Citation: Comeau v. Ballam Insurance Services Ltd., 2010 NSSC 404
Date: 20101103
Docket: Hfx. No. 322874
Registry: Halifax
Between:
Brian Comeau and Tammy MacKay
Plaintiff
- and -
Ballam Insurance Services Limited and Derek Flight
Defendant
AND
Date: 20101003
Docket: Hfx. No. 304948
Registry: Halifax
Between:
Brian Comeau and Tammy MacKay
Plaintiff
- and -
Nova Oil Tanks Limited and Ron Armstrong
Defendant
D E C I S I O N
Judge: The Honourable Justice Suzanne M. Hood
Heard: November 3, 2010 in Halifax, Nova Scotia
Written Decision: November 30, 2010 (written release of Oral Decision of Nov. 3, 2010)
Counsel: Colin Bryson, Q.C. for the Plaintiffs
Gavin Giles, Q.C. for the Defendants (Ballam Insurance Services et al)
Michael E. Dunphy, Q.C. for the Defendants (Nova Oil Tanks Limited
et al)
By the Court:
[1] This is a motion by the plaintiffs to have what I would call “partial consolidation” of two actions, that is, the damages portions of two actions. This is a motion made pursuant to Rules 37.03 and 37.04 which are new to the 2009 Civil Procedure Rules.
Proceedings to be tried or heard together
37.03 A judge may order that proceedings be tried or heard together, or in sequence.
Issues to be tried or heard together
37.04 (1) A judge may order common issues in two or more proceedings be tried, or
heard, together.
(2) The judge who orders the trial, or hearing, together of common issues may provide times for the trial, or hearing, of the issues that are to be tried, or heard, separately.
[2] The Nova Oil action was commenced in December 2008 and it is set for eight days in mid January of next year. The Ballam action was commenced on January 15, 2010 and the pleadings closed on February 4. There is no case law with respect to Rules 37.03 and 37.04. What counsel has done, and what I am going to do, is look at the law with respect to consolidation under the 1972 Civil Procedure Rules.
[3] The case most often cited is Stone v. Raniere and Stone v. Confederation Life Insurance Company (1992), 117 N.S.R. (2d) 194 (T.D.) [also cited as [1992] N.S.J. No. 458 in slightly different words]. In that case, Saunders, J. (as he then was) referred to the principles set out in Re Hillcrest Housing Limited et al (1986), 56 Nfld. and P.E.I.R. 237 (P.E.I.S.C.). Prince Edward Island had a Rule which was identical to our previous Rule. Justice Saunders said in para. 9 of Stone v. Raniere:
While on its face, there may be some merit to the argument that judicial economy would invite a consolidation of cases where the medical experts were common to each case, there is much more to an application for consolidation than that. I must consider all of the circumstances and all of the issues raised by the parties in their pleadings and decide whether it would be just and appropriate to combine the proceedings. Having done so, I am convinced there are cogent reasons for refusing consolidation.
[4] He referred to the factors that were set out in Hillcrest Housing:
(1) the general convenience and expense;
(2) whether a jury notice is involved;
(3) how far the actions have progressed;
(4) whether the plaintiffs have separate solicitors;
(5) actions should not be consolidated where matters relevant in one action have risen subsequent to the commencement of the other, and the actions have proceeded to a considerable extent; and
(6) where consolidation is otherwise proper, the fact that on discovery questions would be unobjectionable in one action which might be privileged in the other action is not a sufficient reason for refusing an order consolidating the actions.
He continued in para. 12:
12 ... I am satisfied that the so-called tort action S.H. No. 68798 is virtually ready for trial. The Confederation action, S.H. No. 32677 (sic) is at its infancy.
[5] In my view, the Ballam matter is far less ready for trial. If the matters were joined with respect to damages, there is material which counsel for Ballam would have to quickly review, possibly conduct discoveries and prepare for trial, a trial which is only 8 to 9 weeks away. In my view, therefore, Ballam is not ready for trial on the damages only issue. That leads to a consideration of the general convenience and expense. Although the matter has been discussed for months, the defendants have made it clear that they are opposed to partial consolidation and, accordingly, the counsel for Ballam would not have been preparing for a January trial and would not begin to do so unless this motion were granted.
[6] Counsel for the plaintiffs has said in this case that his clients are concerned that, if the result of this motion would be that the January trial dates would be adjourned, he would not make the motion and he would ask me to not consider it. The issue really revolves around those January trial dates. Counsel for Ballam has, not surprisingly, other commitments between now and January 17. Both counsel on the Nova Oil matter have known since December 2009, almost a year ago at the date assignment conference, that the trial is in mid-January 2011. Of course, one of the difficulties for everyone, the court, the parties and counsel, in setting trial dates is counsel availability. One would not expect, if the date assignment conference were held today for a matter unrelated to this one, that anyone would seriously expect that counsel would be ready and available for a trial in January 2011.
[7] In my view, the court should not force any counsel to abandon other matters for other clients to meet a trial date. In particular, it is not fair to the Ballam client to expect its counsel to hurry his trial preparation. In my view, there is little to be saved in expense for the plaintiffs. They would have to testify with respect to the liability issue in the liability trial against Ballam in any event. As an additional point, if their action against Nova Oil is successful, as Mr. Giles has pointed out, there might well be little left of the claim against Ballam in any event. The result would be that, even if the damages claims were heard together, it would not mean that there is no need for a trial in the Ballam matter at all. The Judicature Act, R.S., c. 240 in s. 41(g), urges avoidance of multiplicity of proceedings, but that will not be the case here. There would still have to be a liability trial in the Ballam matter, even if consolidation is granted with respect to damages.
[8] There is some merit to consolidation but I conclude the factors against it outweigh the factors in favour. In my view, it is not just and appropriate to consolidate the damages issues. It is possible that the motion could be brought again if, for some reason, the January trial dates are lost. I am not saying that it would be granted, but it could put matters in a different light. That is not an issue for me today. Therefore, on the basis of these submissions and the material presented to me today, the motion is dismissed. I would ask counsel to speak to costs.
[9] Costs awarded in the amount of $1,000.00 to each party payable forthwith in any event of the cause.
Hood, J.