Court File and Parties

COURT FILE NO.: CV-21-00656668 DATE: 2021-06-14 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: K. YEBOAH, Plaintiff AND: BAD BOY FURNITURE WAREHOUSE LIMITED, et. al., Defendants

BEFORE: Mr. Justice Chalmers

COUNSEL: J. Thomas for the Plaintiff R. Nixon for the Defendants

HEARD: June 14, 2021 by teleconference

Endorsement

[1] The Plaintiff brings this action seeking damages for constructive dismissal. The Defendant takes the position that the action is barred pursuant to the Workers Safety and Insurance Act (the Act). The Defendant brought an application to the Workers Safety and Insurance Appeals Tribunal (WSIAT) for a determination of the issue. A hearing at WSIAT has been scheduled for February 17, 2022. The Defendant brings this motion to stay the action pending the decision by the WSIAT. The Plaintiff argues that he should be permitted to continue with the action notwithstanding the fact the matter is before WSIAT.

[2] This matter came before me in Civil Practice Court on May 19, 2021 to schedule the motion for a stay. It was my view that the matter could benefit from a case conference. The purpose of the case conference is to identify the issues that are contested and to explore methods to resolve the issues. If the issues cannot be resolved, the motion would be scheduled, and a timetable established at the case conference.

[3] The Plaintiff claims that he was constructively dismissed on January 8, 2021. The Statement of Claim was issued on February 9, 2021. The Defendant states that in the Statement of Claim the Plaintiff alleges that he was constructively dismissed as a result of a hostile work environment. The Defendant delivered a Notice of Intent to Defend. The Defendant served a Demand for Particulars on March 20, 2021. In the Response to the Demand for Particulars, the Plaintiff made further claims with respect to the hostile work environment. The Defendant was of the view that the claim for damages for constructive dismissal arising from the hostile work environment is barred by the Act. On April 23, 2021, the Defendant filed a Right to Sue Statement with the WSIAT for a determination of the Plaintiff’s right to proceed with this action. By letter dated June 3, 2021, the WSIAT scheduled the hearing for February 17, 2022.

[4] The Plaintiff takes the position that the claims for mental distress and defamation arose as a result of the Defendants’ actions which occurred after his employment was terminated and therefore the action is not barred by the Act.

[5] On the basis of the submissions made at the case conference, I am satisfied that there is no opportunity to settle the motion and it is necessary to schedule the motion. I am of the view that the time required for the oral hearing is a half day. I schedule the motion for January 11, 2022.

[6] I note that the date for the motion to stay the action is scheduled to be heard about four weeks before the WSIAT hearing to decide whether the action is barred. Counsel for the Plaintiff stated that in light of the scheduling of the motion, he will be seeking instructions from his client with respect to whether he is prepared to consent to a stay pending the decision by the WSIAT. He stated that he will obtain instructions by June 18, 2021. If the Plaintiff does not agree to stay the action pending the WSIAT decision, I establish the following timetable on consent:

a. Defendants’ motion record to be delivered by July 30, 2021;

b. Plaintiff’s responding record to be delivered by August 30, 2021;

c. Defendants’ factum to be delivered by September 30, 2021;

d. Plaintiff’s factum to be delivered by October 29, 2021;

e. Reply factum to be delivered by November 15, 2021; and

f. Hearing January 11, 2022 for a half-day.

[7] I remain seized with respect to any issues with respect to the timetable of scheduling of the motion.

DATE: JUNE 14, 2021