Leduc v. Greater Sudbury (City), 2015 ONSC 3341

CITATION: Leduc v. Greater Sudbury (City), 2015 ONSC 3341

COURT FILE NO.: C-2987-12

DATE: 2015-06-08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

April Leduc

Plaintiff

– and –

City of Greater Sudbury

Defendant

Sandra Wood, Canadian National Railway Inc., Luutzen Vanderwey, Paul Daniel and Brent Dixon

Third Parties

Almeda Wallbridge, for the Plaintiff

Michael Birnie, for the Defendant

James C. Simmons, Solicitor for the Third Party, Sandra Wood

HEARD: May 22, 2015

REASONS FOR JUDGMENT

GAUTHIER J.

The Motion

1The plaintiff April Leduc (“Leduc”) seeks the following relief:

a. An order that this action be consolidated with the action under court file number C-2316-12; and

b. An order that the statement of claim in court file number C-2316-12 be amended to particularize the alleged negligence of the City of Greater Sudbury (“City”).

2The motion is vigorously opposed by the City and also the third party Sandra Wood (“Wood”).

3On August 2, 2011, Leduc was operating a vehicle owned by her mother, Wood, with Christopher Rychlo (“Rychlo”) occupying the front passenger seat. As the Wood vehicle attempted to traverse a railway crossing at Guenette Street, in Sudbury, it collided with a train owned by the third parties, Canadian National Railway Inc. (“CNR”), and operated by three CNR employees, the third parties Luutzen Vanderwey, Paul Daniel, and Brent Dixon (“CNR employees”).

4Both Leduc and Rychlo sustained serious injuries, including traumatic brain injury.

5Leduc commenced an action against the defendants Wood, CNR, the CNR employees and Rychlo by way of statement of claim issued on December 13, 2012 (the “2012 Leduc action”). The City was not named as a defendant in that action.

6Wood defended the action and crossclaimed against CNR, the CNR employees, and Rychlo, on June 11, 2013.

7On July 19, 2013, CNR and the CNR employees delivered a statement of defence and crossclaim against Wood and Rychlo. On July 23, 2013, the same parties delivered their statement of defence to Wood’s crossclaim.

8Rychlo commenced his action by way of statement of claim issued July 31, 2013 (the “Rychlo action”). His action named Leduc, Wood, CNR, the CNR employees AND the City.

9On November 21, 2013, CNR and the CNR employees delivered their statement of defence and crossclaim against Wood and Leduc in the Rychlo action. No crossclaim was advanced against the City.

10On June 13, 2014, Wood delivered her statement of defence and crossclaim against Leduc, CNR, the CNR employees, and the City in the Rychlo action.

11On November 28, 2013, the City delivered its statement of defence and crossclaim against the other defendants in the Rychlo action, that is, Leduc, Wood, CNR, and the CNR employees.

12Leduc delivered her statement of defence and crossclaim against the named defendants in the Rychlo action, on November 29, 2013. Counsel for Leduc in the Rychlo action was not the same counsel as in the Leduc action.

13On December 3, 2013, Leduc’s counsel in the 2012 Leduc action requested that Leduc’s counsel in the Rychlo action provide her with a copy of the pleadings in that action.

14That request was complied with on December 12, 2013, and the second Leduc action (the “2013 Leduc action”) against the City was commenced on December 19, 2013.

15The City delivered its statement of defence on March 19, 2014. The City further issued a third party claim against Wood, CNR, and the CNR employees on March 28, 2014, action #C-2987-13A.

16Joint examinations for discovery of all parties, except Leduc, were held on October 8, 9, and 10, 2014. All counsel were present.

17The City has brought a motion for summary judgment in the 2013 Leduc action. No such motion has been brought in the Rychlo action. The summary judgment motion is scheduled to be heard on October 23, 2015.

Issue

18Should the two Leduc actions be consolidated, or ordered to be tried together? Should the statement of claim in action #2987-13 be amended as requested?

19The arguments at the hearing of the motion focused on the consolidation issue only and I will not address the issues that arise on a request to amend pleadings.

20Rule 6.01(1) provides as follows:

WHERE ORDER MAY BE MADE

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.

(2) In the order, the court may give such directions as are just to avoid unnecessary costs or delay and, for that purpose, the court may dispense with service of a notice of listing for trial and abridge the time for placing an action on the trial list.

Leduc’s Position

21The relief claimed in the two Leduc actions arises out of the same transaction. The parties, with the exception of Rychlo who is not named in the City’s third party claim, are the same in both the 2012 and 2013 Leduc actions.

22The issue of the damages suffered by Leduc is identical in both actions and should not potentially result in different findings of damages in two separate actions.

23The issues of liability are identical in both actions. The question is and will be: did any act or omission on the part of CNR or its CNR employees, or Wood, or Leduc, or Rychlo, or the City contribute to the accident or the injuries suffered by Leduc?

24There should be one action, one set of pleadings, one set of motions, one set of rulings and one trial, one judgment, and one appeal, if required. This will result in efficiency and cost saving. It will eliminate the need to bring two motions regarding compliance with undertakings, and the need to file two sets of transcripts. One action will allow the matter to be dealt with appropriately and efficiently. Consolidating will eliminate the possibility of two separate and different (contrary) findings of liability.

