COURT FILE NO.: CV-18-601440-0000
DATE: 2022 09 15
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sunil Kumra v. Anthony Stagliano
BEFORE: Justice Ranjan Agarwal
COUNSEL: Courtney Madison, Counsel for the Plaintiff
Jeff Aitkens, Counsel for the Defendant
HEARD: September 2, 2022
E N D O R S E M E N T
[1] Over 5 years ago, the plaintiff Sunil Kumra was hurt in a car accident. The trial is scheduled for May 2023. Kumra wants to get on with his life.
[2] Now, at the last minute, the defendant Anthony Stagliano moves for a stay of proceedings or an indefinite adjournment of the trial. Stagliano relies on another legal process he has recently started that may bar Kumra’s claim. But just less than a year ago, Stagliano represented to the court that this same process would not delay moving the action forward.
[3] To give effect to the culture shift proclaimed by the Supreme Court of Canada almost 10 years ago in Hryniak v Mauldin, Stagliano’s request must be denied.
[4] He told Kumra and the court he was ready for trial in May 2023. Now he’ll have to be.
Facts
[5] In June 2017, Kumra, a tow truck driver, was loading a motorcycle onto his truck by the side of the highway when he was hit by Stagliano. Kumra suffered a fractured sternum and organ lacerations.
[6] Kumra sued Stagliano. The statement of claim was inadvertently issued in Toronto.
[7] Stagliano denies liability. He served a jury notice. The defence was filed in Brampton. Stagliano is represented by Aviva Canada’s inhouse legal department.
[8] At first, Stagliano didn’t rely on any defences under the Workplace Safety and Insurance Act, 1997, SO 1997, c 16. Section 28(1) of WSIA states that a worker employed by a Schedule 1 employer may not commence an action for their injury or disease against any other worker employed by a Schedule 1 employer.
[9] The Workplace Safety and Insurance Appeals Tribunal has exclusive jurisdiction to determine whether the right to commence an action is taken away. WSIAT’s decision is “final and not open to question or review in a court” (sections 31(2) and (3)).
[10] Kumra was examined for discovery in August 2019. Stagliano says that Kumra was an employee of Towtal Roadside Solutions at the time of the accident.[^1] Stagliano states he is the self-employed owner of Primetime Electricians and both Primetime Electricians and Towtal Roadside were Schedule 1 employers at the time of the accident. To be clear, I make no findings on whether Kumra or Stagliano were workers employed by Schedule 1 employers when the accident happened.
[11] In February 2020, Stagliano notified Kumra that he intended to rely on the WSIA defence. Kumra, reasonably, asked Stagliano to amend his statement of defence and for documentary and oral discovery on this new defence.
[12] In January 2021, Justice Trimble, to regularize the proceedings, ordered that the action be transferred to Brampton.
[13] Shortly after that, Kumra set this action down for trial by serving a trial record.
[14] In May 2021, Kumra asked Stagliano to “move for the WSIAT application asap.”
[15] In August 2021, the parties attended Assignment Court—Stagliano agreed to a pre-trial conference in late 2022 and a trial in the May 2023 or any 2024 sittings. He picked these dates, in part, because he was anticipating a ruling from WSIAT: “I’m fine with May 2023 or either 2024 trial sittings, i [sic] think 2024 may be best given the wsiat [sic] hearing isn’t likely going to be until mid-late 2022.” Stagliano’s confidence in the timing of the WSIAT hearing was misplaced given that, as discussed below, he didn’t start the Right to Sue Application until June 2022.
[16] In November 2021 (almost 2 years after Stagliano first raised the WSIA defence), Justice Mandhane granted Stagliano leave to amend the statement of defence. Kumra consented to the motion—he says he did so in part on the evidence filed by Stagliano that there will be no “delay in moving this action forward” and no prejudice to Kumra.
[17] In June 2022 (more than 2 years after Stagliano first raised the WSIA defence), Stagliano started a Right to Sue Application seeking an order that Kumra’s “is barred from bringing an action against [Stagliano] pursuant to Sections 27 and 28 of the Workplace Safety and Insurance Act.” Stagliano didn’t serve Towtal Roadside, which may have delayed intake of the application by another two months.
