SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-11-418616
DATE: March 6, 2014

RE: 1206953 Ontario Inc. c.o.b. Confederation Place Hotel v. The Dominion of Canada General Insurance Company

BEFORE: Master A. Graham
HEARD: December 11, 2013

COUNSEL:
L. Theall and T. Yang for the plaintiff

P. Peloso for the defendant (moving party)

REASONS FOR DECISION

(Defendant’s motion for trial together and to transfer action to Kingston)

[1] The plaintiff is the owner of a hotel located at 237 Ontario Street in Kingston, Ontario. On April 28, 2010, a collapse occurred in the underground parking garage of the building. The plaintiff’s insurer, the defendant The Dominion of Canada General Insurance Company (“Dominion”) denied the plaintiff’s claims under its insurance policy and the plaintiff claims against Dominion for insurance coverage and indemnity in respect of the collapse as well as for aggravated and punitive damages. This action was commenced in Toronto.

[2] The plaintiff has also commenced an action (Toronto action no. CV-11-420630) against Wil Mac Paving Ltd. (“Wil Mac”), a paving contractor. In this action, the plaintiff claims that in 1997, it contracted the defendant Wil Mac to repair the concrete surface of the parking garage. The plaintiff alleges that the collapse of April 28, 2010 resulted from the negligence of Wil Mac in performing this work.

[3] The plaintiff has commenced a third action (Toronto action no. CV-12-452137) against T.A. Andre & Sons (Ontario) Limited, J.L. Richards & Associates Limited, Rod H. Pollock and Peter R. Morin. T.A. Andre & Sons Ltd. (“Andre”) is a general contractor and engineering firm and Rod H. Pollock is a professional engineer who is the president of this company. J.L Richards & Associates Limited (“Richards”) is a licensed engineering firm and Peter R. Morin is a professional engineer employed by this company.

[4] The plaintiff alleges in this action that on or about April 2, 2009, these defendants attended at the Confederation Place Hotel to inspect the parking garage. Following the inspection, the plaintiff received a quote from Andre, authored by Pollock, for some work on the parking garage. Attached to the quote was a report from Richards authored by Morin. The plaintiff further alleges that its losses as a result of the parking garage collapse resulted from these defendants’ negligence, essentially in failing to conduct an adequate inspection and failing to warn the plaintiff of conditions in the garage that could result in the collapse.

[5] The defendant Dominion now moves for an order that all three actions be tried together. The plaintiff opposes the motion for the trial together of its action against Dominion with the other two actions but agrees to have its actions against Wil Mac and against Andre, Richards, Pollock and Morin tried together, on the basis that those actions are at the same early stage. The defendants Wil Mac, Andre and Pollock consent to the order for trial together of all three actions and the defendants Richards and Morin take no position on that issue.

[6] The defendant Dominion also moves for an order that the three actions be transferred to Kingston. The plaintiff is not opposed to the transfer of the actions other than the action against Dominion to Kingston should the defendants in those actions consent.

Motion for trial together

[7] The motion for trial together is brought under rule 6.01(1) of the Rules of Civil Procedure:

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; or

(e) any of the proceedings be,

(i) stayed until after the determination of any other of them, or

(ii) asserted by way of counterclaim in any other of them. R.R.O. 1990, Reg. 194, r. 6.01 (1).

[8] Also applicable is s. 138 of the Courts of Justice Act, R.S.O. 1990, c. C. 43:

138. As far as possible, a multiplicity of proceedings shall be avoided.

[9] In 1014864 Ontario Ltd. v. 1721789 Ontario Inc., 2010 ONSC 3306, 2010 CarswellOnt 4183, Master Dash proposed a list of factors to be considered in determining whether two or more actions should be tried together, as follows (at paragraph 18):

18 A non-exhaustive list of some of the considerations on ordering trial together may, depending on the circumstances, include:

(a) the extent to which the issues in each action are interwoven;

(b) whether the same damages are sought in both actions, in whole or in part;

(c) whether damages overlap and whether a global assessment of damages is required;

(d) whether there is expected to be a significant overlap of evidence or of witnesses among the various actions;

(e) whether the parties the same;

(f) whether the lawyers are the same;

