COURT FILE NO.: CV-12-445473-A3

DATE: 20180604

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SANTANNA MARROCCO, DANIEL BRODIE, JO-ANNE MARROCCO, and RICCARDO MARROCCO

Plaintiffs

– and –

JOHN DOE, STEPHEN HEFT, THE CORPORATION OF THE TOWNSHIP OF KING, BELAIR DIRECT, AMANDA ECKFORD, GEORGINA ECKFORD, DORIS BRODIE, TD AUTO FINANCE SERVICES INC., PHILIP BRODIE and MURRAY MARTIN

Defendants

– and –

REGIONAL MUNICIPALITY OF YORK POLICE SERVICES BOARD

Third Party/Moving Party

Counsel:

Jonathan Rosenstein, for the Plaintiffs

John M. Hale, for the Defendant, Doris Brodie and TD Auto Finance Services Inc.

HEARD: 18 May 2018, at Toronto

BEFORE: MEW J.

COSTS DECISION

[1] Doris Brodie used to run a service providing decoration and design for special occasions for residential and commercial properties. The business was called “Grand Entrance Designs” (“GED”). Doris Brodie’s daughter-in-law, Santanna Marrocco, was employed by GED as an assistant.

[2] Late in the day on 9 December 2010, Doris Brodie and Santanna Marrocco had delivered a flower arrangement to a customer. They were in the process of leaving his premises in a car driven by Ms. Brodie. Ms. Marrocco was her passenger. As they pulled onto the 8th Concession Road in the Township of King, a collision occurred with another vehicle. It was not a serious accident. The mother of the driver of the other vehicle as well as Ms. Brodie’s husband and her son, Daniel Brodie (Santanna Marrocco’s husband), were quickly on the scene.

[3] Approximately 36 minutes after the first accident, a vehicle driven by Stephen Heft, which had been travelling north on 8th Concession Road lost control and slammed into Ms. Marrocco, who had been standing beside one of the vehicles involved in the first accident. She was grievously injured by this second accident. She lost both of her legs and has suffered a host of mental and physical challenges in the years that have followed.

[4] Litigation ensued. Many parties were involved. Five actions that had originally been started were eventually consolidated into a single proceeding.

[5] On 6 May 2014, I was appointed by Himel J., the team leader for civil matters in the Toronto Region at the time, to case manage the actions.

[6] The litigation proceeded through several interlocutory motions, extensive examinations for discovery and numerous case management conferences.

[7] An issue which emerged at an early stage of the litigation was whether Santanna Marrocco’s claim against Doris Brodie and TD Auto Finance Services Inc. (“TD Auto”, the owner of the Brodie vehicle) was barred by operation of s. 28 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, (“WSIA”) which provides that a worker employed by a “Schedule 1” employer is not entitled to commence an action against the employer in respect of a personal injury by accident occurring in the course of employment.

[8] Santanna Marrocco had originally started an action against Stephen Heft and the Township of King in February 2012. In March 2012, Ms. Marrocco commenced a separate action against Doris Brodie and TD Auto, in which she pleaded that Ms. Brodie had been at fault in the first collision and that the second collision, involving Mr. Heft, was connected to the first, such that Doris Brodie remained at least partially liable for the consequences of the second collision.

[9] On 22 October 2012, Doris Brodie and TD Auto defended on the basis that Santanna Marrocco was in the course of her employment and that, accordingly, her right to sue was taken away.

[10] The Workplace Safety and Insurance Tribunal (“WSIAT”) has exclusive jurisdiction to determine whether a personal injury action against an employer is barred because of [s. 28](https://www.canlii.org/en/on/laws/stat/so-1997-c-16-sch-a/latest/so-1997-c-