Staying or consolidating proceedings: the tests and factors
In the recent decision of Rabba v Rabba, 2019 ONSC 5205, the Honourable Justice Dietrich provides a helpful reminder and summary of the tests applied and the relevant factors considered by the court in determining whether or not a temporary stay or a consolidation of proceedings is appropriate.
Pursuant to rule 6.01(1) of the Rules of Civil Procedure, where two or more proceedings are pending in the court and it appears to the court that,
- they have a question of law or fact in common,
- the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences, or
- for any other reason an order ought to be made.
Additionally, the court may order that,
- the proceedings be consolidated, or heard at the same time or one immediately after the other, or
- any of the proceedings may be stayed until after the determination of any other of them, or asserted by way of counterclaim in any other of them.
In addition to the parameters provided for in rule 6.01, there are overriding policy considerations aimed at:
- avoiding the multiplicity of proceedings,
- promoting the expeditious and inexpensive determination of disputes, and
- avoiding inconsistent judicial findings.
Justice Dietrich then went on to highlight the factors considered by the court in determining whether to matters should be heard together, or one immediately after the other, as set out in Marchant (Litigation Guardian of) v RBC Dominion Securities, 2013 ONSC 2042:
- will the order sought create a savings in pretrial procedure?
- will the number of trial days be reduced?
- will a party be seriously inconvenienced by being required to attend a trial where they only have a marginal interest?
- will costs of experts’ time and witness fees be reduced?
- is one matter at a more advanced stage of litigation than the other?
- will the order result in delay in one of the actions?
- are any of the actions proceeding in a different fashion?
In considering whether a temporary stay is appropriate, Justice Dietrich outlined the principles set out in Hathro Management Property v Adler, 2018 ONSC 1560, including, among others:
- differences in the substantive scope and remedial jurisdiction of the two courts;
- the comparative progress of the two proceedings,
- whether the proceedings will proceed sequentially or in tandem,
- the ability of the defendant to respond to both matters, apart from just the financial burden or inconvenience of having to do so,
- the possibility for inconsistent results, and
- the potential for double recovery.
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