Court File and Parties

COURT FILE NO.: CV-15-123951-00 DATE: 20160419 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

TANYA CURÉ, Plaintiff – and – HELEN KILITZOGLOU, Defendant

Counsel: Margaret Rintoul, for the Plaintiff Leo Klug, for the Defendant

HEARD: April 14, 2016

REASONS FOR DECISION

CHARNEY J.:

Introduction

[1] This motion is brought by the plaintiff Tanya Curé for an order that this action (the Curé action) be tried together in the upcoming spring trial sittings with court file number CV-150122164-00 commenced by the defendant, Helen Kilitzoglou, against the plaintiff and her sister Shannon Curé (the Kilitzoglou action). Kilitzoglou objects on the basis that the Kilitzoglou action is ready to proceed, and it will prejudice that claim to join it with the Curé action.

[2] For the reasons given below, the motion is dismissed.

Facts

[3] Tanya and Shannon Curé are Albert Curé’s daughters from his first marriage. Helen Kilitzoglou was the common-law spouse of Albert Curé. Both actions arise out of the death of Albert Curé on April 7, 2007, leaving a Last Will and Testament dated April 18, 2002, and a Co-habitation Agreement dated April 26, 2004 between Albert Curé and Helen Kilitzoglou. Litigation between the parties arose and proceeded for several years in what the trial judge described as a “difficult, lengthy and complex trial” consuming 37 days of trial time over several months in 2012 and 2013. The litigation involved several actions that were heard together. I will refer to this as the “original action”.

The Original Action

[4] The original action (Helen Kilitzoglou et al v. Shannon Curé et al, 2014 ONSC 1018) was heard by McKelvey J, who described the main issues in the action as follows (paras. 63-64):

Tanya Curé commenced an application on November 8, 2007 seeking a declaration that she and the CIBC were the beneficiaries under the TransAmerica life insurance policy. TransAmerica, Helen Kilitzoglou, and the Royal Bank of Canada are named as respondents in that application.

On April 2, 2008 Helen Kilitzoglou commenced an application…the only issues to be decided pursuant to this application relate primarily to the family home including:

(i) Does Ms. Kilitzoglou have the right to purchase the home;

(ii) In the alternative does Ms. Kilitzoglou have the right to continue living in the home; and

(iii) Who is responsible for certain expenses associated with the home.(paras. 63-64).

[5] In his judgment on February 14, 2014, McKelvey J. found in favour of Tanya Curé and CIBC with respect to the beneficiary designation under the life insurance policy.

[6] He also made an award in favour of Ms. Kilitzoglou for expenses relating to the home, based on a cohabitation agreement between the parties. At trial, the Estate acknowledged its responsibility for all home expenses for the first three years after Mr. Curé’s death. The Estate took the position that Ms. Kilitzoglou was responsible for all expenses, including capital expenses, after the expiry of three years. Given that the only evidence of expenses at trial related to the first three years following Mr. Curé’s death, McKelvey J. concluded that he was not required to determine whose responsibility it was for payment of capital expenses following three years from Mr. Curé’s death. Nonetheless, he provided obiter comments with respect to the proper interpretation of the cohabitation agreement “in the hope that it may be of some assistance to the parties at a later time.” He stated (at para. 279):

[H]ad I been required to decide who was responsible for payment of capital expenses on the home at the expiry of three years from the death of Mr. Curé I would have concluded that the capital expenses are the responsibility of the Estate and that Ms. Kilitzoglou is responsible for the ordinary and reasonable costs of maintaining the residence from her own resources. For the reasons noted above I would also have concluded that any mortgage payments would also continue to be the responsibility of the Estate as Mr. Curé failed to arrange for mortgage insurance as required under the cohabitation agreement.

The Kilitzoglou Action

[7] The Kilitzoglou action was issued on March 17, 2015 against Tanya Curé and her sister Shannon Curé, as well as the Estate of Albert Curé. The relief sought in that action concerns a claim against the defendants to pay all mortgage payments, all capital expenses and capital improvements on the home dealt with in the original action. This action depends upon the interpretation of the cohabitation agreement that was in issue in the original action. The action also seeks $750,000 damages from the defendants for breach of the cohabitation agreement.

[8] The defendants admitted their obligation to pay the outstanding mortgage but refused to make any further repairs to the residence on the bases that Kilitzoglou was responsible for all costs of the upkeep of the property.

[9] The defendants counterclaimed against Kilitzoglou for approximately $176,000.00. This amount represents $75,636.00 in payments for utilities, insurance, property taxes, maintenance costs and repairs paid out of the proceeds of Albert Curé’s life insurance, $50,142.67 paid out of the Estate of Albert Curé to the bank for mortgage interest, and $50,858.27 for fees claimed by the Estate Trustee Pending Litigation. The defendants take the position that these expenses were the direct result of Kilitzoglou’s unsuccessful challenge to the beneficiary designation under the life insurance policy.

[10] This action was set down for trial and came on for pretrial on March 10, 2016. It is scheduled to be heard in the upcoming spring trial sittings in May 2016.

The Curé Action

[11] The Curé action was issued on September 9, 2015. It relates to Albert Curé’s life insurance policy. The plaintiff seeks $225,000.00 from the defendant Kilitzoglou representing the balance of life insurance proceeds paid to or for the benefit of the defendant from the policy of life insurance that McKelvey J. found was payable to the Tanya Curé as a named beneficiary. Tanya Curé seeks compensation from Helen Kilitzoglou for moneys spent out of the life insurance proceeds that she alleges ought properly to have been paid to Tanya as a result of being found to be the beneficiary of the life insurance policy.

