy Manual (“OPM”) document 12-03-03, “Who Can Obtain Operational Insurance” does set out who may be considered an executive officer and how executive officer status may be proved.
[9] EFCO and Mr. McGerrigle applied to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”), pursuant to s. 31 of the Workplace Safety and Insurance Act, 1997, for a declaration and order to bar the Irelands from maintaining their action for personal injury damages.
[10] The central issue before the WSIAT was whether Mr. Ireland was a “worker” or an “executive officer” of Ireland Bros. at the time of the accident: if he was worker, the s. 31 application would succeed; if he was an executive officer, it would fail (Decision at para. 24, 62).
[11] In WSIAT Decision No. 1959/14, 20 May 2015, reported at 2015 ONWSIAT 1106, Vice-Chair T. Mitchinson found that Mr. Ireland was appropriately considered to be a worker and not an executive officer. As a result, the civil action brought by the Irelands was barred.
[12] A request for reconsideration was dismissed in a further decision dated 4 November 2015: Decision No. 1959/14R, reported at 2015 ONWSIAT 2492.
[13] On this application for judicial review, the Irelands seek to have the order of WSIAT set aside so that they can continue to trial in the civil action. In the alternative, they request that the matter be remitted to WSIAT for a new hearing before a different adjudicator.
[14] EFCO, Mr. McGerrigle, and WSIAT request an order dismissing the application for judicial review.
The Decision
[15] The Vice-Chair recorded that although the Irelands initially argued that Mr. Ireland was not a “worker” because he was an “independent operator,” they later abandoned that argument and the only remaining issue was whether he was a “worker” or an “executive officer” of Ireland Bros. at the time of the accident.
[16] Mr. Ireland and his brother, Lorne Ireland both gave evidence about the corporate structure of Ireland Bros. (including that Mervin Ireland was the vice president and a 50% owner) and the day-to-day operations of Ireland Bros. (Decision at paras. 30-53). According to the Vice-Chair, they also provided two pieces of documentary evidence dealing with Mr. Ireland’s status at Ireland Bros.: a copy of the incorporating documents from 1994, and a minute of meeting of officers from 1995 (Decision at para. 80).
[17] EFCO and Mr. McGerrigle took the position that Mr. Ireland was not a “directing mind,” and therefore not an executive officer, of Ireland Bros. They submitted that the incorporating documents were not determinative of the issue and that Mr. Ireland’s examination for discovery in the civil action (as well as tax and other documents) supported their characterisation of Mr. Ireland’s role (Decision at paras. 53-61).
[18] The Irelands submitted that Mr. Ireland’s examination for discovery was unreliable because of medication he was taking at that time. They submitted that because there was no suggestion that Mr. Ireland’s formal designation as vice president was a sham or a fraud, this formal designation should be accepted (Decision at paras. 62-69).
[19] Vice-Chair Mitchinson found that there was “no issue” that at the time of the accident Mr. Ireland “was working … performing duties as screed machine operator on behalf of Ireland Bros,” that EFCO and Ireland Bros. were active Schedule 1 employers, and that McGerrigle was a Schedule 1 employee (Decision at paras. 23, 77).
[20] The Vice-Chair determined that the Irelands bore the onus of establishing that Mr. Ireland was an executive officer of Ireland Bros. (Decision at para. 85). The Vice-Chair found the twenty year old formal appointment of Mr. Ireland as vice president “highly limited in nature” and the lack of other supporting documentary evidence a “significant evidentiary shortcoming.” The Vice-Chair therefore considered the actual role of Mr. Ireland in the company, and concluded, for a number of reasons, that Mr. Ireland was a “worker and not an executive officer of Ireland Bros.” (Decision at paras. 86-90). The Vice-Chair found it unnecessary to rely on Mr. Ireland’s examination for discovery testimony in making this decision (Decision at paras. 78-79).
The Reconsideration Decision
[21] On 20 June 2015, the Irelands filed a request for reconsideration of Vice-Chair Mitchinson’s decision. In denying that request, the Vice-Chair found that the Irelands had not met the high threshold test for a reconsideration of a WSIAT decision as they had not demonstrated a fundamental error of law or process, nor provided substantial new evidence not available at the time of the original hearing (Reconsideration Decision at paras. 6-10, 34).
