Scaffidi-Argentina et al. v. Tega Homes Developments Inc. et al.
[Indexed as: Scaffidi-Argentina v. Tega Homes Developments Inc.]
Ontario Reports
Ontario Superior Court of Justice
C. MacLeod J.
July 9, 2019
146 O.R. (3d) 542 | 2019 ONSC 4170
Case Summary
Civil procedure — Discovery — Examination for discovery — Party not entitled to refuse to answer questions on examination for discovery because it believes it has complete defence to claim or that claim has no merit — Defendant directed to answer questions it had refused because it believed decision on insurance coverage application by co-defendant was binding and res judicata.
Civil procedure — Trial — Trial judge — Trial of action bifurcated and damages assessed in advance of determination of liability — Defendant moving unsuccessfully for ruling that judge who presided over damages trial was seized of liability trial — Bifurcated trial not remaining single trial but rather consisting of two separate trials — Significant difference existing between judge seized of ongoing trial and "seized" of future steps in proceeding — Latter situation being question of scheduling which was solely within discretion of office of Regional Senior Justice.
The plaintiff was the owner of a residential rental property located next to the site where the defendant T was constructing a condominium. The plaintiff's property was damaged during the course of construction. The plaintiff sued T, P (T.'s soil consultant) and G (the shoring system designer). The trial was bifurcated, with the assessment of damages taking place in advance of a determination of liability. It was intended that the judge who quantified the damages would also preside at the liability trial. After damages were assessed, the main action was settled. The liability trial would therefore be a trial of the crossclaims. A motion was brought for a declaration that the damages judge was seized of the liability trial. P and G also moved to compel T to answer questions refused on discovery. T had refused to answer those questions because it took the position that the decision on an insurance coverage application by G was binding and res judicata. [page543]
Held, the refusals motion should be granted; the motion for a declaration that the judge was seized of the liability trial should be dismissed.
A party is not entitled to resist discovery because it believes it has a complete defence to a claim or because it believes the claim has no merit. In any event, the question of whether or not the decision on the insurance coverage application was res judicata was far from clear. Even if G was bound by that decision and could not claim indemnity from T's insurer, it did not follow that it could not assert a subrogation bar against T. Those were questions for the trial judge and not grounds for refusing to answer the discovery questions.
There is a significant difference between a judge being seized of an ongoing trial and being "seized" of future steps in a proceeding. The latter situation is in reality a question of scheduling and is solely within the discretion of the Chief Justice, the Regional Senior Justice, or a judge to whom scheduling functions have been delegated. The former meaning of "seized" would apply here only if the bifurcated trial was in reality a single trial to be completed in two phases. However, the bifurcated trial in this case consisted of two separate trials. The judge who conducted the damages trial quantified the damages on a final basis, and the quantification was not in any way contingent on evidence yet to be heard. She was not seized of the trial of the cross-claims. To the extent that she was the judge assigned to that matter, that assignment could be reconsidered and another judge could be reassigned in her place.
