Court File No.: CV-20-00652655-0000
Date: 2021-11-05
Ontario Superior Court of Justice
Between:
LORY ELIZABETH JAMES Plaintiff
– and –
ESTATE OF CLARENCE ROY JAMES ET AL. Defendants
Counsel: James McReynolds, for the Plaintiff Kayla Carr, for the Defendant, John Alvin James
Heard: November 2, 2021
Vella J.
REASONS FOR DECISION
A. BACKGROUND
[1] This is a motion brought by the plaintiff, Lory Elizabeth James (“Lory”), for an order consolidating two applications with the current proceeding, under r. 6.01.
[2] The first Application was brought by Lory, as executor for the estate of Clarence Roy James (the “James Estate”), against John James (“John”), as executor of the James Estate. It bears the Court file number CV-20–74695 (“Lory’s Application”).
[3] The second Application was brought by John against Lory, Glacier Trading Corporation (“Glacier”), and Jaroc Management Services Ltd. It bears the Court file number CV–20–74744 (“John’s Application”).
[4] Both applications were brought in Hamilton (the “Hamilton Applications”). Lory’s Application was issued on December 7, 2020, while John’s Application was issued on December 11, 2020. The within Action was commenced in Toronto by Lory on December 7, 2020 (the “Toronto Action”).
[5] Lory and John are siblings. They are also the co-executors and sole beneficiaries of the estate of their late father, Roy James.
[6] The late Roy James died on June 10, 2018 and left behind two Wills called, respectively, a “primary last Will” and a “secondary last Will,” each dated April 13, 2003. He left behind what has been termed a modest estate comprising of a house (described as 56 George Street in Waterdown, Ontario), a cottage (located in Algoma, Ontario), a bank account, and an RRIF. In addition, John claims that Glacier was owned by the late Roy James and therefore is part of the James Estate. Lory disputes this and says she is the sole owner of Glacier.
[7] Both Lory and John admit that their relationship has “irrevocably” broken down such that the administration of the estate has been left in a state of paralysis.
i. Motion to Consolidate
[8] This Action raises issues that somewhat overlap with the issues raised in Lory’s Application, but less so with John’s Application.
[9] The Action raises new issues, causes of action, and facts not reflected in either of the Applications. The new issues concern serious allegations against John of alleged intentional misconduct with respect to the James Estate. The Action also raises claims against other parties who are not respondents in either of the Applications, such as the James Estate’s former law firm.
[10] The Hamilton Applications are still outstanding. However, affidavits have been exchanged and John has been cross-examined. The hearing date for the return of John’s Application with respect to the request to appoint an Estate Trustee During Litigation (“ETDL”) is currently scheduled to be heard in the Hamilton Superior Court on November 10, 2021. Lory has brought a cross-motion to strike John’s Application as against Glacier based on an alleged expiry of a limitation period. Lory and John’s motions were adjourned to permit this motion to be brought and to accommodate the timing of the release of these reasons.
ii. Motion to Amend the Statement of Claim
[11] By way of preliminary motion, Lory seeks leave to amend the style of cause in the statement of claim. This motion was unopposed by all the defendants, including those defendants who are not the subject of the motion to consolidate but who were present at the hearing of this motion.
[12] Accordingly, I granted leave to amend the statement of claim in accordance with the draft claim that was filed with the motion record.
B. Analysis – Rule 6.01
i. Legal Framework
[13] At the hearing of the motion, Lory’s lawyer confirmed that this motion is brought under r. 6.01:
(1) Where two or more proceedings are pending in the court and it appears to the court that,
(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,
the court may order that,
(d) the proceedings be consolidated, or heard at the same time or one immediately after the other; or
(e) any of the proceedings be,
(i) stayed until after the determination of any other of them, or
(ii) asserted by way of counterclaim in any other of them.
(2) In the order, the court may give such directions as are just to avoid unnecessary costs or delay and, for that purpose, the court may dispense with service of the notice of listing for trial and abridge the time for placing an action on the trial list.
[14] A challenge posed by this motion is the fact that the three proceedings that the plaintiff asks to be consolidated originate in two different venues: Hamilton and Toronto. However, it is important to recognize that the plaintiff is not seeking to have the two Hamilton Applications transferred to Toronto. Rather, she is requesting that the applications be consolidated with the Toronto Action. That said, implicit in this request is that the venue for the hearing of the issues raised by the Hamilton Applications will effectively be moved to Toronto.
[15] Rule 6.01 provides the court with broad powers and broad discretion when making an order to consolidate proceedings. Ultimately, the court must balance the competing interests of expediency, efficiency, and convenience against the possible prejudice that may be occasioned by the order to the parties.
[16] Another guiding principle is that the court will avoid a multiplicity of proceedings, as far as possible: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 138.
[17] Finally, the court is always guided by r. 1.04 (1) and (1.1). First, the rules will be liberally construed to secure the just, most expeditious, and least expensive determination of every civil proceeding on its merits. Second, in applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
ii. The Matters Arise from the Same Transaction or Series of Transactions
[18] I am satisfied based on the affidavit and cross-examination evidence filed, as well as the pleadings themselves, that the Hamilton Applications and the Toronto Action arise from the same “transaction” or “series of transactions.” In particular, the issues relate to the administration of the James Estate, identification of assets allegedly comprising the James Estate, and identification of obligations allegedly owed to the James Estate. The Hamilton Applications seek similar relief. Lory wishes to have John removed as executor and to have herself appointed as the estate trustee, while John wishes to have an ETDL appointed in place of Lory and himself. This relief is in addition to other ancillary relief sought by the respective parties, such as a claim for occupation rent by John against Lory.
iii. Balance of Convenience Favours Consolidation
[19] Next, the court must determine whether the balance of convenience favours the court’s exercise of its discretion to consolidate the three proceedings.
