Layland v. Canadian Co-Operative Association, 2015 ONSC 835

Court File and Parties

CITATION: Layland v. Canadian Co-Operative Association, 2015 ONSC 835

DIVISIONAL COURT FILE NO.: 443/14

COURT FILE NO.: 97-CU-121825 DATE: 20150212

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

GRETA LAYLAND Plaintiff (Respondent)

– and –

CANADIAN CO-OPERATIVE ASSOCIATION and CO-OPERATORS LIFE INSURANCE COMPANY Defendants (Respondents)

Counsel: Plaintiff (responding party), in person Pamela Miehls, for Co-Operators Life Insurance Company, defendant (moving party)/respondent No one appeared for Canadian Co-Operative Association, defendant/respondent

HEARD at Toronto: January 9, 2015

Judgment

LEDERER J.:

Introduction

1This is a motion for leave to appeal an order lifting a stay that had been in place since July 10, 2001, but refusing one to dismiss the action for delay. The action was commenced by a Notice of Action, dated April 10, 1997, and a Statement of Claim, delivered on or about May 5, 1997. The motion to lift the stay and dismiss the action was to be heard on July 12, 2012. It did not proceed until January 23, 2014. The order lifting the stay is dated September 10, 2014, which is to say, a little more than thirteen years after it was put in place. It is the refusal to dismiss the action for delay that the prospective appellant, one of the defendants in the underlying action, seeks leave to appeal. It is now in excess of seventeen years since the action began.¹

2How did the action arrive at this point?

3The action against the defendant, Co-operators Life Insurance Company (“Co-operators”), arose out of its denial of an application for long-term disability benefits made by Greta Layland, (the “plaintiff”), during May 1996. The plaintiff claimed the LTD benefits under a group insurance policy issued to her employer, the defendant, Canadian Co-operative Association (“CCA”). The plaintiff was hired by CCA as a term employee for the period commencing January 3, 1995 and ending on January 2, 1996. Co-operators denied the claim on the basis that the plaintiff was not a “covered person” and was not “totally disabled” within the meaning of the policy. Co-operators alleges that the medical evidence submitted in support of the application confirmed that the plaintiff was able to return to work on October 16, 1995 and that she did not return to work at any time prior to the end of her employment term, not because of any disability, but due to ongoing negotiations with CCA.

4Co-operators delivered a Notice of Intent to Defend on or about June 27, 1997, a Notice of Defence on or about July 2, 1997 and a Statement of Defence on July 7, 1997. On July 22, 1997 (within 15 days of delivering the Statement of Defence), counsel for Co-operators wrote to counsel then acting for the plaintiff requesting delivery of her Affidavit of Documents. Over the course of the following 9 months, 12 more letters were written² to the succession of lawyers (there were three in total)³ that acted for the plaintiff. The plaintiff served her sworn Affidavit of Documents on April 13, 1998 and the documents listed in Schedule “A” of that affidavit on April 17, 1998.

5In the meantime, it was agreed that the examinations-for-discovery of all parties would take place on January 8, 1998. The examinations did not proceed on that day. The lawyer for CCA was unavailable and the Affidavit of Documents of the plaintiff had not been delivered. The parties agreed that the plaintiff would be examined-for-discovery on March 5, 1998. It was cancelled. Counsel for the plaintiff was not in receipt of all of her documents and her Affidavit of Documents was not complete. The examination-for-discovery of the plaintiff was rescheduled for April 24 and 29, 1998. Ultimately, the second day had to be re-scheduled. The examination- for-discovery of the plaintiff took place on April 24 and May 11, 1998.

6By letter, dated June 12, 1998, counsel for the plaintiff advised that the plaintiff was in the process of answering her undertakings. Counsel for Co-operators wrote requesting these answers on both June 30 and July 9, 1998.

7Over the course of the same period of time, efforts were made to arrange for a mediation. It was scheduled for March 5, 1998, but it was postponed. The plaintiff was to be examined-for- discovery on that date. The mediation was to proceed on June 17, 1998. In order to accommodate a court commitment of counsel for the plaintiff, it was adjourned but scheduled to proceed on August 6, 1998. In part, to be prepared for the mediation, a defence medical examination was required. It was initially scheduled for June 10, 1998, but took place on July 12, 1998. In order to complete his report, the doctor required a transcription of the clinical notes of the plaintiff’s family doctor. Between July 17 and 29, 1998, Counsel for Co-operators contacted counsel for the plaintiff on “a number of occasions” indicating the need for the transcription in order that the report of the doctor could be completed for the mediation. The transcription was received on July 29, 1998. The mediation was cancelled. Counsel for Co-operators attempted, on several occasions, to confirm December 14, 1998 as the date for the mediation. In response, counsel for the plaintiff indicated that he did not have instructions to agree.

8An attempt was made to set the matter down for trial. Counsel for the plaintiff did not respond to numerous requests for input to the Notice of Trial Scheduling Court. Counsel for Co-operators filed the Notice. March 4, 1999 was provided as the date for the attendance. The parties appeared before the court on that day. The matter was not set down for trial because counsel for the plaintiff indicated that he would be bringing a motion to be removed from the record. The matter was adjourned to return to Trial Scheduling Court on April 21, 1999. It was anticipated that, by then, the plaintiff would have retained new counsel.

9Counsel for the plaintiff did not move immediately to get off the record. On April 15, 1999, counsel for Co-operators wrote to counsel for the plaintiff asking when the plaintiff would be available for trial. Counsel for the plaintiff did not propose any dates, but forwarded the letter to the plaintiff. On April 21, 1999, the parties returned to Trial Scheduling Court. The plaintiff had not retained new counsel. The action was struck from the trial list.

10At Trial Scheduling Court, the judge had suggested that a motion be brought to dismiss the action for delay or that a timetable be set to advance the matter as quickly as possible. Two days later (April 23, 1999), the plaintiff wrote to counsel for the defendants complaining that her counsel had failed to follow her instructions, that she intended to advance the action and that she would be in a position to file an amended Statement of Claim by the beginning of June 1999.