[18] Kumra was scheduled to attend an orthopaedic defence medical assessment on September 11, 2022.
[19] The pre-trial conference is on November 23, 2022. The trial is scheduled for the May 2023 sittings.
[20] The Right to Sue Application is not yet with the scheduling unit. The parties don’t know when WSIAT will rule on the application
The Parties’ Positions
[21] Stagliano moves for an order staying this action until determination of the Right to Sue Application. He also seeks an order adjourning the pre-trial conference and trial until the Right to Sue Application is decided. Stagliano’s argument is simple—if WSIAT bars this action, the pre-trial conference and trial will be unnecessary. If the parties proceed with one or both events, they will waste both their resources and the court’s resources and jury time litigating the issue. Stagliano also says that the pre-trial conference will be unproductive if the Right to Sue Application is pending. He implies that he’ll be less willing to settle the case if there is a chance WSIAT will bar Kumra’s action.
[22] Kumra opposes both the stay and adjournment. He says that he’ll be prejudiced by the delay: he “remains in a precarious financial situation” and already has a “hazy” recollection of the events that are now 5 years ago. He has already obtained experts’ reports on his disability and inability to work. He also says Stagliano needs leave because Stagliano consented to placing this action on the trial list.
[23] At the oral hearing, the parties explored other options, such as adjourning the trial to the September 2023 trial sittings. After the hearing, I was advised that the September 2023 trial sittings are closed, meaning that an adjournment would be to at least the May 2024 trial sittings. The parties also explored whether the pre-trial conference judge should decide this issue. Ultimately, Stagliano doesn’t want to proceed in November or March 2023 and Kumra doesn’t want to proceed much later than 2023.
Legal Framework
Consequences of Setting Down
[24] A party who has set an action down for trial shall not initiate or continue any motion or form of discovery without leave of the court, subject to certain limited exceptions (rule 48.04(1) of the Rules of Civil Procedure). This rule was changed in May 2021—under the old rule, any party who has consented to the action being placed on a trial list also cannot initiate or continue motions (O Reg 343/21, s 1).
[25] The test for granting leave is whether the moving party has established that there has been a “substantial or unexpected change in circumstances” such that a refusal would be manifestly unjust. See Belanger v Shaw, 2021 ONSC 153 at para 50.
[26] When an action is placed on the trial list, all parties shall be deemed to be ready for trial (rule 48.07).
Stay of Proceedings
[27] The power to stay a case under section 106 of the Courts of Justice Act, RSO 1990, c C.43, should be exercised sparingly. A stay will be ordered only in the clearest cases. To justify a stay of proceedings, two conditions must be met, one positive, and the other negative: (a) the defendant must satisfy the court that the continuance of the action would work an injustice because it would be oppressive or vexatious to them or would be an abuse of the process of the court in some other way; and (b) the stay must not cause an injustice to the plaintiff. On both, the burden of proof is on the defendant. See Canadian Express Ltd. v Blair, 1992 CanLII 7535.
[28] Factors in determining prejudice include: the likelihood and effect of the two matters proceeding in tandem in two forums; the possibility and effect of different results; the potential for double recovery; and the effect of possible delay. See Farris v Staubach Ontario Inc., 2004 CanLII 11325 (Ont Sup Ct) at para 16.
Adjournments
[29] The court enjoys wide latitude in deciding whether to grant or refuse the adjournment of a scheduled civil trial (rule 52.02). In exercising this discretion, however, the judge should balance the interests of the plaintiff, the interests of the defendant, and the interests of the administration of justice in the orderly processing of civil trials on their merits. In any particular case, several considerations may bear on these interests. See Khimji v Dhanani, 2004 CanLII 12037 (Ont CA) at para 14.
[30] In Ariston Realty Corp. v Elcarim Inc., 2007 CanLII 13360 (Ont Sup Ct) at para 34, Justice Perell identified several factors the courts have considered. In both that decision and Khimji, the courts stressed the importance of a “just determination”: “Courts should not be too quick to deprive litigants of a decision on the merits.”
