Highlights of Noteworthy Decisions

Decision 657 15
R. Nairn
  • Out of province
  • Procedure (submissions) (Board)
  • Transfer of costs (no fault motor vehicle insurance)

The worker was a truck driver who was injured in a motor vehicle accident in the United States. The worker was sleeping in the bunk of the tractor-trailer. The tractor-trailer was being driven by a co-worker, and was stopped for a school bus when it was struck by another truck that failed to stop.

The employer requested a cost transfer pursuant to Board Operational Policy Manual, Document No. 15-01-06, on third party motor vehicle accident claims costs, which provides relief in certain claims involving negligent third parties. However, the Board found that it did not have jurisdiction to consider external law and that, accordingly, the policy could not be applied to accidents occurring outside of Ontario. The employer appealed.
The Vice-Chair accepted amicus curiae submissions from the Board. The Board noted that the version of Document No. 15-01-06 that was applicable in this case was published in 2004. It provided that, before the implementation of no-fault automobile insurance, the Board could, on behalf of a worker, sues a non-Schedule 1 third party for negligence. If successful, the Board used the court award to provide cost relief to the accident employer. With the advent of Ontario's no-fault automobile insurance legislation, in most cases, a third party cannot be sued for negligence. Since the Board was thus precluded from taking legal action on behalf of a worker against a non-Schedule 1 third party, it must conduct its own investigation to determine the degree of negligence for cost relief purposes.
The policy was amended in 2015. It now provides that, before the implementation of no-fault automobile insurance, the Board could, on behalf of a worker, sue a non-Schedule 1 third party for negligence for motor vehicle collisions occurring in Ontario. The Board submitted that the addition of the reference to collisions occurring in Ontario simply provides additional clarity but that the scope of the application of the policy remained unchanged, so that it had always been the intended scope of the policy that employers like the one involved in this appeal would not be entitled to a transfer of costs for motor vehicle accidents that occurred outside of Ontario.
The Vice-Chair found, based on evidence submitted by the employer and an earlier decision of the Board, that the Board did, in fact, at least in 2010 when the accident in this case occurred, still consider transfer of costs in cases where workers of Schedule 1 employers were involved in motor vehicle accidents outside of Ontario. This is consistent with a plain reading of the version of Document No. 15-01-06 in effect at the time of the accident. The Vice-Chair concluded that the Board had jurisdiction to consider the claim for the transfer of costs.
On the merits, the accident was entirely the fault of the driver of the other truck. The employer was entitled to have all costs of the accident removed from its record.
The appeal was allowed.