Court File and Parties

COURT FILE NOS.: CV-19-142842, CV-19-142791 and CV-19-143075 DATE: 2021-11-25 SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-19-142842 RE: Gaurav Tewari, Plaintiff AND: Murali Sundar, Suma Devassy, Ranjeet Klair, Lisa Moeller, William [Bill] Scott, Koshal Ram, Somanna and Jeff Wilson, Defendants

COURT FILE NO.: CV-19-142791 AND RE: Gaurav Tewari, Plaintiff AND: Aditya Vikram Singh, Roshni Singh and Lal Bahadur Singh

COURT FILE NO.: CV-19-143075 AND RE: Gaurav Tewari, Plaintiff AND: Aditya Vikram Singh, Defendant

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL: Dr. Gaurav Tewari, Self-Represented Plaintiff in all actions Bobby H. Sachdeva, Counsel for the Defendants (CV-19-142842), Murali Sundar, Suma Devassy, Ranjeet Klair, Lisa Moeller, William [Bill] Scott and Koshal Ram No one appearing for the Defendants (CV-19-142842), Somanna and Jeff Wilson Bobby H. Sachdeva, Counsel for the Defendants (142791), Aditya Vikram Singh, Roshni Singh and Lal Bahadur Singh Bobby H. Sachdeva, Counsel for the Defendant (CV-19-143075), Aditya Vikram Singh

HEARD: In-Writing

ENDORSEMENT

[1] On October 25, 2021, I issued a case conference direction regarding these proceedings. Para. 7 of that Endorsement stated:

The defendants in the Sundar action (CV-19-142842) will bring a motion in writing to my attention within 14 days to transfer the Toronto action (CV-19-617693) to Newmarket and to have all four actions (CV-19-142842, CV-19-617693, CV-19-142791 and CV-19-143075) consolidated. The motion will be heard in writing and the Plaintiff shall have 14 days to respond to the motion.

[2] The parties have now filed their submissions.

[3] Mr. Tewari is the plaintiff in all four actions referenced above.

[4] For ease of reference I will refer to the four actions as follows:

[5] Action #1: CV-19-617693 against the defendant Marcatus QED Inc.

[6] Action #2: CV-19-142842 against the defendants: Murali Sundar, Suma Devassy, Ranjeet Klair, Lisa Moeller, William [Bill] Scott, Koshal Ram, Somanna and Jeff Wilson.

[7] Action #3: CV-19-143075 against the defendant Aditya Vikram Singh.

[8] Action #4: CV-19-142791 against the defendants: Aditya Vikram Singh, Roshni Singh and Lal Bahadur Singh.

[9] The defendants in those four actions seek two procedural orders:

a) An Order transferring the Plaintiff’s action in Tewari v. Marcatus QED Inc., Court File No. CV-19-61793, commenced in Toronto on April 8, 2019 to Newmarket.

b) An Order consolidating the four actions pursuant to Rule 6.01 of the Rules of Civil Procedure.

[10] The plaintiff consents to the transfer of the Toronto action to Newmarket, and to the consolidation of Actions #1 and #2 (CV-19-617693 and CV-19-142842).

[11] The plaintiff opposes the consolidation of Actions #3 and #4 (CV-19-143075 and CV-19-142791), and argues that these actions should not be consolidated and should be tried separately.

Facts

[12] Gaurav Tewari is the Plaintiff in all four actions sought to be consolidated. All four of the actions arise from Mr. Tewari’s termination from Marcatus QED Inc. (“Marcatus”) and the subsequent counterclaim of Marcatus against Mr. Tewari.

[13] In Action #1, Mr. Tewari seeks damages for wrongful dismissal.

[14] Marcatus has counterclaimed Mr. Tewari, and this counterclaim is the basis of Mr. Tewari’s claims against the defendants in Action #2. In Action #2 Mr. Tewari claims damages against all of the individual defendants for conspiracy leading to his wrongful dismissal from Marcatus. He also seeks $500,000 damages against the individual defendants for defamation, and $250,000 damages for “bringing unlawful law suit against the Plaintiff”, namely Marcatus’ counterclaim in Action #1.

[15] In Action #3 the Plaintiff sued the Defendant, Aditya Vikram Singh, for precisely the same relief sought against the individual defendants in Action #2: that he was wrongfully dismissed from Marcatus as an act of conspiracy. The relief sought in Paragraphs 1 (a) to (g) in the Statements of Claim in Action #2 and Action #3 is identical other than a slight difference in the dollar amounts sought at paragraph 1(c).

[16] The factual allegations in Action #3 are substantially identical to the allegations in the Statement of Claim in Action #2. Twelve of the 17 paragraph in the Statement of Claim in Action #2 are replicated in 12 of the 14 paragraphs in the Statement of Claim in Action #3.

[17] In Action #3, the plaintiff alleges that he was wrongfully dismissed “due to the pre-meditated conspiracy by Aditya Vikram Singh with others in company”. These “others” can only be the defendants named as conspirators in Action #2. The plaintiff also alleges that Aditya Vikram Singh is liable for damages of $250,000 for defamation for his involvement in the counterclaim in Action #1 (Mr. Singh swore an affidavit outlining his version of events in support of the counterclaim).