[22] The Vice-Chair addressed the issues raised by the parties as follows:
- He rejected the Irelands’ submission that they had not conceded that Mr. Ireland was an independent operator, only an independent contractor; he found that this was a distinction without a difference (at paras. 21-25).
- He rejected the Irelands’ submission that he had erred in placing the onus on them to establish that Mr. Ireland was an executive officer and thus covered by the exception in s. 11(2) of the WSIA (at paras. 13, 33).
- He took into account evidence submitted by the Irelands on the reconsideration decision even though the evidence was available at the time of the original hearing (and thus not “new”); however, the Vice-Chair concluded that even if the Irelands had produced these documents during the original hearing and submissions process, his decision would have been the same (at paras. 26-32).
Standard of Review
[23] All of the parties agree that case law has established that the applicable standard of review on the application for judicial review is reasonableness.
[24] WSIAT’s factum notes that the Divisional Court and the Court of Appeal “have repeatedly held that WSIAT is entitled to the highest level of deference under the protection of the ‘toughest privative clause known to Ontario law’”. Section 123(4) and (5) of the Act provide:
(4) An action or decision of the Appeals Tribunal under this Act is final and is not open to question or review in a court.
(5) No proceeding by or before the Appeals Tribunal shall be restrained by injunction, prohibition or other process or procedure in a court or be removed by application for judicial review or otherwise into a court.
Furthermore, section 31 of the Act confers upon the Tribunal exclusive jurisdiction to determine whether the “right to sue” is taken away and contains a second privative clause applicable to such applications:
(3) A decision of the Appeals Tribunal under this section is final and is not open to question or review in a court.
[25] The Supreme Court in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, described what a reasonableness standard entails as follows (at para. 47):
Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, acceptable and rational solutions. A court conducting a review for reasonableness inquiries into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
Issues
Preliminary Issue
[26] The applicants raised as a preliminary issue whether counsel for WSIAT should be restricted to submissions that defended the process engaged in by the Tribunal rather that the merits of the Tribunal’s decision. They submitted that it would be inappropriate for a representative of the Tribunal to “descend into the fray”.
[27] Section 9(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, provides that the person who exercises or refuses to exercise a statutory power may be made a party to an application for judicial review. The Ontario Court of Appeal has held that the provision entitles a tribunal to be a party. In Children’s Lawyer for Ontario v. Goodis (2005), 75 O.R. (3d) 309, 2005 11786 (ON CA) at para. 26, the court said:
The ordinary meaning of this provision gives the administrative tribunal the right to be a party to the proceeding if it chooses to do so. It leaves to the tribunal rather than the court the decision of whether to become a party to the application for judicial review.
[28] If a tribunal decides to become a party or is added as a party, the court has discretion as to the scope of participation to be accorded to the tribunal during the hearing. In exercising that discretion, the court must take a contextual approach, considering whether the tribunal’s participation is necessary in order that there be a fully informed adjudication of the issues and whether the tribunal’s participation will undermine the tribunal’s impartiality: Children’s Lawyer at paras. 37-38.
[29] Courts should consider the following: “[t]he nature of the problem, the purpose of the legislation, the extent of the tribunal’s expertise, and the availability of another party able to knowledgeably respond to the attack on the tribunal’s decision”: Children’s Lawyer at para. 43.
[30] The nature of the issue before the court can affect the apprehension of partiality, as stated in Children’s Lawyer at para. 40:
For example, if the question is whether the tribunal has treated a particular litigant fairly, impartiality may suggest a more limited standing than if the allegation is that the structure of the tribunal itself compromises natural justice.
[31] Frequently, tribunals such as the Labour Relations Board or the Human Rights Tribunal of Ontario will provide a factum that addresses the standard of review and provides some background about the tribunal without entering into the merits of the decision. Other tribunals may seek to participate more actively in the proceeding, and it will be in the panel’s discretion as to the scope of the tribunal’s participation.
[32] Having reviewed WSIAT’s factum and having canvassed with counsel the likely scope of his oral submissions, we declined to prospectively limit what counsel for WSIAT might say about the merits of the case. However, we informed the applicants that they were at liberty to raise any concerns they might have about the actual submissions made by counsel as and when they were made. In the event, no further concern was raised.
Substantive Issues
[33] The following issues are raised by this application:
Did the applicants concede the independent operator/contractor issue and, if so, to what effect?
