SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-13-254

DATE: 20150930

RE

GEOFF GRIST and PAULINE GRIST – and – FRANCIS RICHARDSON – AND – THE CORPORATION OF THE MUNICIPALITY OF MEAFORD – and – PENELOPE JOAN SEAMAN, K. ORVILLE BOYD, JAMES BROATCH RATHBUN, JUDITH ELIZABETH RATHBUN, OLIVER GRANT RATHBUN, NAPIER CHARLES RATHBUN, ANDREW JAMES RATHBUN, JOSELYN RATHBUN GRAVLEE et al.

BEFORE: André J.

COUNSEL:
R. Uukkvi, for the Plaintiffs (Moving Parties)

P. Smith, for the Defendant (Respondent)

J. Croome, for the Defendants Penelope Joan Seaman, K. Orville Boyd, James Broatch Rathbun, Judith Elizabeth Rathbun, Oliver Grant Rathbun, Napier Charles Rathbun, Andrew James Rathbun, Joselyn Rathbun Gravlee (the “Rathbun Plaintiffs”)

HEARD: September 17, 2015, at Owen Sound

ENDORSEMENT

[1] Geoff Grist and Pauline Grist (“the Grists”), the plaintiffs in this action (“Richardson Action”), bring a motion for an order to consolidate this action with a related matter (the “Meaford Action”), and to adjourn the pre-trial and trial of the Richardson Action currently scheduled for the October 30, 2015, trial sittings. The Grists, whose position is supported by the Rathbun Plaintiffs, submit that failure to consolidate would be significantly prejudicial to them, give rise to issue estoppel, result in conflicting factual findings and would result in an inefficient use of judicial resources. The defendant, Francis Richardson, opposes the motion and submits that consolidation is inappropriate, given that the two actions are grossly dissimilar, and would be highly prejudicial to him. Mr. Richardson also urges the court to deny the motion given the Grists’ failure to seek leave, pursuant to s. 48.04 of the Rules of Civil Procedure, prior to bringing this motion.

OVERVIEW

[2] The Meaford Action was commenced as a claim by the Town of Meaford (“the Town”) in 2007 against a number of defendant landowners for a declaration that a portion of their respective lands were properly established as a public highway on account of a municipal by-law enacted in 1854. The Grists and a number of other landowners, including the Rathbun Plaintiffs, responded by commencing a counterclaim against the town of Meaford.

[3] In 2011, my brother justice, Daley J., dismissed the Town’s action on a motion for summary judgment, a decision that the Court of Appeal ultimately upheld on February 27, 2013. The Meaford Action is now a counterclaim for damages against the Town, based on the manner in which it enforced the 1854 by-law against the Grists and the other counter-claimants.

[4] The Richardson Action arose out of the Meaford Action. At the time that the Town initiated its claim against the Grists and other landowners, Mr. Richardson served as the Town’s Mayor and member of its executive. In October 2010, the Grists initiated an action against Mr. Richardson for abuse of office, conflict of interest and his personal involvement in the enforcement of the 1854 by-law against them. They alleged that Mr. Richardson improperly abused his position as Mayor, and interfered with their enjoyment of two cottage properties they owned and sought damages in the amount of $2,550,000 against Mr. Richardson. This matter has been set for trial during the October 30, 2015, trial sittings of the court.

CHANGE OF COUNSEL

[5] The Grists retained the law firm of WeirFoulds LLP when they initially commenced their action against Mr. Richardson. The solicitor/client relationship between the two, however, broke down in 2015. The Grists retained their present counsel, Cassels, Brock & Blackwell LLP in July 2015. The Grists’ new counsel only received the files from the Richardson Action on or about August 15, 2015, and have not yet received the files in the Meaford Action from their counterparts at WeirFoulds. Furthermore, the Grists’ counsel have not had sufficient time to obtain an expert’s report to support the Grists’ claim for damages in the Richardson Action.

ANALYSIS

[6] This motion raises the following issues:

(1) Are the Grists required to seek leave to bring this motion?

(2) Should the Richardson and Meaford Actions be consolidated?

ISSUE NO. ONE: Are the Grists required to seek leave from the Court to bring this motion?

The Law

[7] Rule 48.04 states that:

48.04 (1) Any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court.

