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Court Considers Test for Consolidation of Actions

By Jennifer Singh

In Paterson v. Gilbert, 2021 ONSC 8469, the plaintiff, Steven Paterson, brought a motion to consolidate three purportedly related actions. Justice Marvin Kurz granted the plaintiff’s motion in part.


The three actions that the plaintiff sought to consolidate were:

The “MVA Action”, Stuart v. Paterson, Intact Insurance Company and Western Assurance Company, wherein the Stuarts sued Steven Paterson for damages arising out of a motor vehicle accident of November 3, 2016. Mr. Paterson ran and red light and collided with the Stuarts’ vehicle.

The “LTD Action”, Stuart v. Blue Cross Insurance Company of Canada, wherein Stephen Stuart sued his long-term disability insurer claiming entitlement to ongoing LTD benefits, which were terminated effective August 31, 2019.

And the “Malpractice Action”, Paterson v. Gilbert, wherein Mr. Paterson sued his family physician, Dr. Michael Rory Gilbert, claiming indemnity for any amounts that he may be required to pay to the Stuarts in Stuart v. Paterson. Mr. Paterson claims that Dr. Gilbert is liable to him for medical malpractice in over-prescribing opiates to him, which contributed to the accident of November 3, 2016.

The Test for Consolidating Actions

Under s. 138 of the Courts of Justice Act, “[a]s far as possible, multiplicity of legal proceedings shall be avoided.”

The jurisdiction to consolidate separate proceedings is found in Rule 6.01 of the Rules of Civil Procedure, which reads 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.

(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.

The applicable test for the consolidation of separate actions was set out by Master Dash in 1014864 Ontario Ltd. v. 1721789 Ontario Inc., as follows:

17 In my view the proper approach on a motion for consolidation or trial together is to first ascertain whether the moving party has satisfied one or more of the three “gateway” criteria set out in rule 6.01(1)(a), (b) or (c) and then consider all relevant factors as well as section 138 of the Courts of Justice Act which directs the court to avoid a multiplicity of proceedings whenever possible, in order to exercise the court’s discretion and make such order as is just…

18 A non-exhaustive list of some of the considerations on ordering trial together may, depending on the circumstances, include:

(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 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 straight forward 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;

(q) whether the motion is brought on consent or over the objection of one or more parties.

Justice Kurz’s Analysis

Justice Kurz stated that, arguably, there was a nexus between the three actions, as none would have arisen without the MVA Action. However, the nexus between the actions was more tenuous than it seemed at first glance. There were key differences between the MVA and the LTD actions, because in the LTD action the only issues were whether the plaintiff meets the test for entitlement to disability benefits as defined in the policy on the date of trial, and there is no determination of future entitlement. In the tort action the issues are much wider. There were clearly no common issues between the LTD Action and the Malpractice Action.

Justice Kurz reviewed the non-gateway issues from Master Dash’s list. His Honour considered that the legal issues in the three actions had some commonalities, but were not interwoven. The damages in each action had a separate legal and factual basis, but there was some potential overlap between the damages in the MVA and LTD Actions. There was likely to be an overlap of witnesses in the MVA and LTD Actions. There was some meaningful risk of inconsistent findings in the MVA and LTD Actions.

While the issues were not straightforward in each action individually, His Honour felt that they would be made more complex if tried together. However, a resolution of the LTD Action would affect the assessment of damages in the MVA Action, and the nature of the Malpractice Action required a resolution of the MVA Action. Further the MVA and LTD Actions had already gone through discoveries, and combining the actions would open the door for further discoveries.

His Honour further considered that the costs to the plaintiffs of the MVA Action would be increased if they are required to participate in the Malpractice Action. The plaintiffs in the MVA Action would further be prejudiced if the three actions were tried together, as this would likely delay trial, and the plaintiffs were only entitled to receive, as damages for income loss prior to trial, 70% of gross pretrial income loss. 


In coming to his decision, Justice Kurz placed heavy emphasis on the prejudice that would be suffered by the plaintiffs in the MVA Action if the Malpractice Action caused further delays.

Justice Kurz ordered that the MVA and LTD Actions would be heard at the same time or one immediately after the other. Dr. Gilbert would be entitled to discovery records from the MVA and LTD Actions and would also be allowed to examine Mr. Stuart for up to half day, but this was not to delay the MVA and LTD Actions in any way.

Hi Honour further ordered that if the Malpractice Action can be ready for trial when the MVA and LTD Action is called, then they will all be heard together or one immediately after the other. However, the Malpractice Action would not be permitted to hold up the other actions.

Key Takeaways

The Court in Paterson v. Gilbert, confirms that consolidating or ordering that multiple actions be heard together guards against inconsistent findings, but whether it is appropriate for actions to be tried together must be determined on the basis of multiple factors, on a case-by-case basis. One of the factors that was heavily emphasized by the Court in this decision was the potential prejudice to the parties.