) ) CINDY DICKS, WILLIAM MURRAY, AMY DICKS v. TARYN, 2013 ONSC 7866

CITATION : Dicks, (Ontario) Workplace Safety and Insurance Appeals Tribunal v. Bellissimo, 2013 ONSC 7866 DIVISIONAL COURT FILE NO.: 252/12 DATE: 20131218 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT HIMEL, SACHS AND NOLAN JJ. BETWEEN: ) ) CINDY DICKS, WILLIAM MURRAY, AMY DICKS and TARYN BERBERICK and THE WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL Plaintiffs/Respondents – and – GIUSEPPE BELLISSIMO, FRANCESCO BELLISSIMO and DAIMLER CHRYSLER FINANCIAL SERVICES CANADA INC.

Defendants/Applicant )) )) )) )) )))))) Adam Little , for the Plaintiffs/Respondents, Cindy Dicks, William Murray, Amy Dicks and Taryn Berberick Daniel S. Revington , for the Plaintiffs/ Respondents, Workplace Safety and Insurance Appeals Tribunal Barry G.

Marta and Amit Gogna , for the Applicant, Daimler Chrysler Financial Services Canada Inc. ) ) ) HEARD at Toronto: December 18, 2013 sachs j. (orally) Introduction [ 1 ] Daimler Chrysler Financial Services Canada Inc. (“Daimler”) (“the applicant”) applies for judicial review of the decision of the Workplace Safety and Insurance Appeals Tribunal (“the Tribunal”) dated April 13, 2012.

The Tribunal found that the right of action of the plaintiff, Cindy Dicks, and her three family members against the defendants Giuseppe Bellissimo and Francesco Bellissimo was not taken away under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16 Sch. A (“the Act”). Factual Background [ 2 ] On February 14, 2007, Cindy Dicks, a customer service cashier at Home Depot of Canada Inc., was struck from behind by a pick-up truck while crossing the parking lot at her place of work.

The vehicle was driven by Giuseppe Bellissimo, and was leased by Francesco Bellissimo under a lease agreement from the applicant, Daimler. Ms. Dicks sustained personal injuries and required hospitalization and rehabilitation. [ 3 ] At the time of the accident, the vehicle was being used to clear snow from the parking lot under a maintenance contract between the owner of the parking lot and the employer, Home Depot. Francesco Bellissimo was the registered sole proprietor of Bedrock Maintenance (“Bedrock”), which performed snow removal services.

Giuseppe was operating the truck and performing snow removal. [ 4 ] Home Depot had a contract with “Joe Bellissimo operating as Bedrock Property Maintenance” for snow removal. It is accepted that Giuseppe Bellissimo is also known as “Joe”. The contract was signed by Giuseppe Bellissimo with the title of “owner”. A Business Names Report dated June 18, 2008 from the Ministry of Consumer and Business Services shows that Bedrock Property

Maintenance is a sole proprietorship registered to Francesco Bellissimo. Neither Francesco Bellissimo nor Bedrock was registered withthe WSIB as a

Schedule 1 employer. At Giuseppe’s examination for discovery in the civil action, he said he was employed by Francescoand was in the course of employment with Bedrock at the time of the accident. He also said that he was getting a cheque from Bedrockand that he purchased Bedrock from Francesco in June of 2009, which was after the accident. [5] On February 15, 2007, Home Depot completed and submitted a WSIB Employer’s Report of Injury/Disease (Form 7) forCindy Dicks indicating that the accident happened on the employer’s premises in the parking lot. Ms. Dicks did not claim WSIBbenefits.

She and her three family members commenced a civil action against Daimler, Giuseppe and Francesco seeking damages forpersonal injury. [6] Daimler applied to the Tribunal under s. 31 of the Act for a declaration that Ms. Dicks’ action against Giuseppe Bellissimoand Francesco Bellissimo was taken away by s. 28 of the Act. The Tribunal asked Daimler to serve its application on Home Depot,which it did. The Tribunal asked Daimler to file a copy of the contract between Bedrock and Home Depot.