Birks v. Birks, [2003] B.C.J. No. 949, 2003 BCSC 645, consd
Other cases referred to
1318214 Ontario Ltd. v. Sobeys Capital Inc., [2012] O.J. No. 2121, 2012 ONSC 2784, 40 C.P.C. (7th) 331 (S.C.J.); CAE Aircraft Ltd. v. Canadian Commercial Corp., 1994 CanLII 16650 (MB CA), [1994] M.J. No. 389, [1994] 7 W.W.R. 761, 95 Man. R. (2d) 101 (C.A.); Elcano Acceptance Ltd. v. Richmond, Richmond, Stambler & Mills (1986), 1986 CanLII 2591 (ON CA), 55 O.R. (2d) 56, [1986] O.J. No. 578, 16 O.A.C. 69, 9 C.P.C. (2d) 260 (C.A.); George Weston Ltd. v. Domtar Inc. (2012), 112 O.R. (3d) 190, [2012] O.J. No. 4123, 2012 ONSC 5001, 354 D.L.R. (4th) 121, 30 C.P.C. (7th) 252 (S.C.J.); Goodeve Manhire Inc. v. Encon Group Inc., [2016] O.J. No. 5806, 2016 ONSC 7005, 63 C.L.R. (4th) 320, [2017] I.L.R. para. I-5926, 61 C.C.L.I. (5th) 216 (S.C.J.); Konga v. Konga, [2014] O.J. No. 3867, 2014 ONSC 4826 (S.C.J.); N.H. v. J.H., [2017] O.J. No. 3817, 2017 ONSC 4414 (S.C.J.); R. v. Hatton, 1978 CanLII 2398 (ON CA), [1978] O.J. No. 460, 39 C.C.C. (2d) 281, 2 W.C.B. 180 (C.A.); Scaffidi-Argentina v. Tega Homes Developments Inc., [2018] O.J. No. 3635, 2018 ONSC 4274 (S.C.J.); Scaffidi-Argentina v. Tega Homes Developments Inc., [2016] O.J. No. 4639, 2016 ONSC 5448, 32 C.C.L.T. (4th) 315, 72 R.P.R. (5th) 103, 60 C.L.R. (4th) 138 (S.C.J.); Scaffidi-Argentina v. Tega Homes Developments Inc., [2016] O.J. No. 4839, 2016 ONSC 5897 (S.C.J.); Scaffidi-Argentina v. Tega Homes Developments Inc., [2017] O.J. No. 2851, 2017 ONSC 3427, 41 C.C.L.T. (4th) 309, 71 C.L.R. (4th) 159 (S.C.J.); Webb v. 3584747 Canada Inc. (2004), 2004 CanLII 14453 (ON CA), 69 O.R. (3d) 502, [2004] O.J. No. 215, 183 O.A.C. 155, 41 C.P.C. (5th) 98 (C.A.)
Statutes referred to
Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 34
Corporations Information Act, R.S.O. 1990, c. C.39
Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 14(1) [as am.], (2) [as am.], (3) [as am.], 123(4)
Negligence Act, R.S.O. 1990, c. N.1 [page544]
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.04, 20, 28.05(2), 28.09, 31.06, (4), 37.15, 77.06
Authorities referred to
Fuerst, Michelle, K., and Mary Anne Sanderson, Ontario Courtroom Procedure (Markham, Ont.: LexisNexis, 2012)
MOTION to compel a party to answer questions refused on discover; Motion for a declaration that the judge was seized of upcoming trial.
Stephanie Drisdelle, for defendant Tega and third party Dufresne.
Elizabeth Ackman, for Goodeve Manhire defendants.
J. Stephen Cavanagh, for defendant Paterson Group.
[1] C. MACLEOD J.: — Two motions came on for hearing on June 3, 2019. The first was a motion by the Goodeve Manhire and Paterson defendants to compel Tega to answer questions refused on discovery. The second was a motion to determine if Justice Sheard remains seized of the upcoming trial.
[2] These reasons contain my decision on each of the motions. The refusals motion raises issues about the scope of relevance given the nature of the crossclaims and defences. The second motion requires examination of what it means to be "seized of a matter".
[3] As set out below, the questions asked at discovery are proper and relevant questions based on the issues defined by the amended pleadings. I have also dismissed the motion for a declaration that Justice Sheard is seized of the liability trial. As I will discuss, there is a significant difference between a judge being seized of an ongoing trial and being seized of future steps in a proceeding. The first is a question of law whereas the latter is a question of judicial scheduling. Except in rare circumstances, judicial scheduling is not the proper focus of a motion and is solely in the discretion of the Chief Justice, Regional Senior Justice or a judge to whom scheduling functions have been delegated.
Background
[4] The background to this action has been described in detail in previous decisions of the court.[^1] In simplest terms, it was an action brought by the owner of a residential rental property located next to the site where the defendant Tega was constructing a condominium. During the course of the excavation on Tega's property, the Scaffidi-Argentina property was damaged and rendered uninhabitable. As a consequence, the plaintiff sued the developer (Tega) and also sued the defendant's soil consultant (Paterson) and shoring system designer (Goodeve Manhire). The defendants cross-claimed against each other and also third partied the excavator (Dufresne).
