Court File and Parties

COURT FILE NO.: CV-20-2056/CV-18-8352/CV 19-3596

DATE: 2021-12-23

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Steven Paterson, Plaintiff

AND:

Dr. Michael Rory Gilbert, Defendant

BEFORE: Kurz J.

COUNSEL: Todd J. McCarthy, for the Plaintiff, Steven Paterson

Sean C. Petrou for Dr. Michael Rory Gilbert

Alfonso Campos Reales for Stephen Stuart and Sheila Stuart

Barry Marta, for Blue Cross Insurance Company of Canada

HEARD: November 9, 2021

ENDORSEMENT

Introduction

[1] This is a motion by the Plaintiff in this action (“Paterson”) to consolidate three ostensibly related actions. Those actions are:

a. Stuart v. Paterson, Intact Insurance Company and Western Assurance Company, action no. CV-18-8352 (“the MVA action”): Stephen Stuart and Sheila Stuart (“the Stuarts”) sue Steven Paterson for damages arising out of a motor vehicle accident of November 3, 2016. On that date, Mr. Paterson ran a red light and collided with the vehicle of Mr. Stuart. The Stuarts also sue Intact Insurance Company (“Intact”) and Western Assurance Company (“Western”) in the MVA action. They claim that at all material times, they were covered under the uninsured, underinsured, and OPCF 44R provisions of automobile insurance policies issued by those insurers.

b. Stuart v Blue Cross Insurance Company of Canada, action no. CV 19-3596: Stephen Stuart sues his long-term disability insurer, claiming entitlement to ongoing benefits (“the LTD action”). Mr. Stuart claims that he remains entitled to those benefits because he is unable to perform the regular duties for any occupation for which he may earn at least 60% of his pre-disability earnings, for which he is reasonably qualified, or may so become, by training, education, or experience. Blue Cross paid Mr. Stuart disability benefits between November 25, 2016 and August 30, 2019. However, Blue Cross determined that Mr. Stuart was no longer entitled to payment of disability benefits, effective August 31, 2019.

c. Paterson v Gilbert, action No. CV-20-2056: Steven Paterson, the defendant in the MVA action, sues his family physician, Dr. Michael Rory Gilbert (“the malpractice action”). He claims indemnity for any amounts that he may be required to pay to the Stuarts in the MVA action He claims that Dr. Gilbert is liable to him for medical malpractice in over-prescribing opiates to him. He pleads that this contributed to the November 3, 2016 motor vehicle accident with Stephen Stuart. While Mr. Paterson had the opportunity to do so, he did not add Dr. Gilbert as a third party to the MVA action. Instead he commenced the malpractice action as a separate lawsuit.

[2] This endorsement applies to all three actions.

[3] It is not clear why Mr. Paterson claimed contribution only and not contribution and indemnity, against Dr. Gilbert in the malpractice action. Section 1 of the Negligence Act, R.S.O. 1990, c. N.1, sets out that the court may apportion liability between two or more tortfeasors and set out the extent to which “each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent.” The provision reads in full as follows:

Extent of liability, remedy over

1. Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering loss or damage for such fault or negligence, but as between themselves, in the absence of any contract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent.

[4] The three actions before the court are at different procedural stages. Pleadings, productions, and discoveries are complete in the MVA action. A pretrial is scheduled for April 13, 2022. At that time, it is anticipated that the matter will be placed on a trial list. Pleadings and productions are complete in the LTD action. Mediation has occurred, without success. But no pretrial date has been set. Pleadings and discoveries have not been completed in the malpractice action. Jury notices have been served in the MVA and LTD actions.

[5] The Stuarts and Blue Cross oppose this motion, Dr. Gilbert supports it. Intact takes no position in this motion and Western appears not to have responded to it. Neither insurer participated in this motion.

[6] For the reasons that follow, I grant the motion in part.

