Superior Court of Justice - Ontario

CITATION: Sehdev v. Hanford Lumber Limited, 2017 ONSC 7653

COURT FILE NO.: CV-10-397985

MOTION HEARD: 2017-12-19

RE: Sunil Sehdev, Plaintiff

AND:

Hanford Lumber Limited and 1339276 Ontario Inc. o/a Smartway Trailer Rentals and Wheels International Freight Systems Inc. o/a Wheels Logistics, Defendants

BEFORE: Master Jolley

COUNSEL: E. Durst, Counsel for the Moving Party Defendants Hanford Lumber Limited and 1339276 Ontario Inc. P. Kumar, Counsel for the Responding Party Plaintiff

HEARD: 19 December 2017

REASONS FOR DECISION

[1] The moving party defendants seek their costs of defending this action which was found by the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) in its decision of 6 November 2015 to be barred by the provisions of the Workplace Safety and Insurance Act, S.O. 1997, c.6 (“WSIA”). The WSIAT found that the plaintiff was working as a truck driver in February 2008 when he was dropping off a truck at a parking lot. He slipped on ice as he got out of his truck and sustained an injury. He sued the defendants as owners and occupiers of the parking lot. The WSIAT determined that the plaintiff was a worker rather than an independent contractor and, as a result, his right to sue the defendants was taken away. Thereafter, this action was administratively dismissed by order of the Registrar made 17 July 2017.

[2] The plaintiff takes the position that the defendants should have brought the WSIA application early in these civil proceedings as that would have avoided the costs which they incurred to defend the action and which they now claim, including the cost of examinations for discovery.

[3] The defendants argue that there was nothing in the pleadings that put them on notice that this was a claim potentially covered by the WSIA. The plaintiff’s pleading alleges that he was an individual who was walking on the parking lot when he slipped and fell. There is no mention that he was or may have been in the course of his employment.

[4] The plaintiff took the position that the defendants should have been alerted to a potential WSIA issue at least by 9 September 2011 when he delivered his productions. They included a copy his file from his disability carrier, Great-West Life, which indicated that he was employed as a truck driver by the defendant Wheels International at the time of the accident. The file further indicated that the plaintiff, in consultation with his lawyer, opted out of the Workplace Safety and Insurance Board (“WSIB”) coverage and elected to proceed with the within action.

[5] I note that even prior to delivery of those materials, in February 2011, the third party, Groundstec Inc. filed a defence to the main action wherein it pleaded that the plaintiff’s claim was statute barred pursuant to the provisions of the WSIA and, in the alternative, that his right of action, if any, belonged to the WSIB pursuant to the provisions of the WSIA.

[6] If not by February 2011 but certainly by September 2011, the defendants should have been aware of the potential for them to bring an application before the WSIAT for an order that the civil claim was barred. Instead, they proceeded through two examinations for discovery before determining to bring their WSIA application.

[7] The defendants argue that the discoveries were necessary for the WSIAT application. I note that the WSIA scheme presumes that these applications are made without examinations for discovery. (Olesiuk v. Hilltop Water Service 2016 ONSC 4548; WSIA and WSIAT Practice Directions). It is more likely that the defendants continued the discoveries not as information-gathering for a potential WSIA application but because they were treating the matter as a straightforward personal injury slip and fall.

[8] I do not accept the plaintiff’s position that the defendants were obliged to make immediate inquiries to find out whether the accident occurred in the course of employment or could have otherwise been subject to a WSIA application when they had a statement of claim that did not make any mention about the plaintiff’s employment status or indicate that the location where the injury was alleged to have occurred was a potential workplace. However, once they had the information from the plaintiff’s productions and the pleading of the third party, they should have known that the plaintiff’s standing to bring the civil action was in issue. Adopting the rationale of Master Hawkins in Lui v. University of Toronto, 2011 ONSC 1522, I find that as soon as the application of the WSIA became a live issue:

the parties should have given priority to having this issue resolved by an early application to the Tribunal. This did not happen. Instead, this action proceeded through production of documents and examinations for discovery. Although either side could have brought an application to the Tribunal, I place most of the blame for the fact that the application was not brought promptly on the shoulders of the University, because the University had the most to gain from a successful application to the Tribunal.

[9] While I do not fix “blame” in this case, I do find that the defendants should not recoup from the plaintiff the costs they incurred when they proceeded with the litigation in the face of a potential WSIA application. Like Master Hawkins, I do not fault the defendants for failing to bring an application to the Tribunal before the close of pleadings. Until the delivery of the plaintiff’s productions, there was no indication that the WSIA could have any application. However, by September 2011, the defendants should have been aware both through the third party defence to the main action and the plaintiff’s productions that a WSIA application was appropriate.

[10] The plaintiff could equally have insisted on an early WSIA application to resolve that issue and bears some responsibility for the defendants incurring the costs they did. I have considered the defendants’ costs to the end of the pleadings stage. While there was file review and communication with the client, I would not visit on the plaintiff the defendants’ choice to use 15 different lawyers and law clerks for that file review work. Further, the dockets are not broken down by date so it is difficult to know what portion of the file review work was done up to the end of pleadings. Considering all the factors including the defendants’ time up to the end of pleadings, I find it reasonable for the plaintiff to pay to the defendants the sum of $3,390 in fees inclusive of HST and $790 in disbursements inclusive of HST for a total costs award of $4,181.

[11] The plaintiff offered to settle the costs of the motion for less than that amount I have awarded so I award no costs of the motion.

Master Jolley

Date: 20 December 2017