Court File and Parties

COURT FILE NO.: CV-20-648593 MOTION HEARD: 2022-01-28 REASONS RELEASED: 2022-05-05 SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

ROONEY LUH and JAE LUH HOLDINGS, INC. Plaintiffs/Defendants by Counterclaim

- and-

RALPH DI PIETRO, DEBORAH DI PIETRO and LANCASTER CUSTOM CABINETS & CLOSETS INC. Defendants/Plaintiffs by Counterclaim

BEFORE: ASSOCIATE JUSTICE McGRAW

COUNSEL: A. Cofman E-mail: acofman@millerthomson.com -for the Plaintiffs/Defendants by Counterclaim and the Proposed Defendants by Counterclaim

D. Camenzuli E-mail: dcamenzuli@dcworkplace.ca -for the Defendants/Plaintiffs by Counterclaim

REASONS RELEASED: May 5, 2022

Reasons For Endorsement

I. Introduction

[1] The Plaintiffs bring a motion to strike the Defendants’ Counterclaim under Rule 25.11 and the Defendants bring a cross-motion for leave to amend their Statement of Defence and Counterclaim to, among other things, add 6 parties as Defendants by Counterclaim. Alternatively, the Plaintiffs request that the Amended Counterclaim be tried separately. The Plaintiffs also request that a timetable be imposed.

II. Background

[2] These proceedings arise from business dealings among family members and closely held companies.

[3] The Plaintiff Rooney Luh (“Rooney”) is the principal of the Plaintiff Jae Luh Holdings, Inc. (“JLH”). The Defendant Lancaster Custom Cabinets & Closets Inc. (“LCCC”) designs, builds and installs custom cabinetry, flooring and other carpentry for residential properties. The Defendant Ralph Di Pietro (“Ralph”) is the sole shareholder, officer and director of LCCC and the Defendant Deborah Di Pietro (“Deborah”) is his spouse and LCCC’s Marketing and Sales Manager. The Proposed Defendant by Counterclaim Tammie Di Pietro (“Tammie”) is Ralph’s sister, Rooney’s common-law spouse and was LCCC’s Controller.

[4] The Plaintiffs commenced this action by Statement of Claim issued on September 30, 2020 claiming $545,215 (the “Funds”) which they allege is the total of 10 interest-free loans made to LCCC between February 15, 2018 and January 20, 2020. The Defendants delivered their Original Statement of Defence and Counterclaim on November 13, 2020. In the Original Counterclaim the Defendants claim $250,000 for breach of contract and unjust enrichment/restitution for work performed by LCCC related to the design, building and installation of custom cabinetry and closets at 3 properties owned by certain of the Proposed Defendants by Counterclaim in Newmarket, Barrie and Beeton, Ontario (the “Properties”).

[5] In the Defendants’ Fresh As Amended Statement of Defence and Counterclaim dated November 13, 2020, they propose to add the following parties as Defendants by Counterclaim (the “Proposed Defendants by Counterclaim”): i.) Tammie; ii.) Luigi Taddeo (“Luigi”), Tammie’s son who was also employed by LCCC; iii.) TLR Design and Renovations Ltd. (“TLR”), a company which purchases, renovates and sells residential properties and owns the Newmarket Property; Tammie and Luigi are directors of TLR and Tammie, Luigi and Rooney are shareholders; iv.) Nicole Taddeo (“Nicole”), Luigi’s spouse who, with Luigi, owns the Beeton Property; v.) Tammie’s son Brandon Taddeo (“Brandon”) and his spouse Laura Dubicki (“Laura”) who own the Barrie Property.

[6] The Defendants also request leave to make the following amendments: i.) plead defences under the Limitations Act (Ontario); ii.) seek a declaration that any value received by TLR and its directors with respect to the improvements made by LCCC constitutes a trust under the Construction Act (Ontario); iii.) correct an inadvertent drafting error regarding the address of the Beeton Property; iv.) quantify the damages sought from the owners of the Properties with respect to the work performed by LCCC at each of the Properties; and v.) add a claim of $10,000 against Tammie for the alleged misappropriation and conversion of funds as LCCC’s Controller to pay for personal moving expenses, credit card bills and materials for the Newmarket Property (together with the addition of the Proposed Defendants by Counterclaim, the “Proposed Amendments”).

