3.72: Consolidation or separation of claims and actions

Case Summary

The Applicant applied to consolidate two lawsuits. In one lawsuit, the Plaintiff commenced an action against multiple Defendants relating to the deficient construction of the Plaintiff’s home. The Defendants in that action filed a Third Party Claim against the Applicant. The Applicant was also named as a Defendant in a separate action brought by the same Plaintiff. The Applicant applied to consolidate the two actions to be tried together, on the basis that the facts and legal issues were intertwined. The Plaintiff resisted consolidation, arguing that the issues were not the same, and would cause prejudice and delay.

The Court granted the consolidation. Pursuant to Rule 3.72(2), Hollins J stated that the Court can order consolidation for any reason, including the fact that the two actions have common questions of law or fact or arise from the same transaction or occurrence. Hollins J held that the list of factors to be considered are as follows:

(a) whether there are common claims, disputes, and relationships between the parties;

(b) whether consolidation will save time and resources in pre-trial procedures;

(c) whether trial time will be reduced;

(d) whether one party will be seriously prejudiced by having two trials together;

(e) whether one action is at a more advanced stage than the other; and

(f) whether consolidation will delay the trial of one action which will cause serious prejudice to one party.

These factors are not exhaustive and are not in themselves determinative of the issue. Hollins J held that a court must be able to conclude that having regard to all the circumstances, on balance, it is in the interests of justice that the actions be consolidated. The focus must be on the impact of consolidation on the parties and the administration of justice. As such, the Court should also consider the possibility of inconsistent verdicts, as well as the prospect of prejudice to the parties and the impact of consolidation and non-consolidation at the pre-trial and trial stages on scarce resources, including administrative, judicial and financial. Each case must be assessed on its own merits and should include consideration of the common claims and distinct claims between the parties.

In this case, the Court found multiple common facts and legal issues between the two actions as they both contemplated deficiencies in the construction of the Plaintiff’s home. Her Ladyship also noted there was a real risk of inconsistent findings if both actions proceeded separately and noted that the Plaintiff was essentially seeking the same damages in each action. Further, on the issue of deficiencies, Hollins J. found that it was conceivable that the parties would use the same expert in both actions, and the evidence in one action would be potentially relevant to the other.

The Court also accounted for the status of both actions in the decision to consolidate. Hollins J. found that both actions were at procedurally similar stages. Finally, Hollins J. found that consolidation was appropriate even if the action involving the Applicant as a Defendant would move more slowly.

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