CITATION: Anderson v. Dr. Haroun, 2016 ONSC 39

COURT FILE NO.: CV-13-481406

DIVISIONAL COURT FILE NO.: 466/15

DATE: 2016012

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: EIMAN ANDERSON and MAHA DUTIL, Plaintiffs (Responding Parties)

AND:

DR. GAMAL W. HAROUN, Defendant (Moving Party)

BEFORE: J. Wilson J.

COUNSEL: Susan M. Vella, Michael Wilchesky, for the Plaintiffs (Responding Parties)

Linda Galessiere, for the Defendant (Moving Party)

HEARD at Toronto: January 6, 2016

ENDORSEMENT

The Motion for Leave to Appeal

[1] The Defendant brings this motion for leave to appeal from the decision of Corbett, J. dated September 10, 2015. He allowed the appeal from the severance order granted by Master McAffee dated February 12, 2014.

The Test for Leave to Appeal

[2] Counsel for the Defendant argues that Rule 62.02(4) of the Rules of Civil Procedure is engaged, as there appears to be good reason to doubt the correctness of the motion judge’s decision, and the proposed appeal raises issues of such importance that leave to appeal should be granted.

The Background

[3] The Plaintiffs are sisters born one year apart in age. They bring forward allegations of historic sexual abuse by their uncle, the Defendant, while he was residing with them in their home many years ago. There is no allegation that either sister knew of the allegations of abuse of the other sister until recently, and there is no allegation that both sisters were present at any time when the alleged abuse occurred.

[4] The Master granted the severance request by the Defendant, finding that Rule 5.02(1)(a) did not apply to the facts of this case, although Rule 5.02(1)(b) and (c) did apply.

[5] The Rule provides:

5.02 (1) Two or more persons who are represented by the same lawyer of record may join as plaintiffs or applicants in the same proceeding where,

(a) they assert, whether jointly, severally or in the alternative, any claims to relief arising out of the same transaction or occurrence, or series of transactions or occurrences;

(b) a common question of law or fact may arise in the proceeding; or

(c) it appears that their joining in the same proceeding may promote the convenient administration of justice.

[Emphasis added.]

[6] The motions judge found that the Master’s conclusion that all the prerequisites for joinder were not met, and in particular her conclusion that Rule 5.02(1)(a) did not apply, “was an error”. More particularly, the motions judge concluded that the Master erred by failing to find that joinder of the plaintiffs’ claims was appropriate, as the allegations of sexual assaults of the two sisters fit neatly within the category of “a series of occurrences” within the meaning of rule 5.01(a).

[7] He concluded that: “Based upon the facts alleged in the statement of claim the close temporal and special nexus, and the identical family circumstances, places these allegations well within R. 5.02(a).”

Arguments Raised

[8] The Defendant’s counsel criticizes the motions judge for not making precise findings about errors of law, or palpable overriding errors of mixed fact and law, by the Master. The Defendant argues that the motions judge did not hear this matter as an appeal, but rather he simply disagreed with the result and substituted his own opinion in what is a discretionary decision.

[9] I disagree.

[10] The motions judge did not precisely define whether the error made was an error of law invoking a standard of review of correctness, or mixed fact and law requiring a palpable and overriding error in applying the facts to the legal principles to intervene.

[11] However, in my view, his conclusions were correct.

[12] The Master erred in law in failing to consider the applicability of “a series of occurrences”, as stipulated in 5.01(a), as a factor making joinder of the two plaintiffs appropriate given the allegations of facts and context of this case. This was a question of mixed fact and law and was a palpable and overriding error.

[13] The motions judge went on to amplify, in practical terms, the negative effect upon both the witnesses and the system of having two trials when considering the promotion of the convenient administration of justice under Rule 5.02(1)(c).

[14] The motions judge confirmed that the question of severance should be left to the trial judge when facts and context are known, and is not appropriately decided at this early stage in the proceeding.

Conclusions

[15] I agree with the motions judge that it was an error to fail to consider that the applicability of “a series of occurrences” found in Rule 5.02(1)(a) as applying neatly to the facts of this case.

[16] There is another error in the reasons of the Master discussed by the motions judge that reinforces the correctness of his decision.

[17] The Master was properly concerned about prejudice to the Defendant in assessing the question of joinder.

[18] The Defendant raised some procedural aspects that may cause prejudice, but—in the scheme of things—are relatively minor. Further, the motions judge concluded that these minor issues could be rectified by agreements between the parties or by rulings by the trial judge.

[19] One important area giving rise to the Master’s concern about prejudice to the Defendant was her concern about similar fact evidence.

[20] She stated: “Although the trial judge has the discretion to admit or exclude similar fact evidence, if the plaintiffs’ claims remain joined, the defendant will have lost the opportunity to address and argue that such evidence be excluded.”

[21] It appears that the Master misunderstood the procedure and practice of a similar fact application; applications that, while common in the context of criminal law, are rare in the context of a civil proceeding.

[22] The motions judge properly emphasized the reality of a judge alone trial, as in this case, where inevitably similar fact applications would be made. The evidence of each of the sisters will be heard. The question of collusion or ulterior motive will surely be raised by the defence. The trial judge will sort out how the evidence of one witness will be treated in relation to the other when he or she considers the similar fact application.

[23] Whether there are two trials or one trial, inevitably the trial judge will hear all of the evidence from both sisters and will hear submissions from counsel about how the evidence is to be treated. A similar fact application may or may not be granted, but the trial judge will have heard the evidence of both sisters and will assess the evidence in accordance with legal principles.

[24] In these circumstances, contrary to the finding of the Master, there can be no prejudice to the Defendant in having one trial.

[25] Even if this matter is to proceed before a jury, in the criminal law context, complainants of sexual abuse from the same family routinely are heard in one criminal proceeding, and any issue of prejudice is taken care of by instructions from the trial judge. If collusion is alleged, as is so often the case, it is not necessarily a prejudice to a defendant to have the jury hear the evidence of all complainants in one trial.

[26] As the motions judge concluded, there is significant prejudice to all parties, including the Defendant, but also for the Plaintiffs to have to participate in the cost and emotional trauma of two trials with common issues, overlapping evidence, and, inevitably, similar fact applications.

[27] For these reasons, the request for leave to appeal from the motion judge’s decision is dismissed. I do not question the correctness of his decision. Nor do I find this is a matter of such importance that should be heard by a panel of the Divisional Court. Neither branch of Rule 62.04(b) is engaged.

Costs

[28] I have reviewed the costs submissions of counsel. Counsel for the Defendant, Moving Party seeks costs in the amount of $8,108.53 if successful on a partial indemnity basis. The Plaintiffs, Responding Parties seek costs in the amount of $6,168.81 on a partial indemnity basis.

[29] Applying the principles of Rule 57.01, I fix the costs payable by the Defendant, Moving Party to the Plaintiffs, Responding Parties in the amount of $6,168.81 inclusive of HST and disbursements, payable forthwith.

J. Wilson J.

Date: January 12, 2016