Court File and Parties

COURT FILE NO.: 53238A1

DATE: 2013/11/05

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Chris Eftimovski and CLE 72330 Limited (Plaintiffs)

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Robert Faris (Defendant)

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Three Seasons Homes Limited (Third Party)

BEFORE: Justice H. A. Rady

COUNSEL: Catherine M. Patterson, for the Plaintiffs/Defendants by Counterclaim Peter C. Card, for the Defendant/Plaintiff by Counterclaim Mandy L. Seidenberg, for the Third Party, Three Seasons Homes Limited

HEARD: April 15, 2013

ENDORSEMENT

Overview

[1] There are several motions before the court. The third party, Three Seasons Homes Limited (TSH) seeks as against the defendant, Robert Faris, summary judgment dismissing the claims contained in paras. 21(d) and 32 to 34 of Faris’ statement of defence and counterclaim, on the basis that they are statute barred pursuant to the Limitations Act. It seeks summary judgment dismissing the third party claim against it by CLE 72330 Limited (CLE) and Eftimovski as disclosing no cause of action.

[2] The plaintiffs, Eftimovski and CLE, seek as against the defendant Faris an order granting leave to amend their reply and defence to counterclaim to plead that certain claims made by Faris in his counterclaim are statute barred pursuant to the Limitations Act and for summary judgment dismissing Faris’ claims contained in paras. 21(b), (c), (d) and 22 of Faris’ counterclaim on the basis that they are statute barred.

[3] In response, Faris seeks leave to amend his defence to expressly plead, among other things, that claims made by Faris “flow from the same transactions or relationship of the plaintiffs to Faris and are equitable setoffs”. As a result, it is submitted that the limitation period does not apply.

The London Action

[4] These motions are the latest salvo in a long running series of litigation that date back a decade or more. The facts are somewhat complicated and it is difficult to easily summarize the proceedings given their multiplicity.

[5] Eftimovski and CLE, the plaintiffs and defendants by counterclaim, commenced this action against Robert Faris, the defendant, and plaintiff by counterclaim, in February 2007. Eftimovski and CLE seek damages for breach of contract by Faris in relation to an agreement of purchase and sale for a property located in the Town of Bradford, Ontario. On August 31, 2010 Faris counterclaimed against Eftimovski and CLE for breach of contract, payment of a purchase money mortgage, and for misappropriation and conversion. Faris also sought an accounting from Eftimovski with respect to the amount paid to discharge a mortgage registered against the property in favour of TSH.

[6] As a result of the counterclaim, Eftimovski and CLE as defendants by counterclaim commenced the third party claim against TSH on August 22, 2011. In the third party claim, Eftimovski and CLE seek contribution and indemnity for any amount they may be ordered to pay Faris by reason of the alleged failure on their part to obtain a reduction of the TSH mortgage. The claim arises as a result of Faris’ request for an accounting and his allegation that Eftimovski and CLE failed to dispute the amount owing under the TSH mortgage. They allege that if they are found liable to Faris, TSH would be unjustly enriched and it should indemnify them for any amount ordered to be paid.

The Facts

[7] Faris owned a property known municipally as 2901 6th Line, Bradford, Ontario. Faris mortgaged the property to TSH on October 22, 2001. The principal was $545,900.00 with interest at 8% per annum. The original mortgage term was for one year with payment of both interest and principal to be made yearly.

[8] Eftimovski made an offer to purchase the property on February 28, 2003 for $1.7 million. The TSH mortgage contained a clause requiring Faris to give TSH a right of first refusal on any offer that Faris was willing to accept. It is alleged that Faris advised TSH that he had received an offer from Eftimovski for $2 million. TSH advised that it would not exercise its right of first refusal. Eftimovski says that he was unaware of the right of first refusal or of Faris’ representation that he had made a $2 million offer.

[9] In the meantime, the Eftimovski purchase from Faris transaction was scheduled to close in early June 2003. TSH refused to discharge its mortgage. It took the position that it was entitled to a right of first refusal to purchase the property for the amount offered by Eftimovski. At the time, the amount outstanding under the mortgage was $620,546.31. Eftimovski alleges that as a result of TSH’s position, Faris refused to close the transaction.

[10] Litigation followed about whether TSH’s right of first refusal under the mortgage was valid. Separate applications were brought by Eftimovski, Faris and TSH. Faris sought against TSH the right to redeem the mortgage, an order that TSH discharge the mortgage and a declaration that TSH had no right of first refusal.