Applicable Law

[7] Under s. 2 of the Negligence Act, a “tortfeasor may recover contribution or indemnity from any other tortfeasor who is, or would if sued have been, liable in respect of the damage to any person suffering damage as a result of a tort by settling with the person suffering such damage, and thereafter commencing or continuing action against such other tortfeasor”. In that event, “the tortfeasor settling the damage shall satisfy the court that the amount of the settlement was reasonable, and in the event that the court finds the amount of the settlement was excessive it may fix the amount at which the claim should have been settled.”

[8] Under s. 5 of the Negligence Act, a defendant sued for negligence may add “a person not already a party to an action [who] is or may be wholly or partly responsible for the damages claimed … as a party defendant to the action upon such terms as are considered just or may be made a third party to the action in the manner prescribed by the rules of court for adding third parties.”

[9] Under s. 138 of the Courts of Justice Act, “[a]s far as possible, multiplicity of legal proceedings shall be avoided.” In 1014864 Ontario Ltd. v. 1721789 Ontario Inc., 2010 ONSC 3306, Master Dash adopted this comment at para 13: “this does not mean that there may be an indiscriminate joinder of parties, and of causes of action, but it indicates the spirit in which such a matter...is to be approached”: McKenzie v. Cramer, 1947 CanLII 72 (ON SC), [1947] O.R. 196 (Ont. Master) at paragraph 9.

[10] The jurisdiction to consolidate separate proceedings is found in Rule 6.01 of the Rules of Civil Proceedings, which reads 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 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.

[11] An interpretive guide to all procedural rules is set out at Rules 1.04 (1) and (1.1) as follows:

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

(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

[12] In Darnley v. Thompson, 2016 ONSC 5545, Daley J. stated at para. 12 that the underlying policy of Rule 6 “is to avoid a multiplicity of proceedings, to promote expeditious and inexpensive determination of disputes and to avoid inconsistent judicial findings. Also fundamental to the application of this rule is the presence of a common question of fact that requires determination.”

[13] The applicable test for the consolidation of separate actions was set out by Master Dash in 1014864 Ontario Ltd. v. 1721789 Ontario Inc., above, as follows:

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(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. 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 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. [Footnotes omitted.]

“Gateway” Criteria

[14] The “gateway” criteria in r. 6.01 (a) – (c) look to common questions of law or fact, whether the relief claimed in the actions arises out of the same transaction or occurrence or series of transactions or occurrences; or any other reasons to make a consolidation order.

[15] Arguably, there is a nexus between the three actions. Had the motor vehicle accident that is the subject of the MVA action not taken place, none of the three lawsuits presently before the court would likely have been commenced, at least in their current form. But looking more closely, the nexus between the actions is more tenuous than may appear at first glance.

[16] There are common factual questions in the MVA action and the LTD action, being the extent of Mr. Stuart’s disabilities, if any. But as Master McAfee stated in Aziz v. Blue Cross Life Insurance Company of Canada, 2019 ONSC 5020, there are key differences between such actions as well:

[13] … 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.

[17] There clearly are no common issues of fact or law between the LTD action and the malpractice action.

[18] Regarding the MVA and malpractice actions: the malpractice action looks to Dr. Gilbert’s medical care of Mr. Paterson and whether it meets the appropriate standard of care. Mr. Paterson alleges that Dr. Gilbert mismanaged his medical care by overprescribing opiates for the treatment of his chronic pain. But whatever findings are made in that regard will not affect the issue of liability for the accident between Mr. Stuart and Mr. Paterson. In fact, from a conversation between counsel during the discovery of Mr. Paterson in the MVA action. It appears that liability will not be in issue in the MVA action. From the materials before me, it appears to be conceded if not admitted that the accident occurred when Mr. Paterson ran a red light, which resulted in his vehicle colliding with that of Mr. Stuart.

[19] In effect, the malpractice action takes off where the liability portion of the MVA action ends. It does not deal with the running of the red light, but perhaps why Mr. Paterson did so. Further, as the Stuarts’ counsel notes, Mr. Paterson’s claims against Dr. Gilbert are historical: the opiate drugs were prescribed to Mr. Paterson over a “long term” before the accident.

