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Civil Litigation - Consolidation. SIF Solar Energy Income & Growth Fund v. Aird & Berlis LLP
In SIF Solar Energy Income & Growth Fund v. Aird & Berlis LLP (Ont CA, 2025) the Ontario Court of Appeal considered an appeal from a stay order, here where the court below stayed one action [the 'A&B Action'] on the grounds that the defendant could have been added to another existing action - and that thus the continuance of the two proceedings was an abuse of process.
The court took this oppourtunity to consider the overlapping doctrines of multiplicity of proceedings, consolidation, joinder of parties, abuse of process (in it's R21.01(3)(d) 'frivolous and vexatious' context), and stays as an abuse of process remedy:[10] After setting out the procedural history, the motion judge turned to the parties’ submissions. A&B relied on this court’s decision in Maynes v. Allen-Vanguard Technologies Inc. (Med-Eng Systems Inc.), 2011 ONCA 125, 274 O.A.C. 229, in support of its argument that the A&B Action was an abuse of process because the appellants ought to have moved under r. 26.02 for leave to add A&B as a defendant to the Main Action. The appellants relied on Abarca v. Vargas, 2015 ONCA 4, 123 O.R. (3d) 561, where this court concluded that an action against the plaintiffs’ own insurer based on the underinsured motorist coverage in their auto insurance policy was not an abuse of process, and permitted that action to proceed in tandem with a tort action against the other driver. The appellants asserted that, while the A&B Action arose out of the same factual matrix as the Main Action, the claims against A&B were distinct and sought unique, contingent relief against A&B. They also argued that the A&B Action was commenced separately to preserve their claim of solicitor-client privilege in the Main Action.
[11] The motion judge cited paras. 38 to 40 of Maynes, where this court concluded that there was an abuse of process where the plaintiffs had commenced a new action instead of seeking to add defendants to an existing action. He expressed the view that Abarca turned on “the legal and procedural complexities of multivehicle accidents involving tort, contract and insurance law, as well as administrative proceedings under the SABS.” He also noted that the Court of Appeal in Abarca distinguished Maynes on three grounds: (i) that the relief sought against the defendant insurer in the second action was distinct from the relief sought in the first action; (ii) that the claim against that defendant was not known when the first action was commenced; and (iii) that there was a real possibility that the claim against the insurer would be out of time, and the plaintiffs would be deprived of access to the underinsured motorist coverage. The motion judge observed that none of these features were present in the case before him.
[12] The motion judge concluded that “the reasoning in Maynes applies”. He stated that s. 138 [SS: 'multiplicity of proceedings'] of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”), the rules of joinder in r. 5.02, and the provisions of r. 26.02 set out the appropriate procedures to follow in this case. The claim against A&B, in the absence of A&B’s consent, ought to have been advanced by way of a motion for leave to amend the Main Action under r. 26.02(c).
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[16] The motion judge concluded that the commencement of a separate action against A&B was an abuse of process, and that the appropriate remedy was a stay of the A&B Action and a direction that the appellants must move under r. 26.02 for leave to amend the Main Action if they wished to add A&B as a party and plead the allegations made in the A&B Action. ....
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D. Issues and Positions of the Parties
[18] The issues on this appeal are (1) whether the motion judge erred in concluding that the commencement of the A&B Action was an abuse of process; and (2) whether the motion judge erred in ordering a permanent stay of the A&B Action.
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(a) Avoiding a Multiplicity of Proceedings, Amendment and Joinder
[24] Section 138 of the CJA provides that “[a]s far as possible, [a] multiplicity of legal proceedings shall be avoided.” This is a general rule that informs the specific rules available to parties in civil proceedings concerning joinder of claims and parties, amendments to pleadings, consolidation and trial together of proceedings, and rr. 21.01(c) and (d) when invoked to stay or dismiss duplicative proceedings.
[25] Apart from r. 5.03, which requires all necessary parties to be joined as a party to a proceeding, the choice of parties to pursue in a proceeding is for the plaintiff or applicant. The rules of joinder are permissive; that is, a plaintiff may, but is not obliged to, pursue all of its claims involving the same factual circumstances in a single action.
[26] The rules respecting the amendment of pleadings to add a defendant to an action are also permissive. Rule 26.02 provides that a party may amend its pleading (a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action; (b) on filing the consent of all parties and where a person is to be added or substituted as a party, the person’s consent; or (c) with leave of the court. Rule 5.04(2) provides that “[at] any stage of a proceeding the court may by order add, delete or substitute a party … on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.” Again, a plaintiff may seek leave to add a defendant to an existing proceeding but is not required to do so.