[7] This matter first came before me at a telephone case conference on February 1, 2021. Another case conference was held on March 12, 2021 to provide the Defendants with time to deliver their Affidavit of Documents and for the parties to have global settlement discussions. Subsequent case conferences were held on March 19, 2021 and April 13, 2021. The motions were originally scheduled to proceed before me on August 5, 2021, adjourned on consent to September 3, 2021, adjourned again to January 14, 2022 and finally proceeded today. The parties were encouraged throughout the case conferences and other attendances to resolve the pleadings issues, even on an interim basis so that examinations for discovery could proceed, however, efforts to settle the actions or any of the pleadings issues were unsuccessful. The Plaintiffs advised in September 2021 that they intended to bring a summary judgment motion but have not done so.

III. The Law and Analysis

The Pleadings Motions

[8] Rule 26.01 states:

“On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.”

[9] Rule 5.04(2) provides that at any stage of a proceeding the court may add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[10] Amendments should be allowed unless they would result in non-compensable prejudice that cannot be compensated by costs or an adjournment; they are shown to be scandalous, frivolous, vexatious or an abuse of the court's process; or they disclose no reasonable cause of action (Andersen Consulting v. Canada (Attorney General), 2001 CarswellOnt 3139 (C.A.) at para. 37; Schembri v. Way, 2012 ONCA 620 at paras. 25 and 44; Klassen v. Beausoleil, 2019 ONCA 407 at para. 25).

[11] In Sleep Clinic London Inc. v. Merchea, 2012 ONSC 3004, [2012] O.J. No. 2471, Flynn J. described the contemporary approach to pleadings:

“22 Long gone are the days when pleadings motions could be approached in an overly technical manner. Generally speaking, a party should be at liberty to craft a pleading in the manner it chooses, providing that the Rules of pleadings are not violently offended and there is no prejudice to the other side.”

[12] The Court of Appeal summarized the law on leave to amend motions in 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42:

“[25] The law regarding leave to amend motions is well developed and the general principles may be summarized as follows:

The rule requires the court to grant leave to amend unless the responding party would suffer non-compensable prejudice; the amended pleadings are scandalous, frivolous, vexatious or an abuse of the court's process; or the pleading discloses no reasonable cause of action: Iroquois Falls Power Corp. v. Jacob Canada Inc., [2009] O.J. No. 2642, 2009 ONCA 517, 75 C.C.L.I. (4th) 1, at paras. 15-16, leave to appeal to S.C.C. refused [2009] S.C.C.A. No. 367, 2010 CarswellOnt 425; and Andersen Consulting Ltd. v. Canada (Attorney General), [2001] O.J. No. 3576, 150 O.A.C. 177 (C.A.), at para. 37. [page688]

The amendment may be permitted at any stage of the action: Whiten v. Pilot Insurance Co. (1996), 27 O.R. (3d) 479, [1996] O.J. No. 227 (Gen. Div.), revd (1999), , 42 O.R. (3d) 641, [1999] O.J. No. 237 (C.A.), revd [2002] 1 S.C.R. 595, [2002] S.C.J. No. 19, 2002 SCC 18.

There must be a causal connection between the non-compensable prejudice and the amendment. In other words, the prejudice must flow from the amendments and not from some other source: Iroquois, at paras. 20-21; and Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 56 O.R. (3d) 768, [2001] O.J. No. 4567 (C.A.), at para. 65.

The non-compensable prejudice may be actual prejudice, i.e., evidence that the responding party has lost an opportunity in the litigation that cannot be compensated as a consequence of the amendment. Where such prejudice is alleged, specific details must be provided: King's Gate Developments Inc. v. Drake (1994), 17 O.R. (3d) 841, [1994] O.J. No. 633 (C.A.), at paras. 5-7; and Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 25 O.R. (3d) 106, [1995] O.J. No. 2220 (Gen. Div.), at para. 9.

Non-compensable prejudice does not include prejudice resulting from the potential success of the plea or the fact that the amended plea may increase the length or complexity of the trial: Hanlan v. Sernesky, [1996] O.J. No. 4049, 95 O.A.C. 297 (C.A.), at para. 2; and Andersen Consulting, at paras. 36-37.

At some point, the delay in seeking an amendment will be so lengthy, and the justification so inadequate, that prejudice to the responding party will be presumed: Family Delicatessen Ltd. v. London (City), [2006] O.J. No. 669, at para. 6.

