David M. Brown

Bluecore Capital Inc., the respondent on appeal, brought a motion to lift the automatic stay of a bankruptcy order against Sergio Grillone, the appellant, and for an order requiring Mr. Grillone to post security for costs of the appeal.

The motion judge granted the motion, finding that Mr. Grillone had not diligently prosecuted his appeal, his grounds of appeal were very weak, he had failed to satisfy previous cost orders, and the relative prejudice strongly favoured lifting the stay to allow a trustee to manage his assets for the benefit of creditors.

The court also ordered Mr. Grillone to post $30,000 as security for costs.

The defendants brought a motion under Rule 24.1.05 to exempt the action from mandatory mediation.

The court found that the plaintiff had engaged in a vexatious course of conduct, including sending abusive and inflammatory correspondence to the court-appointed mediator.

The court concluded that the plaintiff had no bona fide intention to mediate and that compelling mediation would only delay the fair resolution of the litigation and unnecessarily increase costs.

The motion was granted, and the defendants were awarded costs on a substantial indemnity scale due to the plaintiff's egregious conduct.

The Debtors (Ten 4 System Ltd., 1000043321 Ontario Inc., and 1000122550 Ontario Inc.) sought leave to appeal an order appointing a receiver over their assets, pursuant to s. 193(e) of the Bankruptcy and Insolvency Act.

The Royal Bank of Canada, the creditor, opposed the motion.

The court dismissed the motion for leave to appeal, finding that the proposed grounds of appeal lacked prima facie merit, did not raise issues of general importance, and that granting leave would unduly hinder the receivership administration.

Costs were awarded to RBC.

The Crown appealed the conditional sentences imposed on the respondent for trafficking in cocaine and crystal methamphetamine, and possession of proceeds of crime, arguing errors in principle.

The Court of Appeal found the sentencing judge erred by imposing a conditional sentence after determining a three-year penitentiary term was fit, and by using pre-trial custody credits to make a conditional sentence available, contrary to R. v. Fice.

While upholding the three-year global sentence as fit due to mitigating Gladue factors, plea, remorse, and rehabilitation, the Court substituted a 16-month prison sentence but stayed its operation, allowing the probation order to remain.

The defendant, Scott Allen Smith, brought a motion seeking security for costs from the plaintiff, Nevada Tours, a Mexican corporation, on the grounds that the plaintiff was ordinarily resident outside Ontario.

The plaintiff opposed, arguing the motion was barred by s. 249(3) of the Business Corporations Act (OBCA) as its claim against Smith was primarily for oppression.

The court dismissed the motion, finding that the plaintiff's claim against Smith was in pith and substance an oppression claim, thus triggering the s. 249(3) prohibition against security for costs.

The court also found the plaintiff had sufficiently pleaded facts to potentially qualify as a "complainant" under the OBCA.

The defendant in a defamation action brought a motion for the production and preservation of documents from non-parties, as well as a sealing order and publication ban regarding the identities and medical information of two non-party insured individuals.

The court granted the unopposed production orders.

Applying the Sherman Estate test, the court granted the sealing order and publication ban for one insured whose identity remained anonymous, but dismissed the request for the other insured whose identity was already public and where the scope of the requested health information ban was too vague.

The appellant, Joshua Rodrigues, appealed his conviction for unreasonable verdict and his sentence regarding a victim fee surcharge.

The conviction appeal argued that the trial judge used illogical reasoning to reject the appellant's testimony.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's reasons were detailed, comprehensive, and not illogical or inconsistent with the evidence.

The appeal against sentence, specifically concerning the $1,800 victim fee surcharge, was allowed on consent, and that portion of the sentence order was set aside.

The appellant, Dmitri Davidov, appealed his conviction for importation and conspiracy to import cocaine, and sought leave to appeal a non-communication order.

The Court of Appeal found that the trial judge erred by improperly using inconsistencies between the appellant's pre-trial police statement and trial testimony to infer guilt, rather than solely for credibility assessment.

However, the court applied the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, finding the evidence of guilt overwhelming and the conviction inevitable.

The appeal from conviction was dismissed.

Leave to appeal the non-communication order was granted, but the sentence appeal was also dismissed, as the order was deemed a reasonable exercise of discretion to protect witnesses.

This motion concerned the costs of a plaintiff's motion on undertakings and refusals.

The substantive issues were resolved at the outset of the hearing when the defendants capitulated to all of the plaintiff's demands.

The court distinguished the case from situations where parties settle "except for costs" before the hearing, noting the defendants' last-minute concession after the plaintiff had fully prepared for an opposed motion and the defendants had filed no responding materials.

The court found the defendants' strategy was one of delay to avoid cost consequences.

Consequently, the plaintiff was awarded partial indemnity costs of $15,000, inclusive of taxes and disbursements, for the motion, rejecting the plaintiff's request for full indemnity or costs incurred prior to the motion's commencement.

The appellant appealed an extradition order and sought judicial review of the Minister of Justice's surrender order related to fraud charges in the U.S. The core issues included an alleged s. 8 Charter breach regarding the use of passport photographs, a request for additional disclosure, and an argument of improper delegation by the Minister.

The Court of Appeal dismissed the appeal and judicial review, finding no reasonable expectation of privacy in passport photos, no basis for further disclosure, and that the Minister's decision was reasonable and entitled to deference.

The appellant, convicted of sexual assault and sexual interference, appealed his conviction, arguing the trial judge erred in assessing and relying on the complainant's voice identification evidence.