(g) whether there is a risk of inconsistent findings or judgment if the actions are not joined;

(h) whether the issues in one action are relatively straightforward compared to the complexity of the other actions;

(i) whether a decision in one action, if kept separate and tried first would likely put an end to the other actions or significantly narrow the issues for the other actions or significantly increase the likelihood of settlement;

(j) the litigation status of each action;

(k) whether there is a jury notice in one or more but not all of the actions;

(l) whether, if the actions are combined, certain interlocutory steps not yet taken in some of the actions, such as examinations for discovery, may be avoided by relying on transcripts from the more advanced action;

(m) the timing of the motion and the possibility of delay;

(n) whether any of the parties will save costs or alternatively have their costs increased if the actions are tried together;

(o) any advantage or prejudice the parties are likely to experience if the actions are kept separate or if they are to be tried together;

(p) whether trial together of all of the actions would result in undue procedural complexities that cannot easily be dealt with by the trial judge;

(q) whether the motion is brought on consent or over the objection of one or more parties.

[10] As stated by Master Dash in 1014864 Ontario Ltd., paragraphs (a), (b) and (c) of Rule 6.01(1) set out the “gateway” criteria that the moving party must meet in order for the court to be able to exercise its discretion to order trial together. Once one or more of those criteria have been met, the Rule states that “the court may order” various relief, including trial together, thus conferring discretion upon the court to make an order or not. The more exhaustive list of factors set out in 1014864 Ontario Ltd. as well as section 138 of the Courts of Justice Act may then be considered by the court in determining whether to exercise its discretion. The scope of the court’s power under rule 6.01(1) is clearly stated by Mesbur J. in Goldhar v. J.M. Publications, [2000] O.J. No. 843 as follows (at paragraph 15): “The court’s power under the rule is entirely discretionary, and need not be exercised at all”.

[11] In this case, the plaintiff accepts that the cause of the collapse of its parking garage is an issue of fact common to all three actions. In addition, the relief claimed in all three actions arises out of the same occurrence, being the collapse. As the considerations in Rule 6.01(1)(a) and (b) are satisfied, the court must consider whether to exercise its discretion to make the order for trial together sought by the defendant.

[12] The defendant Dominion submits that trial together is warranted because all three actions arise out of the same occurrence. The common issue of causation means that the evidence of all of the parties in each of the three actions will be required in each of the actions. The testimony of the plaintiff’s representatives and of the Andre and Richards defendants will include evidence as to the state of the plaintiff’s knowledge of the condition of the parking garage before the collapse, which is relevant to the issues of both insurance coverage and negligence. In addition, the evidence of DFA Engineering, which provided an expert opinion to Dominion with respect to the cause of the loss, and of Becker Engineering, which provided an expert opinion to the plaintiff, will be relevant to the issues in all three actions.

[13] Dominion further submits that the three actions have common issues of damages which will require the same or similar evidence from the same witnesses. Specifically, in its action against Dominion, the plaintiff claims damages related to the physical damage to its hotel property, debris removal, professional fees and business interruption. In both of the actions against Wil Mac Paving and against Andre, Richards, Pollock and Morin, the plaintiff claims damages for property damage, the cost of emergency work and loss of profit and goodwill related to the interruption of the hotel’s operations.

[14] Dominion also relies on rule 1.04(1):

1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[15] Dominion submits that trial together of the three actions will enable all of the issues to be resolved at a single hearing before a single trier of fact, thus saving the judicial resources that would be required should two judges conduct two separate trials with many of the same witnesses and also avoiding the possibility of inconsistent results.

[16] The plaintiff, in opposing the motion, submits that the action against Dominion is a simple contract case in which the three issues are (1) whether there is first party insurance coverage for the losses arising from the collapse, (2) whether there is an applicable exclusion and (3) if there is coverage and no applicable exclusion, how much is payable under the terms of the insurance policy. The plaintiff submits that the insurance action is much more straightforward than the negligence actions and that it could potentially be tried in approximately five days as opposed to an estimated four to five weeks for a joint trial.

[17] The plaintiff also opposes Dominion’s motion for trial together on the basis that the current status of the other two actions is that documentary production is not complete and joint discoveries will not be held until May 5, 6 and 7, 2014 at the earliest. Also, the pending summary judgment motion of the defendants J. L. Richards returnable on April 25, 2014 may have the effect of delaying the two negligence actions and ultimately any joint trial that the court is being asked to order.

