Court File and Parties

COURT FILE NO.: CV-16-69227 DATE: 2023/04/24 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jacqueline Delanty and Katherine Reilly, Plaintiffs AND Shannon Hogan and Heritage Lawn Care Inc., Defendants

BEFORE: Justice R. Ryan Bell

COUNSEL: Jacqueline Delanty and Katherine Reilly, self-represented Plaintiffs James Omran, for the Defendants

HEARD: April 13, 2023

Endorsement

Overview

[1] The defendants seek: (i) an order dismissing the action of Jacqueline Delanty based on the Workplace Safety and Insurance Appeals Tribunal’s determination that Ms. Delanty’s right of action is taken away by s. 28 of the Workplace Safety and Insurance Act, 1997 [1]; (ii) an order dismissing Katherine Reilly’s claim under s. 61 of the Family Law Act [2] on the basis that it is a derivative claim and cannot exist independently of that of Ms. Delanty; and (iii) in the alternative, an order as against both plaintiffs, dismissing the action for delay.

[2] The plaintiffs say they did not receive a “fair trial” at the WSIAT and the matter has been under reconsideration since May 2021. The plaintiffs ask for more time.

[3] These reasons explain why I am dismissing the action of both plaintiffs.

Factual Background and Procedural History

[4] This action arises out of a motor vehicle collision that occurred on July 8, 2014, when Ms. Delanty, a pedestrian, was hit by a truck operated by Shannon Hogan. Ms. Hogan was employed by Heritage Lawn Care Inc. at the time of the accident. Ms. Delanty alleges that she sustained permanent and serious injuries as a result of the accident. The statement of claim was issued on July 7, 2016.

[5] The defendants served their statement of defence and jury notice on December 21, 2016. The defendants alleged that Ms. Delanty was a Schedule I worker under O. Reg. 175/98 to the WSIA and was in the course of her employment at the time of the accident and that Ms. Hogan was a Schedule I worker and in the course of her employment with Heritage at the time of the accident. The defendants pleaded that, as a result, the plaintiffs’ right to sue the defendants is extinguished by s. 28 of the WSIA.

[6] The defendants applied under s. 31 of the WSIA to determine whether the plaintiffs’ right to sue the defendants is barred by s. 28 of the WSIA. The hearing proceeded at the WSIAT on June 5, 2019. On March 17, 2020, Vice-Chair Nairn ruled that Ms. Delanty’s right of action was taken away by s. 28 of the WSIA. The Vice-Chair declined to bar the claim of Ms. Reilly.

[7] Examinations for discovery were originally scheduled for August 12, 2019; however, the parties agreed to adjourn the examinations until after the WSIAT’s decision was released. From April to September 2020, defendants’ counsel wrote repeatedly to then-counsel for the plaintiffs requesting confirmation whether Ms. Reilly wished to proceed with her FLA claim and, if so, requesting dates for examinations for discovery. On September 25, 2020, plaintiffs’ counsel advised that Ms. Reilly intended to proceed with her claim and Ms. Delanty intended to dispute the WSIAT’s decision.

[8] In June 2022, the plaintiffs served a notice of intention to act in person. The present motion, which was originally returnable April 7, 2022, was adjourned to December 15, 2022.

[9] On December 15, 2022, Ms. Reilly appeared. Ms. Delanty did not. In her endorsement, Williams J. noted that there was proof the defendants’ motion materials were served in July 2022, although Ms. Reilly maintained that she did not receive the materials until October and she did not contact defendants’ counsel until December 9, 2022. Justice Williams granted the adjournment requested by Ms. Reilly, “although somewhat reluctantly” and noted that the motion would proceed on the next scheduled date whether Ms. Reilly had retained counsel or not. Justice Williams confirmed in her endorsement that Ms. Reilly could not appear on behalf of Ms. Delanty.

[10] Prior to the hearing on April 13, 2023, the court received a bundle of documents from the plaintiffs that appear to relate to the plaintiffs’ request for reconsideration of the WSIAT decision. The documents include: (i) a letter from the WSIAT confirming Ms. Reilly’s advice that there is an ongoing investigation at the Office of the Ombudsman in respect of the plaintiffs’ request for reconsideration of the WSIAT decision; (ii) Ms. Reilly’s request for reconsideration dated May 4, 2021; and (iii) Ms. Delanty’s request for reconsideration dated January 9, 2023.

[11] There is no evidence in the record that either plaintiff has commenced an application for judicial review of the WSIAT decision. I have no evidence from the Office of the Ombudsman as to the status of their investigation as reported by Ms. Reilly to the WSIAT.

