ONTARIO
SUPERIOR COURT OF JUSTICE
Thunder Bay International Airport Authority Inc.
2012 ONSC 5869
COURT FILE NO.: CV-07-0205-00
DATE: 2012-10-16
B E T W E E N:
DRD CONSTRUCTION SERVICES LTD.
Mr. D. Zulianello , for the Plaintiff
Plaintiff
- and -
THUNDER BAY INTERNATIONAL AIRPORTS AUTHORITY INC.
Mr. R. Johansen , for the Defendant and for the Third Party (on the motion only)
Defendant
NORR LIMITED, ARCHITECTS AND ENGINEERS
Third Party
HEARD: October 4 , 2012, at Thunder Bay, Ontario
Regional Senior Justice H.M. Pierce
Reasons on Motion to Try Third Party Claim Separately from the Main Action
Introduction
[ 1 ] The defendant and third party seek an order bifurcating trial of the main action and the third party claim, such that the third party claim will be held at a different time than the main action.
[ 2 ] The plaintiff claims damages for breach of contract, negligence, and breach of duty of fairness in tendering a contract for construction of baggage handling infrastructure at the Thunder Bay International Airport. The defendant disputed liability. It also commenced a third party claim against the architect, Norr, which it retained to run the tendering process. The defendant claimed contribution and indemnity, negligence and breach of contract in the third party proceeding. Norr defended the main action as well as the third party claim.
[ 3 ] All parties participated in joint examinations for discovery and a joint pre-trial. Both trial records were passed in August, 2012. The main action and the third party claim were listed for trial on the October, 2012 running list. In July, 2012, an order granted the parties a fixed date for trial on the October running list, in order to accommodate expert witnesses and out-of-town counsel.
[ 4 ] Next, an order was granted on September 20, 2012, abridging the time for service of expert reports and traversing the case, on consent, to the sittings commencing December 3, 2012; a schedule for the service of expert reports based was also ordered.
[ 5 ] In September, the defendant and third party began suggesting that the third party action ought to be tried separately from the main action. The defendant moved for an order, pursuant to Rule 29.08 (2) that the third party action be tried separately from the main action. Specifically, the defendant asks for an interlude between the trials so that the same trial judge can adjudicate all issues.
[ 6 ] Mr. Johansen also submits that he can’t anticipate when the third party action will be ready for trial as expert reports are not available. This is an extraordinary submission considering the case has been pre-tried, the trial records have been passed, and the matter has already been traversed on consent from the October sittings to the December sittings, with a timetable ordered for delivery of expert reports for the December sittings. I can only conclude that the third party is ignoring the court’s timetable for delivery of expert reports.
The Positions of the Parties
[ 7 ] The defendant, who is joined by the third party, submits:
the main action, which is less complicated, can be tried in December, with the court determining how the duty to tender applies to the facts. This portion of the proceeding is expected to take 3 – 4 days;
bifurcating the trial is the least expensive option for the parties as the result of the main action may determine whether the third party action proceeds;
the third party claim with expert evidence constitutes a more complicated trial, with distinct issues, and will require 5 or more days to try; and
the court should preserve its resources.
[ 8 ] The plaintiff contends that:
Rule 29.08 creates a presumption that the main action and the third party claim will be tried together;
the motion, in effect, seeks relief against joinder as contemplated by Rule 5.05;
evidence about tendering is common to the main and third party actions and will be required in the main action;
there is no motion before the court to have the same judge hear the two proceedings; and
the case has been scheduled on the basis that it will be tried together and the circumstances have not changed.
The Law
[ 9 ] The motion is brought pursuant to Rule 29.08 which provides:
(1) After the close of pleadings in the third party claim it shall be listed for trial as an action as provided in Rule 48 without undue delay and placed on the trial list immediately after the main action.
(2) The third party claim shall be tried at or immediately after the trial of the main action, unless the court orders otherwise.
[ 10 ] The plaintiff argues the defendant and third party are really seeking relief against joinder, which is governed by Rule 5.05 which provides:
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 proceeding against a 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.
Discussion
[ 11 ] I have concluded that the within motion to bifurcate the main and third party action is without merit for the following reasons.
[ 12 ] Firstly, the relevant part of Rule 48.04 stipulates that,
… any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate…any motion…without leave of the court.
[ 13 ] Neither the defendant nor the third party has sought leave here. For this reason alone, the motion should be dismissed.
