COURT FILE NO.: 06-CV-307223PD3

DATE: 20120522

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

NANCY TANNER and GLORIA KRAMPP

Plaintiffs/Respondents

• and -

THE TRUSTEES OF THE ESTATE OF DR. CHARLES MCILVEEN, NYLE MCILVEEN and CARLA MCILVEEN-CLAY

Defendants/Appellants

Loretta P. Merritt for the Respondents/Plaintiffs

Sarit E. Batner and Elder C. Marques for the Appellants/Defendants

HEARD: April 18, 2012

LEDERMAN J.

REASONS FOR DECISION

NATURE OF PROCEEDING

[1] This is an appeal by the defendants from the Order of Master Brott, dated December 1, 2011, dismissing the defendants’ motion for severance of the plaintiffs’ claims.

[2] The action is brought by two individual plaintiffs who each make different allegations of various forms of inappropriate sexual or other misconduct against their now deceased family physician, Dr. Charles McIlveen.

[3] Dr. McIlveen always denied the allegations.

[4] All parties agree that the two plaintiffs are unconnected and met only through the litigation. Neither party is a witness in relation to the conduct alleged by the other plaintiff.

[5] Examinations for discovery were completed in 2006. With the exception of this appeal, all other procedural steps in this proceeding have been completed and all that remains is the jury trial of the plaintiffs’ claims.

[6] The plaintiffs have indicated that they intend to tender their own evidence as similar fact evidence in support of each other’s claims and, additionally, intend to introduce similar fact evidence of other female patients of Dr. McIlveen.

[7] The defendants brought a motion before the Master to sever the claims of the two plaintiffs on two grounds: 1) that the criteria of Rule 5.02 (1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 are not met on the facts in that the claims do not arise out of the same or a series of transactions or occurrences, that there are no common questions of fact or law and joinder would not promote the convenient administration of justice; and 2) that the action should be severed because of the prejudice to the defendants if the action is not severed.

THE MASTER’S DECISION

[8] The Master found that the plaintiffs met the test for joinder. She found that the claims shared common issues of law and fact. The expert evidence necessary to establish the standard of care will be common to both plaintiffs’ claims. The evaluation of the admissibility of similar fact evidence at trial is in and of itself an issue of mixed fact and law that is common to both plaintiffs. Moreover, multiplicity of proceedings which would unduly inconvenience the expert witnesses and possibly other witnesses at trial should be avoided.

[9] The Master found that, furthermore, if the plaintiffs’ claims are severed, there could be different determinations reached by two different trial judges on the issue of the admissibility of similar fact evidence. As a result, the continued joinder of the plaintiffs’ claims would allow for the efficient judicial determination of the admissibility question.

[10] Aside from those considerations, the Master stated that, in her view, “the more significant issue” was the timing of the motion which was determinative of the matter. At paragraphs 19-20, the Master stated as follows:

…[I]n my view the more significant issue which was not addressed by the defendants, is the issue of the status of these proceedings. The within action was set down for trial on June 29, 2010. The issue of severance was first raised by the defendants on October 8, 2010. At that time, the only remaining step in the proceedings was the trial. A review of virtually all severance cases demonstrates that these motions are generally brought in the early stages of the litigation.

The defendants have, in my view, brought this motion in an effort to determine the conduct of the trial, in advance of the trial and before someone other than the trial judge. Severance is an issue that concerns the conduct of the litigation including the stages such as productions and discoveries. A motion to sever is not intended to be about the conduct of the trial. The conduct of the trial of the action should be left to the trial judge. For this reason alone, the motion is dismissed.

STANDARD OF REVIEW

[11] A Master’s decision will only be interfered with if the Master made an error of law or exercised his or her discretion on the wrong principles or misapprehended the evidence such that there is a palpable or overriding error.

[12] The defendants allege that the Master applied the wrong test in considering whether or not to sever the plaintiffs’ claims. They assert that she incorrectly found that there were common issues that would permit joinder. Moreover, the defendants submit that the Master failed to recognize the irreparable prejudice that joinder causes in that it would result in the de facto admission of otherwise inadmissible similar fact evidence.

ANALYSIS

[13] The Master found that, quite apart from the fact that the criteria of Rule 5.02 had been met, the timing of the motion for severance in relation to the trial was such that it was best to leave the conduct of the trial to the trial judge and, for that reason alone, the motion for severance was dismissed.

