ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-13-481406

DATE: 20150910

B E T W E E N:

EIMAN ANDERSON and

Susan M. Vella, for the Appellant

MAHA DUTIL

Appellants

• and -

DR. GAMAL W. HAROUN

L. Galessiere, for the Respondent

Respondent

D.L. Corbett J.:

DECISION

1The plaintiffs appeal the decision of Master McAffee severing their claims into separate actions. For the reasons that follow the appeal is allowed without prejudice to any order the trial judge may make severing the claims of the plaintiffs or directing the manner in which the trial of this proceeding should be conducted.

Nature of the Case

2The plaintiffs are sisters. They each claim that the defendant, their uncle, sexually assaulted them when they were children, several decades ago.

Joinder of Claims Arising from the Same Series of Occurrences (R.5.01(a))

3These are claims of historic sexual assault. They are alleged to have taken place during the same time frame, in the same house. The claims are not identical in that the assaults against the two plaintiffs are alleged to have taken place separately, not together.

4The Master accepted that there would be some common witnesses and some common issues involved in the claims of the two plaintiffs, but concluded that the alleged assaults were distinct events, and thus that joinder of claims was permitted by Rule 5.02(b) and (c), but not by 5.02(a). This was an error. Allegations of sexual assault committed against siblings by the same person in the same place during the same general period of time may fit within the category of a “series of occurrences” within the meaning of R.5.01(a). In this case, based on the facts alleged in the statement of claim, the close temporal and spatial nexus, and the identical familial circumstances, places these allegations well within R.5.02(a).

Joinder of Claims With Common Questions of Fact and Law (R.5.02(b))

5The Master accepted that there are factual issues in common in the two claims, notably the facts respecting the opportunity the defendant may have had to be alone with the plaintiffs and thus to perpetrate the alleged assaults, and the nature of the substantive relationship between the defendant and the plaintiffs – that is, the role and authority of the defendant in the plaintiffs’ lives as they were growing up.

Joinder Promoting the Convenient Administration of Justice (Rule 5.02(c))

6The Master acknowledged that it would increase costs and burdens for the parties and for the administration of justice to have two proceedings rather than one. She concluded that this prejudice could be ameliorated by a trial management order by the trial judge to try the cases together, or one after the other, if the trial judge considers that appropriate. The Master weighed these costs against the difficulties created by leaving the claims joined and found that the balance favoured granting severance.

7I would add to these considerations the point that the process of civil justice should facilitate adjudication of claims on their merits Claimants who allege sexual assault face the prospect of reliving their experiences multiple times before the case is decided at trial. They must disclose their allegations to legal counsel. They must do so again at examinations for discovery. They must do so again when they testify at trial. That is usually the minimum. If these cases are brought as separate claims, with each of the claimants testifying at the other’s trial, then there is a fourth recounting. If both claims proceed before juries, and if similar fact applications are brought in both trials, there may be another two repetitions during the similar fact evidence voir dires. Joinder of claims and a trial by judge alone reduces the repetition of testimony, shortening the process, and shielding the plaintiffs from the pain and stress of unnecessary repetitions of testimony. This is a most desirable goal, balanced, always, against the defendant’s right to defend the claims fully and fairly.

Reasons to Sever

8As concluded above, these are claims which the Rules permit to be joined. The issue is whether the prejudice arising from this permitted joinder outweighs the benefits to be gained from leaving the cases together in one proceeding.

9There are two reasons to sever claims in these circumstances. One is that there is an unacceptable risk that the trier of fact will engage in impermissible propensity reasoning by misusing “similar fact evidence”. The second is that the process of the case may lead to a tainting of evidence by exposure of each plaintiff to the evidence of the other, enabling the plaintiffs to tailor their evidence.

10These are real dangers. However, the first issue is best addressed by the trial judge and the second is best dealt with by the parties and counsel during the course of the case, with assistance from the court where necessary. These are not issues that should be dealt with by an early severance order.

Impermissible Reasoning by the Trier of Fact

11This is not a compelling concern in this case because there is no jury. The trial judge will be acquainted by the similar fact evidence after hearing a motion to permit this evidence to be admitted as such. If the evidence is ruled admissible as similar fact evidence, then it will be before the trier of fact in any event. If it is ruled inadmissible as similar fact evidence, the trial judge will be aware of it from the voir dire and will be required to disregard it for similar fact purposes. In a judge-alone trial, the simplest way to run the case is to hear the full evidence of both plaintiffs and then to hear argument on the similar fact application at the conclusion of the evidence. This obviates the need to hear the evidence twice.

