SUPREME COURT OF Nova Scotia
Citation: R.C. v. Nova Scotia (Attorney General), 2016 NSSC 299
Date: 20161104
Docket: Halifax, No. 312546
Registry: Truro
Between:
R.C.
Plaintiff
- and -
The Attorney General of Nova Scotia, Representing Her
Majesty the Queen in Right of the Province of Nova
Scotia and Cesar Lalo
Defendants
AND
Docket: Truro, No. 421559
Registry: Truro
Between:
R.C.
Plaintiff
- and -
Tim Hill and Michael Bowers, Personal Representatives
of the Estate of Robert Rees, Deceased and Big Brothers Big Sisters
of Greater Halifax
Defendants
DECISION
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Judge: |
The Honourable Justice Jeffrey R. Hunt |
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Heard: |
September 6, 2016, in Truro, Nova Scotia |
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Final Written |
November 4, 2016 |
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Counsel: |
John T. Rafferty, Q.C., Solicitor for the Plaintiff, R.C. Debbie Brown, Solicitor for the Attorney General of Nova Scotia Christa Brothers, Q.C., Solicitor for the Defendant, Big Brothers Big Sisters of Greater Halifax |
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By the Court:
[1] The Applicant, R.C., seeks an Order directing that two Actions, in which he is the Plaintiff, be tried together.
[2] The two Actions are:
1. R.C. v. Attorney General of Nova Scotia and Cesar Lalo, 2009 Hfx. No. 312546 (hereafter the “NS Action”); and,
2. R.C. v. Robert Rees and Big Brothers Big Sisters of Greater Halifax, 2013 Tru. No. 421559 (hereafter the “BBBS Action”)
[3] The Defendants in the first Action consent to the proposed Order. The Defendants in the second Action do not.
Procedural History
[4] The Plaintiff alleges that while a teen he was sexually abused by Cesar Lalo and Robert Rees. In 2009 he launched a claim against Lalo and the Province. Lalo had been the Plaintiff’s youth probation worker employed by the Province. R.C. had come into the system as a result of truancy issues with school attendance.
[5] Following service of the claim the Province filed a defence on its own behalf. A default judgment respecting liability was later taken against Lalo.
[6] In 2013 an Action was filed by R.C. against Rees and BBBS of Greater Halifax. Rees had been the Plaintiff’s “Big Brother” paired with him through programming conducted by BBBS of Greater Halifax.
[7] Following service of the claim, BBBS filed a defence on its own behalf. A default judgment respecting liability was subsequently taken against the Estate of Rees, who was deceased.
[8] In May, 2013 a Consent Order moved the trial venue in the NS Action from Halifax to Truro. The BBBS Action was always set for Truro.
Present Motion
[9] To be clear, the Plaintiff is not asking for a consolidation of the Actions. Such a request would have been brought under Civil Procedure Rule 37.02.
[10] The present motion proceeds under Civil Procedure Rule 37.03 and seeks that the proceedings be “tried or heard together”.
[11] The parties agree on the legal test to be applied. They differ as to the correct outcome following the application of the test.
[12] Rule 37.03 reads as follows:
A judge may order that proceedings be tried or heard together, or in sequence.
[13] The Rule itself provides no additional direction as to the application of the provision.
[14] The Plaintiff bears the burden of demonstrating that these matters are "inextricably intertwined" and that, on balance, it would be just and convenient in the interests of justice to hear the matters together.
Case Law
[15] Saunders, J., as he then was, writing in Stone v. Raniere, (1992) 117 NSR (2d) 194 (S.C.), identified the factors to be applied on a motion to consolidate or try matters together.
[16] These have been adopted and applied in many subsequent cases.
[17] The factors for consideration are expressed as follows:
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 arisen subsequent to the commencement of the other, and the Action should 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.
[18] In the process of weighing the degree to which two matters are intertwined, and thus appropriate to be heard together, the court will also consider:
“The risk of inconsistent findings/outcomes” to be a “good barometer of whether the proceedings are inextricably intertwined.”
See Jeffrie v. Hendriksen, 2011 NSSC 351(para 55).
[19] The Nova Scotia Court of Appeal has very recently in Healy v. Halifax, 2016 NSCA 47, commented upon the operation of Rule 37.04. The analysis has application in part to Rule 37.03 as well. In Healy the Court discussed the foundational principle for applications under these Rules which is that the Courts must do what is “just” between the parties (para 35). Later in its analysis the Court noted that in weighing what is just and convenient the Court should consider not just how the proposed step impacts on the parties but also how it impacts more broadly on the administration of justice.
[20] The Court noted there is a place in the weighing process for factors such as a consideration of judicial economy and the efficient management of scarce resources (para 38).
Application of Relevant Factors
General Convenience
[21] In the present case we are dealing with a matter in which the Plaintiff has brought an Action alleging sexual abuse which occurred when he was approximately 12 to 14 years old. This dates to the early 1980s.
[22] Both Actions allege what would be termed "historical" sexual abuse. Both sets of alleged abuse occurred in the same time frame – the Plaintiff’s very early adolescence.
[23] It appears clear from the pleadings and submissions that each Defendant will raise issues of causation as these relate to the parties (Lalo/Rees) for whom they allegedly have vicarious liability.
