Thomson v. Watson
Ontario Reports Ontario Superior Court of Justice Whitten J. July 28, 2020 152 O.R. (3d) 105 | 2020 ONSC 4409
Case Summary
Actions — Bars — Abuse of process — Ontario resident injured while driving truck in British Columbia for company based in Alberta — Worker electing to receive Alberta workers' compensation benefits and then bringing tort action against truck's owner, also an Ontario resident — Action stayed and dismissed as tort action by workers' compensation claimant was abuse of process.
Conflict of laws — Jurisdiction — Ontario resident injured while driving truck in British Columbia for company based in Alberta — Worker electing to receive Alberta workers' compensation benefits and then bringing tort action against truck's owner, also an Ontario resident — Action stayed and dismissed as tort action by workers' compensation claimant was statute-barred and an abuse of process.
Workers' compensation — Actions — Ontario resident injured while driving truck in British Columbia for company based in Alberta — Worker electing to receive Alberta workers' compensation benefits and then bringing tort action against truck's owner, also an Ontario resident — Action stayed and dismissed as tort action by workers' compensation claimant was statute-barred.
The plaintiff was an Ontario resident who was injured while driving his employer's truck in British Columbia. The employer was based in Alberta and wholly owned and directed by the defendant. The plaintiff elected to receive Alberta workers' compensation benefits and his application was approved in September 2012. In April 2014, he brought an action against the defendant, also an Ontario resident, for damages for improper maintenance of the truck. A statement of defence was produced in December 2016. In February 2018, the defendant moved before the Ontario Workplace Safety and Insurance Appeals Tribunal for a declaration that the plaintiff's tort action in Ontario was barred by his election to receive accident benefits pursuant to the Alberta workers' compensation regime. The Ontario Tribunal decided that although it had that jurisdiction, the Ontario version of the statue barring a tort action against his employer was not available since the plaintiff was not a worker as defined by the Ontario legislation. Meanwhile the plaintiff set the matter down for trial. The defendant moved to have the action stayed or dismissed.
Held, the motion should be allowed.
The plaintiff's tort action in Ontario was statute-barred. That conclusion was based on considerations of comity and for the reasons of justice, necessity and convenience. The workers' compensation scheme established a "historic trade-off" by which workers lost their cause of action against their employers but gained compensation that depended neither on the fault of the employer nor ability to pay. The provision of workers' compensation insurance was country-wide and each plan incorporated a provision reflecting the historical trade-off. There was no good reason to establish a tort haven amongst provinces that would encourage the circumventing of provincial workers' compensation legislation by simply moving to a different province. The plaintiff's tort action represented an attempt at relitigation of a matter covered by insurance to which the defendant had contributed, a circumvention of the historic trade-off, and an opportunity for double recovery and as such was an abuse of process.
The defendant's failure to bring the motion promptly did not warrant its dismissal. It was a convoluted issue for the defendant to resolve and there was no clear precedent in Ontario. The jurisdictional issue was significant, all counsel only started to become alive to the issue from the statement of defence on, and any delay could be addressed by costs thrown away, so it was inappropriate to dismiss the motion. The tort action was stayed and dismissed.
Spencer v. Mansour's Ltd., [2000] N.S.J. No. 138, 2000 NSCA 59, 190 N.S.R. (2d) 201, 96 A.C.W.S. (3d) 719, apld
Other cases referred to
Canam Enterprises Inc. v. Coles, [2002] 3 S.C.R. 307, [2002] S.C.J. No. 64, 2002 SCC 63, 220 D.L.R. (4th) 466, 296 N.R. 257, 167 O.A.C. 1, 24 C.P.C. (5th) 1, 117 A.C.W.S. (3d) 151, revg (2000), 51 O.R. (3d) 481, [2000] O.J. No. 4607, 194 D.L.R. (4th) 648, 139 O.A.C. 1, 5 C.P.C. (5th) 218, 101 A.C.W.S. (3d) 806 (C.A.); Hilton v. Guyot, 159 U.S. 113, 16 S. Ct. 139, 40 L. Ed. 95 (1895); Marine Services International Ltd. v. Ryan Estate, [2013] 3 S.C.R. 53, [2013] S.C.J. No. 44, 2013 SCC 44, 447 N.R. 1, 2013EXP-2544, J.E. 2013-1365, EYB 2013-225105, 3 C.C.L.T. (4th) 1, [2013] CLLC para. 220-037, 339 Nfld. & P.E.I.R. 312, 229 A.C.W.S. (3d) 404, 361 D.L.R. (4th) 195; Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, [1990] S.C.J. No. 135, 76 D.L.R. (4th) 256, 122 N.R. 81, [1991] 2 W.W.R. 217, J.E. 91-123, 52 B.C.L.R. (2d) 160, 46 C.P.C. (2d) 1, 15 R.P.R. (2d) 1, 24 A.C.W.S. (3d) 478, EYB 1990-67027; Niagara North Condominium Corp. No. 125 v. Waddington, [2007] O.J. No. 936, 2007 ONCA 184, 222 O.A.C. 66, 52 R.P.R. (4th) 230; Pasiechnyk v. Saskatchewan (Workers' Compensation Board), [1997] 2 S.C.R. 890, [1997] S.C.J. No. 74, 149 D.L.R. (4th) 577, 216 N.R. 1, [1997] 8 W.W.R. 517, J.E. 97-1695, 158 Sask. R. 81, 50 Admin. L.R. (2d) 1, 30 C.C.E.L. (2d) 149, 37 C.C.L.T. (2d) 1, 73 A.C.W.S. (3d) 560; Pe Ben Oilfield Services (2006) Ltd. v. Arlint, [2019] A.J. No. 1404, 2019 ABCA 400, 96 Alta. L.R. (6th) 98; R. v. Scott, [1990] 3 S.C.R. 979, [1990] S.C.J. No. 132, 116 N.R. 361, J.E. 91-48, 43 O.A.C. 277, 61 C.C.C. (3d) 300, 2 C.R. (4th) 153, 1 C.R.R. (2d) 82, 11 W.C.B. (2d) 358, 1990 CCAN para. 10,069; Tolofson v. Jensen, [1994] 3 S.C.R. 1022, [1994] S.C.J. No. 110, 120 D.L.R. (4th) 289, 175 N.R. 161, [1995] 1 W.W.R. 609, J.E. 95-61, 51 B.C.A.C. 241, 100 B.C.L.R. (2d) 1, 77 O.A.C. 81, 26 C.C.L.I. (2d) 1, 22 C.C.L.T. (2d) 173, 32 C.P.C. (3d) 141, 7 M.V.R. (3d) 202, 52 A.C.W.S. (3d) 40; Toronto (City) v. C.U.P.E., Local 79 (2003), 68 O.R. (3d) 799, [2003] 3 S.C.R. 77, [2003] S.C.J. No. 64, 2003 SCC 63, 232 D.L.R. (4th) 385, 311 N.R. 201, J.E. 2003-2108, 179 O.A.C. 291, [2003] CLLC para. 220-071, 17 C.R. (6th) 276, 59 W.C.B. (2d) 334, REJB 2003-49439, 120 L.A.C. (4th) 225, 2003 RTQ para. 10,260
