4 total
Leave to appeal denied; motion judge correctly applied self-incrimination protections to civil injunction evidence.
The defendants sought leave to appeal an order dismissing their motion to seal documents and transcripts related to a Mareva injunction.
The defendants argued that the documents should be sealed because one of the defendants was facing criminal fraud charges.
The motion judge had ruled that sealing was unnecessary because the defendants were protected by the privilege against self-incrimination and the implied undertaking rule.
The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motion judge's order.
Costs of dismissed confidentiality motions fixed at $5,000 in the cause of the pending Mareva injunction.
Following the dismissal of the defendants' motions for confidentiality orders and the plaintiff's cross-motion for a confidentiality order regarding materials for a pending Mareva injunction, the parties made written costs submissions.
The plaintiff sought $15,000, while the defendants argued for no costs due to the novelty of the legal issues.
The court ordered that costs of the motions be fixed at $5,000 in the cause of the Mareva injunction motion, finding this fair given the exigencies of the proceeding.
The court also awarded the defendants $500 each for the costs of their costs submissions, payable by the plaintiff.
No sealing order where existing self-incrimination and privacy protections were sufficient.
In a civil fraud action accompanied by a pending Mareva injunction motion and related criminal proceedings, certain defendants sought confidentiality or sealing orders over their proposed affidavit and cross-examination evidence on the basis of self-incrimination concerns.
The court held that, as statutorily compellable witnesses in the civil proceeding, they were already protected by the principle against self-incrimination and no further protective order was required.
The plaintiff's cross-motion for a confidentiality order to permit filing of redacted motion materials was also dismissed because the open court principle was not displaced under the sealing-order test.
The court further held that disclosure of personal information in the motion record fell within the PIPEDA exception for compliance with rules of court relating to the production of records.
Appeal allowed; not plain and obvious that corporate release protected employees from subsequent action.
The appellant appealed an order striking its claim against the respondent employees on a Rule 21 motion.
The motion judge had concluded that a release executed by the corporate parties included the employees and that the action was an abuse of process.
The Court of Appeal allowed the appeal, finding it was not plain and obvious that the release covered the employees, and that the motion judge impermissibly weighed evidence.
The Court also held that bringing a subsequent action against the employees was not an abuse of process, as the specific issues and duties of care were not decided in the earlier action against the principal.
