Matthew G. Moloci

This endorsement addresses a case conference requested by Sergio Grillone, an undischarged bankrupt, seeking directions regarding his proposed appeal from a scheduling endorsement and related matters in ongoing bankruptcy proceedings.

The court finds that Mr. Grillone has no right of appeal from the scheduling endorsement, as no order has been made from which an appeal lies, and dismisses his proposed motion as frivolous, vexatious, or an abuse of process under rule 2.1.01.

The decision details the procedural history, the positions of the parties, and the court’s reasoning for dismissing the motion.

This decision concerns an application by Dr. Kelly Diane Riedel regarding the validity and administration of the Dmyant Sangha Family Trust and the Sangha Property Trust.

Dr. Riedel alleges that the trusts are shams, created to defeat her family law entitlements, and seeks various forms of relief including the production of legal records and the conversion of the application to an action.

The court addresses the legal standards for sham trusts, the relevance of disputed facts, and the entitlement to privileged documents.

The application to convert to an action is dismissed, and the court sets out a process for determining threshold questions regarding the validity of the trusts.

A motion by a first-time bankrupt to determine preliminary legal issues regarding his discharge under the Bankruptcy and Insolvency Act.

The bankrupt argued that section 168.1 provides for automatic discharge after nine months, and that section 169(1) does not operate as an application for discharge for first-time bankrupts.

He contended that when his discharge was opposed, the procedure should follow a different pathway than the standard discharge application procedure in sections 169-176, with the onus on the trustee and creditors to prove their opposition rather than on him to prove entitlement to discharge.

The court rejected these arguments and held that the standard discharge procedure applies to opposed automatic discharges.

Eliatha Gregoriou, a bankrupt, brought motions to expunge the proof of claim and notice of opposition to her discharge filed by her former spouse, Angelo Zitella, a creditor.

The court found that Mr. Zitella failed to act in good faith throughout the bankruptcy proceedings, engaging in abusive communication, vexatious conduct, and attempts to delay matters, which increased costs and consumed judicial resources.

Relying on section 4.2 of the Bankruptcy and Insolvency Act, which requires parties to act in good faith, the court exercised its broad discretion to expunge Mr. Zitella's proof of claim and his notice of objection to Ms. Gregoriou's discharge.

This decision aims to uphold the integrity of the bankruptcy process and facilitate the bankrupt's financial rehabilitation.

Eliatha Gregoriou, a bankrupt, brought a motion under subsection 135(5) of the Bankruptcy and Insolvency Act to reduce the proof of claim filed by her former spouse, Angelo Zitella, by $17,759.07.

This amount represented funds garnished from her prior to bankruptcy.

The Trustee in Bankruptcy had declined to interfere in the matter.

The court found that the bankrupt had standing and that the Trustee had declined to interfere.

Given the evidence of the garnished funds, the court exercised its discretion to reduce the claim.

This is a costs decision following an application regarding a referral agreement between two law firms.

The respondent, who was successful on the issue of how much should be paid into court, sought and was awarded costs as a self-represented litigant.

The Bank of Nova Scotia, a creditor of the applicant, sought and was awarded full indemnity costs based on its banking agreement with the applicant.

The applicant law firm sought payment of $119,495.63 from the respondent law firm under a referral agreement, and requested that a portion of the funds be paid to its lawyers for legal fees and business expenses.

The respondent acknowledged owing $82,157.90 but sought to pay the funds into court due to claims by the applicant's creditors and an existing Mareva injunction freezing the applicant's assets.

The court found the respondent owed $82,157.90 and ordered the funds paid into court pursuant to Rule 72, dismissing the applicant's request for direct payment as an improper collateral attack on the Mareva injunction.

The applicant, Richard Sherk, brought a motion for an interim payment out of court of funds held to the credit of the action.

The respondent, Mark Sherk, opposed the motion, arguing that the funds served as a 'cushion' for potential damages he might be awarded and that further reduction would be prejudicial.

The court granted the applicant's motion, finding the respondent's arguments without merit, consistent with prior decisions and the Divisional Court's ruling that the respondent had no right to the funds as security ahead of judgment.

The defendants brought a motion under Rule 21.01(1)(a) and (b) to strike portions of the plaintiffs' Amended Amended Statement of Claim.

The claims at issue included breach of trust, misappropriation, defalcation, and relief under the Bankruptcy and Insolvency Act (BIA) and Assignments and Preferences Act (APA), as well as interim relief.