Statutory Framework

[12] Section 31(1) of the WSIA provides that a party to an action or an insurer from whom statutory accident benefits are claimed under s. 268 of the Insurance Act may apply to the WSIAT to determine whether a right of action is taken away by the WSIA, whether the amount that a person may be liable to pay in an action is limited by the WSIA, or whether the plaintiff is entitled to claim benefits under the insurance plan.

[13] The WSIAT has exclusive jurisdiction to determine whether the right to commence an action is taken away and the WSIAT’s decision is “final and not open to question or review in a court”: WSIA, ss. 31(2) and (3).

[14] Section 28(1) denies a worker employed by a Schedule I employer the right to commence an action against the employer and the employer’s workers in respect of a workplace injury or disease. If the employer’s workers were involved in the circumstances in which the worker sustained the injury, the prohibition applies only if the workers were acting in the course of their employment: WSIA, s. 28(3). These provisions are part of the workplace insurance scheme set out in the WSIA, under which Ontario workers lose the right to sue their employer for a work-related injury in exchange for entitlement to workers’ compensation benefits without having to prove their employer was at fault for the injury: Chen v. Ontario (Workplace Safety and Insurance Appeals Tribunal), at para. 9 [3]; Morningstar v. Ontario (Workplace Safety and Insurance Appeals Tribunal), at paras. 46-51. [4]

[15] Section 27(2) of the WSIA provides that if a worker’s right of action is taken away under ss. 28 or 29, the worker’s spouse, child, dependant or survivors are not entitled to commence an action under s. 61 of the Family Law Act.

[16] Under s. 129, the WSIAT may reconsider its decision and may confirm, amend, or revoke it. The WSIAT may do so at any time “if it considers it advisable to do so.”

The WSIAT Decision

[17] The issues in the s. 31 application were whether the right of action of Ms. Delanty and the claims of Ms. Reilly under s. 61 of the Family Law Act were taken away under s. 28 of the WSIA and whether Ms. Delanty is entitled to claim benefits under the WSIA: WSIAT decision, at para. 2.

[18] The Vice-Chair was satisfied that, at the time of the accident on July 8, 2014,

• Ms. Hogan was a “worker” of a Schedule 1 employer; [5]
• Ms. Hogan was in the course of her employment; [6]
• Ms. Delanty was a “worker” of a Schedule 1 employer; [7] and
• Ms. Delanty was in the course of her employment. [8]

[19] Based on these findings, the Vice-Chair granted the application of the defendants in relation to Ms. Delanty, stating at para. 82, “[t]he rights of action of J.D. are taken away by the Act.”

[20] The Vice-Chair found that he had no jurisdiction under the WSIA to take away the right of action of Ms. Reilly, Ms. Delanty’s mother, because there was “no evidence of significance before me that K.R. was a dependant of J.D”: WSIAT decision, at para. 90.

Analysis

Ms. Delanty’s claim

[21] In the WSIAT decision, the Vice-Chair ruled that Ms. Delanty’s right of action was taken away by s. 28 of the WSIA. Under s. 31(4) of the WSIA, Ms. Delanty was permitted to file a claim with the Workplace Safety and Insurance Board within six months of the date of the decision. There is no indication that she has done so.

[22] While the WSIAT has the discretion to reconsider a decision if it considers it advisable to do so pursuant to s. 129 of the WSIA, the WSIAT’s practice direction on reconsiderations emphasizes the importance of finality in the decision-making process and states that, “as a general practice, it is not advisable to reconsider a decision after more than six months has passed since the decision was made”: Ratman v. Workplace Safety and Insurance Appeals Tribunal, at para. 11. [9]

[23] Ms. Reilly’s request for reconsideration is dated approximately 14 months after the WSIAT decision. The request for reconsideration asks for “a new hearing or review of all the evidence or for this Tribunal to give me the right to take this fight to Divisional Court and be given the time to do it.”

[24] Ms. Delaney’s request for reconsideration is dated almost 34 months after the WSIAT decision. The relief requested in Ms. Delaney’s request for reconsideration is similar: “I am asking for a review or be given time to take this [to] Divisional Court under Appeal.”

[25] Having regard to the WSIAT’s own practice direction emphasizing the importance of finality in the decision-making process and the fact that both requests for reconsideration are far beyond WSIAT’s six-month guideline for reconsideration, it is difficult to see how Ms. Delanty expects to be successful on her request for reconsideration. I also note that in the WSIAT’s letter dated February 24, 2023, the WSIAT states that because of the ongoing investigation at the Office of the Ombudsman, the WSIAT is unable to continue processing the current reconsideration request. There is no evidence before me as to the status of the Ombudsman’s investigation.

