In this case, an employer waited almost two years to file a transfer of cost application against our client, alleging that our client’s negligence was responsible for the other employer’s worker’s workplace accident. As a result of administrative turnover, our client missed the initial opportunity to file submissions opposing the transfer of costs and so the WSIB ordered the transfer. Our client immediately objected and, ultimately, successfully appealed the transfer of costs only to be denied a retroactive adjustment because the reversal came three months after the close of the NEER window (the three year window within which WSIB policy ordinarily permits adjustments and refunds). As a result, our client paid nearly $100,000 in NEER surcharges in respect of claims for which the WSIB ruled it was not responsible, and so was denied any benefit of the cost transfer reversal.
We were retained and launched an appeal before the Workplace Safety and Insurance Appeals Tribunal (WSIAT). We successfully argued that the WSIB had the discretion to make the adjustment and that the adjustment was warranted on the basis of the facts, applicable WSIB policies, and the merits and justice of the case. Effectively, the WSIAT accepted that the vast majority of delay in this case, cumulatively over 21 months, was directly attributable to the accident employer, significant delay was also attributable to the WSIB itself, and that despite its initial failure to respond our client acted diligently. The situation was exceptional, the $100,000 surcharge was relatively substantial, and the NEER window had only closed three months prior, so the WSIAT found the merits and justice of the case justified a retroactive adjustment.
Obviously, it would have been preferable not to have missed the initial deadline, but ultimately justice prevailed. We regularly assist our clients to prepare and respond to transfer of cost applications. Swift and diligent action can make all the difference.