Court File and Parties

COURT FILE NO.: CV-16-00068058-0000 DATE: 2023-03-29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: GANDARA v. AVIVA CANADA INC.

BEFORE: Associate Justice M. Fortier

COUNSEL: Marc Binavince, for the Plaintiff, Jose Gandara Douglas Treilhard, for the Defendant, Aviva Canada Inc.

HEARD: December 6, 2022

Motion Endorsement

Introduction

[1] The plaintiff, Jose Miguel Gandara, brought a motion seeking orders in relation to two actions arising from motor vehicle accidents (“MVAs”) in which he was involved. The actions are Gandara v. Al-Hasan et. al., CV-11-52428 (the “tort action”) and Gandara v. Aviva Canada Inc., CV-16-68058 (the “AB action”).

[2] The plaintiff seeks the following:

a) An order granting him leave to amend the fresh as amended statement of claim in the tort action;

b) An order extending the time to set the action down for trial in the tort action;

c) An order under Rule 6.01 of the Rules of Civil Procedure that the tort action and the AB action be heard at the same time or one after the other as the trial judge may direct.

[3] The defendants did not oppose the plaintiff’s motion for an order granting him leave to amend the fresh as amended statement of claim in the tort action and an order extending the time to set this action down for trial. I granted the orders as per my endorsement of December 6, 2022. The tort action was ordered to be set down by no later than December 30, 2022.

[4] The plaintiff’s motion for an order that the two actions be heard at the same time or one after the other was opposed by the defendant Aviva Canada Inc. in the AB action. The defendants in the tort action take no position.

Background

[5] The plaintiff was involved in five MVAs that occurred on October 6, 2009, February 1, 2010, March 22, 2010, January 14, 2015, and December 14, 2016, respectively.

[6] The plaintiff initially commenced the tort action in 2011 for damages in respect of the October 2009 MVA. However, the makeup of the action changed over time as claims against new defendants were added because of the other four MVAs. Other claims were settled.

[7] There are currently three defendants in the tort action, each with respect to a different MVA. The remaining defendants are Husein Freah Al-Hasan (the October 6, 2009 MVA), Aviva Insurance Company of Canada (the January 14, 2015 MVA) and Armand Rogers (the December 14, 2016 MVA). The plaintiff claims various heads of damages in tort and, as against the insurer defendant, indemnification for damages caused by an unidentified motorist.

[8] As of the date of this motion, the tort action had not been set down for trial, nor were trial or pretrial conference dates scheduled. The tort action will be tried by a jury.

[9] The plaintiff commenced the AB action against his accident benefits insurer, Aviva Canada Inc., for accident benefits arising from the January 14, 2015 MVA. The issues raised in the pleadings include entitlement to non-earner benefits, damages for bad faith and entitlement to payment for a single physiotherapy treatment plan.

[10] The AB action was set down for trial on September 13, 2022. According to the defendant Aviva, the action is ready for trial. The trial would be heard by judge alone and would likely take less than two weeks.

Preliminary Issue

[11] There was a preliminary issue with respect to the admissibility of paragraphs 45 to 47 (“the paragraphs”) of the affidavit of Julia Hunter in the plaintiff’s motion record. Ms. Hunter is a law clerk employed by plaintiff’s counsel.

[12] The defendant submits that the paragraphs of Ms. Hunter’s affidavit are inadmissible because:

a) Paragraph 45 violates Rule 24.1.14 of the Rules of Civil Procedure which provides that communications at a mediation session are deemed to be without prejudice discussions;

b) Informal discussions between lawyers (whether they take place during mediation) should be regarded as being without prejudice;

c) The paragraphs violate the rule that counsel may not rely on his own affidavit or an affidavit for which he is the source of the information relied upon by the deponent in a key factual matter.

[13] The plaintiff conceded at the outset of the motion that the paragraphs should be given little or no weight and did not oppose the striking of the paragraphs.

[14] I agree with the defendant that the paragraphs are inadmissible, and I accept and adopt the summary of law as outlined in paragraph 12 above. Accordingly, paragraphs 45 to 47 of the affidavit of Julia Hunter sworn November 22, 2022, are struck.

Issue

[15] Should the AB action and the tort action be tried together or one immediately after the other?

The Law

[16] Rule 6.01(1) of the Rules of Civil Procedure provides 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;

[17] In 1014864 Ontario Ltd. v. 1721789 Ontario Inc., Master Dash indicated that the proper approach on a motion under Rule 6.01 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) before making an order consolidating the proceedings or having the proceedings tried together or one after the other.

[18] The onus is on the moving party to show that it meets one of the criteria in Rule 6.01(1). Meincke v. Unifund Assurance Company, 2013 ONSC 7675, at para. 9.

