2526646 ALBERTA LTD v CONDOMINIUM CORPORATION NO 0313512

A condominium corporation brought an Originating Application for an Injunction against certain owners of the condominium (“Owners”), seeking, among other things, to enforce its bylaws (the “Injunction Action”). The Owners filed a Statement of Claim against the condominium corporation seeking to invalidate the bylaws (“Claim Action”). The Owners then brought this Cross-Application seeking to have the Injunction Action converted to a Statement of Claim Action and seeking to consolidate the converted Injunction Action with the Claim Action. The Cross-Application was granted.

First, the Court converted the Injunction Action into a Statement of Claim Action. In its analysis, the Court relied on Rule 3.2(2), which establishes that a Statement of Slaim must be used to start an Action unless one of the specified exceptions apply. The Court also noted its authority under Rule 3.2(6) to convert an Action commenced in one form to another form. Justice Thompson stated that Rule 3.2(6) applies in various situations, including where the Action was wrongly commenced by Originating Application or that the emerging issues in the dispute changed the character of the Action. Thompson J. also cited authorities for the requirement that matters commenced by Originating Application must be capable of summary determination. The summary process is not appropriate if live witnesses or discovery are warranted, and may not be appropriate where evidence conflicts or credibility is an issue.

Applying these principles, the Court found the Injunction Action involved complex issues. Justice Thompson concluded the matter could not be resolved on summary determination and required full pleadings, disclosure, and trial procedures. The Court ordered that the Originating Application be converted to a Statement of Claim and the Injunction Action be continued as a Statement of Claim Action.

Next, the Court determined that the converted Injunction Action should be consolidated with the Claim Action. The Court confirmed its discretion to consolidate actions under Rule 3.72 for any reason, including that the actions have a common question or law or fact or arise out of the same circumstances. The overarching purpose of consolidation is to enhance the administration of justice. Justice Thompson reviewed the applicable non-exhaustive factors for consideration set out in Mikisew Cree First Nation v Canada, 1998 ABQB 675 (“Mikisew Factors”), including whether there are common claims, whether consolidation will save time and resources, and whether consolidation would cause prejudice.

Applying the Mikisew Factors, the Court held that consolidation was in the overall interests of justice. The converted Injunction Action and the Claim Action had common issues and arose from the same circumstances. The Court clarified that there was no absolute requirement that the two Actions for consolidation must have common parties or that all issues in the two Actions must be common. A “heavy overlap” was sufficient. Further, Justice Thompson found that the factors of efficiency, risk of inconsistent verdicts, and risk of prejudice all weighed in favour of consolidation. With no factor weighing against consolidation, the Court found in favour of the consolidation.