SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 97-CU-121825

DATE: 2014-09-10

RE: GRETA LAYLAND, Plaintiff

AND:

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

BEFORE: STEWART J.

COUNSEL:
Greta Layland, Self-represented

K. Hashmi, for the Defendant Canadian Co-Operative Association

Pamela Miehls, for the Defendant Co-Operators Life Insurance Company

HEARD: January 23, 2014

ENDORSEMENT

[1] The Defendants, Canadian Co-Operative Association (“CCA”) and Co-Operators Life Insurance Company (“Co-Operators”) move for an order lifting the stay of this action ordered by the Honourable Justice Keenan on July 10, 2001 and, if granted, seek an order dismissing the action for delay.

[2] The Plaintiff, Greta Layland (“Layland”) moves to vary the stay order. In essence, she wants to continue the current stay “pending the reconsideration of the WSIAT decision 313/12 and/or an application for judicial review to the Superior Court of Justice, including any further appeals of the Workplace Safety and Insurance Appeals Tribunal adjudicated issue”.

[3] This action was commenced by Statement of Claim 16 years ago.

[4] The claim relates to the denial of an application by Layland for long term disability benefits submitted to Co-operators almost 17 years ago. Layland then alleged and continues to allege that she suffers from debilitating symptoms ranging from diffuse pain and aching to neurological symptoms.

[5] The progress of the action has been plagued by delay. In April 1999, the action was struck from the trial list.

[6] 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.

[7] 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.

[8] Layland failed to advise the Defendants of this development. When Co-operators’ lawyer contacted the WSIAT, the Defendants were made aware of the decision. That inquiry did not occur until July 29, 2010.

[9] On June 29, 2011, the WSIAT confirmed to the parties that it considered its November 16, 2006 decision to be a “final determination” of the Right to Sue Application. Layland continues to seek an avenue of redress from this decision.

[10] Layland has not taken steps to lift the stay. Conversely, the Defendants have waited close to 4 years to bring this motion.

[11] 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.

[12] 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.

[13] 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.

[14] 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.

[15] I hereby order that the action be restored to the trial list and that the pre-trial conference and trial dates be expedited.

[16] It appears that the outcome of this motion would suggest that there be no order as to costs. However, if any party wishes to seek costs, written submissions on that subject may be delivered within 30 days of today’s date.

STEWART J.

Date: September 10, 2014