WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1574/99R2

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1574/99R2 BEFORE: E.J. Smith: Vice-Chair M. Christie: Member Representative of Employers D. Broadbent: Member Representative of Workers HEARING: September 29, 2008, at Toronto Oral DATE OF DECISION: November 26, 2008 NEUTRAL CITATION: 2008 ONWSIAT 3063 DECISION(S) UNDER APPEAL Appeals Officer decision dated January 9, 1998 APPEARANCES: For the worker: For the employer: Mr. D. Wilken, Lawyer Mr. G. Nolis, Paralegal For the Tribunal Counsel Office: Ms. A. Somerville Interpreter: Ms. M. Kowalczyk, Polish Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1574/99R2 REASONS (i) Background: the issue [1] This Decision addresses the preliminary issue of the standing of B Chicago to participate in this re-opened appeal. [2] The appeal was initially the subject of Decision Nos. 1574/99I and 1574/99. The issue was the worker s entitlement for symptoms including memory loss, decreased co-ordination, and poor sleep patterns, as a result of exposure to aluminium or chemical solvents. In Decision No. 1574/99I, a prior Panel referred questions to a Tribunal Medical Assessor. In Decision No. 1574/99 the majority of the Panel denied the worker s appeal. [3] The employer (identified below as employer B Toronto ) participated in that appeal, which took place on September 16, Decision 1574/99 was issued on June 26, [4] The worker applied for reconsideration. The Reconsideration Vice-Chair determined that notice of the reconsideration request was to be provided to the employer. The Tribunal provided notice at the address in its files, but the notice was returned. The Tribunal requested employer status information from the Board and was informed that the employer s account had become inactive on December 31, The Vice-Chair proceeded to consider the reconsideration request. In Decision No. 1574/99R, he found that the Tribunal s threshold test for reconsideration was met. He determined that the matter was to be reheard on its merits. The matter was then scheduled to be reheard before this Panel. [5] However, before this Panel heard the re-opened appeal, the Tribunal Counsel Office (TCO) notified the Panel that a related company was requesting standing to participate in the appeal. The Panel directed that the parties were to address the standing issue at the hearing on September 29, (ii) The agreed facts [6] There was no dispute at hearing about the following facts: [7] The worker worked for the employer MD, from 1979 to His claim for injury from exposures at MD was made in [8] In 1997, while his appeal was ongoing at the Board, MD merged with another company. The merged company took the corporate name of B Toronto and continued to carry on business in Ontario. From the record, rightly or wrongly, the Board treated the merged company as the employer of record for the purposes of ongoing adjudication. [9] B Toronto was treated as the employer of record at the Appeals Officer hearing in 1998 and was the employer that participated for the purposes of Decision No. 1574/99. [10] B Toronto was a wholly owned subsidiary of B Chicago. [11] As of December 31, 2005, B Toronto ceased carrying on business, and its account with the Board was closed.