Who bore the onus of establishing that Mr. Ireland was an executive officer of Ireland Bros.?
Did the Tribunal fail to consider material evidence in reaching its decision?
Was the Tribunal’s decision reasonable?
The Applicants’ Position on the Independent Operator/Contractor Issue
[34] In the Decision, the Tribunal recorded, at para. 24, that Mr. Ireland had conceded that he was not an “independent operator” and, hence, the only remaining issue was whether he was a worker or an executive officer of Ireland Bros. at the time of the accident.
[35] The applicants dispute the accuracy of that statement. They point out that in their written submissions they agreed that Mr. Ireland was not an independent contractor, rather than “operator”, after 1994, when the company was established. Prior to that, Mervin and Lorne Ireland had been “independent contractors/operators”.
[36] The applicants raised their concern in their request for reconsideration.
[37] The Vice-Chair acknowledged that he had interpreted the concession that Mr. Ireland was not an “independent contractor” as equivalent to a concession that Mr. Ireland was not an “independent operator” for the purposes of the application. He said that his assumption was consistent with other Tribunal decisions in which the terms “independent operator” and “independent contractor” were used interchangeably within individual decisions when determining the status of a person under the Act (Reconsideration Decision at para. 23).
[38] We agree with the applicants that, as a matter of common every day usage, the words “contractor” and “operator” are not synonymous. However, in the context of workers’ compensation legislation and practice, the phrases “independent contractor” and “independent operator” are seemingly used interchangeably.
[39] The important point, for the purposes of this application – and here there does not appear to have been any misunderstanding – is that subsequent to the incorporation of Ireland Bros. in 1994, Mr. Ireland was an employee of the company, and it was the company which contracted with others to undertake cement finishing work. The issue to be resolved by the Tribunal was whether he was also an executive officer of Ireland Bros., not whether he was an independent contractor or operator.
[40] I see no error on the part of the Vice-Chair in his treatment of the independent operator/contractor issue, or his framing of the remaining issue, namely whether Mr. Ireland was a worker or an executive officer of the company at the time of the accident.
The Onus of Establishing Mr. Ireland’s Status
[41] Section 31 of the Act provides a remedy for a party to civil action to obtain a determination about an injured person’s status and, in particular, whether, because of the Act, the person’s right to commence an action is taken away. The determination is made by an expert, quasi-judicial tribunal. It is a determination based on an evidentiary record. The Tribunal looks beyond the labels selected or preferred by the parties and examines the true nature of an individual’s role and responsibilities to determine whether the individual should be accorded the status of “executive officer” for the purposes of the Act.
[42] The Act contains a presumption, in section 11(1), and subject to certain exceptions not applicable in the present case, that every “worker” employed by a Schedule 1 or a Schedule 2 employer is subject to the insurance plan provided by the WSIB. A “worker” is defined in section 2 as “a person who has entered into or is employed under a contract of service”. Section 11(2) contains the exception that the insurance plan does not apply to workers who are “executive officers of a corporation”.
[43] Prior to 1997, the legislation specifically excluded executive officers from the definition of “worker”. Since then, however, as the language of section 11(2) makes clear, an individual can be both a worker and an executive officer.
[44] The applicants do not seek to argue that Mr. Ireland was not a “worker”. However they assert a right to maintain their civil action based on the exception available to executive officers.
[45] The Vice-Chair accepted an argument that the Irelands bore the onus of establishing executive officer status. The applicants say that was wrong and that EFCO had the burden of establishing that the applicants had lost their right to sue by proving that Mr. Ireland was not an executive officer.
[46] The WSIB (as distinct from the Tribunal) makes decisions based on an inquiry system, rather than an adversarial system: see OPM Document No. 11-01-02 (Decision-Making). Given that approach, it is not surprising that the document does not address who bears the onus of proof.
[47] Section 131(2) of the Act provides that the Tribunal may determine its own practices and procedures.
[48] We were not directed to any Practice Directions or binding authority which establishes who bears the onus of proving what in so-called “Right to Sue” applications. Accordingly, subject only to generally applicable principles of natural justice, the Tribunal was entitled to determine that the onus was on the applicants to prove Mr. Ireland’s status as an executive officer.
