SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-13-00481406

DATE HEARD: 20131211

ENDORSEMENT RELEASED: 20140212

RE: Anderson et al. v. Haroun

BEFORE: Master B. McAfee

COUNSEL:
L. Galessiere for the Moving Party, the Defendant
S. Vella for the Responding Parties, the Plaintiffs

REASONS FOR DECISION

[1] This is a motion brought by the defendant for an order severing the plaintiffs’ claims and requiring the plaintiffs to assert their claims in separate proceedings. The plaintiffs oppose the motion.

[2] This action arises as a result of alleged sexual abuse that occurred approximately 46 years ago. The defendant denies the allegations.

[3] The plaintiffs are sisters. The defendant is the plaintiffs’ uncle.

[4] The action was commenced on May 28, 2013. A statement of defence was delivered on or about August 6, 2013, without prejudice to the defendant bringing the within motion. A reply was delivered on or about September 12, 2013. A jury notice has not been delivered.

[5] The defendant’s position is that the plaintiffs’ claims do not meet the test for joinder under Rule 5.02(1). It is the defendant’s further position that if the test for joinder under Rule 5.02(1) is met, the claims ought to be severed under Rule 5.05 on the basis of undue prejudice to the defendant.

[6] The plaintiffs’ position is that the test for joinder has been met because the plaintiffs’ claims arise out of the same series of occurrences, there are significant overlapping factual and legal issues and that the joining of the claims promotes the convenient administration of justice. It is the further position of the plaintiffs that if two separate proceedings are ordered there will be a risk of inconsistent verdicts. The plaintiffs argue that the joinder of the claims will result in little or no prejudice to the defendant.

[7] For the reasons that follow, the motion is granted without prejudice to any order the trial Judge may make with respect to the manner of the trial of the actions.

[8] In making a detemination as to whether the test for joinder has been met, I have looked primarily at the issues as formulated in the pleadings and examined the evidence in that light (Royal Bank of Canada v. Kilmer Van Nostrand Co. (1994), 29 C.P.C. (3d) 191 (Gen.Div.) at para 15). In support of the motion, the defendant delivered an affidavit. In response, an affidavit of Michael Wilchesky, a lawyer, was delivered on behalf of the plaintiffs. Neither plaintiff filed an affidavit in their own name. Mr. Wilchesky was cross-examined on his affidavit. On cross-examination Mr. Wilchesky confirmed that he did not communicate directly with the plaintiffs prior to preparing his affidavit (see page 4 of transcript of the cross-examination of Mr. Wilchesky).

[9] In Stoneleigh Motors Ltd. v. General Motors of Canada Ltd., 2010 CarswellOnt 2381 (Ont. S.C.J.) Justice Pepall states as follows at para 71:

Joinder avoids needless expense and delay inherent in a multiplicity of proceedings where there are common parties or questions of fact or law; risk of inconsistent determinations of fact or liability in the cause or common circumstances; and an unnecessary multiplicity of proceedings: CGI Information Systems & Management Consultants Inc. v. Financial Centre Securities Corp, [[2006] O.J. No. 232 (Ont.S.C.J.)] and Bagaco v. Union Energy Ltd. Partnership [(2009), 76 C.P.C. (6th) 314 (Ont.S.C.J.)]. As Kelly J. stated in this latter case, “The right to join the claims of different plaintiffs is subject to the Court’s overriding discretionary power to sever claims where it appears that joinder will cause undue complication or delay or cause prejudice to one of the parties. [Bagaco at para 16]”

[10] Although the decision of Royal Bank of Canada dealt with a motion to sever issues within an action, in my view the passage of Justice Wilkins applies equally to the circumstances of the motion before me. Justice Wilkins states as follows at paragraph 19:

Although a party to litigation does have a right to have all of the issues tried at one time and although courts discourage multiplicity of proceedings, there are many factors relating to the trial of civil actions in a jurisdiction such as Toronto that recommend to the courts that all reasonable efforts be made to cut down the length of trials, to reduce the inconvenience to witnesses, to curtail the expense wherever practicable and to protect and preserve the very limited public resources available to conduct such trials. These considerations ought not to overwhelm the considerations of justness and fairness. At all times, these latter concepts are dominant….It is my view that in a case where the concepts of prejudice and/or injustice can be demonstrated, even to a modest degree, they should always outweigh the concepts of expedience and convenience but, under a circumstance where the concepts of prejudice and injustice are only raised by inference and philosophy and without proofs, a strong case in support of convenience and expedience should carry the day.

[11] Rule 5.02(1) of the Rules of Civil Procedure provides as follows:

5.02(1) Two or more persons who are represented by the same lawyer of record may join as plaintiffs or applicants in the same proceeding where,

(a) they assert, whether jointly, severally or in the alternative, any claims to relief arising out of the same transaction or occurrence, or series of transactions or occurrences;

(b) a common question of law or fact may arise in the proceeding; or

(c) it appears that their joining in the same proceeding may promote the convenient administration of justice.

[12] Although the plaintiffs are represented by the same lawyer of record, the plaintiffs’ claims do not fall within one of the subsections of Rule 5.02(1).

[13] The claims do not arise out of the same transaction or occurrence or series of transactions or occurrences. During his cross-examination, Mr. Wilchesky confirmed that the alleged sexual assaults were perpetrated separately on each plaintiff. There is no evidence that either plaintiff was a witness to the alleged abuse of the other plaintiff.

[14] There are no common questions of law or fact. To succeed in their claims the plaintiffs will each need to satisfy the evidentiary burden relating to three primary issues: 1. Were they sexually abused by the defendant; 2. Did the defendant have parental authority over them and was the defendant in a fiduciary relationship with them (Hodgkinson v. Simms, 1994 70 (SCC), [1994] 3 S.C.R. 377 at pages 408-410); and, 3. Damages as a result of the sexual abuse. The damages that each plaintiff may have suffered as a result of the alleged sexual abuse will be unique to each plaintiff. Each plaintiff will need to call her own expert to testify. There is no common question of law or fact relating to these issues. Separate evidence for each question would need to be tendered by each plaintiff.