[18] The plaintiff also submits that the moving defendant Dominion is responsible for delays in the progress of the action against it that should not be compounded by the inevitably longer delay in reaching trial that would result from the order sought. Specifically, Dominion failed to respond to a draft discovery plan until served with a draft notice of motion, and was partly responsible for delays in scheduling and holding examinations for discovery. Further, although the examination for discovery of Dominion’s representative was held on August 17, 2012, and the plaintiff answered its undertakings by January 31, 2013, the majority of Dominion’s undertakings were not answered until July 5, 2013. The plaintiff’s motion in respect of Dominion’s undertakings and refusals was argued on February 18, 2014.

[19] Further, in the event that the plaintiff’s action against Dominion is successful, then the two negligence actions would likely proceed as subrogated claims advanced by Dominion in the name of its insured Confederation Hotel, with the result that the plaintiff itself would be saved the additional expense of advancing those actions and of a longer trial. Finally, the plaintiff submits that the waiting period for a short trial date (less than two weeks) in Toronto is five or six months and for a long trial date is as long as two years and eight months.

[20] In summary, the plaintiff’s position is essentially that despite the overlapping issue of causation, an order for trial together will result in delays in reaching trial and a significantly longer trial both of which will be to the detriment of the plaintiff and which will outweigh any potential benefits of trial together.

[21] In considering the factors set out by Master Dash in 1014864 Ontario Ltd. v. 1721789 Ontario Inc., supra, I find as follows (using the letters from Master Dash’s decision):

(a), (b) and (c): As stated above and as acknowledged by counsel for the plaintiff, the insurance action and the negligence actions share a common issue of causation. The measure of damages in the insurance action is based on the terms of the plaintiff’s insurance policy, plus any damages based on such allegations of bad faith as can be proven. The damages in the negligence actions are based on the amounts required to restore the plaintiff to the position that it would have been in had the negligence not occurred. Although the causes of action are different, the damages overlap to a significant degree and would likely be assessed based on the evidence of mostly the same witnesses. These factors favour trial together.

(d) and (e): The plaintiff is the same in all three actions. As stated above, the evidence of all of the parties in all of the actions would overlap with respect to the common issue of causation. The expert evidence with respect to causation and the evidence of the damages witnesses would also overlap. These factors favour trial together.

(f): The plaintiff has the same lawyer in all three actions. Each set of defendants is separately represented. As a single trial means that the plaintiff’s lawyer need prepare for and attend at only one trial instead of two, and call most of the witnesses once instead of twice, this factor favours trial together.

(g): If the actions were to be tried separately, there is a risk that there could be inconsistent findings on the causation issue. This factor favours trial together.

(h): The plaintiff submits that the issues in the insurance action are more straightforward than in the negligence actions. The issue of causation is the same in all of the actions; the question is “Why did the parking garage collapse?” The only additional liability evidence in the negligence actions would relate to the standard of care required of each of the defendants which would lengthen the trial to some extent. As stated above, although the measure of damages is not the same, there would be overlapping evidence with respect to damages. The tort actions are slightly more complex than the insurance actions but not so much as to be a significant factor in favour of separate trials.

(i): If the insurance action were tried first and the plaintiff were successful, the negligence actions would still proceed with the same issues in play. The only difference would be that the negligence actions would likely be advanced as subrogated claims. However, the resolution of the insurance action would not likely put an end to the other actions or narrow the issues in those actions or increase the likelihood of settlement. This factor is neutral.

(j): Examinations for discovery and production have been completed in the insurance action subject to the plaintiff’s motion of February 18, 2014 to compel answers to questions refused at the defendant’s examination for discovery. It may be that a further examination of the defendant’s representative will be required once rulings have been made on that motion. Documentary production is not complete in the negligence actions. The parties to those actions have an upcoming deadline in that examinations for discovery are scheduled for early May but those examinations may not proceed during that time owing to a potential conflict in the schedule of one of the counsel. In addition, the pending summary judgment motion in one of the negligence actions could result in a delay in that action. This factor favours separate trials.

