CITATION: Robert A. Cartier v. Michael Stocking (B-Dry), 2015 ONSC 3242
COURT FILE NO.: CV-09-4473
DATE: 20150428
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Robert A. Cartier Inc, Plaintiff
AND:
Michael W. Stocking carrying on business under the name an style of B-Dry and Rona Ontario Inc., Defendant
BEFORE: The Honourable Justice R. Raikes
COUNSEL: Mr. J. Allin Counsel, for the Plaintiff, Cartier
Mr. K. Rhodes Counsel, for the Defendant, Stocking
Mr. E. Lipetz Counsel, for the Defendant, Rona
Mr. K. MacLean Counsel, for Liu Engineering
Ms. L. Thompson Counsel, for Wawanesa
HEARD: April 30, 2015 in Chatham, Ontario
ENDORSEMENT
OVERVIEW
[1] This is a motion pursuant to R. 6.01(1) for an order that two actions be tried together or one immediately following the other. The motion is brought by Rona Ontario Inc., a defendant in the first action (hereafter the “Cartier action”) and plaintiff in the second companion action (hereafter the “Liu action”). Both actions arise from the construction of a warehouse which was intended for the storage of onions.
[2] For reasons which follow, I order that the two actions be tried one immediately following the other with the Cartier action to proceed first. Subject to the direction of the trial judge pursuant to Rule 6.02, I order that witnesses common to the two actions shall be examined in the Cartier action and shall form part of the evidence in the Liu action. The Liu action shall be placed on the Assignment Court list for September 18, 2015 in Chatham, Ontario. Additional directions are set out below.
FACTS
The Cartier Action
[3] On April 23, 2009, Robert A. Cartier Inc. (hereafter “Cartier”), commenced an action against the defendants, Michael W. Stocking cob as B-Dry (hereafter “Stocking”) and Rona Ontario Inc. (hereafter “Rona”). According to its Amended Statement of Claim, Cartier was in the business of farming and operated various farming enterprises in the municipality of Chatham – Kent. In 2006 – 2007, Cartier decided to erect a warehouse on premises owned by one of the principals of the plaintiff for the purpose of storing onions for later sale. To that end, it obtained engineered drawings and plans prepared by Chet Liu of 1147055 O/A Y.C. Liu Engineering.
[4] Cartier alleges that it provided those drawings to Rona for the purpose of obtaining a quote for the cost of constructing the warehouse. Rona provided a written quote for the supply of materials to construct the warehouse. Cartier asserts that Rona was more than a mere supplier of materials; that Rona held out that it had a contractor able to erect the building (Stocking).
[5] Stocking erected the warehouse between June and September, 2007. Cartier made improvements to the building after it was completed and, thereafter, began to use the warehouse as intended for storage of onions. By September, 2007, Cartier detected that the roof of the building was leaking which caused damage to the onions being stored therein. Cartier complained to Rona and Stocking about the leaks and alleges that those Defendants made repeated efforts to remedy the leaking roof without success. The result is a leaky building that cannot be used for its intended purpose and substantial losses suffered by Cartier.
[6] Specifically, Cartier alleges that the roof installed is defective and must be replaced in its entirety. It blames Stocking for improper installation of the roof. It also asserts that it was an implied term of its contract with Rona that Rona would monitor and supervise the construction of the warehouse, which it failed to do. Further, Cartier alleges that Rona negligently misrepresented the abilities of the contractor, Stocking, to erect the warehouse.
[7] Cartier’s claim against Rona and Stocking asserts the following causes of action: breach of contract, negligence, negligent misrepresentation and vicarious liability. It is noteworthy that Cartier makes no claim against the engineer, Liu. Cartier lays the blame for the leaky roof on those who it alleges were responsible for the erection of the warehouse, not for its design.
[8] In the Cartier action, Rona has defended and asserts a cross-claim against Stocking and a counterclaim against Cartier. Rona disputes that it had any role beyond that of supplier of materials or that it made any misrepresentations with respect to Stocking’s abilities as a contractor. Rona alleges that Cartier supplied some of its own labour for construction of the warehouse. Its pleading does not go so far as to expressly assert that those employees were responsible for the leaky roof, although that might be inferred from the pleading.
