Court File and Parties

COURT FILE NO.: 226-08/226-08A DATE: 2022-02-15 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Peter Armstrong and Shelley Martin, Plaintiffs AND: Janet Penny, personally and as the Estate Trustee of the Estate of George Penny, deceased, Defendants AND: Coachlamp Homes Inc., Matthews, Cameron, Heywood-Kerry T. Howe Surveying Ltd. carrying on business under the registered business name of Coe, Fisher, Cameron, W.G. Jackett and Sons Construction Limited operating as Jackett Construction, and City of Kawartha Lakes, Third Parties

BEFORE: Justice V. Christie

COUNSEL: Lawrence G. Theall and Liam Thompson, Counsel, for the Plaintiffs Jeffrey Lanctot and Joseph Doris, Counsel, for the Defendants Susanne M. Sviergula and Maggie MacDonald, Counsel for the Third Party, Coachlamp Homes Inc. Christopher L. Hluchan, Counsel for the Third Party, Matthews, Cameron, Heywood – Kerry T. Howe Surveying Ltd., carrying on business under the registered name of Coe, Fisher, Cameron Natalie Kolos and Zoe Aranha, Counsel for the Third Party, City of Kawartha Lakes

HEARD: February 14, 2022

Determination of Order of Proceedings

Endorsement

Overview

[1] The question to be answered on this motion is whether the main action and third party action (including crossclaims) should be heard at the same time or one after the other.

[2] The Plaintiff argued that the main action and third party action should be heard at the same time. All other parties argued that the main action should proceed first, with the third party action to follow, with the strong preference that this court rule on all issues in the main action before proceeding to hear the third party action.

[3] This motion ultimately turns on questions of efficiency and fairness to all parties.

[4] Having considered carefully the arguments presented, this court is of the view that the nature of the claims, relief sought, and facts at issue dictate that the most appropriate course of proceeding is to have the main action and third party action (including crossclaims) heard at the same time.

Background Facts

[5] Many underlying facts are not and will not be in dispute in the main action or third party action. It is important to understand these underlying facts in order to provide this decision with some context.

[6] The main action arises out of a property dispute between the Plaintiffs and Defendants.

[7] In 1998, the Defendants, Janet Penny and her late husband, George Penny, hired Coachlamp Homes Inc. to construct a home on their property at 570 Long Beach Road in what is now Kawartha Lakes.

[8] Coachlamp arranged for a design, submitted an application for a building permit to the City, and hired Matthews Cameron Heywood – Kerry T. Howe Surveying, carrying on business as Coe, Fisher Cameron (“CFC”) to determine a boundary line for construction.

[9] The City was paid a fee by the Defendants for their building permit.

[10] The home, completed in December 1998, specifically a large portion of the garage and a small corner of the house, was ultimately built extending 35.236 feet across the property line and on to the property of another. At the time the Defendants’ home was built, the Plaintiffs did not own the abutting land.

[11] In 2002, Peter Armstrong and Shelley Martin, the Plaintiffs, purchased 582 Long Beach Road, which abuts the Defendants’ property to the north.

[12] In early 2003, the Plaintiffs arranged for a survey of the southern line of their property. It was at this time that they discovered that the Defendants’ home extended onto their property.

[13] Over the next five years, the property owners worked to find a solution, ultimately without success.

[14] In 2008, five years after the problem was discovered, the Plaintiffs issued their Statement of Claim.

[15] The Defendants commenced a Third Party Claim in 2009 against Coachlamp (the builder), CFC (the surveyor), Jackett Construction (the excavator), and the City of Kawartha Lakes.

[16] The Defendants defended the Plaintiffs’ action in 2013.

[17] CFC and the City both defended the main action in 2013. Coachlamp did not initially defend the main action.

[18] The first round of discoveries commenced after George Penny passed away, in March 2013, with that first round finishing in January 2014.

[19] The matter was pre-tried in 2017.

[20] Coachlamp defended the main action in February 2018. Also in early 2018, some other third parties amended their pleadings in both the main action and the third party action. Specifically, they sought relief under s. 37 of the Conveyancing and Law of Property Act (CLPA).