11Nearly two months later, on June 14, 1999, the plaintiff wrote to advise counsel for the defendants that she had not yet retained new counsel and, as a result, would not be serving the Amended Statement of Claim as promised. It was not until August 3, 1999 that counsel was contacted by the plaintiff’s new lawyer. By letter, dated August 18, 1999, the plaintiff’s new counsel advised that it was his intention to review the file and advance the action upon his return from a ten-day custody trial in Belleville. Nothing happened. On September 22, 1999, counsel for Co-operators wrote to the new lawyer requesting that he be contacted. On September 26, 1999, almost two months after being retained, the plaintiff’s new counsel delivered a Notice of Appointment of Solicitor. In the covering letter, counsel “promised” that the Amended Statement of Claim would be delivered by the end of October 1999. It was not provided until February 2000.

12With the new counsel appointed, the defendants returned to the question of mediation. Counsel for the plaintiff (the freshly-appointed counsel) was unprepared to recommend mediation unless the defendants conceded liability. The mediation would deal only with damages. By letter of November 15, 1999, a proposal was made for a meeting of all counsel involved. Counsel for the plaintiff would not take part.

13Counsel for Co-operators went back to the undertakings that had been made at the examination-for-discovery of the plaintiff. He wrote to counsel for the plaintiff on November 19, 1999 asking that they be answered. The day before, he had written asking if the plaintiff had been approved for CPP benefits. Counsel for the plaintiff did not respond. It was only when counsel for Co-operators, on December 13, 1999, raised the prospect of a motion to dismiss the action for delay that counsel for the plaintiff addressed the issues. On the same day, he answered. He said that it “appeared” the action had been inactive. He said it had been “moving from my end”. He was waiting for a further medical report. Once it was in hand, he would either amend the claim and proceed to Trial Scheduling Court or go to mediation. He went on to indicate that he would get his client to respond to her undertakings.

14By letter, dated January 5, 2000, counsel for the plaintiff delivered the medical report. He indicated an intention to amend the claim and “get this matter to trial as quickly as I can”. He hoped the defendants would “see a draft amended claim for [their] consideration and consent next week”. Counsel advised that he had requested the plaintiff to respond to the undertakings and expressed the further “hope that I will have them to you shortly”. Counsel for the plaintiff explained that he had not yet “fully review[ed] this file.” Counsel suggested he had been waiting for the medical report. He advised that he was willing to attend a mediation. On January 11, 2000, counsel for Co-operators requested that counsel for the plaintiff immediately take steps to amend the Statement of Claim, provide answers to the undertakings made by the plaintiff and advise if, and when, he intended to examine Co-operators for discovery. Counsel wanted a trial date set as soon as possible. On January 13, 2000, counsel for the plaintiff responded by saying that the defendants would have to wait for him “to get the file properly organized”. This had been made more difficult as a result of the plaintiff’s disability. Again, it was not until February 20, 2000 that a copy of the proposed Amended Statement of Claim was delivered.

15On January 21, 2000, the plaintiff, without counsel, attended at the office of counsel for Co-operators. She delivered what purported to be answers to her outstanding undertakings. In the covering letter, the plaintiff advised that it was “a blatant lie that my disability has any correlation to [Mr. Roberts’s] delays or the condition of my file”. By letter, dated January 28, 2000, counsel for Co-operators requested answers to three outstanding undertakings, asked the plaintiff to provide her position regarding her refusals, and advise whether the plaintiff consented to re-attend to be examined on the answers she had provided.

16Counsel for Co-operators, in a letter dated February 28, 2000, advised that Co-operators did not consent to the amendments in the proposed Amended Statement of Claim. In its view, the plaintiff’s proposed additions did not support any claims against Co-operators. Counsel for the plaintiff, in a letter dated February 29, 2000, agreed and undertook “to delete the FLA claims as against your client”. Counsel for the plaintiff obtained an appointment for May 8, 2000 to determine the remaining issues concerning the amendment to the Statement of Claim.

17The parties agreed to mediate the matter on May 19, 2000. The motion to amend the claim was to be adjourned until after that date. Although the mediation began on the date set, it was adjourned until June 26, 2000 to allow for Co-operators to provide present value calculations of the plaintiff’s claim for future LTD benefits and for the plaintiff to provide medical records from 1994. It had become apparent that the plaintiff may have suffered from her alleged disability before she commenced working for CCA. Subsequently, towards the end of September 2000, the plaintiff demonstrated reluctance to produce these earlier medical records. As a result of the failure of the plaintiff to produce her medical records from 1994, the mediation, which had been scheduled to resume on January 11, 2001, was cancelled.

18In the meantime, between May 30, 2000 and June 21, 2000, the parties exchanged correspondence relating to the hearing of the plaintiff’s motion to amend the Statement of Claim, the re-scheduling of the mediation, and the scheduling of the defendants’ examinations-for- discovery. On June 16, 2000, counsel for CCA indicated her client would not be consenting to the amendments proposed for the Statement of Claim. Following further discussions between counsel, by letter dated November 20, 2000, counsel for Co-operators said that his client would.

19The motion to amend the Statement of Claim did not proceed. On November 16, 2000, counsel for the plaintiff filed a consent undertaking to bring a motion before the Workplace Safety & Insurance Appeals Tribunal (“WSIAT”). The motion was to be:

…for adjudication and determination of the question of the plaintiff’s right to compensation under Part 1 of Workers’ Compensation Act and as to whether the plaintiff has the right to assert claims (as set out in the Amended Statement of Claim) directly against the defendant [CCA] for the right to recover damages for personal injury only (and not for any other damages, the right to compensation is not covered by the Workers’ Compensation Act by December 16, 2000, failing which this action [was] to be automatically stayed as against the defendant [CCA].⁴

The need for this Right to Sue Application arose because of the allegations in the Amended Statement of Claim that CCA caused the plaintiff’s “Total Disability” as that term is defined in the policy.

