COURT FILE AND PARTIES
COURT FILE NO.: CV-13-476682
DATE: 20140708
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: 1285310 ONTARIO LIMITED
Applicant
AND:
RAHIRNA PANES SHEICK-ALI and ASR MEDICAL RESEARCH CORPORATION
Respondents
BEFORE: CHAPNIK J.
COUNSEL: Geoffrey Wells Robyrt H. Regan
for the applicant on the motion for the respondent on the motion
HEARD: JULY 7, 2014
ENDORSEMENT
[1] This is a motion brought by Arthur Froom, the applicant in a family law proceeding under court file no. FS-13-388522, for an order that court file no. CV-13-476682-00 be consolidated with the family law proceeding.
[2] Upon reading the materials filed and hearing the submissions of counsel, I am satisfied that the applicant has met the onus to justify consolidation of the actions. Accordingly, this civil matter in court file no. CV-13-476682 shall be traversed to the Family Law section of this Court.
facts
[3] Arthur Froom (Arthur) and Sonia LaFontaine (Sonia) are husband and wife. They married in November 1992, and operated several businesses including a cosmetic surgery clinic in Toronto and another in New York. There are no children of the marriage. As part of the narrative that may (or may not) become relevant, it is noted that Sonia was incarcerated in the U.S.A. from 1998 to 2011 and Arthur since 2008. He remains incarcerated in the U.S.A. serving a 10 year sentence with a scheduled release date for good behavior on September 16, 2014.
[4] In July, 2013, Sonia commenced this civil proceeding by Notice of Application under the corporate name 1285310 Ontario Limited (1285310), seeking to evict Arthur’s common law spouse Rahirna Panes Sheick-Ali (Rahirna) and their 5 year old daughter from the condominium located at 1402-15 McMurrich Street, Toronto, Ontario (the property). Sonia also names as a respondent ASR Medical Research Corporation (ASR) which she claims is “a corporate entity which appears to occupy the Residence and is the apparent alter ego” of Rahirna.
[5] Sonia claims that, at all relevant times, all of the issued and outstanding shares of 1285310 were owned by her or by her previous counsel and friend Elliot Pearl, who held her shares in trust. She also claims that the property was purchased in June, 2003 as an investment property to earn revenue, and that the named respondents occupy the premises unlawfully as tenants without paying rent, to her detriment.
[6] Accordingly, she brings this Notice of Application for an order for eviction of Rahirna from the property, an accounting of unpaid rents from 2007 to the date she vacates the property and an accounting for costs of all repairs required to the property by their occupation.
[7] Subsequently, in August 2013, Arthur brought family law proceedings against Sonia seeking a divorce, equalization of net family property and a declaration of ownership of 1285310. Thus, the very issue of the ownership of the applicant company is vigorously disputed by both parties.
the law
[8] Rule 6 of the Rules of Civil Procedure R.R.O. 1990, Reg. 194 permits two or more proceedings to be consolidated into a single proceeding if certain requirements are met.
[9] Rule 6.01 reads:
6.01(1) 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; or
(e) any of the proceedings be,
(i) stayed until after the determination of any other of them, or
(ii) asserted by way of counterclaim in any other of them.
(2) In the order, the court may give such directions as are just to avoid unnecessary costs or delay and, for that purpose, the court may dispense with service of a notice of listing for trial and abridge the time for placing an action on the trial list.
[10] Section 138 of the Courts of Justice Act, R.S.O. 1990, c.C.43 amended by S.O. 1991, c.46, states that as far as possible, multiplicity of legal proceedings shall be avoided.
[11] With respect to the onus on the applicants, the law is succinctly stated in Brown v. Matawa Project Management Group Inc., [2005] O.J. No. 2313 at para. 25 (citing Fruit of the Loom Inc. v. Chateau Lingerie MFG. Co. Ltd. (1984), 1984 5876 (FC), 79 C.P.R. (2d) 274 at p.278), as follows:
A genuine onus rests in the applicant seeking to interfere with a plaintiff’s right to pursue a lawful cause of action. Such applicant must persuade the court that continuing the action would be an abuse of process in which the applicant would somehow be prejudiced and not merely inconvenienced.
discussion
[12] For obvious reasons, given my decision regarding consolidation, I will not detail the various arguments advanced by the parties as to who owns what, and in particular 1285310. Suffice it to say that this will remain a live issue at trial.
Why consolidation?
[13] Arthur and Sonia cannot agree as to the ownership or value of their assets following their 19 year marriage. The issue of the ownership of 1285310 which forms the basis of this civil application represents only one dispute involving several properties. As noted, both Arthur and Sonia claim ownership of the corporate entity. In their materials, each party sets out particulars pertaining to the incorporation of 1285310, the opening of bank accounts and the purchase of the subject condominium unit as owner and sole shareholder. If Arthur were found to be correct, Sonia would have no standing to bring this application.
[14] The parties also dispute ownership of other corporate interests, including the ownership of Medical Group Research Associates (MGRA) and two other condominium units located at 15 McMurrich Street in Toronto.
[15] In my view, all claims between them arising from the breakdown of their marriage ought be dealt with at one time, in one proceeding; and in the context of the matrimonial matter.
[16] As noted by the Court in Cunningham v. Cunningham, 2013 ONSC 282 at para. 20:
….. If the proceedings are consolidated the parties will have one set of examinations, one settlement conference and one trial. Consolidating the proceedings should minimize the costs to the parties and effect a more efficient use of limited resources.
[17] At the same time, I am cognizant of the need to balance the competing interests of expediency with convenience and prejudice to the parties. In doing so, I note the following:
The main issues in the family law proceeding involve the ownership of property, including the ownership and valuation of business interests and the equalization of net family property. This matter falls directly within that mandate.
The respondent on the motion (Sonia) argues that this is a separate matter which incurs monetary implications in that she continues to lose rent and other payments related to the property she claims is hers. This argument, however, ignores the very real dispute as to the true ownership of the property which Arthur claims he is maintaining in good standing and where he (prior to his incarceration), his common law spouse and his daughter have resided for several years.
Both proceedings have issues of fact in common and the relief claimed arises out of similar transactions and occurrences related to the interaction and business interests of the parties during their marriage and separation.
conclusion
[18] In my view, continuing with the civil action concurrently with the family one would be an abuse of process. Moreover, in all the circumstances, consolidation will minimize the cost to the parties and effect a more efficient use of limited judicial resources.
[19] In that regard, I note that both parties raised collateral issues before me today. Counsel for Sonia points out a live jurisdictional issue in the family proceedings since the last place the couple resided together was in the US whereas that issue does not arise in the context of this application. That may be so. However, this cannot override the rationale for consolidation in this case, where the very issue of standing is raised.
[20] Counsel for Arthur states that Sonia is in default of the order of Stevenson J. made against her on May 5, 2014 for disclosure, including an amended Financial Statement in the family proceedings. This decision and order does not preclude the argument and determination of all such issues in the consolidated proceeding.
[21] The motion for consolidation is allowed. Order to go consolidating court file CV-13-476682-00 with the family law proceeding under court file FS-13-388522. This is not a matter for full indemnity costs. Costs to the applicant, Arthur Froom in the all-inclusive sum of $2,630.11 payable by Sonia LaFontaine forthwith.
CHAPNIK J.
Date: July 8, 2014