SUPERIOR COURT OF JUSTICE - ONTARIO
NEWMARKET COURT FILE NO.: CV-21-1451
RE: Laura Mae Tompson, Plaintiff
AND:
Malik Jamshed A. Wattoo and GTA Accessible Transportation Inc., Defendants
BEFORE: The Honourable Madam Justice S.E. Healey
COUNSEL: A. Wilson, Counsel, for the Plaintiff
C. Young, Counsel, for the Defendants Wattoo and GTA Transportation
J. Conway, Counsel, for the Defendants Timeoso Inc et al. in Court File No. CV-11-104235-00
J. Braun, Counsel, for the Defendants Solomon et al. in CV-18-00136009-0000
HEARD: March 26, 2025
Ruling on Motion
Nature of the Motion
1The plaintiff Laura Thompson moves for leave to bring this motion, and for an order that the within action be tried with three other actions. Included in this relief is a request to amend the pleading in one of the actions to increase the prayer for relief and to move the action from the simplified procedure to the ordinary procedure.
2Those other actions are:
i) Action No. CV-11-104235-00, which arises from a slip and fall alleged to have occurred on May 20, 2009 in Newmarket (the “2011 Action”);
ii) Action No. CV-18-00136009-0000, which arises from a slip and fall alleged to have occurred on June 10, 2016 in Thornhill (“the 2018 Action”);
iii) Action No. CV-20-00000289-0000, which arises from a motor vehicle collision that occurred on June 18, 2019 near the Town of Whitchurch-Stouffville (the “2020 action”);
3The within action arises out of a motor vehicle collision that occurred on January 7, 2020 near the City of Markham (the “2021 Action”). There are two defendants in the 2021 Action, Wattoo and GTA Accessible Transportation Inc. Counsel for these defendants took no position on the motion.
4With respect to the other motor vehicle accident, the 2020 Action, one defendant (Cox) took no position on the motion, and the other defendant (Coseco Insurance Company) consents to trial together and takes no position on the issue of leave or amendment of the pleading in the 2018 Action.
5All of these actions were commenced in Newmarket. Jury notices have been served in each action.
6The basis for seeking consolidation is that the consecutive incidents/accidents have led the plaintiff to suffer overlapping, cumulative injuries over the period 2009-2020 that allegedly contribute to her current level of disability and impairment. The issues of causation and damages represent common issues spanning all four actions. Further, conducting individual trials in each action is against the interests of justice, for several reasons articulated in the factum and by plaintiff’s counsel during submissions.
7In his affidavits in support of the motion, counsel having carriage for the plaintiff, Mr. David Wilson, does not provide a timetable or plan as to how all four matters can proceed to trial together or one after the other. Each is in a different stage of litigation. He does state that the last outstanding examination in the 2021 action can be completed by June 30, 2025.
8It is necessary to examine the status of each of these actions at the time of this motion.
Status of the Actions
2011 Action
9A trial scheduling appearance is scheduled for April 2, 2025, for the purpose of scheduling this trial. The defendants have been ready for trial since 2019. The defendants were the owners of the plaza where the plaintiff says that she tripped on a depression in the sidewalk.
10This 14-year old action has had a tortured history, which it is not necessary to recite in detail. The plaintiff has been represented by three law firms during the lifespan of this action, and was representing herself for 4.5 of those years. She has been represented by her current counsel since September 14, 2023.
11The trial record was served in December 2016. The plaintiff delivered an amended trial record on or about July 30, 2018. In 2018, it was scheduled for a trial date of September 27, 2018, later adjourned to March 28 2019 at the request of the plaintiff.
12In June 2019 it was placed on the November 2019 trial sittings. The motor vehicle accident of June 2019 had occurred earlier that month. On August 29, 2019, the trial date was “vacated” because of a request for a defence medical arising from the 2019 motor vehicle accident. It has remained off the trial list since then.
13There has never been a prior request to consolidate the 2011 Action with any of the others, even while the plaintiff was represented by former counsel at Thompson Rogers between November 2019 to September 2023, during which all of the other three actions existed or came into existence.
14On January 9, 2025 the 2011 Action was administratively dismissed, and then that order set aside by Verner J. on the basis of registrar’s submissions.
15In the context of seeking the defendants’ consent for this consolidation motion, the plaintiff’s counsel has not produced a timetable for how and when the other actions would be made trial-ready in order to accompany this one. On February 7, 2025, in an email to all counsel in all actions, Mr. Wilson made the statement that “any trial will be far off in the future”.
The 2018 Action
16This action was commenced under the simplified procedure in R. 76. The plaintiff alleges that injuries occurred when exiting the office of the defendant Dr. Philip Solomon, while being assisted by his employee to descend the stairs.
17Examinations for discovery began in July 2019 and the defendants were unable to schedule its continuation until February 2022. The defendants’ examinations for discovery were completed in April 2022.
18On April 30, 2024, through her current counsel the plaintiff advised of her intention to consolidate this action with the other actions.