[27] The joinder rules are similarly flexible and permit parties to move before the court for orders respecting the scope of a proceeding, particularly where the issue is whether claims should be advanced in a single proceeding.
[28] A defendant that objects to the joinder of claims or parties in a single action can bring a motion under r. 5.05 for relief against joinder. Where the court is satisfied that the joinder of multiple claims or parties in the same proceeding “may unduly complicate or delay the hearing or cause undue prejudice to a party”, the court can make various orders including ordering separate hearings; requiring one or more of the claims to be asserted in another proceeding; and staying the proceeding against a defendant pending the hearing of the other proceeding on condition that the defendant to the stayed proceeding is bound by findings made at the other hearing. Rule 5.05 reflects the reality that there may be any number of reasons why, even where the factual matrix is the same, it might be preferable for claims or parties to be pursued in separate proceedings.
[29] By contrast, r. 6 is available so that parties can seek consolidation or trial together of two or more proceedings that are pending in the court. An order can be made where the court is satisfied that (a) the proceedings have a question of law or fact in common; (b) the relief claimed in the proceedings arises out of the same transaction or occurrence or series of transactions or occurrences; or (c) for any other reason such an order should be made. The motion is necessarily brought on notice to the parties in all affected proceedings. The court can order that the proceedings be consolidated or heard together or one after the other, that one proceeding be stayed while the other proceeds, or that claims in one proceeding be asserted by way of counterclaim in another, and may give such directions as are just to avoid unnecessary costs or delay.
(b) Dismissing or Staying Duplicative Proceedings for Abuse of Process
[30] Where a plaintiff or plaintiffs have commenced multiple proceedings against a defendant, a defendant can move for relief before the court to dismiss or stay one or more of the proceedings.
[31] The authority to dismiss or stay an action that is an abuse of process derives from r. 21.01(3)(d) of the Rules (referring to an action that is frivolous or vexatious or is otherwise an abuse of the process of the court) and the inherent and residual jurisdiction of the court. The abuse of process doctrine “engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute”: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 37, citing Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting (approved, 2002 SCC 63, [2002] 3 S.C.R. 307).
[32] Rule 21.01(3)(d) has been invoked to fill a gap when all of the elements of issue estoppel or res judicata could not be made out, but where the defendant asserts that the commencement of a second proceeding that overlaps with one already determined (through court order or settlement) would work an injustice: see e.g., Niagara North Condominium Corp. No. 125 v. Waddington, 2007 ONCA 184, 222 O.A.C. 66. More recently, r. 21.01(3)(d) has been relied on in support of motions to dismiss or stay an action where there is another, overlapping, proceeding pending. While 21.01(3)(c) permits a defendant to move to dismiss or stay an action on the ground that “another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter” (emphasis added), this rule does not assist a defendant who has not been sued in the other proceeding.
[33] Even where r. 21.01(3)(c) applies, that is, where the parties and subject matter are the same, a dismissal or stay of the second proceeding is not automatic. The court must be satisfied that such relief is warranted in the particular circumstances of the case. The moving party must demonstrate that the continuation of the action would cause it substantial prejudice or injustice (beyond inconvenience and expense) because it would be oppressive or vexatious or would otherwise be an abuse of the process of the court, and that the stay would not cause an injustice to the responding party. Factors relevant to prejudice include the likelihood and effect of the two matters proceeding in tandem, the possibility and effect of different results, the potential for double recovery, and the effect of possible delay: Birdseye Security Inc. v. Milosevic, 2020 ONCA 355, at paras. 15-16.
[34] Where the court finds that a proceeding is an abuse of process, the appropriate remedy will be case-specific. As this court observed in Abarca, at para. 29:There is no law supporting the conclusion that an abuse of process must lead inevitably to the dismissal of the associated claim. In each case the court must assess the gravity of the abuse in determining the severity of its response, bearing in mind the principle of proportionality. This approach is not surprising, since instances of abuse of process fall across the spectrum from egregiously contemptuous conduct to relatively minor breaches of procedural rules. (c) Maynes, Abarca, and other relevant cases
[35] The central issue before the motion judge was whether the A&B Action was an abuse of process. While it is not clear whether the parties confined their arguments to these two cases, the motion judge approached the issue as depending on which of this court’s decisions in Maynes and Abarca he should follow. Keeping in mind that the determination of whether a proceeding is an abuse of process depends on all of the relevant circumstances (see Birdseye Security Inc., at para. 15), it is helpful to recall the facts and reasoning of each case.
