James Duncan Ceaser v. Jana Lee Waghorn, 2012 ONSC 7053

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 12-122
DATE: 20121212

RE: JAMES DUNCAN CEASER
Applicant

v.

JANA LEE WAGHORN
Respondent

BEFORE: CONLAN J.

COUNSEL: Ross H. Thomson, for the Applicant
John A. Tamming, for the Respondent

E N D O R S E M E N T

Conlan J.

Procedural History

Procedural History

1In a Notice of Application issued on April 25, 2012, Mr. Ceaser sought an Order for the sale of the property held in joint tenancy by Mr. Ceaser and Ms. Waghorn; dispensation of any need for Ms. Waghorn to execute any documentation to list for sale or complete the sale of the property; an Order that the proceeds of sale be paid in a specified priority; an Order that, in the event of a shortfall, the parties share equally the debts relating to the property; and other relief. That Application was supported by Mr. Ceaser’s Affidavit sworn on April 17, 2012, with several Exhibits attached thereto.

2On 27 April 2012, Ms. Waghorn filed a Consumer Proposal under the Bankruptcy and Insolvency Act .

3On May 4, 2012, the Application issued on 25 April 2012 was adjourned on consent to May 18, 2012. I endorsed the record in Chambers.

4By a Notice of Motion dated May 10, 2012, Mr. Ceaser requested an Order lifting the automatic stay of his Application resulting from Ms. Waghorn’s Consumer Proposal; leave to continue his Application; authorization for Mr. Ceaser to list the property for sale with Re/Max; dispensation of any need for Ms. Waghorn to execute any documentation to list the property for sale; dispensation of any need for Ms. Waghorn to execute any Agreement of Purchase and Sale; and other relief. That Motion was supported by Mr. Ceaser’s Affidavit sworn on May 10, 2012, with numerous Exhibits attached thereto.

5On May 18, 2012, on consent of the parties in writing executed that day, Justice Fitzpatrick ordered, among other things, that the property be listed for sale with Homelife Bayside Realty Inc. Mr. Thomson was present in Court as counsel for Mr. Ceaser. Ms. Waghorn was present in Court representing herself. The Endorsement is clear that Ms. Waghorn advised the Court at that time that she had authority from her Trustee in Bankruptcy to sign a listing to sell the property. At Mr. Ceaser’s request, the Court made an Order lifting the stay imposed by Ms. Waghorn’s Consumer Proposal in order to list the property for sale and to sell the property. Mr. Ceaser’s Notice of Motion dated May 10, 2012 was otherwise adjourned sine die .

6By a Notice of Return of Motion dated September 5, 2012, supported by his Affidavit sworn on September 6, 2012 including several Exhibits attached thereto, Mr. Ceaser brought his Notice of Motion dated May 10, 2012 (originally returnable at Court on May 18, 2012) back to Court on September 12, 2012.

7By a Notice of Appearance dated September 12, 2012, Ms. Waghorn indicated her intent to respond to the Application proper issued on April 25, 2012.

8Mr. Thomson and Ms. Waghorn appeared in Court before me on 12 September 2012. At the request of Ms. Waghorn on the basis that her very recently retained counsel, Mr. Tamming, was unavailable to attend Court that day, and not on consent, I granted an adjournment of Mr. Ceaser’s Notice of Motion dated May 10, 2012 to 17 September 2012. Among other items, deadlines for further materials were imposed in the event that Mr. Ceaser chose to pursue the Motion. He was, of course, free to pursue the Application proper.

9Ms. Waghorn’s Affidavit sworn on September 13, 2012 was in response to Mr. Ceaser’s Notice of Motion dated May 10, 2012 (although it equally responded to the original Application itself). Ms. Waghorn’s Affidavit concluded with this statement: “As I have stated several times, I am not in a position to agree to this sale and my consumer proposal forbids me incurring any further debt”.

10Mr. Ceaser’s Affidavit sworn on September 14, 2012, with numerous Exhibits attached thereto, supplemented his materials previously filed with regard to his Notice of Motion dated May 10, 2012.

11On September 17, 2012, Mr. Thomson and Mr. Tamming appeared in Court before me. At the request of Ms. Waghorn, and not on consent, I granted a further adjournment of Mr. Ceaser’s Notice of Motion dated May 10, 2012 to October 30, 2012. My Endorsement makes clear that the primary reason for the further adjournment was to allow the possibility of the property being sold for an amount sufficient to cover the debt owed to the mortgagee, to the benefit of both parties.

12I do not know the details of any negotiations that took place after September 17, 2012 between the parties and the mortgagee.

13Mr. Ceaser, of course, remained free to pursue the Application proper.

14The October 30, 2012 return date was rescheduled to November 1.

15On November 1, 2012, counsel appeared before me. The mortgagee was then in possession of the property. Mr. Ceaser’s Notice of Motion dated May 10, 2012 was therefore dismissed as being moot. Counsel were to make written submissions on costs relating to the Motion.

The Positions of the Parties on Costs Regarding the Motion

The Positions of the Parties on Costs Regarding the Motion

16I thank counsel for their thorough and helpful written costs submissions.

17Mr. Ceaser requests that Ms. Waghorn pay costs on a partial indemnity basis in the total amount of $14,252.32.

18Ms. Waghorn requests that Mr. Ceaser pay costs on a substantial indemnity scale in the total amount of $4,524.82.

19In a nutshell, Mr. Ceaser submits that he was forced to bring the Motion to try to salvage the situation and get the property sold, notwithstanding Ms. Waghorn’s lack of cooperation.

20Essentially, Ms. Waghorn argues that the Motion brought by Mr. Ceaser was ill-advised, ineffective and unnecessary in the face of Ms. Waghorn’s Consumer Proposal, and thus, Mr. Ceaser ought to be responsible for his own costs.

Analysis

Analysis

21Ms. Waghorn’s Consumer Proposal was filed under section 66.13 of the Bankruptcy and Insolvency Act (the “BIA”).

22Once that Consumer Proposal was filed, no creditor had any remedy against Ms. Waghorn or her property. Nor could any creditor commence or continue any proceeding for the recovery of a claim provable in bankruptcy. Section 69.2(1) BIA .

23It is clear that the filing of the Consumer Proposal stayed Mr. Ceaser’s Application issued on April 25, 2012.

24It was necessary for Mr. Ceaser to bring his Notice of Motion dated May 10, 2012. But that Motion was effectively resolved before Fitzpatrick J. The Court lifted the stay imposed by section 69.1(1) BIA , which effectively allowed the Application issued on 25 April 2012 to survive and continue. Further, a consent Order was made to list the property for sale.

25With respect, I do not understand what was adjourned sine die . Or put more accurately, I do not understand why it was necessary to adjourn the Motion, or part of it, or to pursue the Motion.

26The proper course was to revert back to the Application proper. With the exception of seeking to change the listing agent from Homelife to Re/Max, no relief sought in the Motion was not requested or could not have been obtained via the Application. And Mr. Ceaser consented to Homelife being the listing agent before Fitzpatrick J.

27In short, the Motion became duplicitous once Fitzpatrick J. made the Order on 18 May 2012. The remainder of the Motion, if there was anything left, ought to have been abandoned at that time.

28In the circumstances, Mr. Ceaser would normally be entitled to some costs up to and including May 18, 2012. But here, I decline to award any costs in favour of Mr. Ceaser as any amount that I grant would have to be off-set by a costs Order in favour of Ms. Waghorn post-May 18, 2012.

29There shall be no costs payable by either party with respect to the Motion. So ordered.

Conlan J.