Employer One v. Employer Two, 2022 CanLII 128915

Decsion number:

objecting party

20230012

EMPLOYER ONE (E1)

E1 REPRESENTATIVE

EMPLOYER TWO (E2)

1234567

89101112

HEARD BY:

MARISA LA CIVITA, appeals resolution officer

ISSUES

E1 objects to the Transfer of Cost (TOC) Adjuster’s decision of August 16, 2021 denying the transfer of costs for this claim from its accident record to the accident record of E2.

E1 seeks that the August 16, 2021 decision of the TOC Adjuster be overturned and that 100% of the costs of this claim be transferred to E2.

BACKGROUND

On November 30, 2020 between 3:15 a.m. and 3:23 a.m., E1’s worker, DT was injured while in the course of employment. DT was driving eastbound in the far right lane of a 3-lane section of Highway 401, in Milton, Ontario, when they rear-ended the vehicle travelling in front of theirs, and sustained injuries.

The Employer’s Report of Injury (Form 7), as completed by E1 on December 1, 2020 indicated that DT was an AZ driver, employed by E2 for 7 years, at the time of the incident. According to the report, the incident took place on November 30, 2020 at 3:15 am, and was described as follows:

Driver was travelling down the highway in a tractor pulling an empty trailer. He ran into the back end of another slow moving truck and trailer, then veered off into an open field where it stopped.

On January 26, 2021, E1 initiated a transfer of cost application on the basis that on November 30, 2020 at around 3:00 am, when it was still dark, their truck was travelling on the 401, in the slow lane, at the posted speed limit when, without warning, there was another truck that seemed to have pulled out into the lane and was hardly moving. E1’s truck hit the back of the trailer and then veered off to the right, into a field and hit a fence. According to E1, the police report indicated the other party was only going 20 km/hr. E1 stated it appeared the other party had just pulled out from the shoulder of the road, and this would be why it was hardly moving.

E1 submitted a Motor Vehicle Collision Report of the November 30, 2020 incident on February 8, 2021. The time of the incident was documented as 3:23 a.m., and the location reference point as “401-MARTIN ON W” in the municipality of Milton. E1’s worker, DT was identified as Driver 2, operating a 2018 “WSTR” (Western Star) truck with unloaded trailer. DT was travelling at an approximate speed of 100 kilometres per hour (km/hr). The driver of the other vehicle was identified as AK, who was operating a 2015 “FRHT” (Freightliner) with loaded trailer at an approximate speed of 20 km/hr. A description and diagram of the collision showed that V1 (operated by AK) and V2 (operated by DT) were travelling eastbound in the far right lane (L3) of the 3-lane roadway. V2 rear ended V1, and V2 ran off the roadway and struck a fence off in the right side ditch.

In an email dated February 11, 2021, E2 identified E1 as the other trucking company involved in their transfer of cost application.

On February 16, 2021, E1 submitted emails between E1 and the Investigating Officer of the Ontario Provincial Police (OPP) dated December 14, 2020. The Investigating Officer advised E1 that the traffic report had been submitted; however, the investigation was still on-going, but noted that charges for DT had been dropped.

On April 20, 2021, E1 emailed a new Motor Vehicle Collision Report that amended the description and diagram of the collision. The amended version noted that V1 and V2 were travelling eastbound in L3. V1 was driving well below the speed limit and was merging into L3 from the shoulder causing V2 to rear end V1. V2 ran off the roadway and struck a fence off in the right side ditch.

E2 responded on April 26, 2021 denying that their worker, AK was responsible, and arguing that facts had been grossly misrepresented by E1. Their driver, AK, was driving on Highway 401 well within the speed limit when their trailer was unexpectedly hit from the back by E1’s driver. E2 argued that it was perhaps the impact of the collision caused by E1’s driver that led to E1’s trailer veering off. E2 denied that E2’s trailer suddenly pulled into the lane and was hardly moving. E2’s trailer was moving at a respectable speed of 65 miles per hour (mph) or 105 km/hr when it was hit at the rear-end by the vehicle operated by E1’s driver, DT. At no point during the incident was E2’s trailer slow or stationary.

