2. This is a negligence action brought by the plaintiff against Mr. McCarthy, the plaintiff’s former lawyer. Mr. McCarthy handled the plaintiff’s accident benefits claim arising from a motor vehicle accident. The accident benefits claim was settled in 2005. The plaintiff alleges that the settlement was improvident and that Mr. McCarthy was negligent in counselling the plaintiff to accept the settlement offer. Mr. McCarthy denies the plaintiff’s allegations.
3. In late 2013 the plaintiff’s 2005 settlement of his accident benefits claim was set aside. That claim is now the subject of an arbitration proceeding before the Financial Services Commission of Ontario (“FSCO”). It is unclear when that hearing will take place but both sides agree that the FSCO disposition is many months or perhaps years away. Both sides also agree that it makes practical sense for the trial of this action to follow the outcome of the FSCO arbitration process.
10. As well, there will be no risk of inconsistent findings or of double recovery under the plaintiff’s proposal because the trial will not take place until after the outcome of the FSCO proceeding is known.
11. On the other hand, the plaintiff’s right to speedy justice will be negatively affected. Under the defendant’s proposal the refusals motion could not be scheduled and argued until after the FSCO decision. This, coupled with the time required for responding to any additional questions ordered to be answered and scheduling a follow-up examination, would result in many additional months of delay. I agree that the plaintiff could have moved to set aside the accident benefits settlement at an early date rather than waiting for LawPro to act. However, this claim is now seven years old. The subject accident was in 2003. The alleged negligence took place in 2005. Further preventable delay is simply not desirable in these circumstances.