Court Declines to Order Two Consolidated Actions For Trial

Consolidated Actions For Trial

Suzuki v. DeValone, 2013 BCSC 632 was an appeal from a Masters decision who declined to order two separate actions to be consolidated for trial.

The BCSC, Justice Bowden agreed and dismissed the appeal

[21] In my view, the learned master found correctly that the issues in the two actions are completely different. Furthermore, the parties are not the same. In my view, the learned master correctly applied the decision in Peel. It was not said in Peel, as submitted to the master by the appellant, that if one matter disposes of the other, then they should be consolidated.

27] While that disposes of the grounds of appeal I will add that, although they were not referred to by her, in my view the decision of the learned master is in accordance with the principles enunciated by Master Kirkpatrick, as she then was, in Merritt v. Imasco Enterprises Inc. (1992), 2 C.P.C. (3d) 275 [Merritt].
At paras. 18 and 19 of Merritt, Master Kirkpatrick stated:
None of the submissions of counsel address the real issue to be determined. That is, are the issues raised by the pleadings sufficiently similar to warrant the order sought and will the order make sense in the circumstances? An application to have actions tried at the same time thus requires an examination of circumstances which may be of a more general nature than is made under R. 27 or 19.
I accept that the foundation of an application under R. 5(8) is indeed disclosed by the pleadings. The examination of the pleadings will answer the first question to be addressed: do common claims, disputes and relationships exist between the parties? But the next question which one must ask is: are they “so interwoven as to make separate trials at different times before different judges undesirable and fraught with problems and economic expense”? Webster v. Webster (1979), 12 B.C.L.R. 172 (C.A.). That second question cannot, in my respectful view, be determined solely by reference to the pleadings. Reference must also be made to matters disclosed outside the pleadings:
(1) Will the order sought create a saving in pre-trial procedures, (in particular, pre-trial conferences)?;
(2) Will there be a real reduction in the number of trial days taken up by the trials being heard at the same time?;
(3) What is the potential for a party to be seriously inconvenienced by being required to attend a trial in which that party may have only a marginal interest?; and
(4) Will there be a real saving in experts’ time and witness fees?

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