[18] In Action #4, the plaintiff sued Aditya Vikram Singh as well as Aditya’s wife Roshni Singh and Aditya’s father-in-law, Lal Bahadur Singh. The claim against Roshni Singh and Lal Bahadur Singh relates to an alleged $8,000 loan. The remainder of the claim in Action #4 is against Aditya Vikram Singh for conspiracy and defamation, and is identical to the claim in Action #3. The Statements of Claim in Actions #3 and #4 reference and rely on the Marcatus counterclaim in Action #1.

[19] The plaintiff filed the Statement of Claim in Action #3 against Mr. Singh alone on December 16, 2019. Mr. Singh did not file a Statement of Defence within the required time and was noted in default on January 15, 2020. The plaintiff moved for default judgment against Mr. Singh, seeking damages in the amount of $600,000.

[20] On July 16, 2020, the plaintiff’s motion for default judgment was dismissed by Cameron J. (2020 ONSC 4361) on the basis that there was no evidence in the motion material that Mr. Singh had participated in a conspiracy to have the plaintiff terminated from his employment. She stated:

All of the allegations of conspiracy leading up to the plaintiff’s termination relate to other employees of the business…Any alleged conspiracy on the part of Mr. Singh occurred after the plaintiff was dismissed therefore Mr. Singh cannot have contributed to the plaintiff’s dismissal, wrongful or not.

[21] Cameron J. also concluded that there was no evidence that Mr. Singh had made defamatory comments about the plaintiff, and therefore “the plaintiff’s claim for defamation is not supported in fact or law”.

Analysis

[22] Rule 6.01 provides for the consolidation or hearing together of two or more proceedings. It provides:

RULE 6 CONSOLIDATION OR HEARING TOGETHER

Where Order May Be Made

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. R.R.O. 1990, Reg. 194, r. 6.01 (1).

(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 a notice of listing for trial and abridge the time for placing an action on the trial list.

Discretion of Presiding Judge

6.02 Where the court has made an order that proceedings be heard either at the same time or one immediately after the other, the judge presiding at the hearing nevertheless has discretion to order otherwise.

[23] It is clear from the four Statements of Claim that the four actions have numerous issues of law and facts in common, and the relief claimed in all four proceedings arises from the same alleged facts. All four claims relate to the plaintiff’s termination from his employment at Marcatus, and the Marcatus counterclaim. If the matter proceeds to trial, there will be a significant overlap of witnesses in all four actions.

[24] I agree with the defendants that consolidating the four actions will be the most cost effective way to proceed and provide the most efficient use of judicial resources. It will also avoid any risk of conflicting findings of fact. Consolidating the four actions is also consistent with the principle in s. 138 of the Courts of Justice Act that, as far as possible, multiplicity of legal proceedings should be avoided.

[25] The plaintiff takes the position that Actions #3 and #4 should not be consolidated with Actions #1 and #2 because Mr. Singh has been noted in default in Action #3. The plaintiff states that he “fails to understand how a statement of claim which was noted in default can be consolidated with other statement of claim”.

[26] I note that the defendants in Action #4, who include Mr. Singh, did file a Statement of Defence and Mr. Singh has not been noted in default in Action #4, even though the claim against Mr. Singh is identical in both Actions #3 and #4.

[27] The plaintiff argues that even though his motion for default judgment in Action #3 was dismissed on July 16, 2020, he has brought the same motion again (he refers to it as a “supplementary default motion”) with better supporting material. That motion was supposed to be heard on January 27, 2021, but the plaintiff adjourned the motion due to the death of his brother, and it has not been rescheduled.

[28] In my view, the plaintiff’s proposed “supplementary default motion” (assuming, without deciding, that such a motion is even permitted after the first motion is dismissed) is irrelevant to the issue of consolidation. As matters stand, the plaintiff’s motion for default judgment was dismissed, and there are four separate Statements of Claim, each overlapping with the other, and each dealing essentially with the same allegations of fact and law. The plaintiff cannot prevent consolidation because he plans on bringing a motion in one of the four overlapping matters.

[29] The plaintiff also argues that the claims relating to the personal acts of the defendants should be kept separate from the claims against the corporation since the “defendants acts were independent of the corporate conspiracy and were out of their free will…” It is unclear why, if this is the plaintiff’s position, he has consented to the consolidation of Actions #1 and #2. In any event, the allegations against the corporation and the individual defendants are all related to the alleged wrongful dismissal and claim in relation to the counterclaim in Action #1, and these matters should all be consolidated. There is no legal principle to support the plaintiff’s preference to have the actions against the corporate defendant and the individual defendants tried separately.

Conclusion

[30] The defendants’ motion to transfer the Toronto action (CV-19-617693) to Newmarket is granted.

[31] The defendants’ motion to consolidate all four actions (CV-19-142842, CV-19-617693, CV-19-142791 and CV-19-143075) is also granted. The cases shall proceed with one set of Affidavits of Documents, one set of discoveries and shall, subject to Rule 6.02, be tried together.

[32] As indicated in my endorsement of October 25, 2021, either party may now decide whether thy wish to proceed with a motion for summary judgment. If either side intends to bring a motion for summary judgment, the parties should attempt to agree on a schedule for the exchange of affidavit evidence, cross-examinations and factums. If an agreement cannot be reached, they may contact my assistant to schedule a case conference.

Justice R.E. Charney

Date: November 25, 2021