Albert Terry v. Joanne Terry, 2019 NLSC 185

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Terry v. Hepditch , 2019 NLSC 185 Date : October 23, 2019 Docket : 201401G7220 Between: Albert Terry and Joanne Terry Plaintiffs And: Patrick Hepditch and Susan Hepditch First Defendants And: James BrownE and Rosalie Brown E Second Defendants Before: Justice Frances J. Knickle Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: March 28, 2019

Summary: The defendants applied to have plaintiffs’ counsel removed for conflict of interest, and to add the second defendants as third parties to the proceedings. While plaintiffs’ counsel should not have prepared the defence for the second defendants, the Court was satisfied that there was no risk of prejudice to either the first or second defendants. The second defendants retained independent counsel and both the second defendants and plaintiffs consented to counsel continuing to act. The Application to remove counsel was dismissed. The Application to add the second defendants as third parties was allowed. Costs in the application are in the cause. Appearances:

Randell L. Wellon Appearing on behalf of the Plaintiffs J. Michael Cabot Appearing on behalf of the First Defendants Keith S. Morgan Appearing on behalf of the Second Defendants Authorities Cited: CASES CONSIDERED: Wallace v. Canadian Pacific Railway, 2013 SCC 39); Macdonald Estate v. Martin, (SCC),[1990] 3 S.C.R. 1235; Mahoney v. Mahoney, 2017 NLTD(G) 216; O’Dea v. O’Dea (1987), (NL SC), 68 Nfld. &P.E.I.R. 67, 209 A.P.R. 67 (Nfld. U.F.C.); Ryan v. Dew Enterprises Ltd., 2014 NLCA 11; Canada (Attorney General) v.

Fairmont HotelsInc, 2016 SCC 56; RULES CONSIDERED: Rules of the Supreme Court, 1986I, S.N.L. 1986, c. 42, Sched. D TEXTS CONSIDERED: Law Society of Newfoundland and Labrador, Code of Professional Conduct (St. John’s: n.p., 2013); Black’s Law Dictionary, 5th ed. REASONS FOR JUDGMENT Knickle, J.: INTRODUCTION [1] This is an Interlocutory Application by the first defendants (the “Hepditches”) to have the plaintiffs’ counsel removed forconflict of interest on the basis that counsel for the plaintiffs also acted for the second defendants.

The Hepditches also seek to add thesecond defendants (the “Brownes”) as third parties to the proceedings. The dispute between the plaintiffs (the “Terrys”) and theHepditches is over the correct placement of a boundary between their adjacent properties. The Brownes agree with the Terrys as to theproper placement of the boundary. [2] For the reasons that follow, while it was inappropriate for the Terrys’ counsel to have assisted the Brownes, I am satisfied noprejudice has been occasioned by this conduct.

The Hepditches, Terrys, and the Brownes agree there has been no prejudice to either theTerrys or the Brownes by Terrys’ counsel having acted for the Brownes. The Brownes are now represented by independent counsel and,through their new counsel, explicitly consent to the Terrys’ counsel continuing to act for the Terrys. The Terrys also wish counsel tocontinue to act for them. In my view, the Terrys can continue to be represented by present counsel.

The application to remove counsel isdismissed. [3] I am also satisfied that it is appropriate to permit the Hepditches to add the Brownes as third parties in this litigation. I amsatisfied the Hepditches may have a claim against the Brownes that arises out of the claims by the Terrys against the Hepditches. TheBrownes already are named defendants and both the factual and legal issues between all three parties are inextricably intertwined. I amalso satisfied the addition of the Brownes will not unduly complicate the litigation or result in a lengthy delay or prejudice to the Terrys.

The application to name the Brownes as third parties is allowed. BACKGROUND FACTS [4] The Terrys and the Hepditches purchased lots from the Brownes. The Hepditches were the purchaser first in time, in 2006. The Terrys purchased in 2011. The lots are adjacent to each other. Counsel for the Terrys in these proceedings acted for the Brownes inrelation to the sale in 2011. [5] Both the Terrys and the Hepditches are in possession of deeds of conveyance from the Brownes for their respective lots. Eachdeed describes the lot in question and also has a survey attached describing the particular lot.

