Ontario Civil


Civil Procedure

SEVERANCE
Master erred in severing sexual assault claims

Plaintiffs were sisters who claimed that defendant, their uncle, sexually assaulted them when they were children, several decades ago. Defendant denied allegations. On defendant’s motion, master severed claims into separation actions. Plaintiffs appealed. Appeal allowed. Claims were of historic sexual assault that were alleged to have occurred during same time frame in same house. Claims were not identical but there would be common witnesses and common issues. Allegations of sexual assault committed against siblings by same person in same place during same general period of time might fit within category of series of occurrences within meaning of R. 5.01(a) of Rules of Civil Procedure. Based on facts alleged in statement of claim, close temporal and spatial nexus and identical familial circumstances, allegations fit within R. 5.02(a). There were factual issues in common. It would increase costs and burdens for parties and for administration of justice to have two actions. Separate trials would force plaintiffs to relive experiences another time. Joinder reduced repetition of testimony, shortened process and shielded plaintiffs from pain and stress of unnecessary repetition of testimony. Concern over tailoring of evidence was best left to parties to manage and to trier of fact to assess but it was not basis for ordering severance. It was preferable to leave issue of severance to trial judge.

Anderson v. Haroun (Sep. 10, 2015, Ont. S.C.J., D.L. Corbett J., File No. CV-13-481406) Decision at 237 A.C.W.S. (3d) 619 was reversed.  257 A.C.W.S. (3d) 815.

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