The court dismissed the motion to strike the breach of trust, misappropriation, and defalcation claims, finding they were not plainly obvious to fail.

However, claims for declaratory relief under the BIA and claims under the APA were struck as premature, as were claims relying on an unproclaimed section of the Construction Act.

The court also dismissed the defendants' request for a declaration that deposits were forfeited, deeming it a mixed question of fact and law unsuitable for determination at the pleadings stage.

Following the dismissal of the plaintiff's motion for an interlocutory injunction, the parties made written submissions on costs.

The defendants sought substantial indemnity costs of $99,920.93 based on offers to settle, while the plaintiff argued for partial indemnity costs of $15,000 plus disbursements.

The court found no justification for substantial indemnity costs as the offers to settle encompassed the entire action, not just the motion.

After adjusting hourly rates and reducing time spent on the general defence of the action, the court awarded the successful defendants partial indemnity costs fixed at $44,000 all-inclusive.

The plaintiffs, current and former female police officers, sought to certify a class action against the Waterloo Regional Police Services Board and Association for systemic gender-based discrimination and sexual harassment.

The defendants challenged the court's jurisdiction, arguing that labour arbitrators and the Human Rights Tribunal of Ontario had exclusive jurisdiction.

The court found it lacked jurisdiction, as the claims arose from the employment relationship governed by a collective agreement and the Police Services Act, which provide a comprehensive dispute resolution scheme.

Furthermore, the court determined that even if it had jurisdiction, the claims did not disclose a viable cause of action under common law, as human rights legislation precludes independent civil actions for discrimination and sexual harassment.

The applicant brought a motion for an interim payment out of court of funds held to the credit of the action following a shareholder dispute and oppression application.

The court previously ordered funds paid into court as security pending trial.

Relying on a recent Divisional Court decision upholding a similar prior interim payment, the court found the applicant was entitled to the funds under the formula established by the previous order.

The motion was granted and a payment of $392,712.50 was ordered.

The plaintiffs brought an omnibus motion for certification, settlement approval, class counsel fees, and representative plaintiff honoraria in a class action against 407 ETR.

The action alleged that 407 ETR unlawfully used the plate denial remedy against insolvent vehicle owners, contrary to the stay of proceedings under the Bankruptcy and Insolvency Act.

The court certified the action for settlement purposes and approved a settlement fund of $7,965,800, finding it fair, reasonable, and in the best interests of the class.

The court also approved class counsel's 30% contingency fee and a $10,000 honorarium for each of the three representative plaintiffs.

A proposed class action alleged that a charitable tax receipt program associated with private Christian school tuition resulted in participants being reassessed and penalized after the Canada Revenue Agency disallowed the tax credits.

The representative plaintiff moved on consent for certification for settlement purposes, approval of a settlement fund of up to $1.5 million, approval of class counsel’s contingency fee, and an honorarium.

The court reviewed the certification requirements under s. 5(1) of the Class Proceedings Act, 1992 and concluded that the criteria were met in the settlement context.

Applying established factors governing settlement approval, the court held the agreement was fair, reasonable, and in the best interests of the class.

The court also approved the requested contingency fee, disbursements, and the representative plaintiff honorarium.

In a franchise class action, the plaintiffs challenged the defendants' claims of solicitor-client privilege over certain documents and discovery refusals.

The court established seven general principles to govern the privilege claims, holding that requests for general legal information to understand rights are privileged, and that a lawyer's file compiled using professional skill is protected by work product privilege.

The court further held that pleading good faith in response to a bad faith claim does not impliedly waive privilege unless the party relies on legal advice as a material element of its defence.

The court outlined a process for the parties to apply these principles to the disputed documents and refusals ahead of a continued hearing.

The moving parties sought court approval of a proposed settlement in a certified class proceeding relating to a leveraged charitable donation tax shelter.

Participants had claimed inflated charitable tax credits based on loans and security deposits connected to the program, which were later disallowed by the Canada Revenue Agency.

The settlement provided for an $11 million payment by a defendant law firm alleged to have issued legal opinions supporting the program’s legality, with funds distributed to class members and covering counsel fees and administration.

The court applied established factors governing settlement approval in class proceedings and found the agreement fair, reasonable, and in the best interests of the class given significant litigation risks.

The court also approved class counsel fees but declined to award additional compensation to the representative plaintiffs, finding their contribution commendable but not exceptional.