2021 MBCA 91, 2021 MBCA 91

Citation: Tataskweyak Cree Nation v Intact Insurance Company, Date: 20211027 2021 MBCA 91 Docket: AI21-30-09624 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Jennifer A. Pfuetzner Madam Justice Janice L. leMaistre BETWEEN : ) A. Mireault and tataskweyak cree nation ) A. Sandhu ) for the Appellant (Plaintiff) Respondent ) ) J. A. Gietz - and - ) for the Respondent ) intact insurance company ) Appeal heard and ) Decision pronounced: (Defendant) Appellant ) October 27, 2021 On appeal from 2021 MBQB 66 CHARTIER cJM (for the Court) : [ 1 ] A little background is necessary.

The plaintiff sued the defendant. The defendant is the surety under a performance bond on a contract between the plaintiff and a contractor. The plaintiff was subsequently sued by this contractor (the second action). The issue concerning the second action is whether it was the plaintiff or the contractor who defaulted on its obligations under the contract. The defendant is not a named party in the second action. [ 2 ] Given that both actions are factually linked, the parties in both actions agreed to consolidate them. A consent consolidation order was drafted and signed by all parties in both actions.

By inadvertence, the consent order was never filed in Court. Despite this agreement, the defendant moved to dismiss this action for delay pursuant to r 24.02(1) of the MB, Court of Queen’s Bench Rules , MR 553/88 (the QB Rules ).

The motion judge denied the motion. [ 3 ] The defendant now appeals from that decision. [ 4 ] The primary issue on this appeal is whether the motion judge erred in finding that the agreement to consolidate the actions constituted a “significant advance”, thereby negating the defendant’s claim that “three or more years have passed without a significant advance” in the action (the QB Rules at r 24.02(1)). [ 5 ] We are all of the view that there is no merit to this appeal. [ 6 ] In her reasons, the motion judge correctly stated the legal principles to be applied when a party brings a motion to dismiss for delay under r 24.02(1).

She did the same with respect to the applicable legal principles surrounding the consolidation of proceedings under r 6. She concluded that the agreement on consolidation was a significant advance in regard to this action. She noted four points. First, that the defendant did not contest in its statement of defence the validity of the performance bond, nor that it applies to the claim advanced by the plaintiff. Second, that the defendant’s only defence to the plaintiff’s claim is that the contractor did not default on its obligations under the contract, which is the issue to be determined in the second action.

Third, that without consolidation, the critical issue to be determined in both actions would be whether it was the plaintiff or the contractor that breached the agreement between them. Finally, that if the plaintiff were to be unsuccessful in the second action, it would follow that it would also be unsuccessful in this action. [ 7 ] Key to the motion judge’s finding that the agreement on consolidation was a significant advance in the proceedings was her conclusion that the litigation process would not have served the parties well had each action proceeded separately.

She found that “the unnecessary expense, court resources and delay, added to the very real possibility of inconsistent results of two trials” (at para 27).

[ 8 ] In the end, the defendant has not demonstrated any error in principle by the motion judge, nor any palpable and overriding error with respect to the facts and the evidence referred to in her analysis. [ 9 ] In the result, the appeal is dismissed with costs. CJM JA JA