The Plaintiff in a multi-Defendant Action, which involved a number of cross-claims, sought to partially consolidate this Action with a second Action that it had started against some of the same parties and involving some common facts and issues. Some of the Defendants and cross-claimants objected to partial consolidation, arguing that the entire second proceeding should be consolidated with the first.

The Court relied on Rule 3.72 to find that, for two of the Defendants, the second Action would be heard directly after the first Action by the same Justice, with evidence, fact finding, and legal findings carrying over from the first Action to the second Action. Justice Lema ruled that the second Action’s remaining claims were to be consolidated with, and “folded into” the first Action.

Rule 3.72 allows two or more Actions to be tried at the same time, or one after the other, when the Actions have a common question of law or fact, or arise out of the same transaction(s) or occurrence(s). The Court cited authority to highlight that the purpose of consolidation is to enhance the administration of justice and that a Court should consider the possibility of inconsistent verdicts and the impact of non-consolidation on scarce resources. The Court also noted that the Court may rely on the pleadings alone to determine whether there are common issues of law and fact.

In this case, the Court found that there was virtually complete overlap of the two Actions and that they would need to be consolidated to prevent inconsistent factual and legal findings. The Court also found that, while some Alberta authority holds that an Application is a necessary precondition to consolidation, Rule 3.72 does not expressly require an Application to allow a Court to consolidate proceedings. Indeed, the Court found that pursuant to Rules 1.3 and 1.4, the Court is empowered to direct consolidation under Rule 3.72 on its own motion.