20By letter, dated November 29, 2000, counsel for the plaintiff advised that he was no longer acting for her. The following day, the plaintiff served a Notice of Intention to Act in Person. In a letter, dated December 8, 2000, she indicated an intention to proceed with the Right to Sue Application and that it would be premature to restore this matter to the trial list until the WSIAT determined whether her right of action was taken away by the Workplace Safety and Insurance Act.⁵

21The plaintiff did not commence the Right to Sue application by the prescribed date (December 16, 2000). On January 2, 2001, counsel for CCA wrote to the plaintiff requesting consent to an order staying the action as against her client. At a glance, one might wonder why her consent was necessary given the endorsement of the Master that, with the failure to commence the Right to Sue motion within the allotted time, the action would be “automatically stayed”. The plaintiff took the position that, as a result of rule 21.01(3)(a) of the Rules of Civil Procedure⁶, the Master was without jurisdiction to make the order he had made. The defendants say that CCA was required to bring the motion because the plaintiff had failed to take out a formal order reflecting the endorsement of the Master despite the consent that had been filed. The motion to stay the action as against CCA was set for April 5, 2001 and heard on April 6, 2001 by Mr. Justice B. Wright. In the end, the plaintiff consented to the relief sought in the stay motion brought on behalf of CCA. Among other things, this order stayed the action as against the CCA if the Right to Sue Application was commenced on or before May 15, 2001.⁷

22During this period and into the succeeding months, efforts were made to have the action move forward. During April 2001, the parties exchanged correspondence referring, among other things, to the delivery of a jury notice by Co-operators, the extent of Co-operators’ amendments to its Statement of Defence in response to the Amended Statement of Claim, and Co-operators’ agreement to not initiate a further examination-for-discovery of the plaintiff prior to July 15, 2001 in order to provide the plaintiff with the time to prepare her Right to Sue Application. On April 20, 2001, the plaintiff served her Amended Statement of Claim. On May 17, 2001, Co-operators served its Amended Statement of Defence. This was followed, on May 30, 2001, by CCA serving its Amended Statement of Defence and Cross-Claim. Between May and July 2001, the parties exchanged correspondence regarding a further motion to further amend the Statement of Defence of Co-operators to include the defence that the plaintiff suffered from a pre-existing condition prior to the effective date of her insurance coverage.

23In the weeks preceding the order of Mr. Justice B. Wright, the plaintiff, by letter dated February 6, 2001, had advised that she intended to complete the Right to Sue Application by the end of that month. On March 5, 2001, the plaintiff advised that the completion of her Right to Sue Application had been delayed because she was ill. In correspondence of April 4, 2001, the plaintiff complained that her inability to retain new counsel sprung from circumstances respecting the counsel who had announced his withdrawal the previous November:

…Mr. Roberts was terminated with cause and I will be filing a complaint with the Law Society of Upper Canada for determination. The outcome of this determination and an assessment of Mr. Roberts’ account should enable me to retain new counsel that at present is hopeless due to the guarantee required and the state of the file left by Mr. Roberts.

24She went on to repeat concerns about the impact of her health on the ability to bring the Right to Sue Application in an expeditious fashion:

My total disability will not allow me to continue at this pace without dire consequence, as I’m experiencing alarming deterioration in my already precarious health. I have not persevered in this matter for the last five years so that any disability income, settlement or judgment would go to my estate.

25Her answer to these difficulties, found in her correspondence of April 4, 2001, was to propose a stay of the action for all parties. She went on to indicate that she would complete the Right to Sue Application “... so that we have a hearing in September 2001 based on a 3-4 month waiting period”. By the next day, April 5, 2001, the plaintiff had been advised that Co-operators would not consent to the stay of the action against it. This is referred to in a letter of that date from the plaintiff to counsel for Co-operators.

26In a letter, dated May 25, 2001, she repeated her complaints concerning the position and actions of Co-operators.

27On July 10, 2001, Mr. Justice Keenan heard the motion brought by the plaintiff and, despite the opposition of Co-operators, stayed the action as against both defendants pending the final determination of the Right to Sue Application.⁸

28In a letter, dated June 26, 2001, the plaintiff indicated that the Right to Sue Application, consistent with the order of Mr. Justice B. Wright, had been commenced on May 15, 2001. The affidavit sworn by counsel representing Co-operators says that the hearing of that Application did not begin until January 30, 2002. Why it took so long to begin is something I have been unable to determine. Be that as it may, it was one year later, on April 29, 2003, that the plaintiff wrote to the WSIAT advising that she was preparing notes based on her review of the transcript from the first day of the hearing. The transcript had been delivered to her on October 17, 2002. In a letter, dated April 24, 2006, the plaintiff said that this transcript was from the “March 6, 2002 hearing” and that it had taken the panel 8 months to authorize the transcript. It is unclear to me what happened on January 30, 2002. The plaintiff explained the delay that began with her receipt of the transcript and continued until she wrote to the WSIAT on April 29, 2003, as follows:

By the time I received the transcript I was in the midst of addressing at court a related matter in my disability action. Due to the limitations imposed by my disability I can only focus on one matter at a time. I also experienced very poor health this winter with repeated flu and bronchitis in addition to exacerbated symptoms of fibromyalgia.

29She went on to indicate that she wished to discuss the matter with the representative of the Office of the Work Advisor and that she expected to contact Tribunal Counsel, “health permitting”, within the next six weeks.

30Approximately 2 months later, on June 20, 2003, the plaintiff wrote again to Tribunal Counsel. She advised that her preparation for the next stage of the hearing of the Right to Sue Application had been delayed because the court matter she had referred to in her letter of April 29, 2003 was more involved than she anticipated. The plaintiff went on to advise that she had another matter before the court relating to her disability action, with a hearing scheduled in July 2003 that was delaying her preparation for the continued hearing by the WSIAT.

31In light of the information provided by the plaintiff in her letters of April 29, 2003 and June 20, 2003, the WSIAT advised, on September 25, 2003, that the file was to be placed in the Tribunal’s inactive status. “No further action [would] be taken by the Tribunal until the parties advised that they are ready to proceed with this application.”⁹

32On October 29, 2003, counsel for Co-operators wrote to the plaintiff asking to be informed as to the nature of the court proceedings referred to in her letters of April 29, 2003 and June 20, 2003. Counsel followed up with a further letter, dated December 2, 2003, requesting a response. By letter, dated December 8, 2003, the plaintiff replied advising that the other proceeding referred to was the assessment of solicitor and client costs respecting the accounts of her previous counsel. That counsel advised the counsel for Co-operators that the plaintiff had requested “approximately 17 adjournments of the solicitor-client assessment”.