Unfortunately, the two surveys for the twolots were not prepared by the same person. The surveys do not appear to agree with each other as to where the boundary between thetwo properties lies. The difference in placement of the boundary is approximately three feet. The Hepditch survey appears to accordthree feet to the Hepditch lot at the expense of the Terrys. [6] If the Hepditch survey correctly includes the disputed three feet, this will have severe consequences for the Terrys. Theypurchased their lot with the intention of building a residence.

Without the three feet of land now in dispute, the Terrys possessinsufficient acreage to obtain the necessary building permit from the Town of Holyrood, where the lot is located. It was the Town that infact brought the issue of the insufficient lot size to the attention of the Terrys. When the Terrys applied for the permit to build, the Towndenied the permit, pointing to the survey of the Hepditch lot from 2006.

[ 7 ] When the Terrys discovered the apparent discrepancy in the surveys, they advised the Hepditches and attempted to have the Hepditches voluntarily rectify their deed to reflect what the Terrys viewed was the proper description of the boundary. The Hepditches declined (The Hepditches are not in favour of the Terrys being permitted to build and had initially objected to the issuance of the permit on the basis that there may be flooding of their lot.

This objection was rejected by the Town). [ 8 ] In response to the refusal by the Hepditches to rectify their deed and survey to accord with the Terry deed and survey, the Terrys commenced proceedings against the Hepditches by way of statement of claim. The Terrys alleged fraud, forgery, and theft (by way of conversion or deceit). The Terrys alleged they suffered damages as a result of this conduct, including the loss of the three feet of property, the delay this has caused in being able to construct their home, financial loss and mental distress.

The Terrys sought a remedy of not only rectification of the deed relating to the Hepditch property to alter the boundary line, but special expenses, general and punitive damages, and costs on a solicitor client basis. [ 9 ] The Brownes were not named in the initial statement of claim as parties. However, the Terrys alleged that the Hepditches altered the deed attached to the lot purchased “without the knowledge or consent” of the Brownes. [ 10 ] When the matter came before this Court for a pre-trial conference, the presiding justice instructed counsel to add the Brownes to the proceedings.

The Court advised it would not make an order for rectification without including notice to the Brownes, as they were the other party to the deed. As per the direction from the Court, the Terrys applied to the Court to add the Brownes, not as defendants but as a third party. However, the Hepditches objected and instead asserted the Brownes should be added as a defendant. The Terrys obliged, filed the application to add the Brownes as defendants and to amend their statement of claim. The order was granted in 2016.

At that time, the Hepditches did not raise whether or not the Brownes should be also added as third parties in relation to their defence. [ 11 ] An amended statement of claim was filed in October, 2016. The amended statement of claim no longer asserted deceit or fraud. Instead, it asserted that the Hepditches “wrongfully,” “mistakenly,” or “negligently” included the three feet of property belonging to the Terrys in the Hepditch deed and survey.

The Terrys asserted that the inclusion of the disputed three feet was either without the knowledge or consent of the Brownes, and a unilateral mistake by the Hepditches, or a mutual mistake of both the Brownes and the Hepditches. Despite this amendment, the damages and remedies sought by the Terrys are as per the original statement of claim; and only against the Hepditches; save the remedy of rectification of the deed. [ 12 ] It was not until almost a year later, October 2017, that the Brownes were actually served with the amended statement of claim that now included them as defendants.

The delay in the service of the amended statement of claim came to the attention of the Hepditches only after inquiries from the Hepditches’ counsel as to when they could expect the Brownes’ statement of defence. [ 13 ] Counsel for the Terrys then drafted a statement of defence on behalf of the Brownes, which was filed in December of 2017. He also filed a List of Documents on their behalf; although the Brownes did not possess documentation related to the conveyances (According to the material filed, the Brownes did not possess any copies, and the originals which were with their lawyer were destroyed in a flood).

