CITATION: Taylor v. Pivotal Integrated HR Solutions, 2020 ONSC 5500

COURT FILE NOS.: TBA

DATE: 20200914

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: Taylor v. Pivotal Integrated HR Solutions

COUNSEL: Mr Taylor, self-represented

Andrew Lokan, for WSIAT

No one appearing, for Pivotal Integrated HR Solutions

BEFORE: D.L. Corbett J.

DATE: September 14, 2020

CASE MANAGEMENT ENDORSEMENT

[1] This court gave directions for the next steps in this application in an endorsement released September 9, 2020 (2020 ONSC 5414). After the first teleconference but before release of the court’s endorsement, Mr Taylor sent an email to the court indicating that he considers that the process directed by the court does not address the urgency of his situation, and that he wishes an urgent hearing of his application on the merits. In the alternative, he would seek an urgent hearing of the application by a single judge of the Superior Court of Justice pursuant to s.6(2) of the Judicial Review Procedure Act. The court addressed Mr Taylor’s email in its endorsement at paras. 6 and 7, as follows:

Following the case management teleconference, Mr Taylor sent an email to the court indicating that he was considering abandoning his application so that he could commence a fresh application before the Superior Court of Justice. He considers his application urgent and notes that it is possible for a single judge to take jurisdiction over a Divisional Court application if the matter cannot await a hearing before a panel of three judges because of urgency. I directed staff to advise Mr Taylor that this provision is administered by the Divisional Court office in Toronto. It is open to the court to direct that the matter be heard by a single judge if urgency so requires. This was not an issue that Mr Taylor raised at the case management conference, and he was directed to seek a further case management conference if he wished to seek such a direction in his case.

In terms of urgency, the motion has been expedited. On an urgent basis the underlying application would take several months to complete, at minimum, and the court will consider an appropriate schedule after a decision on the upcoming motion is rendered. If Mr Taylor considers that his position is urgent such that these timelines are inadequate, his remedy is to seek interlocutory relief pending completion of the schedule. He may seek a case management conference to schedule a motion for such relief, and that conference will be expedited.

[2] Mr Taylor sent a further email to the court re-stating that he was seeking an immediate hearing of his case on the basis of urgency, and that he considers that he is entitled to take his case before a single judge of the Superior Court in these circumstances. The court then directed that a further case management conference be held on September 11, 2020. This endorsement reflects that case management teleconference.

[3] Mr Taylor is a paralegal, recently qualified, but in a matter of this legal complexity I agree that he is entitled to be treated as a self-represented litigant entitled to assistance from the court to navigate the court’s process. To be amenable to this assistance, to which self-represented litigants are entitled, Mr Taylor must be open to receiving the court’s guidance on how he may properly pursue his application. Respect and support for self-represented litigants does not mean that the interests of adverse parties to a fair process, or the court’s due process requirements, are to be ignored.

[4] Second, this case is being case-managed in Divisional Court, as is the situation for all Divisional Court cases during the COVID-19 suspension of ordinary court operations. When the court gives case management directions, they are not suggestions or proposals. They are directions from the court and they are to be followed.

[5] Third, Mr Taylor has misconceived the import of s.6(2) of the JRPA. It permits a single judge of the Superior Court to hear a Divisional Court matter ordinarily heard by a panel of three judges of the Divisional Court where a panel hearing may not be available for the case on a timely basis. It is invoked most often outside Toronto where Divisional Court panel hearings are scheduled only two or three weeks each year and cases can arise that cannot await the next regular sittings of the Divisional Court. Inside Toronto, where Divisional Court panels ordinarily sit every regular week of the year (the exceptions being the summer months and two weeks at Christmas), there is seldom a situation where the panel cannot hear an urgent matter whenever the case is ready to be heard. In those rare cases where a panel cannot be assembled to hear a truly urgent matter within the time frame in which the case needs to be heard, the court will arrange for the matter to be heard by a single judge, either under the authority of s.6(2) of the JRPA or by direction of the Associate Chief Justice, usually on the advice of an administrative judge of the Divisional Court. It is on this basis that I “directed staff to advise Mr Taylor that this provision is administered by the Divisional Court office in Toronto.”

