CITATION: DARNLEY v. THOMPSON, 2016 ONSC 5545
COURT FILE NO.: 100/15 AND 101/15
DATE: 20160902
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KELLY DARNLEY Applicant
– and –
ALLAN THOMPSON Respondent
Kevin D. Sherkin, for the Applicant
Alan J. Lenczner, Q.C., for the Respondent
AND BETWEEN:
KELLY DARNLEY Applicant
– and –
GORDON McCLURE Respondent
Kevin D. Sherkin, for the Applicant
Barnet H. Kussner and Kim Mullin, for the Respondent
HEARD: May 30, 2016
REASONS FOR DECISION ON MOTION FOR CONSOLIDATION OR HAVING APPLICATIONS HEARD TOGETHER
Daley RSJ.
Introduction
[1] The applicant in both of the above styled proceedings seeks a declaration that both the respondent Allan Thompson, mayor of the Town of Caledon and the respondent Gordon McClure, councillor for the Town of Caledon be removed from their respective positions as a result of alleged breaches of the provisions of the Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50.
[2] The applicant elected to proceed with the hearing of the Darnley v. Thompson application along with a similar application in the matter of Charles Bristol (applicant) v. Alan Thompson (respondent) court file no. CV–16–0523 (Orangeville) on April 21 and 22, 2016.
[3] After the completion of all of the submissions in those applications, the applicant brought a motion seeking an order that the above styled applications either be consolidated or heard together, or alternatively, that one matter await the determination of the other such that the matters be adjudicated contemporaneously.
[4] At no time prior to early May 2016 was the court advised of the existence of the application in the matter of Darnley v. McClure. In spite of the applications in Darnley v. Thompson and Bristol v. Thompson being heard at the same time in April, 2016, it was urged on behalf of the applicant Darnley that the above styled applications should be considered together as there are common issues of fact and law.
[5] It is the position of the respondents Thompson and McClure that both of Darnley’s applications should be considered on their own merits and on the evidentiary record submitted in each application, within the statutory framework of the Municipal Conflict of Interest Act.
Legal framework and Analysis
[6] Although not expressly stated in the applicant’s motion, it was submitted by counsel for the applicant that these two applications should be joined and considered together by the court in accordance with the provisions of Rule 6.01.
[7] Rule 6.01 (1) provides as follows:
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. R.R.O. 1990, Reg. 194, r. 6.01 (1).
[8] This rule relates to proceedings that are “pending” in the court. Although counsel for the applicant does not seek to join the Bristol v. Thompson application, both that application and the one in Darnley v. Thompson have been completed in that all pertinent evidence has been filed, and oral and written submissions made and as such they are no longer “pending”. Both applications are currently under reserve.
[9] In my view, the application in Darnley v. Thompson is no longer pending and as such the relief sought by the applicant on this motion is not available under Rule 6.01.
[10] Given that conclusion which would otherwise determine the outcome of this motion, I will only briefly consider the application of Rule 6.01 to these proceedings.
[11] The joinder of pending proceedings under Rule 6.01 was thoroughly reviewed by Master B.T. Glustein (now Glustein J.) in Coulls v. Pinto [2007] O.J. No. 4241.
[12] As noted by the court in that decision, the underlying policy of Rule 6 is to avoid a multiplicity of proceedings, to promote expeditious and inexpensive determination of disputes and to avoid inconsistent judicial findings. Also fundamental to the application of this rule is the presence of a common question of fact that requires determination.
[13] Considering the submissions from counsel and the evidentiary record on this motion, the goals and purpose of Rule 6.01 are not engaged in this case as the joinder of the applications would not in any way promote the expeditious and inexpensive determination of the dispute given that any common facts presented by the applicant are either inapplicable to the determination of the applicant’s claims against each of the respondents or the factual issue in common in each application is either of no controversy or of no consequence so far as the ultimate determination of applicant’s success on the applications.
[14] The applicant asserts that the common issues of fact which must be determined are connected with Thompson’s and McClure’s respective dealings with Fieldgate Homes and that company’s representative, Jack Eisenberger and with the company Atra Realty Holdings Limited.
[15] The adjudication of the outstanding applications under the Municipal Conflict of Interest Act calls for a determination as to whether or not the municipal representative had a direct pecuniary interest when he voted on a matter. This requires the court to conduct an individualized review of the impugned votes of each municipal representative and not simply a holistic review of the conduct of those representatives.
[16] Considering the allegations made by the applicant as against the respondent McClure, the first impugned matter is asserted as having occurred on April 28, 2015, approximately 7 months after Thompson sold his lands and after the transaction had closed.
[17] Other impugned conduct of McClure occurred later and on all of the evidence, there is simply no overlap as to impugned votes of McClure and Thompson.
[18] Thus none of the material facts that must be considered by the court could give rise to inconsistent judicial findings.
[19] In addition to Rule 6.01 not being engaged in this case, even if it was, I have concluded that the applicant has failed to demonstrate that the relief claimed arises out of the same transaction or occurrence or series of transactions or occurrences and the applicant’s motion has failed to meet the requirements as set forth in Coulls v. Pinto.
[20] Finally, I conclude that the balance of convenience militates against any order joining these applications in view of the fact that the application in Darnley v. Thompson has been fully argued and is currently under reserve.
[21] In the result, the applicant’s motion is dismissed.
[22] If counsel are unable to resolve the issue of costs, counsel for the successful respondents shall deliver brief costs submissions, along with a cost outline within 15 days from the release of these reasons to be followed by similar submissions from counsel for the applicant within 15 days thereafter. No reply submissions are to be filed without leave.
Daley RSJ.
Released: September 2, 2016
CITATION: DARNLEY v. THOMPSON, 2016 ONSC 5545
COURT FILE NO.: 100/15 AND 101/15
DATE: 20160902
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KELLY DARNLEY Applicant
– and –
ALLAN THOMPSON Respondent
AND BETWEEN:
KELLY DARNLEY Applicant
– and –
GORDON McCLURE Respondent
REASONS FOR JUDGMENT
Daley RSJ.
Released: September 2, 2016