In their statement of defence the Brownes stated they never intended that the three feet, purportedly part of the Hepditch lot, be sold to the Hepditches, but belonged with the Terry lot, sold to the Terrys in 2011. [ 14 ] When Hepditches’ counsel received a copy of the statement of defence for the Brownes from the Terrys’ counsel, and it appeared Terrys’ counsel had prepared the documents, counsel for the Hepditches immediately sent correspondence to Terrys’ counsel raising the issue.

Counsel for the Terrys responded that the Brownes were “self-represented.” However, later that year during discovery proceedings, Mrs. Browne testified that counsel for the Terrys was her solicitor. [ 15 ] At the hearing of this application Mrs. Browne was cross-examined on her affidavit. As per her affidavit, she testified that it was never her intention that the lot sold to the Hepditches would include the three feet now purportedly described in the Hepditch deed and survey.

She understood those three feet went with the lot to the Terrys as per the Terry survey and this was her intention when the lot was sold to the Terrys; notwithstanding the Hepditch survey now purports to describe otherwise. Mrs. Browne testified that she recalled seeing the surveyor for the Hepditch lot at the time he was surveying the property. She testified she told him that he was putting the property “markers” in the wrong spot.

However, there is nothing in the materials or in her evidence that this was brought to the attention of either the Hepditches, or her lawyer, or that any further steps were taken to ensure what she thought was the proper placement of the markers. [ 16 ] Counsel for the Hepditches concluded that Terrys’ counsel had formed a solicitor-client or near solicitor-client relationship with the Brownes.

The Hepditches applied to this Court to have counsel for the Terrys removed because of the issue of conflict of interest and to have the Brownes added as third party so that if they are held liable to the Terrys they can, in turn, claim against the Brownes for all or part of that liability. POSITION OF THE PARTIES [ 17 ] With respect to whether or not Terrys’ counsel should be removed for conflict of interest, the concern of the Hepditches is twofold.

While conceding that they themselves are not at risk of suffering prejudice because of a possible or actual disclosure of confidential information, there is a risk of such information passing from either the Terrys or the Brownes if counsel continues to act for both parties. Even if no confidential information has passed, and there is no further risk that information will pass, the parties are in an adversarial position toward each other in this litigation. This raises conflict issues because a lawyer cannot act for both sides of a dispute.

At the hearing of the application, now that the Browne’s were represented by different counsel, and neither the Brownes nor the Terry’s objected to counsel continuing to act for the Terrys, the Hepditches did not press the issue with vigour. [ 18 ] With regard to whether or not the Brownes should be added as third parties, the Hepditches submit that any liability found against the Hepditches should be indemnified by the Brownes.

The Hepditches deny having committed wrongdoing of any kind or having made any mistake with respect to the survey attached to the deed of conveyance, and assert they are simply defending the property they own as purchased from the Brownes. They have no knowledge of a previous survey. If there is a problem with the surveys, it is with the Terry survey, not their survey. They point out the cost of the survey prepared for the purchase of the Hepditch lot was shared with the Brownes, and the Brownes’ solicitor at the time of the sale of the property approved the survey.

[19] The Hepditches assert that if their survey is inaccurate, and they are found liable for any damages suffered by the Terrysbecause of this error caused by the mistake in their survey, it is not at their hands, but at the Brownes’. The Hepditches assert for thesereasons, they should be able to claim against the Brownes. [20] In response to whether or not their counsel is in conflict of interest, the Terrys submit they are aware that their counsel has actedfor the Brownes in this action. They take no issue with his conduct and wished for him to continue to act.

The Terrys assert that whilethe Brownes are named as defendants, they are “nominal” defendants and their relationship is not adversarial. They make no claimagainst the Brownes, and the Brownes agree with their view as to the correct placement of the boundary line. The Brownes have beenadded as defendants solely to facilitate the Court granting an Order for rectification of the deed. The Terrys also assert the Brownes donot need to also be named as third parties.