25The City had, through its counsel, indicated its expectation that Leduc would add the City in the 2012 Leduc action, in April 2014, thus effectively achieving the same result as a consolidation.

26Leduc points out that the City was content in April 2014, that no further steps be taken in its third party claim issued in March 2014. To date, no defence to the third party claim has been delivered by Wood, CNR, and the CNR employees, nor has there been any request for such pleadings to be delivered.

27Leduc further points out that neither CNR and the CNR employees, nor Rychlo (as third party defendants in the second Leduc action) is opposing the request for consolidation.

28Leduc also observes that Wood was prepared to consent to adding the City as a party defendant in the 2012 Leduc action, and Wood’s counsel indicated such consent in writing on June 12, 2014.

29Finally, Leduc submits that the third party proceeding will necessarily involve crossclaims by the third parties.

The City’s Position

30The City suggests that, although it was prepared to consent to being added to the earlier Leduc action, it is no longer agreeable to doing so given that since the discovery there has been a crystalizing of the issue of the limitation defence.

31As I understand the argument, to either amend the pleadings as requested or to consolidate the two actions would result in prejudice to the City. The effect would be to add the City as a defendant in an action which was commenced before the expiry of the two year limitation period. The limitation defence may no longer be available.

32Additionally, the City submits that a consolidation of the two Leduc actions would permit additional crossclaims against the City.

33The City raises the further issue of whether the limitation defence is applicable to the crossclaims in the action 2012 Leduc action. If it does not (and the City suggests that it does not), and assuming that the City obtains summary judgment against Leduc, what is the impact on any crossclaim against the City?

34Counsel referred to Rule 23.03 which provides for the deemed dismissal of crossclaims after a discontinuance against the defendant who crossclaimed. It is likely that the other defendants in the consolidated action would move to maintain these claims

35The City further submits that it would be more appropriate to order that the actions be tried together. This would eliminate possible duplication and the risk of two different findings on liability.

Wood’s Position

36Wood submits that consolidation would cause her prejudice. The suggestion is that, in the second Leduc action, Wood is not facing additional crossclaims. If the two actions are consolidated, then she would be.

37Wood suggests that the more appropriate order is that the two actions be tried together.

Analysis:

38The court has a broad discretion in making an order under Rule 6.01, which aims at reducing expense in the litigation process and avoiding a multiplicity of proceedings and outcomes.

39The exercise of that discretion necessarily involves the balancing of the competing interests of expediency and convenience against possible prejudice to a party or parties.

40There is but one event which gives rise to Leduc’s cause of action against Wood, CNR, the CNR employees, Rychlo, and the City.

41Save and except for Rychlo in the third party proceeding commenced by the City, all the parties are the same in both actions.

42As Leduc has correctly set out, the issue of liability in both actions is identical: did any act or omission on the part of any or all the parties cause or contribute to the accident or to Leduc’s injuries.

43Additionally, the assessment of damages suffered by Leduc, in the course of the single event, should be identical in both actions.

44Notwithstanding the above factors which favour consolidation, I nonetheless decline to exercise my discretion to make that order, given the potential prejudice to the City and to Wood.

45Consolidation of the two Leduc actions would result in serious prejudice to the City.

46The defendants in the 2012 Leduc action did not see fit to add the City as a third party. They would have had two years from the date of service of the statement of claim upon them to do so (s. 18 of the Limitations Act, 2002). It would appear as if those defendants are out of time vis-à-vis the City.

47If the two actions are consolidated then, even if the City succeeds in the limitation defence against Leduc, it would still face liability issues as between it and the other defendants in the 2012 action that it otherwise would not face without consolidation.

48As well, if the two Leduc actions are consolidated, Rychlo effectively becomes a party to the second Leduc action, again exposing the City to a further crossclaim by Rychlo.

49Insofar as Wood is concerned, and as I understand Wood`s argument, consolidation would result in her being exposed to a crossclaim by the City, which she is currently not facing.

50In addition to her other arguments, Leduc had also raised the issue of the impact of a successful summary judgment motion by the City in the second Leduc action, on the crossclaims in the Rychlo action, and in the first Leduc action.

51It seems that there would be no impact. Insofar as Rychlo is concerned, he would not be affected by a dismissal of Leduc`s action against the City.

52Likewise, there would be no effect on the crossclaims in the first Leduc action.

53The crossclaims have a life of their own and would not be affected by a summary judgment order dismissing the second Leduc action: see Leblanc v. 045408 N.B. Ltd. (1993), 1993 CanLII 3310 (NB KB), 142 N.B.R. (2d) 377 O.B.

54For the above reasons, I will not order the consolidation of the two Leduc actions, but rather will order that the two Leduc actions be tried together. Although there was no formal motion for such an order, it is logical and reasonable to make the order, and it is consistent with the general principle set out in Rule 1.04 (secure the just, most expeditious and least expensive determination on the merit).

Conclusion

55ORDER TO GO:

a. The action bearing court file number 2987-13 and the action bearing court file number 2316-12 will be tried together.

b. If the parties are unable to agree on the costs of this motion, they shall communicate with the Trial Co-Ordinator, within 30 days of today’s date, to set a date and time to argue costs, failing which they will be deemed to have resolved that issue.

The Honourable Madam Justice Louise L. Gauthier