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Appeals - Leave to Appeal - Consolidation of Separate Motions. Windrift Adventures Inc. v. Chief Animal Welfare Inspector
In Windrift Adventures Inc. v. Chief Animal Welfare Inspector (Ont CA, 2023) the Court of Appeal considered a motion to consolidate [under RCP R6.01] two leave for appeal motions, the test for which includes a 'balance of convenience' element:ANALYSIS
[9] Rule 6.01(1) of the Rules provides that the court has discretion to consolidate proceedings in the following circumstances:6.01 (1) Where two or more proceedings are pending in the court and it appears to the court that,
(a) they have a question of law or fact in common;
(b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or(c) for any other reason an order ought to be made under this rule, the court may order that,
(d) the proceedings be consolidated, or heard at the same time or one immediately after the other; ... . [10] The consolidation rule strives to avoid a multiplicity of proceedings; promote timely and inexpensive determination of disputes; and avoid inconsistent judicial findings: Li v. Bank of Nova Scotia, 2023 ONSC 4235, at para. 62. The test for consolidation is twofold: first, the court must determine whether the moving party has established that any of the criteria under r. 6.01(1) are met; and second, if any criteria have been met, the court must consider whether the balance of convenience favours a consolidation order: Li, at para. 62.
....
[13] In CN v. Holmes, 2011 ONSC 4837, at para. 43, Brown J. (as he then was), reviewed the principles underlying consolidation and stated: “In exercising its discretion whether to order the consolidation of proceedings or that they be heard simultaneously or consecutively, the court will consider the general rule, mandated by the Courts of Justice Act, that, as far as possible, multiplicity of proceedings shall be avoided, and a variety of factors including: (1) the extent of the difference of commonality of the factual or issues in the proceedings; (2) the status of the progress of the several proceedings; and (3) the convenience or inconvenience, in terms of time, money, due process and administration, of bringing the proceedings together.”
[14] As these are leave to appeal applications, which are determined in writing and generally without reasons by the court, there is little to be saved in terms of efficiency through consolidation, and because reasons are not given, the risk of inconsistent analysis generally will not arise.
[15] More significant, the legal questions at issue in each leave application are distinct. The appeal of the Board’s finding that the respondent was justified under the PAWS Act in issuing compliance orders and removing the dogs has little substantively to do with the appellants’ challenge of the Board’s decision with respect to the Statement of Account.
[16] The respondent argues that it would be prejudiced by the additional delay inherent in consolidating a perfected First Leave to Appeal application with a Second Leave to Appeal application that has not been perfected (although I note that counsel for the appellants advised that the Second Leave to Appeal application could be perfected in as little as six weeks).
[17] The respondent also objects to the proposed consolidation in principle as it would have the effect of extending the interim stay ordered by Monahan J.A. to both leave applications without the appellants having to satisfy the test for such a stay.
[18] In my view, the balance of convenience does not favour consolidation. The leave to appeal analysis is rooted in the particular decision under appeal (in this case, decisions of the Divisional Court) and its broader significance. Whether the First Leave to Appeal application meets the threshold for leave to be granted (see the factors set out in Re Sault Dock Co. Ltd. v. City of Sault Ste. Marie 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479 (C.A.)) has little or no bearing on whether the Second Leave to Appeal application would meet that same threshold.
[19] While I share the doubt expressed by counsel for the appellants that dismissing the motion for consolidation will result in less delay, or substantially reduce the costs being accrued by the respondent in caring for the dogs, the potential prejudice to the respondent in granting the motion for consolidation nonetheless outweighs any potential benefits, which are marginal at best.
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