[9] Stocking has filed a Statement of Defence only. It alleges that:
(a) Cartier’s engineer has determined that onion skins accumulated over roof crevices and along roof ridges. Those skins became wedged in overlap seams and acted as a wick for water;
(b) The building was properly constructed; and,
(c) Cartier, its agents or employees, assumed responsibility for installation of a portion of the roof. If the roof is defective, which is denied, it is a result of the defective workmanship done by the Plaintiff, its agents or employees.
[10] Stocking commenced a Third Party Claim against its insurer, the Wawanesa Mutual Insurance Company (hereafter “Wawanesa”), seeking a declaration, inter alia, that it is entitled to be indemnified by Wawanesa for any amounts which it may be found liable to pay to the Plaintiff. It also claims that Wawanesa has a duty to defend the claim by Cartier.
[11] Wawanesa denies coverage under the policy. Nevertheless, it has delivered a Statement of Defence in the main action to the Cartier claim. Its pleading focuses on damages, causation and mitigation.
[12] The Third Party Claim was issued September 4, 2013, well after two years from the date of issuance of the Statement of Claim by Cartier. Wawanesa’s Statement of Defence to the Cartier action is dated December 3, 2013.
[13] Examinations for discovery in the Cartier action took place February 8 and 9, 2011 and September 1, 2011, prior to commencement of the Third Party Claim by Stocking against Wawanesa. Examinations for discovery in the Third Party action have not yet taken place. Wawanesa has reserved its right to examine the plaintiff and Rona but no steps have been taken to date to arrange those examinations or the examinations in the Third Party action.
[14] Wawanesa has brought a motion to determine coverage which is returnable June 22, 2015. That motion was originally returnable October 7, 2014.
[15] A Pre-Trial Conference was held in the Cartier action on February 2, 2015. Wawanesa attended the Pre-Trial Conference. The presiding judge endorsed that:
Cartier is required to make its financial books and records from 2005 to present available for inspection by experts retained by the Defendants and/or Third Party not later than May 30, 2015; and,
The Defendants and Third Party have leave to examine a representative of the Plaintiff, Cartier, on issues of past or future income loss at a further examination for discovery to take place before August 31, 2015.
The Liu Action
[16] On June 11, 2011, a second action was commenced by Rona as Plaintiff against 1147055 O/A Y.C. Liu Engineering and Chet Liu. Rona alleges in that action that those Defendants were negligent in the design of the warehouse, in failing to provide proper specifications or warnings, or in failing to ensure that the building was watertight as required for its intended use. The claim against Mr. Liu, personally, has been discontinued. The claim against the numbered company continues. Rona seeks contribution and indemnity with respect to any amounts which it may be found liable to pay to Cartier in the Cartier action.
[17] Clearly, the Liu action could have and perhaps should have proceeded as a third party claim. Given that Liu would not consent to leave being granted to issue the Third Party Claim late, Rona proceeded by way of separate action. In any event, examinations for discovery in the Liu action took place March 17, 2014.
[18] Although Rona’s affidavit on this motion suggested that there are no anticipated motions in the Liu action, counsel for the Defendant numbered company advises that it contemplates a motion to compel answers to undertakings and questions refused from the examinations for discovery, as well as a motion for summary judgment to dismiss the action as barred by the provisions of the Limitations Act. To date, Rona has not satisfied all of its undertakings, most importantly those pertinent to the limitations issue. The numbered company is anxious to bring its motion for summary judgment upon receipt of those answers.
[19] The Cartier action is listed for trial and is on the September 18, 2015 Assignment Court list. A trial date in 2016 is expected although, as will be seen below, the exact date is difficult to predict given the expected length of the trial which will exceed the usual 10 day sittings.
[20] The Liu action has also been set down for trial by Rona, although that was done in January, 2015. Rona advises that it intends to have the Liu action placed on the September 18, 2015 Assignment Court list.
[21] Rona seeks an order that the Cartier action and Liu action be tried together or, in the alternative, be tried one immediately following the other. Rona contends that all of Rona’s witnesses in the Liu action will be the same as those it intends to call at the trial of the Cartier action.
