Court File and Parties
COURT FILE NO.: 5799/15 DATE: 20160803
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ALBERT BREAULT, Plaintiff AND: ROBERT DINNEN and THE PROFESSIONAL CORPORATION OF THE LAW OFFICE OF ROBERT A. DINNEN, Defendants
-and-
COLETTE BREAULT, Applicant AND: ALBERT BREAULT, Respondent
BEFORE: Gauthier, J.
COUNSEL: Pierre Mongenais, Counsel for the Plaintiff Daniel Dooley, Counsel for the Respondent
HEARD: August 2, 2016
Endorsement
[1] On August 2nd, I made a Consolidation Order on consent, and heard submissions of counsel on costs of the motion, by way of teleconference.
[2] The moving party, Albert Breault is the Respondent in Family Law proceedings instituted by Colette Breault, and he is the Plaintiff in a civil action against Robert Dinnen and the Professional Corporation of the Law Office of Robert A. Dinnen. The motion was for consolidation of both actions. The Applicant in the Family Law proceedings, Colette Breault was prepared, at all times to consent to the consolidation of both proceedings.
[3] Both Robert Dinnen and the Professional Corporation of the Law Office of Robert A. Dinnen, are represented by the same counsel, Daniel Dooley.
[4] On March 22, 2016, Albert Breault, through his counsel, Pierre Mongenais, requested to know the position of Dinnen and the Corporation with regard to the request for an Order consolidating both proceedings. That request was repeated several more times, between April 13 and June 8, 2016. The answer given throughout the relevant time was that counsel did not have instructions to consent or not. On June 23rd, Mr. Dooley suggested to Mr. Mongenais that he schedule the motion for consolidation and that he would confirm his clients’ position as soon as he had secured instructions.
[5] The motion for consolidation was brought and made returnable on July 7, 2016. The Affidavit in support of the motion contains 27 paragraphs.
[6] On July 4, 2016, Mr. Mongenais inquired of Mr. Dooley about whether the motion would be contested by his clients or not. On July 5th, two days before the date of hearing of the motion, Mr. Dooley advised Mr. Mongenais that he had his clients’ consent. The parties were then to appear before the court in Haileybury to argue the issue of costs. Given the distances involved, it was wisely determined that the costs argument would proceed by teleconference on July 7th. On July 6th, the Judge scheduled to hear the matter noted that he had a conflict and therefore it was agreed that the matter or costs would be argued, by teleconference, before another Judge, which is me.
[7] After the date of August 2nd was set, Mr. Dooley delivered a Factum and Book of Authorities, together with an Affidavit. Mr. Mongenais chose not to file any material in response.
[8] Mr. Mongenais seeks costs in the amount of $2,579.59, which costs do not include the disbursements incurred in connection with the motion, as those disbursements would have been incurred in any event. Counsel makes the following submissions in support of his bid for costs of the motion:
(a) Given that no consent was forthcoming between March and the end of June, 2016, the Motion had to be brought and made returnable in court, as opposed to being in the form of a basket Order, and therefore, it was truly not a “consent motion” in the usual sense;
(b) Because there was no consent (therefore, counsel says it was going to be contested) more work was required in preparing the motion materials than if it could have proceeded, on a consent basis, from the outset;
(c) The caselaw submitted by Mr. Dooley is easily distinguishable from the within case; and
(d) Delivery, by Mr. Dooley, of the lengthy materials, after the initial date for hearing of the motion, simply exacerbated matters and increased the costs now in play.
[9] For his part, Mr. Dooley makes the following submissions:
(a) The delay in being able to confirm the consent of his clients arose from the fact that he is acting for both the lawyer personally, and for the lawyer’s insurer, and the two clients were not of the same mind on the issue of consolidation of both actions. Mr. Dooley was not in a position to share this particular complication with Mr. Mongenais. Now, he has to disclose this, given that the delay in providing the consent is the basis for the claim for costs of what Mr. Dooley says is a consent motion;
(b) The delay in conveying the consent to the moving party had no impact on the work required to draft and submit the motion for consolidation, and, in fact, the eventual consent eliminated the need for the parties to appear, through counsel, at the hearing of the motion;
(c) The nature of the motion is not a “rubber stamp” process; it is within the court’s discretion to grant or reject a request for consolidation. There is no automatic right to an order for same. The party seeking the order bears the onus of establishing that such order is appropriate in the circumstances;
(d) The general rule that consent orders do not attract costs consequences is displaced only where the facts justify such departure, for example, where one party has behaved unreasonably, which is not the case here; and
(e) The material delivered after the initial date set for the hearing of the motion, including the Factum and Book of Authorities, was meant to be of assistance to the court.
[10] The motion for consolidation involved both Rule 6.01 of the Rules of Civil Procedure and Rule 12(5) of the Family Law Rules.
[11] On such a motion, the mere consent of the other party is insufficient for the order to be granted. The relief sought in such a motion is discretionary; the court must assess the merits of the motion and such assessment must be based on evidence which will or will not satisfy the court that the moving party is entitled to the relief sought. It is not enough to cite convenience. The moving party must establish that the cases sought to be consolidated have a question of law or fact in common, the relief claimed in the actions/applications arises out of the same transaction or occurrence or series of transactions or occurrences, or for any other reason justifying such consolidation. This is specifically set out in Rule 6.01 of the Rules of Civil Procedure.
[12] A review of the material filed in support of the motion for a Consolidation Order reveals that it consisted of all of the information required in order for the court to properly assess the merits of the request. The Affidavit, of necessity, reviewed the facts in the two proceedings, the issues in both proceedings, how those issues are inter-related, how the damages in both proceedings overlap, the proposed evidence in both proceedings and how the evidence and the witnesses overlap, the litigation status of both proceedings, and the potential advantages and or disadvantages of the order sought. All of this evidence had to be elicited in order to enable the court to consider and properly exercise its discretion.
[13] Only two of the twenty-three paragraphs address the issue of consent and the failure of Mr. Dooley’s clients to make their position known in a timely fashion.
[14] In the face of this, the argument that the matter required more time therefore causing the moving party to bear increased costs because there was no forthcoming consent, is not compelling.
[15] The motion did proceed on a consent basis; that means the motion was not, on the day of hearing, a contested motion. It was a consent motion, albeit the consent took some time in coming.
[16] There is nothing in the facts before me that would cause me to depart from the general rule that consent motions do not attract costs. Although there was a significant amount of time between the initial request and the conveying of the consent, there was just one week between the bringing of the motion and the consent to the relief sought. Further, the explanation offered by Mr. Dooley for the delay is reasonable in the circumstances.
[17] That being so, this is not a case where the moving party should have his costs, and I decline to award costs to him.
[18] Notwithstanding that Mr. Dooley’s clients are successful on the issue of the moving party’s costs, I decline to award any costs to them, save and except for a modest amount for preparation time and the attendance, by telephone, to argue the issue. Although the responding material was indeed helpful to me, it is notable that, initially, counsel was prepared to argue the matter of costs without such material being filed. Additionally, the delay in securing the consent does not lie at the moving party’s feet. The complication of counsel having to resolve a dispute between his two clients about whether or not to consent to the motion arises purely out of the positions initially taken by those clients, and not by any position taken by the moving party.
[19] In these circumstances, I award costs to Robert Dinnen and the Professional Corporation of the Law Office of Robert A. Dinnen in the amount of $500, inclusive of disbursements, but plus H.S.T.
[20] In accordance with Rule 57.03(1)(a), those costs shall be paid within 30 days of today’s date.
The Honourable Madam Justice L. Gauthier