20220012 (Re) 2022 OWSIB mini 4

APPEALS RESOLUTION OFFICER DECISION

decision number:

20220012

Objecting party:

EMPLOYER (E1)

REPRESENTED BY:

SELF

RESPONDENT:

respondent (r1)

REPRESENTED BY:

rESPONDENT REPRESENTATIVE

HEARING:

HEARING IN WRITING

HEARD BY:

MARISA LA CIVITA, APPEALS RESOLUTION OFFICER

DATED:

JANUARY 24, 2022

ISSUES

The Employer (E1) objects to the Transfer of Cost (TOC) Adjuster’s decision of August 30, 2021 denying a transfer of costs of this claim from its accident record to the accident record of the Respondent (R1).

It seeks that the August 30, 2021 decision of the TOC Adjuster be overturned, and that 100% of the costs of this claim be transferred to R1.

BACKGROUND

On November 25, 2020 at approximately 1:20 pm, the worker (SH), who was employed by E1 for over two years at that time, sustained injuries shortly after exiting a building in which they had been providing janitorial services.

According to the Form 7, Employer’s Report of Injury, which was completed and submitted to the Workplace Safety and Insurance Board (WSIB) on December 3, 2020, the worker, SH, exited the east facing main entrance of the building, and was walking on the sidewalk in front of the building when they slipped on the ice and snow and fell, injuring their left ankle. In the ‘Additional Information’ section of the same form, the employer noted, among other things, the following:

• The incident occurred in a parking lot that is not owned or controlled by the employer of the injured person
• The sidewalk where SH slipped and fell is not owned nor maintained by E1. According to investigation, the parking lot was not cleaned for the entire day and was covered in snow. On notification of the fall the contractor was notified and attended the site to clean.

The building is owned by a third party (CRE), who contracts with another party (R1) for the removal of snow from the premises where the injury took place.

E1 requested the costs of the worker’s claim be transferred to R1.

On February 2, 2021, E1 emailed the TOC Adjuster a submission dated December 29, 2020 outlining the details of the accident, noting that the worker finished their shift on November 25, 2020 at 1:00 pm at the client premises where E1 is a contractor. The worker changed into winter clothing, and exited the facility, when immediately on exit, or shortly thereafter, reportedly slipped and fell in the front of the building. E1 submitted that R1, the snow removal contractor for the building, was negligent in performing the contracted service and allowed a build-up of snow and ice that caused the worker to slip and fall. Also submitted were:

• unauthenticated photographs of the parking lot entrance area
• E1’s Supervisor Accident/injury Investigation Report completed on November 26, 2020.

On February 3, 2021, the TOC Adjuster emailed E1 advising that, in TOC matters, submitted photographs must be authenticated.

On February 8, 2021, E1 responded by email, attaching one authenticated photograph of the parking lot entrance area.

In a letter dated March 1, 2021, the TOC Adjuster advised R1 of the TOC request and invited them to respond by submitting all issues relevant to the cause of the accident.

R1’s representative responded, on March 30, 2021, that R1 is not liable for the E1 worker’s slip and fall accident. They noted that the front of the building in question was maintained in accordance with R1’s snow clearing and salting process, and that at all material times, R1 fulfilled and exceeded the required standard of care. Workplace Safety and Insurance Appeals Tribunal (WSIAT) decisions 715/17 and 1478/02 were cited as examples of decisions pertaining to the approach of common law negligence and onus of proof, respectively, and the following documents were submitted:

• a copy of R1’s snow removal contract with CRE, signed by R1 on November 1, 2019, and by E1 on February 16, 2020
• the Department of Environment and Climate Change’s hourly weather data report for November 24, 2020
• a weather report by Weather Underground for November 24, 2020
• the Department of Environment and Climate Change’s hourly weather data report for November 25, 2020
• a weather report by Weather Underground for November 25, 2020
• TSN Daily Log Form for a four-person crew that worked on November 25, 2020 between 11:00 am and 11:00 pm
• TSN Daily Log Form with respect to a one-person crew that worked from 5:00 pm on November 25, 2020 to 2:00 am on November 26, 2020
• R1 Crew Snow Log with respect to a one-person crew that worked from 5:00 pm on November 25, 2020 to 3:15 am on November 26, 2020
• two authenticated photographs of the building entrances taken on November 25, 2020 at 2:47 pm and 2:48 pm.