19The defendants in this action do not oppose consolidating this action with the 2011 Action, but do oppose having it tried together with the later motor vehicle actions.
20When this motion was first served on September 9, 2024, there was no mention of the plaintiff’s intention to move this matter from simplified procedure to ordinary procedure.
21On October 30, 2024, the parties attended a status hearing motion in front of Fraser, J. for the purpose of the plaintiff showing cause why the actions should not be administratively dismissed for delay. The parties agreed on a timetable. Two of the terms of that timetable were that: 1) the plaintiff was required to deliver her expert reports no later than January 15, 2025; 2) if this consolidation motion is dismissed, the plaintiff is required to deliver her trial record within 30 days. No mention was made of amending the claim.
22On January 3, 2025, the registrar issued an order dismissing the action for delay. It is anticipated that that order will be set aside, as the defendants are not opposing the plaintiff’s request to set aside the dismissal order, which was filed with the court in February 2025. However, as of the hearing of this consolidation motion, it has not been set aside.
23The plaintiff did not meet the deadline for serving the expert report of Dr. Gerber, which was served on January 28, 2025. Counsel for the defendants notified Mr. Wilson that the defendants take the position that the expert report cannot be relied on due to its late service.
24The plaintiff has served a notice of motion returnable July 23, 2025 for a motion to amend the order of Justice Fraser to allow for delayed delivery of Dr. Gerber’s expert report. The stated ground for the motion is that “the Plaintiff was unable to comply with the requirement mandated by the said Order”, without any further explanation. The defendants have indicated that they will not oppose the motion provided no costs are sought. However, Mr. Wilson’s affidavit states that costs of that motion have become an issue between the parties. This court cannot assume that the defendants will not oppose the motion after all, given the disagreement over costs.
25The defendants have made an arrangement for the plaintiff to attend a defence medical examination on March 27, 2025 and the supporting affidavit of Brianne Simionati, counsel for the defendants, states that the report will be served by the timetable deadline.
26The plaintiff wishes to amend her claim in this action to increase her claim to $500,000 for general and $250,000 for special damages.
27The defendants were served with the plaintiff’s motion record on March 11, 2025. This was the first time that they were notified of the plaintiff’s intention to move this action from the simplified procedure.
28The defendants now oppose the request to have the four actions tried together.
The 2020 Action
29The statement of claim in this action was issued on January 23, 2020 and amended on January 31, 2023 to add Coseco Insurance Company. The examination for discovery of the plaintiff was completed on September 19, 2024, and the examination for discovery of the defendant Cox was completed on February 21, 2025.
30The examination for discovery of the defendant Coseco has not been conducted; Mr. Wilson’s evidence is that it can likely be conducted in writing.
31There is no evidence of whether any further expert reports will be served for this action.
The 2021 Action
32This accident occurred while the plaintiff was being transported to a defence medical assessment with respect to the 2011 Action.
33The statement of claim was issued on April 20, 2021. The discoveries of the plaintiff and the defendant Wattoo were completed by September 19, 2024. The defendant GTA Accessible Transportation Inc. has yet to be examined.
34There is no evidence of whether any further expert reports will be served in this action, or when the plaintiff plans to file her trial record.
Leave to Bring Motion
35The 2011 Action has been set down for trial, and accordingly leave to bring this motion is required under R. 48.04(1). For the following reasons, leave is denied.
36One of the purposes of R. 48.04 (1) is to avoid delays: Chavdrova v. Ben Hanuka and Law Works PC, 2015 ONSC 7394, at para. 8.
37There are two general bases for granting leave: 1) where the moving party shows a substantial or unexpected change of circumstances since the filing of the trial record; or 2) if it is in the interest of justice: Horani v. Manulife Financial Corporation, 2023 ONCA 51.
38In Fulop v. Corrigan, 2020 ONSC 1648, at para. 47, Justice Perell outlined several non-exhaustive factors the court may consider in deciding whether to grant leave.
39Some of the factors outlined in Fulop weigh in favor of granting leave. For example, the plaintiff could not have known when she set this matter down in December 2016 that she would be in three subsequent accidents. At the time of the passing of the amended trial record, she could not have anticipated being in two consecutive motor vehicle accidents occurring two years apart.
40However, what the plaintiff is attempting to achieve on this motion is grossly unjust to the defendants in the 2011 Action. These defendants had the trial cancel only three months before it was scheduled to be heard six years ago. Prior to that, the action languished for years, without any explanation. Her present counsel concedes this fact. The incident occurred in 2009. The defendants are poised to get the matter scheduled on a trial list, two days from now. This action could be scheduled for the trial sittings this coming September; given the age of the action I anticipate that this is what the judge presiding at triage court will do.
41I have also considered whether the consolidation motion would likely be granted if leave were given.