The onus to prove actual prejudice lies with the responding party: Haikola v. Arasenau (1996), 27 O.R. (3d) 576, [1996] O.J. No. 231 (C.A.), at paras. 3-4; and Plante v. Industrial Alliance Life Insurance Co. (2003), 66 O.R. (3d) 74, [2003] O.J. No. 3034 (Master), at para. 21.

The onus to rebut presumed prejudice lies with the moving party: Family Delicatessen, at para. 6.” (State Farm at para. 25).

[13] In determining whether an amended pleading is legally tenable, the only question is whether the amendments disclose a cause of action and they are to be granted unless the claim is clearly impossible of success (Plante at paras. 19-22). It is unnecessary to consider whether the amending party is able to prove its amended claim and the court must read the amendments generously with allowances for drafting deficiencies assuming that the facts pleaded in the proposed amendment (unless patently ridiculous or incapable of proof) are true (Plante at paras. 19-22). Where an amendment is sought after the expiration of a limitation period, prejudice is presumed and the party seeking the amendment must lead some evidence to explain the delay and rebut the presumption of prejudice (Skrobacky (Litigation Guardian of) v. Frymer, 2014 ONSC 4544 at para. 14). The usual practice is to grant the plaintiff leave to amend unless it is clear that the plaintiff cannot improve its case by any further and proper amendment (Fasteners & Fittings Inc. v. Wang, 2020 ONSC 1649 at para. 63).

[14] Consistent with a flexible, realistic and pragmatic approach to pleadings, in exercising its discretion the court must also consider Rule 1.04(1) which requires the court to liberally construe the rules to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[15] Rule 25.11 states:

“The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action; (b) is scandalous, frivolous or vexatious; or (c) is an abuse of the process of the court.”

[16] In assessing pleadings under Rule 25.11, the court must consider the purpose of pleadings:

i.) to clearly and precisely define the questions in controversy between the litigants; ii.) to give fair notice of the precise case which is required to be met and the precise remedy sought; and iii.) to assist the court in its investigations of the truth of the allegations made. (See National Trust Co. v. Furbacher, [1994] O.J. No. 2385 at paras. 9 and 10) (Ontario Consumers Home Services v. Enercare Inc., 2014 ONSC 4154; Balanyk v. University of Toronto, at para. 27).

[17] The law with respect to Rule 25.11 can be summarized as follows:

i.) motions under Rule 25.11 should only be granted in the clearest of cases and a pleading should be read generously with the applicable principles in mind so as not to unfairly deny a party the benefit of the pleading; ii.) a document that demonstrates a complete absence of material facts will be declared to be frivolous and vexatious; iii.) portions of a pleading that are irrelevant, argumentative or inserted for colour, constitute bare allegations or that contain only argument and include unfounded and inflammatory attacks on the integrity of a party, and speculative, unsupported allegations or defamation should be struck as scandalous and/or vexatious; iv.) documents that are replete with conclusions, expressions of opinion, provide no indication whether information is based on personal knowledge or information and belief and contain many irrelevant matters will be rejected in their entirety; v.) anything which can have any effect at all in determining the rights of the parties can be proved, and consequently can be pleaded, however, the court will not allow any fact to be alleged which is wholly immaterial and can have no effect on the result; vi.) a pleading of fact will be struck if it cannot be the basis of a claim or a defence in the action and is designed solely for the purpose of atmosphere or if the only purpose is to cast the opposing party in a bad light; vii.) pleadings of historical facts, whether those facts are true or not, that have no relevance to the proceeding, will be struck; viii.) one of the purposes of Rule 25.11 is that since pleadings define the issues in an action if a party is required to respond to irrelevant facts, inquire into those facts on discovery and respond to evidence of those facts at trial, the litigation and trial will be diverted by inquires that have no connection to the real issues before the court; ix.) if the plaintiff does not, at the time of pleading, have knowledge of the facts necessary to support the cause of action, then it is inappropriate to make the allegations in the statement of claim as it is improper to allow conclusions to be pleaded baldly and without any supporting facts; x.) portions of a pleading that are irrelevant, argumentative or simply inserted for colour, or to impugn the behaviour or character of the other party unrelated to the issues in the ligiation should be struck as scandalous; material facts, not adjectives, will determine whether a defendant is liable and whether punitive damages are appropriate; xi.) a pleading may be struck on the ground that it may prejudice or delay the fair trial of the action where the probative value of the evidence would be outweighed by the time and effort involved and would seriously interfere with the fair and focused trial of the issues; xii.) to establish that there is an “abuse of process” the moving party must demonstrate that there is a collateral and improper purpose and a definitive act or threat in furtherance of a purpose not legitimate in the use of the process and some overt act or threat distinct from the proceedings themselves in furtherance of the improper purpose (Ontario Consumers at paras. 12-17; Taylor at paras. 20-31; Balanyk at paras. 27-30; George v. Harris, [2000] O.J. No. 1762 at para. 20; Canadian National Railway v. Brant, [2009] O.J. 2661 at paras. 27-29; National Energy Corporation v. Eco Energy Home Services Inc., 2014 ONSC 3778 at para. 10; Toronto (City) v. MFP Financial Services Ltd., [2005] O.J. No. 3214 at paras. 17-18; Miguna v. Toronto (Police Services Board, 2008 ONCA 799 at para. 21; Fasteners at para. 61; Yang v. Co-Operators General Insurance Company, 2021 ONSC 1546 at para. 22; Carney Timber Company, Inc. v. Pabedinskas at para. 15).

