nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 498 Date: 2012 11 28 Docket: Q.B.G. 1607/2009 Judicial Centre: Regina BETWEEN: DARIUS TSATSI and TONY MERCHANT Counsel: Douglas H. Christie for the plaintiff Rod J. Rath, Q.C. for the defendant Reginald A. Watson, Q.C. for the Sunrise Health Region Charita Ohashi for Don McMorris FIAT BARRINGTON-FOOTE, J. November 28, 2012 [1] The defendant has applied pursuant to Rule 41(2) of the Queen’s Bench Rules for an order that this action and Tsatsi v. College of Physicians and Surgeons of Saskatchewan, Don McMorris and The Sunrise Health Region, being Q.B. 1008 of 2011 (the “College Action”), be tried together. The defendant has also applied pursuant to Rule 169 for leave to amend his Statement of Defence, by pleading:3A Such words as were spoken or written by the Defendant are true, and the Defendant asserts that the alleged defamation was justified in law. [2] This is a defamation action, based on statements that the plaintiff alleges were made by the defendant on June 1, 2009. The statements made specific allegations about the plaintiff’s failure to properly read an x-ray, and also alleged that the plaintiff has failed certification exams and that health officials knew the plaintiff should not be doing the work he was doing. The College Action is also a defamation action. It relates to statements made about the competence of the plaintiff as radiologist which the plaintiff says were published both before and after June 1, 2009. [3] The defendant says that there are common issues of fact between the two actions. He submits that trying these actions together would be in the interests of judicial economy, and avoid the possibility of conflicting findings. [4] The defendant says that the claims are different. He says that this claim relates to single issue relating to the x-ray, and does not relate to the broader issues of competence at issue in the College Action. He acknowledges that if the statements alleged in the College Action were published before June 1, 2009, his client’s reputation may already have been damaged, which would be relevant to the assessment of damages in this claim. He submits, however, that any published statements at issue in the College Action would be matter of public record, and could accordingly be discovered and proved by the defendant regardless of his participation in the College Action. [5] The parties also advised the court that there is class action outstanding against various regional health authorities which raises issues relating to the plaintiff’s competence. In that action, the defendant is plaintiff’s counsel. However, that action is stalled, and the defendant has not applied to have it heard together with this action. Counsel noted that if the defendant succeeds in this application, he will gain tactical advantage in the class action through his participation in the College Action, as that action deals with competency issues which are relevant to the class action. [6] As noted by Laing C.J.Q.B. (as he then was) in Capital Sewer Services Inc. v. Saskatoon (City), 2010 SKQB (CanLII), 349 Sask.R. 310: 15 Rule 41(2) is discretionary rule which is resorted to and utilized when there are sound reasons of judicial economy, or avoidance of disparate rulings arising out of the same facts or law, to justify the actions being tried at the same time. The key consideration in such request is that the actions have questions of law or fact in common, or that the background evidence required to place the issues in context is sufficiently common that judicial economy would be achieved by having the actions tried at the same time. The fact that the actions arise out of the same transactions or occurrences is relevant, but not determinative, in the absence of common questions of fact or law. [7] Similarly, Baynton J. stated as follows in Remai Financial Corp. v. 568320 Saskatchewan Ltd. (1996), 1996 CanLII 7100 (SK QB), 150 Sask.R. 292, [1996] S.J. No. 732 (QL) (Sask.Q.B.): 11 It is trite law that the joinder of parties and actions is permitted for the two basic related policy reasons that underlie many civil procedural rules: economy and justice. Economy of time and of expense to litigants and the justice system as whole is usually realized through joinder to avoid multiple actions and trials. This is confirmed by the provisions of s. 44.7 of the Queen's Bench Act. Justice and the perception of justice is usually enhanced through joinder to avoid the risks of inconsistent determinations of common issues in separate actions and trials. Watson, Gary D., Joinder of Defendants Sued in the Alternative: Solicitors as Co-Defendants, March, 1981, vol. 2, No. Advocates' Quarterly 365. 12 For the policy reasons stated, agree with Gary D. Watson that in most cases, justice is better served by joining actions than by permitting them to proceed separately. narrow and technical application of the res judicata principle poses very practical problem for the applicants. Justice is not served if they are found liable in the main actions and then in the alternate action have to face the risk and expense of litigating again, many of the same issues determined in the main actions. Nor is justice served if the findings of fact or law in the alternate action are inconsistent with the findings in the main actions. [8] In this case, there are common questions of fact between the two actions at issue. The statement of claim in this action engages the issue of competence and the position taken by “health officials”. The plaintiff’s competence is also at issue in the College Action. Further, the publication of the statements at issue in the College Action may have damaged the plaintiff’s reputation prior to the statements at issue in this action. There is risk of inconsistent findings if these matters are not tried together, or at the same time. Judicial economy is also at stake. For these reasons, an order pursuant to Rule 41(2) is appropriate. [9] The defendant and defendants in the College Action submitted form of order for consideration. It provided that the actions be tried one after the other, with the College Action proceeding first, and that the evidence in the College Action be evidence in this action. It does not speak to the discretion of the trial judge to determine how the two actions should proceed. [10] am not satisfied that this draft order provides for these trials to be conducted in manner that best achieves the goals of judicial economy and justice that are the underpinning for joinder of actions. The order in which the trials are conducted, the use of evidence from one action in the other, and any other matters that must be addressed are better left for determination by the trial judge. I accordingly order as follows:1. Darius Tsatsi v. Tony Merchant, being Q.B.G.1607 of 2009, and Darius Tsatsi v. College of Physicians and Surgeons et al., being Q.B.1008 of 2011, shall be tried one immediately after the other, in the manner determined by the trial judge. 2. The defendant has leave to amend his Statement of Defence in Q.B.G. 1607 of 2009 by adding the following paragraph: 3A Such words as were spoken or written by the Defendant are true, and the Defendant asserts that the alleged defamation was justified in law. [11] Costs of this application shall be in the cause in Q.B.G. 1607 of 2009. J. B.A. BARRINGTON-FOOTE
The defendant applied pursuant to Queen's Bench Rule 169 for leave to amend his Statement of Defence. This is a defamation action and the amendment would add that the words spoken by the defendant were true and that the alleged defamation was justified in law. The action relates to statements made about the plaintiff's failure to properly read an X-ray and his failure to pass certain certification exams and that health officials knew that he should not be performing the work he was doing. There is another defamation action, described in this judgment as the College Action. The defendant applied pursuant to Rule 41(2) that his action and the College Action be tried together because there are common issues of fact between the two, albeit different actions.  Trying them together would be in the interests of judicial economy and avoid the possibility of conflicting findings. HELD: The Court ordered that the two actions be tried one immediately after the other in the manner determined by the trial judge and that the defendant be given leave to amend his Statement of Defence.