Highlights of Noteworthy Decisions

Decision 715 17
29/10/2020
J. Frenschkowski - K. Boshcoff - C. Salama
  • Jurisdiction, Tribunal (final decision of Board) (time limits)
  • Negligence
  • Time limits (appeal) (previous withdrawal)
  • Transfer of costs

An engineering firm was under contract to a steel mill to manage a project which involved the refurbishment of and the installation of new equipment in the facility. A worker of the engineering firm was injured when he slipped on ice in the parking lot of the work site on the morning of December 17, 2012. The engineering firm appealed a decision of the Appeals Resolution Officer denying transfer of the costs of the accident to the steel mill.

In a preliminary matter, the Panel considered the submission of the steel mill that the engineering firm had missed the time limit to object to the decision of the Board adjuster.
The Panel found that the issue of the time limit was a preliminary issue that was squarely before the adjuster and the ARO, although neither explicitly addressed the issue. It could be said that both the adjuster and the ARO implicitly ruled on the preliminary objection to the timeliness of the appeal, in order to render a decision on the substantive transfer of costs issue. Accordingly, the Tribunal had jurisdiction to consider the time limit issue.
The engineering firm appealed within the deadline at the Board but wished to delay the appeal while it awaited the outcome of the experience rating decision and in order to seek appropriate representation, as the current representative was not permitted to represent on workplace insurance matters in Ontario. It was clear from Board memoranda that the withdrawal of the objection was without prejudice, which meant that the statutory time limit would not apply to the new intent to object.
When the totality of evidence was considered and weighed, the Panel found that engineering company has not discharged the burden of proof and has not established that the contractor parking lot had not been maintained, or properly maintained.
The appeal was dismissed.