[36] In Maynes the plaintiffs had commenced three actions. The third repeated substantially the same allegations against the same defendants in two other ongoing actions and added new defendants. The motion judge granted the defendants’ motion to strike the statement of claim in the third action and dismissed the plaintiffs’ cross-motion seeking leave to amend that claim or to join the claim to the two ongoing actions. A number of issues were before this court on appeal: whether the third action was an abuse of process; whether the third action disclosed a reasonable cause of action against the new defendants; and whether any remaining claim against the new defendants ought to have been joined or consolidated with the ongoing actions.
[37] This court concluded that the third action was an abuse of process. The pleadings in the ongoing actions had closed and documentary and oral discovery in those actions was substantially complete. The plaintiffs initially sought to combine the ongoing actions and to add the new defendants and the claims against them to those proceedings, providing a draft amended statement of claim. The plaintiffs did not obtain the consent required by r. 26.02(b) to add a party after the pleadings had closed. Instead of bringing a motion under r. 26.02(c), the plaintiffs commenced the third action and sought joinder or consolidation of that action with the ongoing actions. The third action duplicated the same five claims the plaintiffs made against the original defendants in the ongoing actions and added new claims for declaratory relief against the new defendants.
[38] It was in those circumstances that this court upheld the finding in the court below that the third action constituted an abuse of process. This court held that the motions judge correctly identified the claims against the original defendants in the new action as an abuse of process “because they were virtually identical to the claims asserted against them in the [ongoing actions]”, and that if such claims were allowed to proceed “it would amount to a relitigation of the same issues as between the same parties”: at para. 36. This court went on to state that the claims against the new defendants were also an abuse of process because the purpose of the commencement of the new action was to name the added defendants as parties to the related litigation, effectively circumventing the express procedural requirement in r. 26.02(c) that leave of the court be obtained to add a non-consenting party to the proceeding after pleadings were closed.
[39] This court also upheld the motions judge’s dismissal of the new action on the basis that it did not disclose a reasonable cause of action against the new defendants. As such, there was no issue about the appropriate remedy for abuse of process, and the court did not have to consider the alternative claim for consolidation or trial together of the actions.
[40] In Abarca the plaintiffs commenced a tort action against an underinsured driver following a motor vehicle accident. This court upheld a motion judge’s finding that the plaintiffs, in commencing a new action, had abused the court’s process by disregarding an earlier direction of the court to bring a motion to amend a claim on notice. Lauwers J.A. held that this abuse of process, which he characterized as minor, did not warrant a dismissal of the second action because the result would be a potential loss of underinsured coverage by operation of a limitation period. He concluded however that the motion judge had erred in finding that, absent the earlier direction, it was an abuse of process for the plaintiffs to start a new action against the insurer in relation to the underinsured motorist coverage. He disagreed with the premise that starting a new action was necessarily abusive, and he rejected Maynes as the “ruling precedent”. He pointed out a number of circumstances in Maynes that were not present in the case before him, including that the third action had been commenced after the plaintiffs failed to obtain consent to add the new defendants and claims to the ongoing proceedings; that five of the six claims asserted in that action were “virtually identical” to the original claims and the sixth was for declaratory relief alone and disclosed no reasonable cause of action; and that “key representatives” of the new defendants were already involved in the original actions.
[41] I read this court’s decision in Abarca as rejecting the general principle that A&B advances here: that it is always an abuse of process when a second action is commenced in circumstances where the first action could have been amended to add a defendant or claim. Rules 26.02 and 5.04 govern the amendment of pleadings and adding parties to an action, but do not preclude the issuance of separate proceedings even if they involve common factual matrices and overlapping parties. Rather, the rules of consolidation and joinder exist to address situations where actions should be tried together or consolidated.
[42] I agree with the appellants that the result in the present case did not depend on whether Maynes or Abarca should be followed, but on how the principles in those and other cases respecting abuse of process and overlapping proceedings ought to be applied. In my view Maynes reflects the application of the relevant rules to the facts of that case, but does not mandate a finding of abuse of process in every case where a second proceeding is commenced instead of adding a defendant to an overlapping existing proceeding, nor does it preclude consolidation or other procedural orders as an appropriate response to a multiplicity of proceedings.
