3.72: Consolidation or separation of claims and actions
5.30: Undertakings

Case Summary

The Applicant applied to consolidate a matrimonial property Action (involving her former spouse) (the “MP Action”) and an unjust enrichment Action (against her former spouse’s children) (the “UE Action”). The Applicant also sought the production of Undertakings requested in the UE Action which were given during Questioning and only objected to afterwards. The Applicant was the Plaintiff in both Actions. The UE Action related to a property which the former spouse had initially owned jointly with his children and which was subsequently transferred to the children solely. The Applicant argued that the proceeds of that property, and the various transactions between the Defendants to each Action, would be at issue in the MP Action. The UE Action was almost ready for Trial, while the MP Action was not.

Justice Lema noted that consolidation of Actions is governed by Rule 3.72, and that the ultimate purpose of consolidation is to enhance the administration of justice. Lema J. noted that the factors which must be assessed in determining whether the administration of justice would be enhanced by consolidation are: i) whether there are common claims, disputes, and relationships between the parties; ii) whether consolidation will save time and resources in pre-Trial procedures; iii) whether time at Trial will be reduced; iv) whether one party will be seriously prejudiced by having two Trials together; v) whether one Action is at a more advanced stage than the other; and vi) whether consolidation will delay the Trial of one Action which will cause serious prejudice to one party.

Lema J. found that consolidation was not warranted in this case on account of: i) there being little overlap between the Actions (the only common issue being contributions to the subject property while the former spouse was on title, in contrast to many other distinct issues within each Action); ii) the only common party to the Actions was the Applicant; iii) the Actions were at materially different levels of preparedness for Trial; iv) there was no possibility of inconsistent verdicts as the outcome of the UE Action would be binding on the Applicant in the MP Action regardless of the outcome.

On the Application requiring the provision of Undertaking responses, Lema J. noted that an Undertaking to provide information under Rule 5.30 is binding subject only to relief from the Court where: i) the Undertaking was given inadvertently; ii) the Undertaking should not have been given; or iii) that the other side has not been prejudiced or the Applicant has offered to repair the prejudice. Lema J. noted that the Respondents did not make out the exceptions to having to provide the responses to a number of Undertakings, and thus the Respondents were required to provide responses according to the terms of the Undertakings (i.e. withholding only privileged information). Justice Lema held that the Undertakings that had been taken under advisement did not have to be answered where subsequently objected to.

The Application to consolidate was dismissed, while the Application to compel Undertaking responses was granted.

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