[18] The Plaintiffs submit that the Amended Counterclaim should be struck because it is legally untenable, has no merit and is bound to fail, is completely unrelated to the Plaintiffs and their claim regarding the alleged loans, not properly advanced against the Plaintiffs, scandalous, an abuse of process and will cause unnecessary delay of the trial of the main action. The Plaintiffs oppose the Proposed Amendments on substantially the same grounds further submitting that the Funds were advanced therefore the loans were made; there is no limitations defence because their claim was issued within time; there are no funds to impress with a trust under the Construction Act or any of the other trusts pleaded; and that Tammie did not misappropriate funds.

[19] The Defendants submit that the Funds are part of a larger transaction and investment whereby Rooney and Tammie, on behalf of TLR, and Ralph and Debbie, on behalf of LCCC, negotiated the purchase of shares by TLR in LCCC and Rooney transferred the Funds to JLH which advanced them to LCCC pursuant to informal notes. The Defendants further allege that Rooney and Tammie attended LCCC shareholders’ meetings and that LCCC’s counsel was drafting a Shareholders’ Agreement with the participation of Rooney and Tammie while funds continued to be transferred. The Defendants also assert that LCCC performed the work at the Properties without issuing invoices because it was understood that payment would be set off against advances for TLR’s investment, particularly since the work was being completed for TLR and family members some of whom were also investors and LCCC employees and/or own the Properties.

[20] For the reasons that follow, I have concluded that the Defendants should be granted to leave to amend their Original Statement of Defence and Counterclaim and the Plaintiffs’ motion to strike under Rule 25.11 should be dismissed.

[21] In arguing that the Amended Counterclaim and the Proposed Amendments are not legally tenable, the Plaintiffs ask this Court to make the following findings on the merits which are not appropriate or possible on the current record:

i.) that the Funds were advanced and the reasons why they were advanced are not relevant; ii.) that the Plaintiffs’ claims were brought within the relevant two-year limitations period and the Defendants have no defences under the Limitations Act; iii.) that there are no funds over which trusts under the Construction Act can be imposed and there is no basis to claim a constructive, equitable or resulting trust or quantum meruit; iv.) that Tammie did not misappropriate any funds.

[22] To establish that the Amended Counterclaim and the Proposed Amendments are not legally tenable, the Plaintiffs must demonstrate that they are clearly impossible of success or incapable of proof. This is a high bar to clear particularly where, as here, examinations for discovery have not been completed. On a generous reading of the Amended Defence and Counterclaim, I am unable to reach these conclusions on the record before me.

[23] In their Amended Defence and Counterclaim, the Defendants deny that the Funds were advanced and alternatively, plead that the Funds were less than the amount claimed or were transferred by TLR on its own behalf or by the Plaintiffs and certain Proposed Defendants by Counterclaim for the purpose of buying shares in LCCC. In affidavit evidence filed on this motion, the Defendants appear to acknowledge that the Funds were advanced but maintain that they were not loans but part of a larger investment in LCCC. These, together with findings regarding the limitations period, the alleged trusts and alleged misappropriation of funds, are all disputed issues which must be properly determined at trial or on a summary judgment motion on a complete or more fulsome record where proper findings of fact and credibility can be made. These are not proper issues for this Court to determine at the pleadings stage on the current record and as such, the Plaintiffs cannot satisfy the high onus that the Defendants’ allegations are incapable of proof or impossible of success.