[22] The Pre-Trial Conference Report in the Cartier action indicates:
The anticipated length of trial is 20+ days which includes participation of Wawanesa in the trial of the main action;
A trial management conference will be necessary 30 – 60 days before the scheduled trial date; and,
There is another action (the Liu action) “arising out of the same factual matrix” which may be heard at trial with or after this case.
[23] Appendix A to the Pre-Trial Conference Report provides a list of witnesses that each party to the Cartier action anticipates calling. Although Wawanesa participated in that a pretrial conference, Liu did not. Appendix A indicates that:
The Plaintiff’s witnesses are expected to take six days;
Stocking’s witnesses are expected to take an additional 2 ½ days; and,
Rona’s witnesses are expected to take five days and include the engineer, Mr. Liu, as a fact witness for one day.
The aggregate of these parties is 13 ½ days plus 2 days anticipated for submissions.
[24] If the Third Party, Wawanesa, remains part of the main action, it is expected that will add 2-3 days to the evidence at trial of the Cartier claim. So, the trial of the Cartier claim is expected to take a minimum of 15 ½ days without Wawanesa or 18 ½ days with. In either event, this will be a lengthy trial.
[25] Counsel for Rona and Liu estimate that the trial in the Liu action is likely to take 4-5 days if that action proceeds entirely separate from the Cartier trial. As indicated above, Rona expects that all of the witnesses that it would call in the Liu trial are the same as those it would call in the Cartier trial. There was a suggestion that trying the two cases together would add 4-5 days to the Cartier trial; however, it seems more likely that while it would add some time to that trial, the overlap of witnesses would add a lesser number of days, perhaps two or three. In any event, a trial one immediately following the other will add a very modest amount of time to the trial in the Cartier action since extra time will be necessary to accommodate examination or cross-examination of a limited number of witnesses by counsel for Liu.
POSITIONS OF PARTIES
[26] The moving party, Rona, argues that directing that the actions be tried together or one immediately following the other avoids a multiplicity of proceedings and avoids the risk of inconsistent findings. The actions arise from the same transaction or occurrences and raise common questions of fact or law. Further, when the factors enumerated by Master Dash in 1014864 Ontario Ltd. v. 1721789 Ontario Inc. are considered, trial together or one immediately following the other is the preferable procedure going forward.
[27] The Third Party, Wawanesa, consents to the relief requested. The co-Defendant in the Cartier action, Stocking, consents to trial together but not one trial immediately following the other. It takes the position that the evidence will be duplicated in the latter case, which position misapprehends how trials are tried one following the other.
[28] The Plaintiff opposes the motion. It filed affidavit material to the effect that requiring the two actions to be tried together or one following the other would cause significant financial hardship because the Liu action would significantly increase the length of the trial. Further, the Plaintiff fears further delay in this already dated action. The events in dispute took place in 2007 although the action was not commenced until 2009. The Plaintiff has no fight with its engineer and does not wish to be dragged into a dispute between Rona and the engineer. The Plaintiff suggests that the test to be applied is whether failing to make this order would amount to an abuse of process of Rona’s rights, and contends that the Defendant has not met that burden.
[29] Liu also opposes the motion. It does not wish to be dragged into the Cartier action which would add many days of trial time to the Liu action. It contends that its action is only superficially connected to the Cartier action. It will be stuck with whatever damages are assessed in the Cartier action and will have to argue liability, causation and contribution to those damages. The Cartier action is more complex. Liu will expend significantly more in trial costs if forced to litigate in conjunction with the Cartier action. Finally, counsel for Liu notes that Rona has not satisfied its undertakings which has delayed the motion for summary judgment. If that motion proceeds and is successful, any order made on this motion becomes moot.
LAW
[30] Rule 6.01(1) states:
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, the proceedings be consolidated, or heard at the same time or one immediately after the other; or,
(d) 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.
[31] Rule 6.02 provides that where an order is made that two actions be tried together or one immediately after the other, the presiding trial judge has an overriding discretion to order otherwise. In addition, the trial judge controls the trial including the calling of witnesses, what rights of examination or cross-examination should enure, and how evidence from one trial may be used or not used as part of the evidence in the second trial. Thus, any directions provided herein for how the trial may be conducted may be overridden by the trial judge.