There is no claim against the Hepditches that in turn arises against the Brownes. [21] The Terrys state they have made it clear in the proceedings that there are no longer grounds to argue the Hepditches hadintentionally altered the deed and have abandoned that part of their claim.

The only remedy they seek is rectification of the deed, and atparagraph 35 of their written brief in this matter, the only issue for trial is whether the Hepditch survey is accurate: The only issue for trial will be the accuracy of the 2006 Whiffen Survey and whether it accurately reproduced the original reference survey completed by Robert Power on September 30th, 1996. [22] Rectification being the only remedy sought, and with no claim against the Brownes, the Terrys assert there is no connectionbetween any potential liability against the Hepditches and any liability arising also against the Brownes. [23] The Brownes, for their part, agree with the Terrys.

When the Brownes purchased the lot they subsequently sold to theHepditches, the accompanying survey matched with the survey that the Terrys now possess. The Brownes are amenable to having thedeed they signed with the Hepditches amended to accord with the Terry deed and survey description. ISSUES [24] The issues that must be decided are as follows: Issue 1 Has counsel for the Terrys placed himself in a conflict of interest, and can he continue to represent the Terrys in theseproceedings? Issue 2 Is it appropriate to have the Brownes added as third parties to the litigation?

ANALYSIS Issue 1 Has counsel for the Terrys placed himself in a conflict of interest and can he continue to represent the Terrys in theseproceedings? [25] A lawyer owes a duty to his or her client. From this duty arises the duty to avoid conflicts of interest, the duty to be committedto the cause of the client, and the duty of candor toward the client (see Wallace v. Canadian Pacific Railway, 2013 SCC 39). InMacdonald Estate v. Martin, (SCC), [1990] 3 S.C.R. 1235, the determination of whether or not a conflict of interest hasarisen in a particular situation gives rise to two questions: a.

Did the lawyer receive confidential information attributable to a solicitor client relationship? b. Is there a risk that it will be used to the prejudice of the client? [26] The Law Society of Newfoundland and Labrador, Code of Professional Conduct (St. John’s: n.p., 2013),

Chapter 1.1-1 states: A “conflict of interest” means the existence of a substantial risk that a lawyer’s loyalty to or representation of a client would bematerially and adversely affected by the lawyer’s own interest or the lawyer’s duty to another client, a former client, or a third person. [27] Under Rule 3.4-1, of the Rules of the Supreme Court, 1986I, S.N.L. 1986, c. 42, Sched. D, a lawyer has a duty to avoid aconflict of interest, and “must not act or continue to act” where such exists. (See Mahoney v.

Mahoney, 2017 NLTD(G) 216 at para. 8). [28] A conflict of interest raises not only the concern as to the potential prejudicial impact on the parties in the litigation, the Courtmust also be alive to the overall proper administration of justice. As stated by Chief Justice Hickman at page 75 in O’Dea v. O’Dea(1987), (NL SC), 68 Nfld. & P.E.I.R. 67, 209 A.P.R. 67 (Nfld. U.F.C.), June 6, 1988, and quoted with approval by theSupreme Court of Canada in MacDonald Estate, at paragraph 39: … The sine qua non of the justice system is that there be an unqualified perception of its fairness in the eyes of the general public.

Inorder to sustain that salutary precept, it is essential that the integrity and absolute independence of the Courts and its officers bemaintained in such a way as to assure a discerning public that the principle of equality before the law is not in danger of beingcomprised. The door must remain firmly shut against any possibility of comprising that principal. To allow the plaintiff's law firm tocontinue to act in this case would open that door, albeit ever so slightly, to the possibility of compromising the impartial administrationof justice - something which a court is duty bound to prevent.

[ 29 ] A conflict of interest may arise where the lawyer breaches his/her duty to be committed to the cause of the client; for example, where a lawyer acts for the parties on both sides of a dispute. There is a risk of prejudice to both clients in these circumstances.