[5] Unusually, it was decided to bifurcate the trial and to proceed with an assessment of damages in advance of determining liability. Thus, the main action proceeded to trial solely to quantify the plaintiff's damages but without determining the basis of liability or attributing fault between the defendants. On August 30, 2016, those damages were quantified by Justice Sheard.[^2]
[6] At the time of Justice Sheard's decision, it was assumed that the liability trial would proceed in 2017 and the trial of the crossclaims would proceed at the same time. It was intended that Justice Sheard would also preside at the liability trial and at the time she considered herself seized of the matter.[^3]
[7] Subsequent to Justice Sheard's decision on the damages suffered by Scaffidi-Argentina, a number of events occurred which changed the litigation landscape. As it turns out, this was not the only proceeding which arose out of the construction project. At least one other building on adjoining land was also damaged and consequently there were actions by other owners and tenants which would have raised the same issues as those raised in the Scaffidi-Argentia action.
[8] Rather than litigating the same issues again, an agreement was reached with the plaintiffs in those actions and the defendants in this action. Essentially, the parties agreed on the damages owing to those plaintiffs and it was agreed that if the liability trial resulted in apportioning fault to the other defendants, they would contribute not only their proportionate share of the damages (if any) found owing to Scaffidi-Argentina but also their proportionate share of the damages owing to the other plaintiffs. The amounts are significant. While I do not have the precise figure, I believe the total damages as agreed plus those fixed by Justice Sheard to be roughly $13 million. In any event, [page545] the agreement would have made the liability determination in this action applicable to the other actions as well.
[9] There were other developments. Scaffidi-Argentina decided to release Goodeve Manhire and Paterson from the main action although they had originally claimed against them in both negligence and nuisance. Following the release of Justice Sheard's decision, the defendant Tega or its insurer aid the approximately $9 million in damages owed to the plaintiff. This meant that rather than a trial to determine the liability of each of the defendants to the plaintiff in the main action, there would only be a trial of the crossclaims. Those were crossclaims for contribution and indemnity pursuant to the Negligence Act[^4]relying primarily on the pleadings in the main action.
[10] The trial did not take place in 2017 or in 2018. Instead, an issue arose about the pleadings in the crossclaims. Briefly, the defendants to the cross-claims had originally relied upon the deemed defences provided by rule 28.05(2) [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194]. They wished to deliver specific defences pleading a number of defences including defences based on the limited scope of the Negligence Act, insurance law and subrogation law. This was ultimately the subject of a motion before me and reasons released on July 9, 2018.[^5] As a consequence of the decision allowing the new pleadings, Tega delivered replies to the defences to crossclaim and there were additional discoveries.
[11] In the meantime, Justice Sheard was transferred from the East Region to the Central South Region. While this is not an insurmountable barrier to her presiding over the trial of the cross-claims, the efficiencies that might have earlier existed in having the same trial judge have been reduced due to the passage of time, the changed litigation landscape and the definition or redefinition of the issues.
[12] One of the issues raised by the new pleadings is whether there is a bar to Tega asserting the crossclaims arising from the fact that all of the defendants are insured parties under Tega's policy of wrap up insurance. Tega considers this argument to be completely without merit for a number of reasons. The policy contains an exclusion for professional services and Tega asserts that the applicability of the exclusion was conclusively and finally decided by Justice Roger. [page546]
[13] This refers to the decision of Justice Roger in an application brought by Goodeve Manhire in 2016. That was an application for coverage under the policy. Goodeve Manhire Inc. and Goodeve Manhire Partners Inc. sought a declaration that Temple Insurance Company was obliged to both defend them and indemnify them under Tega's insurance policy. That application was dismissed with reasons given on November 14, 2016.[^6] Tega considers the decision to be binding and res judicata. Goodeve Manhire and Paterson disagree. They assert a subrogation bar and also assert that the exclusion in the policy for professional services will not apply if Tega fails to establish any fault on these defendants at trial.
[14] It is against this background that the motions were heard. As indicated above, the first motion dealt with discovery issues. The second motion was to deal with Tega's assertion that Justice Sheard is seized of the matter and only she can preside at the trial. Flowing from this is an argument that the other parties are precluded from bringing a summary judgment motion.
