MacDonald v McPhee, 2022 NSSC 39

SUPREME COURT OF Nova Scotia Citation: MacDonald v McPhee , 2022 NSSC 39 Date: 2022-02-03 Docket: Ken. No. 499932 Hfx. No. 336117 Registry: Kentville, Halifax Between: James Todd MacDonald Plaintiff v. Harvey McPhee Defendant and James Todd MacDonald Plaintiff v. Joseph Westhaver Defendant Judge: The Honourable Justice Gail L.

Gatchalian Heard: February 2, 2022 in Kentville Nova Scotia, Counsel: Lauren Harper, for the Plaintiff Jason Cooke and Ashley Hamp-Gonsalves, for the Defendant Harvey McPhee Jocelyn Campbell and Kelsey White, for the Defendant Joseph Westhaver BY THE COURT: Introduction [ 1 ] On September 18, 2008, Dr. Joseph Westhaver, a dentist, performed a root canal on James Todd MacDonald. Mr. MacDonald claims that he suffered significant adverse health consequences as a result of Dr. Westhaver’s negligent dental care. Mr. MacDonald retained lawyer Harvey McPhee, Q.C. They commenced an action against Dr.

Westhaver on September 16, 2010. Almost ten years later, on August 19, 2020, Mr. MacDonald sued Mr. McPhee for alleged negligent legal representation. Mr. McPhee wants to consolidate the

two actions. Dr. Westhaver opposes consolidation. Mr. MacDonald takes no position. [2] Mr. McPhee’s primary argument in favour of consolidation is that common questions of law and fact arise in both proceedings. [1] Dr. Westhaver’s position is that consolidation is not appropriate because: (

a) the actions are at different stages; (

b) the actions involve different transactions and facts; (

c) a consolidated proceeding would be lengthier, more costly and cause further unwarranted delay; and (

d) the action against Dr. Westhaver will be tried by a jury. [2] Subsection 41(

g) of the Judicature Act, R.S.N.S. 1989, c. 240 provides general direction that the court should try to avoid amultiplicity of legal proceedings. [3] Civil Procedure Rule 37.02 states that a judge may order consolidation if the proceedings are of the same kind (e.g. both areactions) and if one of the following additional conditions is satisfied (I have omitted the condition that only applies to judicial reviewsand appeals): (

a) a common question of law or fact arises in the proceedings; (

b) claims, grounds or defences in the actions or applications involve the same transaction, occurrence, or series of transactions oroccurrences; and (

c) consolidation is, otherwise, in the interests of the parties. [4] The court considers other factors in determining whether to combine proceedings, including: (1) how far the actions have progressed; (2) the general convenience and expense; (3) whether a jury notice is involved; (4) whether the plaintiffs have separate solicitors; and (5) actions should not be consolidated where matters in one action have arisen subsequent to the commencement of the other, and theactions have proceeded to a considerable extent. Stone v.

Raniere, (NS SC), 1992 CarswellNS 219 (NSSC) at para.10 [5] The overarching consideration is what is just and convenient to the parties and to the administration of justice: Healy v. Halifax(Regional Municipality), 2016 NSCA 47 at paras.35 and 38. [6] In order to determine whether I should consolidate the actions, I will consider: (

a) how far each action has progressed; (

b) whether there are common questions of law or fact in the two actions; (

c) whether consolidation will be more convenient or whether it will cause delay and more expense; (

d) the implications of the action against Dr. Westhaver being a jury trial; and (

e) overall, whether consolidation would be a just result. How Far Has Each Action Progressed? [7] The action against Dr. Westhaver concerns events that occurred more than thirteen years ago. The litigation has been going onfor over eleven years. The bulk of documentary disclosure between Mr. MacDonald and Dr. Westhaver was complete as of August of2012. Discovery of Mr. MacDonald and his wife was completed in May of 2015. Discovery of Dr. Westhaver took place in January of2016. A Date Assignment Conference took place on January 15, 2021.

A fourteen-day jury trial is scheduled for April 17 to May 9,2023, with a Finish Date of January 6, 2023. Expert reports are due this July. [8] In the action against Mr. McPhee, the pleadings have only recently closed. Mr. McPhee filed a Notice of Defence onDecember 7, 2021. [9] The actions are at vastly different stages. This factor militates against consolidation. See Best v. Pontius, 2008 NSSC 404 atpara.33, aff’d 2009 NSCA 39 and Stone v. Raniere at para.12.

Are There Common Questions of Law or Fact? [ 10 ] The issue in the action against Dr. Westhaver will be whether Dr. Westhaver met the requisite standard of care in his treatment of Mr. MacDonald on September 18, 2008 in Sydney Mines, Nova Scotia. [ 11 ] Shortly after the root canal, Mr. MacDonald travelled to Fort McMurray, Alberta to work as a pipe fitter on an oil sands facility operated by Canadian Natural Resources Limited. On September 28 and 29, 2008, Mr. MacDonald attended a health centre in Fort McMurray.

The health centre was owned by Canadian Natural Resources Limited and operated by International SOS Canada Company. When he was at the health centre on September 29, 2008, Mr. MacDonald suffered a seizure, was transferred to a hospital in Alberta, underwent brain surgery, and then returned to Nova Scotia for hospitalization and treatment. [ 12 ] On September 16, 2015, when Mr. MacDonald was still represented by Mr. McPhee, he filed an Amended Notice of Action and Amended Statement of Claim naming Canadian Natural Resources Limited and International SOS Canada Company as Defendants. On August 10, 2017, Mr.

