Court File and Parties

Abrams v. Neumann, CITATION: 2016 ONSC 5992

Court Files No.: 10378/15 10824/15 10197/14

Date: 2016-09-23

Superior Court of Justice – Ontario

Re: Marion Abrams and Michael Abrams, Plaintiffs (Moving parties) And: Gary Neumann, Niagara Regional Mortgages, Blair Rose, Rose and Rose Barristers and Solicitors, Community Trust Company Ltd., New Haven Mortgage Corporation, Robert Dinning and Marilyn Dinning, Defendants (Responding) (10378/15)

And Re: New Haven Mortgage Corporation, Robert Dinning and Marilyn Dinning, Plaintiffs And: Marion Abrams and Michael Abrams, Defendants (10824/15)

And Re: Community Trust Company, Plaintiffs And: Marion Abrams and Michael Abrams, Defendants (10197/14)

Before: Mr Justice Ramsay

Counsel: Margaret Hoy for the Moving Parties, in writing

Endorsement

[1] This is a motion in writing for leave to appeal to the Divisional Court from an interlocutory order made by Maddalena J.

[2] The Plaintiffs (Abrams) were sued by New Haven Mortgage Corporation and Robert and Marilyn Dinning (6352/14) on a mortgage on real property. They were also sued by Community Trust Company (10197/14) on a mortgage on the same property. These actions were filed in December 2014.

[3] On March 4, 2015 in the Community Trust Company Action, Braid J. adjourned the Abrams’ motion to join the action with the New Haven Mortgage Corporation action, which was at that time pending in Milton. On the return date, April 15, 2015, I dismissed the motion as abandoned, as no one appeared.

[4] On March 15, 2015 the Abrams filed an action (10378/15) naming as defendants the plaintiffs of the first two actions as well as the Abrams’ own mortgage broker and banker.

[5] On October 26, 2015 Daley J. transferred the New Haven action here (Welland). The action was given the new file number 10824/15. Daley J. also directed that the New Haven plaintiffs’ summary judgment motion proceed before the end of January 2016. It did not.

[6] The Abrams moved to consolidate all three actions. On July 13, 2016 Maddalena J. dismissed that motion. She found that there was insufficient connection among the transactions. Two involved separate mortgages given to separate mortgagees. The third action involves new defendants and different legal issues. Maddalena J. also noted that the actions were at different stages of proceeding. The New Haven action was ready to go to a summary judgment motion. The others were not.

[7] The Abrams ask for leave to appeal on the ground in Rule 62.02(4)(a) of the Rules of Civil Procedure: that there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and that it is desirable that leave to appeal be granted.

[8] The conflicting decision is alleged to be that of Master Dash in 1014864 Ontario Ltd. v. 1721789 Ontario Inc., 2010 ONSC 3306. In that case Master Dash was asked to consolidate three actions brought by the purchaser of real property. In the first action the purchaser claimed against his lawyer for negligent advice. In the second he claimed against the vendor for misrepresenting that the display sign on the property had the required permit. In the third the purchaser was the defendant: his neighbour sued him for nuisance for having a display sign with no permit.

[9] Master Dash consolidated the actions by the purchaser against the vendor and his own lawyer. He declined to add the neighbour’s action.

[10] In Belokon v. Kyrgyz Republic, 2016 ONSC 995, Stewart J. said:

Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, "desirable that leave to appeal be granted". A "conflicting decision" must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (3d) 542 (Div. Ct.).

[11] This is not a conflicting decision. First, it is the decision of a lower level judicial officer. An appeal from the decision of a master on an interlocutory motion lies to the Superior Court: Courts of Justice Act, s.17(a). That is sufficient to dispose of the motion adversely to the Moving Parties.

[12] Second, Master Dash and Maddalena J. applied the same principles to different facts, which is why some different results obtained. That, too, is sufficient to dispose of the motion.

[13] Master Dash consolidated two actions involving the same real estate transaction: the purchase and sale of a property. Maddalena J. declined to consolidate two actions involving two different transactions, namely two mortgages. In both cases consolidation was denied between actions involving distinct parties and distinct legal obligations.

[14] The Abrams’ action involves claims that their mortgage broker and lawyers misled them about what was to be paid from the proceeds, the lawyers charged too much, and the terms of the loans were unconscionable. Reading the statement of claim one wonders why the lenders are even named as defendants. The allegations in the Abrams’ action have little to do with the mortgagees. It is difficult to see where the danger of inconsistent findings would arise.

[15] The motion judge’s decision was amply supported by the evidence. Moreover, the decision to consolidate actions, while governed by the criteria set out in Rule 6 of the Rules of Civil Procedure, is essentially a discretionary decision. The judge was entitled to consider delay that consolidation would entail to the party that was ready to go.

[16] Leave to appeal is denied. As the Responding Parties filed no argument, there will be no order as to costs.

J.A. Ramsay J. Date: 2016-09-23