Statutes referred to
Constitution Act, 1867, 30 & 31 Vict., c. 3, s. 96 Insurance Act, R.S.O. 1990, c. I.8 Workers' Compensation Act, R.S.A. 2000, c. W-15, s. 23 [as am.] Workers' Compensation Act, 1979, S.S. 1979, c. W-17.1 [rep.] Workers' Compensation Act, R.S.N.S. 1989, c. 508 [rep.], ss. 14, 15 Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A, s. 31, (2), (3)
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 21.01, (1)(a), (3)(b), (d), 21.02
Authorities referred to
Ison, T., "A Historical Perspective on Contemporary Challenges in Workers' Compensation" (1996), 34:4 Osgoode Hall L.J. Lange, D.J., The Doctrine of Res Judicata in Canada (Toronto: Butterworths, 2000)
MOTION to stay or dismiss a tort action.
Jane Poproski, for plaintiff. Beau S.M. Chapman, for defendant.
WHITTEN J. : —
I. Introduction and Background
[1] The defendant has moved pursuant to the rule for a determination that the plaintiff's election to receive workmen's compensation benefits from the Workers' Compensation Board of Alberta, for injuries arising out of the operation by him of a vehicle owned by the defendant, prevents him from bringing a personal injury action in Ontario relating to the same injuries. Alternatively, with reference to rule 21.01(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the defendant seeks a determination that the within action constitutes "an abuse of process of the courts". The result being that if the defendant is successful on either approach, the tort action would be stayed or dismissed.
[2] The plaintiff's action commenced in Ontario is based on a single motor vehicle accident that occurred August 24, 2012 in the City of Dawson Creek, British Colombia, which is approximately 15 kilometres from the Alberta border. At that time the plaintiff was employed as a truck driver by IC Asphalt Incorporated, which is wholly owned and directed by the defendant. The plaintiff was operating a transport truck owned by the defendant pulling a trailer. The plaintiff alleges in his suit amongst other things that the vehicle was not properly maintained by the company, and the brakes failed on this occasion, causing the plaintiff to operate the vehicle through an intersection without stopping and into a field.
[3] IC Asphalt was based in Alberta and operated in both Alberta and British Columbia. IC Asphalt paid premiums to the Workers' Compensation Board of Alberta.
[4] The plaintiff, because of the injuries he sustained in this accident, elected to receive workers' compensation benefits from the Workers' Compensation Board of Alberta. His application was approved September 8, 2012 and to this day he has continued to receive workers' compensation benefits from the Workers' Compensation Board of Alberta.
[5] Notwithstanding the receipt of those benefits, the plaintiff issued the within action in Ontario on April 2, 2014. The defendant was served with the Statement of Claim June 10, 2014. The claim under various headings is in excess of $2 million. At the time of the accident and the launch of this suit both parties were ordinarily resident in Ontario. As the Ontario Workplace Safety and Insurance Appeals Tribunal ("WSIAT") noted (ref. decision June 26, 2019, decision number 2793/18), the plaintiff had travelled to Alberta to work for IC Asphalt, an Alberta based company for ten weeks. He remained in Alberta throughout that time period, including all weekends when he would have had time off. The accident occurred during the course of that employment.
[6] Given the residency of both parties, counsel conceded that Ontario is the "forum conveniens" namely, and I quote, "The court in which the action is most appropriately brought, considering the best interests of and convenience of the parties and witnesses" (ref. Black's Law Dictionary, 7th ed., Bryan A. Garner, Editor-in-Chief).
[7] The Statement of Defence on behalf of the defendant was produced December 5, 2016. The delay appears to be the result of changing lawyers who had carriage of the matter within the firm assigned to defend. Each counsel wrestled with the possibility of a jurisdictional issue. In particular, did the matter come within the auspices of the Ontario Workplace Safety and Appeals Tribunal or should the action have been initiated in either British Columbia or Alberta?
[8] In any event, the parties were able to complete examinations for discovery by December 5, 2017.
[9] In February of 2018, the defendant moved before the Ontario Workplace Safety and Insurance Appeals Tribunal, for essentially a declaration that the plaintiff was statute-barred with respect to his tort action in Ontario, by virtue of his election to receive accident benefits pursuant to the Alberta Workers' Compensation regime. The Ontario Tribunal issued two decisions. On October 3, 2018, the Tribunal essentially decided that it had the jurisdiction to hear the application. On June 26, 2019, the Tribunal decided that although it had that jurisdiction, the Ontario version of the statue which bars a worker who has elected to claim benefits from pursuing a tort action against his employer was not available since the plaintiff was not a worker as defined by the Ontario legislation. It was after receipt of the latter decision that it was decided that the Superior Court of Ontario was the proper forum to consider the relief the defendant sought. Meanwhile the plaintiff set the matter down for trial without the consent of the defendant.
