SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: CV-13-00484447

Date Heard: 2013-11-28
Endorsement Released: 2013-11-30

RE: Yan Fan Chen, Bi Bao Huang, Li Rong Fang, Yan Yue Lin v. Jun Liang Ji

Before: Master B. McAfee

Counsel:
Todd McCarthy and Jeffrey Kroeker, student-at-law, for the Moving Party, the Defendant in Toronto Action No. CV-13-00484447, Toronto Action No. CV-13-00489387 and Brampton Action No. CV-11-4870

James Galan for the Responding Parties, the Plaintiffs in Toronto Action No. CV-13-00484447 and Toronto Action No. CV-13-00489387

Bajinder Kalsi for the Responding Party, the Plaintiff in Brampton Action No. CV-11-4870

REASONS FOR DECISION

[1] This is a motion brought by the defendant in Toronto Action No. CV-13-484447 and Toronto Action No. CV-13-489387 and Brampton Action No. CV-11-4870 for certain relief. In accordance with the endorsement of Master Glustein dated November 20, 2013, and as confirmed by counsel on the motion, the following relief is sought:

(i) An order that Toronto Action No. CV-13-484447 and Toronto Action No. CV-13-489387 be tried together or one after the other as the trial Judge may direct;

(ii) An order that Toronto Action No. CV-13-484447 and Toronto Action No. CV-13-489387 be transferred to Brampton; and

(iii) An order that Toronto Action No. CV-13-484447 and Toronto Action No. CV-13-489387, following transfer to Brampton, be tried together with Brampton Action No. CV-11-4870 or one after the other as the trial Judge may direct.

[2] The plaintiffs in the Toronto actions do not oppose the relief sought at paragraph 1(i) above. On an unopposed basis, an order shall go accordingly.

[3] The balance of the relief sought is opposed by the plaintiffs in the Toronto actions and by the plaintiff in the Brampton action.

[4] The Toronto actions and the Brampton action arise as a result of a motor vehicle accident that occurred on August 18, 2011. The plaintiffs in the actions were passengers in the motor vehicle owned and operated by the defendant in the actions. No other vehicles were involved in the accident.

[5] The reason that the defendant in the actions requests the transfer of the Toronto actions to Brampton is for the Toronto actions to be tried together with the Brampton action. Pursuant to the order of the Honourable Madam Justice Snowie dated August 19, 2013, the Brampton action is scheduled to proceed to trial on the January 6, 2014 blitz list for eight to ten days.

[6] In seeking this relief, the defendant in the actions is not attempting to delay the trial of the Brampton action. The defendant is prepared to proceed to trial in the three actions commencing on January 6, 2014. The defendant has offered December 2013 dates for examinations for discovery in the Toronto actions and is agreeable to waiving any deadlines for the delivery of any of the plaintiffs’ expert reports.

[7] It is the position of the five plaintiffs in the Toronto actions that they cannot be ready for trial by January 2014 notwithstanding the defendant’s willingness to proceed to examinations for discovery in December 2013 and a waiver of certain deadlines.

[8] I agree with the position of the plaintiffs in the Toronto actions in this regard. The Toronto actions were only commenced on July 9, 2013 and September 24, 2013. It is not realistic to expect the Toronto actions to be ready for trial in January 2014.

[9] In my view, however, Justice Snowie has already considered and determined the issue before me and has ordered that the Brampton action proceed alone to trial on the January 6, 2014 blitz list. Her Honour was made aware of the fact that defendant expected to be served with another action arising out of the same accident. Her Honour noted that the Brampton action was ready for trial. Her Honour considered the prejudice to the plaintiff if the Brampton action were consolidated with other actions and found that such an order would be highly prejudicial to the plaintiff in the Brampton action.

[10] Other than to allow for the Toronto actions to be tried together with the Brampton action, there is no reason to transfer the two Toronto actions to Brampton. The Toronto actions have no connection to Brampton other than the existence of the Brampton action arising out of the same accident. Justice Snowie has ordered that the Brampton action shall proceed to trial alone. The evidence before me does not otherwise satisfy me that a transfer of the Toronto actions to Brampton is desirable in the interest of justice having regard to the factors set forth at Rule 13.1.02(2)(b) of the Rules of Civil Procedure.

[11] Accordingly, the motion for the relief set forth at paragraph 1 (ii) and (iii) above is dismissed. The dismissal is without prejudice. Although unlikely given the order of Justice Snowie, if the trial in the Brampton action does not proceed in January 2014 as ordered, the motion for transfer of the Toronto actions to Brampton and for trial together of the Toronto actions with the Brampton action may be sought again.

[12] Summary of Order:

(i) On an unopposed basis, Toronto Action No. CV-13-484447 and Toronto Action No. CV-13-489387 shall be tried together or one after the other as the trial Judge may direct;

(ii) The motion for an order that Toronto Action No. CV-13-484447 and Toronto Action No. CV-13-489387 be transferred to Brampton is dismissed, without prejudice.

(iii) The motion for an order that Toronto Action No. CV-13-484447 and Toronto Action No. CV-13-489387, following transfer to Brampton, be tried together with Brampton Action No. CV-11-4870 or one after the other as the trial Judge may direct is dismissed, without prejudice.

[13] If any party seeks costs and if the parties are unable to agree on costs after reasonable attempts have been made to do so, any party seeking costs shall serve and file brief written submissions on costs of two pages or less in length on or before December 11, 2013. Any responding submissions shall also be two pages or less in length and served and filed on or before December 18, 2013. Any reply submissions shall be one page or less in length and served and filed on or before December 20, 2013. The submissions shall be accompanied by the party’s costs outline. The material shall be filed with assistant trial coordinator Conrad Diamante, 6th floor, 393 University Avenue. An affidavit of service shall also be filed with the material.

Master B. McAfee

DATE: November 30, 2013