Kaur v. Blue Cross, 2018 ONSC 3303

COURT FILE NO.: CV-14-5766 and CV-13-5191

DATE: 2018 05 28

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Ravinder Kaur v. Blue Cross Life Insurance Company of Canada

BEFORE: COROZA J.

COUNSEL: Ms. A. Ismail for plaintiff, Ravinder Kaur

Mr. J. Hogan for defendant, Blue Cross Life Insurance Company of Canada

Mr. R. Jones for defendants in action CV-13-5191

HEARD: March 9, 2018

ENDORSEMENT

Overview of the Case

1On January 2, 2012, the plaintiff Ravinder Kaur was involved in a car accident. Ms. Kaur began an action against the driver of the other car involved in the accident. I will refer to this action as the tort action (CV-13-5191-00). The defendant, Harpal Singh, has filed his statement of defence and crossclaim against Ms. Kaur.

2As a result of the accident, Ms. Kaur claims that she has suffered serious and permanent injuries that prevent her from working. Accordingly, she has applied for long term disability benefits pursuant to a Blue Cross Life Insurance Company of Canada policy issued to her. Blue Cross has denied her claim. Therefore, Ms. Kaur has also started an action against Blue Cross. I will refer to this claim as the Blue Cross action (CV-14-5766-00).

3Discovery of Ms. Kaur has taken place in both actions. By May 25, 2017, both actions were set down for trial. However, on July 27, 2017 both actions were removed from the trial list because Ms. Kaur's counsel (not Ms. Ismail) did not appear at the assignment court for civil matters in the Superior Court of Justice.

The Motion

4Ms. Kaur brings this motion to have the tort and Blue Cross actions consolidated or heard together. If Ms. Kaur is successful in having the actions consolidated or heard together, she requests that the court restore both actions, to the trial list.

5Ms. Kaur relies on Rule 6 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

Position of the Parties

6Ms. Kaur argues that the separate actions have a question of fact in common, the relief claimed in both actions arises out of the same event, and that she will be leading the same evidence in both actions. Therefore, Ms. Kaur argues that having the two actions consolidated or heard together promotes trial efficiency and expediency.

7Counsel for the defendant in the tort action is not opposed to the motion.

8Blue Cross is opposed to the motion. Blue Cross advances two arguments.

9Ms. Kaur should not be granted leave pursuant to Rule 48.04, which states that any party who has set an action down for trial shall not initiate or continue any motion or form of discovery without leave of the court.

10The tort action and the Blue Cross action do not have a question of law or fact in common, and Blue Cross would be prejudiced by having to try their action with the tort action.

11Therefore, this motion raises two issues.

12First, should the Court grant leave to Ms. Kaur to argue the motion even though the actions have been set down for trial?

13Second, if leave is granted, has Ms. Kaur met her onus under Rule 6 by establishing that the actions should be tried together or one immediately following the other?

14I accept Ms. Kaur's arguments. In my view, the actions should be should be heard together or one after the other at the discretion of the trial judge.

The Law

15Before I turn to my analysis of the issues, I will briefly review some of the more important legal principles that apply in this motion.

16Section 138 of the Courts of Justice Act, R.S.O. 1990, c. C.43, states that, as far as possible, multiplicity of legal proceedings shall be avoided.

17The parties have covered the jurisprudence that has considered Rule 6. All counsel have helpfully listed the considerations for when it is appropriate to have actions heard together that are set out in the case law. I will not repeat the helpful summary of the factors submitted by counsel (see: Mattson v. Quiggin, 2017 ONSC 984, 277 A.C.W.S. (3d) 504 (Ont. Master), at para. 13). I view the following considerations to be important on this motion:

(a) the extent to which the issues in each action are interwoven;

(b) whether any of the parties will save costs or alternatively have their costs increased if the actions are tried together;

(c) whether trial together of all of the actions would result in undue procedural complexities that cannot easily be dealt with by the trial judge

18With this legal framework in mind, I now turn to the issues.

Issue 1: Should Leave be Granted under Rule 48.04(1)?

