Court File and Parties

COURT FILE NO.: CV-15-542560 DATE: May 12, 2016 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Elizabeth Dias, Plaintiff -and- Liquor Control Board of Ontario (LCBO), Defendant

BEFORE: F.L. Myers J

READ: April 6, 2016

Endorsement

[1] This motion was referred to me by the registrar’s office pursuant to rule 2.1.01(7) following receipt of a written request of the lawyers for the defendant under rule 2.1.01(6). By endorsement dated April 7, 2016, reported at 2016 ONSC 2364, the action was stayed pending the plaintiff being notified that the court was considering dismissing the action under Rule 2.1.

[2] The registrar sent a notice in Form 2.1A to the plaintiff. The plaintiff has responded with submissions purportedly addressing this action and a prior action that she had commenced against the Workplace Safety & Insurance Board. I dismissed that action under Rule 2.1 on March 10, 2016 in a decision reported at 2016 ONSC 1752.

[3] The plaintiff’s complaints stem from allegations that she suffered work-related illness and consequent injuries from 1996 to 2004. WSIB denied her claims. She says that she was told in 2003 that WSIB told her employer not to file a Form 7 (Employer’s Report) which in turn made it impossible to have her claims settled in 1999. She asserts that she has a right to sue her former employer for events in the late 1990s that were the subject of her WSIB claim.

[4] There is no entitlement to claim damages in this court for an unsuccessful WSIB claim or to sue one’s employer in relation to the accident or disease contracted while in its employ. Gao v. Ontario WSIB, 2014 ONSC 6497. Subsections 26(1) and (2) of the Workplace Safety and Insurance Act, 1997, SO 1997, c 16, Sch A, provide:

26. (1) No action lies to obtain benefits under the insurance plan, but all claims for benefits shall be heard and determined by the Board. (2) Entitlement to benefits under the insurance plan is in lieu of all rights of action (statutory or otherwise) that a worker, a worker’s survivor or a worker’s spouse, child or dependant has or may have against the worker’s employer or an executive officer of the employer for or by reason of an accident happening to the worker or an occupational disease contracted by the worker while in the employment of the employer.

[5] As a result of these two subsections, the plaintiff’s remedies, if any, lie with the Board. Moreover, the Board’s decisions may not be the subject of proceedings before a court. [1] This is set out plainly in subsection 118(3) of the statute that provides as follows:

(3) An action or decision of the Board under this Act is final and is not open to question or review in a court.

[6] In this claim, the plaintiff has purported to sue her former employer for the same substance as in the prior matter. Rolling forward a frivolous claim against a different party raises concerns as to whether this litigation is likely to become a vehicle for a party who might be inclined to inflict the harms of vexatious proceedings on the opposing parties and the civil justice system. Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733 at para. 12.

[7] Therefore, this action is dismissed with costs payable to the defendants, if demanded, after assessment of the quantum. I dispense with any requirement for the plaintiff to approve the form or content of the formal dismissal order.

[8] The Registrar shall send a copy of this endorsement to the plaintiff and counsel for the defendants, and shall serve the formal dismissal order on the plaintiff under Rule 2.1.01(5).

F. L. Myers, J. Date: May 12, 2016

Footnote

[1] This case involves an action for damages arising from a proceeding before the Board. Different considerations may have applied in a timely proceeding before the Divisional Court under the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. Judicial review proceedings address very particular issues and are very difficult for a layperson to consider. Judicial review proceedings are not available to claim damages against the Board or the employer for pain, anguish, and punitive damages as are sought by the plaintiff in this action.