12Where there is a jury there is a stronger argument for severance of the trials, but even then this is a decision best left to the trial judge after the court has ruled on any application to admit similar fact evidence.

Tainting of the Plaintiffs’ Evidence

13The concern is that the plaintiffs will collude to tailor their evidence against the defendant. This is a common concern where there are allegedly multiple victims of sexual assault by the same person.

14This is a credibility issue. It may be the subject-matter of cross-examination. It is in the plaintiffs’ interests to reduce the fodder for this cross-examination – both inside the litigation process and outside it.

15The Master correctly noted that each of the plaintiffs, as parties, are ordinarily entitled to be present at the other’s examinations for discovery, to review the documentary evidence relevant to each other’s claims (such as medical and therapeutic records), and to be present in the courtroom while the other testifies. However, just because these things are possible on the basis of the usual practice in civil cases does not mean that they will happen or that they cannot be prevented by the court.

16There is no legal rule that precludes the plaintiffs from talking to each other about their cases, whether their claims are joined or not. As a matter of sound litigation practice, their counsel usually should advise them that they should not do so because of the impact those discussions could have on the court’s assessment of their credibility. For precisely this reason, counsel usually should advise her clients that it would be unwise for them to be present at each other’s examinations or to otherwise disclose to each other the details of what happened between them and their uncle. If the plaintiffs do not follow this advice, this can be raised with the trier of fact who may then weigh all of the circumstances in assessing the plaintiffs’ credibility.

17The extent to which the court can or should order parties to abstain from communicating with each other is beyond the scope of this appeal. However, it is clearly open to the plaintiffs to consent to an order that they not participate in or share information about each other’s examination for discovery, or be present during each other’s evidence at trial.

18The court process is, of course, only one way in which the plaintiffs may communicate with each other. Where the parties are present at each other’s examination for discovery or for each other’s evidence in court, there will be no issue that they have had an opportunity to tailor their evidence to that of their co-plaintiff. But communications outside the court process may be relevant as well: discussions the plaintiffs have had with each other over the past decades may also be fertile ground for cross-examination. Any evidence that may show tailoring of evidence could bear on credibility, and credibility is often a central issue in claims such as these.

19In my view the concern over tailoring evidence is one best left to the parties to manage and ultimately to the trier of fact to assess. It is not a basis to order severance of claims that should otherwise be permitted to be joined.

20The Master also considered the impact of the “implied undertaking” if the claims remain in one proceeding. With respect, the implied undertaking, which is now express in the Rules, does not bear on this issue.

21The plaintiffs are precluded from using information they learn from the defendant during the process of compelled disclosure for purposes outside the litigation. This Rule would apply to them as co-plaintiffs as it would apply to them as plaintiffs in separate actions. The plaintiffs are represented by the same counsel, and so there is no reason to believe that they would learn different things in two separate examinations for discovery. And the rule does not preclude a party from discussing her own evidence given on examination for discovery with whoever she pleases. I do not see how this Rule would have a materially different impact on the case, whether the cases are joined or severed.

Balancing the Issues

22The Master considered the issues and concluded that the balance favoured severing the claims, with discretion in the trial judge to try the cases together or one after the other. This effectively leaves it open to the trial judge to proceed as if there had not been a severance, and puts the parties to the expense of two proceedings rather than one until the case reaches trial.

23In my view this disposition underscores the preferable approach, which is to leave the issue of severance to the trial judge, and guard against concerns about collusion through management of the discovery process. This places responsibility for the issue with the trial judge, the person best placed to decide how to run the trial in light of the role of similar fact evidence in the fact-finding process.

Order and Costs

24The appeal is allowed and the order of the Master is set aside, without prejudice to a severance motion before the trial judge. The parties have agreed on the quantum of costs payable before the Master and on this appeal: costs to the appellant from the respondent fixed at $12,000 inclusive for the appeal, and in the amount agreed between the parties for the motion before the Master.

D.L. Corbett J.