E2 argued that while their driver was unhurt, their load was damaged. In addition, E2’s driver, AK, acted in the way any reasonable and prudent person would and their actions cannot be deemed negligent. E1’s driver failed to act within a reasonable level of caution, causing a collision with E2’s trailer, resulting in damage to both parties, and amounting to negligence on the part of E1’s driver.

E2 also submitted:

Unauthenticated photographs of E2’s trailer
Auto Liability Report dated November 30, 2020 – E2 reported that their insured vehicle (IV), driven by AK, was rear-ended by other vehicle (OV) driven by DT. The report indicated the incident occurred on November 30, 2020 at 3:15 a.m. on Highway 401 E, in Milton, Ontario.
Speed Information – GPS log showing E2’s truck was travelling 65 mph from 2:21:26 am (at 2.46 miles E of Putnam, ON) to 3:15:08 am (at 15 miles WNW of Campbellville, ON). The truck was logged at 0 km/hr at 3:18:46 am and 3:20:08 am at Milton Heights, ON.
Load Papers – Customs paperwork dated November 29, 2020 showing AK was delivering freight from Wisconsin, USA to Brampton, Ontario.

On June 10, 2021, E1 submitted their reply indicating they had not misreported the accident, and referenced the amended Motor Vehicle Collision Report that shows that Vehicle 1 (operated by AK of E2) had just pulled off the side of the road and was going well below the speed limit. They also noted that while E2’s GPS system shows their driver going 65 mph, photos of E2’s trailer do not appear consistent with two vehicles travelling at basically the same speed. E1 noted long intervals between GPS time stamps, with almost 3.5 minutes between entry 58 and 59, and that the last time frame on the log was still 3 minutes prior to the recorded time of the accident, which was 3:23 am according to the Investigating Officer on the Motor Vehicle Collision Report. This would give an indication that E2’s driver may have in fact stopped.

The TOC Adjuster rendered a decision on August 16, 2021, denying E1’s request for a transfer of claim costs to E2 noting that the onus to be aware of vehicles travelling ahead remains on drivers following, and is not relieved by the speed of the vehicles. They added that a vehicle travelling on the shoulder of a highway must be anticipated to move into a live lane and following traffic should allow for this and avoid the far right lane in such circumstances. Had E1’s worker, DT, been operating their vehicle safety and given themselves enough time to stop or go around E2’s vehicle, the incident could have been avoided. The TOC Adjuster also noted that neither driver involved in the incident was charged by the police, and the apparent actions of AK of E2 were not negligent.

E1 indicated their intent to object, and on August 26, 2021 was provided an Objection Form with Instruction Sheet by the TOC Adjuster.

On May 26, 2022, E1’s authorized representative submitted a completed Objection Form (Employer Account) dated February 6, 2022, objecting to the TOC Adjuster’s decision of August 16, 2021. The reason for the objection was that E1 felt the decision was made without due consideration of Policy 14-05-01 and available police records and information, to find that E1 was 100% responsible for the accident. Based on the facts provided by E1, E2 was responsible. E1 sought that the matter undergo further review, and that the finding that E1 was responsible be reversed.

On June 14, 2022, the TOC Adjuster reconsidered and upheld their August 16, 2021 decision, and asked the parties to advise if they wanted the matter referred to the Appeals Services Division (ASD).

In an email dated July 13, 2022, E1’s representative advised the TOC Adjuster to refer the objection to the appeal branch. The TOC Adjuster referred the appeal to the ASD, and notified E2 of the appeal.

E1’s representative requested an oral hearing to present evidence; however, upon consideration, I concluded that the appeal would be resolved by a hearing in writing as there were no plans to bring witnesses and there were no substantive reasons to demonstrate that an oral hearing was necessary to provide direct testimony or that further submissions could not be made in writing. The representative was invited to provide additional information/written submissions by October 26, 2022.

