Author: Kris Bonn

(October 13, 2022, 11:58 AM EDT) -- Anyone involved in the civil justice system in Ontario understands delay, with most cases taking many years to resolve. I was called to the bar in 2002 and in my 20 years of practising litigation, I’ve found that getting a case to trial usually takes four to six years from the date the statement of claim is filed.

It wasn’t always this way and it doesn’t have to be this way. In speaking with more experienced counsel, there was a time in the not-too-distant past when a case could get to trial within two years of filing the statement of claim. Moreover, rather than be three-to-five weeks in trial, cases could be completed in five days.

We can no longer accept the status quo where delays and adjournments are part of the ordinary course litigation. Our Supreme Court of Canada recognized the need for reform to more timely access to justice over eight

years ago in the landmark decision, Hyrniak v. Mauldin 2014 SCC 7, where Justice Andromache Karakatsanis wrote:

Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot go to trial …

… Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system.

In the recent case of Kumra v. Stagliano 2022 ONSC 5252, Justice Ranjan Agarwal relied on the principles from Hyrniak v. Mauldin to deny the defendant Anthony Stagliano’s motion for a stay of proceedings or an indefinite adjournment of the trial pending a Workplace Safety and Insurance Act, 1997, SO, c. 16 (WSIA) hearing on whether the action was statute barred.

Briefly, the plaintiff, Sunil Kumra, was hurt in a collision that occurred about five years earlier. Kumra, a tow truck driver, was loading a motorcycle onto his truck on the side of the highway when he was hit by Stagliano. Kumra suffered a fractured sternum and organ lacerations. Kumra sued Stagliano for his injuries. Kumra was examined for discovery in August 2019. In early 2021, Kumra set the action down for trial by serving the trial record. In August 2021, the parties attended Assignment Court and Stagliano agreed to set a trial date and the trial is scheduled to proceed in May 2023.

In this motion, Stagliano argued that the Kumra cannot sue him since Kumra was an employee at the time of the collision, and that he [Stagliano] states he was the self-employed owner of Primetime Electricians and was also in the course of his employment at the time of the collision. Section 28(1) of the WSIA states that a worker employed by a Schedule 1 employer may not commence an action for their injuries against any other worker employed by a Schedule 1 employer. While this is the law, it is a defence that must be raised by the defendant.

When he first defended the action, Stagliano didn’t refer to s. 28 (1) of WSIA. It was not until February 2020 that Stagliano notified Kumra that he intended to rely on the WSIA defence to take away Kumra’s right to sue. Kumra asked Stagliano to amend his statement of defence and for documentary and further oral discovery on this new defence. However, Stagliano did not move to amend his statement of defence until November 2021. When he did bring the motion, Kumra consented in part that Stagliano had filed evidence that there will be no “delay in moving this action forward” and no prejudice to Kumra.

However, even by this time, Stagliano had not yet started a right to sue application with the Workplace Safety and Insurance Appeals Tribunal. Stagliano did not file the right to sue application until June 2022 — more than two years after Stagliano first raised the potential WSIA defence.

When Justice Agarwal heard Stagliano’s motion to adjourn the pending trial, the WSIAT hearing had not been scheduled and there was no evidence when it would be heard. If the May 2023 trial was adjourned, the next available date the court had for the trial was not until May 2024. Justice Agarwal was not prepared to adjourn the trial for over a year and denied Stagliano’s motion.

Justice Agarwal recognized there is a possibility that just before trial or while the decision is under reserve the WSIAT may rule that Kumra has no right to sue and thus the trial would be a nullity and a waste of precious court time and resources. However, even this being the case, Justice Agarwal was not prepared to adjourn the trial as it would be unfair to Kumra, who had waited for over five years to get to trial. No one could say what the ultimate ruling by WSIAT would be and if Kumra was successful at the WSIAT hearing, the delay to him would be even more prejudicial as the trial would have been adjourned for no reason. Justice Agarwal ordered that the trial proceed in May 2023.

This case highlights several important points. Stagliano should have brought the right to sue application much earlier. His delay in amending his statement of defence and in bringing the right to sue application was enough for Justice Agarwal to deny this late motion to stay the civil action.

The motion was heard on Sept. 2, 2022. The next available court date for trial if an adjournment was granted was not until May 2024. This institutional delay to get to trial is a real problem and needs to be addressed.

Delays in civil matters is endemic. Civil litigants should not have to wait years to get their matter heard. In most cases, delay favours the defence — plaintiffs have the burden of proof and as time passes memories fade. Further, in motor vehicle collision cases, delay is particularly prejudicial given the reduced pre-judgment interest rate, the increased deductible on pain and suffering damages with inflation and past loss of income before trial being capped at 70 per cent.

Kris Bonn is the managing partner at Bonn Law, a firm with offices in Belleville and Trenton that focuses on helping people with personal injury cases, medical malpractice and long-term disability denials. Bonn is currently the president of the Brain Injury Association Quinte District and the past president of the Ontario Trial Lawyers Association.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.