As stated in Wallace , at paragraph 23 : The law of conflicts is mainly concerned with two types of prejudice: prejudice as a result of the lawyer's misuse of confidential information obtained from a client; and prejudice arising where the lawyer "soft peddles" his representation of a client in order to serve his own interests, those of another client, or those of a third person. As regards these concerns, the law distinguishes between former clients and current clients. The lawyer's main duty to a former client is to refrain from misusing confidential information.

With respect to a current client, for whom representation is ongoing, the lawyer must neither misuse confidential information, nor place himself in a situation that jeopardizes effective representation . [emphasis added] [ 30 ] The prohibition on representing one client who may be the adversary of the other client may engage what is known as the “bright line rule,” described by the Supreme Court in Wallace at paragraph 27 : In Neil , this Court (per Binnie J.) stated that a lawyer may not represent a client in one matter while representing that client's adversary in another matter, unless both clients provide their informed consent.

Binnie J. articulated the rule thus: The bright line is provided by the general rule that a lawyer may not represent one client whose interests are directly adverse to the immediate interests of another current client — even if the two mandates are unrelated — unless both clients consent after receiving full disclosure (and preferably independent legal advice), and the lawyer reasonably believes that he or she is able to represent each client without adversely affecting the other. [ 31 ] The Supreme Court of Canada further stated at paragraph 39: In most cases, simultaneously acting for and against a client in legal matters will result in a breach of the bright line rule, with the result that the law firm cannot accept the new retainer unless the clients involved grant their informed consent. [ 32 ] In this case, counsel acted for the Brownes while also acting for the Terrys raising the concern that he is breaching both his duty to the Brownes to ensure that confidential information has not passed, and to both the Brownes and the Terrys as opposite parties in a dispute that he has breached his duty of commitment to either client. [ 33 ] Notwithstanding that the Brownes and the Terrys agree that the boundary line should accord with the Terry deed, the Brownes are more than “nominal” defendants and are in a position directly adverse toward the Terrys in these proceedings.

The amended statement of claim of the Terrys, and the defence filed by the Hepditches does not support that the Brownes are “nominal” defendants.

Black’s Law Dictionary , 5 th ed. s.v. “nominal defendant” provides: A person who is joined as a defendant in an action, not because he is immediately liable in damages or because any specific relief is demanded as against him, but because his connection with the subject-matter is such that the plaintiff’s action would be defective, under technical rules of practice, if he were not joined . [ 34 ] If all the parties were in agreement that the Hepditch deed and survey are in error, it might be reasonable that the Brownes be considered nominal defendants.

Their addition as defendants would be to cure a “technical” defect that, as parties to the deed sought to be rectified, they would have notice of such an order, and could, respond accordingly. But the amended statement of claim alleges that either the Hepditches, or both the Hepditches and the Brownes are at fault for the error in the Hepditch deed and survey.

The Terrys assert they have been wronged by either a “mutual,” i.e., by the Hepditches and the Brownes, or “unilateral” mistake, i.e., the Hepditches alone (at para. 16 of the amended statement of claim). [ 35 ] The amended statement of claim asserts the survey was prepared “mistakenly, wrongfully, or negligently” by the surveyor without the knowledge or consent of the Brownes, but that the Hepditches “ought” to have been aware that the survey was in error. It is difficult to see how the Terrys can assert that the Hepditches “ought” to have been aware of the purported error in the survey but not the Brownes.

The survey was prepared for the mutual benefit of the Brownes and Hepditches, and there is nothing in the material to support that the Hepditches possessed any peculiar knowledge of the circumstances of the survey that would not also be imputed to the Brownes. The Brownes’ lawyer approved of the survey. [ 36 ] If it is established that the Hepditch survey is in error, it is not clear that the Hepditches are solely to blame. To the contrary, how that error occurred if it so did, is a live issue and may include a finding that the Brownes are partly to blame.