[49] The Tribunal’s approach is also consistent with that taken in other cases. In Shiposh v. Grand & Toy Ltd. (Decision No. 1034/07), 2008 ONWSIAT 1251, it was noted, at para. 96, that:
Tribunal decisions have also determined that the onus on an Applicant in an application under section 31 to establish that the right to sue is taken away. See for example Decision No. 259/88, [1988] O.W.C.A.T.D. No. 679
[50] Furthermore, as a practical matter, once a plausible conclusion from the evidence emerged that Mr. Ireland was a worker, a tactical onus would be placed on him to show on the evidence why the exception applies. That is the approach the Tribunal took in this case. I find no error with that approach.
Did the Tribunal Fail to Consider Material Evidence?
[51] To place the applicants’ position in context, I first consider the process followed in right to sue cases.
[52] Reference has already been made to OPM document 12-03-03, “Who Can Obtain Operational Insurance” (the “Policy”). The OPM is the source of operational policy for the WSIB. It contains policies that the WSIB uses to make decisions about worker and employer rights and obligations, employer premiums, benefits and other related workplace safety and insurance issues. In appeals heard by the WSIAT, if there is an applicable policy with respect to the subject-matter of an appeal, the WSIAT is required to apply it when making its decision: Act, s. 126(1).
[53] Although the Tribunal is not formally bound by the WSIB policy when considering applications under section 31, it has been held that it is desirable that the Tribunal make consistent decisions about worker, independent operator and employer status despite the different routes by which cases raising such issues come to the Tribunal for determination: Decision No. 1341/07, 2007 ONWSIAT 1728 at para. 27
[54] In Decision No. 2667/08, 2009 ONWSIAT 1695 it was held that in order to properly apply the legislation and Board policy, a three-step process should be followed:
Examine the evidence of the formal appointment of the individual as an executive officer.
Consider whether it is necessary to go beyond the formal appointment to look at the substance of the individual’s actual role in the company.
Review evidence of the individual’s actual role in the company.
[55] If it is deemed necessary to go beyond this formal appointment, the Policy sets out the type of evidence required to verify an executive officer appointment:
Proof of executive officer status
The appointment of an executive officer must be verifiable through appropriate and current documentation such that
the name of the executive officer must be recorded in the employer’s minute book and
the status of executive officer can be verified in other documents that the WSIB may review including resolutions by the Board of Directors, corporate by-laws, or public records filed with other government authorities.
[56] The Policy also provides direction when considering the actual role of a designated executive officer within a company:
Notwithstanding the above, the WSIB reserves the right to determine who is an executive officer by examining factors relevant to the individual’s role and responsibilities. Specifically, the WSIB will review the substance of the relationship between the individual and organization to consider relevant factors, for instance, if the individual
has been delegated the authority to act independently on behalf of the organization
is responsible for the overall direction and control of the company’s operations or financial affairs
exercises a broad scope of authority to make decisions or formulate policies for the organization as a whole, rather than authority that is strictly limited to a specific branch or division
has the ability to bind the organization.
[57] At para 80 of the Decision, the Vice-Chair stated that the case record included two pieces of documentary evidence dealing with Mr. Ireland’s status at Ireland Bros., namely a copy of the incorporating documentation from 1994, naming him as Vice President and a brief minute of a meeting of officers held in 1995. He continues “No other documentary evidence has been provided by the Respondents”.
[58] The applicants complain that the Vice-Chair ignored WSIB clearance certificates sent to the principals of various projects that Ireland Bros. was engaged on. Those letters all record WSIB’s determination, based on completed “Contractor’s Questionnaire” forms, that Ireland Bros. was considered an independent operator and, as such, the principal was not required to report, as insurable earnings, the value of labour on contracts entered into with Ireland Bros.
[59] Many of these letters also record that Lorne Ireland and/or Mervyn Ireland are “executive officers” of Ireland Bros. who have declined optional insurance for independent operators.
[60] In Decision No. 1341/07, the applicant had provided on-site construction services to the principal for a number of years. He had provided clearance certificates to the owner. The Tribunal found that the issuance of clearance certificates was a fact that supported the applicant’s claim that he was an “employer”. The Tribunal in Shiposh v. Grand & Toy Ltd. came to a similar conclusion (at para. 105).