The Refusals Motion
[15] The refusals motion is simply dealt with. I was provided with an updated refusals chart because Tega had modified its position from that which it had taken at the discovery. For example, Tega had originally refused to answer questions related to insurance coverage because those were questions requiring consultation with coverage counsel. Now the objection is instead that the questions should have been asked on a previous round of discovery. Tega has also agreed to answer certain questions.
[16] Rule 31.06 requires a party being examined for discovery to answer any proper question relevant to any matter in issue in the action. This is subject to proper claims of privilege. The right of discovery may also be constrained by the time limits in the rules, by the principle of proportionality or by the terms of a discovery plan. Conversely, the rules specifically make certain matters discoverable.
[17] Relevance is defined by the pleadings. A party is not entitled to resist discovery because it believes it has a complete defence to a claim or because it believes that the claim has no merit. In this case, Tega refused to answer a number of questions relating to the project insurance policy on the grounds that the issue of entitlement was in Tega's view conclusively determined by Justice Roger. [page547]
[18] The defences to crossclaim were amended and the parties argued a motion over the form of the pleadings. As mentioned above, I permitted the pleading amendments and since I released that ruling, Tega has delivered replies to the defences to crossclaim. Those pleadings put the question of insurance coverage in issue and also raise a subrogation bar. Since Tega was not successful in striking the pleading, Tega cannot refuse to answer questions which are relevant to the argument one of the other parties wish to advance.
[19] In any event, the question of whether or not the decision of Justice Roger is res judicata is far from clear. The parties to the application are not identical to the parties in this litigation and the sole question before the application judge was whether or not, given the case as pleaded, Goodeve Manhire Inc. was entitled to coverage under the policy. Justice Roger ruled that based on the evidence before him, the exclusion for professional services in the policy applied and he held that the applicant was neither entitled to a defence nor indemnity. It is at least arguable that if the facts ultimately proven at trial are different from the evidence that was before Justice Roger, the question of indemnity may have to be revisited. But even if Goodeve Manhire is bound by that determination and cannot claim indemnity from the insurer, it does not follow that it cannot assert a subrogation bar against Tega. The latter is a question of rights between the named parties whereas the former is a question of a right against the insurer directly. These are questions for the trial judge and not grounds for refusing to answer discovery questions.
[20] Tega refused to answer questions relating to the wrap-up liability policy and the existence of insurance generally. Originally, these questions were refused as coverage questions and they are now refused as questions that should have been asked at the original discoveries. Neither of these objections are valid. In light of the pleading amendments, there is a renewed focus on the question of insurance. Rule 31.06(4) specifically provides for full disclosure of any and all policies of insurance that "may be liable to satisfy all or part of a judgment in the action". These questions should have been answered.
[21] In a similar vein, Tega refused to answer a series of questions related to the payment of the settlement funds to the plaintiff. These questions are relevant to the defences to the crossclaims based on insurance law, subrogation and rights of indemnity. Of course, those defences may ultimately fail and in that case Tega may be able to seek its costs of responding to the amended pleadings. In the meantime, Tega may not refuse to answer questions that are relevant to the issues as pleaded. [page548]
[22] Similarly, it is unreasonable not to have answered questions about the scope of the contracts by which Tega retained the other parties as consultants or sub-contractors on the project. Now that the trial will focus on the crossclaims and not on liability to the plaintiff, and in light of the amended pleadings, these are proper and legitimate questions that should have been answered.
[23] Tega refused to confirm basic facts such as the proper name of the defendant and its current corporate status. Tega has pleaded that it was improperly named and has pleaded its proper name. It is simply unreasonable not to confirm the proper legal name of a corporate defendant at the time of discovery particularly if there is more than one entity with a similar name or if the name of a corporation has changed over time. Similarly, the status of a corporation to maintain or defend an action is always a legitimate issue and should be within the knowledge of the corporation. Tega refused to confirm whether it was in default in filings under the Corporations Information Act.[^7]It is no answer to such a question to say that the other party is welcome to conduct corporate searches.
[24] In conclusion, Tega is to answer all of the questions set out in the amended refusals chart within the next 45 days. In the event that those answers give rise to further questions that cannot be reasonably answered by an exchange of letters, the examining parties will be entitled to a further two hours of discovery.