(2) Subrule (1) does not,

(a) relieve a party from complying with undertakings given by the party on an examination for discovery;

(b) relieve a party from any obligation imposed by,

(i) rule 30.07 (disclosure of documents or errors subsequently discovered),

(ii) rule 30.09 (abandonment of claim of privilege),

(iii) rule 31.07 (failure to answer on discovery),

(iv) rule 31.09 (disclosure of information subsequently obtained),

(v) rule 51.03 (duty to respond to request to admit),

(vi) rule 53.03 (service of report of expert witness); or

(vii) Revoked: O. Reg. 131/04, s. 13.

(c) preclude a party from resorting to rule 51.02 (request to admit facts or documents).

[8] The test for granting leave was set out in Hill v. Ortho Pharmaceutical (Canada) Ltd., [1992] O.J. No. 1740, 11 C.P.C. (3d) 236 (Gen. Div.):

The authorities make it clear that setting down a matter for trial is not a mere technicality of procedure. Before it can be vacated to permit any further discovery or interlocutory proceedings, there must be a substantial and unexpected change in circumstances such that a refusal to make an order under section 48.04(1) would be manifestly unjust.

See also Canadian Gasket & Supply Inc. v. Industrial Gasket & Shim Co., [2009] O.J. No. 3913 (S.C.); Machado v. Pratt & Whitney Canada Inc., [1993] O.J. No. 2741, 16 O.R. (3d) 250 (Gen. Div.); Cooke et al. v. Toivonen et al., 2011 ONSC 1315, 105 O.R. (3) 232; Grainger (Litigation Guardian of) v. Grainger, 2009 85 M.V.R. (5th) 262 (Ont. S.C.), at para. 23; MacRae v. Dreunior, [2007] O.J. No. 3283, 52 C.P.C. (6th) 104 (S.C.), at para. 19.

[9] Many courts however, have eschewed the rigidity and relative inflexibility of the rule established in the Hill case.

[10] For example, in Gloucester Organization Inc. et al. v. Canadian Newsletter Managers Inc. (1995), 21 O.R. (3d) 753 (Gen. Div.), at para. 9, Borins J. indicated that the test “will vary and will depend on the nature of the leave requested and the circumstances of the case”.

[11] Similarly, the court in Tanner v. Clark, [1999] O.J. No. 581, 30 C.P.C. (4th) 358 (Gen. Div.), at para. 26, noted that:

An interlocutory matter that can be raised before the trial judge, is to be distinguished from serious matters affecting substantive rights. In the case of the former, a higher threshold is appropriate before leave is granted to bring closure to claims in the interests of certainty and predictability. Once a trial date has been set, the test of substantial and unexpected change in circumstances makes sense for routine interlocutory matters. However, where substantive rights are affected, the merits of the requested relief become a fundamental consideration to ensure the case is fully canvassed at trial. At the same time, full consideration shall be given to any prejudice to the party opposing the motion that cannot be compensated for by costs.

[12] Additionally, Boswell J. noted in Todd Family Holdings Inc. v. Gardiner, 2013 ONSC 2461, at para. 39, that: “Granting leave is a discretionary remedy, to be exercised having regard to the general principle set out in rule 1.04”: see Kernohan v. York (Municipality), 2009 9422, 77 C.P.C. (6th) 391 (Ont. S.C.). This rule provides that the court is obliged to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

Applying the Law to the Facts of This Case

[13] The Grists submit that leave is not required in this case given that the Meaford Action has not been set down for trial.

[14] They assert, in the alternative, that it is in the interests of justice to grant leave to bring the motion. This is so given that their new counsel has not had sufficient time to prepare for the trial and insufficient time to present evidence regarding the quantum of damages they seek.

[15] Mr. Richardson, on the other hand, maintains that he has waited a considerable period for his trial and that an adjournment of this matter would cause him untold prejudice.

[16] In my view, leave should be granted to bring this motion whether justified on the basis of a substantial and unexpected change in circumstances or simply on the basis of trial fairness. The Grists’ new counsel was not involved in the setting of a trial date in the Richardson Action. He has not received all the files in the action, let alone review it. Allowing the matter to proceed to trial as scheduled would affect trial fairness in that it may prevent the Grists from calling evidence regarding any damage they may have suffered. Additionally, proceeding as scheduled would have the unfortunate result of penalizing the Grists because of a change in their counsel.