[10] Although this matter was originally scheduled for a time earlier this year, it became delayed and then of course COVID-19 arrived. The active operations of the court were suspended. Nevertheless, the motion was argued July 2, 2020 using the Zoom platform, to create a virtual court.
II. Issues
[11] Although it was argued for the plaintiff, that the defendant required leave to bring the motion. That point is not vigorously pursued given that the defendant had not consented to the setting down of the matter for trial.
[12] This motion by the defendant has two prongs. The germane issues are (1) could it be said as a matter of law that the election by the plaintiff to receive workman's compensation benefits ("WCB") from the Workers' Compensation Board of Alberta, precludes the plaintiff either by operation of statute or principle from pursuing a tort action, based on the same injuries in Ontario; and (2) could the tort action in Ontario be characterized as an "abuse of process" such that the tort action should be either dismissed or stayed?
[13] If the defendant is unsuccessful on either count, it must be decided if the received WCB should be deducted as collateral benefits pursuant to the Insurance Act, R.S.O. 1990, c. I.8.
[14] It has been argued additionally, that even if the defendant is successful on one or both counts, the lack of timeliness in the launch of the motion, merits its dismissal is pursuant to rule 21.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
III. Applicable Law
1) Workman's compensation legislation history and purpose of workers' compensation
[15] A compelling analysis of the origins of workmans' compensation legislation which exists in every province is provided by Sopinka J. writing for the court in Pasiechnyk v. Saskatchewan (Workers' Compensation Board), [1997] 2 S.C.R. 890, [1997] S.C.J. No. 74, in paras. 24 through to 27:
Workers' compensation is a system of compulsory no-fault mutual insurance administered by the state. Its origins go back to 19th century Germany, whence it spread to many other countries, including the United Kingdom and the United States. In Canada, the history of workers' compensation begins with the report of the Honourable Sir William Ralph Meredith, one-time Chief Justice of Ontario, who in 1910 was appointed to study systems of workers' compensation around the world and recommend a scheme for Ontario. He proposed compensating injured workers through an accident fund collected from industry and under the management of the state. His proposal was adopted by Ontario in 1914. The other provinces soon followed suit. Saskatchewan enacted The Workmen's Compensation Act, 1929, S.S. 1928-29, c. 73, in 1929.
Sir William Meredith also proposed what has since become known as the "historic trade-off" by which workers lost their cause of action against their employers but gained compensation that depends neither on the fault of the employer nor its ability to pay. Similarly, employers were forced to contribute to a mandatory insurance scheme, but gained freedom from potentially crippling liability. Initially in Ontario, only the employer of the worker who was injured was granted immunity from suit. The Act was amended one year after its passage to provide that injured Schedule 1 workers could not sue any Schedule 1 employer. This amendment was likely designed to account for the multi-employer workplace, where employees of several employers work together.
The importance of the historic trade-off has been recognized by the courts. In Reference re Validity of Sections 32 and 34 of the Workers' Compensation Act, 1983 (1987), 44 D.L.R. (4th) 501 (Nfld. C.A.), Goodridge C.J. compared the advantages of workers' compensation against its principal disadvantage: benefits that are paid immediately, whether or not the employer is solvent, and without the costs and uncertainties inherent in the tort system; however, there may be some who would recover more from a tort action than they would under the Act. Goodridge C.J. concluded at p. 524:
While there may be those who would receive less under the Act than otherwise, when the structure is viewed in total, this is but a negative feature of an otherwise positive plan and does not warrant the condemnation of the legislation that makes it possible.
I would add that this so-called negative feature is a necessary feature. The bar to actions against employers is central to the workers' compensation scheme as Meredith conceived of it: it is the other half of the trade-off. It would be unfair to allow actions to proceed against employers where there was a chance of the injured worker's obtaining greater compensation, and yet still to force employers to contribute to a no-fault insurance scheme.
Montgomery J. also commented on the purposes of workers compensation in Medwid v. Ontario (1988), 48 D.L.R. (4th) 272 (Ont. H.C.). He stated at p. 279 that the scheme is based on four fundamental principles:
(a) compensation paid to injured workers without regard to fault; (b) injured workers should enjoy security of payment; (c) administration of the compensation schemes and adjudication of claims handled by an independent commission, and (d) compensation to injured workers provided quickly without court proceedings.
I would note that these four principles are interconnected. For instance, security of payment is assured by the existence of an injury fund that is maintained through contributions from employers and administered by an independent commission, the Workers' Compensation Board. The principle of quick compensation without the need for court proceedings similarly depends upon the fund and the adjudication of claims by the Board. The principle of no-fault recovery assists the goal of speedy compensation by reducing the number of issues that must be adjudicated. The bar to actions is not ancillary to this scheme but central to it. If there were no bar, then the integrity of the system would be compromised as employers sought to have their industries exempted from the requirement of paying premiums toward an insurance system that did not, in fact, provide them with any insurance.
[16] This creation and evolution was referred to by Professor T. Ison, "A Historical Perspective on Contemporary Challenges in Workers' Compensation" (1996), 34:4 Osgoode Hall L.J., as creating a "uniquely Canadian product" (p. 810).
