Kirby v. Dominion of Canada General Insurance Company

Kirby v. Dominion of Canada General Insurance Company Court Court of Appeal Date 2008-02-13 Citation 2008 NSCA 14 Docket CA 284475 Judge/Registrar/Adjudicator Fichaud, Joel E. (Honourable Justice) (CA); Saunders, Jamie W. S. (Honourable Justice) (CA); Oland, Linda L. (Honourable Justice) Document Type Decision Relations Library Sheet - Kirby v. Dominion of Canada General Insurance Company - 2008 NSCA 14 - 2008-02-13 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Kirby v. Dominion of Canada General Insurance Company, 2008 NSCA 14 Date: 20080213 Docket: CA 284475 Registry: Halifax Between: Brenda Jessie Kirby Appellant v. The Dominion of Canada General Insurance Company, a body corporate, and Mark Robert Strickland Respondent Judges: Saunders, Oland & Fichaud, JJ.A. Appeal Heard: February 5, 2008, in Halifax, Nova Scotia Written Judgment: February 13, 2008 Held: Leave to adduce fresh evidence is refused, and the appeal is dismissed, with costs of $1,000 to the respondent, inclusive of disbursements, per reasons for judgment of Saunders, J.A.; Oland & Fichaud, JJ.A. concurring Counsel: David W. Richey, for the appellant Philip Chapman, for the respondent Nancy I. Murray, Q.C., for Mark Robert Strickland, in S.H. No. 177534, not appearing Reasons for judgment: [1] At the close of argument we recessed and then returned to advise the parties of our unanimous view that leave to adduce fresh evidence was refused, and the appeal was dismissed, with reasons to follow. These are our reasons. [2] The matter came before us as an appeal from the Chambers decision of Chief Justice Kennedy. He had allowed an application brought by The Dominion of Canada General Insurance Company to sever the contractual claim brought against it, which the appellant Ms. Kirby had added to a personal injury claim against a motorist. [3] In seeking to set aside the decision and the order confirming it, the appellant’s principal submissions were that the judgment was “contrary to the weight of judicial authority” and failed to properly address the prejudice granting such a motion would cause the parties involved. [4] The material facts are not in dispute. The appellant, Ms. Kirby, says that on Sunday, February 27, 2000 she was struck by a motor vehicle owned and operated by the respondent Mr. Strickland. Her husband took her to hospital where she was assessed and had follow-up treatments from various health care professionals for her injuries. [5] The appellant was an employee of the Bank of Montreal. She continued to work under a modified program until 2004 when she negotiated a severance package. [6] She claimed no fault benefits from Dominion, the automobile insurers of the respondent Mr. Strickland. [7] In her amended statement of claim Ms. Kirby sued both Mr. Strickland for negligence in causing her injuries (the Section A claim) and Dominion for punitive or exemplary damages in failing to treat her with utmost good faith “as an un-named insured within the meaning of the Insurance Act, and the Standard Automobile Policy for Nova Scotia . . .” (the Section B claim). [8] Dominion filed an interlocutory application to sever the two claims. The application was heard by Chief Justice Kennedy in special Chambers on July 17, 2007. He granted Dominion’s motion, ordered that the Section B claim be severed from the Section A claim and reassigned a new court number, with costs of $500 to Dominion, payable forthwith. Ms. Kirby now appeals that decision. [9] In earlier communications with counsel retained by Mr. Strickland in his defence of the Section A claim, we agreed with her request that she not be required to file written submissions or attend at the hearing. Analysis [10] As is our practice, after hearing counsels’ initial arguments on the application to introduce fresh evidence we reserved, and then heard the parties’ submissions on the merits so that we would have the opportunity to consider the question of fresh evidence and be able to decide realistically whether the proffered evidence could reasonably have been expected to affect the result of the case. R. v. Nielsen (1988), 82 N.R. 280 (S.C.C.); Thies v. Thies (1992), 110 N.S.R. (2d) 177 (NSCA); C.P. v. D.S., 2008 NSCA 10. [11] The test for admission of fresh evidence on appeal is well known. R. v. Palmer (1979), 30 N.R. 181 (S.C.C.); Irving v. Irving (1997), 164 N.S.R. (2d) 330 (C.A.). Of the four threshold questions, only two are relevant here: . . . (2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; . . . (4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [12] For the reasons that follow we were not persuaded that the evidence sought to be introduced by the appellant was in any way relevant to the issues, or that it could reasonably be expected to have affected his conclusion that these two claims ought to be severed. [13] The proffered “fresh evidence” consists primarily of transmittal letters among counsel and extracts from a discovery examination of the appellant and her husband held November 14-15, 2007 when they were questioned by the two counsel representing Dominion in its defence of the Section A and Section B claims. [14] The appellant makes three arguments. First, she says these excerpts from the discovery transcript show that counsel defending Dominion on the Section B claim pursued a scope of inquiry which was much more far ranging than the limited number of issues identified in the representations they made to Chief Justice Kennedy in Chambers. This revelation – so the appellant now contends – dispels the “assumptions regarding delay” relied upon by the Chambers judge when granting the severance motion. Second, the transcript shows that counsel for the two defendants asked similar questions, thus establishing a commonality of interest. The appellant’s third argument is that the judge erred in failing to apply a decision of a colleague of his court which the appellant says is “virtually