[21] A second round of discoveries took place in 2018, largely focused on the pleading of s. 37 of the CLPA.

[22] The matter was pre-tried a second time in March 2019. Mullins J. ordered that the matter be traversed to Trial Scheduling Court in August 2019.

[23] At trial scheduling court, Edwards J. ordered that the action be scheduled to be heard at the May 2020 sittings.

[24] COVID-19 impacted the ability to hear this matter in May and onward.

[25] At a case conference on October 19, 2021, Edwards J. indicated that this matter was unlikely to be heard at the November sittings, and proposed that the parties proceed on the basis that the case would be heard in the event a criminal trial scheduled for February 14, 2022 did not proceed. That is in fact what has now occurred.

[26] W.G. Jackett and Sons Construction Limited (the excavator) was released from this litigation toward the end of 2021.

Analysis

[27] This court agrees that the pleadings define the issues in this litigation and must be carefully considered on this motion.

[28] As previously stated, the Plaintiffs issued their Statement of Claim on July 30, 2008. They have claimed for general damages in the amount of $1,000,000 and special damages in the amount of $1,000,000, as well as for a permanent and interlocutory Order requiring that the Defendants remove that portion of the building that the Defendants built on the Plaintiffs’ property and in compliance with setback requirements of the Municipality. The Plaintiffs allege that the Defendants, as owners of the structure, are liable in trespass, nuisance, and negligence. The Plaintiffs state that the presence of the Defendants’ garage on their property constitutes an ongoing trespass, an ongoing nuisance and results in ongoing damages for the Plaintiffs. The following pleadings are of note:

a. The Plaintiffs state that the Defendants have acknowledged that a portion of the Defendants’ home is located on the Plaintiffs’ property and that this was as a result of a surveying error and construction error. b. The Plaintiffs allege specific negligence on the part of the Defendants, including, but not limited to, deliberately or improperly constructing their garage on the property knowing that it would interfere with the Plaintiffs’ enjoyment of the property, hiring persons who were not capable of performing the work properly, and failing to remove the structure once they knew or ought to have known about the problem.

[29] The Defendants plead in their Statement of Defence dated July 30, 2013, in part, that the injunction sought by the Plaintiffs, for the removal of the encroaching structure, is an extreme and unreasonable remedy. They state that, if the court provides relief to the Plaintiffs, equitable relief such as monetary damages should be ordered instead of an injunction. The Statement of Defence includes the following:

a. Paragraphs 4-7 – The Defendants explain how they allege the home came to be build on the Plaintiffs’ property, referring to hiring and depending on Coachlamp Homes to build the home entirely on their property, and that Mr. Pankhurst of Coachlamp Homes completed and filed an application for a building permit, in which he stated where the home was to be located. Despite discrepancies, the Township of Fenelon Falls issued a building permit. b. Paragraphs 8-9 – the Defendants explain that it was Coachlamp that hired the surveyors to locate the boundary limits of the property and allege that the surveyors failed to locate, identify and mark the boundary line between the Defendants’ property and the property to its north. c. Paragraph 18 – the Defendants allege that, in August 2003, the Plaintiff, Peter Armstrong, provided the Defendant with a copy of a survey which indicated that the Defendants’ home was built partially on the Armstrong property. d. Paragraphs 19-20 – the Defendants allege that, based on the individual or combined negligence and breach of contract by the builder, surveyor, excavator and City, the Defendants commenced a Third Party claim against these corporations, seeking damages and indemnity for the losses and damages claimed against them in the main action. The Defendants allege that the Third Parties are solely responsible for the their home being situated on the wrong side of the property line and are responsible for the losses, damages and costs claimed by the Plaintiff. e. Para 21- 23 – the Defendants deny any personal responsibility to the Plaintiffs in trespass or negligence given their lack of knowledge of the situation until 2003. However, if found responsible, they seek contribution and full indemnity from the Third Parties. f. Para 28 – the Defendants claim for equitable relief in the circumstances, such that damages be assessed in substitution for an injunction.