42There is no real plan or schedule presented by the plaintiff for when the other actions will be ready for trial. All that has been represented by Mr. Wilson is that the discovery of GTA Accessible Transportation in the 2021 Action can be completed by June 30, 2025. There is no evidence as to what arrangements, if any, have been made to meet that target. However, even if that target is met, passing a trial record in the 2020 and 2021 Actions in 2025 is likely to result in a pretrial at the earliest in 2026 and a trial date in 2027. It is the lack of pretrial dates in the Central East Region that is the most significant bottleneck in the system.
43But there is another factor that no counsel addressed during submissions, and is not referenced in the plaintiff’s material at all. How long would the consolidated trial take? If longer than four weeks, a special date must be obtained (see Notice to the Profession – Protocol for Civil Proceedings Central East Region, updated January 24, 2025). It cannot be placed on the regular trial sittings lists. The plaintiff has taken no steps to canvass with Regional Senior Justice Edwards the year in which a lengthy trial might occur. As far as I am aware, liability has not been admitted in any of the actions. A jury would have to hear all of the evidence of liability involving four completely unrelated incidents before even turning their minds to causation and damages. It would make for a complicated, unwieldy trial, the length of which is uncertain.
44This further delay for the 2011 Action, if consolidated, is totally unacceptable and prejudicial to the defendants. Even weighing the arguments of plaintiff’s counsel – the potential for inconsistent findings across actions, potential for under-compensation to the plaintiff if trials are held singly, and the need for a global assessment of causation and damages – these considerations do not outweigh the prejudice caused to the defendants in not allowing them to fix a trial date on April 2nd .
45Leaving Dr. Gerber’s report aside, as there is no basis at this point to consider that it will be admitted, the plaintiff does have an orthopaedic report from Dr. Tajedin Getahun that attempts to “tease apart” the effects of the two slip and fall incidents, although ultimately comes to the conclusion that her injuries are cumulative. Whether tried together or separately, the jury will be instructed that even where there are successive injuries, the proper assessment of damages involves awarding a plaintiff only those damages arising from the injuries caused by the respective tortfeasors: Misko v John Doe, 2007 ONCA 660, at paras 16-18.
46Accordingly, even if leave were granted in this case, and assuming that the “gateway criteria” in R. 6.01 are met, the significant prejudice to the defendants in the 2011 Action that would result from this order would have resulted in me disallowing the motion in any event.
Trial Together of the 2018, 2020 and 2021 Actions
47Leave is not required for the motion in respect of these actions, and the defendants the 2020 and 2021 Actions do not oppose the relief sought.
48Consolidation of the 2020 and 201 Actions will not result in an unmanageably long trial, and the short time period elapsing between the two accidents will make an evaluation of the plaintiff’s injury status more straightforward. The relief claimed does not rise out of the same transaction or occurrence, but both actions have common questions of fact, namely the injuries and level of disability caused by the earlier motor vehicle accident.
49The question is whether the 2018 Action should be included.
50Again, given the medical evidence in the plaintiff’s record supporting the theory that the plaintiff’s injuries are a cumulative result of all four incidents, this court accepts that R.6.01(1)(a) is satisfied. These medical witnesses will be common to the 2018, 2020 and 2021 Actions.
51I have considered the various factors set out by Master Dash in 10104864 Ontario Ltd. v. 1721789 Ontario Inc., 2010 ONSC 3306, at para. 18.
52Again, however, there is no evidence on the length of a combined trial of the three actions. This is a significant evidentiary gap, as it makes it impossible to conclude that the three actions can be heard together within four weeks.
53Again, the 2018 action has entailed considerable, unexplained delay. It was almost dismissed for delay, and saved only by the timetable order imposed by Justice Fraser. It must be set down in 30 days if this motion is dismissed. The motor vehicle accidents are not trial ready, and there is no reassurance given that the plaintiff has served all expert reports that it plans to rely on for the 2020 and 2021 actions.
54While a multiplicity of trials is to be avoided, the defendants should also not have been required to already wait over 7 years before an action is even set down.
55On balance, taking into account the arguments of counsel and the various factors discussed in 10104864 Ontario Ltd., this court declines to order that the 2018 Action be tried with the 2020 and 2021 Actions.
56This court orders, on an unopposed basis, that the 2020 Action and the 2021 Action shall be tried together or one after the other as the trial judge may direct.
Amending the Claim in the 2018 Action
57This court orders that leave is granted for the plaintiff to amend her Notice of Action and Statement of Claim in the form attached as Schedules A and B to the draft order uploaded to Case Center.
58The defendants have not identified any specific non-compensable prejudice that will result from such an amendment although submits in their factum that it would result in further delays and increased costs, without explanation. The plaintiff is still bound by the order of Justice Fraser to file her trial record 30 days from the release of these Reasons; no delay will result.
Costs
59The opposing defendants have been successful on the main issue, which was consolidation. This court orders that each shall be paid costs of this motion by the plaintiff fixed in the amount of $2,500 inclusive and payable in 30 days.
Healey J.
Date: March 31, 2025