[31] Field v Zainab, 2022 ONSC 2759, is like this case. There, the trial was scheduled for the June 2022 sittings. In April, the defendants filed a Right to Sue Application. As here, they asked for an adjournment. Justice Wilson denied the request:
The Defendant has had years to bring its WSIAT application if it was so inclined. Counsel apparently attended at least 2 pre-trials, perhaps 3, and there was no suggestion that a WSIAT hearing was necessary prior to trial. When counsel fix trial dates and advise the Court the case is ready for trial, that is a significant event and it means that all interlocutory matters have been dealt with and there are no barriers to the case being tried. No satisfactory explanation was offered by counsel for the Defendant for the filing of the WSIAT application at the eleventh hour. In my view, if the Defendant and/or Third Party felt that the application was necessary, it would have been filed years ago. At this point, it is unfair to the Plaintiff to further delay this case so that an application can be heard and a decision rendered at some point many months down the road. Had the pandemic not interfered, this trial would have proceeded 2 years ago without the application being heard.
[32] Stagliano distinguishes this case on the basis that the adjournment there was sought around 6 weeks before the trial sittings. Stagliano is seeking an adjournment 8 months before the trial sittings.
Disposition
[33] I don’t believe Stagliano needs leave to bring this motion since he didn’t set the action down for trial. He consented to placing this action on the trial list but the rule was amended in May 2021. Now, there are no adverse consequences to doing so. In any event, I would have granted leave to Stagliano to move for a stay or adjournment. Given that Stagliano is asking to adjourn the pre-trial conference and trial dates, which can only happen after the action is set down for trial and placed on the trial list, that request appears to fall within one of the exceptions contemplated by rule 48.04(1).
[34] That said, I dismiss Stagliano’s motion for a stay of proceedings or an adjournment.
[35] For almost two years, Stagliano failed to investigate or plead whether he had a WSIA defence. He could have sought particulars or examined Kumra sooner. Surely Stagliano knew whether his company was a Schedule 1 employer. Kumra pleaded that he’s a tow truck driver and was loading a motorcycle, on the side of the highway, onto a flatbed. The facts to plead a WSIA defence were all there a long time ago. Again, to be clear though, I make no findings on that issue—I don’t have jurisdiction to decide whether Kumra has a right to sue under WSIA and my reasons shouldn’t be read as supporting one view or the other.
[36] When Stagliano finally examined Kumra in August 2019 and discovered the facts he now relies on, he nonetheless waited 6 months before advising that he intended to rely on the defence.
[37] Then, for inexplicable reasons, he did nothing between February 2020 and November 2021. For over 20 months, he sat on his hands. Even worse, he said he was ready for trial and picked trial dates that presumed this issue would be decided before then. When he agreed to place the action on the trial list, he knew the consequences—he was telling Kumra and the court that he was ready for trial.
[38] Stagliano compounded matters by making a misrepresentation to Kumra. He obtained Kumra’s consent to amend his defence by promising there would be no delay and no prejudice. Now, he has done an about-face and is doing what he said he wouldn’t—using the Right to Sue Application to try to delay the pre-trial conference and trial.
[39] At the oral hearing, Stagliano’s lawyer offered an oblique explanation. Something slipped. Stagliano has had the benefit of legal advice throughout this entire proceeding. Even if there were an inadvertent slip in failing to identify the WSIA defence sooner or in filing the application, Kumra had a right to rely on Stagliano’s promise in November 2021 that this issue would not delay the trial of the action.
[40] I note that Stagliano didn’t have to make a Right to Sue Application. He has raised several other defences, which have undergirded his case for almost five years. Nothing requires him to assert a WSIA defence or start a Right to Sue Application. He could have abandoned that defence given the passage of time and his representation that he was ready for trial. His insistence on pursuing it now and using it to delay the trial feeds Kumra’s view that this motion is strategic.
[41] All that said, Stagliano’s argument has some appeal. It is hard to see how the parties should be allowed to use precious court time and resources to litigate a trial of this action where there is a possibility that either just before trial or while the decision is on reserve, WSIAT rules that Kumra has no right to sue. Kumra’s argument that he should have a right to access to justice also means that he is displacing other litigants’ right to access justice for a case that may be statute-barred.
