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Civil Litigation - Multiplicity of Proceedings. Cipponeri Construction Services Inc. v. Orsi
In Cipponeri Construction Services Inc. v. Orsi (Ont CA, 2023) the Court of Appeal considered a procedural fact situation that the lower court held to infringe on the rule against multiplicity of proceedings:[5] On a motion by Mr. Orsi, the motion judge dismissed the 2020 Action. Pursuant to r. 21.01(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, he held it was an abuse of process for CCSI to commence a separate action which created a multiplicity of proceedings; the correct process was to seek leave to add CCSI as a plaintiff by counterclaim in the 2018 Action. He indicated in his reasons that the dismissal of the 2020 Action was without prejudice to CCSI, Mr. Cipponeri, or 259 seeking leave under r. 26.02(c) to add CCSI as a party in the 2018 Action. The motion judge also dismissed the 2020 Action against Mr. Orsi personally on the basis that the statement of claim did not disclose a cause of action against him, as the claim was for money allegedly owed by Westin.
[6] On appeal, CCSI argues that the motion judge erred in finding the 2020 Action was, as against Westin, an abuse of process.[1] It asserts that the action was commenced to preserve a limitation period, which is not an abuse of process: Abarca v. Vargas, 2015 ONCA 4, at paras. 20-23. It adds that the process followed – starting a new action rather than amending the counterclaim − was in part a function of what counsel thought could be done expeditiously in the early stages of the COVID-19 pandemic. And even though the 2020 Action created overlap with an aspect of the counterclaim in the 2018 Action, it submits it made it clear when the 2020 Action was commenced that it sought to avoid a multiplicity of proceedings issue. CCSI’s counsel wrote to the respondents’ counsel stating: “We will of course not be pursuing the paragraphs in the present counterclaim dealing with this same issue and will agree to have them removed when we reconvene. It seems to me once you get your head around it, all [the] actions should be consolidated or heard together”.
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[9] While the motion judge understandably viewed amending the counterclaim as preferable, in our view he erred in dismissing the 2020 Action against Westin as an abuse of process. It was common ground that there was no valid claim for money owing to CCSI by Westin in the counterclaim in the 2018 Action, as CCSI was not a party. A consequence of this was that the limitation period for CCSI’s claim continued to run. The 2020 Action was commenced to preserve that limitation period. And it did not necessarily create a multiplicity of proceedings if appropriate steps were taken to ensure the claim was not advanced in two proceedings. . SS & C Technologies Canada Corp. v. The Bank of New York Mellon Corporation
In SS & C Technologies Canada Corp. v. The Bank of New York Mellon Corporation (Ont CA, 2021) the Court of Appeal considered whether an appeal on the liability portion of a trial should proceed before the damages trial had been completed. Normally, appeal courts want to have all the issues before them to avoid a 'multiplicity of proceedings' [CJA 138]:[31] Section 138 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), makes clear that “[a]s far as possible, multiplicity of legal proceedings shall be avoided”; see also Vaeth v. North American Palladium Ltd., 2016 ONSC 5015, at para. 37. This court held in Elcano Acceptance Ltd. v. Richmond, Richmond, Stambler & Mills (1986), 1986 CanLII 2591 (ON CA), 55 O.R. (2d) 56 (C.A.), at p. 5, that the power to split a proceeding “must be regarded as a narrowly circumscribed power.”
[32] Courts generally seek to avoid a multiplicity of proceedings and the potential of inconsistent results. One appeal dealing with all issues is ordinarily the most effective and fair use of both public and private resources: Korea Data Systems (USA) Inc. v. Aamazing Technologies Inc., 2012 ONCA 756, 29 C.P.C. (7th) 51, at paras. 23-25.
[33] This is particularly true when there is a real possibility that one or both parties may bring further appeals of the application judge’s decision: Toronto (City) v. 1291547 Ontario Inc. (2001), 2001 CanLII 7244 (ON CA), 148 O.A.C. 212 (C.A.), at para. 13.
[34] In Toronto (City), the respondent moved to adjourn the trial for damages until its appeal on the trial judge’s finding of liability had been heard. This court held, at para. 13, that the balance of convenience supported the completion of the adjudication of all the issues in the Superior Court of Justice, as then both the liability and damages issues could be dealt with in one appeal.
[35] In Korea Data Systems, this court heard an appeal of a liability decision, while a hearing on damages and other outstanding issues was scheduled concurrently by the court of first instance. This court held that the “interests of justice” favoured staying the appeal to allow the damages hearing to be completed first, as this approach “avoids a multiplicity of proceedings and the potential of inconsistent results”: Korea Data Systems, at para. 23. Notwithstanding that the issues on appeal were serious, the issues were separate and discrete from those remaining to be determined at first instance, and little prejudice would result in allowing the appeal to proceed, this court held that the overall interests of justice favoured the disposition of all issues before hearing the appeal: Korea Data Systems, at paras. 23-25.
[36] In Canadian Planning and Design Consultants Inc. v. Libya, 2015 ONCA 661, 390 D.L.R. (4th) 267, this court held, at para. 53, that “[i]t is not an efficient or appropriate use of judicial resources to have two different courts determining the merits of the same issues in what is essentially the same litigation, especially where multiple appeals to this court may result”. The concerns of judicial economy and avoiding the risk of inconsistent rulings were held to favour adjourning the appeal pending resolution of a motion in the Superior Court of Justice: Libya, at para. 53.
[37] Where the only harm the appellants might be exposed to is the expense they would incur if the trial went ahead before the appeal and this court on appeal determines that there was no proved breach, the harm suffered by the appellants can be taken into account in costs or damages: Toronto (City), at para. 11.
[38] As noted in the cases cited above, the ordinary practice is to pursue a single appeal from decisions on liability and damages. The moving party must establish that it is in the interests of justice to do otherwise. Fragmenting appeals, particularly in large and complex cases such as this, may well delay the overall administration of justice at both the trial and appeal court level by having appeals of different aspects of the case heard at different times.
[39] I recognize that the appellants have raised serious issues in their appeal of the Liability decision and, if successful, the appeal may dispose of some or all of the claims. However, if the Liability appeal is scheduled now, there will be a multiplicity of proceedings being heard and resolved concurrently.
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