Court File and Parties

COURT FILE NO.: CV-17-589276

MOTION HEARD: 20190820

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Aleisha Aziz, Plaintiff

AND:

Blue Cross Life Insurance Company of Canada, Defendant

BEFORE: Master B. McAfee

COUNSEL: E. Persichilli, Counsel, for the Moving Party, the Defendant

A. Frydrych, Counsel, for the Responding Parties, the Plaintiff in the within action and the Plaintiffs in action no. CV-18-609334

K. Gheddai, Counsel, for the Responding Parties, the Defendants in action no. CV-18-609334, Ahmednoor Husian, Mark Carniglia, Litigation Administrator of the Estate of Lewis Bend, Deceased, Freeway Sales Limited o/a East Metro Auto Leasing

HEARD: August 20, 2019

REASONS FOR DECISION

[1] This is a motion brought by the defendant Blue Cross Life Insurance Company of Canada (Blue Cross) for an order that the within action (the LTD action) and action no. CV-18-609334 (the tort action) be heard together or one after the other as the trial Judge may direct.

[2] The defendants in the tort action, Ahmednoor Husian, Mark Carniglia, Litigation Administrator of the Estate of Lewis Bend, Deceased, Freeway Sales Limited o/a East Metro Auto Leasing consent to the relief sought.

[3] The plaintiff Aleisha Aziz (Aziz) in the LTD action and the plaintiffs in the tort action Aziz and Alexander Siskos (Siskos), a minor by his litigation guardian Aziz, oppose the relief sought.

[4] The parties confirm that the tort action will be discontinued as against the defendant Toronto Transit Commission Wheel-Trans.

[5] For the reasons that follow, the motion is dismissed.

[6] The LTD action is a claim for long term disability benefits brought by Aziz against Blue Cross. The LTD action was commenced on December 29, 2017. Aziz claims to be totally disabled within the meaning of the policy since March 25, 2017, the date of the motor vehicle accident. Aziz seeks damages for breach of contract and punitive damages.

[7] The tort action is a claim for damages arising from a motor vehicle accident that occurred on March 25, 2017. The tort action was commenced on November 21, 2018. Aziz seeks general damages and special damages including damages for loss of income, loss of competitive advantage, past and future care costs, past and future medical and rehabilitation expenses, past and future housekeeping and home maintenance expenses. In addition, Siskos, who is currently 11 years old, claims damages pursuant to the provisions of the Family Law Act, R.S.O. 1990, c. F.3.

[8] Rule 6.01 of the Rules of Civil Procedure provides in part 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 order; 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.

[9] Section 138 of the Courts of Justice Act, R.S.O. 1990, C.c.43 provides as follows:

As far as possible, multiplicity of legal proceedings shall be avoided.

[10] Rule 1.04(1) of the Rules of Civil Procedure provides as follows:

These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[11] The applicable test is stated by Master Dash in 1014864 Ontario Ltd. v. 1721789 Ontario Inc., 2010 ONSC 3306 (Ont. S.C.J. – Master) at paras. 17-18:

[17] 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(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. I will attempt to set out a list of factors courts have considered on motions for trial together as well as some of the “bifurcation factors” modified appropriately to reflect that this is a motion to try actions together, not sever issues within an action. I point out that the list that follows are considerations for ordering trial together of various actions, which is the relief sought on this motion, and not full consolidation of various actions, for which some different factors may apply.

[18] A non-exhaustive list of some of the considerations on ordering trial together may, depending on the circumstances, include:

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

(b) whether the same damages are sought in both actions, in whole or in part;

(c) whether damages overlap and whether a global assessment of damages is required;

(d) whether there is expected to be a significant overlap of evidence or of witnesses among the various actions;

(e) whether the parties are the same;

(f) whether the lawyers are the same;

(g) whether there is a risk of inconsistent findings or judgment if the actions are not joined;

(h) whether the issues in one action are relatively straight forward compared to the complexity of the other actions;

(i) 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;

(j) the litigation status of each action;

(k) whether there is a jury notice in one or more but not all of the actions;

(l) whether, if the actions are combined, certain interlocutory steps not yet taken in some of the actions, such as examinations for discovery, may be avoided by relying on transcripts from the more advanced action;

(m) the timing of the motion and the possibility of delay;

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

(o) any advantage or prejudice the parties are likely to experience if the actions are kept separate or if they are to be tried together;

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

(q) whether the motion is brought on consent or over the objection of one or more parties.

[12] The plaintiff concedes that the LTD and tort action have at least some general facts in common and that the “gateway” criteria have been met. The issue then becomes whether there are other relevant factors that might lead a court to consider whether or not the requested order ought to be granted.