33Between November 2003 and May 2005, the parties to the Right to Sue Application and the WSIAT exchanged correspondence regarding procedural issues pertaining to the hearing. These included the timing of the provision of the legal argument to be made on behalf of CCA. Counsel for CCA undertook to deliver it two weeks before the hearing. The plaintiff wanted it sooner. In his affidavit sworn in support of this motion, counsel for Co-operators suggested that the position of the plaintiff in this dispute was unnecessary if not unreasonable.¹⁰ He deposed that her request delayed the hearing of the plaintiff’s Right to Sue Application.¹¹ It should be said that, contrary to the view so expressed, the Office of the Work Advisor supported the position of the plaintiff.¹² This implies that counsel for CCA could have agreed to produce her written argument earlier to allow the plaintiff to properly prepare and to advance the WSIAT restoring the matter to active status and setting a date to complete the hearing of the Right to Sue Application.

34The plaintiff’s Right to Sue Application was not completed until June 23, 2005. Beginning April 24, 2006, there was a series of letters written by, or on behalf of, the plaintiff asking for updates and complaining about the delay in the WSIAT making and rendering a decision. The decision is dated November 16, 2006. The final determination of the Right to Sue Application was:

The Plaintiff’s right to sue action against the Defendant CCA is removed with respect to those claims for damages for disability caused by CCA’s actions. The Board is to adjudicate the entitlement issues regarding those claims. The right of action against CCA for damages relating to its obligation to provide disability insurance coverage is not removed by Part 1 of the Act.¹³

35Having heard nothing concerning the rendering of a decision by the WSIAT, counsel for Co-operators, on or about July 29, 2010, contacted that Tribunal to request an update regarding its release. They were surprised to learn that the decision had been forthcoming nearly 4 years earlier (November 2006). Subsequently, by letter dated June 7, 2011, following inquiries made by counsel for Co-operators, the WSIAT confirmed that the decision had been made, no reconsideration decision had been rendered and, accordingly, the decision remained final.

36In staying the action as against Co-operators, Mr. Justice Keenan had included the following:

THIS COURT ORDERS that the action against the Defendant Canadian Co-operative Association shall be stayed pending final determination of the application before the Workplace Safety Insurance Appeals Tribunal for adjudication and determination of the question of the Plaintiff’s right to compensation under Part 1 of the Workers’ Compensation Act, R.S.O. 1990, c. W. 11 and as to whether the Plaintiff has a right to assert claims (as set out in the Amended Statement of Claim attached hereto as Schedule “A”) directly against the Defendant Canadian Co-operative Association for the right to recover damages for personal injury only (and not for any other damages, the right to compensation is not covered by the Workers’ Compensation Act, R.S.O. 1990, c. W. 11. [sic] (no closing bracket)

AND THIS COURT FURTHER ORDERS that the action, as against the Defendant Co-Operators Life Insurance Company shall be stayed on the same terms.

37Following from this order, counsel for Co-operators, on July 20, 2011, wrote to the plaintiff expressing surprise that, given the decision of the WSIAT, no steps have been taken to lift the order staying the action. The letter advised that counsel had been instructed to bring a motion for an order lifting the stay and dismissing the action on the basis of delay. It pointed out that if the plaintiff consented, Co-operators would not seek costs. In her letter, dated August 8, 2011, the plaintiff refused to consent. She appears to have believed that the stay was to remain in place until all of her rights before the WSIAT had been exhausted.¹⁴ This included any claim that was removed from the court and left with the Tribunal, in this case, the entitlement to claims for disability caused by the actions of CCA as her employer.¹⁵ In her letter, she reviewed the status of this proceeding and her understanding of the impact of the order the judge had made staying the court proceeding:

I submitted a Form 6 Worker’s Report of the Injury to the WSIB. WSIB case managers denied entitlement to compensation on February 16, 2007 for work related to stress and denied fibromyalgia entitlement on June 13, 2007. The Resolution Officer of the WSIB Appeals Branch issued his decision on May 31, 2010. The OWA, on my behalf, issued a notice of appeal with WSIAT on June 23, 2010. In June 2011 WSIAT requested whether certain medical and employment records were available. This step will be completed in the next few weeks where upon WSIAT will forward the appeal to Scheduling for a hearing date. I have no idea when WSIAT will assign a date but hope the next available hearing date does not exceed a six (6) month waiting period.

CCA has been copied by WSIB during the claims and appeal process. I would expect that CCA has kept its counsel informed.

There is no final determination of the question of my right to compensation and/or initial entitlement, as my right of appeal is not exhausted.

38As indicated at the outset of these reasons, it was not until one year later, on July 12, 2012, that the motion to lift the stay was to be heard. It did not come before the judge hearing the motion until January 23, 2014. The July 12, 2012 date was adjourned on consent “as the Defendant Co-operators was late serving its Motion Record and the Plaintiff sought at least equal time, as the defendant took preparing its materials, to prepare her responding materials. The motion was re-scheduled returnable April 23, 2013. Due to the plaintiff’s breakdown in March 2013, the motion was adjourned on consent...”¹⁶ Evidently, the breakdown was caused by the stress of carrying this action for long-term disability benefits and the additional “stressor” brought about by the denial of her appeal for compensation by the WSIAT.¹⁷

39The motion to lift the stay and dismiss the action was adjourned to January 23, 2014. It was made peremptory to the plaintiff. It was heard on that day.

40There is nothing that would allow for this proceeding to wait out any appeal to the WSIAT of any decision made by a Resolution Officer of the WSIB Appeals Branch concerning any denial of entitlement for matters arising pursuant to its, as opposed to the court’s, jurisdiction. The reason for the stay was to be sure each issue raised was decided in the right forum, not to permit each issue to be resolved before the next one began.¹⁸ It has taken 17 years to get this far. How much longer is this to go on?