[ 14 ] Secondly, Rule 29.08 is presumptive. The rules recognize the efficiency of trying cases with common factual underpinnings together or immediately after each other. This facilitates the fact-finding process, and facilitates the scheduling of a common trial judge, thereby avoiding the risk of inconsistent verdicts if the case is bifurcated and different trial judges are assigned. As the plaintiff points out, there is no motion in this case for a common trial judge to be assigned if the case is bifurcated. Further, there is the risk that there will be considerable delay in scheduling the third party action, protracting the proceeding.
[ 15 ] In Elcano Acceptance Ltd. et al. v. Richmond, Richmond, Stambler & Mills 1986 (ON CA) , [1986] O.J. No. 578 (Ont. C.A.) , the court reviewed a decision of a trial judge directing separate trials for separate causes of action. The court acknowledged that the trial judge had an inherent jurisdiction to make this order. However, it commented at para. 11 that as “…it is a basic right of a litigant to have all issues in dispute resolved in one trial,” the authority of the trial judge to split issues to be tried “must be regarded as a narrowly circumscribed power.” The court also cautioned that the court should be slow to make such an order over the objection of one of the parties, as is the case here.
[ 16 ] Drawing on this jurisprudence, Mr. Justice Cullity dealt with a bifurcation issue in E.F. Appliances Canada Ltd. v. Coranco Corp. [2003] O.J. No. 3355 (S.C.J.) . Justice Cullity observed at para. 4, “…judicial experience justifies scepticism about the efficiencies, and other advantages, to be gained from splitting trials.” He also determined that there is not a sufficient ground for splitting trials if the defendants are successful in defending the original claim, such that the additional claims will be rendered moot. Essentially, this is the argument that the defendant and third party make here: that trial of the third party issue will not be necessary if the plaintiff cannot succeed on its claim.
[ 17 ] Here, the third party has defended the main action and so would presumably be required to attend at trial to defend the factual foundation in the main action in any event.
[ 18 ] Thirdly, the actions are not distinct as to their facts. The factual underpinnings involve the tendering process. Splitting the actions would require this evidence to be repeated, which is not efficient.
[ 19 ] The defendant has cited several cases in support of its argument. Most of these authorities were not helpful for the reasons that follow.
[ 20 ] The case, Martin v. McNaughton, 2009 CarswellBC 1732 (B.C.S.C.) deals with a severance issue based on a British Columbia rule of civil procedure which is quite different than the Ontario rule and does not contain the presumptive wording that cases will be tried together.
[ 21 ] In, Toronto (City) v. British American Oil Co., 1947 (ON CA) , [1947] O.R. 256 (Ont. C.A.) , the court dealt with an appeal from a Master’s order giving directions concerning a third party proceeding at trial pursuant to what was then Rule 169. The subsequent amendment of the rule makes the decision of the court of doubtful application to the motion before me.
[ 22 ] Dupont Canada Inc. v. Russel Metals Inc., 1999 CarswellOnt 2748 (Ont. Master) is also distinguishable. That decision dealt with the application of Rule 29.09, a plaintiff’s motion, which is not applicable here.
[ 23 ] In Nelma Information Inc. v. Holt, 1985 CarswellOnt 557 (H.C.J.) , the court ruled on third party procedure in cross-examination on an affidavit of documents. The procedural background is so different that the reasoning does not assist the defendant’s arguments in this case.
[ 24 ] Finally, in Bourne v. Saunby, 1993 CarswellOnt 490 (Ont. Gen. Div.) , the plaintiff moved for an order severing liability and damages at trial. The motion was dismissed. Among the factors considered were the lack of consent by the opposing party; the fact that the plaintiff had not shown that severance of the issues “would not cause significant problems in completing the timely adjudication of all of the issues”; and that there was no evidence that costs would be saved. All of these factors apply to the case at bar.
[ 25 ] For these reasons, the motion is dismissed.
[ 26 ] If the parties cannot agree on costs, any party may, within thirty days, obtain an appointment from the trial coordinator to argue same, with submissions not to exceed five pages. If an appointment is not obtained within thirty days, costs will be deemed settled.
“Original signed by”
Regional Senior Justice H.M. Pierce
Released: October 16, 2012
Thunder Bay International Airport Authority Inc.
2012 ONSC 5869
COURT FILE NO.: CV-07-0205
DATE: 2012-10-16
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: DRD CONSTRUCTION SERVICES LTD Plaintiff - and – THUNDER BAY INTERNATIONAL AIRPORT AUTHORITY Defendant NORR LIMITED, ARCHITECTS AND ENGINEERS Third Party REASONS ON MOTION Pierce, J
Released: October 16, 2012
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