Daimler wrote to HomeDepot requesting the contract, but received no response. [7] The case proceeded to a hearing before the Tribunal on December 6, 2011. In order to take away Ms. Dicks’ right of actionagainst Francesco and Giuseppe, Daimler had the onus of establishing that at the time of the accident Ms. Dicks was the worker of aSchedule 1 employer, that she was injured in the course of her employment, that Francesco or Bedrock was a

Schedule 1 employer, andthat Giuseppe was working for Francesco. [8] The Tribunal advised Daimler about the opportunity to call witnesses before the hearing, suggested that the contract beobtained and sent Daimler a copy of the relevant Practice Direction. Daimler did not call any witnesses at the hearing. Francesco,Giuseppe and Bedrock did not attend the hearing or make submissions, although they were notified of the hearing.

Daimler and Ms.Dicks did not call witnesses; they relied on the documents filed. [9] On December 28, 2011, the Tribunal wrote to the parties, advising that it had received notice from Home Depot that itlocated a maintenance contract between Home Depot and Bedrock. It advised that Home Depot was not seeking to make submissions ortake a position on the application. The Tribunal invited the parties to make submissions on the admissibility of the maintenancecontract. The applicant consented to the contract being admitted on January 6, 2012.

The respondents advised on January 16, 2012 thatthey would not be making submissions on the admissibility of the contract. On January 18, 2012, the Tribunal confirmed their positionswith respect to the admissibility of the contract. [10] On January 20, 2012, the Tribunal requested that the applicant clarify its position on the admissibility of the contract. Theapplicant confirmed that it consented to the contract being admitted on January 23, 2012. On February 7, 2012, the Tribunal advisedthat it would be reviewing the contract as no one objected to its admission.

On February 9, 2012, the Tribunal invited the parties to makesubmissions on the impact of the contract and gave them three weeks to respond. On February 27, 2012, the applicant made submissionson the contract. On February 28, 2012, the respondents made submissions on the contract. On March 1, 2012, the applicant made replysubmissions. On March 5, 2012, the Tribunal provided the parties with a

summary of submissions concerning the admission and impactof the contract. The Tribunal requested that the parties advise of any concerns; the applicant did not raise any concerns. The Tribunal’s Decision [11] In its decision, the Tribunal considered whether Francesco Bellissimo and/or Bedrock was a

Schedule 1 employer andwhether Giuseppe Bellissimo was a worker in the course of his employment with a

Schedule 1 employer. After reviewing the evidence,including the snow removal contract between Bedrock and Home Depot, the Tribunal was not satisfied on a balance of probabilities thatFrancesco and/or Bedrock was a

Schedule 1 employer and that Giuseppe was a worker at the time of the accident. Instead, the Tribunalfound that it was Giuseppe, not Francesco, who held himself out as the owner of Bedrock at the time of the accident. The Tribunaldenied the application and found that the plaintiffs’ right to commence an action as a result of the accident was not taken away againstthe defendants, Francesco, who leased the truck, Giuseppe, who drove the truck or Daimler, who owned the truck.

Standard of Review [12] The privative clause set out in the Act is one of the “toughest privative clauses” known to Ontario law”: see Rodrigues v.Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 719, [2008] O.J. No. 4103 at para. 22; leave to appeal to theSupreme Court of Canada refused. The Tribunal’s decisions are to be given the highest degree of deference: see Mills v. Ontario(Workplace Safety and Insurance Appeals Tribunal) 2008 ONCA 436 , [2008] O.J.

No. 2150 at para. 14, 24, 31 (C.A.). [13] The Tribunal has been described as “the final appellate forum in matters of workplace safety and insurance in Ontario”: seeRodrigues at para. 10. The legislation gives the Tribunal exclusive jurisdiction to determine whether a right of action is taken away. This issue falls squarely within the Tribunal’s area of experience and expertise. The standard of review applicable to this application isreasonableness. Issues Raised on this Application [14] On this application the applicant makes several submissions: (

i) It submitted that it was, in effect, “blindsided” by the Tribunal’s decision. According to the applicant, while it was asked tocomment on the contract that it agreed could be admitted, it was never advised by the Tribunal that it viewed the contract as raising a“significant issue” in relation to whether Giuseppe Bellissimo was an employee of Francesco Bellissimo/Bedrock at the time of theaccident. According to the applicant, this only became apparent to it when it received the Tribunal’s decision. In this regard, theapplicant appears to be asserting that the Tribunal should have advised it that it saw the issue as a significant one.