[14] Rule 5.05 provides as follows:

Where it appears that the joinder of multiple claims or parties in the same proceeding may unduly complicate or delay the hearing or cause undue prejudice to a party, the court may,

(a) Order separate hearings;

(b) Require one or more of the claims to be asserted, if at all, in another proceeding;

(c) Order that a party be compensated by costs for having to attend, or be relieved from attending, any part of a hearing in which the party has no interest;

(d) Stay the proceedings against a defendant or respondent, pending the hearing of the proceeding against another defendant or respondent, on condition that the party against whom the proceeding is stayed is bound by the findings made at the hearing against the other defendant or respondent; or

(e) Make such other order as is just.

[15] As the Master correctly pointed out “[a] review of virtually all severance cases demonstrates that these motions are generally brought in the early stages of the litigation” (at paragraph 19).

[16] For example, in Dawe v. Reliance Home Comfort, [2009] O.J. No. 675 (S.C.), at para. 30, Kelly J. considered the various claims that were joined and concluded that “the legal and factual determinations in each plaintiff’s claim will require separate evidence and productions, little of which will be related. This will both unduly complicate and delay the proceedings if the plaintiffs’ claims remain joined.” Clearly, in this case, the decision to sever by the motions judge was made prior to the conclusion of the discovery process.

[17] Also in 3414493 Canada Inc. v. 505896 Ontario Ltd., [2007] O.J. No. 3988 (Master), Master Glustein ordered severance of claims based on two contracts. Again, the decision to sever was made early in the litigation process prior to the discovery process (see para. 8).

[18] In Suguitan v. McLeon, [2002] O.J. No. 878 (S.C.), Molloy J., on a severance motion, noted the inefficiency and impracticality of having three claims proceed separately. In particular, she referred to the potential for duplicative productions, discoveries and motions as being grounds why the claims were properly joined and refused the motion to sever (see paras. 4-6).

[19] These cases support the Master’s view here that such motions for severance are usually brought in the early stages of the litigation. In the instant case, there has been only one set of discoveries and one mediation in respect of the plaintiffs’ claims. The parties have had the benefit of this efficiency arising from the joinder of the claims up until now. No complaints about joinder have been asserted by the defendants until this motion at this late stage was brought.

[20] Moreover, while the likely method of trial may be a consideration in the motion for severance, the Master properly considered that the method of trial remains a matter best left to the trial judge. In 3414493 Canada Inc. the Master granted the motion to sever specifically on the assumption that the manner of trial was one left to the trial judge. At para. 7, Master Glustein noted,

[a]ll of the moving parties agreed that if I were to sever the claims, the trials of the actions could be heard one after the other by the same judge, subject to the discretion of the trial judge to hear both actions together or make any other order the trial judge considers appropriate to manage the actions. Consequently, I consider the motion to sever on the basis of such relief. [Emphasis added.]

[21] Rulings on the admissibility of similar fact evidence are solely within the authority of the trial judge. Depending on such findings, the trial judge has the power to allow the action to proceed or to sever the claims into two trials in order to avoid prejudice. Moreover, in this way, if the trial judge determines that the plaintiffs’ evidence constitutes admissible similar fact evidence in support of each other’s case, the trial judge can allow the action to proceed and thereby avoid the risk of inconsistent findings and verdicts that could arise if there were to be two trials; if the similar fact evidence is held to be inadmissible, the trial judge may order that there be two separate trials.

[22] In the end, the Master considered whether continued joinder would unduly complicate or delay or cause undue prejudice as is required by Rule 5.05 and reasonably exercised her discretion to conclude that, at this stage of the proceeding, severance was not appropriate.

[23] In doing so, the Master has made no error of law nor exercised her discretion on wrong principles and, accordingly, there is no basis to interfere with her decision.

[24] Having so found, it is unnecessary to consider whether the Master erred in concluding that joinder of the claims in the first instance was appropriate.

[25] The appeal is therefore dismissed.

[26] Counsel have agreed that the costs of the appeal should be fixed at $6,000, all-inclusive. Accordingly, the plaintiffs will have their costs of the appeal in that amount payable by the defendants within thirty days.

Lederman J.

Released: 20120522

COURT FILE NO.: 05-CV-285434CM2

DATE: 20120522

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

NANCY TANNER AND GLORIA KRAMPP

Respondents/Plaintiffs

and

THE TRUSTEES OF THE ESTATE OF DR. CHARLES MCILVEEN, NYLE MCILVEEN and CARLA MCILVEEN-CLAY

Appellants/Defendants

REASONS FOR DECISION

Lederman J.

Released: 20120522