[20] I cannot ignore the fact that while it is Mr. Paterson who seeks to consolidate the MVA action and the malpractice actions, he admitted during his discoveries that he had not consumed any opiates in the 24 hours prior to the accident. I have not been made aware of any evidence to the contrary. As the Stuarts’ factum in this motion pointedly states:

On Mr. Paterson’s own evidence, the collision could not have arisen out of the same occurrence or series of occurrences as the Medical Malpractice Action, which arises specifically out of Dr. Gilbert’s medical treatment provided to Mr. Paterson and Mr. Paterson’s long-term use of opioids.

Non-Gateway Issues

Extent to which the issues in each action are interwoven

[21] As stated above, the factual and legal issues between the three actions have some commonalities. But they are far from interwoven. The cause of Mr. Stuart’s disability, if any, is irrelevant to the LTD action. The contractual terms that are central to the LTD action are irrelevant to the MVA action. The medical standard of care that applies to Dr. Gilbert’s care of Mr. Paterson is irrelevant to both the MVA and LTD actions. The issue of liability for the accident is not the subject of the LTD action.

Whether the same damages are sought in both actions, in whole or in part

[22] The damages in each action have a separate legal and factual basis. Mr. Stuart’s damage claim in the MVA action will be assessed in a different manner and for a different time period than in the LTD action. Nonetheless, the damage claims by Mr. Stuart are still somewhat interwoven between the MVA and the LTD actions. But counsel for both the Stuarts and Blue Cross state that they are willing to keep counsel for Mr. Paterson informed of any settlement of that action which may affect damages in the MVA action.

[23] The damages which Mr. Stuart suffered are only relevant to the malpractice action to the extent that Mr. Paterson seeks indemnification for any damages in the MVA action from his former doctor. But the damages in the two actions are determined based on different principles.

Whether damages overlap and whether a global assessment of damages is required

[24] This is not, at first blush, a case for a global assessment of damages. As set about above, damages will be assessed in each action on different bases. But the jury in both the MVA action and the LTD action will consider whether Mr. Stuart is disabled and if so, to what extent.

[25] There is also some potential overlap between the damages that Mr. Stuart may receive in the MVA and LTD actions in that any amounts that he receives in the LTD action will affect his entitlements under the MVA action. That concern is somewhat ameliorated, as set out above, in the event the MVA action settles before the trial of the MVA action.

[26] In Aziz v. Blue Cross, above, Master McAfee wrote, within the context of joining an MVA and an LTD action:

[15] … 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.

[27] Regarding the malpractice action, there is no independent assessment of Mr. Stuart’s damages since what is sought is indemnity only. But to the extent that he is asked to indemnify Mr. Paterson for any amounts that he may have to pay to Mr. Stuart and his fellow plaintiffs in the MVA action, Dr. Stuart may wish to contest the damages claim in the MVA action.

Whether there is expected to be a significant overlap of evidence or of witnesses among the various actions

[28] There is likely to be an overlap of witnesses, including both litigation and participation experts who treated Mr. Stuart, regarding the extent of his injuries/disability in the MVA and LTD actions. Those witnesses are irrelevant to the malpractice action. None of the witnesses in the malpractice action will have any effect on the MVA or LTD actions.

Whether the parties are the same

[29] While there is overlap, there are no parties in common in all three actions. Mr. Stuart is a party to the MVA and LTD actions. Mr. Paterson is a party to the MVA and malpractice actions. Blue Cross is not a party to the MVA or malpractice actions. Mr. Paterson and Dr. Gilbert are not parties to the LTD action.

Whether the lawyers are the same

[30] Again, there is overlap but no counsel in common for all three actions. Mr. Stuart’s counsel acts for him and his wife in the MVA action and for him in the LTD action. Mr. Paterson has the same counsel in the MVA and malpractice actions.

