Superior Court of Justice - Ontario

Re: Gallant Ho, Plaintiff And: Cecilia Lau, Defendant

Before: Sanfilippo J.

Counsel: Terrence J. O’Sullivan and Paul Fruitman, for the Plaintiff Richard Swan and Gannon G. Beaulne, for the Defendant

Heard: November 30, 2017

Endorsement

A. Overview

[1] This third case management conference (the “3rd CM Conference”) was convened today, by telephone, at the request of counsel for the plaintiff, Gallant Ho (“Ho” or the “plaintiff”) to address an issue that has arisen in relation to a step taken by the defendant, Cecilia Lau (“Lau” or the “defendant”) to seek an order in Family Court to consolidate this action with an application pending in Family Court as court file number FS-17-21444 (the “Family Law Proceeding”).

[2] Lau’s step in seeking an Order in the Family Court for consolidation of this action with the Family Law Proceeding was submitted by counsel for Ho to be in non-compliance with my case management endorsements of October 13, 2017 (the “1st CM Endorsement”) and October 19, 2017 (the “2nd CM Endorsement”). Counsel for Lau submitted that the orders contained in the 1st and 2nd CM Endorsements did not affect the possibility of bringing a motion for consolidation in the Family Law Proceeding.

[3] On the grounds set out herein, I determined that it is improper and in non-compliance with my Orders to seek in the Family Law Proceeding an order for consolidation of this action with the Family Law Proceeding as an Order on this issue has been made in this action. In order to comply with my Order, Lau must now withdraw the relief sought in paragraph 6 of her Cross-Motion in the Family Law Proceeding.

B. History of Proceedings

[4] This action was initiated on the commercial list as court file number CV-16-011371-00CL.

[5] On January 23, 2017, a motion was brought by Ho for an order striking Lau’s counterclaim with leave to commence a fresh application in the Family Court or, in the alternative, transferring the defendant’s counterclaim to the Family Court. At the same time, the defendant advanced a motion for an order transferring the plaintiff’s claim and the defendant’s counterclaim to the Family Court.

[6] The motions of January 23, 2017 were settled and, on consent, Conway, J., issued an Order of that date in which Lau’s counterclaim was withdrawn without prejudice to Lau seeking spousal support and other family law relief in Family Court (paras. 1-4). Conway, J. also ordered as follows:

5. THIS COURT FURTHER ORDERS that the withdrawal of the Counterclaim from this proceeding is without prejudice to the Defendant’s right to seek an order trying the Family Law Proceeding together with or immediately thereafter the trial of the Action brought by Gallant Ho under Court File No. CV-16-011371-00CL.

[7] On March 20, 2017, Lau initiated the Family Law Proceeding. It was responded to by Ho who advanced a motion for summary dismissal, returnable on December 14, 2017.

[8] On September 11, 2017, the commercial list action was spoken to before Regional Senior Justice Morawetz at a commercial list management session. Morawetz, RSJ, ordered that the commercial list action be transferred to the Civil List and made subject to case management, as follows:

In my view, considering that there is overlap with the family proceeding, that there is a possibility of a pending motion before the master, and that a degree of case management would be beneficial, there is a benefit to transferring this matter to the Civil List with a Case Management Judge to be appointed.

[9] Further to the order of Morawetz, RSJ, this action was assigned court file number CV-17-586913 on the Civil List.

C. Case Management

[10] I was appointed by Firestone J., as the case management judge, and two case management sessions were conducted, on October 12, 2017 (the “1st CM Conference”) and October 18, 2017 (the “2nd CM Conference”), resulting in the 1st CM Endorsement and the 2nd CM Endorsement, respectively.

[11] At the 1st CM Conference, counsel for Lau submitted that it was Lau’s intention to seek a re-consolidation of this action with the Family Law Proceeding. I ordered that consideration of any motion to re-consolidate would be held down and deferred to a case management conference to be conducted on January 11, 2018. My order, in this regard, states as follows:

(e) Notice is hereby provided under Rule 50.13(6) that a timetable will be implemented at the case conference on January 11, 2018 for the following: (i) Any motion that counsel for the defendant might be advised to advance to consolidate this action with the Family Law Proceeding. Leave for such a motion was specifically provided for by the Order of Conway, J. of January 23, 2017; (the “Paragraph 20(e)(i) Order”)

[12] The 1st CM Endorsement also ordered as follows:

[21] No motion may be brought in this action before being considered at a case conference. (the “Paragraph 21 Order”)

[13] The determination to hold down consideration of the consolidation issue raised on behalf of Lau to January 11, 2018 was based on two considerations: (i) giving priority to the procedural development of this then-17 month old action, which had not passed the pleading stage, including through a motion for the implementation of a discovery plan, then-scheduled to proceed before a Master on November 24, 2017. Procedural development of this action was determined to be more important than further restructuring by re-consolidation; (ii) the recognition that Ho had pending, since before September 11, 2017, a motion in the Family Law Proceeding seeking, amongst other things, summary dismissal. The determination of this issue would have an impact on consolidation.

[14] The 2nd CM Conference was convened for two reasons, one of which was to clarify the Paragraph 20(e)(i) Order. Submissions were heard that the wording of the Paragraph 20(e)(i) Order did not properly reflect the Order of Conway, J. on the issue of consolidation. This issue was addressed by refining Paragraph 20(e)(i) of the 1st CM Endorsement by the 2nd CM Endorsement, to the following:

(e) Notice is hereby provided under Rule 50.13(6) that a timetable will be implemented at the case conference on January 11, 2018 for the following: (i) Any motion that counsel for the defendant might be advised to advance to consolidate this action with the Family Law Proceeding, noting paragraph 5 of the Order of Conway J. of January 23, 2017.

