Ontario Superior Court of Justice

Court File No.: CV-18-00002242 (London)
Date Heard: February 28, 2025
Date Released: March 20, 2025

Between:
Kristin Adamski, Plaintiff
and
Costco Wholesale Canada Ltd., Justin Chito, Rob Fiddler and Justin Peckett, Defendants

Appearances:
Brian Smith, for the Plaintiff
Simon Gollish, for the Defendants

Decision Re: Motion to Adjourn Trial

Jasminka Kalajdzic

Introduction

[1] In November 2018, the plaintiff, Kristin Adamski, commenced an action against her former employer, the defendant Costco Wholesale Canada Ltd. (“Costco”), and three former co-workers, the other named defendants. She alleges that the individual defendants harassed and assaulted her during her employment, for which she claims tort damages. She has sued Costco for constructive dismissal.

[2] In 2023, the action was set down for trial. The parties agreed to a 12-day trial to commence on May 12, 2025.

[3] On October 31, 2024, Costco filed a right to sue application (the “Application”) under s. 31 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (the “WSIA”). The Application will determine if the plaintiff has the right to pursue certain causes of action, potentially reducing the number of trial days required. However, it is not known how long it will take to get a decision. Counsel for the defendants concedes that the Application could and should have been brought earlier in the litigation.

[4] The defendants now move for an order indefinitely adjourning the trial to allow time for the Workplace Safety and Insurance Appeals Tribunal (the “WSIAT”) to render its decision in the Application.

[5] The defendants argue that there is a risk of contradictory outcomes if the trial proceeds on May 12, 2025, and that the plaintiff will suffer no prejudice that cannot be compensated for in costs.

[6] The plaintiff submits that the defendants waited too long to bring the Application, well after the action had been set down for trial. She opposes the adjournment because a trial will be needed in any event, as the WSIAT has no jurisdiction over the constructive dismissal claim. Further, she submits that a delay of the action will result in non-compensable prejudice in the form of delayed psychological treatment.

[7] For the reasons that follow, I find that it is in the interests of the administration of justice that the trial take place as scheduled. The motion for an adjournment is denied.

Background

[8] The plaintiff, who is currently 34 years old, was employed at Costco between July 2015 and September 2018. During that time, she alleges that the individual defendants harassed and assaulted her in separate incidents. She claims that Costco did not address her concerns appropriately. She left her position due to worsening symptoms of anxiety and post-traumatic stress disorder she alleges are attributable to the harassment and assault.

[9] The plaintiff filed a claim with the Workplace Safety & Insurance Board (“WSIB”) in March 2018, seeking benefits for chronic mental stress related to the alleged harassment. Following an investigation, the WSIB denied the plaintiff’s claim on the basis that it was unable to conclude that the events occurred in the course of employment or that the harm rose to the level of harassment. Counsel for the defendants at the hearing before me clarified that this decision was not a determination on the merits, only that the WSIB did not have sufficient information. Counsel for the plaintiff noted that Costco had opposed the plaintiff’s WSIB claim on the basis that she had not suffered a compensable injury under the WSIA.

[10] The plaintiff commenced this litigation by way of a Notice of Action on November 1, 2018, and served a Statement of Claim on March 7, 2019. She has advanced causes of action in both tort and contract.

[11] The defendants served their Statement of Defence on April 30, 2019. They deny liability and contest the plaintiff’s damages.

[12] Discoveries were completed in 2021, and the plaintiff served the trial record on March 6, 2023. The parties agreed to and scheduled pre-trial and trial dates.

[13] The defendants then filed a right to sue application on October 31, 2024. Their counsel stated at the hearing of this motion that it was only in the summer of 2024 as they prepared for trial that it became clear the Application should be brought.

[14] The initial intake process at WSIAT has been completed, and the Tribunal has invited a response from the plaintiff. She has until March 28, 2025, to respond, and the defendants have until April 11, 2025 to reply. Although Costco has requested an expedited determination, no estimated timeline for completion of the WSIAT process has been provided. No hearing has been scheduled. Even after the WSIAT renders a decision, there is the possibility of judicial review.

