HTOO v SAY

The Defendant, Ku Paw Say, applied to consolidate a newly commenced Action, which was later amended to include a claim for the newly recognized tort of intimate partner violence (the “Tort Action”), with a pending corollary relief proceeding in the parties’ divorce Action (the “Corollary Relief Action”). The Plaintiff, Wa Nay Htoo, opposed the Application. The parties had been litigating the Corollary Relief Action for approximately 10 years, and the live issues had narrowed to the division of matrimonial property and the quantum of retroactive child support.

The Court considered Rule 3.72, which governs Applications to consolidate proceedings and requires the Court to assess whether consolidation is in the interests of justice and enhances the administration of justice. Loparco J. applied a non-exhaustive list of factors, including whether there were common claims or disputes, the potential to save time and resources, the stage of the proceedings, and whether consolidation would cause serious prejudice to a party. The Court also held that the Supreme Court of Canada’s recognition of the tort of intimate partner violence did not alter the legal framework governing consolidation applications.

The Court declined to consolidate the two Actions. Justice Loparco found that the Tort Action and the Corollary Relief Action shared no meaningful factual or evidentiary overlap. While the Corollary Relief Action focused on financial issues like income and assets, the Tort Action required distinct evidence regarding specific defamatory statements and instances of alleged coercive control giving rise to the intimate partner violence claim. Furthermore, the Corollary Relief Action was at a substantially more advanced stage than the recently commenced Tort Action.

Loparco J. held that consolidation would delay the efficient resolution of the family law matters and impose additional costs and complexity on the litigants. The Court emphasized that delaying child support payments due to unrelated tort allegations would be contrary to the best interests of the children. Justice Loparco concluded that the Plaintiff would suffer meaningful prejudice if consolidation were granted, while Ms. Say would suffer no prejudice because she remained entitled to pursue all remedies in the separate Tort Action.

The Application was dismissed.