The Motion that Justice Sheard is Seized
[25] I turn now to the motion to declare that Justice Sheard is seized of the next phase of the trial. There are two aspects to this motion. First, Tega contends that no other judge may be assigned to hear the liability trial or the trial of the crossclaims. Second, if the court agrees with this proposition, Tega argues that no other judge should hear a summary judgment motion while the second phase of the trial remains pending.
The meaning of "seized"
[26] It is necessary to consider what it means for a judge to be "seized". This is a term that is frequently used but often means slightly different things. We should distinguish between the use of "seized" as scheduling shorthand on the one hand and the more precise meaning that a trial or a motion is in progress and awaiting a decision by the judge who is "seized" of the question. [page549]
[27] When a trial has started and evidence has been heard but a decision has not been rendered, the trial judge is said to be seized of the matter. In such a case, it would be unjust for another judge to be assigned to complete the matter in the middle of the trial. The judge will continue to be seized of the matter until a decision is made. Generally, this means that even if that judge becomes disabled, dies or is otherwise unable to complete the matter, no other judge can give the decision and it would be necessary to start afresh with a new trial.[^8] In addition, unless there is a true emergency justifying it and the judge seized of the matter is not available, no other judge should entertain a motion dealing with the issues before the trial judge while his or her decision is under reserve.[^9] Similarly where a judicial officer has started hearing a motion but argument has not been concluded, another judicial officer may not hear the rest of the motion and it would be improper to bring another motion for the same or similar relief while the matter is under reserve.
[28] Whether a trial is before a judge alone or before a judge and jury, once the trier of fact has begun hearing evidence, a new trier of fact cannot be substituted because the assessment of credibility is nuanced and depends on hearing all of the evidence. Similarly, in a motion or application that has been partly argued, it would be unjust to substitute another judicial officer who has not had the benefit of the oral argument and the questions posed to counsel in the first part of the hearing.[^10]
[29] This meaning of "seized" will only apply to the case at bar if the bifurcated trial is in reality a single trial to be completed in two phases. The question may be framed as whether or not, as a matter of law, Sheard J. is already seized of that matter because the trial has already begun. I will return to this question momentarily.
[30] The second usage of a judge being seized of a matter is different. This refers to the situation in which a particular judge has been assigned to hear all future steps in a proceeding or where a judge has purported to seize herself of such steps. In [page550] Ontario, there are rules which provide for formal designation of a single judge to hear all motions, for example. Rule 37.15, rule 77.06 or s. 34 of the Class Proceedings Act[^11]are examples. More often matters are assigned to particular judges using less formal scheduling processes. On some occasions, a judge will declare himself or herself seized of a matter and direct that all further steps in a proceeding be returnable before that judge. All of these are circumstances in which it might be said that a judge is seized of a matter but it does not necessarily follow that this assignment is permanent or that other judges are deprived of jurisdiction.
[31] In Birks v. Birks, a 2003 decision of the British Columbia Supreme Court, Justice Preston remarked that there is scant authority on this subject and proceeded to deliver a careful analysis of what being seized of a matter actually meant.[^12] Despite the fact that there are minor differences in the legislation governing our two courts, I would largely adopt that analysis.
[32] Preston J. distinguished between cases in which a judge might be seized of a trial as a matter of law, and cases in which a judge declared him or herself seized even though in law the matter could proceed before another judge without loss of jurisdiction.
[33] With respect to this latter category of cases, a further distinction can be drawn between cases where a judge directs that any subsequent matter may be brought back to that judge if that judge is conveniently available and cases in which the judge directs that all further steps in a matter must be brought before that judge. While it is not uncommon to describe both of these as situations in which the particular judge is seized of the matter, it is only the latter case where that is accurate. The former is no more than an offer by the judge to make him or herself available if that is practical whereas the latter is an order.