The ASD received a final submission from E1’s representative on November 7, 2022, and the objection is now before me for review.

E1’s Position

There is a complete lack of any substantial proof of negligence on the part of E1’s driver, DT.
E1’s driver, DT, was travelling at the posted speed limit, when without warning, E2’s truck pulled out into the lane and was hardly moving. DT’s actions were unavoidable because of the actions of E2’s driver, especially the speed [or lack of speed] at which they were travelling, which is a dangerous practice, under the Laws of Ontario, and was likely the cause of the accident.
The amended Motor Vehicle Collision Report shows that E2’s driver was going only 20 km/hr while merging into the lane from the shoulder, causing E1’s driver to rear end them.
When a vehicle pulls out into traffic, it needs to ensure it is safe to do so.
While E2’s GPS log shows their driver going 65 mph, photos show a significant hit to E2’s trailer, which does not appear to be consistent with the two vehicles travelling at basically the same speed.
The GPS log has long time intervals between readings, with almost 3.5 minutes between entry 58 at 3:15:08 am and entry 59 at 3:18:46 am. A lot can happen in that time.
The GPS log doesn’t appear to be complete as the last time is still 3 minutes prior to the recorded time of the accident, which was 3:23 am, according to the Motor Vehicle Collision Report

E2’s Position

E2 denies that E2’s driver, AK, was responsible for the incident
AK was driving well within the speed limit when their trailer was unexpectedly hit from the back by E1’s driver.
It was perhaps the impact of the collision, caused by E1’s driver that led E1’s trailer to veer off.
E2 denies that their trailer suddenly pulled into the lane and was hardly moving. E2’s GPS log shows that E2’s trailer was moving at a speed of 65 mph or 105 km/hr when it was hit.
At no point during the incident was E2’s trailer slow or stationary.
E2’s driver acted in the way any reasonable and prudent person would and their actions cannot be deemed negligent.
E1’s driver failed to act within a reasonable level of caution, causing a collision with E2’s trailer, resulting in damage to both parties, which amounts to negligence on E1’s part.

AUTHORITY

Legislation:

Section 84, Workplace Safety and Insurance Act, 1997 (WSIA)

Operational Policy Manual:

14-05-01, Transfer of Costs

Published:

January 2, 2020

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision, and E1’s appeal has been denied.

The relevant statutory provision for transfer of costs issues is Section 84 of the WSIA which provides that where the WSIB is satisfied that the accident giving rise to the worker’s injury was caused by the negligence of some other employer in Schedule 1 or that other employer’s workers, the WSIB may direct that the costs of the accident, or a proportion of them, be transferred to the accident cost record of the other employer.

Policy 14-05-01 notes that, in common law, negligence is defined as:

failing to do something which a reasonable and prudent person would do, or
doing something which a reasonable and prudent person would not do.

In proving negligence, the policy dictates that there must be evidence to show, on a balance of probabilities, that the other Schedule 1 employer was negligent. If it is more likely than not that the other Schedule 1 employer was negligent, then the WSIB determines the degree of negligence and transfers all or part of the claim costs to the negligent employer.

In this case, E1 is the employer of record and bears the evidentiary burden of proving negligence on the part of E2. Both parties have provided written submissions and documentation to support their positions on this issue, all of which have been outlined in the ‘Background’ section of my decision.

The submissions and evidence have been considered and will be addressed in my evaluation of the proof of negligence, which will be set out under the following sections:

Duty of Care
Standard of Care

Duty of Care

Was there a duty of care owed to the worker by E1 and E2?

As the employer of record, E1 had a legal obligation to provide a healthy and safe work environment for the worker. Therefore, its duty of care has been established.

With respect to E2, evidence shows that its worker was driving on the same shared roadway with E1’s worker, and therefore, I find E2 also owed a duty of care to E1’s worker. All drivers have a duty to other users of a shared roadway to use reasonable care to avoid actions and circumstances that could result in harm to the other users. Part of this includes compliance with the rules of the road as legislated under Ontario’s Highway Traffic Act.