(ii) Connected to this submission, is an argument by the applicant that the Tribunal failed to live up to its mandate in the way in which it dealt with the evidence that was filed post-hearing. According to the applicant, the Tribunal’s mandate is to act as an investigative Tribunal. In other words, rather than it being up to the parties to present the evidence, the Tribunal is obligated to take all necessary steps on its own to make sure that it receives the evidence it needs to arrive at the truth.

Instead of doing this, according to the applicant, the Tribunal not only abandoned its mandate, but it made adverse comments about the applicant’s failure to call evidence.

In doing so, according to the applicant, the Tribunal conducted itself in a way that raised a reasonable apprehension of bias. (iii) The applicant’s third submission is that the Tribunal committed an error in law when it gave so much weight to the contract, which the applicant characterized as an “unexplained document”, and did so in the face of sworn evidence from Giuseppe Bellissimo given on his examination for discovery in the civil action. (iv) Fourthly, the applicant submits that the Tribunal erred when it attached any significance to the fact that neither Bedrock nor Francesco Bellissimo was registered as a

Schedule 1 employer. According to the applicant, the jurisprudence is clear - whether an employer is registered as a

Schedule 1 employer is irrelevant. (

v) Finally, the applicant argues that the Tribunal’s reasons do not deal at all with Francesco Bellissimo’s status at the time of the accident. According to the applicant, the Tribunal could not determine whether the right of action as against Francesco Bellissimo was taken away unless it first determined whether Francesco Bellissimo was either a worker or an employer at the time of the accident. Analysis [ 15 ] We see no merit to the applicant’s submission that it was “blindsided” by the actions of the Tribunal in how it dealt with the post-hearing evidence.

The Tribunal did not even consider the contract until the applicant stated that it could. It then gave the parties the opportunity to make submissions about the contract’s significance. The respondent’s submissions were clear – in their view the contract raised a real issue as to Giuseppe Bellissimo’s status at the time of the accident. The applicant was given an opportunity to reply to these submissions and it did so. The essence of its submission was that the contract was an insignificant piece of evidence compared to the other evidence before the Tribunal on this issue.

The Tribunal in its reasons took a different view, as it was entitled to do. [ 16 ] The applicant seems to be suggesting that if the Tribunal did not accept its submissions as to the significance of the contract, it should have advised the applicant of this fact in advance. Procedural fairness does not require an adjudicative body to give a party advance notice of the significance that it attaches to a particular piece of evidence.

Once the parties have been afforded the opportunity to address the issue, the Tribunal is entitled to make its own findings, without further notice. [ 17 ] The applicant’s submission regarding the Tribunal’s mandate and its comments concerning the applicant’s failure to call certain evidence also have no merit. First, as the applicant acknowledged, the onus was on the applicant to establish that the respondents had no right of action. The Tribunal, as it was entitled to, found that the applicant had not satisfied that onus.

In doing so, it appropriately commented on the evidence that could have been called, but was not. The applicant’s authority for its argument about the investigative nature of the Tribunal’s mandate is the decision of the Ontario Workers’ Compensation Tribunal in Cormier v. McCreight [1994] OWCATD No. 479. In our view, the decision, in fact, makes the opposite point. This is clear from para. 16 which reads as follows: Under WCATA practice and procedure,

section 17 applications more closely resemble the adversarial setting of the courts than entitlement appeals. In

section 17 proceedings, panels generally rely on Applicants and Respondents to make or break the case and do not often exercise their investigatory powers. It has been generally accepted that the onus is on the Applicants to show that the Act indeed does or does not apply to facts of their litigation so as to take away the right of action under

section 17. Usually defendants in civil actions initiate the

section 17 application, but plaintiffs also can, and do, bring such applications. In either case, the applicant must satisfy the onus. The WCAT practice has evolved in this manner in part because the applications arise from the adversarial context of civil litigation. There are situations, however, when a panel will exercise its investigatory powers in

section 17 applications when to do so is necessary to make its determination on the true merits and justice of the case, as required by section 73(1) of the Act. [ 18 ] In the case at bar, unlike in Cormier , neither party suggested to the Tribunal that it was necessary for the Tribunal to exercise its investigatory powers or suggested to the Tribunal that it needed to reconvene to consider more evidence. [ 19 ] The applicant’s third submission centres around the fact-finding function of the Tribunal – an exercise that deserves considerable deference from this court.