[11] The applications were consolidated and heard by Justice Cameron. In a decision released in August 2004, he ruled that Faris was in breach of the right of first refusal and TSH was granted specific performance.

[12] The Court of Appeal disagreed. On November 16, 2005, it held that the right of first refusal had expired by the time Eftimovski made his offer in February 2003. An attempt to appeal from that decision was refused.

[13] On November 23, 2005, Faris and Eftimovski signed a mutual release pursuant to which the parties acknowledged that the first sale and purchase transaction was terminated and there was a release of any claims arising as a result.

[14] On November 24, 2005, a second agreement of purchase and sale was entered into pursuant to which Faris agreed to sell the property to CLE, a company of which Eftimovski is the sole officer and shareholder. The agreed price was $1.7 million dollars. The agreement provided that “if this transaction is subject to goods and services tax, then such tax shall be included in the purchase price. If this transaction is not subject to GST, vendor agrees to certify on or before closing, the transaction is not subject to GST.” Faris says that he provided a certificate and no GST was in fact payable.

[15] The closing date was originally November 25, 2005 but was extended to December 12, 2005.

[16] The agreement further provided that CLE agreed to allow Faris to work the land for five years. Faris says that Eftimovski also agreed that he could continue to reside on the property. Faris continued to reside in a trailer purchased by Eftimovski located on the property until October 2006 at which time he says CLE gave him ten days’ notice to vacate, destroyed the trailer and removed his personal belongings.

[17] It is alleged that prior to closing, Faris and CLE amended the terms of consideration for the deal from half cash/half mortgage back to one where CLE assumed or was given full credit for the amount claimed as owing to TSH under its mortgage ($789,245.18). CLE also received credit for monies owing by Faris to Eftimovski. Faris took a vendor take back mortgage of $522,000.

[18] Faris’ counsel wrote to TSH on November 25, 2005 to request a mortgage discharge statement and advise that Faris wished to pay off the mortgage and receive a discharge. TSH responded December 7, 2005 by sending a mortgage statement as of that date. The amount owing was $788,381.18 which included interest that had accrued since June 9, 2003 when the first sale transaction was to close and during the time the parties were involved in litigating the right of first refusal issue. Faris did not dispute that amount with TSH. Counsel for Eftimovski and CLE was copied with that letter.

[19] CLE and Faris entered into another agreement on December 9, 2005 prior to the sale transaction closing. Eftimovski signed the agreement as guarantor. The agreement is called the TSH readjustment agreement by Faris in the material that he has filed on this motion.

[20] One of the terms provides as follows:

1. Payment. The purchaser shall pay to the lender the principle sum of $545,900.00 together with interest on the second day of June, 2003 and any taxes and charges paid by the mortgagee to the Town of Bradford on behalf of the mortgagor. Any additional interest and costs demanded by the mortgagee to obtain a discharge as the subject mortgage shall be paid under protest and be litigated by the purchaser by having the matter submitted to and decided by a court of competent jurisdiction or upon such demand for additional interest and costs, the money demanded be paid into court upon application to obtain a court order to have the said mortgage discharged shall be made by the purchaser and thereafter to challenge such excessive demand. Any credit or excess payment obtained by such court proceedings shall be given to the mortgagor. The grounds for such action of excess payment are set out in the mortgagor’s application to pay the monies into court relative to this mortgage and withdrawn by the purchaser on the 8^th day of December 2005.

[21] Faris says that he believed that he would receive a payment back from CLE of approximately $160,000 to $170,000 being the difference between the amount Faris gave CLE as a credit on the closing for the TSH mortgage and the amount that Faris believed was properly owing. Faris says that he expected that he would receive such repayment or re-adjustment within six months to one year.

[22] The CLE purchase transaction closed. CLE received a transfer of the property from Faris which was registered on December 12, 2005. The land transfer tax affidavit shows that CLE assumed a mortgage totalling $789,245.18. CLE’s counsel sent a cheque in that amount on December 13, 2005 to counsel for TSH in order to discharge the mortgage. There was no protest or other objection made in the covering letter in respect of the amount being paid.

[23] A discharge of the mortgage was registered on title to the property on June 22, 2006, some six months later.