Standard of Care

Did E2 breach the standard of care owed to E1’s worker? When considering this issue, keeping in mind that the standard of care is reasonableness and not perfection, I conclude that E2 was not in breach.

E1 Submits that, according to the Motor Vehicle Collision Report (MVCR) for the accident of November 30, 2020, E2’s driver, AK, was the at fault party, travelling only 20 km/hr while merging into the far right lane from the shoulder, causing E1’s driver, AK, to rear end them. Documents on record show that E1 originally submitted a MVCR on February 8, 2021, which reported that DT’s vehicle, rear-ended AK’s vehicle, and that DT’s vehicle ran off the roadway and struck a fence off in the right side ditch. E1 submitted an amended MVCR on April 20, 2021 which reported that AK’s vehicle was driving well below the speed limit and was merging into the right lane from the shoulder causing DT’s vehicle to rear end AK’s vehicle. DT’s vehicle ran off the roadway and struck a fence off in the right side ditch. Both versions of the MVCR were completed by the same Investigating Officer of the Ontario Provincial Police (OPP).

While there has been no explanation provided, as far as I can see, as to the reasoning behind the amended MVCR report, I note that both versions of the reports document that the accident took place on November 30, 2020 at 3:23 am, and that AK was travelling at an approximate speed of 20 km/h, while DT was travelling at approximately 100 km/h. DT rear-ended AK, in the far right lane of the highway, and then veered off the road.

The amended MVCR, as submitted by E1 on April 20, 2021, conflicts with other accounts of the accident given by both E1 and E2 with respect to the time of the accident. In the Employer’s Report of Injury, which was completed by E1 on December 1, 2020, the accident was noted as occurring at 3:15 am on November 30, 2020, which corresponds to the time of the accident as documented by E2 on its Auto Liability Report of November 30, 2020. In addition, the MVCR was amended to show that AK’s vehicle merged onto the road from the shoulder; however, the Employer’s Report of Injury only noted that DK ran into the back of a slow moving truck and trailer, but gave no account of that truck or trailer having merged onto the road unexpectedly.

While the MVCR submitted on April 20, 2021 was amended months following the accident, the Employer’s Report of Injury dated December 1, 2020, and the Auto Liability Report of November 30, 2020 are contemporaneous documents, and therefore, cannot be discounted.

E1 has submitted that it did not receive the full GPS log for E2’s vehicle, and that the damage caused by the impact of the collision is not consistent with the two vehicles travelling at basically the same speed; however, E1 has presented no GPS log for its own vehicle to establish an exact time of the accident or to confirm the speed at which its vehicle was travelling at the material time of the November 30, 2020 accident.

E2’s GPS log for the vehicle driven by AK during the accident of November 30, 2020 documents that the vehicle was travelling at a rate of 65 mph or approximately 105 km/hr at 3:15:08 am. At 3:18:46 am, and 3:20:08 am, AK’s vehicle was documented at 0 km/hr in Milton Heights, Ontario; however, no further GPS readings are on record for the vehicle. Based on the GPS readings, either of the following scenarios could be true: Scenario 1 - that AK’s vehicle was travelling at a reasonable speed, was struck from behind by DK’s vehicle, and then came to a stop at some time prior to 3:18:46 am; or Scenario 2 - that AK’s vehicle was stopped on the shoulder of the highway, and at some time after 3:20:08 am, and not accounted for on the submitted GPS readings, merged onto the highway and was travelling at a low rate of speed when struck from behind by DK’s vehicle.

In the case of Scenario 1, I would find there would be no negligence on the part of E2 or its worker, AK. AK would have been travelling at an appropriate rate of speed when they were inexplicably struck from behind by E1’s worker, DT. Therefore, AK’s actions would not have amounted to negligence, and E1 would remain responsible for 100% of the costs of the claim.