[15] All outstanding undertakings in the action have been answered, and expert reports have been served. The parties are ready for trial.

[16] The pre-trial of the action is scheduled to take place on April 15, 2025, and the trial is to commence on May 12, 2025. The defendants seek to adjourn both dates indefinitely, until after the WSIAT renders its decision in the Application.

[17] The plaintiff is a single mother and is currently receiving ODSP. The plaintiff’s experts have recommended long-term psychotherapy or counselling, treatment that the plaintiff cannot currently afford and which ODSP will not cover. The extent to which her PTSD and treatment needs were caused by the defendants’ actions is disputed.

Law and Analysis

a. Test on this Motion

[18] When an action is placed on the trial list, all parties are deemed to be ready for trial, pursuant to r. 48.07 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[19] The defendants seek to adjourn the pre-trial and trial pursuant to r. 52.02 of the Rules, which states that a “judge may postpone or adjourn a trial to such time and place, and on such terms, as are just.”

[20] The decision to adjourn requires balancing the interests of the plaintiff, of the defendant, and of the administration of justice in the orderly processing of civil trials on their merits: Khimji v. Dhanani, para. 14.

[21] The issue in the motion is whether, having balanced those interests, it is in the interests of the administration of justice to adjourn the pre-trial conference and trial to allow the WSIAT to decide the Application.

[22] The decision of the court is highly discretionary and requires the court to consider all relevant circumstances when exercising its judgment: Martin v. Sansome, 2014 ONCA 14, para. 28. If the request for an adjournment would promote a decision on the merits, the court should tend to be generous in granting the indulgence: Ariston Realty Corp. v. Elcarim Inc., para. 6.

[23] In Ariston, at para. 34, Perell J. set out the following list of non-exhaustive factors to be considered when assessing an adjournment request:

• the overall objective of a determination of the matter on its substantive merits;
• the principles of natural justice;
• that justice not only be done but appear to be done;
• the particular circumstances of the request for an adjournment and the reasons and justification for the request;
• the practical effect or consequences of an adjournment on both substantive and procedural justice;
• the competing interests of the parties in advancing or delaying the progress of the litigation;
• the prejudice not compensable in costs, if any, suffered by a party by the granting or the refusing of the adjournment;
• whether the ability of the party requesting the adjournment to fully and adequately prosecute or defend the proceeding would be significantly compromised if the adjournment were refused;
• the need of the administration of justice to orderly process civil proceedings; and
• the need of the administration of justice to effectively enforce court orders.

[24] The Court of Appeal adopted this list of factors in Turbo Logistics Canada Inc. v. HSBC Bank Canada, 2016 ONCA 222, para. 22.

b. Position of the Parties

[25] The defendants rely on three main arguments, incorporating several of the Ariston factors.

[26] First, the defendants submit that the WSIAT decision is essential to the court’s determination on the merits. By virtue of s. 31(2) of the WSIA, the WSIAT has exclusive jurisdiction to determine whether portions of the plaintiff’s claim are statute-barred under s. 28 of the WSIA. The determination of the Application may resolve significant portions of the claim, namely, the tort claims against the individual defendants. The parties agree that the breach of contract claim against Costco is outside the WSIAT’s jurisdiction and will have to be adjudicated in the within action.

[27] Second, the defendants submit that the practical consequences of an adjournment favour procedural justice. The WSIAT decision has the potential to significantly impact what the parties will need to argue at trial, including which experts and other evidence to call.

[28] Third, the defendants argue that any prejudice suffered by the plaintiff can be compensated by way of prejudgment interest and costs thrown away. In contrast, they submit that proceeding to trial before the WSIAT decides the Application will require the defendants to defend allegations that may otherwise be statute-barred. They will be deprived of the statutory scheme that was designed for the fair and efficient settlement of disputes in the employer-employee context.