19Blue Cross argues that since the actions have been set down for trial, leave is required pursuant to Rule 48.04 of the Rules. Counsel for Blue Cross relies on the decision of my colleague Baltman J. in Chokler v. FCA Canada Inc. 2017 ONSC 4494, 282 A.C.W.S. (3d) 328.

20In Chokler, the plaintiff brought a motion, late in the process, to serve an expert's report. The first time that the plaintiff ever raised the possibility of serving an expert report on the defendant was at a pre-trial conference held 17 months after the action had been set down for trial.

21Baltman J. noted that there are two lines of cases that have provided different tests to apply when determining whether leave should be granted under Rule 48.04(1). One line of cases suggests that a party seeking leave under this provision must first establish that there has been a substantial or unexpected change in circumstances. On the other hand, another line of cases suggests that a more flexible approach - i.e. that leave should be granted where it is necessary in the interest of justice: Chokler, at para. 11.

22Baltman J. decided that on either approach, the plaintiff's counsel inexplicably did not turn his mind to the need for an expert report until his attendance at pre-trial. In her view, there was no plausible explanation for the delay beyond counsel's inattention and it was not appropriate to grant leave.

23I do not believe that Chokler is determinative of the issue at bar. I prefer the line of cases that suggest leave should be assessed through a more flexible approach. I agree with Master Muir's comments in BNL Entertainment Inc. v. Ricketts 2015 ONSC 1737, 126 O.R. (3d) 154, at paras. 11 to 14 that a court should take a flexible approach and consider all of the circumstances of the matter before it and make the order that is just in the circumstances of each particular case. As Master Muir points out, this approach is consistent with the approach in the rules that is captured by Rule 1.04(1) which requires that the rules be "liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits."

24Counsel for Blue Cross submits that there has been no explanation for delay in bringing this motion to have the actions heard together after the actions had been set down for trial.

25The submissions of Blue Cross on this point are not without merit. The history of the litigation conducted Ms. Kaur's counsel (not Ms. Ismail) is troubling. For example, the non-appearance by counsel for Ms. Kaur on the assignment court date is peculiar. It is explained as an "administrative slip". Again, I am not being critical of Ms. Ismail who is only appearing as counsel on this motion, but there is much force to the submission that there has been no explanation for the delay in bringing this motion or the delay in responding to various requests made by Blue Cross.

26However, the purpose of the Rule 48.01(1) is to avoid unreasonable delays occasioned by motions or further discoveries once trial time is booked or to protect against the loss of valuable trial time when matters are removed from the trial list at a late stage because of last minute interlocutory proceedings (see: Cromb et. al. v. Bouwmeester et al. 2014 ONSC 5318 at para. 21). I do not see how the purposes of the Rule are frustrated by granting leave in this case. I say this for the following two reasons.

27First, in this case, the trials for both matters have been removed from the trial list. Although the act of removing both actions from the trial list on the assignment court date has caused some delay in this specific case, it has also mitigated the loss of valuable trial time generally. There are no pending trial dates in this action that will be delayed by hearing this motion.

28Second, there is no evidence that hearing this motion will delay any trial time. Discoveries are complete. The trial records have been submitted. This is a straightforward motion to decide whether the actions should be heard separately, at the same time, or one after the other. This contrasts with Chokler, where the party was seeking leave to serve an expert report once trial time had been set down. I view that situation to be problematic because the opposite party in Chokler likely needed time to read the report, prepare to examine the expert, and consult their own expert. The late notice likely would have delayed the trial that had been set down. No such delay results by hearing a motion for to have these actions heard together in this case. A motion for consolidation or hearing proceedings together does not require the same amount or degree of preparation than preparing to respond to an proposed expert, and nor does the motion in this case affect any scheduled trial date, given that the matter is not currently on the trial list.

29For these reasons, I am satisfied that leave should be granted.

Issue 2: Has Ms. Kaur met the onus of meeting the criteria set out in Rule 6?

30In my view, Ms. Kaur has met her onus.