indistinguishable” from this case. [15] We reject the appellant’s submissions. CPR 5.02 outlines the circumstances in which matters can be joined: (1) Subject to rule 5.03, two or more persons may be joined together in one proceeding as plaintiffs or defendants where, (a) if separate proceedings were brought by or against each of them, some common question of law or fact would arise in all the proceedings, and (b) all rights to relief claimed in the proceeding, whether they are joint, several or alternative, are in respect of or arise out of the same transaction or series of transactions; or (c) the court grants leave to do so. [16] The essential question under Rule 5.02 is whether there is a sufficient commonality in the causes of action to warrant a joinder of the claims to do justice between the parties. If not, the claims should be tried separately. Stone v. Ramiere (1992), 117 N.S.R. (2d) 194 (NSSC). [17] Severance is the flip-side of consolidation. The same considerations arise whenever a Chambers judge is faced with such an application. Civil Procedure Rule 5.03 (1) reads: Where a joinder of causes of actions or parties in a proceeding may embarrass or delay the trial or hearing of the proceeding or is otherwise inconvenient, the court may order separate trials or hearings, or make such other order as is just. The application to sever called for the exercise of discretion. Our role sitting on appeal in a case such as this is limited. We will not interfere with an interlocutory, discretionary order unless wrong principles of law were applied or a patent injustice would result. Exco Corp. v. Nova Scotia Savings & Loan Company et al (1983), 59 N.S.R. (2d) 331; Eikelenboom (c.o.b. Eiklyn Farms) v. Holstein Assn. of Canada, [2004] NSCA 103; Huntley (Litigation guardian of) v. Larkin, [2007] NSCA 274. [18] Kennedy, C.J.S.C. did not apply wrong principles of law, nor did an injustice arise when he ordered that Ms. Kirby’s contractual claim against Dominion be severed from her tort claim against Mr. Strickland. [19] The court’s discretion to sever claims under Rule 5.03(1) is broad and can be adapted to the particular circumstances of the case. If it makes sense to sever claims to prevent injustice, inconvenience, delay or embarrassment, the court has the discretion to do so. The judicial exercise of that discretion comes down to this: applying proper legal principles the judge must weigh all of the circumstances involved and determine a course of action that will best attain the object of the Rules which is to secure the just, speedy and inexpensive determination of every proceeding. [20] Ms. Kirby has advanced two claims, one in tort and the other in contract. In the tort claim brought against Mr. Strickland she has alleged extensive injuries as a result of the accident in question including neck pain, upper back pain, thoracic strain, lumbar strain, right leg pain and trochanter bursitis. She says these injuries have affected her earning capacity, her ability to perform household chores, her ability to participate fully in family life, and to have normal marital relations. She is seeking damages for pecuniary and non-pecuniary losses. Mr. Strickland’s statement of defence denies liability. He also alleges that Ms. Kirby suffered from pre-existing conditions and failed to properly mitigate her damages. [21] Given the extent of Ms. Kirby’s alleged injuries, the numerous issues in dispute, and the age of this claim (eight years post-accident) it is reasonable to conclude that the tort claim will be a long drawn out affair. [22] Ms. Kirby’s Section B claim against Dominion is very different. She is suing Mr. Strickland under his Standard Automobile Policy, claiming entitlement to Section B benefits as an unnamed Insured under 1(c) of the special provisions of his contract. The record and counsels’ representations make it clear that there is less than $15,000 in issue on the Section B claim. Dominion has already paid out approximately $8,000 to Ms. Kirby. Under the terms of the policy there is a cap of $25,000 for such benefits and the entire dispute between the two parties to the Section B litigation concerns the meaning to be attributed to a provision in the contract, and whether that binds Dominion to pay no-fault benefits beyond the 4 year post-accident period stipulated in s-s 1(1) of the policy. As counsel acknowledged, Ms. Kirby is expected to recover these monies - once proved as specials - as either no-fault benefits from the Section B insurer (provided entitlement is found to accrue under the contract) or, if not, then the Section A insurer. Liability for the accident and most of the damages issues in dispute in the tort claim are irrelevant to the Section B claim. [23] All of these important considerations were addressed by Kennedy, C.J.S.C. on the application. He acknowledged that there was some limited commonality between Ms. Kirby’s two claims, as the same doctors may have to give evidence regarding her treatment on both matters. The operative parts of his decision are not lengthy and I will reproduce them here: . . . I’ve taken a look at that case law cited in relation to how to apply, how the Court should apply those Rules, and the one thing that I am perfectly satisfied that comes out of that case law is that these findings are case specific . . . Those Judges looked at the situations that they had before them, and they tried to determine what was best for the process of Justice in each of those situations. I have to do likewise. Kirby versus Strickland, for whatever reasons . . . is seven years old. It’s a slow boat to China. Mr. Chapman doesn’t want to get on that boat. Frankly, I don’t blame him. . . . the addition of the Section B insurer in this specific (sic) will only add to the weight carried by that slow boat . . . I, I’m not saying that there is not some commonality between the two matters. There is. It’s not significant, but there is some commonality. It is quite possible that