3 Page: 2 Decision No. 1574/99R2 [12] B Chicago, the parent company, now seeks standing to participate in the re-opened appeal on the merits. [13] B Chicago does not have a financial interest in the outcome of this appeal at this time. Quite aside from any financial interest it might have had previously, the NEER closure date is passed. (iii) The request for standing [14] Mr. Nolis requested standing on the following basis: [15] He submitted that this is an occupational disease case, and the Panel requires balanced evidence. There is a need for a full inquiry. B Chicago is in possession of the records of B Toronto and is in a position to assist the Panel. [16] He submitted a letter from B Chicago indicating that it has informed the Board and the Tribunal that it will assist with the adjudication of all the ongoing claims of B Toronto. He submitted that this is important to its reputation. It is a large company. B Toronto was a member of a small Rate Group. If this assistance became unavailable to the Board and the Tribunal, that might impact on the Rate Group and affect the parent company s reputation. There are a great many claims in issue. The company intends to re-open a business in Ontario. [17] He submitted that the employer has taken on responsibility for some of the continuing benefits of B Toronto employees, such as pension benefits, and so has assumed responsibility for that firm s outstanding affairs in other contexts. [18] He submitted that the Board has continued to treat B Chicago as the responsible employer even after the closure of B Toronto. Staff at the Board told B Chicago that it would have been responsible for NEER payments in 2006 if the closure date of B Toronto had been after December 31, Occupational disease claims are still being filed with respect to work activities at B Toronto. A few weeks ago, B Chicago was fined for the late filing of a Form 7 for an employee of B Toronto. B Chicago paid the late fine without objection, although it was not clear that the company was under an obligation to do so. [19] Mr. Nolis submitted that Tribunal decisions have recognized that employers can have an interest in an appeal even when there is no direct financial interest. (iv) Submissions of Mr. Wilken [20] Mr. Wilken submitted that the employer should not be allowed to participate. It was not the employer of record during the Appeals Officer proceedings. B Chicago is not the company that participated in the prior Tribunal proceedings. The information provided by Mr. Nolis about what the company was told by Board staff or about the Form 7 has not been proven in evidence. It cannot be relied on to mean that the company was liable in these ways. That has not been shown. While the Board treated B Toronto as the employer after the merger, there is no clear evidence about the nature of that corporate re-organization, either. There is no reliable evidence that B Chicago has a financial interest in this appeal.

4 Page: 3 Decision No. 1574/99R2 [21] Tribunal decisions have been consistent in finding that membership in the Rate Group or a desire to ensure proper adjudication is not a sufficient basis for standing. [22] Mr. Wilken submitted that, if the Panel wants to obtain documents in the possession of B Chicago, it can request them. It is not necessary to grant B Chicago standing to obtain those records. B Toronto did not offer to bring witnesses to the prior proceedings and B Chicago has not identified an intention to bring witnesses to this proceeding. In any event, B Toronto had the opportunity to provide evidence at the prior hearing and that evidence remains on record. [23] He submitted that this is not a novel issue that requires employer participation. (v) Submissions of TCO [24] Ms. Somerville reviewed the applicable legislative provisions and the case law. Section 89 of the Workers Compensation Act (the pre-1997 Act) provides that parties of record are to be provided notice. However, this is not a defined term. It has been generally interpreted to mean parties named by the Board in the claim file. Decision No. 672/97 distinguishes the right to notice from the right to standing in the hearing. It found that even a party of record may be denied standing if its financial interest has become too remote. [25] Tribunal Decisions have also granted standing as of right to parties with a financial interest. Standing has been granted to a party with no financial interest but with a significant non-pecuniary interest, for instance when a stress claim raises issues about workplace practices (See Decision No. 262/99I). [26] A Panel may also grant standing on a discretionary basis, when the Tribunal has an interest in receiving submissions from the employer s perspective. That discretion should be weighed against concerns about unnecessary complexity and intrusion into the privacy of the other party. [27] In Decision No. 622/98I, the Panel granted standing to an employer even though the injured worker had been employed by a subcontractor. The injury had occurred at its premises. The claim was for an occupational disease. Panels have found that participation may be especially helpful in occupational disease cases because the employer whose premises are in issue may have knowledge about the workplace. In that case, the Panel also granted standing to the contractor, which was the party of record, despite that fact that it had no direct financial interest. [28] In Decision No. 170/06, the Vice-Chair found that the employer had standing despite the fact that it was no longer in business and its account with the Board had been closed. It had been active at the time of the accident. The Vice-Chair found that it was not relevant that it no longer had a financial interest. The Tribunal has an investigative role and, in determining appeals, should seek out and take into account any evidence that might be relevant. The employer was in a position to provide evidence through the testimony of its manager and the most expedient manner in which to facilitate such evidence would be to permit the employer to participate in the appeal as a party.