[17] In Pasiechnyk v. Saskatchewan (WCB), the fact that the Saskatchewan Board could determine on application whether or not an action was statute-barred by virtue of the operation of the WCB statute (in accordance with the historic tradeoff), was not in Sopinka J.'s view an encroachment on the authority on the Superior Court. The legislation, which is the same in Ontario, simply gives the Board the right to interpret its own statute, which creates the bar against the tort action upon receipt of the WC benefits. The Workers' Compensation Act, 1979, S.S. 1979, c. W-17.1 did not purport to stay actions before the Superior Court, but that the statutory power is directed to the right of the action itself. If it was construed that it somehow encroached on the court's power and therefore was unconstitutional, that construction would in effect "impair" the power of the provincial legislature to abolish common law rights which is afforded the promises pursuant to s. 96 of the Constitution Act, 1867, 30 & 31 Vict., c. 3. Although the decision of the tribunal will have "an effect" on the jurisdiction of the Superior Court, the effect does not raise a jurisdictional issue (ibid., at para. 19).
[18] The constitutionality of the workers' compensation statutes and their historic tradeoff which bars the possibility of an action against the employer was established in Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44, [2013] 3 S.C.R. 53, [2013] S.C.J. No. 44.
[19] That decision penned by Lebel and Karakatsanis JJ. refers in para. 26 to the concise description provided by Professor Peter Hogg of the general nature and operation of workers' compensation schemes which, in effect, compresses the description provided by Sopinka J. set out above.
[20] The justices noted, "provincial workers' compensation schemes generally cover persons employed in the relevant province, even if a workplace accident occurs outside of the province" (para. 27).
2) Extra territorial effect of workmans' compensation
[21] The immediate impact of the above last observation is that if workers who are employed in a particular province, have cause to work in another province during the course of their employment, they will be covered by the plan offered in the province in which they are normally employed. Usually this would apply to occasional or short term carrying out of the employment in the other province.
[22] Spencer v. Mansour's Ltd., [2000] N.S.J. No. 138, 2000 NSCA 59, Nova Scotia Court of Appeal, was such a case. A New Brunswick-based employee of a courier company made delivery in Nova Scotia, and during the course of that delivery was injured. He received benefits pursuant to the existing WCB statue plan in New Brunswick. Essentially, he received those benefits because of this occasional, temporary out of jurisdiction aspect of the New Brunswick plan. However as in the case at hand, the worker commenced a tort action against the employer in Nova Scotia.
[23] The employer challenged the existence of the tort action on the basis that under the Nova Scotia WCB legislation it would be barred. The Superior Court trial judge took a rather narrow approach to the jurisdiction of the Nova Scotian legislation in these circumstances, i.e., that it and the inherent bar to suit, having received benefits was not applicable.
[24] Justice Freeman, writing for the panel, stated how the Nova Scotia statute was silent as to the residence of the "worker" in the definition of a "worker" under the Act. The justice spoke of what I have referred to above as the out of jurisdictional aspect of the New Brunswick legislation, which also exists in the Ontario legislation. In fact, s. 15 of the Nova Scotia legislation [Workers' Compensation Act, R.S.N.S. 1989, c. 508 ("Nova Scotia Act")] permits that WC Board to grant leave to a worker resident in Nova Scotia to work outside the province without loss of benefits (refer to para. 9).
[25] Justice Freeman observed that although the section in effect created discretion for the provincial board to grant benefits to a worker normally working in Nova Scotia, who works out of that province, "considerations of comity within Canada would appear to have raised the discretion to a duty, save in extraordinary circumstances". That comity is expressed in the Interjurisdictional Agreement on Workers' Compensation.
[26] It has been said by counsel for the plaintiff that the Interjurisdictional Agreement in Workers' Compensation is not law. That being said, it still has evidentiary significance in the overall tapestry of provincial WCB schemes. The intent of the agreement, which all of the provinces and territories have signed onto, is:
1.2 The intent of this Agreement is as follows . . . . c) to ensure that employers are not responsible for the payment of assessments to more than one Board in respect of the earnings or some portion thereof of their employees who are employed in more than one jurisdiction...
1.3 The purposes of this Agreement are to ensure equity: a) for workers whose employment is of such a nature as to require performance of their duties in more than one jurisdiction; b) in the adjudication of claims involving either injury . . . due to employment in more than one jurisdiction; c) for employers in relation to assessments of the earnings of their employees, whose employment is of such a nature as to occur in more than one jurisdiction;
1.4 Each Board undertakes to ensure that through the provisions of this Agreement and mutual co-operation, no worker disabled as a result of injury or disease causally related to employment in Canada, is denied fair and equitable compensation.
[27] If one reviews the various forms available to workers pursuant to the agreement, it is obvious that they are designed to create some order amongst possible provincial jurisdictions and the aim is to get the worker the necessary coverage wherever they reside.
[28] Justice Freeman opined that these statements of principle combined with the out of jurisdictional aspects of the Nova Scotia Act, would provide for coverage of Mr. Spencer as a New Brunswick resident, even though he did not reside in Nova Scotia. That being said, he would be barred from instituting a tort action in Nova Scotia. This is the "historical tradeoff" at work throughout the tapestry of such schemes (para. 14).
[29] The reference to the "historical tradeoff" by Freeman J. harkens back to the description and evolution of Sopinka J. in Pasiechnyk v. Saskatchewan (WCB).
[30] It is that reference and the fact of the existence of the Interjurisdictional Agreement, that led Freeman J. to hold that the correct interpretation of the Nova Scotia Act s. 14, which bars a tort action having received WC benefits, is applicable, even though the worker was not in receipt of benefits from Nova Scotia, because to do so otherwise would be contrary to the definition of workers that do not have a residency requirement, "considerations of comity among provinces" and the expression of principle in the interjurisdictional agreement, and the reality of the mobility of workers especially so with a worker employed in the delivery industry (ref. paras. 21-23).
3) Comity
[31] Comity is defined by Black's Law Dictionary, 7th ed., Bryan A. Garner editor-in-chief as "courtesy amongst political entities, as nations, states or courts of different jurisdictions involving a specially mutual recognitions of legislative, executive, and judicial acts".
