Highlights of Noteworthy Decisions

Decision 3245 18
R. McCutcheon - M. Falcone - K. Hoskin
  • Assessment of employers (retroactivity)
  • Board Directives and Guidelines (employer assessment) (retroactivity)
  • Detrimental reliance
  • Estoppel (representation or conduct)

The Board conducted an audit of the employer in 2013. This resulted in a debit adjustment to the employer's account of more than $500,000, for the years from 2009 to 2012. The employer appealed, claiming that the retroactivity should be limited to 2011 and 2012.

The Board had previously audited the employer in 2009, finding that its drivers were workers and not independent operators. That audit covered the years 2007 and 2008. The 2013 audit found that the employer was still not reporting the payroll of the drivers.
Board Operational Policy Manual, Document No. 14-02-06, on employer premium adjustments, provides that the Board generally makes debit or credit premium adjustments to employer accounts retroactive to January 1 of the second prior year. However, there are exceptions to the two-year rule, including for lack of full disclosure. The policy provides for debit premium adjustments for up to five years in the case of lack of full disclosure. Lack of full disclosure includes failure to act on information provided to the employer by the Board that directly affects the employer's premiums.
The Panel found that the employer did not act on the information provided to it by the Board during, and as a result of, the 2009 audit that the drivers were considered to be workers.
The employer submitted that the letter from the Board after the 2009 audit was too complex and difficult to understand. The Panel noted that the letter was seven pages in length, and found that it contained the level of detail that would be expected in an audit of a substantial trucking company, which owned 20 trucks by that time. The Panel also noted that the employer had a professional bookkeeper and that the director of the employer had business acumen and sophistication. In addition, the letter from the Board advised the employer to contact the Board with any questions.
The employer also submitted that the letter from the Board was unclear in instructions to the employer. However, the Panel noted that the letter specifically directed the employer to ensure that the information in the letter is reflected in future remittances.
The employer submitted that the doctrines of estoppel by representation or conduct and detrimental reliance applied due to acceptance by the Board of yearly reconciliation forms.
The Panel reviewed the elements of such a defence, and found that there was no positive representation by the Board to the employer that its conduct of not reporting the payroll of contract drivers was considered appropriate. To the contrary, the 2009 audit advised the employer that the contract drivers were considered to be workers and that their earnings should be included in future remittances.
The Panel found no other circumstances that warranted an exception to the application of the Board policy.
The appeal was dismissed.