MacDonald discharged Mr. McPhee. In August of 2019, Canadian Natural Resources Limited and International SOS Canada Company moved for

summary judgment, alleging that the claims were untimely. The Honourable Justice Ann E. Smith granted

summary judgment against Mr. MacDonald in a decision dated February 20, 2020. [ 13 ] On August 19, 2020, Mr. MacDonald started the action against Mr. McPhee, claiming that Mr. McPhee was negligent in failing to bring the claims against the Canadian Natural Resources Limited and International SOS Canada Company within the applicable limitation period. [ 14 ] The issue in the action against Mr. McPhee will be whether Mr. McPhee met his standard of care (counsel for Mr. McPhee says that breach of the standard of care will be admitted by Mr.

McPhee), and if not, whether the claims against Canadian Natural Resources Limited and International SOS Canada Company would have succeeded had they been filed on time, i.e. whether Canadian Natural Resources Limited and International SOS Canada Company met their standard of care. These issues are irrelevant to Mr. MacDonald’s claim against Dr. Westhaver. As well, Mr. McPhee acknowledges that the question of whether Dr. Westhaver met his standard of care is irrelevant to Mr. MacDonald’s action against Mr. McPhee. [ 15 ] There will likely be some evidentiary overlap between the two actions with respect to Mr.

MacDonald’s pre-existing health and Mr. MacDonald’s claim for damages. Mr. McPhee says that Dr. Westhaver’s care will also be relevant to the issue of causation in the action against Mr. McPhee. In my view, despite this likely evidentiary overlap, the overall degree of commonality between the two actions is not significant. This factor militates against consolidation. See Wiswell-Wheatley v. Karsch , 2019 NSSC 82 at para.99. Will Consolidation be Convenient or Will It Cause Delay and Expense? [ 16 ] In order to preserve the trial dates in the action against Dr. Westhaver, the parties to the action against Mr.

McPhee would have to complete disclosure, discoveries and the exchange of any expert reports within the next five months, as the expert reports in the action against Dr. Westhaver are due in July, six months before the Finish Date. While Mr. McPhee acknowledges that this would be ambitious, he is hopeful that these steps can be completed within that timeline. I believe it is very unlikely that the parties to the action against Mr. McPhee can meet this timeline. [ 17 ] Mr. McPhee estimates that consolidation will require perhaps four additional days of trial. Given that the trial dates in the action against Dr.

Westhaver were obtained one year ago, and involve a jury, I think it is very likely that the requirement for additional days will require an adjournment of the scheduled trial dates. Again, given that the trial dates were obtained one year ago and involve a jury, in my view, it is very likely that the parties will have to wait some time for new trial dates. [ 18 ] If the actions are consolidated, Dr. Westhaver and his counsel will have to sit through evidence and argument regarding the allegations of negligence against Mr. McPhee (although Mr.

McPhee says that he admits breaching the standard of care) and the allegations of negligence against Canadian Natural Resources Limited and International SOS Canada Company, issues that are irrelevant to the action against Dr. Westhaver. This will cause him additional unwarranted expense. [ 19 ] Consolidation will lengthen the trial, will likely delay the trial dates, and will cause additional expense to Dr. Westhaver. These factors weigh against consolidation. Jury Trial [ 20 ] The action against Dr. Westhaver will be tried by a jury. Mr. MacDonald does not have to decide whether to have his action against Mr.

McPhee tried by a judge alone or by a jury until the request for a Date Assignment Conference. That will not happen for some time. This creates some uncertainty about the advisability of consolidating the two actions at this time. This factor weighs against consolidation. Would Consolidation be Just? [ 21 ] Having carefully considered the circumstances as a whole, it is my conclusion that consolidation would not be just and convenient to the parties or to the administration of justice in this case for the following reasons:

(1) The action against Dr. Westhaver is virtually ready for trial, whereas the action against Mr. McPhee is in its infancy.

(2) While there will be some overlap in the evidence, that overlap is outweighed by the issues and facts that are unique to each case.

(3) Consolidation will very likely require an adjournment of the scheduled trial dates in the action against Dr. Westhaver, will lengthen the trial, and cause Dr. Westhaver additional expense.

(4) The action against Dr. Westhaver will be heard by a jury. We will not know for some time whether the action against Mr. McPhee will be heard by a jury. [ 22 ] I am especially concerned about the impact of further delay on the claim against Dr. Westhaver. If the trial proceeds on the scheduled dates in the spring of 2023, it will have been over fourteen years since the root canal and over twelve years since the claim was filed. Consolidation will likely add to what is already a very lengthy delay in getting that matter to trial. In my view, the prejudice to Dr.

Westhaver and to the administration of justice caused by further delay outweighs any trial economy that would be achieved by consolidation. On the facts of this case, it would not, in my view, be just and convenient to Dr. Westhaver or to the administration of justice to consolidate the actions. Conclusion [ 23 ] The motion of Mr. McPhee to consolidate the actions is dismissed, with costs in the amount of $1000 payable to Dr. Westhaver by Mr. McPhee forthwith. Gatchalian, J.