Court File and Parties

Bracebridge Court File No.: CV-19-108 Date: 20200227 Superior Court of Justice - Ontario

Re: David Coon and Susan Leslie Coon, Plaintiffs And: Gore Mutual Insurance Company, Defendant

Before: The Hon. Madam Justice A.A. Casullo

Counsel: B. Shores, Counsel for the Plaintiffs C. Du Vernet, Counsel for the Defendant

Heard: January 31, 2020

Endorsement

Overview

[1] The defendant moves for an order consolidating Court File Numbers CV-19-108 and CV-19-109. Both actions arise out of damage to the plaintiffs’ property, and were commenced on the same day.

[2] The plaintiffs oppose the motion.

Background

[3] The plaintiffs own a piece of property fronting on to the Muskoka River in Bracebridge. The property has two buildings on it: the plaintiffs’ primary residence, and a separate rental unit. The rental unit is located approximately 45 feet from the riverbank.

[4] Both buildings were insured by the defendant.

[5] In April of 2019, Muskoka experienced rising waters and flooding to such a degree that the District declared a state of emergency. Bracebridge was one of the areas affected by the flooding, and in particular, homes along the Muskoka River.

[6] On April 29, 2019, a 100-foot birch tree beside the plaintiffs’ rental unit was blown over in a windstorm. It struck and subsequently destroyed the rental unit. The plaintiffs submitted an insurance claim, which was denied by the defendant on the basis that the building was destroyed by flood waters from the Muskoka River, and damage caused by overland flooding was not covered by the policy of insurance. This denial grounds the property damage claim as set out in CV-19-109 (“Coverage Action”).

[7] The root ball of the tree was pulled several feet out of the ground, leaving a hole in the lawn estimated to measure 200 square feet in surface area. Mr. Coon advised the defendant about the hole. He also advised that he was taking steps to mitigate the damage by backfilling the hole with stone, and reinforcing his riverfront against the rapidly rising river.

[8] The plaintiffs’ evidence is that they were told by their insurance representative to stop all work on the property so as not to interfere with the defendant’s pending investigation. However, by the time the defendant’s investigation was complete, and it confirmed the plaintiffs could re-start working to mitigate the damage, the floodwaters had risen so high that the plaintiffs’ front lawn was submerged. The plaintiffs estimate that they had by then lost 14,000 square feet of surface area. The defendant’s instruction to stop filling the hole left by the root ball grounds the negligence claim as set out in CV-19-108 (“Negligence Action”).

Position of the Parties

[9] The defendant submits that the two actions have both questions of law and fact in common and, at a minimum, both actions involve the following issues:

(a) What was the cause of the April 29, 2019 loss? (b) Is there coverage for the April 29, 2019 loss under the insurance policy? (c) What, if any, is the measure of damages arising from the April 29, 2019?

[10] The defendant further submits that there are multiple reasons why an order to consolidate should be granted:

(a) There is a risk of identical findings of fact and law at trial if the actions are not consolidated; (b) The parties are identical; (c) Witnesses and evidence are likely to be similar, or the same on both liability and damages; (d) Refusing to grant the order will increase expense to the parties; and (e) Court time would be greatly increased if these actions were not consolidated.

[11] The plaintiffs submit that consolidation would deprive them of the opportunity to move for judgment in one proceeding and not the other. Further, in instances where each case would require separate argument, as here, consolidation ought not to be ordered.

[12] Counsel for the plaintiffs advised the court during argument that a third action had been commenced against the plaintiffs’ broker, who was negligent in failing to ensure they obtained flood damage, given the property’s proximity to the Muskoka River. The plaintiffs anticipate seeking an order that this new action be tried together with, or after, the Coverage Action.

Analysis

[13] Pursuant to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Consolidation motions require that the proceedings share some significant element in common:

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 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.

[14] I find that the degree of commonality between the two matters consists of the following factors:

(a) the tree falling onto the rental property; and (b) the parties.

[15] However, that is where the similarities end. Heads of damages in the Contract Action include damages to rebuild the rental unit, loss of rental income, and punitive damages for the defendant’s denial of coverage. The decision will rise and fall on contractual interpretation, and whether the policy’s coverage against “all risks of direct, accidental, physical loss or damage to the property” applies to the loss sustained by the plaintiffs.

[16] The heads of damages being advanced in the Negligence Action are the costs of repairing the plaintiffs’ waterfront, and punitive damages for what the plaintiffs allege was the defendant’s unconscionable indifference to their predicament.

[17] In 1014864 Ontario Ltd. v. 1721789 Ontario Inc., 2010 CarswellOnt 4813, Master Dash set out a more detailed list of factors to consider on motions to consolidate:

(a) the extent to which the issues in each action are interwoven; (b) whether the same damages are sought in both actions, 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 straightforward 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 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.

[18] I address the factors that are applicable in the within case below.

[19] I do not find that the issues are interwoven. While they arise out of the same incident – the tree falling – the claims in each action are distinct from one another.

[20] The damages sought in each action are different.

[21] While there may be some underlying similarity in the punitive damage claims, given the actions of the defendant, this alone is not enough to warrant consolidation. Further, no global assessment of damages is required. The damages in respect of the rental unit are distinct from the damages in respect to the riverfront.

[22] Core witnesses will overlap, given the parties are the same. Should experts be retained in either action, they will be opining on different issues. If lay witnesses are called in either action (for example, the individuals who were prepared at the outset to assist the plaintiffs in filling in the hole in the ground and shoring up the waterfront in the Negligence Action, or claims handlers in the Contract Action), their evidence will be on discrete issues which hold nothing in common with the opposite action.

[23] The lawyers are currently the same in each action.

[24] There is no risk of inconsistent findings or judgment if the actions are not joined.

[25] I see no cost savings in consolidating the actions.

Conclusion

[26] For the reasons outlined above, I am not satisfied that the test for consolidation is met. There are no common questions of law or fact, despite the relief being claimed arising out of the same occurrence. The balance of convenience does not favour hearing the cases together. Instead, the actions are to be tried together, or one after the other, as the trial judge determines.

[27] Accordingly, the defendant’s motion is dismissed.

[28] In view of the fact that argument went beyond 4:30 p.m. on January 31, 2020, I did not hear costs submissions. However, counsel were thereafter asked to provide my judicial assistant with the costs outlines they would have prepared for the hearing.

[29] The plaintiffs seek costs of $4,143.96 on a partial indemnity basis, representing approximately 76% of their full indemnity costs. Pursuant to its Bill of Costs, the defendant sought $5,536.03 on a partial indemnity basis, which I have estimated to be approximately 66% of its full indemnity costs.

[30] The issues were not complex. The parties had disparate views as to how the two matters should be litigated. Despite the submissions put forward by each party regarding the other’s conduct, I do not find that costs should be awarded on anything more than a partial indemnity basis. However, 76% is approaching substantial indemnity territory. A more appropriate percentage is 66%.

[31] Accordingly, costs to the plaintiffs in the all-inclusive amount of $3,581.46, payable forthwith.

CASULLO J. Date: February 27, 2020