One Dispute, Multiple Proceedings: The Operation of Consolidation in Estates Litigation

Estates disputes do not always stay neatly within the boundaries of estates law. A dispute involving a power of attorney or the administration of an individual’s property can quickly give rise to other claims, including allegations of breach of fiduciary duty, negligence, or defamation.

When that happens, what is the best way to move the litigation forward? Should the related claims proceed separately, or should they be brought together?

A recent decision of the Ontario Superior Court of Justice provides a useful look at how courts approach that question.

The dispute in Licursi v. Bank of Montreal

In Licursi v. Bank of Montreal, 2026 ONSC 4953, the underlying dispute involved a family dispute between two sisters concerning the care of their father and the administration of his finances. Peggi Licursi being the plaintiff, and Shirlene McKay, the defendant. The litigation concerned two separate proceedings, both commenced on December 5, 2024.

The first was an action seeking approximately $500,000 in damages. Among other allegations, Peggi Licursi and Donald McKay alleged that Shirlene McKay had forged a power of attorney and used it to defraud their father of more than $400,000. Ms. Licursi also alleged that Ms. McKay and her former lawyer had made defamatory comments about her to the Bank of Montreal.

The second proceeding was an application concerning the father’s property and included claims relating to powers of attorney, alleged breaches of fiduciary duty, a passing of accounts, and alleged negligence by the law firm involved in preparing the father’s documents.

By the time Justice Boswell heard the motions, most of the claims in the action had fallen away. The only remaining claim was the defamation claim between the sisters. Ms. Licursi sought to consolidate that claim with the application.

The other side argued that adding the defamation claim would only “muddy the waters” of an application focused on the father’s assets.

Justice Boswell disagreed.

What factors does the court consider?

Rule 6.01 of the Rules of Civil Procedure gives the court discretion to consolidate proceedings, hear them at the same time, or hear one immediately after the other where, for instance, they have a question of law or fact in common or arise from the same transaction or series of transactions.

The court in Licursi relied on the non-exhaustive list of factors set out in 1014864 Ontario Ltd. v. 1721789 Ontario Inc., 2010 ONSC 3306. Those factors include:

• the extent to which the issues in each proceeding are interwoven;
• whether the same damages are sought in both proceedings;
• whether damages overlap and require a global assessment;
• whether there will be significant overlap in evidence or witnesses;
• whether the parties and lawyers are the same;
• whether there is a risk of inconsistent findings if the proceedings remain separate;
• whether one proceeding is relatively straightforward compared to the complexity of the other;
• whether a decision in one proceeding could narrow or resolve issues in the other;
• the procedural status of each proceeding;
• whether a jury notice has been served;
• whether interlocutory steps could be avoided by combining the proceedings;
• the timing of the consolidation motion and potential for delay;
• whether the parties will save or incur additional costs;
• the advantages or prejudice associated with keeping the proceedings separate or trying them together;
• whether combining the proceedings would create undue procedural complexity; and
• whether the motion is brought on consent or over the objection of another party.

In considering these factors, Justice Boswell noted that not every factor will be relevant in every case, and other factors may be significant depending on the circumstances. Thus, these factors are not exhaustive.

So, should the proceedings be joined?

In the Licursi case, the answer was yes.

Justice Boswell found that the two proceedings were essentially different manifestations of the same dispute between the sisters. The lawyers were the same across both proceedings, and the defamation trial would require background evidence that would also provide context for the application. Rather than having that evidence called twice, it was preferable to hear it once.

There was also little concern about delay because neither proceeding was particularly far along. While there was no serious risk of inconsistent findings, the court found that combining the proceedings would result in cost savings.

The fact that the defamation claim had properly been commenced as an action, while the other proceeding had been commenced as an application, did not prevent consolidation. Although a defamation claim is properly brought by way of action, Rule 6.01 applies to “proceedings,” which includes both actions and applications.

Justice Boswell ultimately ordered that the defamation claim be heard at the same time as the application, subject to the overriding discretion of the trial judge.

The takeaway

Licursi is a helpful reminder that the fact that a dispute involves different types of claims does not necessarily mean that those claims should be litigated separately. Where the factual background, parties, evidence and issues substantially overlap, consolidation may make the proceeding more efficient and less costly.

At the same time, consolidation is not automatic. The court must consider the circumstances of each case and balance the potential efficiencies against any prejudice or procedural complications that joining the proceedings may create.

For estates litigators, the question may therefore be less about whether a claim is technically an “estates” claim or a “civil” claim, and more about whether the claims are sufficiently connected that they are better resolved together.