41As of today, it continues. The appeal of the decision of the WSIB Appeals Resolution Officer was completed on August 22, 2013. On that day, the decision of the WSIAT considering that appeal was released. The appeal was dismissed. On January 14, 2014, the plaintiff initiated a Request for Reconsideration/Clarification of that decision. Apparently, it remains extant. At present, the plaintiff is considering an application for judicial review.¹⁹

The Decision of the Motion Judge

42This history is the background to the decision of the motion judge from which leave to appeal is now sought.

43The decision to allow the action to continue is based on the proposition that the blame for the delay is shared by the parties and the determination that the action can continue without prejudice to the defendants.²⁰

44I will return to these ideas later in these reasons.

Leave to Appeal

45There are two grounds on which leave to appeal may be granted. The judge hearing the motion must determine that there is a decision which conflicts with the case for which leave is sought and be of the opinion it is desirable that leave be granted or it must appear to the judge that there is good reason to doubt the correctness of the decision and that the proposed appeal involves matters of such importance that, in the opinion of the judge, leave to appeal should be granted.²¹

Analysis

46The determination of this motion begins with a consideration of the respective duties of a plaintiff and defendant to move an action along. It not an equal or even a shared responsibility. It rests primarily with the plaintiff:

Under Rule 24, the responsibility for the action to be progressed, is a burden that is borne by the plaintiff. This burden is not the responsibly of the defendant, although it may be open to a defendant to progress the litigation....²²

47That a defendant is not bound, as a plaintiff is, to see that an action moves forward was made clear in a comment made by [then] Chief Justice Gale. In an earlier case, he appeared to have recognized that a defendant cannot lull the plaintiff into a false sense of security by waiting, without complaint, and move without warning to dismiss the plaintiff’s action for want of prosecution²³. The Chief Justice was at pains to step away from any such understanding:

I was responsible for the judgment in International Formed Tubes Ltd. v. Ohio Crankshaft Co. et al., and I cannot extract from it any such principle. So far as the Clairmonte case is concerned only one member of the Court alluded to a principle similar to that stated by the Senior Master as being the state of the law of this Province. Speaking only for myself, I should like to disclaim my adherence to any such principle as that appearing in the passage I have quoted. I do not agree that in all cases a defendant must attempt to spur the plaintiff on or lose his right to successfully apply for dismissal of the action for want of prosecution. As in so many other instances, it all depends upon the particular facts as to whether such an order will go in the circumstances. In commenting upon the passage above, which I have quoted from the learned Senior Master's judgment, I do not wish to be taken as endeavouring to discourage solicitors for defendants from giving notice or collaborating with solicitors for plaintiffs before embarking upon a motion for dismissal of the action. I simply wish to make it clear that their failure to do so will not necessarily preclude them from succeeding on a motion if one is brought.²⁴

48This passage was subsequently interpreted by the Divisional Court:

In my respectful view, it appears clear that while the defendant may run the risk by sitting idly by, such inaction does not automatically preclude him from succeeding on a motion to dismiss the action for delay; it depends as the Chief Justice has pointed out on the circumstances of the case.²⁵

49In this case, the motion judge, in dealing with the delay, observed:

Given the nature of Layland’s claim and the fact that the Defendants consented to the stay, did not regularly or actively monitor the progress of the WSIAT proceeding and took no steps to lift the stay before now, I do not consider it fair or just to dismiss Layland’s action for delay at this point.²⁶

50This paragraph relies on what the defendants did. It is those things which led the motion judge to determine that the action should not be dismissed for delay.

51Her reliance on the “consent” of the defendants to the stay is misplaced. Once the Right to Sue Application was to be brought, the parties did consent to a stay of the action against CCA. This stay is the subject of the order of Mr. Justice B. Wright. However, counsel for Co-operators was clear in her submissions to this court that her client did not consent to a stay of the action against it. This is borne out by the endorsement of Mr. Justice Keenan supporting the granting of the stay he imposed on the proceeding against Co-operators:

Co-operators were represented and gave consent to the order of B. Wright J. on April 6/01. They ought not to be taken by surprise that a similar order is sought against them.²⁷

52The decision of the motion judge refers to, but does not reflect on, what took place in the years prior to the stays being put in place. She says only that:

The progress of the action has been plagued by delay. In April 1999, the action was stuck off the trial list.²⁸

53A consideration of the period before the imposition of the stays demonstrates that Co-operators was monitoring the action and attempting to have it move forward. Counsel for Co-operators wrote 12 times within 9 months in an attempt to obtain an affidavit of documents. It was counsel for Co-operators who, on both June 30 and July 9, 1998, and again on November 19, 1999, wrote requesting the answers to the undertakings made by the plaintiff at her examination-for-discovery. It was counsel for Co-operators who continued to write asking for the transcription of the family doctor’s clinical notes in order that the mediation could proceed, who pressed to get agreement for the date of December 14, 1998 when it had to be adjourned and inquired again about mediation when the plaintiff’s new counsel was retained. It was Co-operators who requested input from the plaintiff directed to having the matter set down for trial and who filed the notice causing the Trial Scheduling Court to set the date for the first appearance and, then, in the lead-up to the second, inquired as to when the plaintiff would be available for the trial. When he had not heard from the plaintiff’s new lawyer, it was counsel for Co-operators who, on September 22, 1999, wrote requesting to be contacted.

54Further, it was Co-operators’ counsel who, on January 11, 2000, asked that the plaintiff move on her motion to amend her claim, provide answers to undertakings and indicate whether Co-operators was to examined-for-discovery.

55In saying that the defendants “...did not regularly or actively monitor the progress of the WSIAT proceeding”, the motion judge confirmed that she was looking at a narrow part of the total time-frame. I should note that, even during that period, counsel for Co-operators was kept up to date with the progress of the Right to Sue Application. Correspondence between the parties directly involved is shown as having been copied to counsel. The last of these appears to be a letter, dated November 7, 2006, from the Chair of the WSIAT indicating that the decision was to be released “by the end of the month”. The decision of November 16, 2006 was not delivered, nor notice of its release provided, to counsel for Co-operators.