Whether there is a risk of inconsistent findings or judgment if the actions are not joined

[31] Mr. Paterson’s counsel claims that there is a risk of inconsistent findings unless the three actions are heard together. He argues that a jury could find his client not responsible for the accident or 100% responsible or somewhere in between. But another jury could find Dr. Gilbert responsible or apportion liability between them. Mr. Paterson is not arguing inevitable accident. He will be saying that if Dr. Gilbert had properly discharged his duties, the accident could have been prevented.

[32] There does not seem to be any dispute that the motor vehicle accident between Mr. Paterson and Mr. Stuart occurred when Mr. Paterson ran a red light and struck Mr. Stuart’s vehicle. At this point, I am unaware of any issue regarding Mr. Stuart’s contributory negligence for the accident.

[33] Whether Dr. Gilbert bears any level of liability for Mr. Paterson’s running of the red light (despite Mr. Paterson’s evidence of a lack of drug use 24 hours prior to the accident) will not affect the issue of liability between the Stuarts and Mr. Paterson. It will also not affect the assessment of damages in either the MVA or LTD actions.

[34] Thus, the most meaningful risk of inconsistent findings and judgments arises between the MVA and LTD actions. Even there, the basis of the jury’s determination will be different in the two actions. I note again that neither Mr. Stuart nor Blue Cross wish their actions to be tried together; although Blue Cross’ main rationale is that it does not wish to be dragged into the malpractice action.

Whether the issues in one action are relatively straightforward compared to the complexity of the other actions

[35] I cannot say that the issues in any of the three actions are relatively straightforward. There is a level of complexity to each action, based on the factors that will go into the trier of fact’s decision (at present a jury notice has not been served in the malpractice action).

[36] But I add that if the three actions are tried together, there will be added complexity for any trier of fact (which is likely to be a jury). While there appears to be no issue of direct liability in the MVA action, there appear to be hotly contested issues regarding damages, and in particular, the extent of Mr. Stuart’s injuries. While there is a similar issue regarding Mr. Stuart’s alleged disabilities in the LTD action, the test that would have to be applied by a jury is a different one.

[37] Further complicating matters is the fact that any determination of liability in the malpractice action will require a trier of fact (potentially a jury) to consider a separate and complex issue, that of the standard of care for a family physician treating a patient with chronic pain. It will also then have to consider whether there was any causation that ties any defect in that standard of care with the subject accident.

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

[38] Counsel agree that a resolution of the LTD action will affect the assessment of damages in the MVA action. That would have an effect on damages, if any, in the malpractice action, since it is a claim for indemnity regarding the MVA action. Counsel disagree on whether a resolution of the MVA action would have an effect on the other two actions. Counsel for the Stuarts argues that a decision in the MVA action will crystalize the damages issue and make settlement of the malpractice action easier. He adds that resolution of the LTD action may also affect the prospects of settlement of the MVA action

[39] Further, I agree with counsel for the Stuarts that by its very nature, the malpractice action for indemnity requires a resolution of the MVA action.

The litigation status of each action

[40] The litigation status of the three actions is an important factor in this motion. The three actions are at very different stages of their proceedings. The MVA action is already scheduled for pretrial on April 13, 2022, following which it will be likely be placed on the trial list. There are no other anticipated procedural steps in that action. The LTD action has pleadings completed, and discoveries scheduled, if not completed. But no pretrial is presently scheduled. The malpractice action is at the earliest procedural stage of the three actions. Pleadings are not complete. No statement of defence has been filed and no discoveries have been scheduled. It is likely years away from trial.

[41] Counsel agree that if I grant this motion in full, i.e. join all three actions, the pretrial in the MVA action will have to be adjourned. That adjournment will likely be for an indefinite period, until the malpractice action catches up to the other two.

Whether there is a jury notice in one or more but not all of the actions

[42] Jury notices have been filed in the MVA and LTD actions but as set out above, pleadings are not complete in the malpractice action. No jury notice has yet been served.

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

[43] Combining the actions will not avoid any steps between the MVA and malpractice actions. In fact, Dr. Gilbert may wish to contest the liability for the accident that Mr. Paterson seems to be willing to concede. Since discoveries in the MVA and LTD actions are complete, there will be no savings there. The door for further discoveries would be opened between Dr. Gilbert and the Stuarts. Further adding to the number of counsel present at any discovery will inevitably delay it further.

