Appeals Resolution Officer Decision
DECISION number: 20220108
TRANSFER OF COST NUMBER: ABCDEF
OBJECTING PARTY: Employer One (E1) ACCOUNT NUMBER: XXXXXXX FIRM NUMBER: REPRESENTED BY: EMPLOYER REPRESENTATIVE
RESPONDENT: Employer Two (E2) ACCOUNT NUMBER: YYYYYYY FIRM NUMBER: REPRESENTED BY: SELF
HEARING: HEARING IN WRITING
HEARD BY: MARISA LA CIVITA, appeals resolution officer
ISSUES
Employer One (E1) objects to the Transfer of Cost (TOC) Adjuster’s decision of September 29, 2021 denying a transfer of costs of this claim from its accident record to the accident record of Employer Two (E2).
It seeks that the September 29, 2021 decision of the TOC Adjuster be overturned, and that 100% of the costs of this claim be transferred to E2.
BACKGROUND
On February 27, 2021 at approximately 5:40 am, the worker, who was employed as a personal support worker by E1, sustained injuries after slipping and falling upon stepping out of their vehicle when arriving to work at E1’s facility in Cambridge, Ontario.
E1 stated that their worker reported slipping on a patch of ice, and that E2 was negligent in their duty to salt the parking lot. As a result, E1 requested a transfer of the claim costs to E2.
On September 29, 2021, the TOC Adjuster denied E1’s request for a transfer of costs, noting that E2 attempted to keep E1’s property clear of snow and ice; however, the expectation for snow and ice removal in winter months is reasonableness, and not perfection.
E1’s representative filed an Intent to Object Form on October 4, 2021, objecting to the TOC Adjuster’s decision of September 29, 2021.
Via a letter dated December 31, 2021, the TOC Adjuster upheld their September 29, 2021 decision noting that no new information had been provided. Enclosed with the letter was an Objection Form with Instruction Sheet.
On January 5, 2022, E1 completed and submitted an Objection Form, objecting to the TOC Adjuster’s September 29, 2021 decision.
As no new information was received, on May 18, 2022, the TOC Adjuster advised both parties that the objection had been forwarded to the Appeals Services Division.
The decision is now before me for review.
E1’s Position
- At approximately 5:40 am on February 27, 2021, E1’s worker slipped and fell on a patch of ice when exiting their vehicle to report to work for 6:00 am that day.
- The worker stated that ice in the parking lot caused their injury, and that the injury could have been prevented if the area was salted.
- E1 contracted with E2 for winter maintenance of its parking lots, sidewalks, and entrances.
- E2 had an obligation, as indicated in their contract with E1, to extensively monitor and check weather and site conditions daily, and carry out salting and sanding as conditions warranted to prevent packing and slippery conditions.
- According to an E2 February 2021 Log Report, it does not appear the property was checked at all around February 27, 2021 as there were no services noted after February 24, 2021.
- Even after getting a call from E1’s executive director on the day of the incident, E2 did not call back and the executive director does not recall receiving any messages from E2.
- A historical weather report for Kitchener/Waterloo for February 27, 2021 shows that temperatures were between .2 and .1 degrees Celsius at the time of the accident, and that there was a mix of rain and snow
- E2 was negligent when it did not monitor the weather forecast and lay salt down in a preventative manner. Had E2 monitored the weather conditions of February 27, 2021, they would have been aware of the danger of impending icy conditions, and would have salted.
- If E2 had applied coarse salt when they checked the property at 3:50 am on the day of the incident, the worker would have been less likely to slip and injure themselves on the ice.
Enclosures (redacted as noted by E1):
- Excerpts of contracts between E2 and E1 (redacted)
- WSIB Clearance Certificate for E2
- May 7, 2021 emails between E1 executive director and E2 representative (redacted)
- Form 7 - Employer’s Report of Injury/Illness (redacted)
- E1 Workplace Incident Report dated February 27, 2021 (redacted)
- E2 log report for February 2021
E2’s Position
- E2 fulfilled its contractual duties regarding the performance of the scope of work in the winter snow removal contract with E1.