[19] If the moving party has satisfied one or more of the “gateway” criteria, Master Dash provided the following non-exhaustive list of possible factors that a court may consider in deciding whether to grant a motion under Rule 6.01:

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. 1014864 Ontario Limited, at para. 18.

[20] Master Muir in Meincke referred to other factors set out by the court in Logtenberg v. ING Insurance Co., 2008 ONSC 43573, in his analysis as to whether to order trial together of two proceedings arising out of the same motor vehicle accident. These factors are:

• Will the order sought create a savings in pretrial procedures?
• Will there be a real reduction in the number of trial days taken up by the trials being heard at the same time?
• What is the potential for a party to be seriously inconvenienced by being required to attend a trial in which that party may only have a marginal interest?
• Will there be real savings in experts' time and witness fees?
• Is one of the actions at a more advanced stage than the other?
• Will the order result in a delay on one of the actions?
• Are any of the other actions proceeding in a different fashion? Meincke, at para. 7; Logtenberg, at para. 10.

[21] Rule 6 is interpreted and applied having regard to s. 138 of the Courts of Justice Act which provides that, “As far as possible, multiplicity of legal proceedings shall be avoided.” Essentially, the court must balance the competing interests of expediency along with convenience and possible prejudice to the parties. Brown v. Matawa Project Management Group Inc., at para. 23; Meincke, at para. 10; Logtenberg, at para. 10.

Position of the Parties

The Plaintiff

[22] The plaintiff argues that he has satisfied more than one of the three gateway criteria set out in Rule 6.01(1) and asks the court to turn its inquiry to the list of factors set out in Master Dash’s decision. Although it has not been clearly articulated either orally or in his factum which of the three gateway criteria he has satisfied, the plaintiff argued that both actions have common issues of fact.

[23] The plaintiff’s main arguments in favour of trial together or one after the other are as follows:

a) The issues in both actions are interwoven insofar as the defendant in the AB action will have the burden of proving that the plaintiff’s physical and psychological complaints should be attributed to the MVAs other than the one out of which the disputed non-earner benefit entitlement arises.

b) There may be an overlap of evidence or of witnesses between the two actions.

c) There is a risk of inconsistent findings or judgment if the actions are not heard together.

d) The AB action defendant will likely try to attribute the plaintiff’s adverse life circumstances to one or more of the other four MVAs with respect to which the non-earner benefit is not being claimed. If there were separate trials, there may be inconsistent findings.

e) Both matters could be heard in three weeks. One week for the AB action and two weeks for the tort action. Moreover, there is no way of knowing when a short trial might be heard in Ottawa as opposed to a longer jury trial. The timing may be negligeable and the matters can be heard at the same pace.

f) The plaintiff anticipates being successful in striking the jury at the commencement of the tort trial and therefore both matters would proceed before a judge alone.

g) The plaintiff’s costs would be higher if there were two trials.

h) A delay in having the accident benefits trial heard together with the tort action does not prejudice the AB action defendant because the defendant is often involved in litigation as an institutional defendant, and delay should not be an issue.

i) Hearing the actions together promotes judicial economy.

j) The plaintiff is hoping to achieve a global settlement of the actions at a pre-trial and argues that this would not be possible without the participation of all parties in both actions.

The Defendant

[24] The defendant argues that there is no legal or practical reason why the two actions would be tried together. In particular:

a) The legal issues, the evidence, the trier of fact—all are distinct.

b) There is no risk of inconsistent findings if the two actions were tried separately nor is there an overlap in the evidence of the witnesses in both actions. The AB action does not require a global assessment of damages and apportioning those damages between the different accidents. The tort action involves general damages for pain and suffering, loss of housekeeping capacity and loss of earning capacity whereas the AB action does not.

c) The issues raised in the AB action have their own legal tests, and distinct evidence will be led and arguments made by the parties with respect to those tests. None of it will have any bearing on the tort action. The jury in the tort action will not be asked to answer any of the same questions put to the judge in the AB action.

d) The AB action is ready for trial, whereas the tort action is not.

e) The AB action will be tried by judge alone. The trial would take two weeks or less. The tort action will be tried by a jury. The trial of the tort action could reasonably take at least six to eight weeks.

f) The issue of proportionality is relevant. The total current value of the plaintiff’s AB claim (exclusive of interest and costs) is under $200,000.

g) The AB action deals with events that occurred five to seven years ago and fading memories of witnesses are of concern.

Analysis and Disposition

[25] The plaintiff, as the moving party, has the onus to show that he meets one of the criteria in Rule 6.01(1). I am satisfied, taking into consideration the plaintiff’s evidence and submissions as a whole, that he has met the onus of establishing that one of the gateway criteria defined in rule 6.01(1) applies. In particular, the plaintiff’s alleged tort injuries and the SABS entitlement both arise from the MVA of January 14, 2015, which satisfies Rule 6.01(1)(a).

