fred cole Applicant And: institute of chartered accountants of newfoundland v. labrador, 2019 NLSC 57

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Cole v. Institute of Chartered Accountants of Newfoundland and Labrador , 2019 NLSC 57 Date : March 11, 2019 Docket : 201701G7500 Between: fred cole Applicant And: institute of chartered accountants of newfoundland and labrador First Respondent And: wilson hoffe, cheryl whitten and thomas kendall Second Respondent Before: Justice Daniel M. Boone Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: March 7, 2019

Summary: The First Respondent applied to proceed with an Interlocutory Application notwithstanding that the Applicant had filed a Notice of Discontinuance. The Application was denied. The First Respondent was awarded its costs. Appearances: Ronald A. Cole, Q.C. Appearing on behalf of the Applicant Augustine F. Bruce, Q.C. Appearing on behalf of the First

Respondent Authorities Cited: RULES CONSIDERED: Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sched. D REASONS FOR JUDGMENT Boone, J. : INTRODUCTION [ 1 ] The First Respondent (the “Institute”) is the regulator of Chartered Professional Accountants. The Applicant (“Cole”) was a member of the Institute. The Originating Application in this proceeding sought an Order in the nature of certiorari seeking to quash an interim decision of an Institute disciplinary panel. [ 2 ] The Institute and Cole have been involved in several disputes since 2012.

These disputes have engendered several proceedings in this Court. Three Orders for costs were issued against Cole in favour of the Institute in those other proceedings. Cole has not paid those costs. The Institute has entered judgments but has not taken any other steps to enforce those judgements. [ 3 ] There are three outstanding proceedings in this Court, including this one. One of the other proceedings is an action by Cole claiming damages for breach of privacy. An Order for security for costs was issued against Cole in that proceeding.

The other proceeding is a statutory appeal from the decision of the same disciplinary tribunal whose decision is the subject of the Originating Application in this matter. [ 4 ] The Institute applied in this proceeding for an Order for security for costs. The statutory appeal mentioned in the preceding paragraph was filed following the issuance of that Interlocutory Application. The application for security for costs was originally scheduled to be heard in fall of 2018 but was postponed by the Court.

Before the rescheduled date for hearing, Cole filed a Notice of Discontinuance of the Originating Application. [ 5 ] The Institute filed a brief in support of its position on the application for security for costs prior to the Notice of Discontinuance.

In the brief, the Institute asked for relief other than security for costs in this proceeding, expanding the prayer for relief to include an order for security for costs in the statutory appeal proceeding, an Order that Cole pay all outstanding costs ordered against him, and a further Order providing that if all outstanding costs awards and orders for security for costs were not satisfied within 60 days then both this proceeding and the statutory appeal proceeding would be dismissed. [ 6 ] The Institute now seeks to proceed with its Interlocutory Application for security for costs, and the expanded scope of relief just described, and an Order for costs in its favour in this proceeding. [ 7 ] Cole takes the position that he was entitled to discontinue this proceeding, that as the entire proceeding was discontinued then the Interlocutory Application cannot proceed, and that the discontinuance ought to be filed with no costs consequences.

ISSUES [ 8 ] There are two issues for determination by this Court: 1. Should the Interlocutory Application of the Institute for security for costs and other relief be allowed to proceed notwithstanding the filing of the Notice of Discontinuance? 2. Should Cole be ordered to pay the costs of the Institute on the Originating Application, including the Interlocutory Application and this hearing?

ANALYSIS [ 9 ] The Institute says it should be allowed to continue with its Interlocutory Application because it seeks relief beyond the scope of this proceeding. [ 10 ] However, that position ignores that Cole is entitled to discontinue this proceeding pursuant to Rule 19 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sched. D : 19.01 Discontinuance of proceeding, etc., without leave At any time before a proceeding is entered for trial or its hearing is commenced in chambers, (

a) a plaintiff may discontinue the proceeding or withdraw any cause of action therein against any defendant; or

(

b) a defendant may withdraw the defence or any part thereof against any plaintiff, by filing and serving a notice of discontinuation or withdrawal on any party concerned. [ 11 ] The Rule does not restrict the right of a party to discontinue a proceeding or provide that the proceeding cannot be discontinued if there are outstanding interlocutory applications. [ 12 ] The Institute relied on authority which it says establishes that the Court in one proceeding may make an Order for security for costs that has effect across multiple proceedings.

It may be that there is jurisdiction in the Court to make such an Order, but that does not answer the question. [ 13 ] The Application with which the Institute wishes to proceed was issued as an interlocutory application in this proceeding. Rule 1.03(

i) defines an interlocutory application as one brought within a pending proceeding. Once the proceeding initiated by the Originating Application was discontinued, it was no longer pending and no further interlocutory applications can be brought or heard within it. [ 14 ] There may be circumstances where the Court might consider an Order to vacate a notice of discontinuance in order to allow an interlocutory application to proceed. However, in this case there is no need for the Court to consider doing so.

The relief sought by the Institute in this Application can still be pursued in the statutory appeal proceeding. In determining that Application, the Court will consider whether the conditions outlined in Rule 21 apply in that proceeding. The other relief sought by the Institute in this interlocutory application is an Order that Cole comply with outstanding costs orders against him in other proceedings. Judgment was already issued in respect of each of those costs orders, and those judgments have been registered under the Judgement Enforcement Act.

No further Order is required in that regard. [ 15 ] Therefore, even if the Court might in certain circumstances allow an interlocutory application to proceed notwithstanding the prior discontinuance of the proceeding, there is nothing in this case to support making such an Order. [ 16 ] The interlocutory application cannot be heard in this proceeding. The proceeding has been discontinued. [ 17 ] The Institute seeks its costs of the Originating Application, including the costs of the interlocutory application and of its appearance for this hearing.

Its entitlement to costs follows from application of Rule 19.03: 19.03 Costs 19.03(1) Subject to rule 19.02, a party discontinuing a proceeding or withdrawing any cause of action therein or withdrawing the defence or any part thereof shall pay the costs of any opposing party to the date of giving notice of discontinuance or withdrawal to the party and, if before the payment of the costs the party subsequently brings a proceeding for the same, or substantially the same claim, the Court may order the proceeding to be stayed until the costs are paid. 19.03(2) When an opposing party produces a notice of discontinuance or withdrawal that was served on the opposing party, the opposing party may tax the costs and enter judgment for the costs. [ 18 ] Pursuant to Rule 19.03(2), the Institute was entitled to have its costs taxed against Cole on being served with the Notice of Discontinuance.

However, for greater certainty, I order that the Institute shall have its costs of this proceeding, including the costs of the Interlocutory Application and any appearances in relation to that application, including this hearing, such costs are to be taxed on Column 3 of the Rules . _____________________________ Daniel M. Boone Justice