[24] The Plaintiffs also submit that the Amended Counterclaim is contrary to Rule 27.01 because it is not properly directed at the Plaintiffs. The Plaintiffs argue that although the Defendants seek to join the Proposed Defendants by Counterclaim, the Amended Counterclaim must still be properly directed in part against one of more of the Plaintiffs. This argument has no merit. The Amended Counterclaim contains claims and allegations against Rooney with respect to the Newmarket Property and as an investor and there are causes of action and allegations against the Plaintiffs/Defendants by Counterclaim as a group.

[25] I also do not accept the Plaintiffs’ submissions that the Amended Counterclaim and the Proposed Amendments have no connection to the Plaintiffs’ claims. There are undisputed business and family relationships between the parties. The Defendants allege that the Funds characterized by the Plaintiffs as loans were part of an investment in LCCC and that payment for the work performed by LCCC with respect to the Properties was to be set-off against investments by TLR, Rooney, Tammie and Luigi. Given the allegations in the Amended Counterclaim, the Proposed Defendants by Counterclaim are necessary parties. I further conclude that there is some connection with the misappropriation claims against Tammie given her employment with LCCC and that some of the funds in question were allegedly misappropriated for materials related to the Newmarket Property.

[26] In some respects, the Amended Defence and Counterclaim could have been drafted with more precision and particularity. However, I am satisfied that overall it is sufficient and consistent with the underlying principle that the Defendants are entitled to draft it in the manner they choose given that they have not run afoul of the rules of pleading. In my view, the Amended Defence and Counterclaim provides sufficient notice and particulars to the Plaintiffs and the Proposed Defendants by Counterclaim of the case they must meet in order to plead and advance defences.

[27] The Plaintiffs have also not demonstrated that they would suffer any actual prejudice if the Proposed Amendments are allowed or the Amended Counterclaim is permitted to proceed. Their assertion that adding the Proposed Amendments would delay trial or make it longer and more complex does not constitute actual prejudice.

[28] With respect to the Plaintiffs’ Rule 25.11 motion, I reject their submissions that the Amended Counterclaim and the Proposed Amendments are scandalous, frivolous or vexatious or an abuse of process and should be struck. The Plaintiffs have not demonstrated that the Amended Counterclaim and the Proposed Amendments or any portions bear any of these characteristics or rise to this level. Accordingly, this is not the kind of clear case which calls for relief under Rule 25.11.

[29] The Plaintiffs assert that the Amended Counterclaim and the Proposed Amendments are scandalous because they are not properly directed at the Plaintiffs. I have concluded above that there is no basis for this argument. There is also no basis to conclude that the Amended Counterclaim and the Proposed Amendments are scandalous because they are irrelevant, argumentative or inserted for colour. The record also does not reveal any collateral purpose on the part of the Defendants outside of advancing defences and counterclaims in the litigation.

[30] The Plaintiffs also argue that “definitionally” the trial of their claim will be delayed if the Amended Counterclaim is not struck or the Proposed Amendments are granted. This is not sufficient. More than just a longer trial or the expected delay associated with adding a counterclaim or allowing amendments is required. Strathy J. (as he then was) described what is required in Carney Timber:

“a pleading may be struck on the ground that it may prejudice or delay the fair trial of the action where the probative value of the evidence would be outweighed by the time and effort involved and would seriously interfere with the fair and focused trial of the issues.”

[31] As with the Plaintiffs’ other submissions under Rule 25.11, this is not the case here particularly given the overlap of parties, relationships and disputed issue and I cannot conclude that granting the Proposed Amendments and permitting the Amended Counterclaim to proceed would interfere with a fair trial of the issues. Again, the present circumstances do not approach the threshold required to justify relief under Rule 25.11.

Motion For A Separate Trial

[32] In the alternative, the Plaintiffs request that if the Amended Counterclaim is not struck that it be tried separately from their claim for repayment of the alleged loans.

[33] Rule 27.08 states:

(1) A counterclaim shall be tried at the trial of the main action, unless the court orders otherwise. (2) Where it appears that a counterclaim may unduly complicate or delay the trial of the main action, or cause undue prejudice to a party, the court may order separate trials or order that the counterclaim proceed as a separate action.

