– Robichaud v. Paquette, 2013 NBQB 287.
Two motions were heard by the court in relation to separate proceedings involving the same plaintiff following two motor vehicle accidents.
In the first motion, a defendant in one of the actions, Dominion, sought an extension of time to commence a third party claim pursuant to Rule 30.02(1) of the Rules of Court. In that action, the plaintiff was involved in a motor vehicle accident (MVA) in June of 2010 and commenced an action against Hicks and Dominion. In Hicks’ defence, he stated that the driver of his vehicle was Thadzi. Dominion sought to commence a third party claim against Thadzi. Rule 30.02 requires that a third party claim be issued within 10 days after the time for filing/serving the defence in the main action and then served within 30 days of issuance. However, the court may order an extension of the time limit if it is satisfied that the plaintiff would not be unduly prejudiced.
Dominion claimed that it would have a subrogated claim against Thadzi if the accident occurred as alleged by the plaintiff and it was liable to pay damages pursuant to the insurance policy. Upon reviewing the evidence, Justice McNally was satisfied that Thadzi may be liable for any amount that the defendant would be required to pay the plaintiff pursuant to its insurance policy and that he should be bound by any liability and resulting damages. Justice McNally also noted that the plaintiff did not oppose the motion and did not assert that she would be unduly prejudiced by such an order. As such, he allowed the motion and ordered that Dominion file the third party claim within 10 days and serve it within 30 days.
With respect to the second motion, the plaintiff applied to consolidate the two separate actions. The first action was commenced in December of 2006 in relation to an MVA that occurred in January 2005 between the plaintiff and a vehicle owned by the Town of Rothesay, which was operated Paquette. The second action was commenced in June of 2012 in relation to the MVA that occurred in June 2010 between the plaintiff, Hicks and Dominion. The plaintiff claimed that the two actions had a question of common law or fact and sought an order to have them heard at the same time or alternatively one immediately after another. The defendants opposed the motion, as the trial of the first action had been scheduled to be heard over a year earlier, but had been rescheduled by the court.
Justice McNally found that the only common element between the two actions was that the plaintiff allegedly suffered injuries as a result of the accidents, which were five and a half years apart, and was treated by some of the same doctors, whom would likely have to testify at both trials. Justice McNally considered the possibility of any undue delay, and found that, if the requested order were granted, the trial of the first accident would have to be adjourned because the second action had not been set down for trial. Further, a new trial date would likely not be available within a year since the trial was scheduled for a month. Lastly, Justice McNally discussed the possible impact of the requested order with respect to the availability of the witnesses and their memories of events. Based on the foregoing, he concluded that the requested order would unduly delay the trial of the first action for no valid reason. As a result, the plaintiff’s motion was denied.