[24] Each side is likely to suggest that if there are damages these are all or mostly traceable to the actions of the other side.
[25] If these defences are pursued in separate proceedings this raises the possibility of inconsistent verdicts as well as duplicative evidence and contradictory evidentiary findings.
[26] The Defendant in the BBBS Action argues that if the two matters are heard together this will result in each Defendant having to sit through evidence which pertains only to the potential liability of the other side.
[27] At the hearing it was identified that liability evidence pertaining to the NS Action may take only one day. This was not seriously challenged in argument. In the context of this entire proceeding this is not a great deal of time. There is no real concern that BBBS will have to endure days upon days of testimony irrelevant to it. Additionally, it should be remembered that the Trial Judge will always retain their ultimate power over trial management.
[28] I am prepared to accept there may be some evidence which will be of lesser relevance to one Defendant as opposed to the other. This can often be the case, however, in any situation involving multiple defendants
[29] In the circumstances of these allegations, which are similar in nature and closely connected in time, it appears likely that each Defendant will have an interest in all issues of causation. Even issues which may relate most directly to one Defendant will have the potential to impact on the others potential degree of causation and liability.
Jury Notice
[30] No Jury notices have been filed. The Province has made it clear that they do not contemplate giving such a notice. BBBS simply says it has not made a decision. Accordingly, I treat this as a neutral factor in the weighing process.
Status of the Two Proceedings
[31] I am satisfied that the two matters, while not at identical stages, could be moved forward together without unreasonable disruption or delay to the schedule.
[32] It is also relevant that the NS Action is the “older” claim which has advanced further. This party is consenting to the order. I am satisfied that adding the “newer” BBBS Action would not materially prejudice BBBS from a delay perspective.
Duplicative Proceedings
[33] Aside from the risk of inconsistent judgments, is there a place in the analysis for weighing the impact on R.C. of having to participate in two separate proceedings rather than one?
[34] Default judgments have been issued by the Supreme Court against Lalo and Rees. R.C. is now presumed in law to be a survivor of childhood sexual abuse. The court will be assessing damages against them on this basis.
[35] Is there a role for weighing his survivor status when we consider the steps he will have to go through to reach the end of this litigation?
[36] I conclude there is and it is found within the existing appellate direction to weigh what is “just” between parties and appropriate in the interests of the administration of justice.
[37] If other elements of the analysis operated strongly against hearing the matters together then this consideration on its own would not overcome all the other factors. Where other factors also weigh in favour of the order sought – this consideration can serve to support the conclusion.
[38] Justice Bourgeois in Healy noted that in conducting this exercise the court can look beyond the pure convenience of the parties and weigh generally the interests of justice. She wrote:
[para 38] Clearly, the thread weaving its way through the above comments is the concept of what is just and convenient. This should not be confined, however, to what is just and convenient to the parties themselves, but also more broadly to the administration of justice. (emphasis added)
[39] On balance these factors weigh in favour of hearing the matters together.
Arguments of the Defendant, BBBS
[40] I want to address the three main arguments raised by BBBS in its Brief. They first say the allegations of sexual assault and battery are different between the two Actions. Clearly there are different Defendants and different occasions of abuse. There are, however, notable parallels between the situations. The perpetrators were both authority figures who within the same historical time frame committed acts of sexual touching and abuse on the Plaintiff. Issues of causation will be prominent in each instance as both sides argue and point to other potential causes and factors which may have led or contributed to the difficulties experienced by the Plaintiff. They will also presumably argue other issues of damages and mitigation as well.
[41] Secondly, BBBS says that the Plaintiff's plan to present similar evidence on damages in both Actions should not be weighed heavily in favour of hearing the matters together. They note that each Defendant has the right to present distinct and separate evidence on damages. This is clearly true. I do note that the expert report of the Defendant in the NS Action does make reference to the Rees abuse. The Plaintiff, if successful in this Motion, will have to accept the fact that he will have two Defendants attacking his case on damages in one hearing. By bringing this motion it is clear this is a circumstance he is prepared to accept.
[42] Thirdly, BBBS says it would be prejudicial to have its matter tried together with the NS Action which involves the “notorious” Cesar Lalo. They assert their interests will be damaged by this association.
[43] I am satisfied that the trial judge will be able to deal with the ramifications of hearing these two matters together. It might even be argued that having Cesar Lalo as a figure in the proceeding could serve to draw fire away from the unknown Robert Rees.
Conclusion
[44] After weighing all the relevant factors and considering the arguments of the parties, I have concluded that the Applicant has carried his burden of demonstrating that the matters ought to be heard together in the interests of justice. As was noted at the hearing, even given this Order there may still be trial management questions open for future determination.
[45] If for instance the Province was to formally admit liability (the possibility of which was openly discussed at the hearing) this could raise trial management issues. It was suggested that in such a scenario the determination of BBBS liability might proceed before a concurrent hearing on damages. These are management issues best left to the trial judge or other pre-trial determination.
[46] If the parties cannot reach agreement with respect to costs, I invite them to make written submissions within 30 days.
Justice Jeffrey R. Hunt
11/04/16-ar