[32] To succeed on this motion, Rona must demonstrate that one or more of the “gateway” criteria found in Rule 6.01 (1)(a)-(c) are engaged. If they are not, that is the end of the motion. If all or any of those criteria are met, then the court will consider the factors set out by Master Dash in 1014864 Ontario Ltd. v. 1721789 Ontario Inc., 2010 ONSC 3306. At paragraph 18, he outlined the factors a court will consider on a motion for trial together as distinct from consolidation which has some different factors which may apply:
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 are 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; and,
(q) whether the motion is brought on consent or over the objection of one or more parties.
[33] Section 138 of the Courts of Justice Act states that as “far as possible, a multiplicity of proceedings shall be avoided.” The non-exhaustive list of factors and section 138 of the Courts of Justice Act are considered only once it has been determined that the gateway criteria have been met: 1014864 Ontario Ltd. v. 1721789 Ontario Inc., supra, at para 17.
[34] Cartier suggested a different test be applied: that Rona must show that the failure to grant the order requested would amount to an abuse of process in which Rona would somehow be prejudiced and not merely inconvenienced: Brown v. Matawa Project Management Group Inc., 2005 19816 (ON SC) at paragraph 25. This is a very high bar indeed if it applies to a motion for trial together or consecutive trials. I note that the Brown case and the cases cited therein for this elevated standard dealt with motions for consolidation – the merger of two or more lawsuits into a single action. In my view, that test does not apply to a motion that two actions be tried together or one following the other.
[35] Beyond the contention by Cartier just mentioned, there was no dispute between the parties as to the test to be applied or the applicable law. Where the parties differed was on how those factors applied on this motion.
ANALYSIS
[36] There is no question that the two actions arise out of the same transaction or occurrence. As the Pretrial Conference judge noted, they arise from the same factual matrix. Further, they do have a common question of fact in that causation, i.e. who is responsible for the leaky roof, is a material issue. The pleadings in the two actions show that blame for the leaky roof is asserted in multiple directions. It seems that no one is immune from the allegation that they bear all or some responsibility. As such, I conclude that the gateway criteria are satisfied.
[37] The list of factors enumerated by Master Dash have at their core the following principles:
Judicial resources should be used efficiently which benefits not only the litigants but the public; and,
The application of the alternative methods of joinder of action contemplated by Rule 6.01(1) must be practicable; that is, they should be invoked when it makes sense to do so because they offer a viable method of proceeding.
It does not follow that an order for consolidation, trial together or trial of actions consecutively must benefit all parties or all parties equally.
[38] I turn then to the factors to be considered.
Extent To Which the Issues Are Interwoven
[39] In my view, the evidence with respect to responsibility for the leaky roof is common to both actions. Rona and Stocking deny responsibility and assert variously that others are responsible including Cartier and Cartier’s engineer, Liu. Mr. Liu is expected to be called as a fact witness in the Cartier action. His evidence is expected to take a day so he is more than a minor witness in the piece. Did the engineer provide inappropriate specifications? Were the specifications provided followed in the construction of the warehouse? Did Stocking or Cartier’s employees fail to properly install the roof? If so, are those failings the cause of the leaks or is the design such that leaks were inevitable? The evidence necessary to determine these questions is common to both actions. It makes sense that this evidence be heard only once and determined by the same trier of fact.
Same Damages Claimed
[40] The damages claimed by Cartier are the damages for which Rona seeks contribution and indemnity from Liu. Rona does not assert an independent claim for its own losses as against Liu. The allocation of fault for the leaky roof among, inter alia, Cartier and others bears directly on the measure of loss recoverable from Rona which it seeks to recover from Liu.
Overlap Of Damages Or Global Assessment
[41] This is not a case where the two actions must proceed together in order for damages to be assessed on a global basis. Cartier’s loss will be established in the Cartier action. The extent to which Liu may be found liable to indemnify Rona will be determined in the Liu action. The determination of what percentage of responsibility Liu might bear is best done by the same judge who determines what caused or contributed to the leaky roof and the measure of damages sustained by Cartier.