[24] In February 2007, Eftimovski and CLE sued Faris in the claim issued in London. They obtained default judgment against Faris, which was ultimately set aside on August 25, 2010 after further litigation.

[25] As I have already noted, Faris counterclaimed against Eftimovski and CLE by defence and counterclaim served August 31, 2010. Eftimovski and CLE then commenced the third party claim against TSH seeking contribution and indemnity from it.

[26] Faris also commenced an action in relation to the 2005 sale purchase transaction against various parties, including Eftimovski and CLE but not against TSH. A notice of action was issued on December 12, 2007 in Barrie and the statement of claim followed on January 11, 2008. In his statement of claim, Faris alleged that “the plaintiff was also required to accept large sums as credits to the sale price for other outstanding mortgages for which he was not given the opportunity to verify or question. He was advised by his solicitors that he ‘had no choice’ but to accept these figures, including an amount as a credit to the sale price in excess of three-quarters of a million dollars”. Also included in the Barrie statement of claim was a claim for damages against Faris’ former solicitor and real estate agents.

[27] The claims made by Faris against Eftimovski and CLE in the Barrie action are the same as those advanced in the counterclaim in the London action (including a claim for breach of contractual and common law duty to deal fairly and in good faith with Faris). Faris) except that in the counterclaim, Faris also seeks an accounting for the amount paid to TSH pursuant to the mortgage assumed by CLE.

[28] The Barrie action was dismissed for delay by Justice Healey on February 2, 2012 and her decision was upheld by the Court of Appeal on June 4, 2013.

[29] Finally, in yet another action commenced in Barrie, Faris has sued TSH for $500,000 in damages for breach of contract because of TSH’s refusal to discharge its mortgage in June 2003 when the mortgage would have been $620,546.31. The status of that action is unclear to me.

The Parties’ Positions

[30] TSH submits as follows:

1. a) The counterclaim for an accounting should be dismissed as being statute-barred by the expiry of the limitation period.

b) The third party claim should be dismissed as being statute-barred by the expiry of the limitation period. It does not assert a valid claim for contribution and indemnity, because the losses asserted would not arise from shared responsibility for the same loss. Consequently, the limitation period in s. 18 of the Limitations Act, 2002 does not apply. The two-year limitation period would run from either the tender of payment of the mortgage by the claimants on December 13, 2005, or the discharge of the mortgage registered on June 22, 2006. Either way, it has expired and the claim is statute-barred.

2. a) The third party claim does not disclose a cause of action because there can be no claim for contribution and indemnity for damages arising from breach of a contract against a stranger to that contract. The stranger does not share responsibility for that same loss, which is essential to a claim of contribution and indemnity.

b) Even if the claim for contribution and indemnity were interpreted as a claim for unjust enrichment, apart from such claim being statute-barred, the third party claim does not disclose a cause of action for unjust enrichment. The deprivation alleged by the claimants (having to pay Faris for breach of contract pursuant to the counterclaim) does not correspond to any enrichment to TSH. Even if there were, the payment by the claimants to TSH was made pursuant to a contract, and therefore for a juristic reason.

c) Faris’ Counterclaim for an accounting from Eftimovski and CLE should be dismissed. TSH has already provided an accounting, detailing how it arrived at the amount of $789,245.18. That amount was paid to it by Eftimovski and CLE. They did not profit. Further, an accounting is not a freestanding action, but is a remedy. Faris’ claim is in breach of contract, and the remedies for breach of contract are available.

[31] The position of Eftimovski and CLE on the TSH motion can be briefly stated:

1. the claim for an accounting by Faris is statute barred (in support of TSH’s position);

2. if the claim for an accounting by Faris is not statute barred then the third party claim for contribution and indemnity is not statute barred; and

3. the third party claim does disclose a cause of action.

[32] The essence of Faris’ position is that it was only during the course of litigation to set aside the default judgment that he learned the following:

1. that $789,145.18 was paid by CLE to TSH to discharge its mortgage;

2. that this amount was paid immediately after the closing of the second sale purchase transaction, namely on or about December 13, 2005; and

3. that no steps were taken by Eftimovski or CLE to pay under protest or to register proceedings to determine the proper amount owing under this mortgage.

[33] Faris says he first learned this information in February 2010 when Eftimovski was being cross-examined on the motion to set aside the default judgment.

