Paul D. Stern

The Crown brought an application to unseal documents held by an accounting firm (PWC) that were subject to a production order in a fraud investigation.

The respondent claimed blanket solicitor-client and litigation privilege over the entire PWC file, arguing the accountants were retained by his law firm to assist with a CRA voluntary disclosure application.

The court rejected the blanket privilege claim, finding that the accountants were primarily performing independent accounting functions (preparing tax returns) rather than acting solely as a conduit for legal advice.

The court ordered a document-by-document review by appointed referees to identify any specific privileged communications.

The defendants moved to set aside a noting of default and default judgment, which had been granted after years of "bad litigation behaviour" and failure to comply with court orders, including payment of costs.

The original claim involved the defendant Rose Venneri Donatelli misrepresenting herself as a qualified psychologist with a Ph.D. The court applied the Healey factors for setting aside default judgments, finding the default intentional, the motion untimely (2.5 years after judgment), and no arguable defense on the merits.

The court emphasized that allowing the defendants to continue would be an affront to the integrity of the administration of justice, given their repeated non-compliance and the fact that the underlying judgment had been upheld through multiple appeals.

The motion was denied.

The appellant, Matthew Woodham, appealed his conviction for assault causing bodily harm.

The appeal court found that the trial judge erred in assessing identification evidence, misstated and misapplied the test from R. v. W.(D.), and made palpable and overriding errors in assessing witness credibility by misapprehending evidence, engaging in speculation, and drawing unsupported inferences.

These errors were fundamental to the rejection of the defence's testimony and played a significant role in the conviction.

The appeal was allowed, the conviction quashed, and a new trial ordered.

An employee of the Ontario Psychological Association appealed a motion judge's decision striking out paragraphs of her counterclaim that sought contribution and indemnity against six named defendants who were officers and/or directors of the Association.

The Court of Appeal upheld the motion judge's decision, finding that the six individuals owed no duty of care to the employee.

The court rejected the appellant's arguments that the individuals failed to supervise her properly and that they owed a duty to the Association that, if breached, would result in liability for the appellant's conversion of the Association's money.

Leave to amend was denied.

The Crown alleged that the defendant, a long-serving office administrator of the Ontario Psychological Association, embezzled a significant amount of money between 2003 and 2013 through various methods including cheques payable to herself, cash withdrawals, debit card purchases, and electronic transfers.

The defendant contended that the organization operated as a family-run business with intermingled personal and business expenses that were accounted for and approved by executive directors and auditors.

The court found that while the volume of undocumented cash transfers appeared suspicious, the investigation was conducted unprofessionally and incompletely, and the defendant's evidence, combined with the inadequate investigation, raised a reasonable doubt.

The defendant was acquitted.

The Ontario Psychological Association (OPA) sued its former employee, Charlotte Mardonet, for misappropriating over $1.6 million.

Mardonet counterclaimed against the OPA and its individual officers and directors, seeking contribution and indemnity based on their alleged failure to supervise her.

The individual officers and directors moved to strike these paragraphs of the counterclaim, arguing they disclosed no reasonable cause of action.

The court granted the motion, finding it plain and obvious that officers and directors owe no duty of care or fiduciary duty to an employee to protect them from their own wrongdoing.

The defendant applied for production of third-party records held by the Ontario Psychological Association, specifically emails and accounting records (AccPac) for the period January 10, 2003 to June 13, 2013.

The defendant was charged with theft and fraud related to alleged diversion of organizational funds over a 10.5-year period.

The court applied the O'Connor test for third-party record production and determined that the requested documents were likely relevant to the proceedings.

The court found that emails and accounting records could assist in establishing the chronology and narrative of events central to the allegations.

The court ordered the third party to review the records for privilege before production to the court.

The appellants appealed a motion judge's order quashing notices of examination served on the responding defendants in relation to a Mareva injunction motion.

The responding defendants moved to quash the appeal, arguing the order was interlocutory.

The Court of Appeal granted the motion to quash, finding that the order was interlocutory because it did not terminate the underlying action or resolve a substantive claim or defence.

The appeal lies to the Divisional Court.

On a motion by auditor defendants to quash notices of examination served by a co-defendant before a pending Mareva injunction motion, the court held the proposed examinations were not shown to be properly relevant to the issues on the injunction.

The notices sought sweeping document production and testimony extending back to 2003, despite the injunction motion focusing on whether the co-defendant had misappropriated funds and seeking no relief against the moving parties.

The court found the notices functioned as premature discovery before the close of pleadings and amounted to a fishing expedition.

The notices of examination were quashed.

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.

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.

The appellants, Canadian citizens, faced extradition to the United States for telemarketing fraud.

During the extradition process, an American judge and prosecutor made threatening statements indicating that uncooperative fugitives would receive maximum sentences and face sexual violence in prison.

The extradition judge stayed the proceedings, finding these threats violated the principles of fundamental justice.

The Court of Appeal set aside the stay, ruling the judge should have deferred to the Minister of Justice's surrender decision.

The Supreme Court of Canada allowed the appeal and reinstated the stay, holding that the extradition judge has jurisdiction under the Charter and common law to remedy abuses of process that directly taint the committal hearing, without waiting for the executive phase.