All About Estates

Consolidate, for Efficiency’s Sake!

The 2014 Supreme Court decision, Hryniak v Mauldin, directly addressed the need to increase access to justice. In that case, the Supreme Court clarified and broadened a court’s fact-finding powers on summary judgment motions with the goal of providing litigants a faster procedure in appropriate cases. In the same spirit, there are other procedural tools available to streamline court proceedings and eliminate redundancy. In particular, Rule 6 of the Rules of Civil Procedure and s. 107 of the Courts of Justice Act allow separate proceedings to be consolidated or heard together. The Court of Appeal for Ontario (“CA”) recently opined on the dangers of failing to consolidate proceedings which deal with the same set of facts and legal questions.

A routine, if complex, guardianship dispute underlay the decision in Messmer v Pilz. Peter first became concerned about his father, Karl, when Karl had a stroke in 2006 then later moved in and married his 30-years younger neighbour. Peter then discovered that Karl had removed him as attorney for property and executed several new power of attorney documents (“POAs”) in favour of Karl’s sister and brother-in-law. In 2009, Peter commenced an application to be appointed guardian of property for his father. Peter’s application named Karl and his aunt and uncle (the named attorneys) as respondents. Once the proceeding got underway, the parties agreed that Peter’s application be converted into a trial of an action.

In 2014, Peter’s cousin (the son of Karl’s attorneys for property) commenced an application seeking a declaration that Karl’s last POA was valid and an order that he be appointed Karl’s guardian of property. In response, Peter brought a motion to have Arnold’s application consolidated with his pending action. In support of his motion, Peter filed an affidavit appending relevant materials from his pending action.

The judge heard Arnold’s application and Peter’s motion for consolidation together. In his decision, the application judge found that Karl’s POA was valid. The judge then turned to Peter’s consolidation motion. The application judge held that Arnold had a prima facie right to proceed by way of application and that consolidating the proceedings would result in substantial delay in resolving Arnold’s application. Peter was ordered to pay costs on a substantial indemnity basis to both Arnold and Karl. Peter appealed.

The CA held that the application judged erred in two main ways. First, the judge erred in finding that Arnold’s application was separate and unrelated to the pending action. While Arnold was not named as a party to Peter’s pending action, he was the son of the respondents to the pending action and he was named as alternate attorney in the POA at issue in both proceedings.

Second, the judge erred in finding that the only issue before him was whether Karl had the capacity to appoint an attorney for property. Peter’s responding materials challenged the POA on the grounds of undue influence and suspicious circumstances. In addition, Peter and Arnold were seeking to be appointed as Karl’s guardian of property, which is a separate issue from the validity of the POAs.

The CA found that requiring Peter to litigate Arnold’s application in parallel with his pending action would be a waste of resources and risk inconsistent decisions by the court. In fact, the failure to consolidate the proceedings had already resulted in inconsistencies: while the application judge found that Peter’s management of Karl’s funds was “highly inappropriate,” a motion judge in the pending action had found that Peter had done a proper job as attorney for property. In addition, it was unclear how the application judge’s decision to uphold the POA would have impacted the pending action.

Given the above, the CA held that the most efficient disposition would have been to consolidate Arnold’s application with Peter’s pending action.

In the result, the CA allowed Peter’s appeal and ordered that the application judge’s decision be set aside and substituted for an order converting Arnold’s application to an action and consolidating it with Peter’s pending action. The application’s costs decision was also set aside and Peter was awarded costs of the appeal.

The CA’s comments on the procedural steps taken by Peter have implications beyond this particular set of facts and are worth noting:

  • Peter’s decision to file an affidavit appending materials from the pending action, rather than filing fresh evidence, was held by the CA to be appropriate and efficient.
  • The application judge had ignored Peter’s evidence of undue influence and suspicious circumstances because Peter chose not to cross-examine Arnold and Karl on their affidavits. Instead, the application judge held that Arnold’s materials were “unchallenged.” The CA found this to be an error.
  • While a litigant has a prima facie right to proceed by way of application, that does not mean he has the right to have the matter determined at the hearing of the application. Rather, the court may direct a trial of an issue or convert the proceeding to an action at any time.

This case is a good reminder that litigants can and should keep the principles of efficiency and cost effectiveness in mind when making procedural choices.

About Gillian Fournie
Gillian is a lawyer with de VRIES LITIGATION LLP. Her practice focuses on the area of trusts and estates litigation. More of Gillian's blogs can be found at


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