[30] The Defendants commenced a third party claim on February 25, 2009 against those involved in the original construction of the home, including Coachlamp (the builder), CFC (the surveyor), Jackett (the excavator), and the City of Kawartha Lakes. In fact, this third party claim was issued long before any Statement of Defence was received. The Defendants’ third party claim seeks damages in the amount of $2,000,000 for an alleged loss of value of their own property and an alleged reduction in the property’s marketability, and indemnity from the Third Parties for the Plaintiffs’ alleged losses and damages in the main action. Specifically:

a. Against Coachlamp for breach of contract and negligence in building and locating the home partially on property allegedly owned by another. b. Against CFC for negligence in failing to locate, identify and mark the northern boundary of the property so that the home would be built entirely within appropriate boundaries. c. Against Jackett for negligence in digging and partially locating the foundation for the home on property allegedly owned by another. d. Against Kawartha for failure to properly review the documents filed by Coachlamp in support of the application for a building permit and further for its failure to competently inspect the property as construction progressed to ensure that the location of the home complied with applicable zoning set backs.

[31] All Third Parties defended the third party action. Specifically,

a. Coachlamp states that: i. George Penny made his own inquiries as to the extent of his lands and advised Coachlamp of the northern boundary marker. ii. It was not a term of its contract that it locate the legal boundaries of the lot and that George Penny asked Coachlamp to arrange to have a surveyor locate one boundary line, which they did. iii. The failure to locate the northerly boundary was that of the co-defendant surveyor. iv. The co-defendant excavator owed a duty of care to inquire as to the location of lot boundaries and the location of its work in respect of the lot boundaries and the required set backs and contributed to the Plaintiffs loss by breaching that duty. v. The municipality contributed to the Plaintiffs’ loss by granting a permit to the Defendants and permitting the commencement of construction without verifying that set back by-laws were complied with. vi. The Defendants’ claim for damages is excessive and too remote and that they have failed to mitigate any loss, damage or injury suffered by them. Coachlamp says that in both claims for damages (main action and third party action), relief was available to the Defendants pursuant to s. 37 of the CLPA. vii. This third party claim was not properly issued or served as the Third Party Plaintiffs had not at the time of Issuance filed a Statement of Defence to the main action b. CFC states that they were retained by Coachlamp to locate one boundary limit on the property and that they attended on site and did so. The surveyors deny that they have caused or contributed to any of the damages alleged against them in the Third Party Claim, but rather that the damages were caused or contributed to by other parties. Further they state: i. The damages alleged are exaggerated, excessive, remote and unrecoverable at law. Further, the surveyors state they advised George Penny on January 20, 2003 of the subject encroachment and told him to seek legal advice, therefore, the Defendants’ claim for damages is barred by expiry of the relevant limitation period. ii. The Defendants have failed, or refused to assert their position in the main action that pursuant to section 37(1) of the CLPA they are entitled to retain the land for reasonable compensation, which is the most just and expeditious manner of resolving the dispute. iii. The house should remain where it was constructed and the strip of land necessary to eliminate the encroachment be transferred to the Defendants upon payment of fair compensation, pursuant to s. 37(1) of the CLPA iv. A crossclaim against the other Third Parties for contribution and indemnity for any amounts which the surveyor may be found liable to the Defendants, and costs of defending the action and pursuing the crossclaim. c. Kawartha pleads that if any damages were sustained in the Third Party Claim, they were not caused by any fault, neglect, negligence, trespass, nuisance, or breach of duty on the part of the City. Specifically, i. It or its building inspectors owed no duty of care to the Plaintiffs in the course of approving plans or conducting inspections pursuant to the Building Code Act or bylaws. However, work was carried out reasonably and without negligence. ii. If any injuries, damages or losses were sustained as alleged in the third party claim then those were caused or contributed to by the fault of the other Third Parties. iii. The Defendants failed to seek relief available to them pursuant to s. 37(1) CLPA. iv. An order under section 37(1) of the CLPA is the most just, expeditious and least expensive manner of resolving the issues. v. A crossclaim against the other Third Parties for contribution and indemnity and costs of defending the action