[26] Having considered and applied the factors outlined in paragraphs 19 and 20 to balance the considerations of expediency, convenience and prejudice to the parties, I am not satisfied that it is appropriate to order that the AB action and the tort action be tried together or one after the other.

[27] In my view, several factors mitigate against an order under Rule 6.01. These factors are as follows:

a) A jury notice has been served in the tort action but not in the AB action. The plaintiff failed to provide evidence about how these two proceedings can be practically combined. There is a multi-accident, multi-party jury trial on one hand, and a narrower more discreet proceeding before a judge alone on the other. I give little weight to the plaintiff’s assertion that he would likely be successful on a motion to strike the jury at the commencement of trial.

b) The AB action is at a more advanced stage than the tort proceeding. The AB action is ready for trial, whereas the tort action is not.

c) The plaintiff’s assertion that it is not possible to determine the first available dates for short trials and long trials in Ottawa is not accurate, nor is his submission that the delay between the two trials may be negligeable. Parties can readily ascertain the first available dates for trials under 10 days (short trials) and over 10 days (long trials) by communicating with the case management coordinator in Ottawa. At the time of this motion, trials under 10 days were being scheduled for June 2023 whereas the first available date for longer trials was in January 2025.

Moreover, I do not find the plaintiff’s submission that the tort jury trial can be heard in two weeks to be realistic. It is difficult to comprehend how a multi-accident, multi-defendant personal injury jury trial can be completed in two weeks. There was no evidence before the court with respect to the number of witnesses, including experts expected to be called or whether the defendants in the tort action confirmed the two-week timeline.

In my view, an order under Rule 6.01 would result in a significant and unjustified delay of the AB action. As outlined above, the AB action could proceed to trial in 2023 whereas the tort action could not proceed before 2025.

d) The plaintiff’s contention that delay should not be an issue for an institutional party is problematic and denied by the defendant. Like all litigants, the defendant has an interest in having disputes resolved efficiently and expeditiously.

e) The court has attempted to move the matters forward in both actions, including by specifying deadlines for setting the actions down for trial. These timelines have not been followed by the plaintiff. It was only after the defendant brought a motion to have the AB action dismissed for delay, that the AB proceeding was ultimately set down for trial in September 2022. Delay is a matter of concern for our courts and a culture of complacency cannot be tolerated. As stated by Brown J.A. in Louis v. Poitras, 2020 ONCA 815:

Part of the “service guarantee” to the public made in r. 1.04(1) is that courts will work to provide the “most expeditious … determination of every civil proceeding on its merits” (emphasis added). Delay in providing trial dates undermines that service guarantee. The late Willard Z. Estey, a former justice of the Supreme Court of Canada, captured the point well when he stated that “delay in the settlement or disposal of conflicting claims is … a primary enemy of justice and peace in the community. 8 C.C.L.I. (6th) 163, at para. 33.

f) The plaintiff has not produced any evidence that would satisfy the court that the tort action would proceed expeditiously after it is set down for trial or that it would be ready for a global pre-trial as requested by the plaintiff.

g) I accept that the defendant will be prejudiced by the order sought by the plaintiff in terms of delay for the reasons outlined above. Further, the issue of the recollection of witnesses arises because it has been over seven years since the MVA related to the AB claim took place.

h) The number of trial days will not be reduced if the trials are heard at the same time or one after the other. Rather, the two trials would differ significantly in length.

i) In my opinion, the defendant in the AB action would be seriously inconvenienced by being required to attend a jury trial where it would have only a marginal interest and having it’s costs increased if the actions are tried together. I see little potential for savings in terms of costs or time if an order for trial together or one after the other is made.

j) The issues in the AB action are discreet and straightforward, whereas the tort action is more complex because it involves a number of MVAs and different defendants, with different counsel.

k) I am satisfied there is little risk of inconsistent findings if the two actions are tried separately. The issues raised in the AB action have their own legal tests, with distinct evidence in relation to those tests, which have little or no bearing on the tort action. In my view, the jury in the tort action is unlikely to be asked to answer any of the same questions put to the judge in the AB action.

[28] For the above reasons, I am not prepared to exercise my discretion to order that these two actions be tried together or one after the other.

Conclusion

[29] I therefore order as follows:

a) The plaintiff’s motion is dismissed.

b) If the parties cannot agree on costs, they may file written submissions not exceeding three pages, exclusive of their respective bills of costs. The plaintiff shall file his costs submissions within 20 days of the release of this decision. The cost submissions of the defendants shall be filed within 10 days thereafter.

Associate Justice M. Fortier DATE: March 29, 2023