Barry Philip Cox

The respondent, Niman Mamo LLP, brought a motion on consent for a sealing order over all materials filed in the court file, citing solicitor-client privilege and ongoing litigation.

The court found that the materials filed did not meet the requirements for a sealing order as set out by the Supreme Court of Canada, most recently in Sherman Estate v. Donovan, 2021 SCC 25.

The court emphasized the presumption of openness in court proceedings and the need for strong, evidence-based grounds to override this principle.

The motion was dismissed.

This endorsement addresses a request to seal supplemental affidavits filed in support of a settlement approval.

While the settlement was approved, the court largely denied the request to seal the affidavits, emphasizing the foundational principle of transparency and the open court principle.

The judge found no basis to seal information regarding the merits of the plaintiffs' case post-settlement approval or the terms of counsel's retainer, citing section 137 of the Courts of Justice Act.

The affidavits were ordered to remain sealed for 60 days, with a requirement for a formal application, served on all parties and the media, to extend the sealing order.

The self-represented plaintiff successfully moved for leave to appeal an order requiring him to pay $30,000 into court as security for costs.

The court then determined the costs of the leave motion.

The defendants argued costs should be in the cause, but the court ordered costs payable forthwith to preserve the plaintiff's access to justice.

Applying the factors under Rule 57.01(1), the court fixed the plaintiff's costs at $4,135 on a partial indemnity scale, valuing his time at $100 per hour.

The self-represented plaintiff sought leave to appeal an interlocutory order requiring him to pay $30,000 into court as security for costs.

The underlying action involved allegations of false arrest and excessive force by mall security officers.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's decision because the motion judge failed to explicitly find that the action was frivolous and vexatious, did not review the evidentiary record, and improperly relied on findings from a separate summary judgment motion involving different defendants.

The court also found the issue raised matters of public importance regarding access to justice.

The self-represented appellant appealed a motion judge's order dismissing the action for delay.

The Court of Appeal found the motion judge erred by giving no credence to the appellant's un-cross-examined affidavit explaining the delay.

Noting that the respondents had also delayed in taking steps and that there was no evidence of actual prejudice, the Court allowed the appeal, set aside the dismissal, and imposed a strict timetable for the appellant to advance the litigation.