- As per E2 vehicle logs and E2 worker logs from February 26 and 27, 2021, E1’s lot was checked daily before 7:00 am on both days.
- E2 staff checked both lots and walkways. They are extensively trained to look for any icy conditions, and upon finding any, apply coarse salt.
- Per Schedule A, 2.3 of E2’s contract with E1 (owner), the owner acknowledged that ice melting products, which are not intended to provide traction, are freeze point depressants only, and their effectiveness depend on ground temperatures and weather conditions at, and following, the time of their application, and that E2 provided no guarantee that the application of such products would be effective in eliminating snow, and the risks associated with snow and ice.
- Per Schedule A, 2.5 of E2’s contract with E1 (owner), the owner acknowledged and declined the use of premium ice melting products/services, including 24 hour premium on-site services.
- E2 recognizes that the dates of February 26 and 27, 2021 are absent in work logs they provided to E1; however, explain that those logs only note dates of significant work or salt application such as in the case of a snow or ice event.
- E2’s site check records show that daily site checks were conducted, and the site conditions were monitored as per the contract; therefore, E2 fulfilled its contractual obligations to E1.
Enclosures:
- GPS tracking map of vehicle 1, shown driving on E1’s property on February 26, 2021 at 3:40:39
- GPS tracking map of vehicle 1, shown driving 21 km/h on E1’s property on February 27, 2021 at 3:45:44
- E2 worker log noting E1 lots/walks were checked and patches salted on February 26, 2021 at 3:39 am – 3:49 am
- E2 worker log noting E1 lots/walks were checked on February 27, 2021 at 3:44 am - 3:50 am
AUTHORITY
Legislation: Section 84 of the Workplace Safety and Insurance Act, 1997 (WSIA)
Operational Policy Manual Published 14-05-01, Transfer of Costs January 2, 2020
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find that E1 is responsible for the costs of this claim.
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 the 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 evidence 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
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.
Was there a duty of care owed to the worker by E2? Yes, there was. E2 had the responsibility to provide winter maintenance of the parking lot, sidewalks and entrances of E1’s building. Any carelessness on the part of E2 in conducting its duties in relation to the parking lot, sidewalks, and entrances might reasonably cause injury to E1’s workers. Therefore, E2 had an obligation to adhere to a reasonable standard of care, and avoid any conduct that would entail an unreasonable risk of harm to E1’s worker.
Standard of Care
Did E2 breach the standard of care owed to the 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 submitted that E2 was negligent in fulfilling its contractual obligation to provide winter maintenance services to E1 as outlined in contract excerpts enclosed in their submission dated May 10, 2021. The contract excerpts before me are not dated, nor do they identify the parties involved in the contract. However, E2, in their response submission of June 28, 2021, acknowledged their contractual duties to E1, and asserted that they fulfilled those duties as required. Both parties referred to the following notable points, which are listed in the scope of winter maintenance work on either one or both of the submitted contract excerpts:
- lots will be cleared with Live Edge Plows (where applicable) reducing the amount of salt required to provide a cleaner, safer lot and reducing damage to existing asphalt/gravel;
- we aim to complete all snow plowing and/or salting by 7 am;
- our target is to clear doorways and entrances by 7am when timing of snowfall allows. Coarse salt to be used as needed to reduce slippery conditions. Ice melt to be used if requested by a customer at specified walkways or doorways (extra charge to be added for additional cost of material);
- weather and site conditions to be monitored and checked extensively as conditions warrant;
- salting and sanding to be carried out whenever conditions warrant, to prevent packing and slippery conditions;
- salt/sand boxes will be placed on site in locations approved by the Residence; and
- property will be checked daily for unsafe ice and snow conditions.
In the E2 log report, as submitted by E1, for services rendered by E2 during the month of February 2021, there are no services documented following February 24, 2021. This, E1 argued, established that E2 failed in its obligation to check the property as required. However, E2 provided evidence to the contrary.
