Court File and Parties
COURT FILE NO.: C-3203/2014 & C-2143/2012 DATE: 20180710 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Janet Gouthro Plaintiff/Responding Party – and – Intact Insurance Company Defendant/Moving Party
COUNSEL: Thomas L. Orendorff and James M. Ross, for the Plaintiff Sean T. Miller, for the Defendant
HEARD: June 7, 2018
Reasons for Decision
Del Frate J:
1The applicant, Intact Insurance Company (“Intact”), seeks a consolidation of this action for accident benefits to be tried together with the tort action, being court file number C-2143/2012.
2The defendant in the tort action takes no position on this motion.
Background
3As a result of a motor vehicle accident on September 9, 2010, the plaintiff has commenced two actions arising from the same occurrence. In the first, she has sued the tortfeaser. In the second, she has sued her accident benefits insurance provider claiming primarily income replacement benefits.
4To a large extent, both actions have proceeded in tandem. Recently, a mediation and two pre-trials took place together. The actions are ready to proceed to trial.
Position of Intact Insurance Company
5Intact takes the position that both actions should be heard together considering that the plaintiff’s injuries, treatments, prognosis and ability to work will have to be determined jointly.
6Intact further submits that in all likelihood, the lay and expert witnesses will be the same. As such, the length of the trial will be shorter than if the actions were tried separately.
7Intact also submits that a joint trial will alleviate the risk of an inconsistent verdict were the actions to be tried separately.
Position of the Respondent Plaintiff
8The responding party/plaintiff submits that a consolidation is not in order even though most (if not all) of the witnesses will be the same. She submits that the issues from both actions are too complex and because of the different onuses under a tort claim and accident benefits claim, the jury would be confused. For instance, although causation will be an issue in both actions, the tests for causation under tort and under accident benefits are different.
9Further, the plaintiff contends that one of the theories that will be advanced by the plaintiff is “crumbling skull”. In tort, that theory must be proven on the balance of probabilities. No such theory is applicable under the accident benefits scheme. Although there may be a deduction, the damages awarded under a crumbling skull scenario, no such reduction would apply under accident benefits claim. As such, the various tests that the jury must determine are complex and may confuse the jury, resulting in inconsistent verdicts.
10Finally, the plaintiff submits that other than inconvenience to some of the witnesses, there will be very little, if any, shortening of the time required to have two separate trials. Presently, the estimate for a joint trial is six to seven weeks. Were they to be separate trials, the tort action would take four weeks and the accident benefits action would require two to three weeks. The end result is the same.
The Law
11Rule 6.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sets out the statutory basis upon which two actions may be consolidated:
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 claim 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.
12Although there have been numerous decisions dealing with consolidation of actions, perhaps the most succinct analysis was set out by Master Dash in 10148664 Ontario Limited v. 1721789 Ontario Inc., 2010 ONSC 3306.
13At paragraph 17, Master Dash states:
In my view, the proper approach on a motion for consolidation or trial together is to first ascertain whether the moving party has satisfied one or more of the three “gateway” criteria set out in rule 6.01 (1) (a), (b) or (c) and then consider all relevant factors as well as section 138 of the Courts of Justice Act which directs the court to avoid a multiplicity of proceedings whenever possible, in order to exercise the court’s discretion and make such order as is just…
14At paragraph 18, Master Dash outlines a list of non-exhaustive factors that a court may consider arriving at its decision. These include:
a) the extent to which the issues in each action are interwoven;
b) whether there is expected to be a significant overlap of evidence or of witnesses among the various actions;
c) whether the parties the same;
d) whether the lawyers are the same;
e) whether there is a risk of inconsistent findings or judgment if the actions are not joined;
f) whether a decision in one action, if kept separate and tried first would likely put an end to the other actions or significantly narrow the issues for the other actions or significantly increase the likelihood of settlement;
g) the litigation status of each action;
h) whether there is a jury notice in one or more but not all of the actions;
i) the timing of the motion and the possibility of delay;
j) whether any of the parties will save costs or alternatively have their costs increased if the actions are tried together; and,
k) any advantage or prejudice the parties are likely to experience if the actions are kept separate or if they are to be tried together.
