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PROCEEDINGS - Practice and procedure

Thursday, August 27, 2020 @ 7:42 AM  


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Motion by the defendant lawyers in the second action to consolidate the two actions. The Main Action was a claim by mortgagees to collect amounts allegedly owing on two mortgages. The second action (the Lawyer Action) involved a claim by mortgagors for contribution and indemnity from their lawyers for any amounts they were found to owe in the Main Action. The parties acknowledged that both actions had questions of law and fact in common. The real dispute was whether the actions should be consolidated or tried one after the other. The mortgagors consented to the consolidation motion. The mortgagees opposed the motion by primarily claiming that a consolidation would unduly complicate the proceedings. The mortgagees instead proposed having the actions tried one after another. The mortgagees also claimed that this consolidation motion was an abuse of process.

HELD: Motion allowed. The claim for damages in the Main Action and the claim for contribution and indemnity in the Lawyer Action were clearly interwoven matters. A consolidation of both actions would not overly prolong or complicate the proceedings. Both actions featured relatively straightforward issues. The mortgagors already intended to call the lawyers as witnesses in the Main Action. An important advantage to consolidating the actions was having common discoveries. Currently, both actions were essentially at the pleadings stage. The consolidation motion was not an abuse of process.

Yellow Cedar Investments Ltd. v. Di Toro, [2020] O.J. No. 3094, Ontario Superior Court of Justice, M.T. Doi J., July 14, 2020. Digest No. TLD-August242020008