[29] In response to the defendants’ first argument, the plaintiffs rely heavily on the timing of the defendants’ Application, filed over one-and-a-half years after the parties agreed to a trial date. The plaintiff submits that she is entitled to a decision on the merits in a dispute that is now over six years old and that a further delay of at least one year will work an injustice.

[30] Second, the plaintiff argues that the same evidence will have to be called at the trial, regardless of the WSIAT decision. The constructive dismissal action will require evidence of the underlying harassment and assault allegations, as well as all the expert testimony regarding the plaintiff’s damages. There would be no significant savings in trial time.

[31] Finally, the plaintiff submits that delaying the trial will cause her substantial prejudice in the form of ongoing financial strain and delayed treatment, which cannot be compensated with legal costs, and that this prejudice outweighs any interest the defendants have in awaiting the outcome of their Application.

c. Analysis

[32] The defendants’ strongest argument is that they would be deprived of a substantive right if the adjournment is not granted. They submit that the merits of the action include a determination of whether the plaintiff has a right to pursue the defendants for certain causes of action. It is a determination that only the WSIAT can make pursuant to s. 31 of the WSIA.

[33] The defendants rely on McDonald v. Santos, 2016 ONSC 2916, in support of this proposition. In McDonald, the plaintiff moved to stay the defendants’ WSIAT-right-to-sue application until after trial. In refusing the stay, Fragomeni J., at para. 16, held that the issue of whether an employee was entitled to commence an action must be decided by the WSIAT prior to the trial of the action.

[34] The facts in McDonald differ from those in the case before me in three important ways. First, the defendants in McDonald had pleaded that the plaintiff’s claims were statute barred under the WSIA. Costco made no such pleading in the Statement of Defence. Second, the defendants in McDonald had consented only to a pre-trial date, not to the action being placed on a trial list. In contrast, Costco consented to the May 2025 trial date. Finally, the hearing of the right to sue application in McDonald was scheduled to take place four months before the pre-trial conference. In those circumstances, Fragomeni J. found that the defendants had not waived their right to proceed with the WSIAT hearing and there was no compelling reason to stay the application. In the matter before me, the WSIAT is a long way from even scheduling the hearing, and the conduct of the defendants is such that it cannot be said they did not waive their right to proceed with the Application.

[35] Since at least March 2018, when the plaintiff filed her WSIB claim, all parties were aware that the conduct at the heart of this litigation was alleged to have occurred in the course of the individual defendants’ employment with Costco. In her Statement of Claim filed in March 2019, the plaintiff pleaded that the “assaults and harassment committed by the Individual Defendants as a result of their employment and/or occurred as a result of the position of authority that Costco placed them in.” The facts necessary for Costco to determine that it might have a WSIA defence, therefore, were known many years before October 2024.

[36] Counsel for the defendants frankly and repeatedly stated that the Application could have been brought sooner. No reason was given for failing to do so. While in principle, it is correct that the right to sue application should be decided prior to trial, it is not the only consideration. When the application is not made in a timely way, the principle gives way to other important considerations, including the timely resolution of civil actions. That there is no limitation period for bringing a right to sue application does not mean that employers should escape the consequences of choosing to commence one at the eleventh hour.

[37] The plaintiff’s counsel relied heavily on the decision of Agarwal J. in Kumra v. Stagliano, 2022 ONSC 5252, in support of his argument that the Ariston factors favour his client. That case is on all fours with the case at bar.

[38] In Kumra, the defendant, Stagliano, notified the plaintiff that he intended to rely on the WSIA defence approximately two years after the litigation had been commenced but before the action was set down for trial. The parties attended assignment court 18 months later, in August 2021, and Stagliano agreed to pre-trial and trial dates in 2023 on the assumption that his WSIAT application – which he had not yet filed – would be resolved by then. In November 2021, Stagliano amended his Statement of Defence to plead the WSIA defence, and, in June 2022, he filed his right to sue application. As of the time of the motion to adjourn (September 2022), the parties did not know when the WSIAT would rule on the application.