Overlap In Evidence Or Witnesses
[42] There will likely be a significant overlap in the evidence called in the Cartier trial with that which would be called in the Liu trial if they were tried altogether separately. Rona’s undisputed affidavit is that all of the witnesses it plans to call in the Cartier action will be witnesses in the Liu action. It may well be that Rona would call some of the same evidence from the co-Defendant, Stocking, as part of its case against Liu. Given the allegations made in the pleadings in the two actions and the evidence before me, that strikes me as a reasonable possibility.
Parties The Same
[43] The parties to the two actions are not the same. Only Rona is common to both actions.
Lawyers The Same
[44] Counsel for Rona is the same in both actions. Counsel for Liu is not acting for any of the parties in the Cartier action.
Risk Of Inconsistent Findings
[45] It is entirely possible that two separate trials before two separate judges could produce inconsistent findings of fact with respect to responsibility for the leaky roof.
Issues Complex Or Straightforward
[46] I agree with counsel for Liu that the issues in the Cartier action are more complex. The Liu action need not concern itself with whether Rona was merely a supplier or owed a duty of care in recommending the contractor, Stocking. This is not exhaustive of the issues that will be raised in the Cartier action which may not arise in the Liu action. Nevertheless, the determination of who is responsible for the leaky roof is likely to be a major issue which occupies a significant part of the Cartier trial time.
Trial In Cartier Determinative
[47] If Cartier is unsuccessful against Rona in the Cartier action, the claim by Rona against Liu is moot. That claim sounds in contribution and indemnity which presupposes a finding of liability against Rona in the Cartier action. I note, however, that Rona may well be able to escape liability entirely in the Cartier action by satisfying the court that the warehouse was built according to the specifications provided by the Plaintiff’s engineer. If the leaky roof is a design problem and not a defective workmanship or defective materials problem, Cartier may fail in its claim against Rona. That position, if advanced by Rona, as it likely will, brings the matter squarely back to the overlap in evidence and the interconnection on causation between the two actions.
[48] I note that the parties to the two actions have agreed to participate in a single mediation aimed at resolving this litigation. In my view, directing that the actions be tried immediately after one another with certain evidence from the Cartier trial to form part of the evidence on the Liu trial allows the parties to confront and, hopefully, resolve the difficult interwoven issues of responsibility for the leaky roof in a comprehensive way.
Litigation Status
[49] Both actions are set down for trial. By this Order, both will come up in Assignment Court in September, 2015. Pursuant to the endorsement of the Pretrial Conference judge, examinations for discovery of the representative of the Plaintiff in the Cartier action will be completed by then.
[50] The motion by the Third Party, Wawanesa, will be heard in June, 2015. If Wawanesa succeeds, the Third Party claim is done. If it is unsuccessful, Wawanesa has defended the main action in the Cartier matter and will participate in the trial.
[51] There remains the issue of whether the Liu action will be dismissed on a summary judgment motion yet to be brought. If that motion is brought and is successful, this motion and this order will have been for naught. Liu can point to it on the issue of costs at the summary judgment motion in dealing with the costs of the action and steps taken unnecessarily by Rona. On the other hand, if the summary judgment motion does not go ahead or is unsuccessful, the two actions should be able to proceed to trial together without delay.
[52] Although this matter will come up in Assignment Court in September, 2015, the trial date will not be until 2016. Given the length of the Cartier trial with or without the Liu trial accompanying it, it is unlikely that this action will proceed to trial until later in 2016. The sittings in Chatham are typically 10 days in length. Even if only the Cartier trial proceeded, the action would not likely be completed at a single sittings unless the trial judge was available to sit longer.
[53] In any event, there is ample time for Liu to bring its motion for summary judgment and for that issue to be determined. In the event of an appeal of the decision on summary judgment, it would be open to the parties including Cartier to move to completely sever the two actions if that appeal is likely to delay the commencement of the Cartier trial.
Jury Notice
[54] No jury notice has been delivered in either action.