56The implication, if not the direct impact on the decision of the motion judge, is to suggest that it was as much the responsibility of Co-operators as it was of the plaintiff to be prepared to move this matter on once the Right to Sue Application had been determined. To my mind, this is contrary to the concern reflected in the observation of Chief Justice Gale. It is worth remembering that it was the plaintiff who was immediately involved in the Right to Sue Application. The defendants had no direct involvement. For them, the action had been stayed. It was the plaintiff who benefited from the stay and who bore the responsibility to see that the other parties were aware of the decision of WSIAT on the Right to Sue Application and to move to set aside the stay and to continue on with the action she had commenced.

57As a counterpoint to the action of Co-operators, it may be as well to examine, at least briefly, the approach of the plaintiff to the proceeding as a whole. What did she do or what was done on her behalf? From the outset, these actions could, at best, be said to demonstrate a party that was in no hurry to move this matter along and, at worst, someone who was, at every step, amenable to delay. It is a mirror image of the actions of Co-operators. The plaintiff and those who acted for her were slow to provide an affidavit of documents, slow to answer undertakings and slow to provide a transcription of her family doctor’s clinical notes. Her examination-for- discovery was delayed because there was no Affidavit of Documents. She was slow to retain new counsel. The Amended Statement of Claim was not provided for months after it was first “promised”. The mediation was delayed because there had been no discovery of the plaintiff, because there was no transcription of the notes of the doctor, because, in the end, she would not disclose medical information going back to 1994 and because counsel would only take part if liability was admitted. When asked to assist in having the matter set down for trial, she and her counsel did not respond.

58It is fair to observe that some parts of the delay in proceeding with, and obtaining a determination of, the Right to Sue Application rests with the WSIAT who took some months to authorize the transcript and to produce a decision. This does not absolve the plaintiff of her contribution to this part of the overall delay. The motion judge noted:

Layland did not proceed with any demonstrable speed toward the hearing and determination of her Right to Sue Application. However, it ultimately was heard and a decision against Layland’s position was released on November 16, 2006.²⁹

59It was the plaintiff’s letters of April 29, 2003 and June 20, 2003, that caused the WSIAT on September 25, 2003 to place the file on inactive status. The plaintiff said that her time was taken up by another proceeding which turned out to be the assessment of the account of her previous solicitor, a matter she had adjourned “approximately 17 times”. It took 4 years just to complete the hearing of the Right to Sue Application (May 15, 2001 to June 23 2005).

60The decision was released more than a year later (November 16, 2006). Rather than advise the other parties or move to have the stay lifted, the plaintiff did neither. It may have taken those acting for Co-operators:

• four years to ask what had happened (July 29, 2010)

• another year to determine that there had been no reconsideration requested so that the decision was final (June 7, 2011)

• another month to find out that the plaintiff would not consent to an order lifting the stay and dismissing the action (August 8, 2011)

• another year to get to a scheduled date for a motion to lift the stay (July 12, 2012)

• another 10 months before it could be re-scheduled following the late serving of their late service of the motion (April 23, 2013), and the insistence of the plaintiff that she have “equal time’ to prepare responding material; and,

• as a result of the plaintiff’s breakdown, a further 9 months to have the motion heard (January 23, 2014)

but this does not relieve the plaintiff of her failure to act to move the matter forward. To my mind, to deal with this, as the motion judge did, is to pay little heed to the observation of Chief Justice Gale that this is primarily the responsibility of the plaintiff. On this basis, there is reason to doubt the correctness of the decision of the motion judge.

61This is not the end of the matter. The question remains as to whether the defendant has been or may have been prejudiced by any failure of the plaintiff to move the proceeding along.

62It is commonly understood that prejudice may be presumed by the passage of time. Here, seventeen years is a long time for any court proceeding to be outstanding. No action should take this long. Nonetheless, the presumption is rebuttable.³⁰ The motion judge felt there was no such prejudice:

The Defendants argue that the action is not ready for trial. They argue that an exchange of further productions, examinations for discovery, and possible motions will need to be undertaken. The Defendants also argue that the inordinate and inexcusable delay of Layland in advancing the action has been such to give rise to a substantial risk that a fair trial of the issues in the litigation will not be possible.

I do not agree. The materials and information already assembled during the proceedings should easily permit a fair trial to proceed. In particular, the documentary information upon which the claim was rejected and the test articulated in the applicable policy are likely to be the most relevant focus of inquiry at trial.³¹

63As I understand these words, they are a rebuttal of the presumption.

64The motion judge introduced the next paragraph in her decision with a reference to the “nature of the claim” as contributing to her determination that it was “not fair to dismiss [the plaintiff’s] action for delay...”³². It is the nature of the claim that raises a concern that the defendants have been prejudiced by the delay, that is to say, the prejudice is actual and need not be presumed.

65The claim is for long-term disability. By their nature, such claims are not static. Such claims involve medical conditions that can change over time. In Dynes v. Standard Life Assurance Co.,³³ the plaintiff sued the defendant for breach of a contract relating to weekly indemnity benefits and long-term disability income benefits. No progress was made in the action after the exchange of pleadings. More than seven years passed before the parties re-engaged. “The motion judge held that: the [plaintiff’s] delay in advancing this litigation was inordinate and inexcusable; the delay gave rise to a presumption of prejudice and, in the circumstances, also occasioned actual prejudice to the [defendant], resulting in a serious risk that a fair trial could not be obtained; and the [plaintiff] had failed to advance any acceptable explanation for the delay.”³⁴ The Court of Appeal agreed that the underlying claim involved “a possible evolving medical condition”³⁵. The conduct of the plaintiff in failing to move the action forward and in failing to produce medical evidence of his claimed disability, for more than seven years, prevented the defendant’s early assessment of the basis for and the strength of the plaintiff’s disability claim, over time. This opportunity had been forever lost.