[32] In Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, [1990] S.C.J. No. 135, the Supreme Court of Canada was concerned about the recognition of foreign judgments (in this case an Alberta judgment) amongst provinces. Justice La Forest wrote on behalf of the court.
[33] Justice La Forest wrote [at para. 31] that part of this recognition is based on the idea of "comity" and quoted the United States Supreme Court in Hilton v. Guyot, 159 U.S. 113, 16 S. Ct. 139 (1895), at pp. 163-64 U.S.:
Comity in the legal sense is neither a matter of absolute obligation on the one hand, nor of mere courtesy and goodwill, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation having due regard both to international law and convenience, and to the rights of its own citizens or other persons who are within the protection of its laws.
(Emphasis added)
[34] Justice La Forest believed that "[t]he considerations underlying the rules of comity apply with much greater force between the units of a federal state, and I do not think it much matters whether one calls these rules of comity or simply relies directly on the reasons of justice, necessity and convenience . . . " (ref. ibid., at paras. 35 and 36).
[35] In La Forest J.'s view, "[i]t seems anarchic and unfair that a person should be able to avoid legal obligations arising in one province simply by moving to another province" (ref. ibid., at para. 41).
4) The provincial superior courts
[36] Justice La Forest in Morguard described the Canadian federal court scene in the following [at para. 37]:
The Canadian judicial structure is so arranged that any concerns about differential quality of justice among the provinces can have no real foundation. All superior court judges -- who also have superintending control over other provincial courts and tribunals -- are appointed and paid by the federal authorities . . . all are subject to final review by the Supreme Court of Canada, which can determine when the courts of one province have appropriately exercised jurisdiction in an action and the circumstances under which the courts of another province should recognize such judgments.
[37] The Superior Courts have inherent jurisdiction to control their own processes.
[38] An example of this is Spencer v. Mansour, whereas was observed, the Nova Scotia Court of Appeal applying principles of comity and fairness, held that a tort action commenced in Nova Scotia by a recipient of WC benefits in New Brunswick should be stayed or dismissed because the embodiment of that historic tradeoff is contained within comparable Nova Scotia legislation.
[39] Pe Ben Oilfield Services (2006) Ltd. v. Arlint, [2019] A.J. No. 1404, 2019 ABCA 400 is a similar demonstration of the power of the Superior Court. Arlint was an employee of Pe Ben Oilfield Services, who was operating a company vehicle near Dawson Creek in British Columbia, wherein she was rear-ended by another employee of the same company in a company vehicle. Arlint applied for the BC WCB benefits and was denied. Arlint then successfully applied for benefits from the Alberta WCB.
[40] Two years later Arlint commenced a tort against her employer in British Columbia. That possibility could not have occurred in Alberta because of s. 23 of the Workers' Compensation Act, R.S.A. 2000, c. W-15, which provides a prohibition against the launching of a tort action, once one has elected to receive benefits.
[41] Pe Ben sought a prohibition against Arlint and (the WCB of Alberta) from pursuing the B.C. tort action. There was no prohibition per se sought against the Supreme Court of British Columbia from hearing the matter.
[42] The Superior Court judge hearing the motion had assumed that the application by Pe Ben should have been before the B.C. Supreme Court (which did not happen) and that that court would have likely dismissed the motion. It is that second assumption that the panel of the Alberta Court of Appeal disagreed with. BC had the primary jurisdiction, i.e., that is where the tort action was, but that assumption was contrary to private international law, conflict of laws and comity (ref. ibid., at para. 8).
[43] The panel noted that private international law and conflict law has generated three questions: (1) whether a court has jurisdiction to hear a dispute (jurisdiction simplicitor); (2) which law will a court apply in resolving a dispute (i.e., choice of law); and (3) whether a court will enforce the decision of a court in another jurisdiction.
[44] What was at stake in Pe Ben (and in our own case) are the first two questions. "It is a general principle that a state has exclusive jurisdiction within its own territories and that other states, within Canada other provinces, respect that jurisdiction. The law then to be applied in tort is the law of the place where the activity occurred, the lex loci delicti" (ref. ibid., at para. 12). The authority for this rule of lex loci delicti is: Tolofson v. Jensen, [1994] 3 S.C.R. 1022, [1994] S.C.J. No. 110.
[45] Therefore, the panel reasoned, the law of where the accident took place should prevail, but "it may be open for the courts in British Columbia, pursuant to British Columbia conflicts of law jurisprudence, to decide to apply s. 23 of the Alberta Workers' Compensation Act [the litigation bar], but that is a question for the British Columbia courts, not this Court" (Pe Ben, supra, at para. 14).
[46] In other words, the Alberta court was not going to interfere with how the British Columbia court exercised its jurisdiction.
[47] The Alberta panel mused based on the dissent in Tolofson, that maybe there would be an exception to lexi loci delicti, based on the notion of "public policy". That the application of lexi loci delecti could lead to an injustice especially given the "historic compromise underlying workers' compensation [that] has been universally adopted in Canada" (ibid., para. 16).
[48] The Jurisdictional Agreement of Workers' Compensation Boards was silent with respect to whether an action barred in one jurisdiction was barred in all signatory jurisdictions.
[49] The panel concluded with the reference to "comity" as touched upon in Morguard, especially how there was a greater agreement for comity amongst units in a federal state (ibid., para. 21).
[50] But that being said, that is an issue for the British Columbia court to decide. The Superior Court of Alberta had no right to pre-empt the exercise of jurisdiction in a coordinate court.
[51] To a greater extent, the application of lex loci delicti is a red herring, as in our case, the tort action was in Ontario which obviously was not the location of where the accident took place but as agreed upon at the outset was the forum of convenience. Also, the principle of lexi loci delicti presupposes that the tort action is permissible, if it is not by virtue of the historic compromise it is barred.