[32] The Third Parties also defended the main action and pleaded that the appropriate remedy, if any, to the Plaintiffs’ claims is to allow the Defendants’ house and garage to remain where they are and to re-draw the Defendants’ property line around the structure. The various defences can be summarized as follows:

a. Coachlamp alleges that the Plaintiffs’ claim for damages is excessive and too remote and that they have failed to mitigate any loss, damage or injury suffered, in that relief was available to the Plaintiffs pursuant to s. 37 of the CLPA, such that they could and should have sought a declaration that the Defendants were entitled to retain the portion of land on just terms. b. CFC alleges that the Plaintiffs claim damages which are excessive, exaggerated, remote and unrecoverable at law, given that they inspected their property before purchase and had the opportunity to observe the location of the Defendants’ residence. Further, the surveyors plead that if the Plaintiffs have sustained any of their alleged damages, such were caused or contributed to by other parties, including the Plaintiffs themselves given that they could have arranged for a survey before closing. Further, the surveyors plead that the Plaintiffs have failed to take any or adequate steps to mitigate damages, as the most just and economic response to the encroachment is for the Plaintiffs to transfer a strip of property to the Defendants in return for fair compensation, which would be significantly less than the cost to tear down and relocate the Defendants’ home. Finally, the surveyor relies on s. 37 of the CLPA. c. Kawartha adopted and relied upon the allegations pleaded in the City’s Statement of Defence and Crossclaim to the third party action. Kawartha denies any fault, neglect, negligence or breach of duty. Kawartha further pleads that the damages alleged by the Plaintiffs are excessive, too remote, not recoverable at law, and have not been mitigated by the Plaintiffs, specifically, the most just, practical and economic response to the encroachment is for the Plaintiffs to transfer a strip of their property to the Defendants for fair compensation, which would be less than the cost to tear down and relocate. Finally, the City pleads and relies on s. 37(1) of the CLPA and asks this court to direct that the Plaintiffs transfer the portion of their property to the Defendants that is sufficient to eliminate the encroachment in return for fair compensation, as the balance of convenience favours allowing the Defendants’ home to remain. The City also pleads that if the Plaintiffs sustained damages, it was as a result of their own action.

[33] There was no reply from the Plaintiffs to the Statements of Defence.

[34] On the face of the pleadings, the overlap on questions of fact and law are obvious.

[35] All proper parties should be before the Court at trial in order to allow for the fair and efficient adjudication of the claims. Section 138 of the Courts of Justice Act provides that:

As far as possible, multiplicity of legal proceedings shall be avoided.

[36] Rule 29 of the Rules of Civil Procedure relates to third party proceedings. Some of the critical provisions are as follows:

Third Party May Defend Main Action

29.05 (1) Where appropriate, the third party may defend against the plaintiff’s claim against the defendant by delivering a statement of defence in the main action, in which the third party may raise any defence open to the defendant.

Consequence of Defending Main Action

(2) A third party who delivers a statement of defence in the main action,

(a) has the same rights and obligations in the main action, including those in respect of discovery, trial and appeal, as a defendant in the main action; and (b) is bound by any order or determination made in the main action between the plaintiff and the defendant who made the third party claim.

Consequence of Not Defending Main Action

(5) A third party who does not deliver a statement of defence in the main action is bound by any order or determination made in the main action between the plaintiff and the defendant who made the third party claim.

Trial of Third Party Claim

29.08 (1) After the close of pleadings in the third party claim it shall be listed for trial as an action as provided in Rule 48 without undue delay and placed on the trial list immediately after the main action.

(2) The third party claim shall be tried at or immediately after the trial of the main action, unless the court orders otherwise.

Prejudice or Delay to Plaintiff

29.09 A plaintiff is not to be prejudiced or unnecessarily delayed by reason of a third party claim, and on motion by the plaintiff the court may make such order or impose such terms, including an order that the third party claim proceed as a separate action, as are necessary to prevent prejudice or delay where that may be done without injustice to the defendant or the third party.

