Agarwal v. York Fire & Casualty Insurance Company

COURT FILE NO. CV-09-376171
2012 ONSC 1411

MOTION HEARD: February 29, 2012

Christine Boulos for the plaintiff
Catherine Korte for the defendant

ENDORSEMENT

Master R.A. Muir -

[1] The plaintiff brings this motion pursuant to Rule 6.01 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 (the “Rules”) for an order that this action be tried together with action number CV-08-356047 ( Agarwal v. Lee ). This action involves a claim by the plaintiff for certain accident benefits under a contract of insurance entered into between the plaintiff and the defendant. The Agarwal v. Lee action is a tort action. In both actions the plaintiff seeks damages arising from an incident which took place on June 6, 2006 in which the plaintiff was struck by a TTC streetcar.

[2] The defendants to the tort action do not oppose the relief sought by the plaintiff on this motion. The defendant in this action opposes such relief.

[3] Rule 6.01 provides as follows:

6.01 (1) Where two or more proceedings are pending in the court and it appears to the court that,

(a) they have a question of law or fact in common;

(b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or

(c) for any other reason an order ought to be made under this rule,

the court may order that,

(d) the proceedings be consolidated, or heard at the same time or one immediately after the other. . .

[4] The parties agree that the principles the court is to consider on motions such as this are set out in the decision of Justice Gordon in Logtenberg v. ING Insurance Co ., 2008 CarswellONT 5100 (S.C. J.) at paragraphs 7 to 10, which read as follows:

7 I believe that it is now commonly accepted that the underlying policy of Rule 6 is to avoid a multiplicity of proceedings, to promote expeditious and inexpensive determination of disputes and to avoid inconsistent judicial findings.

8 In order for a moving party to be successful in having the court consider its request to have two actions tried together or one immediately following the other, it has the onus of meeting one of the criteria set out in Rule 6, namely that:

(a) the separate proceedings have a question of law or fact in common;

(b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or

(c) for any other reason an order ought to be made under this rule.

9 I am satisfied that the two proceedings have a question of fact in common. Indeed, the Plaintiff as much as admits the same in paragraph 14 of her factum. The nature of the Plaintiff's injuries, the extent of her disability, and whether or not such disability arose as a result of the motor vehicle accident in question are issues that will figure to one extent or another in both actions.

10 As ING has satisfied one of the criteria set out in Rule 6, it becomes necessary to consider other factors that might lead a court to consider whether or not the requested order ought to be granted. This involves a balancing of such factors as expediency, convenience and prejudice to the parties. A useful list of criteria has been developed in the cases of Webster v Webster ( 1979) 1979 744 (BC CA) , 12 B.C.L.R. 172 and Shah v Bakken 1996 2522 (BC SC) , [1996] B.C.J. No. 2836 :

• Will the order sought create a savings in pretrial procedures?

• Will there be a real reduction in the number of trial days taken up by the trials being heard at the same time?

• What is the potential for a party to be seriously inconvenienced by being required to attend a trial in which that party may only have a marginal interest?

• Will there be real savings in experts' time and witness fees?

• Is one of the actions at a more advanced stage than the other?

• Will the order result in a delay on one of the actions?

• Are any of the actions proceedings in a different fashion?

[5] I have considered and applied these factors and principles to the facts before me on this motion and I am satisfied that it is appropriate to order that this action and the tort action be tried together.

[6] In my view, the plaintiff has met the initial onus placed upon him on this motion. Both actions arise out of the same event, namely the accident of June 6, 2006. As well, the nature of the plaintiff’s injuries and the extent of his damages will be issues, to at least some degree, in both actions. For example, the trial of both actions will need to address issues related to the plaintiff’s pre-accident and post-accident health, the nature and extent of certain care and assistance services provided to the plaintiff after the accident and issues related to the plaintiff’s income at the time of the accident.

[7] The plaintiff has therefore met the criteria set out in Rule 6.01(1)(a) and (b). As a result, the court must now consider any other factors that would assist the court in determining whether the order for trial together should be granted.

[8] Any savings in pre-trial procedures will be minimal given the fact that the parties have already dealt with both actions on a joint basis, with common discoveries and a common timetable. Both actions are ready to be set down for trial. The only conceivable savings will arise from the fact that only one pre-trial will be required if the actions are ordered to proceed together.

[9] I am satisfied, however, that there will be a real reduction in the required number of trial days. There will obviously be a number of witnesses whose evidence will be applicable to both actions. Those witnesses will only have to testify once if these actions are tried together.

[10] I accept that there may be some inconvenience to the defendant by having to attend those portions of the trial that may be irrelevant to the accident benefits claim. However, the trial judge retains a discretion to excuse the defendant and its counsel from attending each and every day of the trial, especially when the evidence may be of no relevance to the accident benefits action. In this way, any inconvenience and cost to the defendant can be reduced. I would also note that the only inconvenience to this defendant is in terms of added expense, which is a matter that can potentially be addressed as part of its costs submissions at the end of the trial.

[11] It would also appear that there will be at least some savings in expert witness time and fees. Some of the overlapping witnesses will be medical experts and they will only have to attend and give their evidence on one occasion.

[12] As I have indicated above, these two actions have had common discoveries and have proceeded on a common timetable. Both are ready to be set down for trial. One is no more advanced than the other and there will be no delay.

[13] The tort action is proceeding with a jury, while this action is not. However, there is authority for the proposition that jury and non-jury actions can still be tried together. As an example, the liability and damages issues in one action can be tried by a jury and the damages issue in the other action can be determined by the trial judge. See Brown v. Buckley Cartage , 1993 CarswellONT 420 (Gen. Div. – Master) at paragraph 18.

[14] The defendant made much of the fact that the plaintiff is proceeding against the defendant in arbitration proceedings before the Financial Services Commission of Ontario while at the same time pursuing this accident benefits action. It argues that any benefit from trial together will be lost as other proceedings for the same relief are underway before the Financial Services Commission of Ontario. In my view, this is not a relevant consideration on this motion. This motion is about the two actions in this court and the policy of Rule 6 which is to “ avoid a multiplicity of proceedings, to promote expeditious and inexpensive determination of disputes and to avoid inconsistent judicial findings”. See Logtenberg at paragraph 7.

[15] Finally, there is no general proposition that tort and accident benefits actions cannot be tried together. See Reeve v. Pembridge Insurance Company , 2011 ONSC 5471 at paragraphs 5 and 8 .

[16] Having balanced the various factors set out above, it is my view that it is appropriate in the circumstances before me on this motion that I exercise my discretion and order that this action and the tort action be tried together.

[17] At the conclusion of the argument of this motion, the parties agreed that the successful party should be awarded partial indemnity costs fixed in the amount of $2,000.00, which I view to be fair and reasonable in the circumstances.

[18] I therefore order as follows:

(a) this action and action number CV-08-356047 ( Agarwal v. Lee ) shall be tried together, or one after the other, or in such other manner as the trial judge may direct; and,

(b) the defendant shall pay to the plaintiff his costs of this motion on a partial indemnity basis which are hereby fixed in the amount of $2,000.00 inclusive of HST and disbursements, payable within 30 days.

February 29, 2012

Master R.A. Muir