Highlights of Noteworthy Decisions

Decision 200 13
30/09/2013
G. Dee - S. Sahay - M. Ferrari
  • Stress, mental
  • Transfer of costs (no fault motor vehicle insurance)

The worker was a bus driver who witnessed an accident between a car and a pedestrian that occurred in an intersection controlled by traffic lights. The identity of neither the pedestrian nor the car driver could be determined. The worker developed a significant mental disorder as a result of witnessing the accident. The Board paid the worker wage loss benefits. The employer appealed a decision of the Appeals Resolution Officer denying the employer's request to remove the costs of the claim from the employer's record.

Board Operational Policy Manual, Document No. 15-01-06, provides relief for an employer in the case of motor vehicle accidents involving a negligent third party who is not covered under Schedule 1. This policy was introduced in order to provide a method of cost relief for employers that would replace the previous cost relief that was available when civil damages were recovered in motor vehicle claims from negligent third parties not covered by Schedule 1. This potential form of cost relief was lost with the introduction of no-fault automobile insurance in Ontario.
The Board found that there was no duty of care on the part of the pedestrian or car driver to the worker and, thus, no basis for liability or transfer of costs.
In order to recover damages in a civil action, it would generally be necessary to show that the defendant owed the plaintiff a duty of care and that the defendant's conduct breached that duty, usually demonstrated by the defendant's negligence. It would also be necessary for the defendant parties to be identified. On the other hand, to obtain cost relief under Document No. 15-01-06, the viability of a civil suit is not a requirement. It is only required that the claim costs be costs of motor vehicle accidents involving a negligent third party not covered under Schedule 1.
The Panel was satisfied that the accident involving the car and the pedestrian was due to negligence of either the driver or the pedestrian failing to comply with the traffic lights. The negligent driver or pedestrian was either covered by Schedule 1 or not. If covered by Schedule 1, Document No. 14-05-01 would apply to transfer costs from the bus driver's employer to the employer of the negligent individual. If the individual was not covered by Schedule 1, Document No. 15-01-06 would apply to provide cost relief to the employer. Although the employer would be entitled to relief under either scenario, the Panel found it more likely than not that the negligent driver or pedestrian was not covered by Schedule 1.
The Panel was also satisfied that the costs of the worker's injuries were the costs of a motor vehicle accident, as required by Document No. 15-01-06. The Panel noted that the Board had already granted entitlement for the worker's injury and paid benefits.
The Panel also noted that the standard for cost transfers under Documents No. 15-01-06 and 14-05-01 is negligence, which is defined in Document No. 14-05-01 and does not involve considerations of foreseeability and duty of care.
The employer was entitled to 100% cost relief under Document No. 15-01-06. The appeal was allowed.