Court File and Parties

CITATION: Karasiewicz v. Collins, 2021 ONSC 3956 DIVISIONAL COURT FILE NO.: 20/278 DATE: 2021-05-31

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: ADRIAN CHARLES KARASIEWICZ, Appellant AND: CHIEF PETER COLLINS as a representative and on behalf of THE FORTWILLIAM FIRST NATION BAND, and PETER COLLINS in his personal capacity, Respondents

BEFORE: Penny J.

COUNSEL: Bradley A. Smith and Meghan Payment for the Moving Party Nathan Wainwright for the Responding Party

HEARD by videoconference on: May 31, 2021

Endorsement

[1] This is a motion by the respondents for an adjournment or stay of an appeal, scheduled for hearing during the Thunder Bay sittings of the Divisional Court in the week of June 21, 2020. The appeal is from the order of Newton J. In his order, Newton J dismissed the appellant’s motion to enforce a settlement between the parties. In the unique circumstances of this case, however, he nevertheless granted the appellant costs of $4,000 payable by the respondents.

[2] The basis for the respondents’ adjournment/stay request is that, after the motion to enforce the settlement was argued before Newton J. but before the release of the reasons, the respondents brought an application before the Workplace Safety and Insurance Appeals Tribunal seeking declaratory relief under s. 31 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, that the appellant’s right of action had been “taken away” by statute. The hearing of the respondent’s application to the Tribunal is scheduled to proceed in October 2021. The respondents argue that if the subject matter of the Superior Court action giving rise to the settlement is found to be within the exclusive jurisdiction of the adjudicative regime under the Act, there can be no order from the Superior Court enforcing the settlement of that action. Thus, the respondents argue that the Divisional Court hearing of the appeal from Newton J.’s order should be adjourned or stayed pending the outcome of the hearing before the Tribunal.

[3] The respondents’ motion for an adjournment/stay is dismissed. The appeal shall proceed as scheduled and on the material filed. There are two reasons supporting my conclusion.

[4] First, the issue before Newton J., and on the appeal of Newton .’s order to this Court, has nothing to do with the merits of the plaintiff’s claim. The sole question is whether the parties, through their authorized agents (legal counsel), did or did not enter into a legally enforceable private agreement to settle outstanding litigation. The pending application before the Tribunal will not resolve that question. Indeed, it is not clear to me that the Tribunal would have jurisdiction to decide that issue. Even if the appellant’s claim were properly subject to adjudication by the appropriate tribunal under the Act, rather than the Superior Court, the question would remain whether there was a legally enforceable agreement between the parties, entered into prior to any determination of jurisdiction, to settle that litigation.

[5] There is, therefore, in my view no benefit to adjourning the Divisional Court hearing of the appeal.

[6] Second, requests for adjournments/stays of proceedings on jurisdictional grounds must be made on a timely basis. This was not done here.

[7] Apparently, the respondents became aware of the “no jurisdiction argument” in 2019 as a result of a Tribunal decision released in that year. Yet, the respondents participated in and opposed the appellant’s motion before Newton J. before bringing their application to the Tribunal. Further, the respondents opposed the appellant’s leave motion, while bringing their own motion for leave to appeal Newton J.’s order. Leave was granted to the appellant on November 16, 2020 and denied to the respondents. On December 2, 2020, the appeal was scheduled, on consent, for the week of June 21, 2021, one of two Divisional Court sittings scheduled in Thunder Bay each year. The appeal was perfected on January 15, 2021 and the respondents filed their factum on the appeal itself on February 16, 2021; the factum makes no mention whatever of a possible adjournment/stay of the appeal on jurisdictional grounds. Indeed, no mention of any request for an adjournment/stay of the appeal was made until May 3, 2021.

[8] In the circumstances, I can only conclude that the respondents have not brought the jurisdictional question forward and sought the adjournment/stay of the appeal on a timely basis. The motion should be dismissed on this ground as well.

[9] Costs of this motion shall be paid by the respondents to the appellant in the amount of $3,000 forthwith.

Penny J.

Date: May 31, 2021