5 Page: 4 Decision No. 1574/99R2 [29] Other considerations have been given less weight. Panels have found that the fact that an employer is a member of the Rate Group, or the fact that it has a general interest in the proper adjudication of claims, is not sufficient to form a basis for standing. However, when an employer is a party of record, or has otherwise been granted standing, decision makers have not considered the fact that the NEER closure date has passed a basis to deny standing. (See the discussion in Decision No. 599/98.) (vi) The Panel s conclusions [30] We have decided to allow the employer standing in this case. [31] We recognize that this Panel has little evidence about the actual corporate structure of B Toronto, and therefore cannot be sure that the Board was correct to treat that company as the employer of record prior to Our only information is a letter from B Chicago that MD and another company merged, taking the name B Toronto. Mr. Wilken submits that that term can be used colloquially. However, we have no reason to think that the approach of the Board, in treating B Toronto as the employer, was incorrect. In the case of an amalgamation, both prior companies are viewed from a legal perspective as continuing to exist in the new corporate entity. In any event, whether or not the treatment was correct, the Board treated B Toronto as the responsible employer in the claim file, and so it is fairly considered an employer of record. We infer it was held responsible for the claims of the MD workers until December 31, 2005, and so it had a financial interest in the outcome of this appeal at least to that date. [32] However, B Toronto has closed, and B Chicago is a different case. It is not the employer of record. It was never the employer of this worker. It is not a successor employer. Mr. Nolis took the position that B Chicago would have been directly liable to the Board for the payments owed by B Toronto prior to the closure of the NEER window, but he was unable to tell the Panel on what basis that would have been the case. [33] Notwithstanding these facts, there are factors that support our allowing B Chicago to participate. This is an occupational disease case. The events are well in the past. The Panel considers that it would be helpful to have B Chicago participate in the hearing because it may be in a position to assist if the Panel finds that additional information is needed about the workplace. It is true that the Panel could request that information even in the absence of full participation by B. Chicago. However, the participation of this company may be helpful in assisting the Panel to identity what information might exist or be available. We agree with the Vice-Chair in Decision No. 170/06 that the most expedient way to ensure that the Panel obtains the fullest information is to allow the party with that information to participate. We consider that consideration important in the situation in which that party was the employer or is in possession of the information because of its close corporate relationship with the employer. The worker has provided new evidence and it is not clear whether new questions will arise. [34] Generally, Tribunal Panels have recognized that the participation of employers may be especially helpful in occupational disease cases, because of the many questions that arise about the nature of the workplace.

6 Page: 5 Decision No. 1574/99R2 [35] Further, in our view, at the time of the prior hearing, B Chicago had at least an indirect financial interest in those proceedings. B Toronto was its wholly owned subsidiary. B Chicago had an interest in the financial affairs of B Toronto. Any liabilities of B Toronto affected the net worth of that company, and therefore affected its value in the hands of its parent company. It appears probable, as well, from the information provided by Mr. Nolis, that B Chicago may have entered into some commitments with respect to the ongoing liabilities of B Toronto as part of the winding up arrangements. [36] The fact that the NEER closure date has passed is generally not considered a reason to deny standing if standing is otherwise appropriate. [37] We also do not consider that there is a significant privacy issue in this case, given the close relationship of these companies. B Chicago is simply stepping into the shoes of its closed subsidiary. It is represented by the same representative that participated in the last hearing. Mr. Nolis has already had access to the Tribunal record. In our view, it is not uncommon for companies to use complex corporate structures to manage their affairs. When one company holds 100% of the shares of another, we do not consider it useful, from an adjudicative point of view, to make too fine a distinction between the corporate entities with respect to the recognition of standing. That is especially the case given that this is a re-opened appeal, and B Chicago s wholly owned subsidiary participated in the original hearing.

7 Page: 6 Decision No. 1574/99R2 DISPOSITION [38] B Chicago is granted standing in this appeal. DATED: November 26, 2008 SIGNED: E.J. Smith, M. Christie, D. Broadbent

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