(k): No jury notices have been filed. As there is no issue of some of the issues being decided by a judge and some by a jury this factor is neutral.

(l): There is no possibility that trial together will enable any of the parties to avoid any interlocutory steps. This factor is neutral.

(m): The plaintiff submits that the timing of this motion by the defendant insurer is a bad faith attempt to further delay the proceedings. The plaintiff’s action against Wil Mac Paving was issued on February 18, 2011 and the action against Andre, Richards, Pollock and Morin was issued on April 25, 2012. This motion for trial together was scheduled at a case conference on August 22, 2013. The evidence in Dominion’s supporting material is that its representatives learned of the negligence actions following the examinations for discovery held in August, 2012, approximately a year before Dominion sought a date for this motion. Accordingly, even allowing for some time for counsel to advise Dominion and obtain instructions, there was some delay, of approximately nine months, in bringing this motion. This factor favours separate trials.

(n) and (o): Whether there will be any savings of costs to the plaintiff arising out of separate trials depends on whether or not the plaintiff is successful in the insurance action. If the plaintiff succeeds in the action against Dominion, the most likely outcome would be that Dominion would then pursue the tort actions by way of subrogation. This would result in a saving of costs for the plaintiff. If the plaintiff’s action against Dominion fails, then it would be required to incur the costs of a second trial in the tort actions and the combined cost of two separate trials would likely be greater than the cost of a single trial of all of the actions together. As I cannot speculate as to the likely outcome of the insurance action, this factor must be considered neutral.

(p): The plaintiff did not identify any procedural complexities that would result from trial together of the three actions that could not easily be dealt with by the trial judge. This factor is neutral.

(q): The motion is brought over the objection of the plaintiff and on consent of the defendants Wil Mac, Andre and Pollock with the defendants Richards and Morin taking no position. The plaintiff’s objection to trial together is offset by the fact that Pollock, Andre and Wil Mac reasonably support trial together so as to avoid having to testify at two different trials. This factor is neutral.

[22] The only factors that clearly militate against trial together and in favour of the holding of two separate trials in the insurance action and in the negligence actions are the likely additional delay in obtaining a trial date and Dominion’s delay in bringing the motion. The plaintiff submits that the small savings of time in the length of a single trial would be outweighed by the prejudice to it arising from the delay in reaching trial. However, the problem with this argument is that a large number of witnesses, including experts, would be required to testify at both trials so it cannot be said that trial together would result in only a small reduction in total trial time. The fact is that separate trials would result in a significant duplication of evidence. The delay in moving, while undesirable, is not such as would be fatal to the motion.

[23] The key issue in all three actions is causation in respect of the collapse of the parking garage which will require testimony of all of the parties in all three actions and of all of the experts who have provided an opinion on causation. In addition, there will be overlapping evidence on the issue of damages. I accept that the trial together of all three actions will be longer than the trial of the insurance action alone and that it will take longer to reach a trial of the actions together. However, the fact that a majority of the witnesses in both the insurance action and the negligence actions would be required to testify twice if the actions were tried separately overwhelmingly favours trial together. The delay in the insurance action reaching trial and any additional length of a single joint trial are outweighed by the savings of time to the parties and the court that will result from conducting a single trial at which all parties and witnesses will testify on a single occasion and at which there will be no risk of inconsistent findings. Trial together is also consistent with the policy of s. 138 of the Courts of Justice Act, supra, which discourages a multiplicity of legal proceedings.

[24] The circumstances of these cases fall within the requirements for trial together in rule 6.01(1) and a consideration of the factors in 1014864 Ontario Ltd., supra favours trial together of the actions. For these reasons, actions nos. CV-11-418616, CV-11-420630 and CV-12-452137 shall be tried together or one immediately after the other, subject to the discretion of the trial judge.

Motion for transfer of the actions from Toronto to Kingston

[25] As indicated above, the plaintiff is not opposed to the transfer of the actions other than the action against Dominion to Kingston should the defendants in those actions consent. Wil Mac, Andre and Pollock consent to this relief and Richards and Morin take no position. However, as I have ordered the actions, including the action against Dominion, to be tried together, and the plaintiff opposed the transfer of the action against Dominion, I must rule on this part of the motion.