[26] As I have stated, there is no evidence that Ms. Delanty has taken any steps regarding an application for judicial review in Divisional Court. In any event, s. 5(1) of the Judicial Review Procedure Act [10] states that unless another statute provides otherwise, an application for judicial review is to be made no later than 30 days after the date the decision was made. The court may extend the time, but only if is satisfied there are apparent grounds for relief and no substantial prejudice would result to any person affected by reason of the delay: Judicial Review Procedure Act, s. 5(2). Any judicial review application commenced at this juncture would be long out of time.

[27] Ms. Delanty’s right of action remains barred by the WSIAT decision.

Ms. Reilly’s Family Law Act claim

[28] As set out at paragraph 2 of the statement of claim, Ms. Reilly claims general damages for loss of care, guidance and companionship, and value of services performed pursuant to the provisions of the Family Law Act, special damages including out-of-pocket expenses, and damages for economic losses. The only other reference to Ms. Reilly in the statement of claim is at paragraph 5, where it is pleaded that Ms. Reilly is Ms. Delanty’s mother.

[29] Section 61(1) of the Family Law Act creates a cause of action in favour of certain relatives, including a parent, of “a person [who] is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages.” Claims under s. 61 of the Family Law Act are derivative: Camarata v. Morgan, at para. 9 [11]; Malik v. Nikbakht, at para. 13. [12] In other words, the right of a parent, for example, to assert a claim under s. 61 depends on the entitlement of the injured or deceased person if they had not been killed, to personally maintain an action for damages in the circumstances of the accident: Von Cramm v. Riverside Hospital of Ottawa et al, at para. 11. [13] A derivative claim cannot continue if the claim of the primary plaintiff has been dismissed: Verma v. The Scarborough Grace Salvation Army Hospital et al., at para. 11. [14]

[30] In this case, the WSIAT has determined that the right of action of the injured person, Ms. Delanty, has been taken away by the WSIA. Ms. Reilly’s claims are derivative in nature. Because Ms. Delanty cannot personally maintain an action for damages against the defendants, Ms. Reilly is not entitled to maintain her s. 61 Family Law Act claim.

Dismissal for delay

[31] Had I not concluded that Ms. Delanty’s right of action remains barred by the WSIAT decision and that Ms. Reilly is not entitled to maintain her s. 61 Family Law Act claim, I would have dismissed the plaintiffs’ action for delay.

[32] Pleadings closed in the action in December 2016. The WSIAT decision was released in March 2020. It was only in September 2020 that the plaintiffs’ counsel advised that Ms. Reilly intended to proceed with her claim. Ms. Reilly has not provided an affidavit of documents; neither plaintiff has attended an examination for discovery.

[33] The plaintiffs are responsible for moving the action along. They have not done so. I am satisfied that the delay here has been inordinate and it has not been adequately explained. The onus rests on the plaintiffs to rebut the presumption of prejudice arising from the unexplained delay by showing that documents have been preserved, and that the issues in dispute do not require the recollection of witnesses, or that necessary witnesses are available with detailed recollection of events: Berg v. Robbins, at para. 13. [15] No evidence has been filed by the plaintiffs to rebut the presumption of prejudice. The plaintiffs have not demonstrated an interest in moving the action forward. In the circumstances, I exercise my discretion and dismiss the action.

Conclusion

[34] The right of action of Ms. Delanty is barred by the WSIAT decision. Ms. Delanty’s action is therefore dismissed. The claims of Ms. Reilly are derivative in nature and cannot continue in light of the dismissal of the action of Ms. Delanty, the primary plaintiff. Ms. Reilly’s claims are also dismissed.

[35] The defendants are the successful parties on the motion and in the action and are presumptively entitled to their costs. The defendants’ costs outline addresses costs of the motion only. The parties may make written submissions on costs of the action, including the motion, limited to a maximum of three pages, exclusive of relevant attachments. The defendants shall deliver their costs submissions by May 8, 2023. The plaintiffs shall deliver their responding costs submissions by May 22, 2023. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

Justice R. Ryan Bell Date: April 24, 2023

Footnotes

[1] S.O. 1997, c. 16, Sch. A (“WSIA”). [2] R.S.O. 1990, c. F-4. [3] 2021 ONSC 7625 (Div. Ct.). [4] 2021 ONSC 5576 (Div. Ct.), leave to appeal refused M52790. [5] WSIAT decision, at para. 63. [6] WSIAT decision, at para. 66. [7] WSIAT decision, at paras. 70-73. [8] WSIAT decision, at para. 87. [9] 2022 ONSC 3923. [10] R.S.O. 1990 c. J.1. [11] 2009 ONCA 38. [12] 2021 ONCA 176. [13] [1986] O.J. No. 999. [14] 2021 ONSC 3389. [15] [2009] O.J. No. 6169 (Div. Ct.).