[34] TSH, Eftimovski and CLE respond to Faris’ contention by pointing out that at the time the first Faris action was commenced in Barrie, Faris and his counsel were aware that the TSH mortgage had been discharged; that Faris was unhappy with the amount of the credit he had given to CLE in respect of the mortgage; and that Faris was aware that he still had not received any “re-adjustment” from TSH.

[35] Moreover, Faris retained his current solicitor in November 2007 and a search of title was undertaken at that time. Faris has conceded that he learned at that time that the TSH mortgage had been discharged in June 2006.

[36] TSH, Eftimovski and CLE submit that by November or December 2007, Faris had discovered he had a cause of action against Eftimovski and CLE for an accounting. The accounting was not requested until August 2010, more than two years later.

The Impugned Paragraphs

[37] Faris’ statement of defence and counterclaim seeks the following relief:

21a. The Defendant (Plaintiff by Counterclaim), hereinafter “the Defendant”

claims judgment from one or both of the Plaintiffs (Defendants by

Counterclaim), hereinafter “the Plaintiffs”, jointly and severally, firstly in the

following amount(s):

i) $504,191.00 as the estimated principal amount owing to the Defendant as of May 12^th, 2007 by the Plaintiffs as the purchasers pursuant to a purchase money mortgage on real property located in or near the Town of Bradford-West Gwillimbury in the County of Simcoe (“the Mortgage”);

ii) interest on the said or correct principal amount at the contracted rate of 4 % per annum calculated half-yearly not in advance from and after May 12^th, 2007, the date the contracted payments under the Mortgage stopped;

iii) compound interest upon the amounts in default from and after the default, in accordance with the terms of the Mortgage, set out in its Standard Charge Terms;

iv) possession of the aforesaid mortgaged property (“the Property”);

iv) pre-judgment and post-judgment interest on the said principal sum at the aforesasid [sic] rate;

or, in the alternative,

v) foreclosure of the said Plaintiffs’ interest in the Property;

and, in any event,

vi) costs against the Plaintiffs on the substantial indemnity scale;

21b. In addition or in the alternative, the Defendant claims against the

Plaintiffs damages in the amount of $1.3 million dollars for both breach of

contract and breach of their contractual and common law duty to deal fairly

and in good faith both in the processing of and following the completion of the

2005 version of the Agreement of Purchase and Sale (sometimes referred to

herein as “Deal # 1A”) wherein the Plaintiffs purchased the Property from the

Defendant.

21c. In addition or in the alternative the Defendant claims damages from these Plaintiffs (Eftimovski and CLE 72330 Ltd) upon the following bases [sic]:

i) for misappropriation or conversion of his personal property in the nature of farm equipment including tractors, mechanics’ tools including power tools, farm and other equipment, such damages totalling at least $50,000.00, especially to the Defendant who had the expertise and experience to make this equipment workable and valuable to him, and capable of earning a living for him;

ii) for destruction of his trailer, including increasing the amount awarded by 25% as aggravated damages upon the basis that this trailer constituted the Defendant’s living quarters at the time;

iii) for destruction of his stored grains;

iv) for loss of use or rentals or profits obtained from these lands;

21d. In addition the Defendant claims an accounting from the Plaintiffs as to what and/or how much was paid to discharge a mortgage registered against the Property in favour of Three Seasons Homes Limited.

22. The Defendant repeats and relies upon the allegations contained in his Statement of Defence in support of this Counterclaim. In addition the Defendant pleads that by the terms of the 2005 version of their agreement to convey the lands to the Plaintiffs the Defendant had the right to the use including any gross profits of the Property for a full period of five (5) years following the completion of this transaction.

23. On the closing of Deal # 1A in December of 2005 the Defendants [sic]

managed to get the Defendant to agree to credit the Plaintiff CLE with the full amount of $789,245.18 as the amount claimed to be owing upon a mortgage then registered against the Property in favour of Three Seasons Homes Limited. However the Plaintiff Eftimovski disputed this amount as properly owing and agreed with the Defendant to pay only the face amount of the mortgage as originally registered in October of 2001, i.e. $545,900.00.

34. Having made this representation the Plaintiffs however paid the full amount claimed to be owing by TSH without protest and without litigation. The Defendant has learned that the said mortgage was in fact discharged in June of 2006 without notice to the Defendant and to this date neither Plaintiff has carried through with its agreement to account to the Defendant for such difference.