[17] The resultant delay in the Richardson Action may prejudice Mr. Richardson but not in a manner that affects his ability to make full answer and defence to the allegations the Grists have made against him. Neither would the adjournment adversely affect his pecuniary interest given both the Meaford and Richardson Actions are insured claims which are being defended by the same insurance company. Additionally, while Mr. Richardson may be inconvenienced by any adjournment of the trial, such inconvenience does not amount to prejudice: see Fenix Developments G.P. Inc. v. Willemse, [1994] O.J. No. 73, 23 C.P.C. (3d) 376 (Gen. Div.), at para. 9.

[18] For the above reasons, the Grists are granted leave to file their motion.

ISSUE NO. TWO: Should the Richardson and Meaford Actions be consolidated?

[19] Mr. Richardson’s counsel submit that it should not. He relies on the following reasons for his position:

(1) The Actions are dissimilar in that whereas the Meaford Action is grounded in the tort of negligence, the Richardson Action is not.

(2) The matters are not interrelated as the Grists’ suggest.

(3) The Meaford Action has been at a standstill for more than two years while the Richardson Action is ready for trial.

(4) Whereas examinations for discovery in the Richardson Action were completed in January 2012, documentary discovery in the Meaford Action has not even commenced.

(5) While the Richardson Action involves a very narrow issue revolving around Mr. Richardson’s action; the Meaford Action is “far more complex” and deals with the voting record of an “entire municipal council”.

[20] The Grists, supported by the Rathbun Plaintiffs, submit that consolidation is warranted for the following reasons:

(1) Rules 6.01 of the Rules of Civil Procedure.

(2) The relief claimed arises from the same set of facts.

(3) Failure to consolidate would prejudice the Grists, Seaman, Orvilles, Rathbun and Boyds.

(4) Findings of fact in the Richardson Action could give rise to issue estoppel and conflicting factual findings.

(5) The witnesses in both actions are virtually identical.

(6) Consolidation would result in the efficient use of limited judicial resources.

(7) Consolidation would result in significant savings in that both the Town of Meaford and Mr. Richardson are represented by counsel for the same insurance company.

THE LAW

[21] Rule 6.01 provides that:

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.

[22] Section 138 of the Courts of Justice Act, R.S.O. 1990, c. C.43, (the “CJA”), provides that:

As far as possible, multiplicity of legal proceedings shall be avoided.

[23] The underlying policy of Rule 6.01 is to avoid a multiplicity of proceedings, to promote expeditious and inexpensive determination of disputes and to avoid inconsistent judicial findings: see Pilon v. Janveaux, [2000] O.J. No. 4743 (S.C.J.), at para. 6; Coulls v. Pinto, at para. 18.

[24] In Abegweit Potatoes v. J.B. Read Marketing Inc., [2003] P.E.I.J. No. 80 (C.A.), at para. 23, McQuaid J. A. noted that:

In assessing whether there is a common question of fact or law common to both proceedings so as to meet the threshold test for granting one of the remedies in Rule 6.01(1)(d), the focus should be on whether there is a common issue of fact or law that bears sufficient importance in relation to the other facts or issues in the proceedings which would render it desirable that the matters be consolidated, heard at the same time or after each other.

[25] In considering whether or not to consolidate two actions pursuant to Rule. 6.01(1) the court must consider s. 138 of the CJA and the following factors:

(1) The extent of the difference or commonality of the facts or issues in the proceedings;

(2) The status of the progress of the several proceedings; and

(3) The convenience or inconvenience, in terms of time, money, due process and administration, of bringing the proceedings together.

Drabinsky v. KPMG, [1999] O.J. No. 3630 (S.C.); McKee v. Thistlethwaite, [2003] O.J. No. 2850 (S.C.); DaCosta v. TD Home and Auto Insurance Company, 2014 ONSC 6066, at para. 13.

[26] Furthermore, in Logtenberg v. ING Insurance Co., [2008] O.J. No. 3394 (S.C.), the court considered the following questions in determining the propriety of or otherwise consolidation:

i. Will the order sought create a savings in pretrial procedures?

ii. Will there be a real reduction in the number of trial days taken up by the trials being heard at the same time?

iii. What is the potential for a party to be seriously inconvenienced by being required to attend a trail in which that party may have only a marginal interest?

iv. Will there be real savings in experts’ time and witness fees?

v. Is one of the actions at a more advanced state than the other?

vi. Will the order result in a delay of one of the actions?

vii. Are any of the actions proceeding in a different fashion?