66The same is true in this case. The plaintiff is claiming for a long-term disability said to have commenced, sometime in 1995, during her brief period of employment with CCA. To the surprise of counsel for Co-operators, as part of her submissions, the plaintiff advised that her long-term disability ended during the year 2008. As indicated at the outset of these reasons, Co-operators alleges that the plaintiff was fit to return to work as long ago as October 16, 1995. The problem for Co-operators is that, with the passage of time, they are unable to trace the progress of the disability the plaintiff alleges she suffered from for so long. In early January 2000, the plaintiff sent a medical-legal report prepared by the plaintiff’s rheumatologist. Although the plaintiff subsequently sent a further medical report by the same doctor in connection with the hearing of the WSIAT, the report of January 2000 is the last medical report relating to the plaintiff sent to the defendants in connection with this action.³⁶ In such circumstances, the difficulty of tracing the evolution of any disability suffered by the plaintiff is self-evident.³⁷

67In Haynes v. RBC Life Insurance Co., Master Glustein observed:

However, the factual distinctions in Cervo and Sherratt do not alter the legal principle that when an insurer is sued for an ongoing claim, and is not provided with ongoing information from the insured, the insurer loses the opportunity to assist the insured to mitigate damages. Haynes is in the same position as an insured with an accident benefits claim: both can be examined by physicians at the request of the insured (either by statute in Cervo or under the Policy in the present case), and the insurer can recommend steps to mitigate damages. By failing to notify RBC of her allegedly ongoing damages since September 2006, until service of the motion record at some point on or after February 23, 2010, RBC lost the opportunity to assist Haynes with treatment.³⁸

68The problem and any prejudice is exacerbated by the death, in 2009, of the doctor who prepared these reports. This raises questions about the efficacy of the motion judge’s determination that the “materials and information already assembled during the proceedings should easily permit a fair trial”. It may be, as the motion judge suggested, that the “documentary evidence upon which the claim was rejected and the test articulated in the applicable policy...”³⁹ are likely to be a focus of the inquiry, but it is hardly to be the only one necessary for a full consideration of whether Co-operators is liable and, if so, to what value.

69This adds to the conclusion that there is reason to doubt the correctness of the decision of the motion judge, but also demonstrates that the matters raised are of such importance that leave to appeal should be granted. In short, some determination needs to be made to confirm and recognize the responsibility of plaintiffs in bringing actions where the basis for the claim may evolve over time.

70This presence of prejudice is underscored by more conventional concerns. Counsel for Co-operators makes the point that, not only has the rheumatologist died, but other employees of CCA, present at the time, and employees of Co-operators, who were involved with this file, have moved on, not been heard from or indicate no particular memory of the circumstances.

71Finally, I point out that, in time, there comes a time when the length of the delay cannot be allowed by the court. The time that has passed is so long that the administration of justice can no longer be expected to do what is asked of it:

There comes a time, in short, when enough is enough, and the civil justice system will no longer tolerate inordinate and inexplicable delay. A court may then eject the action as an exercise of its inherent jurisdiction, whether or not the relevant rules expressly mandate it. …⁴⁰

(Wallace v. Crate’s Marine Sales Ltd., 2014 ONCA 671, at para. 22)

I venture to say this may be such a case. It will be for the court hearing any appeal to decide.

72I should note that, over much of the course of this action, the plaintiff has relied on the state of her health, her problems with her counsel and the fact that, without legal experience, she is representing herself as the explanations for the delay.⁴¹ It may be that there are times when recognition should be given to those with these difficulties but, ultimately, the court cannot wait forever. Defendants also have rights and the process of the courts cannot function properly if they are held up for too long:

This lawsuit has not gone anywhere since pleadings closed. The plaintiff admits that there has been inordinate delay. The Plaintiff’s excuse for the delay is that: (a) she was disabled for long periods of time; (b) she was engaged in other legal matters, and (c) she was and still is impecunious. These facts are not sufficient excuse...⁴²

73For the reasons reviewed herein, leave to appeal is granted with respect to the question of whether the action should be dismissed as a result of the delay.

Costs

74No submissions were made as to costs. If the parties are unable to agree, I will consider written submissions on the following terms:

1. On behalf of Co-operators, no later than 15 days following the release of these reason, such submissions are to be no longer than 4 pages, double-spaced, not including any Bill of Costs or Costs Outline and any case law that may be provided.
2. On behalf of the plaintiff, no later than 10 days thereafter, such submissions are to be no longer than 4 pages, double-spaced, not including any Bill of Costs or Costs Outline and any case law that may be provided.
3. On behalf of Co-operators, no later than 5 days thereafter, such submissions are to be no longer than 2 pages, double-spaced.

___________________________ LEDERER J.

Released: 20150212

CITATION: Layland v. Canadian Co-Operatve Association, 2015 ONSC 835

DIVISIONAL COURT FILE NO.: 443/14

COURT FILE NO.: 97-CU-121825 DATE: 20150212

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

GRETA LAYLAND

Plaintiff

(Respondent)

– and –

CANADIAN CO-OPERATIVE ASSOCIATION and CO-OPERATORS LIFE INSURANCE COMPANY

Defendants

(Respondents)

JUDGMENT

LEDERER J.

