Court File and Parties
Oshawa Court File Nos.: CV-17-2964 and CV-17-3457 Date: 2018-08-03 Superior Court of Justice - Ontario
Re: Fourteen Estates Limited, Plaintiff And: Mandy Marie Jensen, Defendant
Before: The Honourable Mr. Justice C.F. de Sa
Counsel: Melissa Seal, Counsel for the Plaintiff William F. Kelly, Counsel for the Defendant
Heard: July 13, 2018
Endorsement
[1] The Plaintiff, Fourteen Estates Limited (“Fourteen Estates”), brings a motion for an Order that two separate actions share common processes and proceed on a common timetable.
[2] According to the Plaintiff, the actions bear many common elements, are between the same parties (save and except for the Defendant’s spouse being an additional defendant in the Lien Action), and there is a significant overlap with respect to the facts and matters in issue in each action.
[3] The contract dispute (the “Lien Action”) relates to a contract between the parties on or about August 25, 2016 for the construction of a custom residential home (the “Custom Home”) in or around Kawartha Lakes.
[4] On or about November 2, 2017, Fourteen Estates commenced a libel action (the “Libel Action”) against the Defendant alleging that the Defendant made libelous and defamatory statements on the internet and otherwise in relation to the work performed by Fourteen Estates with respect to the construction of the custom home.
[5] Subsequently, on or about December 20, 2017, Fourteen Estates commenced the Lien Action against the Defendant alleging that amounts owing by the Defendant to Fourteen Estates pursuant to the Contract remained unpaid.
[6] The position advanced by the Defendant in both actions is based on the assertion that construction of the Custom Home was deficient, and that the Plaintiff’s management of the Custom Home project was likewise negligent and deficient. The defences assert:
In the Lien Action, that no further funds are owing to Fourteen Estates due to alleged deficiencies in the work performed in the construction of the Custom Home; and
In the Libel Action, that the Defendant’s statements are not defamatory because they are true in light of Fourteen Estates’ deficient work, and therefore the Defendant has not committed a tortious act.
[7] The Defendant resists the sharing of common processes in the two actions. According to the Defendants, the Lien Action is a complex action involving very serious deficiencies and a number of issues. Sharing common processes will only complicate and delay the Lien Action.
[8] The Defendants also have two separate counsel representing them in the two separate actions. Common discoveries will require both counsel to attend for portions of examinations that are not relevant to their respective actions. This will result in a significant increase of costs to the Defendants.
Analysis
[9] Rule 6.01 of the Rules of Civil Procedure provides that the Court may order proceedings be consolidated, or give such directions as are just, where:
(a) they have a question of law or fact in common;
(b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or
(c) for any other reason an order ought to be made under this rule
[10] In both the Lien Action and the Libel Action, the primary factual issue will be the quality of the work completed by Fourteen Estates. Accordingly, a significant area of questioning on the Examination for Discovery of both parties in both actions will be with respect to the quality of the work performed and the state of the Custom Home.
[11] The significant overlap in issues between the actions is supported by the parties’ Affidavits of Documents, which are significantly similar for both actions.
[12] I agree with the Plaintiff that if the parties are forced to attend at separate Examinations for Discovery, answer separate undertakings, and compartmentalize information obtained in each proceeding, it will result in significant unnecessary cost expenditures for the litigants. It will also create undue complexity to have the matters proceed separately given the commonality of the issues.
[13] I recognize the concerns raised by the Defendants. However, a sharing of a common timetable and common processes of the Lien Action and the Libel Action will clearly result in efficiency of processes and create substantial costs savings for all parties.
[14] Nothing prevents Defendants’ counsel from consulting in advance of the discoveries with a view to limiting the necessity of both counsel attending. In my view, the sharing of common processes will clearly reduce the complexity of the proceedings.
[15] In light of such, I order that Court File Nos.: CV-17-2964 and CV-17-3457 will share common processes, and proceed on a common timetable. I recognize that the timetable in the Notice of Motion will need to be revised in light of the delay in the release of my decision. I apologize for the delay.
[16] I ask that the parties prepare a revised timetable which reflects the new date for scheduled discoveries. If there is a need for the matter to be addressed further regarding the timetable, the parties can arrange another appearance before me.
[17] I will accept submissions for costs within 4 weeks of this order.