3.68: Court options to deal with significant deficiencies
3.72: Consolidation or separation of claims and actions

Case Summary

This matter consisted of two related Actions that arose out of a fire that destroyed an apartment complex. The Plaintiff owners brought the first claim against the security services provider, its insurer and insurance broker. Two days prior to the expiration of the limitation period, the Plaintiffs filed a second claim against one of the same Defendants under a new cause of Action. The Plaintiffs did not serve the second claim for nearly a year. Once the second claim was served, the Defendant in the second Action brought an Application to strike the Plaintiffs’ claim pursuant to Rule 3.68, and argued that commencing a second Action for a single wrongful act was an abuse of process. The Plaintiffs brought an Application to consolidate the two Actions, pursuant to Rule 3.72.

Graesser J. stated that while the parties were the same, the contract was the same, and the fire loss was the same, the mechanism of the loss was different between the two Actions. As such, it was a reasonable strategic decision to issue a new Action, and it was not an abuse of process. Furthermore, the decision not to serve the second claim for almost a year was arguably an abuse of process, but was something that could be completely addressed by Costs. The Application to strike the claim was dismissed.

The Defendants argued that the Application to consolidate the two Actions should be denied because the Plaintiffs had failed to provide any evidence in support of the Application. Graesser J. held that while an Application to amend a claim required evidence, an Application to consolidate two claims did not. Despite this, the Application to consolidate was also dismissed, and the Court Ordered that the Actions be tried at the same time or one after another, as may be directed by further Order of the Court.

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