E1 submitted on May 17, 2021 that the contractor (TSN) that R1 used to remove snow at the property, may not be aware of contractual obligations since they did not enter into an agreement with the owner of the properties. The snow removal contract R1 has with E1 notes that “under no circumstances may the contractor transfer this contract without written permission of the owner”. Given the different forms used by both companies, it’s apparent that the companies have different procedures for recording methods of snow clearing, equipment inventory and use, etc., and that subcontractors may not be overseen with the same focus as regular crew members of R1. E1 also questioned the credibility of the log sheets submitted by R1, given that, although R1 submitted that the crew was onsite to re-service the property following the incident, the TSN logs do not indicate any record of re-servicing the area past 1:00 pm. E1 also argues that R1’s photographs were taken approximately 1.5 hours after the incident was reported and do not demonstrate the conditions of the premises at the time of the incident, and that the incident did not occur at the location in the photograph as presented by R1.

On June 17, 2021, R1’s representative responded that, as already indicated, R1 frequently retains the services of TSN to supplement its existing crews, and has been doing so for several years as TSN applies the same level of diligence and quality services and procedures included in R1’s contractual obligations to its clients. Furthermore, R1 continues to be the contractor for snow and ice management at properties owned by CRE, and CRE is aware that R1 retains the services of TSN from time to time to supplement its workforce. Also, the fact that R1 and TSN use different daily logs does not mean that TSN offers subpar services. In response to E1’s submissions, R1 asserts that the property in question was serviced before the incident, between 11:30 am and 1:00 pm, and that the “side walk” task noted on the log would have included removing snow from the steps/sidewalks/building entrances, and applying salt in a prudent and diligent way, according to the weather conditions. Furthermore, after the accident, R1 was contacted and a different crew attended the property to re-service as the original TSN crew was servicing other properties that afternoon, as noted on their daily log. R1 did not maintain a log for this specific re-service as the property was already serviced in a prudent and diligent way, and they were attending in response to being advised of the accident. Additionally, the snow removal contract does not provide a specific timeframe for when the snow removal/salting services must be administered; rather, the contract states that the contractor undertakes to ensure the parking area is “available” by 7:30 am, and in this case, the property was among the first properties to be serviced on November 25, 2020. With respect to R1’s submitted photographs, R1 argues that they are consistent with information reported to R1, and with information in E1’s letter dated December 29, 2020 which confirms that the accident occurred immediately on exit, or shortly thereafter, in front of the building. That E1 is now taking the position that the accident no longer took place in front of the building undermines the credibility of E1’s submissions.

On August 30, 2021, the TOC Adjuster denied E1’s request for a transfer of cost. The decision noted that, based on all documentation received, it appears that the worker, SH, slipped and fell on the sidewalk while leaving the building after the workday was complete. It was noted that maintenance logs submitted by R1 confirm the area of the fall was cleared prior to the fall, and that the expectation for snow removal in winter months is reasonableness, and not perfection.

E1 submitted an Objection Form, dated September 14, 2021, objecting to the TOC Adjuster’s decision of August 30, 2021, stating that it was their belief the decision-maker did not properly consider the evidence on file. Specifically, the decision-maker accepted photographic evidence from R1 that was not the area of the incident, and that was taken well after the incident occurrence, and after the contractor had returned to clean the area and apply salt. Undated Google Satellite views of the property were submitted, with markings to clarify the area and location of the incident. E1’s authenticated photo, was labelled to show the markers identified in the Google views. R1’s authenticated photographs were also submitted, stating that the image submitted by E1 is the location of the fall, and that R1 did not replicate this area in their submission, or intentionally did not photograph this area.

On October 20, 2021, the TOC Adjuster upheld the August 30, 2021 decision noting that the information submitted with the Objection Form had already been taken into consideration.

The objection was forwarded to the Appeals Services Division, and is now before me for review.

E1’s Position

• The worker changed into winter clothing, and exited the facility, when immediately on exit, or shortly thereafter, the employee reportedly slipped and fell in the front of the building.
• R1 as the snow removal contractor, did not perform services as contracted, which caused an unnecessary build-up of snow and ice. This build-up created a hazard that caused E1’s worker, SH, to slip and fall due to the negligence of R1.
• According to client employees and E1 employees, there was no service to the facility for the entire day.
• E1 has no ownership or control over the parking lot/entrance area of the facility.
• E1 Supervisor Accident/injury Investigation Report completed on November 26, 2020 notes that there was a heavy snowfall on the day of injury, and that another contractor did not salt the driveway, parking lot, and side walk. It also states that E1 was in constant contact with CRE (the property manager/owner) to clear the snow and ice, and that the contractor had all day to clear the snow/salt areas, but showed up after the incident.
• R1’s snow removal contract with CRE (the property owner) prohibits the transfer of the contract to another contractor, in this case TSN, without the owner’s permission.
• TSN, as a contractor, may not be overseen with the same focus as regular crew members of R1.
• E1 questions the credibility of the log sheets submitted by R1, given that, although R1 submitted that the crew was onsite to re-service the property following the incident, the TSN logs do not indicate any record of re-servicing the area past 1:00 pm.
• E1’s Authenticated photo of the parking lot area represents the area where the accident occurred, and shows that the parking lot area was not cleared of snow and ice.
• R1’s submitted photograph was not of the accident area, and was taken after the accident, when the area had been cleared and salted