[34] As discussed in Birks, in either case, counsel have a professional obligation to respect the direction of the original judge and to bring it to the attention of any other judge before whom the case is scheduled. In the former case, where a judge has simply offered to hear further steps in the proceeding if it is convenient, the parties may agree to proceed before a different judge. It is otherwise if a judge has ordered that he or she is seized of the matter. In that case, parties wishing to proceed before another judge would have to obtain an order from the original judge or from another judge permitting them to do so.[^13] [page551]
[35] Where a judge has clearly seized himself or herself of a matter, or where a particular judge has been assigned to hear all steps in a proceeding, that direction by the court is binding on the parties and their counsel in the same manner as any order. It would be contempt for a party to seek to avoid the designated judge by simply scheduling the matter before another judge without first seeking relief from the order. Such relief should ordinarily be sought from the judge who made the order or from a judge responsible for scheduling, but it does not follow that other judges are deprived of jurisdiction. The order by a judge seizing himself or herself of a matter may be set aside by another judge if that judge can be persuaded that there is good reason to do so. Other judges will respect the order as a matter of collegiality even if, as was done in the Birks case, the judge hearing the matter simply contacts the other judge informally to ensure the original judge does not object.
[36] In a sense this an extension of the stare decisis principle. Under that principle, while decisions of judges of co-ordinate jurisdiction are not strictly binding, a judge should give considerable weight to the decisions of other judges and depart from them only if there are cogent reasons to do so.[^14] The decision of a judge that he or she should be seized of a matter is entitled to deference but the circumstances which existed at the time of such a declaration may have changed. For example, the judge may no longer be conveniently available or the passage of time or other factors may have undercut the rationale which existed at the time.
[37] As a matter of law, an order by a judge directing that he or she hear all further steps in a proceeding can also be set aside or overridden by the Chief Justice, Regional Senior Judge or another judge who has been delegated scheduling functions. Needless to say, those judges can also set aside or vary orders designating particular judges under the Rules mentioned above. Section 14(1) of the Courts of Justice Act provides that the Chief Justice of the Superior Court of Justice shall direct and supervise the sittings of the court and the assignment of its judicial duties. Section 14(2) of the Act provides that subject to the authority of the Chief Justice, the powers and duties of the Chief Justice in each region are performed by the Regional Senior Judge and s. 14(3) provides that the RSJ may delegate specified functions to another judge in the region.[^15] In short, it is for the Chief Justice, RSJ or delegate [page552] to schedule the assignment of judicial duties and not for individual judges.
[38] Assignment of judges to cases was a matter within the prerogative of the Chief Justice at common law and is part of the inherent authority of the court to manage its own affairs. It has been described as one of the most important functions of a Chief Justice and it is questionable that in ordinary circumstances such decisions are justiciable.[^16] In addition, as the Court of Appeal has observed, "the consent of individual judicial officers to their own appointment is not an adequate substitute for the role played by the Chief Justice".[^17] It follows that designation of a particular judge to hear later steps in a proceeding, whether made by that judge, or by a judge responsible for scheduling, is a matter that can be revisited by the court at any time.
[39] There is no doubt that at the time of the damages trial, it was assumed by Justice Sheard and by the parties that she would be conducting the liability trial. There is also no doubt that at the time, when Justice Sheard was chambered in Ottawa and was part of the East Region complement of judges that this judicial assignment met with the approval of the RSJ. But judicial assignments are not cast in stone. If Justice Sheard either seized herself of the matter or was assigned to hear the matter, this assignment, or self-assignment can be set aside and in my view it is not a matter to be determined on a motion. Rather it is a question to be decided by the RSJ in the exercise of his scheduling function. The only appropriate motion in relation to judicial scheduling would be a motion such as a recusal motion. Counsel may object to a particular judge hearing the matter but they may not demand that a particular judge be assigned.[^18]
[40] I have contacted Justice Sheard. She herself has no objection to another judge being assigned to hear the matter as circumstances have changed since 2016. On the other hand, if she is asked to hear the trial, with the approval of both RSJs or the Chief Justice, then she has no objection to the assignment. In other words, this is not a situation in which it would be interfering with Justice Sheard's discretion for another judge to be assigned and [page553] the question should be determined in the office of the RSJ. Unless Justice Sheard is seized of the trial as a matter of law, I agree with the Manitoba Court of Appeal that this is not a question to be decided on a motion.[^19] It is a question to be determined through the normal process of assigning judges.
Is Justice Sheard Seized of the trial as a matter of law?