Avoiding interlocutory Steps
[55] Trial together of the two actions will not avoid any interlocutory steps. Those steps are largely complete given that the two actions have been set down for trial.
Cost Savings
[56] There is no doubt that having the two actions tried together will result in some additional cost for the parties given that for some witnesses, there will be an extra counsel asking questions. In my view, the extra cost to Cartier and Stocking will be modest and, depending on the outcome of the Cartier trial, may be recoverable as part of their costs of the action.
[57] Liu suggests that it will be significantly burdened by the two actions being tried together or one immediately following the other because counsel for Liu will be compelled to be present throughout the evidence in the Cartier action even where that evidence is of little or no relevance to Liu. With respect, I disagree. This concern can be addressed at a trial management conference held sufficiently before the commencement of the trial. At that trial management conference, the parties should be required to identify the witnesses that they intend to call, and provide estimates of the time expected in chief and in cross-examination. They should also indicate the order in which witnesses are to be called so that counsel for Liu can plan on which days he will attend and which days he will not.
[58] In any event, it is hardly an uncommon experience that not all evidence at a trial affects each party the same or at all. It will be up to counsel for Liu to determine when he needs to be present and when he can absent himself with permission of the trial judge.
Undue Procedural Complexities
[59] I do not foresee any undue procedural complexities likely to arise from the two actions being tried one following the other. I anticipate that at the trial management conference, discussion will be held with respect to who is calling which witnesses, who will be examining or cross-examining those witnesses and the order of that examination. That information can be presented to the trial judge at the outset of trial for his approval. This is not the first time two actions have been ordered to be tried one following the other. Lessons have been learned from past experience that can be readily applied here.
Timing of The Motion
[60] An argument could be made that this motion should have been brought earlier or that it should await the outcome of the summary judgment motion contemplated by Liu. However, there is nothing untoward in the timing of this motion. The outcome of the summary judgment motion, if brought, is not affected in any way by this motion.
Consent or Objection Of The Parties
[61] The positions of the parties with respect to this motion are outlined above. In these circumstances, unanimity is unlikely, nor is it required.
CONCLUSION
[62] On balance, judicial efficacy is met by an order directing that the two actions be tried one immediately following the other with the Cartier action to proceed first. In my view, it is sensible that witnesses that are common to both actions be examined and cross-examined once in the presence of a judge who will determine the outcome of both actions, albeit separately. The actions are not being consolidated. They retain their separate status, but will proceed in a limited linked fashion. The trial management conference should flesh out practical issues for trial. This is a viable and workable method of proceeding.
[63] As a result, I order as follows:
The Cartier action and the Liu action shall be tried one immediately following the other, with the Cartier action to proceed first;
A trial management conference will be held jointly at least 30 days prior to the commencement of the trial;
At the trial management conference, the parties shall identify the witnesses they intend to call and the order in which of those witnesses are expected to testify. The parties shall seek to agree upon who will be examining or cross-examining each witness and the order of such examination, subject to the approval of the trial judge;
The Liu action shall be placed on the Assignment Court list for September 18, 2015;
To facilitate the timeliness of Liu’s motion for summary judgment, Rona shall immediately satisfy its outstanding undertakings;
Upon receipt of satisfaction of Rona’s undertakings, Liu shall serve its motion for summary judgment within 30 days if it intends to proceed with that motion;
The evidence of witnesses common to the two actions shall be examined in the Cartier action and form part of the evidence in the Liu action subject to any further direction of the trial judge; and,
Cartier shall be at liberty to move to sever the Liu action or vary this order in the event of delay in the progress of the Liu action which is likely to delay the commencement of the trial in the Cartier action.
[64] Given the moving parts, i.e. the motion by Wawanesa and contemplated summary judgment motion, the ultimate utility of this order remains very much unknown. As a consequence, it is my inclination to leave the issue of costs to be determined by the trial judge who will have the benefit of assessing its merit in the context of the trials conducted. If the parties wish to make submissions as to costs including whether they should be fixed now, they may do so by written submissions not to exceed 3 pages. Those submissions must be made within 14 days of the date of the release of this decision.
The Honourable Justice R. Raikes
Date: May 21, 2015