[26] The rules applicable to this motion are 13.1.01(2) and 13.1.02(2):

13.1.01 (1) If a statute or rule requires a proceeding to be commenced, brought, tried or heard in a particular county, the proceeding shall be commenced at a court office in that county and the county shall be named in the originating process. O. Reg. 14/04, s. 10.

(2) If subrule (1) does not apply, the proceeding may be commenced at any court office in any county named in the originating process. O. Reg. 14/04, s. 10.

13.1.02 (1) If subrule 13.1.01 (1) applies to a proceeding but a plaintiff or applicant commences it in another place, the court may, on its own initiative or on any party’s motion, order that the proceeding be transferred to the county where it should have been commenced. O. Reg. 14/04, s. 10.

(2) If subrule (1) does not apply, the court may, on any party’s motion, make an order to transfer the proceeding to a county other than the one where it was commenced, if the court is satisfied,

(a) that it is likely that a fair hearing cannot be held in the county where the proceeding was commenced; or

(b) that a transfer is desirable in the interest of justice, having regard to,

(i) where a substantial part of the events or omissions that gave rise to the claim occurred,

(ii) where a substantial part of the damages were sustained,

(iii) where the subject-matter of the proceeding is or was located,

(iv) any local community’s interest in the subject-matter of the proceeding,

(v) the convenience of the parties, the witnesses and the court,

(vi) whether there are counterclaims, crossclaims, or third or subsequent party claims,

(vii) any advantages or disadvantages of a particular place with respect to securing the just, most expeditious and least expensive determination of the proceeding on its merits,

(viii) whether judges and court facilities are available at the other county, and

(ix) any other relevant matter. O. Reg. 14/04, s. 10.

[27] The principles to be applied on a motion under rule 13.1.02(2), as discussed in detail by Brown J. in Hallman v. Pure Spousal Trust, 2009 CarswellOnt 5795 at paragraphs 24-29, are as follows:

1. The rule entitles the plaintiff to commence the proceeding in the county of its choice unless a statute or rule dictates that the proceeding be commenced in a specific location. (In this case there is no such statute or rule.)

2. The court should weigh and consider each of the enumerated factors in order to determine whether a transfer is desirable in the interests of justice.

3. In balancing the various factors, the court should not conduct a minute assessment to determine which of two or more possible venues is the better or best choice. However, if the defendant’s proposed venue is significantly better than the plaintiff’s then the change should be made.

[28] Based on these principles, the plaintiff had the right to commence the actions in Toronto and the issue to be resolved is whether, on a review of the factors in rule 13.1.02(2), Kingston would be a significantly better choice of venue.

[29] A review of the factors in rule 13.1.02(2)(b) reveals the following (using the sub-paragraph numbers from the rule):

(i) The events giving rise to the claim, being the collapse of the plaintiff’s parking garage, the prior repairs to and inspection of the parking garage by the tort defendants, and the defendant insurer’s investigation of the loss, occurred in Kingston.

(ii) The damages were sustained in Kingston.

(iii) The subject matter of the proceeding, which is the parking garage in the plaintiff’s hotel, and the hotel itself, is in Kingston.

(iv) The lawsuit has little bearing on the Kingston community at large and this is not a case with a significant community interest.

(v) The locations of the parties and witnesses are as follows:

1. Barbara Allinson, a principal of the plaintiff and its representative at examinations for discovery, resides in Toronto. It is reasonable to infer that the other principals and employees of the plaintiff are in Kingston, given that plaintiff’s counsel refers only to Ms. Allinson living elsewhere.

2. The adjuster from the defendant Dominion resides in Cornwall, two hours east of Kingston, and his working territory includes Kingston. Dominion’s regional office is in Ottawa.

3. The defendants Wil Mac, Andre and Pollock are all in Kingston.

4. The defendants Richards and Morin are in Ottawa, which by car is two hours from Kingston and at least four and a half hours from Toronto.

5. The plaintiff’s expert witnesses are in Toronto and Windsor, Ontario.

6. Dominion’s expert witnesses are in both Ottawa and Mississauga, Ontario, which borders Toronto.

(vi) There are no counterclaims, crossclaims or third party claims that would influence the appropriate choice of venue.