[39] Stagliano moved to adjourn the pre-trial scheduled for November 2022 and the trial scheduled for the May 2023 sittings. His argument was simple – if the WSIAT ruled that the plaintiff’s claim was statute-barred, the pre-trial conference and trial would be unnecessary.

[40] Agarwal J. denied the adjournment. The facts to plead the WSIA defence were known to Stagliano for almost two years. Even if the failure to identify the WSIA defence was an inadvertent slip, Stagliano did not have to make a right to sue application; he had other defences available to him, and he could have abandoned the WSIA defence given the passage of time and his representation that he was ready for trial. At para. 40, Agarwal J. writes, “[the defendant’s] insistence on pursuing [the right to sue application] now and using it to delay the trial feeds Kumra’s view that this motion is strategic.” Agarwal J. also found that even the possibility of the WSIAT ruling that Kumra had no right to sue, either just before trial or while the decision was under reserve, did not justify an adjournment. The unfairness to Kumra in having to wait and the prejudice of further delay outweighed any prejudice to Stagliano.

[41] The facts in the case before me are even more compelling. The defendants did not put the plaintiff on notice of their intent to rely on a WSIA defence before the action was set down for trial. They have not sought to amend the Statement of Defence. They filed the Application less than seven months before the trial was scheduled to commence, not eleven months prior to trial as in Kumra. And, while the entirety of Kumra’s claim could have been statute-barred and the need for a trial could have been obviated, the parties in the case at bar will have to go to trial to adjudicate the constructive dismissal claim regardless of the outcome of the Application.

[42] Moreover, the plaintiff’s WSIB claim has already been denied on the basis of a lack of information. Counsel could not say if a gap in the information will also impede the WSIAT process.

[43] Like the plaintiff Kumra, Ms. Adamski will be prejudiced by an indefinite delay of the trial. Memories fade, and evidence is potentially weaker, particularly in a situation like this one, when the incidents in question occurred almost ten years ago. Moreover, Ms. Adamski needs access to any compensation to which she might be entitled to fund the counselling she needs to re-enter the workforce. For this reason, pre-judgment interest and an order of costs thrown away are a poor substitute for compensation.

[44] The interests of the administration of justice also favour denial of the adjournment. As the Court of Appeal recently held in Barbiero v. Pollack, 2024 ONCA 904, there is a need for a culture shift to prioritize the prompt judicial resolution of legal disputes. The defendants’ delay in bringing the Application so soon before the trial of the action should not be rewarded with further delay.

[45] The fixing of trial dates is a significant event. It means that all interlocutory matters have been dealt with and there are no barriers to the case being tried: Field v. Zainab, 2022 ONSC 2759. Not having advised the court or the plaintiff that a WSIAT hearing was necessary prior to trial until well after trial dates were fixed, it would be unfair to the plaintiff to further delay resolution of the action.

Order and Costs

[46] The defendants’ motion to adjourn the pre-trial conference scheduled for April 15, 2025 and the trial commencing May 12, 2025 is dismissed.

[47] Counsel made brief submissions on costs at the conclusion of the hearing. The defendants seek costs in the cause. The plaintiff seeks costs on a partial indemnity basis of $4,500 plus costs of the hearing.

[48] I have reviewed the plaintiff’s costs outline. I agree that in light of the importance of the issue to the plaintiff and the fact that the motion would not have been necessary had the defendants commenced the Application in a more timely way, and given her success on the motion, the plaintiff is entitled to her costs on a partial indemnity basis. The hours spent by counsel and rates charged are reasonable. I note that oral submissions are already listed in the costs outline and decline to order any additional amounts for the hearing of the motion.

[49] The defendants shall pay costs of the motion in the amount of $4,500, inclusive of HST and disbursements, within 30 days of this order.

Jasminka Kalajdzic

Released: March 20, 2025