[41] To succeed in demonstrating that the judge who heard the first phase of a bifurcated trial is necessarily seized of the second phase is to argue that a bifurcated trial is actually a single trial in two phases which must be heard by the same judge. This is different from an argument that it would be more efficient or logical to have the same judge which is a question of scheduling. In the case at bar, Tega argues that Justice Sheard is the only judge that has jurisdiction to hear the damages phase of the trial.
[42] There is no basis for the argument that a bifurcated trial remains a single trial. To the contrary, the general understanding of the term is that the trial is divided into two (or more) separate trials which will involve separate findings of fact.[^20] In fact, the Rules of Civil Procedure contain many provisions such as relief against joinder, summary judgment or trial of an issue which may result in a focused hearing to determine a particular issue or set of facts. In all of those cases, the hearing may proceed before a different judicial officer.
[43] It is possible of course that a trial could proceed in two phases without being bifurcated or perhaps a trial could be designed where cascading findings of fact would inform the final decision. That is not the case here. Justice Sheard conducted a trial solely in relation to the quantification of damages. She made that determination on a final basis and the quantification of damages was not in any way contingent on evidence yet to be heard. Nor is there anything to suggest that any findings of credibility or assessment of evidence in the damages phase of the trial would spill into the liability phase. The damages phase of the trial was solely about quantum without consideration of fault. The liability phase will be solely about fault and causation insofar as findings of fact are required and solely about questions of law insofar as the technical defences are concerned. [page554]
[44] This is not a case in which the trial is underway. The damages phase is complete. The liability phase has yet to begin. To reinforce this conclusion, it is not technically the liability trial in the main action that will be proceeding. The parties settled with the plaintiff subsequent to the release of the decision on quantum of damages. What is actually proceeding is the trial of the cross-claims. Similar to counterclaims and third party claims, rule 28.09 provides that "[a] crossclaim shall be tried at or immediately after the trial of the main action, unless the court orders otherwise". In other words, it is always possible for a cross-claim to be tried separately from the main action if the court determines it is appropriate to do so. In that case, while it may frequently be convenient and efficient to assign the same trial judge, there is no jurisdictional requirement for that to be the case.
Conclusion
[45] I conclude that Justice Sheard is not seized of the trial of the cross-claims. To the extent that she was the judge assigned to the matter, that assignment may be reconsidered and another judge may be assigned in her place.
Summary Judgment Motion
[46] Strictly speaking, this conclusion disposes of the matter and it is not necessary to address the question of summary judgment. I will do so only briefly. In my view, there is no absolute bar to a summary judgment motion being brought in the middle of a trial or between two phases of a bifurcated trial. Obviously, it would be a highly unusual circumstance in which a mid-trial motion might be appropriate and it would normally be brought to the trial judge unless that judge for some reason was of the view that it should be heard by another judge.
[47] It may be different with a bifurcated trial in which the judge is not seized of the second phase of the trial. In particular when the second phase of the trial has been adjourned, as is the case here, there is no reason in principle why a summary judgment motion might not be entertained if it would have the effect of ending or shortening the liability trial.
[48] I hasten to add, however, that just because a Rule 20 motion might be available, does not mean that the court will agree to schedule such a motion particularly if it may delay the trial, use significant resources or otherwise run counter to the purpose of the rule or to the principles of proportionality and cost effectiveness spelled out in rule 1.04. In a number of cases, in the exercise of its case management powers, this court has refused to schedule summary judgment motions on the eve of [page555] trial or where it would be more efficient to hold the trial than to hear the motion.[^21] The court has also commented upon a variety of other procedural steps which may be used to streamline, abridge or focus a trial instead of summary judgment.
[49] Briefly, I do not agree that Justice Sheard is seized of stage 2 of the trial so I do not agree that only she could hear a summary judgment motion. I am of the view that in very particular circumstances summary judgment could remain a viable option even mid-trial but without attempting to define those circumstances, a summary judgment motion could be available in a bifurcated trial such as this if it could dispose of the liability question without a trial.
[50] On the other hand, given that this is a bifurcated trial and is subject to case management, a summary judgment motion will not necessarily be appropriate if it will delay the trial or run up costs or otherwise may appear to be simply tactical. As the case management judge, I will have to be persuaded that the proposed summary judgment motion is appropriate before I will be prepared to schedule it rather than simply proceeding with the trial. That decision will be left to another day.