[20] I have considered the factors set out by this court that are to be considered in determining whether to convert an application into an action and whether to consolidate two or more proceedings: Fountain Asset Corp. v. First Global Data, 2017 ONSC 4780, at paras. 15 – 16; Yorkville East Developments Inc. v. York Condominium Corporation No. 194, 2021 ONSC 5678, at paras. 34 – 37 and 44 – 48.
[21] In my view, the Hamilton Applications should be converted to actions and consolidated into one proceeding with the Toronto Action. I make this decision for the following reasons.
[22] There are issues raised in those Applications that will likely require the court to assess issues of credibility on material facts involving Lory and John, and similarly their respective credibility will have to be assessed within the context of the Toronto Action: Fountain Asset, at para. 15; Yorkville East Developments, at para. 36. It would be beneficial to have the same trier of fact assess the credibility of John and Lory and their respective witnesses on all of the issues related to the James Estate.
[23] At the end of the day, all of the issues related to the administration of the James Estate, including determining what assets form part of the estate and what obligations are owed to the estate, are best determined in the same proceeding. In this sense there is a significant overlap in those issues amongst the Hamilton Applications and the Toronto Action: Fountain Asset, at para. 16.
[24] The ultimate determination of damages and what assets belong to or fall outside of the James Estate will likely hold up the distribution of the estate assets between Lory and John, pending resolution of the Toronto Action, given the nature of the allegations made by Lory against John in the Toronto Action.
[25] Furthermore, as the Hamilton Applications have some overlapping issues of fact with the Toronto Action, there is a real risk of inconsistent findings as between those two sets of proceedings: Fountain Asset, at para. 16; Yorkville East Developments, at para. 45.
[26] While I take note of John’s submission that he can obtain a quicker resolution to his Application than if it were to be converted to an Action, that disadvantage can be somewhat ameliorated by adding appropriate terms to my order. It bears noting that the Hamilton Applications are not yet at a stage where hearing dates are set for disposition. Rather, the pending date will deal only with a motion and cross-motion in John’s Application.
[27] I also recognize that the Toronto Action significantly expands the scope of issues related to the ultimate administration of the James Estate, and it adds new parties to the scope of the disputes that are in the Hamilton Applications. On the other hand, the lawyers for John and Lory are the same in all three proceedings: Fountain Asset, at para. 16.
[28] Taking a holistic view of the gravamen of the dispute between Lory and John, a consolidation of the three proceedings will result in the most expeditious, least expensive, and just determination of the matter on the merits. It will also avoid the multiplicity of proceedings that would otherwise exist if the Hamilton Applications were permitted to continue independently from the Toronto Action: Yorkville East Developments, at para. 45.
[29] Both parties indicated that they would welcome a creative solution from the court.
C. ORDERS
[30] Accordingly, I am making the following order and terms:
(a) The Hamilton Applications are converted into actions and consolidated, in turn, with the Toronto Action.
(b) John’s Application is to be asserted as a counterclaim. The applicable limitation periods are hereby tolled as of the date of the issuance of John’s Application; that is December 11, 2020. Lory conceded this point. The order converting the Applications to an action and then consolidating the three proceedings should not, in my view, alter the commencement date of John’s proceeding for purposes of the limitation period defence in any event. However, it is prudent to be clear that the limitation period is tolled as indicated.
(c) Lory has leave to amend her statement of claim to the extent necessary to incorporate her claims and relief from her Application.
(d) The parties are directed to bring a motion to have the issue of Estate Trustee determined. John’s motion is to appoint an ETDL. Lory’s motion is to remove John and have herself appointed as Estate Trustee. This step should bring stability to the proceedings one way or the other. Furthermore, the parties have already prepared their affidavit materials and conducted cross-examinations in anticipation of John’s pending motion in the Hamilton Applications. The parties should be ready to go and should not have to expend any further significant fees in relation to this step. The parties are directed to immediately request a motion date and to take the first available date subject only to the availability of the lawyers.
(e) The parties are also directed to request a case conference with the purpose of setting a timetable for the steps in the consolidated proceeding. This can include timetables for any other motions that either John or Lory may wish to bring that arise from this consolidation and the loss of the Hamilton motion date. I am thinking in particular of Lory’s motion to strike John’s claim as against Glacier on the basis of an alleged expiry of a limitation period.
[31] The parties should also consider requesting that this proceeding be brought under case management under r. 77.
D. COSTS
[32] Costs will be fixed by me. I am considering ordering costs in the cause in the circumstances of this matter but will receive cost submissions and cost outlines before making this decision. Lory and John are to exchange cost outlines. Lory shall deliver her cost outline and cost submissions to the court within 20 days from the release of this decision. John shall deliver his cost outline and cost submissions to the court within 10 days thereafter. The submissions are not to exceed three pages in length and should be delivered to my judicial assistant.
[33] If there are any matters arising from the implementation of my ruling, the lawyers may request a further attendance prior to my signing of the resulting Order.
Justice S. Vella
Date: November 5, 2021
Court File No.: CV-20-00652655-0000 Date: 2021-11-05
Ontario Superior Court of Justice
Between:
LORY ELIZABETH JAMES Plaintiff
– and –
ESTATE OF CLARENCE ROY JAMES ET AL. Defendants
REASONS FOR JUDGMENT
Vella J.
Released: November 5, 2021