There may be consequences for the Brownes, if a court finds that the mistake lies at their feet, not the Hepditches. Given the above, I agree with the Hepditches that by asserting that the Brownes are at fault for the error, the Terrys’ interests are adverse to the “immediate legal interests” of the Brownes in this dispute and the Brownes are not simply “nominal” defendants. [ 37 ] However I am satisfied that Terrys’ counsel need not be removed.

The Brownes have retained independent counsel and have also provided their explicit consent that the Terry’s counsel continue to act for the Terrys notwithstanding their past solicitor-client relationship with counsel. Given this explicit and informed consent, there is less concern about an actual or potential conflict in the Terrys’ counsel having acted for the Brownes.

[ 38 ] Having said that, I note that the Brownes’ consent was expressed prior to the finding that they are more than nominal defendants in this litigation. Should this finding cause the Brownes to be concerned as to their exposure to potential prejudice because of this finding, then it may be no longer proper for Terrys’ counsel to continue.

However, as long as the Brownes consent to the Terrys’ counsel continuing in this matter and have independent counsel, I am satisfied that counsel can continue and that in all the circumstances, it is not necessary to remove Terrys’ counsel to prevent a risk of prejudice or maintain the integrity of the administration of justice. [ 39 ] The Application to have counsel removed is dismissed.

Issue 2 Is it appropriate to add the Brownes as Third Parties? [ 40 ] The application to add the Brownes as third party was brought under Rule 12.02, which states: 12.02 Third party notice 12.02(1) Where a defendant claims against any person, who is a co-defendant or who is not a party to the proceeding, that the latter is or may be liable to the defendant for all or any part of the plaintiff's claim against the defendant, the defendant may, before the defendant files a defence or appears on a hearing under an originating application, issue and serve a third party notice without the leave of the Court, and thereafter with leave. 12.02 2) A third party notice shall be in Form 12.02A and contain a statement of the plaintiff's claim against the defendant and a statement of the defendant's claim against the third party. 12.02(3) A third party shall, from the time of service upon the third party of the third party notice, be a party to the proceeding with the same right to oppose any claim made against the third party as if the defendant had commenced a proceeding against the third party in the ordinary way. [ 41 ] The principles governing the addition of third parties were reviewed by the Newfoundland and Labrador Court of Appeal in Ryan v.

Dew Enterprises Ltd. , 2014 NLCA 11 . The Court of Appeal broadly interpreted the threshold for the application to add a third party. The matter must be “related to or connected with the original subject matter of the proceeding.” [ 42 ] A defendant must show that his or her cause of action against the intended third party arises from the “same general factual and/or legal matrix of the extant issues” between the plaintiff and the defendant ( Ryan v Dew Enterprises at paras. 58 - 61). The burden is on the Applicant to establish that it is appropriate to add the third party to the litigation (at para. 78).

The Court of Appeal stated, at paragraph 68: Rather, the question is, as a practical matter, can the defendant, by asserting a separate claim arising out of the same factual circumstances and by recovering damages from the third party on the basis of the third party's involvement in those circumstances, effectively make the third party ultimately answer in whole or in part for the losses that have occurred? [ 43 ] In determining whether or not to permit a defendant to add a third party, a court must also take into account “practical” considerations (see paras. 74 - 78) such as: - The timing of the application and whether the third party claim can be accommodated in the existing litigation, or will the addition cause delay of an imminent trial; - Would the addition of the third party unduly complicate the litigation or otherwise be “inconvenient” or “embarrass” the plaintiff, within the meaning of Rule 40.1; - Is there prejudice to the plaintiff in delaying the trial. [ 44 ] Applying the above framework, the Brownes should be added as third parties.

The Hepditches’ claims against the Brownes raise the same general factual issues and legal matrix. They involve the same parcels of land at issue between the Hepditches and the Terrys, the same documents and the same parties.

At the core of both disputes lies the same factual and legal question: where is the correct boundary line and who is at fault if the placement has been incorrect in the Hepditch survey or the Terry survey? [ 45 ] The Terrys’ claim is that there has been “mutual” mistake by the Hepditches and the Brownes, or a “unilateral” mistake solely by the Hepditches and, on this basis of this mistake, the deed and survey should be rectified. [ 46 ] The Supreme Court of Canada in Canada (Attorney General) v.

