CITATION: Fenwick v. Concierge Auctions, ULC, 2016 ONSC 6834

COURT FILE NO.: CV-16-560719 and CV-16-560645

DATE: 20161101

SUPERIOR COURT OF JUSTICE – ONTARIO

CV-16-560719

RE: Allan Fenwick, Applicant

AND:

Concierge Auctions, ULC and Bennett Jones LLP, Respondents

CV-16-560645

RE: Concierge Auctions, ULC, Plaintiff

AND:

Mark Welland, Deirdre Welland, Romac Enterprises Inc., Allan Fenwick and Susan Fenwick, Defendants

BEFORE: S. F. Dunphy, J.

COUNSEL: Carmine Scalzi for the Applicant/Defendants Fenwick

Julia Schatz for the Respondent/Plaintiff Concierge Auctions, ULC

Larissa Moscu for the Respondent Bennett Jones LLP

HEARD: November 1, 2016

Case Conference ENDORSEMENT

[1] This matter came to me as a case conference directed by McEwen J. on October 28, 2016.

[2] In brief, the Applicant (Fenwick) has a pending application (CV-560719) against the respondent Concierge and its counsel Bennett Jones. Concierge acted as auctioneer in an allegedly failed real estate sale involving a cottage property being sold by the Weilands. Mr. Fenwick seeks the return of the deposit paid to Concierge.

[3] It appears that Mr. Fenwick was the successful bidder to buy the property but the vendors proved unable to complete the transaction. It is alleged that they were unable to do so because the purchase price was insufficient to discharge the mortgage on title. The wrinkle in this story arises because Mr. Fenwick ultimately did purchase the property, but only after having entered into a new agreement at an increased price sufficient to discharge the mortgage on title.

[4] The main dispute centres on the $430,000 deposit paid by Mr. Fenwick. He would like it back. Concierge claims to be entitled to it pursuant to the agreements it has. Concierge has brought its own action seeking to validate its commission claim as against both the vendors (the Weilands) and Mr. Fenwick (action CV-16-560645).

[5] The application is scheduled to be heard on December 14, 2016. There is no schedule yet set to deal with the action although the overlap between the two proceedings is approaching 100%.

[6] The first order of business is Bennett Jones’ request for an interpleader order. Bennett Jones claims no interest in the deposit. It will either be paid to its client Concierge if Concierge is successful in establishing its claim or it will be returned to Mr. Fenwick. The Weilands do not appear to have advanced any claim to the deposit nor has anyone given me any reason to think they may.

[7] The only thing preventing the parties from settling the interpleader order on consent is Mr. Fenwick’s ambivalence as to whether he has any other claims against Bennett Jones apart from simply requiring it to abide by any court orders disposing of the deposit funds. He also has not decided if Bennett Jones has a conflict of interest that may preclude it from acting for Concierge going forward.

[8] The parties agreed that none of those are strictly relevant to the interpleader question. The interpleader will proceed by way of a consent order that I will sign. Mr. Fenwick will decide whether he intends to pursue other claims against Bennett Jones by Friday (including conflict claims) bearing in mind that a decision to do so carries with it a real possibility that the December 14 hearing date may be lost.

[9] After further discussions with the parties, the following orders were made at the conclusion of the case conference (para. (j) having been added by me):

a. The Applicant Fenwick consents to a “conventional” interpleader order that discharges Bennett Jones of responsibility for the funds upon payment into court. Bennett Jones shall circulate a consent order for signature by the parties and I will sign it upon my return to the office on Monday November 7, 2016.

b. Mr. Fenwick will notify the respondents by Friday November 4, 2016 whether it consents to the removal of Bennett Jones from the application (in which case a clause to that effect shall be included in the draft order) and whether it intends to pursue a motion to have Bennett Jones barred from acting for Concierge.

c. Concierge shall bring a Cross-Application, also returnable on December 14, 2016 containing its claim for the funds to be paid into court and joining, if so desired, the Weilands as respondents for the purpose of establishing its claim to commission (whether or not secured by the deposit). The Cross-Application shall be issued and served by November 7, 2016.

d. Concierge shall deliver any additional responding material (over and above the Cross-Application) by the same November 7, 2016.

e. Mr. Fenwick shall deliver responding material by November 10, 2016.

f. Cross-examinations to be completed by November 28, 2016.

g. Facta to be delivered by all parties prior to the hearing pursuant to the times prescribed by the Rules of Civil Procedure.

h. Concierge’s action (CV-16-560645) shall be stayed until the hearing of the application and intended cross-application. The application judge shall be determine what if anything remains of the action after the applications are disposed of.

i. If Bennett Jones is retained in the application, its responding material shall be delivered by November 14, 2016 and reply if any shall be delivered by November 16, 2016 (Bennett Jones to comply with the remainder of the timetable).

j. If the Weilands decide to respond to the cross-application, the parties shall attempt to work out a consensual amendment to the timetable to allow them to do so. Failing agreement, I may be spoken to in the week of November 14 at a Chambers Appointment at 9:30am (to be arranged via my assistant and notified to the Motions Office).

[10] It must be recognized by the parties that, depending on the position of the Weilands, the unsecured claim by Concierge to commission may or may not be able to be heard on December 14, 2016. However, the fate of the funds to be paid into court ought to be able to be dealt with definitively – whether they be paid to Concierge in satisfaction of its claimed commission or to Mr. Fenwick as a return of deposit on a failed transaction.

[11] As I am not scheduled in motions that week, I shall not be seized of this application.

S.F. Dunphy, J.

Date: November 1, 2016