[52] What Pe Ben leaves us with is whether the Superior Court of Ontario, should as did the Nova Scotia Court of Appeal, apply based on principles of comity, the historic tradeoff or historic compromise (referred to by the panel in Pe Ben) which exists in Ontario legislation.
5) Abuse of process
[53] Related to the Superior Court's inherent power to control its own processes is the identification of a possible abuse of process as contemplated by rule 21.01(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[54] The judgment of the Supreme Court of Canada in Toronto (City) v. C.U.P.E., Local 79 (2003), 2003 SCC 63, 68 O.R. (3d) 799, [2003] 3 S.C.R. 77, [2003] S.C.J. No. 64, penned by Arbour J., dealt with whether or not it was permissible for a union to "re-litigate" as it were the fact of the criminal conviction of one of its members.
[55] Abuse of process is one of three related common-law doctrines, along with issue estoppel (which would probably include election estoppel) and collateral attack.
[56] Dealing specifically with "abuse of process", Arbour J. states, "Judges have an inherent and residual discretion to prevent an abuse of the court's process. This concept of abuse of process was described at common law as proceedings "unfair to the point that they are contrary to the interest of justice" (ibid., para. 35).
[57] Justice McLachlin (as she then was) expressed that this ". . . abuse of process may be established where (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community's sense of fair play and decency . . . [T]he doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice" (R. v. Scott, [1990] 3 S.C.R. 979, [1990] S.C.J. No. 132, at p. 1007 S.C.R.).
[58] Justice Goudge had expanded [at para. 55] upon this concept in Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481, [2000] O.J. No. 4607 (C.A.) (revd 2002 SCC 63, [2002] 3 S.C.R 307, [2002] S.C.J. No. 64, "The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel" (Toronto (City), supra, at para. 37).
[59] Justice Arbour wrote referring to D.J. Lange, The Doctrine of Res Judicata in Canada (Toronto: Butterworths, 2000), at pp. 347-48, that the policy grounds that support the doctrine are (1) a need for finality in litigation; and (2) no one should be twice vexed by the same cause" (Toronto (City), supra, at para. 38).
[60] Other policy grounds are to preserve the court's and litigant's resources, to uphold the integrity of the court system by finding consistent results (Toronto (City), supra, at para. 38).
[61] The attraction of the doctrine is that it is "unencumbered by the specific requirements of res judicata while offering the discretion to prevent re-litigation essentially for the purposes of preserving the integrity of the court's process" (ibid., para. 42).
[62] Similar sentiments were expressed by Armstrong J. in Niagara North Condominium Corp. No. 125 v. Waddington, [2007] O.J. No. 936, 2007 ONCA 184 when he stated [at para. 21] having referred to Toronto (City) v. C.U.P.E. "Abuse of process is a doctrine designed to provide a remedy in a variety of situations including a remedy for the unfairness of relitigating the same issue against the same party in circumstances where issue estoppel does not apply."
IV. Analysis
I. Question of law
[63] As stated at the outset, the defendant has moved pursuant to rule 21.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for a determination of a question of law, which may dispose of all or part of the tort action in Ontario. The question at stake is the election by the plaintiff to receive WC benefits in Alberta, a bar to a tort action in Ontario?
[64] The facts as noted by the two decisions of the Workplace Safety and Insurance Appeals Tribunal of Ontario, namely, October 2, 2018 and June 26, 2019 are not in issue. Nor is the continued receipt of the benefits to this day an issue. Counsel for the plaintiff has gone so far as to advance that the received benefits would be deductible in the event of an award in the tort claim as collateral benefits.
[65] In the form executed by the plaintiff to obtain WC benefits pursuant to the Alberta statute, the plaintiff endorsed the following paragraph which was inserted and acknowledged, "should my claim be accepted, I waive and forego any rights to compensation in any other jurisdiction, and I will not apply for or accept any benefits from such other jurisdictions unless authorized to do so by the Worker's Compensation Board of Alberta". The plaintiff never received the latter authorization.
[66] Given that the parties engaged with the Workplace Safety and Insurance Appeals Tribunal of Ontario, it must be decided initially what impact, if any, do the decisions of that tribunal have upon the request for a determination of a question of law to this court.
A. WSIAT Decision October 3, 2018
[67] The decision of Board Member Kalvin of October 3, 2018 was in response to an application by a defendant for a determination pursuant to s. 31 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A (the "WSIA") of Ontario, to the effect that the plaintiff by virtue of the election to receive benefits in Alberta was statute-barred by the Ontario statute or as the member observed "the respondent [the plaintiff's] right to commence an action is taken away". The plaintiff's response was to object to the Tribunal's jurisdiction to hear this application. It should be noted in passing that the Tribunal's jurisdiction to hear such applications, assuming the receipt of the benefits, was pursuant to the Ontario statute, and make a determination of "no action" was, by the wording of the statute final and unassailable (ref. s. 31(2) and (3)).
[68] The tribunal member took the position that initially it was the jurisdiction issue that had to be decided. The member found that by virtue of the description of those who can bring such an application as the defendant had, namely, "parties to an action", the tribunal had jurisdiction because the defendant/applicant was a party to the Ontario tort action.
[69] One of the planks to the plaintiff's jurisdiction argument was that the Alberta Workers' Compensation scheme had in effect "divested" from this action and would not be pursuing a subrogated interest. The board member was puzzled as to the meaning of this correspondence from the Alberta WCB adjuster. The member mused that possibly the defendant (applicant) was not a protected schedule employer. Nonetheless, if the worker elects to claim benefits "then the worker's right to sue passes or is subrogated to the board" (ref. para. 10 of the decision).
[70] The problem, according to the board member, was "what action" did the letter of divestation refer to? There was no action in Alberta. The Alberta WCB was unique in that the decision as to whether the worker was statute-barred because the election was to be made by the Alberta provincial court (i.e., the Alberta Queen's Bench). Ultimately, the Board member concluded that the correspondence had no bearing on the jurisdiction of the WSIAT in Ontario, which had exclusive jurisdiction to decide such an issue under the Ontario statute.