31The purpose of Rule 6 is to avoid multiplicity of proceedings, promote expeditious and inexpensive determination of disputes, and avoid inconsistent judicial findings: Logtenberg v. ING Insurance Co., 2008 43573 (Ont.S.C.) and Daley R.S.J.: Darnley v. Thompson, 2016 ONSC 5545, 270 A.C.W.S. (3d) 252, at para. 12.

32I turn to the considerations that I believe are important in this case.

(a) the extent to which the issues in each action are interwoven

33This consideration militates in favour of having the actions heard together.

34The critical issue in both actions is the nature of the Plaintiff's injuries.

35In the tort action, the damages and the economic loss as a result of the Plaintiff's injuries will be relevant. Equally, in the Blue Cross action, the nature of the Plaintiff's injuries is relevant to the payment of benefits pursuant to the terms of the policy.

36In both cases, the Plaintiff must establish the existence and extent of injuries. The medical evidence will likely be the same. While it is true that the plaintiff may have to meet different tests in the tort action and the Blue Cross action, that does not mean that the separate actions do not have a fact in common. In my view, both actions have a question of fact in common - the existence and nature of the Plaintiff's injuries. It is also pertinent that the injuries complained of relate to the same factual matrix in both action - i.e. the January 2, 2012 car accident.

37Therefore, I am satisfied that there is a question of fact in common between the two actions, which is one of the factors under Rule 6.01(1)(a) that may be relied on to order that the proceedings be heard together.

(b) whether any of the parties will save costs or alternatively have their costs increased if the actions are tried together

38In my view, it is clear that Ms. Kaur will save costs if she is only required to call her medical evidence once before a jury. Retaining medical doctors and experts is expensive. The scheduling of these types of witnesses is notoriously difficult. If the actions were not heard together, the same medical evidence would have to be called twice.

39Ms. Kaur has the same lawyer in both actions whereas there are two lawyers who represent separate defendants in both actions. If the actions are tried together, the Plaintiff's counsel will be required to prepare for trial once and, along with the defendants, attend one trial as opposed to two. In addition, the Plaintiffs will only need to call most of her witnesses once instead of twice. These factors favour trial together.

40I conclude that separate trials before separate panels of triers would increase costs for Ms. Kaur. The costs for Blue Cross will remain the same whether or not the actions are heard together. This consideration militates in favour of having the actions heard together.

(c) whether trial together of all of the actions would result in undue procedural complexities that cannot easily be dealt with by the trial judge

41Respectfully, I also do not agree with the submission of Blue Cross that having these actions heard together will cause complexity and make it difficult for a judge to manage the trial. A trial judge has a number of case management powers to ensure that the actions are tried in an efficient manner. For example, he or she can direct the order of witnesses and place time limits for submissions.

42A trial judge can also create a trial management schedule that would not require counsel for Blue Cross to be present for the entire trial.

43It seems to me that managing trials with different tests, different counsel, and different parties is standard fare for most trial judges. These two actions, which are standard civil actions relating to a motor vehicle accident, would not raise undue procedural complexities if they were heard together.

44This factor also militates in favour of having the actions heard together.

Conclusion

45In conclusion, as the criteria in Rule 6.01 has been met, and considering the list of relevant factors above which favours that the actions be heard together, the Plaintiff's motion for having the actions heard together granted.

46I have decided not to order consolidation. Ordering consolidation under the Rules of Civil Procedure would require an amendment of all pleadings. The more efficient solution is to order that the actions be tried together, leaving it to the trial judge to exercise his or her discretion to hear them together or one action immediately following the other.

47Ms. Kaur is granted leave to make this motion and it is ordered as follows:

1. Action number CV-13-5191-00 and action number CV-14-5766-00 shall be tried together or one immediately following the other, subject to the discretion of the trial judge.

2. Ms. Kaur is granted leave to restore both actions to the trial list.

Costs

48If the parties cannot agree as to costs, they may submit written submissions of no more than three pages no later than 20 days after the release of this endorsement.

Coroza J.