March 6, 2023

Litigation is complicated, and parties sometimes end up getting involved in a multitude of separate, but nevertheless related, proceedings. When this happens, and depending on the circumstances, courts may choose to “link” or “combine” the related proceedings, for the sake of efficiency and overall convenience.

Rule 6 of the Rules of Civil Procedure deals with the “linking” of related proceedings:

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…

Under Rule 6, there are two main ways in which a court may combine proceedings. First, the proceedings may be “consolidated.” Second, the proceedings may be “heard at the same time or one immediately after the other” (i.e., “trial together”).

The Difference Between Consolidation and Trial Together

Consolidation and trial together both aim to achieve the same fundamental goals: avoidance of a multiplicity of proceedings and inconsistent judicial findings, and the promotion of the most expeditious and least expensive resolution of disputes. However, consolidation and trial together achieve these goals in different ways.

When multiple proceedings are consolidated, they transform into a single proceeding. This typically entails one set of pleadings and discoveries, one final judgement, and one bill of costs.

When multiple proceedings are tried together, the proceedings continue as separate proceedings. This entails separate pleadings and discoveries, separate judgements, and separate bills of costs. However, the proceedings will be heard by the same judge (and, where applicable, the same jury), in whatever manner or chronological order the presiding judge chooses. Typically, the judge will order that the evidence in the one proceeding be used in the other proceeding(s).

The Test for Consolidation and Trial Together

There is a two-stage test for both consolidation and trial together. The first stage of the test requires a court to determine whether any of the three “gateway criteria” have been met:

(1)  Do the proceedings share in common a question of law or fact, one that bears sufficient importance in relation to the other facts or issues in the proceedings, such that it would be desirable for the proceedings to be linked?

(2)  Does the relief sought in the various proceedings arise out of the same transaction or occurrence, or series of transactions or occurrences?

(3)  Is there any other reason why an order should be made linking the proceedings?

If the answer to any of these three questions is “yes,” a court will move to the second stage of the test, and ask whether the balance of convenience favours an order combining the proceedings. Here, a court will consider a variety of factors before deciding whether to grant an order for consolidation or trial together. Although different factors apply depending on whether the moving party is seeking consolidation or trial together, the court is generally looking at the convenience or inconvenience, in terms of time, money, due process and administration, of bringing the proceedings together.

There is case law to support the notion that the test for obtaining an order for consolidation is more stringent than the test for obtaining an order for trial together. For example, see Singh v Trump Sr. However, this notion was recently criticized in Paterson v Stewart Title Guaranty Company.


Ultimately, the test for combining proceedings under Rule 6 is discretionary. Courts will determine the propriety of an order for consolidation/trial together based on the facts and legal issues of the proceedings at hand, as well as the surrounding circumstances (i.e., who the parties and witnesses are, who their lawyers are, whether one proceeding is at a more advanced stage than the others, etc.). The overarching concern is to maximize judicial economy without unduly prejudicing the parties who would otherwise be subject to the order for consolidation/trial together.