FACTORS WEIGHING IN FAVOUR OF CONSOLIDATION

[27] The following factors favour consolidation of the two actions:

1. Commonalities of the Facts and Issues

[28] Both Actions deal with the conduct of the Meaford councillors in enforcing the 1854 by-law on the properties of the Grists and other defendants in the Meaford Action. While the Richardson Action deals specifically with the role of Francis Richardson in the enforcement of the by-law, the facts and issues in that Action are the same as that in the Meaford Action.

2. Witnesses

[29] The witnesses in both actions will basically be the same. The Grists maintain that they intend to call members of the Town of Meaford executive as witnesses in the Richardson Action. These councillors are all expected to be called as witnesses in the Meaford Action. Indeed in a May 22, 2013, motion to transfer the Richardson Action from Toronto to Owen Sound, counsel for Francis Richardson indicated in his motion materials that he intended to call “all Meaford councillors during the relevant time period” as witnesses in the trial.

3. Savings in Court Time

[30] Consolidation would save a considerable amount of court time in that these witnesses would not be required to testify about the same events in two separate proceedings.

4. Inconsistent Factual Findings

[31] Consolidation could eliminate the possibility of inconsistent credibility findings posed by having two separate proceedings.

5. Issue Estoppel

[32] Issue estoppel bars the re-litigation of issues previously decided in court in another proceeding where the same question has been decided, the decision was final and the parties to the decision or their privies were the same persons as the parties to proceedings in which the estoppel was raised: see Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, at paras. 25, 33.

[33] The plaintiffs who are suing the Town of Meaford may be prejudiced by not being able to raise relevant issues in their lawsuit if the Richardson Action proceeds as scheduled.

FACTORS MILITATING AGAINST CONSOLIDATION

1. Different Stages of Proceedings

[34] The Richardson Action is on the verge of trial while the Meaford Action is in its preliminary stages.

2. Delay in Richardson Action

[35] Consolidation will inevitably delay or lead to a postponement of the Richardson Action. Counsel for the Grists maintain that consolidation may only result in a delay of approximately six months. However, it is more likely that the delay could be much longer.

3. Replication of Procedural Steps

[36] Consolidation would likely result in the replication of steps already completed in the Richardson Action such as the examinations for discovery. This could result in additional time and expense.

4. Prejudice

[37] Consolidation could be prejudicial to Francis Richardson in that he would have to wait for a much longer period to respond to allegations that he abused his position as a public officer while serving as Mayor of the Town of Meaford.

CONCLUSION

[38] Weighing the factors for and against consolidation, I have decided to exercise my discretion by ordering a consolidation of the Richardson and Meaford Actions. Doing so will not have serious financial repercussions on Mr. Richardson. Even if consolidation is not ordered, the matter would still have to be adjourned, given the Grists recent change of counsel. Additionally, consolidation will achieve a significant saving in court time and will eliminate the likely possibility of inconsistent factual findings if these matters are tried separately.

[39] Accordingly, I order that the Richardson Action and the Meaford Action be consolidated, or heard at the same time or one immediately after the other, as the trial judge may direct.

COSTS

[40] On consent, costs are reserved to the trial judge.

André J.

DATE: September 30, 2015

COURT FILE NO.: CV-13-254

DATE: 20150930

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: GEOFF GRIST and PAULINE GRIST – and – FRANCIS RICHARDSON – AND – THE CORPORATION OF THE MUNICIPALITY OF MEAFORD – and – PENELOPE JOAN SEAMAN, K. ORVILLE BOYD, JAMES BROATCH RATHBUN, JUDITH ELIZABETH RATHBUN, OLIVER GRANT RATHBUN, NAPIER CHARLES RATHBUN, ANDREW JAMES RATHBUN, JOSELYN RATHBUN GRAVLEE et al.

BEFORE: André J.

COUNSEL: R. Uukkvi, for the Plaintiffs (Moving Parties)

P. Smith, for the Defendant (Respondent)

J. Croome, for the Defendants Penelope Joan Seaman, K. Orville Boyd, James Broatch Rathbun, Judith Elizabeth Rathbun, Oliver Grant Rathbun, Napier Charles Rathbun, Andrew James Rathbun, Joselyn Rathbun Gravlee (the “Rathbun Plaintiffs”)

ENDORSEMENT

André J.

DATE: September 30, 2015