[15] These Orders exemplify that the issue of consolidation of this action with the Family Law Application was specifically raised and considered at two case management conferences in this action and was reserved to be addressed at a case management conference on January 11, 2018. The Paragraph 21 Order remained intact, throughout.

D. The Issue Raised: Breach Resulting from Relief Sought in the Family Law Action

[16] As noted earlier, the plaintiff has had, since before September 11, 2017, a motion pending in the Family Court for summary judgment in the Family Law Proceeding. The return date of this motion in Family Court of December 14, 2017 was noted in the Order of Morawetz, RSJ of September 11, 2017.

[17] On November 16, 2017, Lau delivered a Notice of Cross-Motion in the Family Law Application seeking financial disclosure by Ho and also the following:

6. An Order consolidating this Family Proceeding (FS-17-21444) and the Civil Court Proceeding (CV-16-011371-00CL).

[18] Counsel for Ho asked that this 3rd CM Conference be convened to address this development. Counsel for Ho submitted that Lau’s conduct in seeking a re-consolidation of the Family Law Proceeding and this action is in direct contravention of the Order in Paragraph 20(e)(i), as refined in the 2nd CM Endorsement, and also Paragraph 21.

[19] Counsel for Lau submitted that the issue of re-consolidation was raised on behalf of Lau at the 1st CM Conference and at the 2nd CM Conference such that the plaintiff and the court were alert to Lau’s intention to seek re-consolidation. Lau contends that the wording of Paragraph 20(e)(i) was interpreted to address the timetabling of any re-consolidation motion if brought in the civil proceeding but did not affect the possibility of bringing a re-consolidation motion in the Family Law Proceeding. It was noted that there is separate counsel representing Lau in the Family Law Proceeding but Lau directs counsel in both this action and the Family Law Proceeding.

E. Case Management Directions

[20] Lau is subject to the order set out in Paragraph 20(e)(i) that any motion that she may seek to advance to re-consolidate this action with the Family Law Proceeding is held down until addressed at the Case Management Conference of January 11, 2018. This Order was rendered before Lau delivered a Notice of Cross-Motion on November 16, 2017 seeking this very relief in the Family Law Proceeding.

[21] Lau cannot shop between the case on the Civil List and the Family Law Proceeding. Any motion to consolidate two actions of this nature impacts both the case on the Civil List and case in the Family Court. Lau made submissions in this case for re-consolidation, in two case management conferences, and is subject to an Order that this issue be held down to be considered further on January 11, 2018. It is improper and in non-compliance with my Orders to seek a consolidation order from a judge of the Family Court on the case that constitutes the other half of the consolidation issue.

[22] In order to comply with my Order, Lau must now withdraw the relief sought in paragraph 6 of her Cross-Motion in the Family Law Proceeding.

[23] I take this opportunity to address, as well, the intent of the Paragraph 21 Order, in the event that it requires clarification. This form of order was made so that the issues affecting the action under case management could be addressed and determined by a single judge, for efficiency, in accordance with the principles of case management. In this sense, the intention when ordering that “[n]o motion may be brought in this action before being considered at a case conference” ordinarily means “no motion affecting, or impacting or involving this action”.

[24] Counsel for Lau contends that this type of wording can present complications in circumstances in which there is a companion action pending in the Family Court. An example given was that an order in the Family Court on a questioning or production issue could affect this action.

[25] It is fully recognized that there is potential for overlap between these two actions. This was recognized by Conway J., in ordering that “documents exchanged in each of the two actions will not be subject to the deemed undertaking rule or the implied undertaking rule as between the two proceedings only” (para. 6) and it was recognized by Morawetz, J. in his order. If the Family Law Proceeding is not summarily dismissed on December 14, 2017, as Ho seeks, then issues of overlap will be addressed as this action proceeds. For the present purpose, however, we have before us only the issue of consolidation, which was identified and addressed in this action before any issue was raised of it in the Family Law Proceeding.

[26] The motion before the Master for a Discovery Plan is now pending for January 10, 2018. Should this motion not proceed that day, for any reason, it will be brought to my attention at the case conference of January 11, 2018 and I will make arrangements to hear the motion.

[27] Any party who seeks to address an issue identified in this action between now and the next scheduled case conference of January 11, 2018, and who considers that a case conference would assist in the expeditious and efficient handling of any such issue, may request the scheduling of a further case conference by email to my assistant in the same manner that the first, second and third case management conferences were organized.

[28] In the absence of a case management conference organized in accordance with paragraph 26, above, the next case management conference will be conducted on January 11, 2018 at 9:00 am using the same call-in co-ordinates as were used for the 3rd CM Conference.

[29] Broad application of Rule 50.13 will be used to address and resolve matters raised at case conference, in circumstances where this is possible. Counsel ought to expect that procedural orders and directions will be made at case conferences, in accordance with Rule 50.13(6), on informal notice of the issue to be addressed.

[30] The requirement of preparation, issuance and entry of a formal order is hereby dispensed with in accordance with Rule 77.07(6).

Sanfilippo J. Date: November 30, 2017