15These factors have been considered in the following decisions:
c) Reeve v. Pembridge Insurance Company, 2011 ONSC 5600,
d) Parsniak v. Pendanathu, 2010 ONSC 4111.
16The common thread arising from these decisions is that actions involving tort and accident benefit claims, are “routinely consolidated or tried one after the other”, with or without juries. See Fumerton v. Fleming, at para. 8.
Discussions and Decision
17In this case, counsel concede that the three “gateway” criteria set out in Rule 6.01 (1) (a), (b) or (c) have been met. To some extent, counsel agree that many of the factors enunciated in 1014864 Ontario Limited, are present. What is in dispute, however, is the complexity of the questions that the jury will have to address.
18In the tort action, the questions are rather standard and straight forward and can be summarized as follows:
At what amounts, if any, do you assess the damage for the injuries sustained by the plaintiff as a result of the collision in the following categories:
a) for non-pecuniary loss of pain and suffering, including loss of enjoyment of life and loss of amenity of life?
b) for past loss of income?
c) for future loss of income?
d) for future care costs?
19In the accident benefit action, the questions are more complex since the jury must determine whether the substantial inability to work post 104 weeks is a result of the aggravation of a pre-existing condition. In other words, were the pre-existing migraine headaches aggravated by the accident, and which incapacitated her for the first 104 weeks, back to the level they were at prior to the accident? Or are they now fully managed so that the test of complete inability post 104 weeks has not been met?
20This analysis would bring into the play the theory of causation, and the questions on causations must be carefully worded so as to avoid confusion. The jury must determine whether, post 104 weeks, the plaintiff has proven on the balance of probabilities that she has a “substantial inability to perform the essential tasks of her employment” to “a complete inability” to perform her pre-accident employment or any alternative occupation that is reasonably comparable to the insured’s former job both in status and reward. Further, the plaintiff must prove that the inability is the result of “an incident in which the use or operation of an automobile directly causes an impairment”. See Schedule SS 3(1) sub nom “accident” and 6(2)(b).
21Even though the questions that the jury has to answer may be complicated, our courts have a held that consolidations of the tort and accident benefits claims can take place. See Harrison, Craig-Smith, Reeve, and Parsniak (supra).
22What further complicates this case is that the plaintiff’s relief is for a “declaration” that she is entitled to receive income replacement benefits and medical benefits pursuant to the statutory accident benefits schedule. Section 108(2)(10) of the Courts of Justice Act, R.S.O. 1990, c. J.1, precludes a jury from granting the declaratory relief. Counsel have assured me that the plaintiff is seeking damages and not a “declaration”, thereby permitting a jury trial. That admission alleviates this potential issue.
23Considering all of these factors, and particularly the factors enunciated by Master Dash in 1014864 Ontario Limited (supra), I conclude that consolidation of the tort and accident benefits claims ought to take place.
24However, I do have some concerns about the consolidation and, pursuant to Rule 50.13(1), I direct that a case conference be held before a judge to address the procedural issues that arise as a result of the consolidation. As well, the parties ought to prepare the questions that must be addressed in both the tort and accident benefits actions with particular consideration of how to frame the causation questions. This conference ought to take place 30 days prior to trial. The questions will then be presented to the trial judge for his or her consideration at the commencement of the trial, with the trial judge having the ultimate say.
25I would refer counsel to the recent decision of Wilson J. in Cheung v. Samra, 2018 ONSC 3480, wherein she reviews the challenges that a jury would face, especially on the issue of causation, to avoid the result of a mistrial.
Decision
26In conclusion, order to issue that the actions bearing court file numbers C-3203/2014 and C-2143/2012 be tried together and heard at the same time or at the discretion of the trial judge. Further, a case management conference pursuant to Rule 50.13 (1) be held 30 days prior to trial. Lastly, counsel agreed that the sum of $4,000.00 be paid to the successful party.
27Order to issue as per Reasons.
The Honourable Mr. Justice R.G.S. Del Frate
Released: July 10, 2018