Released: 20150212

Footnotes

1. 1For the most part, I have taken this history from the Affidavit of Paul V. McCallen, sworn April 2, 2012, and the exhibits it includes.
2. 2August 28, 1997, September 24, 1997, November 18, 1987, December 18, 1997, January 7, 1998, January 14, 1998, February 18, 1998, February 24, 1998, March 3, 1998 (2 X), March 16, 1998 and April 7, 1998).
3. 3Messrs. Gorsky, Mulroy and Simpson.
4. 4Consent executed by the parties and filed before Master Sedgwick on November 16, 2000. (Note: The Workers’ Compensation Act, R.S.O. 1990, c. W. 12 was repealed on January 1, 1998. See: 1997, c. 16, ss. 18, 19.)
5. 5S.O. 1997, c. 16, Sched. A.
6. 6Rule 21.01(3)(a) says:
   A defendant may move before a judge to have an action stayed or dismissed on the ground that,
   (a) Jurisdiction-the court has no jurisdiction over the subject matter of the action; …
7. 7Order of Mr. B. Justice Wright, dated April 6, 2001, at paras. 6, 7 and 8.
8. 8Order of Mr. Justice Keenan, dated July 10, 2001, at paras. 1 and 2.
9. 9Presumably, in an effort to assist the parties, Tribunal Counsel enclosed with this letter a copy of the Tribunal’s Practice Direction: Inactive Files.
10. 10I say this because, at paragraph 97 of his affidavit, he says that:
    Although the Plaintiff advised that it was her intention to reactivate her application, she would not agree to do so until a timetable was set regarding the delivery of the CCA's legal position. The Plaintiff took this position despite Ms. Rubin’s undertaking at the last day of the hearing that she would provide CCA's legal argument two weeks before the next hearing date.
11. 11This is also found at paragraph 97 of the same affidavit of counsel for Co-operators.
12. 12In a letter to Tribunal Counsel (Ms. Susan Adams), the Legislative Interpretation Specialist of the Office of the Worker Advisor observed:
    Ms. Layland would like to have an opportunity to review [a summary of the legal position of CCA's counsel] before setting another hearing date.
    The OWA supports Ms. Layland's position on this point.
13. 13Workplace Safety and Insurance Appeals Tribunal: Decision No. 338/02, at para. 53.
14. 14Affidavit of Bunny Dave Smith, sworn January 20, 2014, at paras. 24 and 29, and Exhibit 17.
15. 15This understanding is explained in the Affidavit of Ann Layland, sworn December 17, 2012, at paras. 67 to 85. The motion was brought pursuant to the provisions of the Workers’ Compensation Act, supra, (see fn. 5) sections 101 and 102). The legislation does not refer to the “right to sue”. Rather, it refers to the “right to compensation”. In so doing, it refers to the issue from the perspective of the WSIAT and not the court. The affidavit indicates that the Right to Compensation was understood by the plaintiff to mean “her entitlement to coverage for all the benefits in the manner and to the extent provided under the Act” (para. 71). How this could be is unclear. In the affidavit, the deponent quotes the Panel describing the meaning of “right to compensation”:
    In our view, the primary purpose of section 17 is to provide a mechanism or procedure to determine which of the two avenues of legal redress can be pursued by a worker who claims to have suffered accidental injury arising out of and in the course of his or her employment. In light of this purpose, and the Board’s exclusive jurisdiction under section 69 of the Act, we are unable to interpret the reference to a determination of the ‘right to compensation’ to mean that the Tribunal is compelled, in an application under section 17 of the Act, to completed [sic] the decision making process under section 4 (1) of the Act… Instead, we find it is intended to give the Tribunal the power to determine whether a party's rights fall to be determined under the Act [sic] ‘right to compensation’) or in the courts (‘right of action’). ( para. 77)
16. 16Affidavit of Bunny Dave Smith, sworn January 20, 2014, at paras. 20 and 21.
17. 17Ibid, Exhibit 12, Letter, dated January 13, 2014, from Dr. Eric Silver of the CPM Centres for Pain Management.
18. 18This was recognized in the decision of the motion judge:
    On July 10, 2001, the action was stayed on consent by Order of Keenan, J. as against both Defendants to permit Layland to commence a Right to Sue Application to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). The stay was to be lifted as soon as a final determination of that Application was rendered.
    and
    I am satisfied that the stay order should be lifted, and I so order. Layland’s efforts to pursue her remedy further and elsewhere should not delay the ultimate determination of this action.
    (Layland v. CDN. CO-OP. Association, 2014 ONSC 4776, at paras. 6 and 11).
19. 19Affidavit of Bunny Dave Smith, sworn January 20, 2014, at paras. 14 and 15.
20. 20Layland v. CDN. CO-OP. Association, supra, (fn.18), at paras. 12, 13 and 14.
21. 21Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194 at r. 62.02(4).
22. 22Standard Trust Co. v. Jackson, [1993] O.J. No. 2764, 43 A.C.W.S. (3d) 1080, at para. 15.
23. 23In Standard Trust Co. v. Jackson, ibid, at para. 15, Mr. Justice Wilkins points out that the idea of moving for “want of prosecution” has, since the addition of R. 24 to the Rules of Civil Procedure, been replaced with “delay” as the operative term.
24. 24Farrar v. McMullen, 1970 555 (ON CA), [1971] 1 O.R. 709 (C.A.), at p. 711, quoted in Woodheath Developments Ltd. v. Goldman, 2003 46735 (ON SCDC), [2003] O.J. No. 3440, 66 O.R. (3d) 731, at para. 7.
25. 25Ibid, (Woodheath Developments), at para. 8.
26. 26Layland v. CDN. CO-OP. Association, supra, (fn.18), at para. 14.
27. 27Endorsement of Mr. Justice Keenan, dated July 10, 2001.
28. 28Layland v. CDN. CO-OP. Association, supra, (fn.18), at para. 5.
29. 29Ibid, at para. 7.
30. 30Dynes v. Standard Life Assurance Co., [2012] O.J. No 1324 (C.A.), at paras. 2 and 10.
31. 31Layland v. CDN. CO-OP. Association, supra, (fn. 18), at paras. 12 and 13.
32. 32Ibid, at para. 14, which is quoted in full at para. [49], above.
33. 33Supra, (fn. 30).
34. 34Ibid, at para. 2.
35. 35Ibid, at para. 12.
36. 36In the Affidavit of Ann Layland, sworn December 17, 2012, at paras. 26-29, specific reference is made to three medical reports of the rheumatologist: March 28, 2001, April 27, 2005, and January 25, 2007. These are the only reports referred to that post-date 1996.
37. 37See: Sherratt v. Sun Life Assurance (per Gray J.) (undated, unreported) quoted in Savundranayagam v. Sun Life Assurance Co., 2007 57938 (ON SC), [2007] O.J. No. 5111, at para. 18; and, in Haynes v. RBC Life Insurance Co., 2010 ONSC 2470, [2010] O.J. No. 1800, at para. 49.
38. 38Ibid, (Haynes v. RBC Life Insurance Co.), at para. 52.
39. 39Layland v. CDN. CO-OP. Association, supra, (fn. 18), at para. 14.
40. 40Wallace v. Crate’s Marine Sales Ltd., 2014 ONCA 671, at para. 22.
41. 41See, for example, the Affidavit of Ann Layland, sworn December 17, 2012.
42. 42Heit v. Great-West Life Assurance Co., [1996] A.J. No. 264, 61 A.C.W.S. (3d) 1072, at para. 49.