[71] The member, Member Kalvin, having denied the jurisdiction objection by the plaintiff/respondent requested further information or clarification from the Alberta WCB before the no right to sue application could be heard on its merits.
B. WSIAT Decision June 26, 2019
[72] Board Member Kalvin again presided. The member concluded that the right to sue in Ontario by the plaintiff was not taken by the WSIA. Noting the applicable provisions of the WSIA, the member observed that "(T)hus the right to sue provisions only apply in circumstances where a worker 'sustains an injury. . .' that entitles him or her to benefits under the insurance plan" (emphasis added, para. 10).
[73] The exemption to the basic description of an injured worker as contained in the WSIA which touched upon casual or temporary work outside the province by a worker hired and residing in Ontario by an Ontario-based company did not apply. That was because both plaintiff and defendant, although residents of Ontario, were based and working in Alberta. This was not work of the outer jurisdictional nature referred to before.
[74] The board member concluded that this plaintiff worker would not have been entitled to the benefits of the WSIA and therefore the WSIA and its version of the historical tradeoff did not apply in this case. The situation was not saved by the existence of the Interjurisdictional Agreement on Workers' Compensation (the "IJA") as similar to what counsel for the plaintiff had stated that it was not law. The IJA was not intended to displace the provision, which defines who qualifies for benefits, of the various provisional WCB statutes.
[75] The totality of the member's finding was that he could not apply the WSIA in this case. The member concluded that "the question of whether the respondent's civil action contributes to an abuse of process is to be determined by the adjudicative body in which the action has been filed, namely, the Ontario Superior Court of Justice" (ref. para. 16).
[76] The WSIAT had no authority to determine the issue of whether the tort action was barred by virtue of the statutory regime.
[77] This decision by the member is understandable. The WSIAT is a creature of statute. It can only operate within the confines of the legislation. The finding of no jurisdiction to make the ruling as opposed to having jurisdiction to hear the application does not determine the issue of whether the plaintiff should be barred from pursuing the tort action. This court can still decide that issue based on principles of comity, in particular, respect for the legislation of another province.
[78] The provision of WCB insurance is country wide. Each plan incorporates a provision that reflects the historical tradeoff, or compromise as Sopinka J. described in Pasiechnyk reiterated by Lebel and Karakatsanis JJ. in Marine Services International Ltd.
[79] As was noted in Morguard Investments Ltd. v. De Savoye, La Forest J. indicates that rules of comity are even more applicable amongst units of a foreign state. In fact, the underlying focus for comity relies on reasons of justice, necessity and convenience.
[80] The existence of such plans across the country exist for the protection of workers and facilitate access to a ready source of monthly benefits in contrast to the ponderous obtaining of same pursuant to a tort action. Additionally, employers possess a similar certainty of exposure by contributing to such plans. For the employers, it is analogous to the purchase of a form of insurance.
[81] As La Forest J. observed in Morguard [at para. 41], it would "seem anarchic and unfair that a person should be able to avoid legal obligations arising in one province by simply moving to another province".
[82] The existence of principles of comity and the existence of the IJA, compelled Freeman J. in Spencer v. Mansour to find that a tort action by an employee was barred by the intent of Nova Scotian statute. This court is inclined to follow the precedent established by Freeman J. by the Nova Scotia Court of Appeal. To hold otherwise would threaten the fabric of WCB regimes across the country. There is no good reason to establish a tort haven amongst provinces that would encourage the circumventing of the statute and the historical tradeoff by simply moving to a different province.
[83] Therefore, by applying principles of comity and for reasons of justice, necessity and convenience this court finds that the plaintiff is statue-barred with respect to his tort action in this province.
2. Abuse of process
[84] The defendant has alternatively moved pursuant to rule 21.01(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to stay or dismiss the tort action as an "abuse of process".
[85] There is no escaping from the fact that the tort action in Ontario is a relitigating of the injuries that resulted from the accident of August 24, 2012 in Dawson Creek during the employment of the plaintiff.
[86] No doubt when the election to receive benefits in accordance with the Alberta statute was made, the employer would have thought of there being finality to any obligation relative to the injuries of his worker. That allusion of finality would have been shattered by the prolonged process in the Superior Court of Ontario. The employer no doubt wondered what benefit was derived from paying into the Alberta WCB.
[87] The election to receive WC benefits was unequivocal.
[88] Again with reference to Black's Law Dictionary, estoppel by election is defined as "the doctrine by which a person is compelled to choose between accepting a benefit under a legal instrument or retaining some property right to which the person is already entitled, an obligation imposed on a party to choose between alternative rights or claims, so that the party is entitled to enjoy one". This is the very essence of the historic tradeoff or compromise.
[89] By allowing the tort to proceed the court would be undermining the election. Pe Ben Oilfield and Spencer v. Mansour and indeed the WSIAT decision of June 26, 2019 all recognize the possibility that a tort action on the same issues as the previous election pursuant to a WSB statute would be considered by a Superior Court of a province as an "abuse of process".
[90] This court so finds the tort action represents an attempt at relitigation of a matter covered by insurance to which the defendant had contributed, a circumvention of the historic trade off as contained in the WSIA, and an opportunity for double recovery.
3. The worker's compensation benefits as collateral benefits
[91] Given the findings above, this matter is academic and need not be addressed by this court.
4. The timeliness of the motion
[92] Rule 21.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that a motion under rule 21.01 shall be made promptly and a failure to do so may be taken into account by the court in awarding costs.
[93] Counsel for the plaintiff has argued strongly that this motion was not brought with alacrity and should be dismissed outright notwithstanding the wording of the rule.