An E2 worker log for the day prior to the incident, February 26, 2021, notes that E1 lots and walks were checked, and patches were salted, between 3:39 am and 3:49 am. A separate worker log for the day of the incident, February 27, 2021 documents that E1 lots and walks were checked between 3:44 am and 3:50 am. Furthermore, GPS tracking maps confirm that E2’s vehicle drove on and around E1’s property at days and times corresponding to the worker logs. In light of this, I find E2 met its contractual requirement to check E1’s property on a daily basis, and to complete salting, as needed, prior to 7:00 am.
E1 expressed that E2 failed in their obligation to monitor and extensively check the weather and site conditions. They provided historical weather data pertaining to the day of the incident, February 27, 2021, which shows there was precipitation in the area between 5:00 am and 6:00 am, and state that this weather likely did not occur without warning. Therefore, E2 ought to have known that icy conditions were impending that day, and should have applied preventative coarse salt during the morning’s site check. Had they done so, the worker would have been less likely to have fallen on ice some two hours later, when rain/icy conditions were present.
In considering E1’s position, I find it is not supported by the evidence before me. The Government of Canada historical weather data, as provided by E1, for the day of the incident, February 27, 2021, for the region of Kitchener/Waterloo, shows no notable weather conditions until 5:00 am, when it began to rain. The report notes snow at 6:00 am, which is after the time of the incident, as described by the worker on the Workplace Incident Report of February 27, 2021. More notably, there was only light precipitation between the hours of 5:00 am and 8:00 am, and temperatures were just above freezing during those times. Temperatures increased gradually to a high of 3.0 degrees Celsius between 4:00 pm and 5:00 pm, and did not drop to below freezing until 8:00 pm. In addition, Government of Canada weather reports show there was no precipitation in the area on February 26, 2021, the day prior to the incident.
To my knowledge, based on the evidence brought forth in this appeal, there was not a significant amount of snow, nor any freezing rain, forecasted for the day of the incident, February 27, 2021. Given this, along with the light amount of actual precipitation that day, as noted in the historical weather data, and the fact that the daytime temperatures were above freezing, I find there were no grounds for E2 to have reasonably anticipated that E1’s parking lot would be icy or would require salting on the morning of the incident.
In their May 7, 2021 email to E1’s representative, the Executive Director (ED) of E1 stated that, on the morning of the incident, they alerted the company (i.e. E2) that a staff member had fallen in the parking lot between 6:00 am and 6:30 am due to icy conditions, yet did not receive a return call. ED was not on site, but said that staff reported it had begun to rain at the time of the worker’s fall. ED also noted that when there are snow alerts, E1 sends messages about what to expect, but ED did not receive any message with respect to the icy conditions expected on the day of the incident.
I find that the ED’s email, while not contemporaneous evidence, still confirms that, in general, E2 acts reasonably in sending E1 snow alerts when conditions warrant. On the day of the incident, E2 did not send E1 a snow alert; however, I do not find this was because E2 acted negligently. I find, on a balance of probabilities, based on E2’s usual actions as described by ED, and the historical weather data of February 27, 2021, that E2 did not issue a snow alert that day because the weather conditions did not warrant such an alert. Furthermore, I find E2’s worker did not apply coarse salt to E1’s lot during their site visit on the morning of the incident because doing so was not reasonably warranted based on the site check or the weather conditions.
In transfer of cost cases, the standard of care is reasonableness, and not perfection, and I find that E2, and its workers, reasonably fulfilled the scope of their winter maintenance contract with E1. They did not do something which a reasonable and prudent person would not do, nor did they fail to do something which a reasonable and prudent person would do. In light of this, I am not satisfied that the evidentiary burden has been met, by E1, to show on a balance of probabilities, that E2 or its workers 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 July 15, 2022
M. LaCivita Appeals Resolution Officer Appeals Services Division