Summary and Conclusion
[51] In summary, the motion to compel answers to questions refused on discovery is granted. The motion to declare that Justice Sheard is seized of this matter is dismissed. There is no legal bar to a motion for summary judgment in respect of the next phase of the trial but the court may decline to schedule such a motion if it appears inefficient and disproportionate to do so.
[52] I may be spoken concerning costs or the parties may agree to make written submissions. There will be a case conference to discuss the next steps in the proceeding, to consider the proposed summary judgment motion and to reschedule the trial.
Refusals motion granted; motion for declaration
dismissed.
[^1]: See, for example, [2018] O.J. No. 3635, 2018 ONSC 4274 (S.C.J.) and decisions referred to therein.
[^2]: See [2016] O.J. No. 4639, 2016 ONSC 5448 (S.C.J.) with additional reasons at [2016] O.J. No. 4839, 2016 ONSC 5897 (S.C.J.) and [2017] O.J. No. 2851, 2017 ONSC 3427 (S.C.J.).
[^3]: See [2016] O.J. No. 4839, 2016 ONSC 5897 (S.C.J.), at para. 1.
[^4]: Negligence Act, R.S.O. 1990, c. N.1.
[^5]: See [2018] O.J. No. 3635, 2018 ONSC 4274 (S.C.J.).
[^6]: See Goodeve Manhire Inc. v. Encon Group Inc., [2016] O.J. No. 5806, 2016 ONSC 7005 (S.C.J.).
[^7]: Corporations Information Act, R.S.O. 1990, c. C.39.
[^8]: See R. v. Hatton, 1978 CanLII 2398 (ON CA), [1978] O.J. No. 460, 39 C.C.C. (2d) 281 (C.A.). See, also, s. 123(4), Courts of Justice Act, R.S.O. 1990, c. C.43, which provides for the Chief Justice to order that a matter be reheard where a judge has commenced hearing a matter and is for any reason unable to make a decision.
[^9]: See N.H. v. J.H., [2017] O.J. No. 3817, 2017 ONSC 4414 (S.C.J.) dealing with the attempt to bring a motion varying an interim custody order while the trial judge had the matter under reserve.
[^10]: R. v. Hatton, supra.
[^11]: Class Proceedings Act, 1992, S.O. 1992, c. 6.
[^12]: Birks v. Birks, [2003] B.C.J. No. 949, 2003 BCSC 645.
[^13]: See Birks, supra, paras. 1-19.
[^14]: Fuerst and Sanderson, Ontario Courtroom Procedure (Markham, Ont.: LexisNexis, 2012), Chapter 48, p. 1197.
[^15]: Courts of Justice Act, R.S.O. 1990, c. C.43, as amended.
[^16]: See CAE Aircraft Ltd. v. Canadian Commercial Corp., 1994 CanLII 16650 (MB CA), [1994] M.J. No. 389, [1994] 7 W.W.R. 761 (C.A.), at paras. 19-25.
[^17]: See Webb v. 3584747 Canada Inc. (2004), 2004 CanLII 14453 (ON CA), 69 O.R. (3d) 502, [2004] O.J. No. 215 (C.A.).
[^18]: Counsel are in agreement that neither McNamara R.S.J. nor I can be the trial judge as we both conducted pre-trials but I am not disqualified from hearing motions or continuing as the case management judge.
[^19]: CAE Aircraft, supra.
[^20]: See Elcano Acceptance Ltd. v. Richmond, Richmond, Stambler & Mills (1986), 1986 CanLII 2591 (ON CA), 55 O.R. (2d) 56, [1986] O.J. No. 578 (C.A.), at para. 11, in which the argument against bifurcation is that generally "it is a basic right of a litigant to have all issues in dispute resolved in one trial".
[^21]: See 1318214 Ontario Ltd. v. Sobeys Capital Inc., [2012] O.J. No. 2121, 2012 ONSC 2784 (S.C.J.), George Weston Ltd. v. Domtar Inc. (2012), 112 O.R. (3d) 190, [2012] O.J. No. 4123, 2012 ONSC 5001 (S.C.J.) and Konga v. Konga, [2014] O.J. No. 3867, 2014 ONSC 4826 (S.C.J.).