[15] In the circumstances of this case, it is possible that a court could find in favour of one plaintiff and not the other plaintiff without there being an inconsistent finding.

[16] The fact that the torts complained of were allegedly perpetrated by the same defendant is not sufficient to establish a real nexus between the plaintiffs’ claims for the purposes of joinder. In Bagaco a number of plaintiffs with defective water heaters brought an action against a single lessor of those heaters. The court granted the defendant’s motion to sever the plaintiffs’ claims on the basis that each claim was separate from the others and required separate evidence and findings with respect to the failure of the water heaters.

[17] The joining of the plaintiffs’ claims do not promote the convenient administration of justice. The majority of the documents in the case will be tendered by the plaintiffs and each plaintiff will need to file her own affidavit of documents. Each plaintiff will be examined for discovery. Although the defendant may be examined for discovery only once if the actions are not severed, he will need to answer questions that relate to each of the plaintiffs separately. Although there will be only one pre-trial if the actions are not severed, the pre-trial will need to be divided between each plaintiff’s claim. If the individual issues of fact and law arising from each of the plaintiff’s claims will require separate evidence and productions, little of which will be related, joinder does not promote the convenient and expeditious administration of justice (Bagaco at para 20).

[18] The plaintiffs submit that if the claims are severed, witnesses, particularly the plaintiffs’ elderly mother, will need to testify twice. However, as stated, the manner of trial is reserved to the trial Judge. In Tanner v. McIlveen Estate, 2011 CarswellOnt 13826 (Master); affirmed, [2012] CarswellOnt 6760 (Ont.S.C.J.), although there were allegations of sexual assault by two plaintiffs against one defendant, Master Brott’s most significant reason for the dismissal of the motion to sever was the timing of the motion. In Tanner severance was first raised at a stage in the proceeding where the only remaining step was trial. As was stated by Justice Lederman on the appeal, “…while the likely method of trial may be a consideration in the motion for severance, the Master properly considered that the method of trial remains a matter best left to the trial Judge.” Justice Lederman referred to the decision of Master Glustein in 3414493 Canada Inc. v. 505896 Ontario Ltd., [2007] O.J. No. 3988 (Master) wherein the motion to sever was granted on the assumption that the manner of trial was left to the trial Judge.

[19] In my view the test for joinder has not been met under Rule 5.02(1). If I am wrong and the test for joinder under Rule 5.02(1) has been met, I am satisfied that the claims ought to be severed pursuant to Rule 5.05(b).

[20] Rule 5.05 of the Rules of Civil Procedure provides as follows:

5.05 Where it appears that the joinder of multiple claims or parties in the same proceeding may unduly complicate or delay the hearing or cause undue prejudice to a party, the court may,

(a) order separate hearings;

(b) require one or more of the claims to be asserted, if at all, in another proceeding;

(c) order that a party be compensated by costs for having to attend, or be relieved from attending, any part of a hearing in which the party has no interest;

(d) stay the proceeding against a defendant or respondent, pending the hearing of the proceeding against another defendant or respondent, on condition that the party against whom the proceeding is stayed is bound by the findings made at the hearing against the other defendant or respondent; or

(e) make such other order as is just.

[21] I am satisfied on the basis of the evidence before me that the joinder of the plaintiffs’ claims causes undue prejudice to the defendant. As noted above, this action arises as a result of alleged sexual abuse that is alleged to have taken place over 46 years ago. The claims are complicated by the signficant passage of time. It will be difficult for the parties to recollect events and obtain relevant evidence. Credibility is at issue. I am satisfied that the defendant has put forward a strong factual foundation of potential adverse consequences in the circumstances of this case.

[22] If the plaintiffs’ claims remain joined, the defendant will lose the full benefit of the deemed undertaking rule as set out at Rule 30.1.01(3). If the claims are severed the plaintiffs will not be prohibited from using certain evidence and information in accordance with Rule 30.1.01(6).

[23] If the plaintiffs’ claims remain joined, absent a court order, each plaintiff will be entitled to attend the examination for discovery of the other plaintiff.

[24] Although the trial Judge has the discretion to admit or exclude similar fact evidence, if the plaintiffs’ claims remain joined, the defendant will have lost the opportunity to address and argue that such evidence be excluded.

[25] Pursuant to Rule 52.06(2), if the plaintiffs’ claims remain joined, the defendant will be unable to exclude one plaintiff from the courtroom while the other is testifying.

[26] Having regard to the applicable Rules, case law and the prevailing considerations of what is just and fair in the circumstances of this case, the motion is granted. The plaintiffs’ claims are severed and the plaintiffs shall assert their claims in separate proceedings. The granting of the relief requested is without prejudice to any order with respect to the manner of trial of the actions that may be made by the trial Judge. The claims having been severed does not preclude a trial Judge from ordering a trial together or one after the other of the actions or making any order with respect to trial that the trial Judge deems to be just.

[27] If any party seeks costs and if costs cannot be agreed upon, any party seeking costs shall serve and file brief written submissions on costs of three pages or less in length, together with a copy of the costs outlines exchanged on the motion, on or before March 21, 2014. Any responding submissions shall also be three pages or less in length and served and filed on or before April 4, 2014. Any reply submissions shall be one page or less in length and served and filed on or before April 11, 2014. The material shall be filed at 393 University Avenue, 6th floor and shall be accompanied by an affidavit of service for the submissions.

Master B. McAfee

DATE: February 12, 2014