Court File and Parties
COURT FILE NO.: CV-12-2893-00 DATE: 2016 04 29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: GLORIA MCDONALD v. DENNY SANTOS and WAVELINE TRANSPORT LTD.
BEFORE: Fragomeni, J.
COUNSEL: S. Grillone, for the Plaintiff J. Boyd, for the Defendants
HEARD: April 28, 2016
E N D O R S E M E N T
[1] The plaintiff seeks the following relief:
- an order staying the Workplace Safety and Insurance Appeals Tribunal Application (WSIAT).
- a declaration that the Defendants are estopped from bringing a WSIAT application.
Overview of the Facts
[2] The Defendants have pleaded in their Statement of Defence, at paragraph 5, that at all material times the Defendant driver Denny Santos and the Plaintiff were both employees of Schedule 1 Employers and/or Employees of Schedule 2 Employers, pursuant to the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16, Schedule A, and that both the Plaintiff and Defendant Denny Santos were both operating within the scope and course of their employment at the time of the collision which is the subject of these proceedings, therefore this action is statute barred by Section 28 of the Workplace Safety and Insurance Act, 1997.
[3] The Defendants have brought a Workplace Safety and Insurance Act, 1997 Section 31 Right to Sue Application before the WSIAT which was served on the Plaintiff on or about February 3, 2015. The Right to Sue Application is scheduled to be heard May 3, 2016.
[4] With respect to the action commenced in the Superior Court of Justice (Court File No. CV-12-289300), the Plaintiff served and filed the Trial Record on or about December 18, 2014.
[5] The matter was in Assignment Court on October 19, 2015. A Pre-Trial date was set for September 16, 2016. The action has not yet been placed on a Trial List and the Defendants have not consented to the matter being placed on a Trial List.
[6] As of October 19, 2015, the parties had not yet been provided with a WSIAT hearing date for the Defendant’s Right to Sue Application.
[7] The Plaintiff submits that since the Defendants consented to a Pre-Trial Conference date of September 16, 2016 they have attorned to the jurisdiction of the Superior Court of Justice to dispute this matter. In these circumstances and even though it was the Plaintiff who set the action down for trial, the Defendants are now estopped from proceeding with this WSIAT application.
[8] At paragraphs 18 and 19 of her Factum, the Plaintiff states the following:
- The attempt of counsel for the Defendants to continue this WSIAT Application in the face of their clear consent to have the Superior Court adjudicate the matter is a clear abuse of process. The Plaintiff is prepared to proceed to trial.
- The Plaintiff has fully complied with her obligations under the Rules of Civil Procedure and it is her intention to have the matter tried by a jury of her peers. The Plaintiff’s expectations, based on the Defendants’ consent, is to continue to advance her claim in the Superior Court; to allow the Defendants to simply resile from their consent would be an affront and highly prejudicial to the Plaintiff’s rights.
[9] The Defendants submit that at no time did they represent to the Plaintiff that they did not intend to proceed with the application before the WSIAT.
Analysis and Conclusion
[10] Rule 48.07(a) and (c) of the Rules of Civil Procedure states:
Where an action is placed on a trial list,
(a) all parties shall be deemed to be ready for trial; and (c) the trial shall proceed when the action is reached on the trial list unless a judge orders otherwise. R.R.O. 1990, Reg. 194, r. 48.07; O. Reg. 438/08, s. 44.
[11] In this case the action has not yet been placed on a Trial List. The Defendants only consented to a Pre-Trial hearing scheduled on September 8, 2016.
[12] The WSIAT application is a separate and distinct hearing. WSIAT has exclusive jurisdiction to determine the issue under the section 31 Right to Sue Application. The WSIAT has exclusive jurisdiction to determine the issue of whether the Plaintiff’s right to commence an action is barred by virtue of that Act.
[13] In their Statement of Defence the Defendants pleaded that the Plaintiff’s claims, are statute barred by Section 28 of the Workplace Safety and Insurance Act, 1997.
[14] The Defendants deny that they have attorned to the jurisdiction of the Superior Court of Justice or that they waived their right to proceed with the WSIAT hearing.
[15] I agree with the position of the Defendants. The Plaintiff has provided no authority to support her position that the Defendants cannot proceed with the WSIAT hearing in these circumstances.
[16] I agree with the Defendants that pursuant to Section 31, the Section 28 issue must be decided by the WSIAT prior to the trial of the action.
[17] I am satisfied that the WSIAT hearing scheduled for May 3, 2016, is properly constituted. The Plaintiff’s motion therefore, is hereby dismissed. The parties shall file written submissions on costs of the motion within 20 days.
Fragomeni J.