[43] Subsequent cases have recognized that whether the commencement of a second and overlapping action is an abuse of process will depend on the particular factual circumstances, including the purpose of the commencement of the subsequent action. In a number of cases, judges have determined that a second action was an abuse of process when it was commenced in order to circumvent a court order, such as a costs order (see Living Water (Pressure Wash Services) Ltd. v. Dyballa, 2011 ONSC 5695), or an order requiring the posting of security for costs (see Carbone v. DeGroote, 2018 ONSC 109). In Nuco Jewelry Products Inc. v. Lynott, 2016 ONSC 5532, the court found that claims alleging conspiracy and fraud were inextricably intertwined with the liability of a defendant to a related action, and the defendants’ liability was alleged to be joint and several. The court stayed the second action to permit the plaintiff to bring a motion to add a new defendant to the related action, anticipating that the stay could be lifted if such relief were refused.
[44] In other cases, judges have declined to find an abuse of process where a second and overlapping action was commenced, and instead have addressed concerns about a multiplicity of proceedings by granting orders for consolidation or trial together: see e.g., Zhu v. Siew, 2020 ONSC 7045, 153 O.R. (3d) 219; Dimakos v. Dimakos, 2021 ONSC 3248; and Howlett v. Northern Trust Company, 2023 ONSC 4531.
[45] These cases recognize that, while the commencement of a second proceeding may give rise to concerns about overlapping questions of law and fact or the risk of inconsistent verdicts, it is not necessarily an abuse of the process of the court. While a party might require a remedy in order to avoid prejudice caused by a multiplicity of actions, that remedy is frequently an order under r. 6.01 for consolidation or trial together, with appropriate procedural directions to address the interests of all parties. At paras 46-63 the court considers these doctrines on the case facts.
. Hughes v. Mehraban
In Hughes v. Mehraban (Div Court, 2023) the Divisional Court consolidated a motion for leave to appeal [under CJA 133(a) as appealing a consent order] and the underlying appeal, given that it was an RTA proceeding and the court had designated that RTA appeals be heard by a single judge:Future Procedure
[14] Motions for leave to appeal from a decision of an administrative tribunal are heard by a single judge pursuant to s. 21(3) of the Courts of Justice Act.
[15] If leave to appeal is granted, appeals from decisions of the LTB have been designated to be heard and determined by a single judge of the Divisional Court under s. 21(2)(c) of the Courts of Justice Act.
[16] Given that both the leave to appeal and the appeal would be heard by one judge, the parties have proposed that I combine the leave to appeal and the appeal so that if leave is granted, the same judge will, at the same time, also decide the appeal. The LTB also supports this proposed procedure.
[17] Given the nature of the primary issue in this appeal – can the LTB make consent orders that do not include a tenant right to void the eviction by paying the arrears and costs as provided by s. 74 of the Act? – the proposal to have the judge who hears the motion for leave also decide the merits of the appeal if leave is granted offers some efficiencies for both the court and the parties.
[18] This proposed procedure was adopted by Leiper J. in Canadian Mental Health Association Toronto Branch v. So, 2022 ONSC 7016, at para. 22, where she concluded “that the question of leave and the merits, should be addressed together”.
[19] Given that both parties consent to having the motion for leave to appeal and the merits of the appeal addressed together, I will make the same order as Leiper J. in this regard, and order “that the question of leave and the merits should be addressed together”.
[20] I would not make such an order if it was not on the consent of both parties.
[21] I also note that, like a consolidation order under Rule 6 of the Rules of Civil Procedure, the order to have the motion for leave and the merits of the appeal addressed together is subject to the discretion of the presiding judge to order otherwise, if, for example, time does not permit the proposed consolidation. . 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.
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[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. . Mondal v. Kirkconnell
In Mondal v. Kirkconnell (Ont CA, 2022) the Court of Appeal considered when appeals in different cases should be heard together:The Governing Principles
[7] There is little jurisprudence because parties in situations similar to this one usually cooperate and schedule the appeals together. This is the basic purpose for s. 11.9 of this court’s Civil Appeals Practice Direction. However, the Practice Direction does not mandate this result.
[8] The governing principles can be briefly stated. The basic principle is that appeals should be heard together where doing so would shorten the hearing of the appeals and result in saving of costs and court time: Williams v. Canada (Attorney General), 2007 CarswellOnt 9967 (C.A.). Judicial economy and a fair and efficient determination of the proceedings on appeal must be taken into account: Fairview Donut Inc. v. TDL Group Corp., 2010 ONSC 2845, per Strathy J. (as he then was), at para. 24.