[12] It is clear that the issues raised in the defendants’ counterclaim in the Kilitzoglou action are closely related to the plaintiff’s claim in the Curé action. It is not apparent to me why the Curé action could not have been included in the Curé counter-claim in the Kilitzoglou action.

Position of the Parties

[13] The issue on this motion is whether the Kilitzoglou action and the Curé action should be tried together. This would result in the Curé action being added to the trial list for the sittings commencing in May 2016.

[14] Consolidation of proceedings is dealt with in Rule 6.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. It provides:

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,

(c) 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. R.R.O. 1990, Reg. 194, r. 6.01 (1).

(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.

[15] The underlying policy of Rule 6 is to avoid a multiplicity of proceedings and to promote the expeditious and inexpensive determination of disputes and to avoid inconsistent judicial findings: Pilon v. Janveaux at para. 6.

[16] Curé takes the position that the evidence and documents in connection with both actions are identical, and that it would be an inappropriate use of judicial resources for the two matters to be heard separately by different judges and risk inconsistent results. She also argues that the actions were commenced just 6 months apart and have questions of fact in common. She claims that the two actions can be heard with no additional court time required.

[17] Kilitzoglou takes the position that she will be prejudiced if the two actions are joined. The Kilitzoglou action is ready for trial and will likely be heard next month. It relates to repairs to the house that she claims are urgent. Consolidation will double the time of the trial from 3 days to 6 days.

[18] Kilitzoglou argues that the Curé action is not ready for trial because the affidavit for documents served by Curé less than one month ago on March 23, 2016 is deficient, and there have been no examinations for discovery in relation to the Curé action. She wants to examine Tanya Curé for discovery to question her on assets belonging to the Estate of Albert Curé. It will be impossible to complete these steps prior to the May sittings.

[19] Tanya Curé responds that the Curé action is also ready for trial as the affidavit of documents and trial record were delivered on March 23, 2016. No request for discovery has been made in the Curé action.

[20] In response to Kilitzoglou’s argument that she wants to examine Tanya Curé in advance of the Curé action, Tanya Curé argues that the proposed questions regarding the assets belonging to the Estate are not relevant to the issues in her case. The Estate of Albert Curé is not a party to her action, and so its assets are not relevant to that claim. She also argues that Kilitzoglou served her trial record in the Kilitzoglou action without requiring examinations for discovery in that action, and that Kilitzoglou should not be permitted to examine Tanya Curé with respect to the Curé action without a motion under Rule 48.04(1).

Analysis

[21] While consolidation of these actions would be the preferred result if they were both ready for trial, the fact that the Kilitzoglou action is scheduled to begin next month is, in my view, an insurmountable obstacle to making the order sought by Tanya Curé. I reach this result for three reasons.

[22] The first is that the legal issues in the two actions are distinct. The Kilitzoglou action relates to the interpretation of the cohabitation agreement, the Curé action relates to the implications of McKelvey J.’s 2014 decision on monies paid out of insurance proceeds prior to the release of the decision.

[23] Second, while the two cases share a common factual background, that background has already been set out in great detail in McKelvey J.’s 2014 decision. These cases both take off where that decision ended. The Kilitzoglou action is concerned with facts following the three year period addressed by McKelvey J. in his decision in the original action. The Curé action is concerned with payments made out of the life insurance proceeds prior to that decision. The spectre of inconsistent factual findings is not compelling in this case.

[24] Indeed, the parties in the Curé action may well be bound by findings and rulings in the Kilitzoglou action by virtue of the doctrine of res judicata or issue estoppel even if the two actions are not joined. The three preconditions of issue estoppel are “whether the same question has been decided; whether the earlier decision was final; and whether the parties, or their privies, were the same in both proceedings” British Columbia Workers’ Compensation Board v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422 at para. 27. I cannot comment on whether this doctrine will apply to the second action, but it further reduces the likelihood of inconsistent decisions.

[25] Finally, while Curé takes the position that the proposed Kilitzoglou examination for discovery in the Curé action is unnecessary and irrelevant, that is not a call that I am comfortable making on this motion. Kilitzoglou has the right to discover Curé before the trial of the Curé action, and I will not make a decision that forces her to either abandon that right or adjourn the hearing of her own action scheduled for next month.

[26] Rule 48.04(1) does not apply to Kilitzoglou with respect to the Curé action because Kilitzoglou has neither set that action down for trial nor consented to it being placed on a trial list.

[27] If there were more time, it would make sense to have these matters heard together, but in the circumstances of this case the potential prejudice to Kilitzoglou outweighs the advantages of consolidation.

[28] Regrettably, this case has already resulted in a multiplicity of proceedings by both parties, each of whom has brought an action with questions of law and fact in common with the original action. It is too late to unscramble that egg.

Conclusion

[29] For these reasons the motion that court file numbers CV-15-123951-00 and CV-150122164-00 be tried together is dismissed.

[30] If the parties cannot agree on costs they may file written submissions of no more than 3 pages (not including costs outlines and offers to settle) within 20 days of the release of these reasons.

Justice R.E. Charney Released: April 19, 2016