(vii and viii) According to the evidence provided by Dominion, as of October 29, 2013, there were trial dates available in Kingston in 2014 for both a two week trial and, likely, a five week trial. The plaintiff’s evidence is that the delay in scheduling a long trial in Toronto is estimated to be as long as two years and eight months and in Kingston is between 14 months and 26 months.

(ix) The plaintiff submits that the fact that counsel for all parties with the exception of Dominion are located in Toronto strongly militates against a transfer of the action to Kingston because of the significant additional cost to those parties associated with their lawyers’ travel to and accommodation in Kingston. Based on paragraph 64 of Hallman, supra, the location of counsel and the additional cost of counsel’s travel to and accommodation in a different venue are relevant matters to be considered on a motion of this nature.

[30] In summary, the claims arise from an incident that occurred in Kingston, the subject matter of the action is in Kingston and the plaintiff’s damages were sustained in Kingston. Three of the parties are in Kingston, two are in Ottawa, Dominion’s representative is in Cornwall and the plaintiff’s principal representative is in Toronto. Accordingly, Kingston has the closest connection to the claims and is the more convenient location for all but one of the parties. In addition, two of the three sets of tort defendants have consented to the transfer to Kingston and the third does not oppose it. These factors all favour a transfer to Kingston.

[31] The expert witnesses are in Ottawa, Toronto, Mississauga and Windsor. Although three of the experts are closer to Toronto than to Kingston, I do not find the residence of the experts to be a significant consideration, as compared to the residence of the parties. The experts would typically only be present to give their own testimony and possibly hear the testimony of the opposing experts, but the parties would be much more likely to want to be present throughout most if not all of the trial. Further, it is common for experts to travel for the purpose of giving evidence at trial.

[32] The plaintiff submits that a significant factor in favour of keeping the actions in Toronto is that four of the five law firms for the parties are in Toronto and that holding the trial of the actions in Toronto will save costs for those parties. However, two of those firms, being those acting for Wil Mac and for Andre and Pollock, have consented to a transfer to Kingston and the firm acting for Richards and Morin does not oppose the transfer. Accordingly, the parties represented by those lawyers are content to absorb any additional expense associated with their counsel attending at trial in Kingston. Somewhat incongruously, the only party opposing the transfer to Kingston is the plaintiff, which operates the subject hotel in Kingston.

[33] As stated above, the plaintiff has the prima facie right to commence the action in the location of its choice and the court should not interfere with that choice unless the defendant’s proposed venue is “significantly better” (see Hallman, supra, and the principles at paragraph [27] above). The action arises from events that occurred in Kingston and Kingston is a significantly more convenient location than Toronto for all of the parties save one of the representatives of the plaintiff. None of the defendants could have had any expectation that their business dealings with the plaintiff in Kingston would require them to litigate any disputes in Toronto. Finally, the available evidence is that the delay in reaching trial in Kingston would be at least six months less than in Toronto, which is advantageous to all parties.

[34] For these reasons, Kingston is a significantly better location for the trial of these actions than Toronto. I hereby order that actions nos. CV-11-418616, CV-11-420630 and CV-12-452137, currently pending in Toronto, be transferred to Kingston. Based on recent protocols established by Ontario’s Regional Senior Justices (RSJs), this order shall not take effect until the defendant Dominion has obtained the approval of the RSJs for Toronto Region and East Region. This order shall not be a bar to the summary judgment motion brought by the defendants Richards and Morin proceeding as scheduled on April 25, 2014 in Toronto.

Costs

[35] Counsel for both Dominion and the plaintiff provided costs outlines at the end of the motion, but requested the opportunity to make submissions following the release of this decision. If counsel cannot agree to the disposition of costs, they shall contact ATC Chan with their proposal as to how to address the issue. Counsel should be aware that the fact that the amount sought in the costs outline of the defendant Dominion, which was successful on both issues argued, is less than the amount in the plaintiff’s costs outline, will be considered a significant factor in the court’s decision on costs.

[36] As the orders flowing from these reasons affect the defendants in the negligence actions, counsel for the plaintiff shall provide counsel for those defendants with copies of these reasons forthwith.

MASTER A. GRAHAM

DATE: March 6, 2014