[34] I was not referred to any case law specific to Rule 27.08. The Plaintiffs cite 3414493 Canada Inc. v. 505896 Ontario Limited et al in which Master Glustein (as he then was) canvassed the law on a motion to sever. He cited on Royal Bank of Canada v. Kilmer Van Nostrand Co. Ltd., 1994 O.J. No. 1476 (Gen. Div.), another case relied on by the Plaintiffs. Master Glustein held as follows:

“95 Under the approach of Molloy J. and Masters Abrams and Beaudoin, which does not impose the onus requirements of Elcano, considerations of justice and fairness are dominant. In essence, the court seeks to consider what is fair and just, given the consequences of a joined or separate action on each of the parties. In this regard, I adopt the passage of Wilkins J. in Royal Bank, relied upon by both parties (Royal Bank, at para. 19):

Although a party to litigation does have a right to have all of the issues tried at one time and although courts discourage multiplicity of proceedings, there are many factors relating to the trial of civil actions in a jurisdiction such as Toronto that recommend to the courts that all reasonable efforts be made to cut down the length of trials, to reduce the inconvenience to witnesses, to curtail the expense wherever practicable and to protect and preserve the very limited public resources available to conduct such trials. These considerations ought not to overwhelm the considerations of justness and fairness. At all times, these latter concepts are dominant.

[35] In Royal Bank, Wilkins J. held the following:

20 It is not all cases in which issues can be severed for separate trial. This process is certainly one that ought to be done carefully where the circumstances are appropriate. In my view, the separation of an issue for trial on the grounds of convenience and expedience should only be adopted when it is demonstrated that those grounds are strongly supported on the facts. In a weak case or a questionable one where a clear preponderance of convenience and expedience has not been demonstrated, the action should proceed in the normal way.

21 The main action at bar is a straightforward action on a guarantee in writing. Under ordinary circumstances, it would be expected that such an action would be brief and of modest expense. The defendant in the action, having raised all of the complex issues necessary to convert the action into a trial of ten weeks or more in duration, should have some responsibility to satisfy the court that those defences are raised on more than a handful of straw. The courts ought not to prevent a defendant in the position of KVN from raising any and all defences open to an imaginative counsel but, on the other hand, those raising such defences should not be able to unduly and unreasonably prolong the litigation if the circumstances are such that there can be an appropriate separation of threshold issues which, upon their trial, have a reasonable prospect of determining aspects which will, in the overall, shorten and reduce the complexity of the balance of the litigation. As I have already stated, it is my view that parties who wish to raise imaginative and prolix defences should be required to give them some support in a circumstance where they oppose the separation of the trial of a threshold issue.”

[36] In my view, it is fair and just in the circumstances for all claims in these proceedings to be tried together. All of the individual parties are family members, most of them involved in business together through the closely held corporate parties, some as employees, others as investors and some who own the Properties where improvements at issue were made. Unlike Royal Bank, there is no threshold issue that can be severed and in fact, there is overlap with respect to the disputed issues given the different characterizations of the Funds and the relationships between the parties. There is also no basis to conclude that the Amended Counterclaim is “imaginative” or “prolix” or being advanced to unnecessarily lengthen the proceedings.

[37] Allowing the Amended Counterclaim to proceed together with the Plaintiffs’ claims would also not unduly complicate, delay or cause prejudice to the Plaintiffs. Due to the overlap and interconnected issues, ordering the Amended Counterclaim to be tried separately would not achieve material costs savings or efficiencies and runs the risk of inconsistent findings. Having all claims tried together is also consistent with the principle that a multiplicity of proceedings is to be avoided, the most expeditious and least expensive resolution of the disputed issues pursuant to Rule 1.04(1) and the best use of limited court resources.

IV. Disposition and Costs

[38] Order to go dismissing the Plaintiffs’ motions and granting the Defendants leave to amend their Original Defence and Counterclaim in the form filed. I also order and direct the parties to adhere to the following timetable which may be amended on consent or spoken to before me:

i.) September 30, 2022 – completion of examinations for discovery; ii.) October 31, 2022 – answers to undertakings and positions on refusals; iii.) November 30, 2022 – deadline to bring motions arising from examinations for discovery.

[39] If the parties cannot agree on the costs of the motions, they may file written costs submissions not to exceed 3 pages (excluding Costs Outlines) on a timetable to be agreed upon by counsel.

Released: May 5, 2022

Associate Justice McGraw