LG v BA – CV-09-391169

R v BA – CV-09-391170

2012 ONSC 7092

Counsel: Scott D. Chambers and Andrew F. Weafer for the plaintiffs Alan A. Farrer for the defendants W.C.S. and Upper Grand District School Board James Pietrangelo for the defendant B.A.

ENDORSEMENT (MOTIONS HEARD DECEMBER 11, 2012)

Master R.A. Muir -

[1] The plaintiffs in these two actions each bring a motion seeking an order that these two actions be tried together. Alternatively, the plaintiffs seek an order that the actions be tried one immediately following the other. The moving plaintiffs also seek orders extending the date by which both actions must be set down for trial. Finally, the plaintiff L.G. (“L.G.”) seeks an order granting her leave to amend her statement of claim.

[2] The defendants do not oppose the orders sought with respect to the extension of time and the amendments to the L.G. statement of claim. The defendant B.A. (“B.A.”) does not oppose the relief with respect to trial together. The defendants W.C.S. (“W.C.S.”) and Upper Grand District School Board (the “Board”) oppose that portion of the relief sought by the plaintiffs.

[3] It appears that between 1979 and 1980, the defendant B.A. sexually assaulted the plaintiff R. on a repeated basis. These acts by B.A. did not come to the attention of law enforcement authorities until 2008. On June 23, 2009, B.A. pleaded guilty to indecent assault and sexual intercourse with a minor and was sentenced to 3.5 years in federal penitentiary. These assaults by B.A. took place on the premises of C[…] (“C[…]”), a high school operated by the defendant Board. B.A. was employed as a guidance counsellor at the school at the time of the assaults.

[4] The plaintiff L.G. alleges that she was assaulted by B.A. in January or February of 1981. L.G. alleges that Able touched her in an inappropriate manner on one occasion. L.G. reported this incident to W.C.S. , who was principal of C[…] at the time. At about the same time, she advised W.C.S. that R. had been sexually assaulted by B.A. the previous year ( W.C.S. was not principal of C[…] at the time of the assaults on R.).

[5] As against B.A., the plaintiff R. claims damages for sexual assault and other related relief. The plaintiff L.G. seeks damages from B.A. for assault. The claims of both plaintiffs against W.C.S. and the Board are based on negligence both in terms of vicarious liability for the acts of B.A. and as a result of a failure to act once they learned of the assaults from L.G..

[6] Rule 6.01 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 (the “Rules”) provides, in part, 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;

[7] In Lorch v. McHale , 2008 CarswellOnt 4288 (SCJ) at paragraph 13 , the court held that where there are “likely to be many common questions of fact to be determined regarding the historical context”, that such a finding was sufficient, on its own, to satisfy the requirements of Rule 6.01.

[8] Other factors the court may take into account are set out in Master Albert’s decision in Chebib v. Medcomsoft Inc. , 2003 CarswellOnt 563 (SCJ – Master) . Those factors include:

● whether there will be any duplication of evidence;

● whether the parties and counsel are the same in both actions;

● the relative stage of the two actions;

● the potential for inconsistent findings; and,

● the level of complexity if heard together or consecutively.

[9] In my view, the test under Rule 6.01 has been satisfied on the motions before me. It is true that the assaults by B.A. on R. and L.G. did not take place concurrently. However, certain allegations regarding the investigation by W.C.S. and the Board are common to both claims especially with respect to an allegation that the defendant W.C.S. gave R.’s contact information to B.A. which allowed B.A. to attempt to re-establish contact with R.. Of course, both claims arise out of similar allegations of improper conduct on the part of B.A., who was an employee of the Board at the relevant times.

[10] I also note that the defendants and their counsel are the same in both actions. Both actions are at the same stage in their respective proceedings. A number of the witnesses and certain portions of the evidence will be the same in both actions, which may give rise to a concern with respect to inconsistent findings. Both actions have proceeded jointly to date, at least on an informal basis. Discoveries and mediation have been held together.

[11] In my view, all of these factors militate in favour of an order for trial together or for trial one immediately after the other. Such an order will further the goal of judicial economy and promote the just, most expeditious and least expensive determination of these proceedings, as mandated by Rule 1.04. Of course, any such order will be subject to the further discretion of the trial judge. It is certainly not the role of the court on a motion at this stage of these proceedings to tie the hands of the trial judge in terms of how these actions should be tried.

[12] The defendants W.C.S. and the Board expressed serious concerns about the fact that both of these proceedings are jury actions. They argued that intermingling of the evidence relevant to these two proceedings may result in serious prejudice to the defendants. They submit that a jury may not be able to properly compartmentalize the evidence. However, in my view, any such concerns can and will be adequately addressed by the trial judge at the appropriate time, once the trials of these actions are ready to begin. That is the time to determine whether these actions should be tried together or one after the other, with or without a jury. I note that none of the authorities cited by counsel make reference to the presence or absence of a jury as a relevant factor on a motion under Rule 6.01. There is a passing reference to the effect an order for trial together would have on a jury in Reichmann v. Toronto Life Publishing Co. , 1988 CarswellOnt 494 (HCJ) at paragraph 19 . However, I do not read Justice Anderson’s statement in Reichmann as being specific to jury trials. When read as whole, it appears that Justice Anderson’s real concern was with respect to the added complexity an order for trial together would bring to the actions before him, regardless of whether the trier of fact was a jury or a judge.

[13] I therefore order as follows:

(a) L.G. is hereby granted leave to amend her amended statement of claim in the form of the draft amended amended statement of claim attached as Schedule “A” to the draft order filed;

(b) these actions shall be set down for trial by no later than March 28, 2013;

(c) these actions shall be placed on the trial list, one following the other and shall be tried together, or one following the other, as the trial judge may direct;

(d) the pre-trials for these actions shall be held at the same time before the same judge;

(e) if the parties are unable to agree on the issue of costs, they may make brief written submissions by no later than January 4, 2013;

(f) once the issue of costs has been determined, the plaintiffs shall submit draft order to me for signing.

December 12, 2012

Master R. A. Muir