[13] Blue Cross argues that the issues in each action are interwoven and that the same damages are sought in both actions. While some of the basic facts are shared, the issues in each action are discrete. In the LTD action, the only issues are whether the plaintiff meets the test for entitlement to disability benefits as defined in the policy and whether the plaintiff is entitled to punitive damages. In the LTD action, the jury only determines the plaintiff’s total disability to the date of trial. The jury makes no determination about future entitlement to disability benefits. There are no issues of liability or causation regarding the motor vehicle accident. The question of whether Aziz’s alleged injuries arise from the motor vehicle accident or some other cause is irrelevant. Because the “damages” are based on a set monthly benefits, there is no need for any true assessment of quantum of damages, apart from punitive damages.

[14] In the tort action there are issues of liability, contributory negligence, causation, threshold, general damages and special damages including income loss, care costs, medical and rehabilitation expenses, housekeeping expenses and the claim pursuant to the Family Law Act.

[15] Blue Cross argues that the damages overlap, and a global assessment is required. I am not satisfied that damages overlap, and a global assessment is required. While the tort defendants are entitled to a deduction of LTD monthly benefits, this cannot be properly termed as a global assessment. There is also no evidence before me that Blue Cross or any other party ever suggested or sought a global mediation.

[16] Blue Cross argues that it is expected that there will be a significant overlap of evidence and witnesses. The evidence in support of this position is set out at para. 17 of the affidavit of M. Canning: “I am advised by file review and do verily believe that the same evidence, including expert evidence, with respect to the plaintiff’s injuries, treatment and employability, will be led at the trial in both actions.” While some of Aziz’s witnesses for the LTD and tort actions may overlap, there will be far fewer witnesses, both lay and expert, for the LTD action where there are less issues for determination.

[17] Blue Cross argues that the fact that the plaintiff is the same in both actions favours an order for trial together. While Aziz is a plaintiff in both actions, none of the other four remaining parties is a party in both actions.

[18] Blue Cross argues that the fact that the plaintiffs are represented by the same counsel in both actions favours an order for trial together. While the plaintiffs are represented by the same counsel, the defendants are represented by different counsel.

[19] Blue Cross argues that there is a risk of inconsistent findings or judgment if the actions are not tried together. I disagree. It is possible that a jury may find that Aziz meets the test for entitlement to LTD benefits but is fully at fault for the accident or that her current condition does not relate to the accident. It is possible that a jury may find that Aziz has an economic loss related to the accident but does not meet the definition of “total disability” under the policy. These would not be inconsistent findings, but findings related to the specific matters at issue in each action.

[20] Blue Cross argues that the parties will save costs if the actions are tried together. There is little evidence in support of this position. The evidence does not satisfy me that the overall length of the proceedings will be shortened or of any costs savings to the defendants if the actions are tried together. If the trials proceed separately, only Aziz’s costs are potentially increased. It is only Aziz who will have to call certain witnesses twice. Having regard to all the circumstances including delay and prejudice, Aziz does not take issue with any potential increase in her costs.

[21] Blue Cross argues that there will be no prejudice if the actions are tried together. In my view there will be prejudice to Aziz. The evidence before me from the plaintiffs’ lawyer is that an order for trial together will result in delay. The actions are not at the same stage. The LTD action has been mediated and set down for trial. The tort action has not yet been mediated or set down for trial. There is also evidence before me that the mediation scheduled in the tort action may not proceed as scheduled. The evidence before me is that Aziz is a single mother with limited income who has had significant financial concerns over the past two and a half years. Any delay in the LTD action is prejudicial to Aziz in these circumstances.

[22] The case of Kaur v. Blue Cross, 2018 ONSC 3303 (Ont. S.C.J.) relied upon by Blue Cross can be distinguished. In that case Blue Cross was opposing a motion brought by the plaintiff for an order for trial together of the LTD and tort action. In Kaur, both actions were at the same stage. At the time of the motion, both actions had been struck from the trial list. In addition, there was no evidence of prejudice to the plaintiff. On the motion before me, the actions are not at the same stage and the plaintiff has put forward evidence of prejudice that has not been challenged on cross-examination.

[23] Having regard to the foregoing factors, I am not satisfied that an order for trial together is just in all the circumstances of the actions.

[24] The motion is dismissed.

[25] If successful, Blue Cross sought costs of the motion in the all-inclusive sum of $5,365.12. If successful in opposing the motion, Aziz sought costs in the all-inclusive sum of $5,944.65. Aziz was successful in opposing the motion and is entitled to costs. In my view the all-inclusive sum of $5,000.00 is a fair and reasonable amount that Blue Cross could expect to pay for costs in the circumstances of the motion. Costs of the motion are fixed in the all-inclusive sum of $5,000.00 payable by Blue Cross to Aziz within 30 days.

Master B. McAfee

Date: August 28, 2019