The Law

[38] Rule 20 permits a motion judge to summarily determine an issue where the judge is satisfied that there is no factual or legal issue raised by the parties that requires a trial for its fair and just resolution, and it can be fairly and justly resolved by an exercise of the powers available on a motion for summary judgment. The principles set out in subrule 20.04 apply equally to third party claims and counterclaims: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764.

[39] In Combined Air, the Court of Appeal identified three types of cases that are generally amenable to resolution by summary judgment as follows:

(a) where the parties jointly move to have all or part of a claim resolved by summary judgment, and the court is satisfied it is appropriate to grant summary judgment

(b) where the claim or the defences are clearly without merit; and

(c) where there is no genuine issue requiring a trial, and the trial process is not required in the interest of justice.

[40] In determining whether a matter is appropriately resolved on a motion for summary judgment, the “full appreciation test” is to be applied. The question the motion judge must ask is whether a full appreciation of the evidence and the issues that are required to make dispositive findings can be achieved by way of summary judgment, or can a full appreciation only be achieved by way of a trial.

[41] A case with a voluminous record, numerous witnesses and conflicting evidence may not permit a “full appreciation” of the evidence and issues on summary judgment.

The Amendments

[42] Rule 26.01 provides that “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.” Notwithstanding the Rule’s mandatory language, the courts must be satisfied that the proposed amendment is tenable in law. See Teva Canada Ltd. v. Bank of Montreal, 2012 ONCA 486.

[43] The pleading of the Limitations Act and the expiry of the limitation period are clearly tenable at law and no non-compensable prejudice arises. Therefore, the plaintiffs Eftimovski and CLE are granted leave to amend their claims as requested.

[44] The next issue is whether Faris should be permitted to amend his claim as he seeks to plead equitable set off, which he submits would not be barred by the limitation period.

[45] In my view, the proposed amendment sought by Faris does not add a new cause of action. Rather, it seeks additional relief based on the facts already pleaded. Support for this conclusion is found in Dee Ferraro Limited v. Pellizzari, 2012 ONCA 55. In that case, the appellants appealed from an order dismissing their motion for leave to amend their statement of claim. The appeal was allowed.

[46] Writing for the court, Strathy J. (ad hoc) noted the following:

In my respectful view, the motion judge erred in concluding that the proposed amendments added new causes of action. The original pleading, while far from elegant and orderly, contains all the facts necessary to support the amendments. The amendments simply claim additional forms of relief, or clarify the relief sought, based on the same facts as originally pleaded.

The distinction between pleading a new cause of action and pleading new or alternative remedies based on the same facts is set out in one of the seminal cases, Canadian Industries Ltd. v. Canadian National Railway Co., 1940 346 (ON CA), [1940] O.J. No. 266 (C.A.), affd. 1941 16 (SCC), [1941] S.C.R. 591. The plaintiff sued for damages following the destruction of a cargo of sodium cyanide due to a derailment on the defendant’s railway line. He pleaded that the defendant was a common carrier and that the goods had been damaged. The trial judge allowed an amendment, at trial, to plead negligence. Middleton J.A., writing for the court, held at para. 18 that the amendment was properly allowed – it was not the institution of a new cause of action, but simply an alternative claim with respect to the same cause of action: “The amendment relates to the remedy sought upon facts already pleaded.”

[47] The court emphasized the need to distinguish between an amendment to plead a new cause of action and one that simply pleads a different remedy.

[48] In this case, the statement of defence and counterclaim contain broad allegations including breach of contract and the duty (at contract and common law) to deal in good faith. It refers to the claim advanced in the Barrie action. The claim for set off does not add any material facts to those already pleaded. It is simply an alternative form of relief based on facts already pleaded.

[49] The amendment is therefore granted.

The Limitations Issue

[50] In my view, there is a genuine issue requiring a trial on the issue of the timeliness of Faris’ counterclaim, whether pleaded as a request for an accounting or equitable set off. I say this for several reasons.

[51] First, it must be remembered that Faris commenced an action in Barrie seeking various relief against Eftimovski and CLE (albeit not an accounting) that mirrors the relief sought in the counterclaim. There seems no question but that action was brought in time. It seems to me that an accounting might have been one of the remedies a court might have considered had the case been determined in favour of Faris on its merits. The action, however, has not been and will not be dealt with on its merits, having been dismissed for delay.