[6] None of these provisions have anything to do with expediting a case faster than has been directed by a case management judge. It is not open to Mr Taylor to circumvent a scheduling decision from this court by abandoning his application and starting a new one in Superior Court. To do that would be an abuse of process. It is theoretically open to Mr Taylor to move before a Superior Court judge in this proceeding for an order that the application be heard by a single Superior Court judge because of urgency. That motion should be brought to me or as I may direct, since I am case-managing this matter: if Mr Taylor brought that motion returnable before another judge, and if he properly disclosed prior endorsements in this case, he would find himself directed back to this court for his motion after having wasted time and resources – his own, those of adverse parties, and those of the court.

[7] On September 9, 2020, I directed a schedule for WSIAT’s motion to be added as a party, and its motion to dismiss this application as frivolous, vexatious and an abuse of process. That schedule is on an expedited timetable, with a return date for both motions on October 5th. If the application continues on the merits after that motion, then it can be scheduled on an expedited basis. This would typically involve setting deadlines for production of a Record of Proceedings for the impugned WSIAT decisions, delivery of the applicant’s application record after that, then delivery of any responding records, potentially some cross-examinations (depending on the nature of the materials filed in the records), exchange of factums, preparation time for the court, and return date before a panel of three judges. Pre-COVID-19, this process could be expected to take anywhere between eight to eighteen months in the normal course. Based on the experience during COVID-19, where the court has been case-managing matters actively, these times have been reduced substantially, but would still, in the ordinary course, require something in the range of six months to complete, assuming diligence and cooperation by all parties.

[8] If I am persuaded that the case is urgent (a matter I have not yet decided), these times could be reduced. But they may only be reduced in ways that are fair to all parties: all parties are entitled to notice, to submit admissible materials to the record, and to make written and (usually) oral argument.

[9] Mr Taylor says the matter is urgent and that he will suffer dire consequences if the matter is not decided before the end of September 2020. This application will not be decided on its merits by the end of September 2020, whether it is heard as an expedited application (by a panel or by a single judge) or whether it is heard in the ordinary course. Mr Taylor explained to me that in his experience, he could bring his application returnable before a single judge and have the matter decided at the first return date. I cannot conceive of how that could happen unless there was no defence to the application, the respondents consented, or the respondents had placed all of their materials before the court by the original return date. None of that will happen in this case.

[10] What can happen, in some cases, is that an applicant proceeds on the basis of urgency and, although the application is not heard on its merits at an initial return date, the court orders interim relief pending decision on the overall application. This is a form of interlocutory relief, usually in the form of an injunction or mandatory order or an undertaking from responding parties to the same effect. Here, Mr Taylor would be seeking, in effect, a mandatory order against WSIAT for payment of benefits pending decision on the application. The application is in respect to a claim Mr Taylor was denied by WSIAT in a decision that has been upheld in the courts. Mr Taylor candidly acknowledges that he is in great need of these benefits and would not be in a position to repay them if his application was subsequently dismissed.

[11] It is still open to Mr Taylor to bring a motion for interlocutory relief. If he does so, I will schedule that motion on an expedited basis. That is the only way in which he could obtain any relief before the end of September 2020.

[12] The motions directed in my first endorsement shall proceed as directed in that endorsement. Further steps in this proceeding may be scheduled at a case management conference with me after the motions scheduled for October 5, 2020 have been decided. Any motion for interlocutory relief will be scheduled by me if and when Mr Taylor serves and provides the court with motion materials to this effect.

[13] I am seized of case management of any existing or further proceedings taken by Mr Taylor involving WSIAT in the Superior Court of Justice or the Divisional Court.

D.L. Corbett J.

Date: September 14, 2020