CITATION: Edwardson v. Filia, 2015 ONSC 6362
COURT FILE NO.: 2170/13 SR A1
DATE: 2015/10/28
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Nicole Edwardson (Plaintiff)
AND:
F. Filia & Associates Ltd. (Defendant)
AND:
Steven Edwardson (Third Party)
BEFORE: Justice H. A. Rady
HEARD: October 13, 2015
ENDORSEMENT
Introduction
[1] The defendant moves for an order pursuant to Rule 6.01 directing the trial of this action with another or for a trial one after the other, as the trial judge directs. Such orders are routinely granted where there are common issues of law or fact or the relief claimed arises from the same occurrence. Some background is necessary to understand why I have reached the conclusion that joinder is warranted.
[2] The plaintiff was involved in a motor vehicle accident on June 25, 2012 in which she sustained personal injuries, including an alleged acquired brain injury. Ms. Edwardson was proceeding through an intersection on a green light in a residential area in Sarnia. A motorcycle failed to stop for a red light and collided with her. The motorcyclist was killed on impact. At the time of the accident, he was being pursued by the Ontario Provincial Police. Ms. Edwardson has sued the motorcyclist’s estate and the O.P.P. Liability for the accident has not been admitted and appears to be contentious certainly from the O.P.P.’s perspective.
[3] The plaintiff advances claims for general damages, past and future wage loss and future care costs. She is receiving income replace benefits of $400 weekly from her own insurer. Ms. Edwardson was a registered nurse at the time of accident and earned a healthy income. As a result, the IRBs being paid are significantly less than her pre-accident earnings. That forms the basis for the claim in this proceeding.
[4] Ms. Edwardson has sued her insurance broker for negligence and breach of contract. She alleges that her broker failed to inform her of the availability of enhanced IRBs upon payment of a modest additional premium. She seeks damages, representing the difference between what she is receiving and what she would have received had the enhanced benefits been purchased (namely an additional $580 per month).
[5] The motor vehicle tort action has been scheduled for trial for the fall of 2017. The trial may last four to six weeks. This action is being spoken to in the Assignment Court next month. Plaintiff’s counsel hopes to obtain a trial date in the next six to eight months. A week long trial is estimated. No jury notice has been delivered in either action.
The Parties Positions
[6] The defendant submits that both actions arise from the accident and involve common questions of fact and law and, in particular, the plaintiff’s ability to work in future and what impact any tort recovery has on her IRBs. The defendant argues that there is a risk of inconsistent findings in the two actions and for double recovery if the actions are not tried together.
[7] The plaintiff submits that each action advances separate and distinct causes of action, one for negligence in the operation of a motor vehicle and the other for negligence and breach of contract. She notes that her insurer has concluded that she meets the criteria for continued entitlement to benefits and therefore, there is no risk of double recovery because to the extent she receives an award for future loss of income, she is required to hold the IRBs in trust or give an assignment of future IRBs to the defendants (provided her judgment has been satisfied by them).
Analysis and Disposition
[8] Rule 6.01 provides as follows:
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.
[9] The Court’s power is discretionary and the consent of the parties is not required: Pilon v. Janveaux, [2000] O.J. No. 4743 (S.C.J.).
[10] Generally speaking, joinder is encouraged to facilitate the disposition in one action of all claims arising from the same event. Section 138 of the Courts of Justice Act mandates that “[a]s far as possible, multiplicity of legal proceedings shall be avoided”.
[11] The defendants’ position must prevail for the following reasons. I hasten to observe, first, that the broker’s negligence case has only a peripheral connection to the motor vehicle accident, in the sense that it was only after the accident occurred that her claim against the broker materialized.
[12] However, my concern centres on the potential for double recovery. It is not clear to me that the relevant provisions of the Insurance Act apply to impose a trust or mandate an assignment on the facts of this case.
[13] The relevant sections of the Insurance Act were not provided to me during argument and I simply had the assertion in the affidavit evidence that there is no risk of double recovery.
[14] The Act provides as follows:
Collateral benefits; Income loss and loss of earning capacity
267.8 (1) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages to which a plaintiff is entitled for income loss and loss of earning capacity shall be reduced by the following amounts:
All payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for statutory accident benefits in respect of the income loss and loss of earning capacity.
All payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for income loss or loss of earning capacity under the laws of any jurisdiction or under an income continuation benefit plan.
All payments in respect of the incident that the plaintiff has received before the trial of the action under a sick leave plan arising by reason of the plaintiff’s occupation or employment.
[15] Stinson J. in Anand v. Belanger, 2010 ONSC 5356 (S.C.J.) observed at para. 32:
The purpose behind s.267.8(1) is to avoid double recovery by injured parties who receive an award of damages for loss of income in a tort proceeding and also receive income replacement benefits and long term and short term disability payments; it is entirely reasonable for those plaintiffs to be required to account to their tortfeasors for the sum they actually received, such that double recovery is avoided and overall automobile insurance rates are kept low.
[16] The trust provisions of the Act are as follows:
Future collateral benefits
(9) A plaintiff who recovers damages for income loss, loss of earning capacity, expenses that have been or will be incurred for health care, or other pecuniary loss in an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile shall hold the following amounts in trust:
All payments in respect of the incident that the plaintiff receives after the trial of the action for statutory accident benefits in respect of income loss or loss of earning capacity.
All payments in respect of the incident that the plaintiff receives after the trial of the action for income loss or loss of earning capacity under the laws of any jurisdiction or under an income continuation benefit plan.
All payments in respect of the incident that the plaintiff receives after the trial of the action under a sick leave plan arising by reason of the plaintiff’s occupation or employment.
All payments in respect of the incident that the plaintiff receives after the trial of the action for statutory accident benefits in respect of expenses for health care.
All payments in respect of the incident that the plaintiff receives after the trial of the action under any medical, surgical, dental, hospitalization, rehabilitation or long-term care plan or law.
All payments in respect of the incident that the plaintiff receives after the trial of the action for statutory accident benefits in respect of pecuniary loss, other than income loss, loss of earning capacity and expenses for health care.
Payments from trust
(10) A plaintiff who holds money in trust under subsection (9) shall pay the money to the persons from whom damages were recovered in the action, in the proportions that those persons paid the damages.
[17] It occurs to me that if the plaintiff recovers a loss in the form of damages from the broker for professional negligence or breach of contract, rather than the IRB insurer or other collateral benefit provider, it is arguable that the provisions of the Insurance Act do not apply. The argument would be along the lines that the broker’s negligence damages are not either statutory accident benefits or income loss “in respect of the incident”, namely the motor vehicle accident. I need not make that determination but simply note that this is a reason why the order should be made under R. 6.01(1)(c). I am also of the view that the plaintiff’s future income loss will be at issue in both proceedings.
[18] The motion is therefore granted. If the parties cannot agree, I will receive brief written submissions on costs, first from the defendant by November 6, 2015 and the plaintiff by November 13, 2015.
“Justice H. A. Rady”
Justice H. A. Rady
Date: October 28, 2015