The timing of the motion and the possibility of delay

[44] As set out above, this motion was brought almost three years after the date of issuance of the statement of claim and almost one year after Mr. Paterson’s counsel raised the possibility of such a motion. That delay has not been explained.

[45] The Stuarts complain that the delay in this motion has delayed mediation in the MVA action. They also point to the delay in the completion of pleadings in the malpractice action. They state that if the three actions were joined, their two actions, particularly the MVA action, will have to wait until the malpractice action procedurally catches up to them.

[46] I cannot ignore the delay in Mr. Paterson bringing the malpractice motion until close to the expiry of the limitation period and the tactical choice not to attempt at that time to add Dr. Gilbert as a third party to the MVA action. Again, no reason has been proffered for this choice, but it amounts to delay.

Whether any of the parties will save costs or alternatively have their costs increased if the actions are tried together

[47] The costs for the Stuarts will be increased if they are required to participate in the malpractice action. Their counsel estimates that the MVA action will take 30 days to try. He estimates that there will be 15 witnesses, including five experts. The LTD action is estimated to take 5-7 days. Counsel for Blue Cross complains that he would have sit through weeks of trial time in a combined trial, when a separate trial on LTD action would take far less. Counsel for the Stuarts also state that it is telling that Mr. Chambers is unable to estimate the length of the malpractice trial.

Any advantage or prejudice the parties are likely to experience if the actions are kept separate or if they are to be tried together

[48] The Stuarts point, with justice, to substantial prejudice that they would experience were the three actions tried together. Mr. Stuart was the main bread earner in his family. He has not worked since the time of the accident. His disability benefits have been terminated by Blue Cross since August 31, 2019.

[49] Under s. 267.5 of the Insurance Act, Mr. Stuart is only entitled to receive, as damages for income loss prior to trial, 70% of his gross pretrial income loss. The provision is set out below.

267.5 (1) Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for the following damages for income loss and loss of earning capacity from bodily injury or death arising directly or indirectly from the use or operation of the automobile:

1. Damages for income loss suffered in the seven days after the incident.

2. Damages for income loss suffered more than seven days after the incident and before the trial of the action in excess of,

i. 80 per cent of the net income loss during that period, as determined in accordance with the regulations, if the incident occurred before September 1, 2010, or

ii. 70 per cent of the amount of gross income that is lost during that period, as determined in accordance with the regulations, in any other case.

[50] That means that Mr. Stuart loses 30% of his gross income claim for each day that the trial is delayed. Mr. Stuart will never be compensated for that prejudice. In Louis v. Poitras, 2020 ONCA 815, Brown J.A. of the Court of Appeal found that circumstances similar to those of Mr. Stuart represents a form of irreparable harm within the context of a stay motion. As he wrote:

57 Second, the Plaintiffs have demonstrated that, if the trial date is vacated, they will suffer non-compensable loss caused by the further deferral of the adjudication of the claim for loss of income. Since s. 267.5(1) of the Insurance Act limits the damages for income loss “before the trial of the action” to 70% of the gross income lost, that “cap” would continue until the trial commences on some uncertain, unknowable future date. The further loss caused by a postponement of the February 22, 2021 trial cannot by recovered by the Plaintiffs.

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

[51] As stated above, having all three actions tried together will pose a complex endeavor for the trier of fact (who will most likely be a jury). The jury will have to look to three claims based on three separate areas of law, with little factual overlap that covers the three actions.

Whether the motion is brought on consent or over the objection of one or more parties.

[52] As set out above, the Stuarts and Blue Cross oppose this motion. While Dr. Gilbert supports it, he never moved to join the actions. He has not yet even filed his statement of defence.

Disposition

[53] The decision in this motion is a difficult one and a close call. There are strong reasons going each way. There is real overlap between the MVA and LTD actions, meaning that there are reasons of timing, judicial economy and the avoidance of inconsistent verdicts, to have those two actions tried together.