[94] As noted in Part I of the judgment, a Statement of Claim was served upon the defendant June 10, 2014. Counsel for the defendant responded within 11 days as to the fact that their firm was retained by an insurance company. A notice of intent to defend was enclosed along with a request for various documentation that would normally be made.
[95] The same counsel, presumably after reviewing the documentation requested by the insurance company on March 5, 2015, raised the issue of the plaintiff having made an election under WSIA and therefore the action would be stayed. Obviously, counsel was mistaken as the plaintiff had elected and received benefits from the WCB statute of Alberta.
[96] By January 19, 2016, a different counsel within the original firm wrote to a different counsel for the plaintiff that he now had carriage of the file. The former within two weeks of his prior correspondence, wrote again to the new lawyer of the plaintiff to advise that he was reviewing the file and that he noted the accident had taken place in British Columbia and there may be a jurisdictional issue and consequently he was waiting for instructions. It would appear from this exchange the same firm's counsel was thinking about "lex loci delecti".
[97] As of September 9, 2016, the second counsel to the defendant had left the original firm and a third counsel within that firm had assumed carriage. That counsel was now writing to the second counsel of the plaintiff who had now joined the law firm which has represented the plaintiff to the day. The usual pleasantries were forwarded.
[98] September 20, 2016, the legal administrator (not the lawyer) of the second firm for the plaintiff was writing to the third counsel at the firm representing the defendant to immediately request the Statement of Defence, so that the matter could proceed and examinations for discovery could be set up.
[99] Within three days, fourth counsel for the defendant's firm responded requesting an indulgence to review the file and determine if what his predecessors had raised was still current.
[100] By October 18, 2016, the legal administrator of the second firm for the plaintiff was getting impatient with respect to the receipt of the Statement of Defence. That impatience was reiterated November 10, 2016 by the legal administrator.
[101] The fourth lawyer from the defendant firm responded to the legal administrator that same day raising the fact that Ontario might not be the proper jurisdiction for this action, and that a motion to dismiss was being considered based on that point. An indulgence with respect to the defendant being in default was requested. The legal administrator was not impressed and wrote to that effect on November 25, 2016. December 5, 2016, the fourth lawyer of the defendant's firm submitted the Statement of Defence a pleading that squarely placed the jurisdictional issue on the table.
[102] From that point onwards there was the usual correspondence exchanging available dates and as previously mentioned the examinations for discovery were completed by December 5, 2017. Part of the problem in establishing mutually agreed upon times for the discovery was that the defendant resided for a large portion of the year in Alberta.
[103] By May 30, 2017, the fourth lawyer of the firm representing the defendant had departed the firm. The new fifth lawyer suggested examinations for discovery by video conference to address the residency issue of the defendant. That counsel in communications with the third counsel at the firm representing the plaintiff was ultimately able to arrange an in-person discovery of the defendant.
[104] In the correspondence dated December 20, 2017 to the third counsel for the plaintiff, the fifth lawyer, reflected on how he was seeking instructions with respect to the action being brought in Ontario (forum conveniens), that they were contemplating a Right to Sue application before Worker's Compensation Board of Alberta. The divestment letter from the third counsel for the plaintiff was viewed as possibly allowing the tort action.
[105] By February 16, 2018, the fifth lawyer brought an application before the WSIAT (Ontario) for a s. 31 declaration, right to sue.
[106] We know from previous references in this judgment the parties were then engaged in the processes before WSIAT which produced two decisions, the latest being June 26, 2019. By March of 2018, counsel for the plaintiff had passed a trial record. Obviously, everyone thought it was worthwhile to wait out the process before the WSIAT.
[107] From this rather laborious recitation of the correspondence and steps taken by numerous counsel, the following emerges: (1) numerous hands of both sides have touched this file, time is lost as each new counsel had to come up to speed with respect to the file; (2) by January 2016, the defence was starting to raise the spectre of jurisdiction and then that morphed into the application of the statutory bar against the tort action, if there had been an election to receive benefits; (3) there were numerous ideas by the defence as to where to bring an application to determine the right to sue, the Alberta WCB was a candidate, but unlike Ontario the WCB did not have the definitive word on that issue, that was perceived to be the Queen's Bench of Alberta; (4) even after the WSIAT was chosen by the defendant to apply as to the right to sue, the plaintiff challenged the jurisdiction of the WSIAT to hear the application. Then the WSIAT concluded that the Tribunal had jurisdiction to hear the application but that the Ontario statute was not applicable since the plaintiff did not come within the definition of "worker"; and (5) throughout all of this there was apparently no precedent in Ontario to cut through this Gordian knot.
[108] So if the choice of this court is to follow the language of rule 21.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and award costs, or to depart from that language and to dismiss the motion by the defendant, I would be inclined to go with the former.
[109] Yes, there was a waste of time as the original firm for the defendant kept re-assigning the file and meanwhile on the plaintiff's side there were changes of lawyer. That is the reality in the profession. Obviously, everyone wishes it were better, that firms were more efficient. One could speculate that the pandemic will force everyone to be more efficient with scarce resources, but that is an issue better left to the Law Society and the pundits.
[110] This was a convoluted issue for the defendant to resolve, there was no clear precedent in Ontario. Their instincts were sound, namely, that having elected for WC benefits, the plaintiff was, consistent with the historic tradeoff, barred from launching a tort action, but in which province and before whom?
[111] Given the significance of the issue, the fact that all counsel started to become alive to the issue from the Statement of Defence on, and the fact that any delay can be addressed by costs thrown away, this court is not inclined to dismiss the motion. Therefore, for all of the above and the point of view of rule 21.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the plaintiff is statute-barred from pursuing a tort action in Ontario, and additionally in accordance with rule 21.01(3)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the tort action in Ontario is ruled to be an abuse of process, and accordingly the tort action is stayed and dismissed.
[112] Given the fact that counsel to their credit were able to resolve the issue of costs between them, there will be no order as costs.
Motion allowed.