The Court of Appeal dismissed the appeal, finding that the voice recognition evidence was a minor part of a broader constellation of evidence, including DNA, physical injuries, and the complainant's visual identification of the appellant.

The court held that the trial judge's overall scrutiny of the complainant's evidence, despite minor mischaracterizations, was sufficient to address reliability concerns.

The appellant, Jennifer Pyne, appealed her convictions on several drug-related charges and sought leave to appeal her sentence, contending an error on the warrant of committal.

The Court of Appeal dismissed the conviction appeal, finding no misapprehension of evidence by the trial judge regarding the location of discarded drugs.

The court also dismissed the sentence appeal, determining that while the sentencing judge made a minor calculation error in her oral reasons, the warrant of committal accurately reflected the imposed sentence, thus requiring no rectification.

The appellant, Avaya Canada Corporation, appealed a summary judgment decision that awarded the respondent, John Lynch, 30 months' notice for wrongful dismissal.

Avaya contended the motion judge erred by awarding a notice period exceeding the relief sought, misapplying Bardal factors for reasonable notice, and incorrectly concluding Lynch took reasonable steps to mitigate damages.

The Court of Appeal dismissed the appeal, finding no merit in Avaya's arguments.

The court affirmed that a notice period could exceed the initial claim if argued on that basis without prejudice, upheld the 30-month notice period as justified by "exceptional circumstances" under Bardal, and found no error in the motion judge's mitigation findings.

The plaintiff in a defamation action brought a motion for leave to amend his statement of claim, including adding his professional corporation as a plaintiff, and alternatively sought to extend the time to issue a statement of claim in a placeholder action.

A non-party sought and was granted leave to intervene to oppose certain amendments.

The court denied the amendment to add the professional corporation on the basis of issue estoppel, as a previous judge had already denied the same request.

The court also denied amendments that improperly sought document production or contained scandalous information about the non-party.

The motion to extend time in the placeholder action was dismissed as an abuse of process and a collateral attack on the previous judge's order.

Success being divided, no costs were awarded.

On a security for costs motion, the court adjourned the matter sine die because the parties failed to comply with the Consolidated Civil Provincial Practice Direction and materially underestimated the time required for a complex contested hearing.

The moving party's record exceeded 1,000 pages, the total uploaded materials exceeded 1,700 pages, and neither side filed the required compendium.

The court held that materials and authorities relied on must be brought to the judicial officer's attention during oral argument and that complex motions cannot proceed efficiently without proper compendiums and realistic time estimates.

The evidentiary record was frozen, amended factums were permitted, compendiums were required for the return date, and no costs were awarded for the adjournment.

The appellant mother appealed the dismissal of her application for parenting orders, retroactive and ongoing child support, and s. 7 expenses under the Family Law Act.

The motion judge had dismissed the application due to an existing divorce judgment from Michigan that already contained parenting and child support orders.

The Court of Appeal found no error in the motion judge's application of legal principles or exercise of discretion, noting that there was little else in dispute beyond child support.

The appeal was dismissed, and costs were awarded to the respondent.

The appellant, Jaswant Singh Kooner, appealed a trial judgment that found he owed his lawyer, Peter Verbeek, outstanding legal fees.

The trial judge had found an oral retainer agreement for fees and disbursements, not a contingent fee, and awarded Verbeek $59,342.42 plus $22,500 in costs.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's findings regarding the oral retainer agreement or the reasonableness of the fees.

Leave to appeal the costs award was also dismissed.

The appellant was convicted of sexual assault, sexual interference, and making sexually explicit materials available to a child.

The appeal challenged these convictions on grounds of the trial judge's misapprehension of the complainant's evidence regarding her mother's presence during the alleged sexual touching, and the sufficiency of the trial judge's reasons.

The majority of the Court of Appeal allowed the appeal in part, setting aside the convictions for sexual assault and sexual interference and ordering a new trial on those counts, finding that the trial judge had materially misapprehended key evidence and provided insufficient reasons.

However, the conviction for making sexually explicit material available was upheld.

The dissenting judge would have dismissed the entire appeal, arguing that the trial judge correctly applied the common sense approach to child witnesses and that reasons were sufficient.

The appellant sought leave to appeal an 8.5-year sentence for five counts of driving while disqualified.

The appellant had a lengthy criminal record, including numerous prior driving offences and a previous 10-year sentence for criminal negligence causing bodily harm.

The current offences were committed while the appellant was on parole and subject to multiple driving prohibitions, including a lifetime ban, and involved the use of a fraudulent driver's licence.

The Court of Appeal considered arguments regarding proportionality, parity, the jump principle, and the totality principle.

The court found no errors in principle by the sentencing judge, emphasizing the appellant's incorrigibility and the increased maximum sentence for driving while disqualified.

Leave to appeal was granted, but the appeal was dismissed, upholding the original sentence.

The plaintiffs, judgment creditors of the defendant for over $4 million arising from fraudulent schemes, brought a motion for orders under Rule 60.18(6) to examine the defendant's spouse and compel document production from non-party banks and accountants.

The plaintiffs also sought leave under Rule 60.08(2) to issue a notice of garnishment more than six years after the judgment.

The court granted the motion, finding that the plaintiffs had faced difficulty enforcing the judgment due to the defendant's refusals and non-compliance with previous orders, and that the non-parties likely possessed relevant information regarding the defendant's assets and income.