[54] However, the malpractice action is at a far different procedural stage than the other two. It is Mr. Paterson, the party seeking to join all three actions, who is responsible for the factors that militate against joining the malpractice action to the other two actions. He delayed suing Dr. Gilbert until almost the expiry of the limitation period, even though the MVA action had been in process for some time. He also chose to launch a separate action against Dr. Gilbert, rather than add him as a third party to the MVA action. Those decisions would be highly prejudicial to Mr. Stuart, if they were allowed to significantly delay his trial. As set out above, he loses 30% of his gross income claim for each day that a trial is delayed.

[55] Further, while Dr. Gilbert supports this motion, he did not bring it. It is not even clear whether his action will be heard before a jury.

[56] Yet, I also acknowledge that civil jury trials are not taking place at this time and most likely not in 2022. Thus, if the parties are able to move expeditiously in the malpractice action there is a chance that they can catch up to the other two actions.

[57] In contrast to the evidence, buttressed by law, of Mr. Stuart’s clear financial prejudice arising from delay if the actions are joined, Dr. Gilbert has offered no evidence of prejudice if this motion is dismissed. Dr. Gilbert’s only potential prejudice is procedural: he will not get to oppose the determination of damages in the MVA. At present, that opposition is theoretical in that he does not set out the manner in which he would approach Mr. Stuart’s claim to damages in a manner that is different than that of Mr. Paterson.

[58] In an ideal world, it may be preferable to allow Dr. Gilbert to participate in the assessment of Mr. Stuart’s damages, if any, and then have the trial regarding indemnity after the trial of MVA matter.

[59] I also note that it is possible, if the MVA and LTD actions are called for trial, that Mr. Stuart may move to strike the jury notices in those two actions. In that case, the trial of the MVA and LTD actions may take place sooner rather than later.

[60] In considering all of the findings set out above, I exercise my discretion as follows:

a. I order that the trial in the MVA and LTD actions shall be heard at the same time, or one immediately after the other, or as the trial judge may otherwise direct. Both have jury notices. Both are at an advanced stage approaching trial. With the similar issues and common witnesses, there seems to be little reason to avoid adding the LTD action to the MVA action.

b. The pretrial of the MVA and LTD actions shall take place together. At present it is scheduled for April 13, 2022. The time available can be expanded to allow for a joint pretrial. If counsel for Blue Cross is available on April 22, 2022, the pretrial of that matter will take place at the same time as the pretrial in the MVA action. If not, I request that the trial office find an expeditious date for that pretrial.

c. Dr. Gilbert will be entitled to all discovery records in the MVA and LTD actions. Pursuant to Rule 30.1(8), the evidence and information in each of the three actions may be used in the other actions. Dr. Gilbert will also be entitled to discover Mr. Stuart for up to ½ day. But that discovery will not delay the trial of the MVA/LTD action.

d. If the malpractice action can be ready for trial when the MVA/LTD action is called, the trial shall be heard at the same time, or immediately after the other, or as the trial judge may otherwise direct. But it will not hold it up. If the parties to that action cannot agree to a schedule in that regard, they may move for directions.

e. Further, if there are any issues with regard to carrying out the terms of my order, the parties may arrange to appear before me for further directions.

Costs

[61] I note that the results of this motion were somewhat mixed. The parties should attempt to resolve the issue of costs of this motion on their own. If they are unable to do so, counsel may arrange a brief attendance before me to argue the issue. In that event, each party may file costs submissions of up to three pages, double-spaced, one-inch margins, plus a bill of costs/costs outline and offers to settle within 21 days of the release of this endorsement. They need not include the authorities upon which they rely so long as they are found in the commonly referenced reporting services (i.e. LexisNexis Quicklaw, or WestlawNext) and the relevant paragraph references are included. No further submissions will be accepted unless I request them. If I have not received any submissions within the time frames set out above, I will assume that the parties have resolved the issue and will make no costs order.

“Marvin Kurz J.”

Electronic signature of Justice Marvin Kurz

Date: December 23, 2021