[37] In Mid-Range Technical Services Inc. v. Sentia Solutions Inc., 2010 ONSC 5182, Perrell J. made the following observations with respect to the objectives of Rule 29:

[10] In a third party claim, a defendant sues a person who is not a party to the main action. The purpose of a third party claim is: to avoid a multiplicity of actions; to avoid contradictory or inconsistent findings in two different actions on the same facts; to allow the third party to defend the Plaintiff's claim; to save costs; and to prevent the plaintiff from enforcing a judgment against the defendant before the third party claim is determined: Steven Starr Investments Ltd. v. Aaron, [1991] O.J. No. 542 (Ont. Gen. Div.); Iroquois Falls Community Credit Union Ltd. v. Co-operators General Insurance Co., [2006] O.J. No. 3999 (Ont. Master).

[38] Unlike other proceedings involving common issues, it is presumed that a third party action will be heard with or immediately after its corresponding main action. See Rule 29.08(2); Bonello v. Gores Landing Marina (1986) Limited, 2019 ONCA 127 at para 18.

[39] However, that leaves the question as to which of those two options should be chosen in any given matter and upon what basis should the court make this decision. Guidance can be drawn from Rule 6.01 which concerns consolidation or hearing matters together and provides as follows:

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.

The trial judge is afforded great discretion on this issue, including the authority to change an earlier decision made about the order of proceedings. (See Rule 6.02)

[40] As discussed above, pursuant to Rule 29.08 and 29.09, there is already a presumption that a third party claim will be tried at or immediately after the trial of the main action. Therefore, it would seem to be presumed that the factors in Rule 6.01 are already met. This court does not agree that in the case of third party claims one or more of the gateway criteria must be met in order to conclude that the third party claim will be tried at or immediately after the trial of the main action. This is already clear from the wording of Rule 29.08(2).

[41] In 1014864 Ontario Ltd. v. 1721789 Ontario Ltd., 2010 ONSC 3306, Master Dash provided a non-exhaustive list of 17 factors that may be considered when deciding whether to order that actions be heard together. The factors are as follows at paragraph 18 of the decision:

a) the extent to which the issues in each action are interwoven; b) whether the same damages are sought in both actions, in whole or in part; c) whether damages overlap and whether a global assessment of damages is required; d) whether there is expected to be a significant overlap of evidence or of witnesses among the various actions; e) whether the parties are the same; f) whether the lawyers are the same; g) whether there is a risk of inconsistent findings or judgment if the actions are not joined; h) whether the issues in one action are relatively straightforward compared to the complexity of the other actions; i) whether a decision in one action, if kept separate and tried first would likely put an end to the other actions or significantly narrow the issues for the other actions or significantly increase the likelihood of settlement; j) the litigation status of each action; k) whether there is a jury notice in one or more but not all of the actions; l) whether, if the actions are combined, certain interlocutory steps not yet taken in some of the actions, such as examinations for discovery, may be avoided by relying on transcripts from the more advanced action; m) the timing of the motion and the possibility of delay; n) whether any of the parties will save costs or alternatively have their costs increased if the actions are tried together; o) any advantage or prejudice the parties are likely to experience if the actions are kept separate or if they are to be tried together; p) whether trial together of all of the actions would result in undue procedural complexities that cannot easily be dealt with by the trial judge; and q) whether the motion is brought on consent or over the objection of one or more parties.

[42] Given that Rule 29 does not provide any real assistance, this court accepts that the factors Master Dash provided in the context of Rule 6.01 should also be considered in the context of third party actions. This list is not exhaustive. The Court must have a broad discretion in determining whether third party actions should be heard at the same time or immediately following the main action.

[43] One of the central issues that this court will need to decide is what kind of remedy should flow to the Plaintiffs, and whether an injunction is an appropriate remedy in this case. Ontario Courts have adopted and applied the test created by Shelfer v. City of London Electrical Lighting [1891-94] All ER Rep 838, noting that damages are typically awarded in place of an injunction where:

a. The injury to a Plaintiff’s legal rights is small; b. The Plaintiff’s injury can be estimated in money; c. The Plaintiff’s injury is one which can be adequately compensated by a small money payment; and d. Granting an injunction would be oppressive to the Defendant.