R1’s Position:

• The TOC principal is that E1 has the onus of establishing a prima facie case of negligence, which it has not done. There is no evidence that the worker’s fall was caused by something R1 either did or did not do.
• E1 submits that according to client employees and E1 employees, there was no service to the facility for the entire day; however, E1 has offered no witness statements nor specific particulars to confirm whether the worker was wearing proper footwear, was running, was distracted, etc.
• The front entrance of the building was maintained in accordance with R1’s snow clearing and salting process. The standard of care is reasonableness, not perfection, and R1 met its duty of care by continuously monitoring weather conditions, having mechanics with fully equipped service vehicles available 24 hours per day to maintain its fleet, and retaining TSN to ensure that ice management services are provided in a diligent and timely manner.
• R1 has not transferred its snow removal contract with CRE to TSN, and CRE is aware that R1 retains the services of TSN from time to time to supplement its workforce.
• That R1 and TSN use different daily logs does not mean that TSN offers subpar services.
• Daily logs show the property in question was serviced before and after the incident. Before the incident, on November 25, 2020, between 11:30 am and 1:00 pm, the “side walk” task noted on TSN’s daily log would have included removing snow from the steps/sidewalks/building entrances, and applying salt in a prudent and diligent way, according to the weather conditions.
• When R1 was contacted after the accident, a different crew attended the property to re-service as the original TSN crew was servicing other properties that afternoon, as noted on their daily log. R1 did not maintain a log for this specific re-service as the property was already serviced, and they were attending in response to being advised of the accident.
• R1’s submitted photographs are consistent with information reported to R1 by E1, and with information in E1’s letter dated December 29, 2020 which confirms that the accident occurred immediately on exit, or shortly thereafter, in front of the building. That E1 is now taking the position that the accident no longer took place in front of the building undermines the credibility of its submissions.
• R1’s contract with CRE does not state exactly when snow and ice management must occur, only that R1 shall keep, at all times, the parking area “available” to the owner’s occupants and clients and that R1 undertakes that the parking area is available by 7:30 am.
• The property was among the first properties to be serviced on November 25, 2020.
• Weather reports show there was no freezing rain before the accident, and photos taken after the accident show no accumulation or build-up of ice or snow

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 R1. Both parties have provided written submissions along with documentation and authenticated photographs 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 R1?

Yes, there was. R1 had the responsibility to remove snow from the parking lot, steps, and sidewalks of the building in which E1, and thus E1’s worker, was contracted to provide janitorial services. Any carelessness on the part of R1 in conducting its duties in relation to the parking lot, steps, and sidewalks might reasonably cause injury to E1’s workers. Therefore, R1 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 R1 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 R1 was not in breach.

Submitted evidence, namely weather reports, show that there was no snow fall or rain on November 24, 2020, i.e. the day prior to the date of injury. Weather conditions of snow/blowing snow, to light snow, are noted as commencing between the hours of 3:00am and 4:00am on the date of injury, November 25, 2020, and continuing until between 12:00 pm and 1:00 pm that same day. The reports indicated no significant temperature fluctuations, between the onset of the snow fall and the time of the accident, that would normally trigger a thaw and re-freeze of surface snow, potentially leading to icy conditions. Temperatures during that span of time steadily increased from approximately -5.8°C (21°F) to approximately -3.8°C (25°F). Furthermore, although there was freezing/light freezing rain noted on the November 25, 2020 weather reports, the rain did not begin to fall until around 8:00 pm, which is well after the time of the accident.

R1 argues that it has an experienced and dedicated group of operators, who provide exceptional services, and submits that by continuously monitoring weather conditions, having mechanics with fully equipped service vehicles available 24 hours per day to maintain its fleet, and retaining TSN to ensure that ice management services are provided in a diligent and timely manner, it has met its duty of care.

