In Miclash v. Yan, the Court allowed an application by the Plaintiff to consolidate his claims. The case was decided before the Supreme Court Civil Rules changed on July 1, 2010, however the new wording is identical to the previous Rule. The Court discusses the law with respect to such applications.
[16] The order sought is discretionary.
[17] Exercise of this discretion is governed by the principles set out in the decision of Master Kirkpatrick, as she then was, in the case of Merritt v. Imasco Enterprises Inc. (1992), 2 C.P.C. (3d) 275 at para. 18 and 19:
18. None of the submissions of counsel address the real issue to be determined. That is, are the issues raised by the pleadings sufficiently similar to warrant the order sought and will the order make sense in the circumstances? An application to have actions tried at the same time thus requires an examination of circumstances which may be of a more general nature than is made under R. 27 or 19.
19. I accept that the foundation of an application under R. 5(8) (now Rule 22-5(8)) is, indeed, disclosed by the pleadings. The examination of the pleadings will answer the first question to be addressed: do common claims, disputes and relationships exist between the parties? But the next question which one must ask is: are they “so interwoven as to make separate trials at different times before different judges undesirable and fraught with problems and economic expense”? Webster v. Webster at 182, 10 R.F.L. (2d) 148, 101 D.L.R. (3d) 248 (C.A.). That second question cannot, in my respectful view, be determined solely by reference to the pleadings. Reference must also be made to matters disclosed outside the pleadings:
(1) Will the order sought create a saving in pre-trial procedures, (in particular, pre-trial conferences)?;
(2) Will there be a real reduction in the number of trial days taken up by the trials being heard at the same time?;
(3) What is the potential for a party to be seriously inconvenienced by being required to attend a trial in which that party may have only a marginal interest?; and
(4) Will there be a real saving in experts’ time and witness fees?
This is in no way intended to be an exhaustive list. It merely sets out some of the factors which, it seems to me, ought to be weighed before making an order under R. 5(8) (now Rule 22-5(8)).
[18] To these considerations, Master Joyce, as he then was, added two more in the case of Shah v. Bakken, [1996] B.C.J. No. 2836, 20 B.C.L.R. (3d) 393, at para. 15:
Other factors which in my view can be added to the foregoing list are:
(5) Is one of the actions at a more advanced stage than the other? See: Forestral Automation Ltd. v. RMS Industrial Controls Inc. et al. (No.2), unreported, March 6, 1978, No. C765633/76, Vancouver (B.C.S.C.).
(6) Will the order result a delay of the trial of one of the actions and, if so, does any prejudice which a party may suffer as a result of that delay outweigh the potential benefits which a combined trial might otherwise have?
[29] In all of the circumstances, although I am not fully satisfied that the GM/Yan and GM/Jarvis actions on the one hand and the LM/Jarvis on the other, are so interwoven as to make separate trials “fraught with problems and economic expenses”, I will grant the order sought. In the case of Murray v. Morgan, [1999] B.C.J. No. 2871, Master McCallum paraphrased Master Kirkpatrick’s analysis in Merritt as “will the order make sense in the circumstances”. I am satisfied that it will. It appears there will be some reduction in the overall time required for trial and in the time and expense related to expert evidence called on behalf of both GM and LM. The resolution of liability in the GM/Yan case in which Jarvis has no interest, may be dealt with quite expeditiously:1.5 days out of a 10 day trial.