[52] Second, the counterclaim arises by virtue of the commencement of the main action. In this case, it is not an originating process which is how a proceeding is commenced as set out in Rule 14.01(1). The Limitations Act, 2002 provides that “a proceeding shall not be commenced...after the second anniversary of the day on which the claim was discovered.” Rule 1.03 defines “originating process” and makes it clear that it does not include a counterclaim that is only against persons who are parties in the main action – which is the case here. The applicability of the limitation period to such a counterclaim is a question of law that is best left for trial or perhaps a Rule 21 motion.

[53] Third, the reasoning set out above with respect to the amendment issue applies here as well. The accounting being sought is a remedy and not a free standing cause of action. The essential material facts grounding the claim for this remedy are all set out in the defence and counterclaim.

[54] It is noteworthy that the defence and counterclaim were not delivered for a considerable period of time. Faris had been noted in default and judgment against him obtained. Faris’ motion to set aside the default was vigorously opposed and there was a lengthy delay before relief was obtained. The extent to which the court is entitled to consider these circumstances in determining whether a limitation period has expired seem to me to raise a genuine issue for trial.

[55] Finally, the issue of discoverability is also a genuine issue for trial. The Limitations Act provides that a claim is discovered on...“the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known...” (emphasis added). Given the factual background and the allegations of Faris’ impecuniosity, in my view, the interests of justice require a trial to fully explore when Faris knew or ought to have known of his claim.

The Third Party Claim

[56] The final issue for determination is whether the third party claim discloses a cause of action.

[57] I have concluded that a triable issue exists respecting the claim for contribution and indemnity against TSH. The claim may be somewhat unconventional but its basis is not difficult to understand.

[58] Eftimovski and CLE allege that TSH was wrong to insist on the quantum it did in December 2005 to discharge the mortgage. TSH took the position it had the right to purchase the property, a position that did not ultimately prevail in the Court of Appeal. Interest and costs continued to accumulate during the time the issue was litigated and there is an issue respecting TSH’s entitlement to do so. Its refusal to discharge the mortgage may be a breach of contract as Faris has alleged in his action against TSH and a breach of his equity of redemption. Part of the loss claimed by Faris against Eftimovski and CLE is for the interest and costs that accumulated while TSH (unjustifiably as it turns out) refused to discharge its mortgage.

[59] Rule 29 provides as follows:

A defendant may commence a third party claim against any person who is not a party to the action and who,

(a) is or may be liable to the defendant for all or part of the plaintiff’s claim;

(b) is or may be liable to the defendant for an independent claim for damages

or other relief arising out of,

(i) a transaction or occurrence or series of transactions or occurrences

involved in the main action, or

(ii) a related transaction or occurrence or series of transactions or occurrences; or

(c) should be bound by the determination of an issue arising between the

plaintiff and the defendant.

[60] In my view, the third party claim falls squarely within Rule 29(a) and (c). I need not determine that TSH is liable to Eftimovski and CLE; only that it might be.

[61] Essentially, the third party claim seeks relief against TSH being unjustly enriched as a result of their refusal to discharge the mortgage. In order to succeed, Eftimovski and CLE will have to establish:

a) TSH’s enrichment;

b) their corresponding deprivation (if Faris is successful against them); and

c) an absence of juristic reason for the enrichment.

See Garland v. Consumers Gas Co., 2004 SCC 25.

[62] TSH asks the court to determine these issues on this Rule 20 motion in its favour. However, I need not decide whether Eftimovski and CLE will succeed. The issue is whether the claim as pleaded discloses a cause of action. I have concluded that it does. Triable issues are raised for each of the elements identified above.

[63] There is a practical consideration at play here. I have already commented on the number of actions that have been commenced all seeking to litigate essentially the same disputes. Section 138 of the Courts of Justice Act provides that “[a]s far as possible, multiplicity of legal proceedings shall be avoided”. By having all of these issues canvassed in this one action, it seems to me that the spirit and intent of that provision is respected. The possibility of inconsistent decisions is avoided and there is a corresponding savings of judicial resources.

[64] The parties may wish to consider a motion for the appointment of a judge under Rule 37.15.

[65] If the parties cannot agree, I will receive brief written submissions on costs within 30 days.

“Justice H. A. Rady”

Justice H. A. Rady

Date: November 05, 2013