[9] The Alberta Court of Appeal, in a similar situation as the one presented by these appeals, observed that it is efficient and convenient to hear appeals from a single proceeding together, in view of overlapping facts, issues, and arguments. This limits the judicial resources that must be dedicated to the dispute, since the court does not have unlimited resources: Moshinsky-Helm v. Helm, 2022 ABCA 32, at paras. 7, 8. . Wright v. Strauss
In Wright v. Strauss (Ont CA, 2019) the Court of Appeal dealt with a knotty appeal route jurisdictional issue. Following the reasoning along is good exercise!:[1] The appellant appeals from the order (“Order”) of the motion judge, dismissing the application he commenced in 2016 against his daughters, on their own behalf and as trustees of the Wright Family Trust (“Trust”). For the reasons that follow, we conclude that this court does not have jurisdiction to hear this appeal, and we order that this appeal be transferred to the Divisional Court.
[2] The appellant also appealed from a second order (“Second Order”) of the motion judge, made at the same time, involving the same parties, and addressed in the same set of reasons as the Order. The appeal of the Second Order was properly made to this court and we dismissed that appeal: Wright v. Urbanek, 2019 ONCA 823.
[3] Pursuant to s. 255 of Ontario’s Business Corporations Act, R.S.O. 1990, c. B.16, as amended, (“OBCA”), an appeal lies to the Divisional Court from an order made under the OBCA. The Order finally resolved issues in an oppression application brought under the OBCA and the proper route of appeal is to the Divisional Court: Ontario Securities Commission v. McLaughlin, 2009 ONCA 280, 248 O.A.C. 54, at para. 16.
[4] While the appellant concedes that an appeal from the Order would normally be to the Divisional Court, he asserts that s. 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, and r. 6.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, permit this court to hear his appeal of the Order. Alternatively, he argues that this is one of those exceptional cases where it would be appropriate for Chief Justice of the Superior Court of Justice to designate this court as a panel of the Divisional Court for the purpose of hearing and determining the appeal.
[5] We reject these arguments.
[6] First, s. 6(2) of the Courts of Justice Act permits this court to hear and determine an appeal that lies to the Divisional Court if an appeal in the same proceeding lies to and is taken to this court. But the two appeals are not in the same proceeding. Although the motion judge released only one set of reasons, he issued two orders for two factually related but legally distinct proceedings, each with its own originating process: the Order, striking a notice of application regarding the transfer of a mortgage from a family company to the Trust; and the Second Order, striking a statement of claim challenging the validity of the Trust.
[7] Second, r. 6.01(1) provides that “[w]here two or more proceedings are pending in the court” the court may, in the circumstances set out in that rule, order that the proceedings be heard together. However, this rule applies to proceedings in the same court, not proceedings in different courts: Tomec v. Economical Mutual Insurance Company, 2019 ONCA 839, at para. 11.
[8] Finally, while the combined effect of ss. 13 and 18 of the Courts of Justice Act enables three judges of the Court of Appeal to sit as a panel of the Divisional Court with the consent of the Chief Justice of the Superior Court of Justice and the Chief Justice of Ontario, as Trotter J.A. notes in Tomec, at para. 14, this court rarely reconstitutes itself as the Divisional Court. Doing so involves bypassing the Divisional Court. We are not persuaded that this is one of those rare instances where this court should reconstitute itself as the Divisional Court.
[9] This is not a case where the jurisdictional issue was noticed only after the appeal had been argued: see Villa Verde L.M. Masonry Ltd. v. Pier One Masonry Inc. (2001), 2001 CanLII 7060 (ON CA), 54 O.R. (3d) 76 (C.A.), at para. 12. Here, the court notified the parties of the potential jurisdictional problem nearly four months before the scheduled hearing date and advised them that it is not this court’s practice to take jurisdiction to hear an appeal if it concludes that the appeal was brought in the wrong court. The parties made no submissions to the court in response to the court’s letter notifying the parties of the potential jurisdiction problem.
