SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MEINCKE v. UNIFUND ASSURANCE COMPANY

2013 ONSC 7675

COURT FILE NO.: CV-11-430900

BEFORE: MASTER R.A. MUIR

COUNSEL: Michael Kennedy for the defendant/moving party

Alex Rozine for the plaintiff/responding party

HEARD: December 11, 2013

ENDORSEMENT

[1] The defendant 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 and the plaintiff’s separate tort action be tried together or one following the other as the trial judge may direct. The plaintiff is opposed to the relief sought on this motion. The defendants in the tort action take no position.

[2] This action arises out of a motor vehicle accident that took place on October 18, 2010. The plaintiff’s vehicle collided with a vehicle operated by James Bharat, a defendant in the related tort action. The accident took place in the middle of an intersection. Both the plaintiff and Mr. Bharat take the position that they entered the intersection with a green light.

[3] This action involves a claim for compensation for property damage to the plaintiff’s vehicle and other related relief. The defendant in this action was the plaintiff’s insurer at the time of the accident. It appears that the defendant was unable to determine who was at fault for the accident. Pursuant to Fault Determination Rule 15(3), established pursuant to section 263(3) of the Insurance Act, R.S.O. 1990, c. I.8, the defendant concluded that both drivers were each 50% responsible for the collision.

[4] The plaintiff took issue with this finding and commenced this simplified procedure action against his insurer on July 18, 2011. Discoveries have been completed subject to the defendant answering certain questions as ordered by Master Wiebe. This action is ready to be set down for trial.

[5] The tort action was commenced on the same day as this action. However, the tort action has not progressed nearly as rapidly as this action. Discoveries have not been completed. A dispute has arisen with respect to the defendants’ examinations for discovery. The plaintiff has brought a motion returnable April 24, 2014 for an order striking the defendants’ statement of defence for non-attendance at discovery. The tort action will not be set down for trial anytime soon.

[6] 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. . .

[7] 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 43573 (ON SC), [2008] O.J. No. 3394 (S.C.J.)[1] 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 other actions proceeding in a different fashion?

[8] I have considered and applied these factors and principles to the facts before me on this motion. I am not satisfied that it is appropriate to order that this action and the tort action be tried together.

[9] The defendant has clearly satisfied the initial onus of establishing at least one of the factors set out in Rule 6.01(1). Both this action and the tort action arise from the same motor vehicle accident. Some of the same questions of fact involving liability will be present in both actions. Some of the parties and counsel are the same.

[10] I must now consider other factors that will allow the court to balance such considerations as expediency, convenience and prejudice to the parties, as outlined above.

[11] The issues in this action are discreet and straightforward. They involve a determination of who was at fault for the accident. In my view, it is immaterial whether the Fault Determination Rules or the ordinary law regarding fault applies. It still remains a simple application of the applicable law to a discreet event. A limited amount of evidence will be necessary. It can most likely proceed by way of a summary trial and be completed in less than two days.

[12] The tort action, however, is much more complex. In addition to liability, it will involve a great deal of evidence with respect to damages and perhaps issues of contributory negligence not relevant to this action. The tort action is not a simplified procedure action. It is proceeding under the ordinary procedure.

[13] Given the profound differences in the nature of these two actions, I see very little potential for savings, in term of time or cost, if an order for trial together is made.

[14] It is clear to me that this action is at a much more advanced stage than the tort action. It is ready to be set down. I see no prospect of the tort action being set down in the foreseeable future. The resolution of this action will undoubtedly be delayed if an order is made for trial together.

[15] I also note as important the fact that this is a simplified procedure action without a jury. The tort action is an ordinary action with a jury.

[16] In addition, I accept that the plaintiff will be prejudiced by the order sought by the defendant in terms of further delay. The plaintiff’s evidence is that the defendant’s fault determination has made it difficult for him to insure his vehicles on an affordable basis. The defendant refused to renew the plaintiff’s policy of insurance after the accident. The plaintiff then encountered serious difficulty in finding another insurer. When he did find one, the rates he was quoted were nearly triple what he was paying to the defendant. In my view, it is important to the plaintiff that the issues in this action be determined as soon as possible.

[17] Finally, I see no prejudice to the defendant. There is no significant risk that the defendant will be saddled with a liability finding in the tort action as it is almost certain that this action will be tried first. Moreover, given the simple and discreet issues in this action, the costs to the defendant will almost certainly be less than they would be if the defendant were required to participate in the trial of the tort action.

[18] For these reasons, I am not prepared to exercise my discretion to order that these actions be tried together.

[19] At the conclusion of the argument of this motion both parties agreed that the successful party should be awarded costs on a partial indemnity basis, fixed and payable within 30 days. The costs outlines presented by both sides sought costs for a similar amount, approximately $4,000.00. In my view, such as costs order is fair and reasonable in the circumstances.

[20] I therefore order as follows:

a) the defendant’s motion is dismissed; and,

b) the defendant shall pay the plaintiff’s costs of this motion on a partial indemnity basis fixed in the amount of $4,000.00 inclusive of HST and disbursements, payable within 30 days.

Master R.A. Muir

DATE: December 11, 2013

[1] As cited by me in Agarwal v. York Fire & Casualty Insurance Co., 2012 ONSC 1411 (Master), a case relied upon by the defendant.