Fairmont Hotels Inc , 2016 SCC 56 , at paragraph 12 , Brown, J., speaking for the majority, explained the equitable remedy of rectification of a contract on the basis of “mistake:” If by mistake a legal instrument does not accord with the true agreement it was intended to record — because a term has been omitted, an unwanted term included, or a term incorrectly expresses the parties' agreement — a court may exercise its equitable jurisdiction to rectify

the instrument so as to make it accord with the parties' true agreement. Alternatively put, rectification allows a court to achieve correspondence between the parties' agreement and the substance of a legal instrument intended to record that agreement, when there is a discrepancy between the two.

Its purpose is to give effect to the parties' true intentions, rather than to an erroneous transcription of those true intentions ( Swan and Adamski , at §8.229). [ 47 ] To grant the remedy of rectification on the basis of a mutual mistake between the Hepditches and the Brownes, the Court will need to be satisfied that the parties, that is the Hepditches and the Brownes, reached a prior agreement whose terms are definite and ascertainable; the agreement was still in effect when the legal instrument, in this case the deed and survey attached, recorded the agreement; the instrument fails to accurately record that agreement; and the remedy of rectification would carry out the agreement the parties intended ( Fairmont at para 14). [ 48 ] This would be the approach if the Hepditches agreed there has been a mutual mistake.

However, the Hepditches disagree there has been any mistake. Consequently, the Terrys assert also that the mistake was unilateral.

To acquire a remedy of rectification on the basis of unilateral mistake, the Terrys must establish the same criteria for that of mutual mistake, but with the additional requirements that the Hepditches, “knew or ought to have known about the mistake,” and that permitting the Hepditches to “take advantage of the mistake” would “amount to fraud or the equivalent of fraud” (at para. 15); something the Hepditches strongly deny. [ 49 ] Given the above legal framework that must be applied to resolve the dispute, I am satisfied there is a legal nexus between the claims of the Terrys against the Hepditches and the Hepditches against the Brownes.

It is unlikely that the Terrys claim for the remedy of rectification as against the Hepditches can be resolved without necessarily considering the claims by the Hepditches against the Brownes. The Terrys’ claim of either mutual or unilateral mistake necessarily involves an assessment of the relationship between the Hepditches and the Brownes as they are the parties to the agreement the Terrys seek to rectify.

The determination of either a mutual mistake or unilateral mistake, necessarily involves not only the Hepditches relationship to the Brownes but the intentions of both parties regarding the conveyance. [ 50 ] Further, from a practical standpoint, as per Ryan v. Dew Enterprises , because the claims between the Terrys and the Hepditches and the Brownes are based on facts that are inextricably intertwined, it makes sense to hear the arguments in one proceeding. To require the Hepditches to launch a separate proceeding against the Brownes would result in duplicitous proceedings. The same evidence would be called.

The Brownes have already been named as defendants, so they will participate in any event with regard to the Terrys’ claims. [ 51 ] Finally, while there is no explanation for the delay in filing this application, there is nothing before me that suggests that the plaintiffs will be unduly prejudiced. I appreciate the Terrys would like to have the issue resolved so they know whether they can pursue construction of their new home on the lot. On the other hand, no trial date has been set. Almost a year passed between the Terrys adding the Brownes as defendants and the Brownes filing their defence.

What concerns they may have in the speedy resolution of the dispute did not press them to act earlier in having the Brownes file their defence. [ 52 ] Any concerns with delay in the timely resolution of this matter can be at least partly ameliorated by setting firm dates with respect to the next steps in the proceeding, and I would give leave to the parties to seek such dates from the court. CONCLUSION [ 53 ] The application to have counsel removed is dismissed.

The application to allow the Brownes to be added as third parties is allowed pursuant to Rule 12.02. [ 54 ] Costs in this matter will be in the cause. _____________________________ Frances J. Knickle Justice