[42] Even then, I’m not prepared to adjourn the pre-trial conference or trial. It’s not fair to Kumra. He’s ready for trial. He’s prepared to incur the costs of preparing and attending the trial even though he may not have a right to sue. He’s prepared to undertake the risk of mounting legal fees and an adverse costs award. It’s been over 5 years since the accident—his memory is fading and, in the interim, he has had no compensation for his injuries. No one knows when WSIAT will rule on the Right to Sue Application. And no one knows the outcome—if Kumra is successful, the delay will be even more prejudicial to him as the trial will be adjourned for no reason.
[43] Stagliano has provided no evidence of prejudice to him, other than the pre-trial conference will not be productive and his wasted resources. On the latter issue, that is a problem of his making. In any event, that prejudice can be compensated for by costs. On the former issue, he has the power to decide whether the pre-trial conference is unproductive. If he takes unreasonable settlement positions on the merits of this case, the presiding judge or associate judge may make an order for costs of the conference if they determine the conference was unproductive for reasons relating to Stagliano’s conduct (rule 50.12).
[44] Kumra is entitled to timely and affordable access to the civil justice system. Through no fault of his own and in reliance on promises made by Stagliano, he risks waiting until 2024 or later for a trial. Even if the outcome puts some pressure on the justice system, I believe that pressure is justified here to ensure fairness to him, especially where he concedes the financial risks to himself.
[45] I also believe an adjournment now is premature. WSIAT may rule on the Right to Sue Application between now and November, or between November and May 2023. The trial of this action may not be called for the May 2023 sittings. Before it’s called for trial at the next sittings, WSIAT may rule. Or the parties may settle. To be clear, nothing in my decision is intended to take away from the presiding judge’s or associate judge’s discretionary power to adjourn the date for the trial (rule 50.07(a.1)).
[46] Stagliano hasn’t satisfied me that the continuance of the action would work an injustice because it would be oppressive or vexatious to him or would be an abuse of the process of the court in some other way. And the stay will cause an injustice to Kumra.
[47] Courts should not be too quick to deprive litigants of a decision on the merits. Stagliano said he was ready for trial. On that promise, Kumra should have his day in court as soon as possible.
Costs
[48] Under rule 57.03, on the hearing of a contested motion, the court shall fix the costs of the motion and order them to be paid within 30 days. I fix the costs of the motion in the amount of $7250 and order that Stagliano shall pay them within 30 days.
[49] In my view, this costs award reflects a fair and reasonable amount that should be paid by Stagliano, who did not succeed. Rule 57.01(1) lists a broad range of factors that the court may consider in exercising its discretion to award costs under section 131 of the Courts of Justice Act, RSO 1990, c C.43. The express language of rule 57.01(3) makes clear that the fixing of costs is not simply a mechanical exercise.
[50] Stagliano’s partial indemnity costs were $4740. So, in his view, at least that amount is a fair and reasonable amount for this motion. Though Kumra’s partial indemnity costs are higher ($7289.63), they are not outside the zone of reasonableness given the importance of the issues to Kumra.
[51] I am not seized.
Agarwal J.
DATE: September 15, 2022
COURT FILE NO.: CV-18-601440-0000
DATE: 2022 09 15
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sunil Kumra v. Anthony Stagliano
BEFORE: Justice Ranjan Agarwal
COUNSEL: Courtney Madison, Counsel for the Plaintiff
Jeff Aitkens, Counsel for the Defendant
ENDORSEMENT
Agarwal J.
DATE: September 15, 2022
[^1]: As an aside, both parties filed entire transcripts from the examinations for discovery. That’s improper. Rule 39.04(2) of the Rules of Civil Procedure prohibits the use of a party’s examination for discovery on the hearing of a motion. Stagliano shouldn’t have tried to use his own examination. Both parties rely on only a few answers from the other party’s examination for discovery. They should’ve only used an excerpt. The rest of the transcript is inadmissible because it’s irrelevant.