SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MCCOLGAN v. NICOL

2014 ONSC 1917

COURT FILE NO.: CV-12-463715

BEFORE: MASTER R.A. MUIR

COUNSEL: Katherine Schmidt for the defendant/moving party

Tim Duncan for the plaintiffs/responding parties

David Reiter for Enbridge Gas Distribution Inc.

HEARD: March 25, 2014

ENDORSEMENT

[1] The defendant brings this motion pursuant to Rules 6.01 and 29.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order that this action and the defendant’s separate action be consolidated, tried together or tried one following the other as the trial judge may direct. Alternatively, the defendant seeks an order granting him leave to issue a third party claim against the defendants in his action. The plaintiffs are opposed to the relief sought on this motion. The defendants in the defendant’s action take no position, subject to the stipulation that certain conditions be imposed should the relief be granted.

[2] This action involves the contamination of the plaintiffs’ property by fuel oil. The defendant’s action involves fuel oil contamination to his property but also seeks contribution and indemnity for the claims the plaintiffs are making in this action. The defendant’s action is a claim against six defendants who Mr. Nicol alleges were responsible for the fuel contamination on his property and the property owned by the plaintiffs in this action. Many of the acts complained of in the defendant’s action took place decades ago. There would appear to be no real dispute that the contamination to the plaintiffs’ property came from fuel oil originating on Mr. Nicol’s property.

[3] In my view, these are not appropriate circumstances in which to order that the two actions be consolidated or tried together.

[4] 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. . .

[5] The defendant has not satisfied the initial requirements of Rule 6.01. The issues involved in this action are narrow and discreet. The trial will most likely involve an assessment of the plaintiffs’ damages. The plaintiffs were not involved with the service providers Mr. Nicol is claiming against in his action. Those claims have nothing to do with the plaintiffs’ claims. Mr. Nicol just wants to be reimbursed if he has to pay the plaintiffs something in this action. It appears that fuel oil migrated from Mr. Nicol’s land and contaminated the plaintiffs’ land. The plaintiffs seek damages only from Mr. Nicol. I do not see the presence of common issues of law or fact.

[6] In addition, the relief claimed in Mr. Nicol’s action does not arise from the same transactions or occurrences as set out in this action. This action arises from the migration of fuel oil from Mr. Nicol’s property to the plaintiffs’ property. Mr. Nicol’s action involves claims in contract and negligence arising from various services provided to Mr. Nicol in connection with his home heating system.

[7] For these reasons, I am not prepared to order that these actions be consolidated or tried together.

[8] I am also not prepared to grant leave to the defendant to issue a third party claim.

[9] To do so would simply amount to indirectly ordering that these actions be tried together, at least insofar as Mr. Nicol’s claim for contribution and indemnity for this claim is concerned. The claims Mr. Nicol would be advancing in any third party claim are identical to some of the claims he is already advancing in the related action. It is not appropriate for the same claims to be pursued in two separate proceedings.

[10] Moreover, it is my view that the plaintiff would be seriously delayed and prejudiced by the proposed third party claim. The issues involved with such a claim would be far more complicated than those present in this action. Six additional parties would be added to the mix. Some of the issues involved would require evidence going back more than 30 years. The number of required trial days would increase significantly.

[11] The plaintiffs have finished their discovery of the defendant. The parties to this action have agreed to a mediator. This action is ready to be set down for trial subject to the mediation being scheduled. Significant additional delay, complexity and expense would undoubtedly result if the proposed third party claim is permitted at this stage. Prejudice under Rule 29.02 is to be given a broad definition. See Equirex Leasing Corp. v. Coherent-AMT Inc., 2008 22554 (ON SC) at paragraph 20.

[12] For these reasons, I am not prepared to grant leave to the defendant to issue a third party claim.

[13] The defendant’s motion is therefore dismissed. The plaintiffs argued that they should be entitled to costs on an elevated scale. I see no conduct on the part of the defendant that would justify such a costs order. In addition, I find the partial indemnity costs requested by the plaintiffs of $9,076.37 to be clearly excessive for a motion of this nature. This was a straightforward motion. The facts were simple. The law is well settled. A 21 page factum was unnecessary. In my view, it is fair and reasonable that the defendants pay the plaintiffs’ costs of this motion on a partial indemnity basis fixed in the amount of $3,500.00, inclusive of HST and disbursements. These costs shall be paid within 30 days.

Master R.A. Muir

DATE: March 26, 2014