It was up to the Tribunal to weigh the evidence before it. There is no suggestion that the Tribunal misapprehended the evidence or ignored relevant evidence. Choosing to attach more weight to documentary evidence than to sworn testimony, is not an error in law. [ 20 ] The applicant’s fourth submission, namely, that the Tribunal erred in attaching any weight to the fact that neither Bedrock nor Francesco Bellissimo was registered as a

Schedule 1 employer at the time of the accident, also has no merit. All the Tribunal did was observe that the fact that Giuseppe Bellissimo held himself out as the owner of Bedrock when he signed the agreement with the home improvement company was consistent with the fact that neither Bedrock nor Francesco Bellissimo was registered as a

Schedule 1 employer. This observation was accurate and in no way suggested that because neither Francesco Bellissimo nor Bedrock was registered, they could not be considered

Schedule 1 employers. The Tribunal clearly appreciated that “If an employer’s business activities are compulsorily covered in

Schedule 1 and if the business hired workers, whether it was actually registered with the WSIB is immaterial.” (see para. 52 of the Tribunal’s decision). [ 21 ] With respect to the submission that the Tribunal failed to deal with Francesco Bellissimo’s status, the Supreme Court of Canada in Newfoundland Nurses Union v. Newfoundland (Treasury Board) 2011 SCC 62 , states at para. 16 : A decision-maker is not required to make an explicit finding on each constituent element, however, subordinate, leading to its final conclusion.

In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.” (cites omitted).

[ 22 ] In the case at bar, there was no reason advanced to protect Francesco Bellissimo from suit under the Act , other than that he was a

Schedule 1 employer as the owner of Bedrock. For that argument to work, the applicant had to satisfy the Tribunal that Giuseppe Bellissimo was a worker of Francesco Bellissimo/Bedrock so that Francesco Bellissimo/Bedrock would qualify as a

Schedule 1 employer. Since the Tribunal found that it was not satisfied that Giuseppe Bellissimo was a worker of Francesco/Bedrock because there was evidence that Giuseppe Bellissimo was in fact the owner of Bedrock, it also could not have been satisfied that Francesco Bellissimo was a

Schedule 1 employer. As Francesco Bellissimo leased the truck that was involved in the accident, the Tribunal correctly found that the right of action was not taken away against him. Conclusion [ 23 ] For these reasons, the application is dismissed. HIMEL J. COSTS [ 24 ] I have endorsed the Record as follows, “For oral reasons delivered today, the application for judicial review is dismissed. Costs are fixed at $8,000 inclusive of disbursements and HST as agreed by the parties payable by the applicant Daimler to the respondents Dicks et al. The Tribunal does not seek costs.” SACHS J. HIMEL J. NOLAN J.

Date of Reasons for Judgment: December 18, 2013 Date of Release: December 20, 2013 CITATION : Dicks, (Ontario) Workplace Safety and Insurance Appeals Tribunal v. Bellissimo, 2013 ONSC 7866 DIVISIONAL COURT FILE NO.: 252/12 DATE: 20131218 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT HIMEL, SACHS AND NOLAN JJ. BETWEEN:

CINDY DICKS, WILLIAM MURRAY, AMY DICKS and TARYN BERBERICK and THE WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL Plaintiffs/Respondents – and – GIUSEPPE BELLISSIMO, FRANCESCO BELLISSIMO and DAIMLER CHRYSLER FINANCIAL SERVICES CANADA INC. Defendants/Applicant ORAL REASONS FOR JUDGMENT SACHS J. Date of Reasons for Judgment: December 18, 2013 Date of Release: December 20, 2013