The recent decision of the Court in Delanty v. Hogan, 2023 ONSC 2501, demonstrates that parties are expected to move actions forward and respond promptly when dealing with reconsiderations of WSIAT decisions.
This decision arose from a motor vehicle accident. The plaintiffs were Ms. Delanty, a pedestrian hit by a truck operated by the defendant, Ms. Hogan, and Ms. Delanty’s mother, Ms. Reilly, who claimed compensation under s. 61 of the Family Law Act.
The statement of claim was issued July 7, 2016, and the defence was served December 21, 2016. The defendants alleged that both Ms. Delanty and Ms. Hogan were Schedule 1 workers under O. Reg. 175/98 under the Workplace Safety and Insurance Act, 1997 (“WSIA”)and were in the course of their employment at the time of the accident. The defendants claimed that the plaintiffs’ right to sue was barred by section 28 the WSIA, or in the alterative, that their action should be dismissed for delay.
Section 28(1) of the WSIA denies a worker employed by a Schedule 1 employer the right to commence an action against another Schedule 1 employer and the employer’s workers regarding workplace injury or disease. Section 28(1) of the WSIAT requires that both workers be in the course of their employment at the time the injury is sustained for this defence to be applicable.
Section 27(2) of the WSIA outlines that if a worker’s right of action is taken away under s. 28, the worker’s family members are not entitled to commence an action under s. 61 of the Family Law Act.
Section 129 of the WSIA allows the WSIAT to reconsider a previous decision.
The defendants brought an application under s. 31 of the WSIA to determine whether the plaintiffs’ right to sue the defendants was barred. The WSIAT decision was rendered on March 17, 2020, which concluded that Ms. Delanty’s right of action was taken away by s.28 of the WSIA. The WSIAT found that Ms. Hogan and Ms. Delanty were both workers employed by Schedule 1 employers and were in the course of their employment at the time of the accident. The Vice-Chair declined to rule on Ms. Reilly’s claim as no evidence was presented to demonstrate that Ms. Reilly was a dependant.
Following the WSIAT decision, in September 2020, the plaintiffs advised the defendants that Ms. Reilly wished to proceed with her FLA claim and that Ms. Delanty intended to dispute the WSIAT’s decision.
This motion to dismiss the plaintiffs’ action was originally scheduled for April 2022. In June 2022, the plaintiffs served a notice of intention to act in person and the motion took place on December 15, 2022, after a previous adjournment. Only Ms. Reilly appeared on the December 2022 motion date where she claimed she had not received the defendants’ motion materials until October. Justice Williams granted an adjournment for the motion until April 13, 2023.
The plaintiffs’ responding motion documents were related to their request for reconsideration of the WSIAT decision. However, the plaintiffs’ documentation did not contain evidence demonstrating that either plaintiff commenced an application for judicial review of the WSIAT decision.
Justice Bell began his analysis by explaining that under section 31(4) of the WSIA, a worker is able to file a claim for benefits within six months of the tribunal’s decision. He noted that Ms. Delanty had not done so here. Justice Bell then highlighted that the WSIAT has the discretion to reconsider a decision under s.129 of the WSIA. Justice Bell referenced the WSIAT’s practice direction on reconsiderations: “as a general practice, it is not advisable to reconsider a decision after more than six months has passed since the decision was made.”
The court noted that Ms. Reilly’s request for reconsideration came 14 months after the WSIAT decision and Ms. Delanty’s request was dated 34 months after the WSIAT decision. Additionally, Justice Bell highlighted that Ms. Delanty had not taken any steps regarding bringing an application for judicial review in the Divisional Court. As such, Justice Bell concluded that Ms. Delanty’s right of action remained barred.
Regarding Ms. Reilly’s FLA claim, Justice Bell found that her claims were derivative in nature and because Ms. Delanty could not personally maintain an action for damages, Ms. Reilly was not entitled to maintain hers under the FLA.
The court dismissed the action of both plaintiffs. Justice Bell noted that he would have dismissed the plaintiffs’ action for delay regardless of the WSIAT bar. He explained that pleadings closed in December 2016 and the WSIAT decision was released March 2020, but the plaintiffs only advised that Ms. Reilly intended to proceed with her claim in September 2020. Ms. Reilly had not produced an affidavit of documents or attended an examination for discovery. Justice Bell noted that the plaintiffs were responsible for moving the action along and had not done so. He concluded that the delay was inordinate and was not adequately explained despite the plaintiffs’ onus to rebut the presumption of prejudice arising from the unexplained delay.
Failure to take timely action in a legal proceeding can result in the dismissal of the claim. The plaintiffs were provided multiple avenues for disputing the WSIAT’s decisions but missed the appropriate timelines. Parties should stay informed about important procedural dates and comply with court and tribunal deadlines accordingly.
The Family Law Act claim was found to be derivative in nature. This decision demonstrates that s. 28 WSIAT decisions may prevent an FLA claimant from maintaining their personal actions arising from an incident barred by section 28.
 Ratman v. Workplace Safety and Insurance Appeals Tribunal, 2022 ONSC 3923.