However, both the earlier and more recently amended versions of the MVCR document that the vehicle operated by E2’s worker, AK, was travelling only 20 km/hr, corroborating E’s sustained claims that E2’s vehicle was slow-moving. This, coupled with the amended MVCR as submitted by E1 on April 20, 2021, leads me to find that Scenario 2 is the more plausible scenario in this case, and that AK’s vehicle was travelling at a low rate of speed at the time of the November 30, 2020 accident because it had recently merged from the shoulder of the highway.

Yet, accepting that E2s worker AK had merged onto the highway from the shoulder does not, in itself, conclude that AK was negligent in doing so. In order to find that AK was negligent, the evidence must show, on a balance of probabilities that AK did something which a reasonable and prudent person would not do, or failed to do something which a reasonable and prudent person would do.

I evaluated the evidence before me for an indication of negligence on the part of E2’s worker, AK, but found no such indication. I cannot rely on the photographic evidence on record, as the photos are not authenticated as required under WSIB Policy 11-01-08, Audio/Visual Recordings; however, all versions of the collision, as explained by E1 and E2, and as described by the Investigating Officer, confirm that the vehicle driven by AK, E2’s worker, was rear-ended by the vehicle driven by E1’s worker, DT.

According to diagrams on both versions of the Motor Vehicle Collision Report (MVCR), upon being hit, AK’s vehicle continued to move forward in the same lane, i.e. in a straight, forward motion. This would only happen if the vehicle was hit directly from behind. If the vehicle driven by E2’s worker, AK, had been mid-merge, having pulled into the lane without warning, as E1 has submitted, then the impact would have resulted in a different directional outcome for AK’s vehicle.

Therefore, even though I find it likely that AK had merged from the shoulder of the road prior to the accident on November 30, 2020, I cannot conclude that they did so negligently, or without reasonable regard for E1’s worker or for others on the highway. Evidence shows that AK was able to fully enter the far right (i.e. slow moving) lane prior to being hit from behind. Although, AK’s vehicle was not up to full speed, I find it is not reasonable to expect a truck with a fully loaded trailer to resume normal speeds immediately upon re-entry onto a highway from the shoulder, and in transfer of cost applications, the standard of care is reasonableness and not perfection

Every person who drives a vehicle on a highway must do so with care and attention, and must have reasonable consideration for others using the highway. In addition, a driver must drive in a manner that allows them to prudently adjust to changing circumstances on the highway. Furthermore, in a rear-end motor vehicle collision, the onus is on the rear driver to show that they could not have avoided the accident by the exercise of reasonable care.

As I see it, based on the evidence before me, E1’s worker, DT, who was the rear driver in this case, had ample opportunity to see and anticipate the actions of E2’s worker, AK. Although it was still dark outside, at the time of the accident on November 30, 2020, there is no evidence before me to suggest that E2’s vehicle was not visible to DT upon approach. There were no reported weather or other conditions that prevented DT from seeing AK’s vehicle or reacting to it. Yet, for whatever reason, DT made no attempt that I am aware of, to avoid the accident by changing lanes or slowing down when coming upon AK’s vehicle.

E1’s position is that there is a lack of any substantial proof of negligence on the part of E1’s driver, DT, and I recognize that charges against DT were dropped. However, I must also recognize that no charges were brought against E2 or its driver, AK.

In transfer of cost applications, it is not enough to say that the injured worker or their employer were not negligent. Evidence must indicate that it is more likely than not that the other Schedule 1 employer or its workers were negligent, and moreover, that their negligence caused the injury. In this case, I am not satisfied that the evidentiary burden has been met, by E1, to show on a balance of probabilities, that E2 or its worker were negligent in fulfilling their duty of reasonable care to E1’s worker.

CONCLUSION

E1’s objection is, therefore, denied.

The costs of this claim will remain on the accident record of E1, and will not be transferred to E2.

DATED November 14, 2022

M. LaCivita

Appeals Resolution Officer

Appeals Services Division