[61] Significantly, though, in both of these cases, the clearance certificates were regarded as important evidence of status, but were not regarded as dispositive of the applicant’s status. Indeed, as counsel for WSIAT put it in his factum, “[i]f the issuance of a WSIB clearance certificate automatically determined a person’s right to sue, there would be no need of s. 31”.
[62] The applicants sought to persuade the Vice-Chair that the issuance of clearance certificates should support a conclusion that Mr. Ireland was an executive officer of Ireland Bros. A number of these clearance certificates were in evidence at the original hearing. The questionnaires which the clearance letters responded to were not, initially, produced. When the applicants sought to introduce copies of questionnaires into the evidentiary record, The Vice-Chair, applying the Tribunal’s rules, denied the request. Nevertheless, a review of the transcript of the hearing on 23 October 2014 discloses that a series of questions were, in fact, asked about clearance certificates, including questions taken from the questionnaires that had been filled in by Ireland Bros.
[63] The Vice-Chair was clearly alert to the applicants’ arguments about the significance of the clearance certificates. At para. 68 of the Decision he wrote:
Mr. Murphy also submits that, although clearance certificates issued by the Board over an extended period may be confusing in regard to independent operator status, the “rulings that both [Melvyn Ireland and Lorne Ireland] are executive officers are clear”, and were relied on by them in deciding to purchase short term insurance.
[64] At the reconsideration hearing, counsel for the applicants sought to rely on additional documentation to support the position that Mr. Ireland was an executive officer. Over the objections of counsel for EFCO, the Vice-Chair agreed to take this evidence into account even though it was not “new”. However, having done so, he found that even if these records had been produced at the time of the original hearing and submissions process, it would not have resulted in a different decision.
[65] After listing the additional documents he had reviewed and considered, the Vice-Chair summarised his decision, at para 31 of the Reconsideration Decision, as follows:
I find, on the evidence, and after considering the substance of relationship between MI [Mervyn Ireland] and Ireland Bros., that MI is appropriately considered to be a worker and not an executive officer of Ireland Bros. I have reached this conclusion for a number of reasons.
MI’s primary role in the company was to operate and maintain the screed machines. He performed this role on a full-time daily basis. If a new machine needed to be purchased, MI, as one of two people in the company with knowledge of the machinery, would contribute to discussions, but LI [Lorne Ireland] testified that it was up to him to enter into contract negotiations and to close any purchase deal.
While MI and LI both testified that MI had signing authority over Ireland Bros. corporate accounts, the respondents did not produce any evidence that he actually did so. In my view, this is a significant omission and supports a finding that MI’s executive officer responsibilities were nominal and not substantive.
The fact that MI and LI are both 50% shareholders of Ireland Bros. speaks to the corporate arrangement to deal with profits and losses associated with business operations, but does not in itself evidence MI’s executive officer role. Up until the time he was injured in November 2007, MI drew a salary from Ireland Bros., was issued T4 personal income tax forms, filed T1 personal tax returns, and had standard deductions taken from his pay. The bonus paid to MI and LI at the end of each year as well as the monthly draw set up the company accountant related to the shareholder breakdown, but this on its own is not sufficient to establish executive officer status. As stated in the Pluri Vox Media case cited by Mr. Norton/Ms. Gorys in their submissions, it is the functions other than as a shareholder that are relevant considerations here.
There is no evidence that MI was delegated authority to act independently on behalf of Ireland Bros., and no example of him having done so.
There is also no evidence that MI had responsibility for the overall direction and control of the company operations. In fact, the evidence would strongly support a finding that this responsibility resided with LI. Although MI and LI may have collaborated in setting the annual Price List for services, in my view, that would be understandable given MI’s operational responsibilities.
On the evidence, it would appear that MI’s scope of authority within the company was limited, and focused primarily on his role as a screed operator. Neither he nor LI testified that MI had a role in formulating policies for the overall operation of Ireland Bros., nor were any examples given of MI’s independent ability to bind the company.
After the November 2007, MI was no longer able to operate a screed machine. LI testified that he had to hire and train other individuals to perform this role, and that they were covered under Ireland Bros. account with the Board as workers. Although I accept that an executive officer can in some cases also perform job duties normally associated with a worker, it would appear that the new employees were performing the same day-to-day functions previously held by MI, which is relevant evidence in determining MI’s status.