See Duchman v. Oakland Dairy Co., [1982] O.J. No. 102, para 24-25; Bellini Custom Cabinetry Ltd. v. Delight Textiles Ltd at para 145-146 (ON SC) affirmed at 2007 ONCA 413; Pagliuca v. Paolini Supermarket Ltd. at para 10-11 (ON SC) aff’d in 2007 ONCA 617; Krieser v. Garber, 2020 ONCA 699 at para 73.

[44] Mandatory injunctions are to be used sparingly and only made with considerable caution and thought. See Krieser, para 75; Mitchell et al. v. Clarke. In considering whether a permanent injunction ought to be granted, the Court of Appeal in Labourers’ International Union of North America, Local 183 v. Castellano, 2020 ONCA 71 at para 25 recently summarized the following considerations:

(a) Has the claimant proven that all the elements of a cause of action have been established or threatened? (If not, the claimant’s suit should be dismissed); (b) Has the claimant established to the satisfaction of the court that the wrong(s) that have been proven are sufficiently likely to occur or recur in the future that it is appropriate for the court to exercise the equitable jurisdiction of the court to grant an injunction? (If not, the injunction claim should be dismissed); (c) Is there an adequate alternate remedy, other than an injunction, that will provide reasonably sufficient protection against the threat of the continued occurrence of the wrong? (If yes, the claimant should be left to reliance on that alternate remedy); (d) If not, are there any applicable equitable discretionary considerations (such as clean hands, laches, acquiescence or hardship) affecting the claimant’s prima facie entitlement to an injunction that would justify nevertheless denying that remedy? (If yes, those considerations, if more than one, should be weighed against one another to inform the court's discretion as to whether to deny the injunctive remedy); (e) If not (or the identified discretionary considerations are not sufficient to justify denial of the remedy), are there any terms that should be imposed on the claimant as a condition of being granted the injunction?; (f) In any event, where an injunction has been determined to be justified, what should the scope of the terms of the injunction be so as to ensure that only actions or persons are enjoined that are necessary to provide an adequate remedy for the wrong that has been proven or threatened or to affect compliance with its intent?

The court again confirmed that this type of relief must be granted sparingly and carefully.

Conclusion

[45] The circumstances in this case require that the main action and third party action (including crossclaims) be heard at the same time. This is so for the following reasons:

a. While the Defendant does not agree that there has been nuisance or negligence, and submits that the Defendant must only be held liable for her own negligence, not that of Third Parties, the reality is that the Defendant agrees that there has been a trespass. Therefore, the issues in this litigation will be focused on what should be done about this trespass and who should pay for it. b. It is true that the initial parties to this litigation are the two property owners. The Plaintiff chose not to include other parties, such as the builder, surveyor, excavator or City. However, the pleadings of the Defendants from the outset clearly put the conduct of the Third Parties at issue, even in the main action. c. The Defendants have consistently claimed that it was not them that built the home, performed the relevant survey, or issued the building permit that allowed them to go ahead with the build. They were unaware of this encroachment until 2003. While the Defendants admit that they have committed a trespass, they take the position that they are not ultimately financially responsible to compensate the Plaintiffs in whatever fashion is ordered by this court. While it is true that this court will need to make findings of fact based on evidence concerning events in 1998 and that the Plaintiffs were not involved in the original events, in fact, not involved until 2002 when they purchased the property, Ms. Penny’s narrative clearly, even in the main action, is one that directly engages the Third Parties in all aspects. This court is frankly surprised that Ms. Penny would want to have two separate actions. d. Setting aside the liability issues, the remaining issues in each action are undeniably interwoven. This is obvious from a detailed review of the pleadings. e. The Third Parties have actively participated in the defence of the main action for many years. Each of the Third Parties has delivered a defence in the main action. Accordingly, under Rule 29.05, each of them has the same rights and obligations in the main action as a Defendant, and is bound by any orders or determinations made in the main action. The Third Parties are obviously very interested in the outcome of the main action and will participate in the main action regardless of whether the actions are tried together or one after the other. The Third Parties, having intended to fully participate in the main action, are certainly not prejudiced by having the actions heard at the same time. f. This trial will essentially start out with a consideration of the appropriate remedy as between the Plaintiffs and the Defendants, given the admitted trespass. While the Plaintiffs claim for injunctive relief, the Defendants, from the outset have claimed for equitable relief (para 28 of the Defendants’ Statement of Defence). Equitable relief requires a careful and global consideration of the circumstances that takes into account all of the remedial options available to the court. g. To suggest that the Third Parties’ evidence is not relevant to the main action, as they do not own either property, misses the point and real focus of this trial – the remedy and who should pay for it. The Defendant, Janet Penny, is at the centre of these two actions. While it is true that the Plaintiffs did not plead the negligence of the Third Parties, Ms. Penny certainly did right from the outset. The Third Parties could not possibly have been caught by surprise by the suggestion that their conduct is relevant to the main action. The Defendants made it relevant. It is not only the Statement of Claim that defines the action but all pleadings in the action. h. Determining an appropriate remedy in this case, while proceeding with two separate actions, would require an extremely fine parsing of the issues that is not possible or reasonable, and could risk inconsistent findings based on the separation of the evidence. The court must be able to assess the criteria for advancing equitable relief with full knowledge of the circumstances. The court must know the options available and the cost of those options in order to do this analysis responsibly. i. The parties have the same lawyers in each action. j. The factual narrative, as a whole, is not complex, and much of it is not in dispute. k. Given the admitted trespass, a decision in the main action is not likely to settle or even narrow the issues in the third party action. l. While it is true that until Ms. Penny knows what remedy is awarded to the Plaintiffs in the main action, the scope of the third party claim is unknown. However, it is not clear how this changes her litigation strategy. Ms. Penny has admitted liability in trespass. This court must determine what to do about that trespass. Given the admission, it would be logical that Ms. Penny has already focused her litigation strategy on the remedy, being injunctive or monetary, and who should pay for it. On the question of injunctive or monetary, this court will need to understand the viable options and the costs of those options. Again, one would think that this is already the focus of Ms. Penny’s litigation strategy. It is not clear to this court why the value of the remedy would significantly impact upon Ms. Penny’s strategy in pursuing the Third Parties. Even if Ms. Penny is Ordered to pay $1, her position is that the Third Parties are to blame for this conundrum. The only thing that changes is the amount she is seeking. On the other hand, the Third Parties each say that they are not liable, regardless of the amount at issue. Therefore, the value of the remedy would seem to have no impact on litigation strategy. Presumably, these parties already know the value of certain remedial options that will be put forward to this court. Given documentary disclosure and examinations for discovery, it is improbable that the parties are not already aware of the potential remedial options that will be suggested. There are no secrets in this litigation. All parties know exactly what this litigation is about. m. Both the main action and the third party action are at the same place as to the litigation status. n. There is no jury notice. o. It is this court’s view that the parties’ costs will not be increased if these actions are heard at the same time. Given the real issues to be focused on, costs will be saved by having the matters heard together. p. There is no prejudice to anyone by having the main action and third party action heard at the same time. The Third Parties claim that having these matters heard together requires them to advocate for, and alongside, Ms. Penny in the main action and, simultaneously, be critical of her to defend the third party claim. In this particular case, these positions are not contradictory. As for the position of the Third Parties in the main action, they are advocating for a monetary resolution as opposed to injunctive relief that would require Ms. Penny to substantially change or remove the structure. Irrespective of how that issue plays out, the Third Parties each say that they are not liable. There is nothing contradictory about these positions. q. There are no undue procedural complexities that cannot be dealt with while having the actions heard at the same time. The parties are entitled to make submissions as to the use and purpose of any piece of evidence or what issues need to be decided before others. r. The Third Parties claim that the Defendants commenced the third party action, and they ought to be permitted to determine how to conduct their action. This court is entitled to control its own process and to make decisions for the proper conduct and order of the proceedings. s. The Defendants claim that if this court makes an order that they cannot retain the property for money, it should be up to them to decide how to rebuild on their side of the line. The reality is that the Defendants will be at liberty to choose what to do on their side of the line, regardless of what this court decides.

[46] The issues are completely intertwined such as to make it impossible for this court to determine equitable remedies without hearing all of the evidence available on the issues. For all of the foregoing reasons, these actions will be heard at the same time.

Justice V. Christie Date: February 15, 2022