[10] Moreover, it is not clear that the delay resulting from a transfer of the appeal of the Order to the Divisional Court will result in any “real” delay. In oral submissions, counsel for both parties agreed that if the appellant prevailed on his appeal from the Order, his application should be stayed pending completion of the steps remaining to be taken pursuant to the order of Conway J., dated October 7, 2016, made in the oppression application brought against the appellant by his daughters. . Tomec v. Economical Mutual Insurance Company
In Tomec v. Economical Mutual Insurance Company (Ont CA, 2019) the Court of Appeal considered an issue of court consolidation:Reconstituting as the Divisional Court
[10] The first part of the claim for relief is that the appeals be heard at the same time, or one immediately after the other. This type of consolidation may be ordered under r. 6.01 of the Rules of Civil Procedure, which provides: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. [Emphasis added.] Mr. Soares also relies on s. 138 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (“CJA”), which states: “As far as possible, multiplicity of legal proceedings shall be avoided.”
[11] The underscored words in r. 6.01, above, highlight the problem with this motion. The rule applies to proceedings that are in the same court, not in different courts.
[12] Mr. Soares’s proposed solution is to have this court reconstitute itself as a panel of the Divisional Court. This may be achieved through the combined operation of ss. 13 and 18 of the CJA. Section 18(2) provides that the “Divisional Court consists of the Chief Justice of the Superior Court of Justice, who is president of the Divisional Court, the associate chief justice and such other judges as the Chief Justice designates from time to time.” Every judge of the Superior Court is also a judge of the Divisional Court: s. 18(3).
[13] Section 13(1) of the CJA permits the Chief Justice of Ontario, with the concurrence of the Chief Justice of the Superior Court, to perform the work of a Superior Court judge. By virtue of his or her office, a judge of the Court of Appeal has “all the jurisdiction, power and authority” of a Superior Court judge: s. 13(2). Indeed, when appointed, judges of the Court of Appeal are also appointed judges, ex officio, of the Superior Court, and vice versa.
[14] The combined effect of these provisions enables three judges of the Court of Appeal to sit as a panel of the Divisional Court with the consent of the Chief Justice of the Superior Court of Justice. However, this court rarely reconstitutes itself as the Divisional Court. It typically occurs with the consent of all parties: see e.g., Wall v. Shaw, 2018 ONCA 929, 28 C.P.C. (8th) 351, at para. 3. There must also be compelling reasons to do so. In Villa Verde L.M. Masonry Ltd. v. Pier One Masonry Inc. (2001), 2001 CanLII 7060 (ON CA), 54 O.R. (3d) 76 (C.A.), at para. 12, Rosenberg J.A. explained the circumstances in which this might be done: “It is an option that is generally only resorted to where the jurisdictional issue is noticed after the appeal has been argued and is done to save the parties the expense and inconvenience of having to reargue the appeal.”
[15] The application brought on behalf of Mr. Soares is not a reaction to a newly discovered jurisdictional defect. This is not a situation in which an appeal was erroneously brought in this court when it should have launched in the Divisional Court. Here, there has been no mistake; instead, Mr. Soares wishes to bypass a level of court in order to consolidate his appeal with Ms. Tomec’s appeal. He argues that this process of reconstitution and consolidation will be more efficient and avoid inconsistent outcomes.
[16] While it may be more efficient to have the appeals heard together, this alone is not a sufficient reason to grant the relief requested. If this court were to reconstitute as the Divisional Court, for all intents and purposes, it would involve bypassing the Divisional Court. The Divisional Court is an important pillar of Ontario’s court structure, with a rich jurisprudence in administrative law. Allowing Mr. Soares to bypass the Divisional Court would deprive the Court of Appeal of the benefit of a considered judgment from that court. For these reasons, it is undesirable to bypass the Divisional Court absent compelling reasons for doing so. Here, there are none.
[17] Moreover, there is nothing unique about multiple cases with the same or similar issues traveling through the system at the same time, but at different levels of court. This, in itself, does not beget inconsistent judgments. To the extent that the issues in the Tomec and Soares cases are the same, the Divisional Court would be bound by the legal determinations made by this court, thereby avoiding inconsistent findings. Moreover, as counsel for Economical submits, there are many, many cases “in the system” that involve the same or similar issues as the one raised in Ms. Tomec’s appeal. Each will have to move through the established appeal/judicial review process in due course.
[18] Consequently, there is no basis to have this court reconstitute itself as the Divisional Court in these circumstances. Even if it could be done, consolidating the proceedings would result in Ms. Tomec’s appeal being adjourned due to the lack of additional court time available on October 16, 2019. Although Ms. Tomec does not oppose an adjournment, Economical does. An adjournment would be unwarranted in the circumstances.
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