the same doctors will give evidence that goes to both of the issues . . . that’s possible, and that’s something that I have to consider, and I do consider that. On the other hand, I have to consider the limited commonality that exists in relation to these two Defendants, and how we can best get through both of these matters to the benefit of all parties, including Ms. Kirby. . . . I am, on the basis of the totality of the information before me, finding that the addition of the Section B insurer to the original action, Kirby versus Strickland, will delay that process, will delay that trial. Certainly, it’s not going to make it proceed any quicker. I - given the circumstances before me, given the fact that the accident took place November the 27th, 2000, I am satisfied, when I consider the convenience of the matter, and what I have suggested is a just outcome, that the better procedure is to have severance, to have Kirby versus Strickland continue on its way, hopefully aided by whatever we can accomplish today, and have Kirby versus Dominion of Canada General Insurance Company be tried as a separate matter that will not, in any way, and thereby encumber the process of Kirby versus Strickland, and will allow for the possibility of Kirby versus Dominion to proceed more quickly. So it will be, I think, to the benefit of both of these proceedings if they are severed, and pursuant to Rule 5.03, that’s what I intend to do - sign an Order to that effect. [24] We are satisfied that Kennedy, C.J.S.C. applied proper legal principles in severing the two claims, and that by doing so no injustice occurred. His reasons make it clear that he considered severance would best serve the appellant’s own interests by moving her litigation forward more expeditiously. [25] The accident said to give rise to the claim occurred on February 27, 2000, almost eight years ago. There is nothing in the record before us to explain the remarkable delay in bringing this matter forward to be decided on its merits. What caused the mishap, what damages flowed, and where liability ought to lie, seem to us to be the three principal and relatively straight forward questions that require determination. [26] It is hardly surprising that counsel for Dominion would explore the issues she did during her questioning of Mr. and Mrs. Kirby at discovery. Such inquiries were certainly relevant to their defence of the Section B claim. Simply because there is some overlap in the approach taken by counsel during their questioning of the claimant in no way suggests that Dominion ought to have its defence of the contractual claim slowed down by, and tied up with, the protracted litigation involving the appellant’s Section A claim against Mr. Strickland. The interpretation of certain policy provisions, the necessary pre-conditions for payment of no-fault benefits, and the potential limitation defence barring recovery of such expenses are the principal questions in the Section B claim, yet distinct from the myriad of issues that arise in the Section A claim. [27] None of the proffered “fresh evidence” affects these factual and legal differences or the importance placed upon those considerations by the Chambers judge in severing the two claims. The fact that the outcome here is “different” than that reached by another judge in another case identified by counsel during argument in Chambers as Martin v. Stewart [2001] N.S.J. No. 413 and which appellant’s counsel urged “was practically indistinguishable” is irrelevant to our consideration of this appeal. The Chambers judge did not even refer to Martin, supra, in his decision. He emphasised (as have we) that each case is factually driven, and in any event he went on to apply proper legal principles to the specific circumstances and issues that arose in the motion he was asked to decide. These are the types of assessments busy trial judges are obliged to conduct every day. Absent legal error or obvious injustice we will not second guess those decisions. [28] In conclusion, we deny leave to adduce fresh evidence. The proffered material is not relevant, and even if it were it could not reasonably be expected to have affected the Chambers judge’s decision. [29] Having considered all of the appellant’s submissions there is no reason to intervene. Correct principles of law were applied and no obvious injustice arose. It was Dominion’s motion to sever. The insurer had to make the case that while different causes of action may be joined in the same proceeding (Rule 5.01) these two matters ought to be tried separately. The Chief Justice was satisfied, on proper grounds, that Dominion had met its burden. His principal concern was that the joint trial of these two actions would unfairly delay the administration of justice to the detriment of all parties, including Ms. Kirby. Eight years have passed since the accident, and six years since the action began against Strickland. We were informed at the hearing that Mr. Strickland has yet to be discovered. The new action against Dominion involved pleaded limitation issues, to be litigated before that matter may be adjudicated. We ascribe no fault to any party for the delay. But we concur with the Chief Justice that, in the circumstances here, the avoidance of further delay in the adjudication of the Strickland claim, that would be caused by the joinder of the Dominion claim, is a pertinent factor. The Chief Justice made no error in law and his ruling causes no patent injustice. In these circumstances, as Kennedy, C.J.S.C. found, it would not be just to either party to oblige Dominion to participate in an anticipated 2 - 3 week personal injury trial and its attendant pre-trial activities. Recalling our observations in ¶ 25, supra, we would hope that this litigation might now proceed with dispatch in the interests of all concerned. [30] The appeal is dismissed with $1,000 costs to the respondent, inclusive of disbursements. Saunders, J.A. Concurred in: Oland, J.A. Fichaud, J.A.