Matthew G. Moloci

The moving party sought leave to appeal an order transferring a matter from the Family Law Team to the Civil Law Team in Toronto.

The Divisional Court dismissed the motion, finding that while there was good reason to doubt the motion judge's finding on jurisdiction, the decision to have the matter addressed by the Civil Law Team was an exercise of administrative discretion that did not raise a matter of such importance to warrant leave to appeal.

The court considered whether to stay or dismiss a proposed contempt motion and a civil fraud action brought by a self-represented litigant under Rule 2.1 of the Rules of Civil Procedure.

The responding parties asserted that both proceedings were frivolous, vexatious, and an abuse of the court's process, as they targeted steps taken in the normal course of bankruptcy proceedings.

The litigant failed to provide a substantive response to the court's Form 2.1B notices, instead sending emails containing unsubstantiated allegations of criminal activity against various judicial and legal actors.

Kimmel J. found that both the fraud action and the contempt motion were entirely devoid of particulars and failed to disclose any reasonable cause of action.

Consequently, the court dismissed the fraud action in its entirety and prohibited the litigant from filing further motions in the bankruptcy proceeding without leave.

The appellant, Angelo Giuseppe Zitella, appealed a decision of the Registrar in Bankruptcy that expunged his proof of claim and notice of objection to the discharge of the bankrupt, Eliatha Gregoriou, for failing to act in good faith.

The bankrupt brought a preliminary motion to strike the appeal because it was filed outside the statutory ten-day limit without an extension request.

The court struck the notice of appeal as a nullity due to its late filing and the appellant's ongoing egregious conduct, which included unauthorized audio recordings of court proceedings.

Alternatively, the court held that the appeal would be dismissed on its merits because the appellant failed to identify any palpable and overriding errors in the Registrar's decision.

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.

The appellants appealed a trial judgment and costs decision resulting from four consolidated actions related to a construction project.

The appellants argued the trial judge erred by admitting hearsay evidence (trucking invoices and dump tickets) without requiring the truck drivers to testify, and by misapprehending evidence regarding soil quality and excavation.

The Divisional Court dismissed the appeal, finding the trial judge properly admitted the documents under the principled approach to hearsay through viva voce testimony, especially since the appellants had not objected at trial and had taken an 'all or nothing' approach by alleging fraud.

The court also found no palpable and overriding error in the trial judge's factual findings regarding the poor soil conditions and the necessity of trucking soil offsite.

The appeal regarding the apportionment of storage costs for a Ferrari given as compensation was also dismissed.

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 defendants brought a motion for leave to appeal an order made by Madam Justice L.C. Sheard on April 6, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the plaintiffs in the amount of $4,000.

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 sought to appoint a receiver over the respondents and approve a stalking horse sale process for their jointly owned properties.

A third party, NASG, opposed the vesting orders, claiming a constructive trust over the properties due to alleged scrap metal theft.

The court found NASG's contingent claim did not prevent a vesting order, as monetary damages would be adequate and the receiver would hold net sale proceeds.

However, the court refused to approve the stalking horse agreement because the proposed $500,000 break fee and $150,000 overbid fee were excessive and unjustified.

The court appointed the receiver but required the applicant to revise the sale process.

In a proposed class action alleging systemic gender-based discrimination and sexual harassment within the Waterloo Regional Police Service, the parties brought several pre-certification motions.

The plaintiffs' motions to compel answers to questions refused on cross-examination by the Chief of Police and the Association President were dismissed.

The defendants' motions to strike the plaintiffs' expert evidence and portions of the plaintiffs' affidavits were deemed premature and deferred to the certification motion, though the expert opinion portion of the report was excluded.

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.