Decision No. 2073/07 relied on by Mr. Murphy is distinguishable on its facts. The two brothers in that case had been operating a trucking business for several years under a formal partnership agreement and decided to incorporate at some point in order to expand operations into the United States. The Panel found that the two individuals were properly considered to be the driving minds of the corporation, as they had been with the partnership, and that documentary evidence provided at the hearing confirmed that both brothers were in a position to bind the company, solicit business and negotiate contracts. This type of documentary evidence in clearly not present here.
Having had the benefit of testimony from both MI and LI, I am not persuaded that MI was a directing mind of Ireland Bros. There is no dispute that he was a 50% shareholder of the family business, and that he is listed on a 20-year-old document as an executive officer of the company, but I find that there are very few other indicators of executive roles or responsibilities. No documentary evidence, such as signed contracts or cheques was produced, nor any signed financial statements. No Minute Book or other evidence of executive decision making involving MI was provided, other than a 20 year-old minute which simply confirms the initial appointment of officers. There is no evidence of any executive officer meetings, or third party evidence confirming that MI was considered to be a directing mind of Ireland Bros. There is every indication that MI performed the role of a screed operator on a regular daily basis, but scant evidence of any more substantive roles in overall direction and control of company operations or decision making authority.
[66] The Vice-Chair continued, at para 32, by finding that the additional records produced did not substantiate any executive role or responsibility on Mr. Ireland’s part within the corporation, and that the minute book excerpts were just pro-forma annual meeting minutes confirming ongoing roles for various officers that remained the same for a ten year period, and in some cases the approval of unaudited financial statements. While the Vice-Chair did accept that these new records provide “more expansive” information than was provided at the original hearing, he found that they do not constitute “substantial new evidence” sufficient to establish that Mr. Ireland was a directing mind of Ireland Bros.
[67] The applicants complain that the Vice-Chair “failed to address” the relevant evidence, in particular the WSIB clearance letters and rulings.
[68] A tribunal is not required to address each and every fact, or submission made by counsel: Wood v. Enbridge Gas Distribution Inc., 2011 ONSC 5494 (Div. Ct.) at para. 16.
[69] The record does not, in any event, support the applicants’ position. The issue concerning the effect of the clearance certificates was well aired, both through the evidence and the submissions of counsel. Furthermore, the Vice-Chair’s reasons are clear that, over the objection of EFCO, and notwithstanding that the additional information could have been provided at the time of the original hearing, the Vice-Chair did consider it. Having done so, however, he found it made no difference to his original determination.
Was the Tribunal’s Decision Reasonable?
[70] I find that none of the errors alleged by the applicants are made out.
[71] The Tribunal’s decision was grounded in and supported by the evidence adduced not only at the original hearing, but, also, upon reconsideration at the applicants’ request. Its conclusions were consistent with the WSIB’s policies and with the applicable jurisprudence.
[72] In short, the Vice-Chair’s reasons disclose no legal error or misapprehension of the evidence. As Chapnik J. put it in Wood, at para. 20:
The decision falls within the range of possible and acceptable outcomes that are defensible with regard to the facts and the law.
[73] Accordingly, we are not persuaded that the Vice-Chair’s decision was unreasonable, and dismiss the application for judicial review.
Costs
[74] The respondents EFCO and McGerrigle provided a costs summary. The other parties did not.
[75] If the parties are unable to agree on costs any party seeking costs should provide the court with written submissions not exceeding four pages in length and a costs summary by 24 January 2017. Responding submissions, similarly limited to no more than four pages, should then be provided to the court by no later than 7 February 2017.
___________________________ MEW J.
I agree.
___________________________ DAMBROT J.
I agree.
___________________________ HAMBLY J.
RELEASED: 10 January 2017
Corrected, 23 February 2017:
This application for judicial review was heard 20 October 2016, not 19 October 2016.
CITATION: Ireland v. EFCO Canada Corp, 2017 ONSC 188
DIVISIONAL COURT FILE NO.: DC-15-143-JR
DATE: 20170110
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Dambrot, Hambly and Mew JJ.
B E T W E E N :
MERVIN IRELAND and ROSE MARIE IRELAND
Applicants
– and –
EFCO CANADA CORP., JAMES McGERRIGLE and the WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL
Respondents
REASONS FOR DECISION
(Application for Judicial Review)
MEW J.
RELEASED: 10 January 2017