Court File and Parties
COURT FILE NO.: 7915/16 DATE: 2024-04-24 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
KEVIN BROWN Plaintiff/Respondent – and – CARM ANTHONY PIRO, TONY LAPARCO, JOHN DOE AND HIS MAJESTY THE KING IN RIGHT OF THE PROVINCE OF ONTARIO Defendants/Moving Parties
Counsel: Adam J. Patenaude, for the Plaintiff/Respondent Daniel Mayer, for the Defendants/Moving Parties
HEARD: April 18, 2024
THOMAS, J. :
Endorsement
[1] This is a motion by the defendants for the following relief:
- Leave to bring this motion (if necessary);
- Leave to file an Amended Statement of Defence;
- An adjournment of the trial of this action presently scheduled on the trial running list in Sarnia for May 13, 2024.
[2] The plaintiff is an Ontario Provincial Police officer. He was on duty on September 14, 2013 and involved in a high speed chase to apprehend a suspect. The suspect lost control of his vehicle. It rolled over, injuring the suspect and passenger. After an investigation by the Special Investigation Unit, (“SIU”), the plaintiff was charged with dangerous driving. That charge was ultimately withdrawn as the Crown found there was no reasonable prospect of conviction.
[3] The plaintiff commenced this action against the named representatives of SIU and the Province on July 28, 2016, claiming damages for physical and psychological injury, as well as detrimental effects to his policing career as a result of negligent investigation and malicious prosecution. On June 2, 2017, the defendants delivered their Statement of Defence.
[4] The action moved through all stages of discovery, pre-trial and mediation. It was set down by the plaintiff. It was to be placed on the Sarnia trial list in 2022 but was adjourned due to a late filed income loss report delivered by the plaintiff. The action was then placed on the trial running list starting May 13, 2024 with a trial estimate of four weeks. It should be noted that this trial would back up a number of criminal trials ahead of it on that list.
[5] In preparation for trial, and after a change in trial counsel at Crown Law, counsel for the defendants reviewed decisions of the Workplace Safety and Insurance Appeals Tribunal, (“WSIAT”). It is clear that the plaintiff was in the course of his employment at the time of the vehicle pursuit. Section 28 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16, Sched. A, (“WSIA”), directs that a worker cannot sue his employer for a workplace injury. Section 31 of the WSIA directs that WSIAT has exclusive jurisdiction to determine if an action is barred by s. 28 and the injured party may bring a “right to sue” application before WSIAT to have the determination made.
[6] Defendants’ counsel believe decisions of WSIAT have concluded that the individual defendants as officers of SIU are part of a Commission public body and public servants in the employ of the Crown. The plaintiff is an O.P.P. officer and, as well, employed by the Crown.
[7] As a result, the defendants have filed an application to determine if the plaintiff has a right to sue the defendants. It is the defendants’ position that this Court may not have jurisdiction to entertain this action.
[8] The defendants seek leave to amend their Statement of Defence to plead that s. 28 of the WSIA bars the plaintiff’s action.
[9] The defendants also wish to amend and particularize two defences that have already been pleaded, and further to correct typos and update statutory references. Those latter proposed amendments are not contested by the plaintiff.
[10] Counsel for the defendants acknowledges the potential effect of this proposed late-breaking amendment and is candid in their submissions that it should have been proposed much earlier. However, it is their position that leave is not required to bring their motion for leave to amend, and that they believe there is a live issue of jurisdiction that must be determined by WSIAT. Counsel for the defendants argues that the broad powers of amendment of pleadings requires leave to be granted. They suggest there is no prejudice and that if prejudice is occasioned, it can be compensated by an adjournment and costs.
[11] Counsel for the plaintiff argues that this proposed amendment simply comes too late. The issue of the effect of s. 28 of the WSIA could have been plead much earlier and the research done by the defendants’ counsel accomplished much sooner. The decisions the defendants seek to justify their amendment were there months if not years before to be found. Plaintiff’s counsel reminds me that this event took place over ten years ago, and this action was initiated almost seven years ago. In the circumstances, prejudice can be presumed and that prejudice to the plaintiff cannot be compensated by costs.
[12] Counsel for the plaintiff disputes the defendants’ interpretation of the WSIAT decisions and argues that without a right to sue determination by WSIAT, and with no idea when that application might be determined, this Court should move forward to try this action.
Analysis
[13] The delay in raising this jurisdictional defence is truly unfortunate. The defendants recognize that they are seeking an indulgence from the Court. I agree that it is arguable that this action is captured by ss. 28 and 31 of the WSIA.
[14] First, considering the need for leave to bring this motion, I have set out r. 48.04(1) below:
48.04 (1) Subject to subrule (3), 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. O. Reg. 343/21, s. 1.
[15] I do not believe that the defendants require leave as it was the plaintiff that set the matter down for trial. It is true though that the defendants were content to have the action placed on the upcoming trial list. If I am wrong in finding no leave is required, the circumstances of this motion require leave to be granted.
[16] The defendants’ motion seeks leave to amend the Statement of Defence. Rule 26.01 set out below requires the Court to grant leave to amend at any point unless the prejudice could not be cured by compensation.
26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. R.R.O. 1990, Reg. 194, r. 26.01.
[17] The proposed amendment raises a jurisdictional issue, that if successful, could mean the dismissal of this action. I have considered the significance of the amendment and I recognize the presumption of prejudice. The plaintiff however can be compensated by costs. In addition, the trial must be adjourned to allow for the amendment, potentially a reply from the plaintiff and other, perhaps necessary, steps in the litigation. Further, there needs to be a determination by the WSIAT pursuant to s. 31.
[18] The defendants are granted leave to amend their Statement of Defence in the draft form attached to their Notice of Motion.
Costs
[19] Costs of this motion are in my discretion. While costs normally follow success, in all the circumstances here, the plaintiff cannot be faulted for contesting this motion. In addition, the defendants were seeking an indulgence in amending their Statement of Defence with an imminent trial date and after almost seven years of litigation.
[20] There must be a price to be paid in costs for the defendants to be granted the leave they seek. The plaintiff will have his partial indemnity costs of $18,578.28. In addition, the defendants will pay the plaintiff $10,000 to compensate the plaintiff for their trial preparation efforts to-date, and for the further steps to be taken in the litigation to react to the amendment. The plaintiff has leave to return to the Court to seek further costs if necessary.
[21] The total costs of $28,578.28 to be paid by the defendants to the plaintiff within 30 days of the release of these reasons.
“Justice Bruce G. Thomas” Justice Bruce G. Thomas
Released: April 24, 2024.
COURT FILE NO.: 7915/16 ONTARIO SUPERIOR COURT OF JUSTICE KEVIN BROWN Plaintiff/Respondent – and – CARM ANTHONY PIRO, TONY LAPARCO, JOHN DOE AND HIS MAJESTY THE KING IN RIGHT OF THE PROVINCE OF ONTARIO Defendants/Moving Parties REASONS FOR JUDGMENT THOMAS, J.
Released: April 24, 2024.