No evidence has been provided with respect to the availability of R1’s mechanics and service vehicles; however, the maintenance of R1’s fleet is not at issue in this case. With respect to the monitoring of weather conditions, I acknowledge that weather reports were submitted by R1, and I have accepted the information within them as accurate; however, the weather reports include historical data, and were not, to my knowledge, in R1’s possession at the time of the accident. Therefore, I cannot accept them as proof that R1 effectively monitors weather conditions. However, based on the daily logs submitted for November 25, 2020, I do accept that R1 has a reasonable system of maintenance in place, in accordance with its snow removal contract with CRE (the property owner), and that such system was reasonably implemented on the date and time of injury.

The snow removal contract requires R1 to remove snow from the parking lots at CRE’s buildings, and keeping said parking area available to the buildings’ occupants and clients. It outlines that snow removal of the parking area includes, among other things: scraping and clearing the parking area and blowing the snow on lands of the property as indicated by the owner, removing snow from steps and sidewalks of the building and full width access on side streets, providing and spreading abrasives (sand and/or salt) when necessary, and clearing the grounds of the building of snow coming from the roof. The contract also stipulates that R1 undertakes toward the owner to ensure that the parking area is available by 7:30 am.

The Employer’s Report of Injury stated that SH’s accident occurred at 1:20 pm. Authenticated photos of cleared sidewalks on the property, submitted by R1, were taken after the time of the accident, and thus, do not speak to the conditions of the sidewalk at the time of injury. However, a TSN Daily Log Form for a 4-person crew working on November 25, 2020 between 11:00 am and 11:00 pm, confirms that the “side walk” at CRE’s 3 properties were attended to between 11:30 am and 1:00 pm, which precedes the time of injury. The log notes that the crew travelled to various properties via an F-150 vehicle, and implemented a “side walk machine”. Therefore, I do find the sidewalk was cleared in accordance with the snow removal contract, and at the material time.

E1 argues that their worker, SH, did not fall on the sidewalk, but rather in the parking lot, as represented by a submitted authenticated photograph taken at approximately 1:35 pm on November 25, 2020. However, I cannot agree with this argument as the Employers’ Report of Injury completed by E1 on December 3, 2020 clearly states under the ‘Accident/Illness Dates and Details’ section, “the employee exited the east facing main entrance and was walking on the sidewalk (emphasis added) in front of the building when she slipped on the ice and snow and fell, injuring her left ankle.” E1 noted, on the ‘Additional Information’ section of the report that the incident occurred in a parking lot that is not owned or controlled by E1, but again confirmed that the worker, SH, slipped and fell on the sidewalk. Furthermore, E1’s Supervisor Accident/Injury Investigation Report indicates that the worker fell down soon after leaving the building, outside of the main entrance. Therefore, based on the evidence before me, I find on a balance of probabilities, that the worker, SH, fell on the sidewalk, outside of the east entrance of the building, which had already been cleared of snow.

Even if the worker had fallen in the parking lot, the authenticated photograph of the parking lot area submitted by E1, although having some glare or reflection, still clearly shows that the pavement in the area is partially visible through the snow cover. Therefore, the parking area was “available” to occupants and clients, as stipulated in R1’s snow removal contract with the property owner, CRE. Furthermore, while E1 noted being in constant contact with CRE to clear the snow/ice on its Supervisor Accident/injury Investigation Report, dated November 26, 2020, no evidence of this has been brought forth.

Evidence does show that the parking lot was serviced on November 25, 2020, albeit after the accident. A TSN Daily Log Form completed for a 1-person crew that worked from 5:00 pm on November 25, 2020 to 2:00 am on November 26, 2020, noted “plow” as a completed task for CRE’s properties between 6:00 pm and 7:52 pm. Finally an R1 Crew Snow Log with respect to a one-person crew that worked from 5:00 pm on November 25, 2020 to 3:15 am on November 26, 2020 notes the CRE properties’ parking/roads were serviced, “and snow dump” was completed, between 6:45 pm and 10:15 pm.

Therefore, while I acknowledge that the parking lot was not cleared on November 25, 2020 prior to the accident, I have established that the sidewalk, where the accident took place, was cleared, and that the parking lot was available at the material time. I further find evidence that snow removal crews were on site, on the date of injury, at different intervals of time, both prior to and after the accident. The standard does not require that the entire property be free and clear of snow and ice at all times. What the law requires is reasonableness, and I find that R1 did take reasonable steps to fulfill its snow removal contract.

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 R1 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 R1.

DATED January 24, 2022

M. LaCivita

Appeals Resolution Officer

Appeals Services Division