Michael Kohl

The accused, charged with fraud and theft relating to real estate investments, brought an application to stay the proceedings as an abuse of process and subpoenaed Crown counsel and civil litigators.

The Crown brought a motion to summarily dismiss the abuse of process application on the basis that it had no reasonable prospect of success, and applications were brought to quash the subpoenas.

The court analyzed the six grounds of alleged abuse of process, including claims of compelled self-incrimination, improper coordination between civil and criminal proceedings, and lack of independent police investigation.

The court found all grounds to be speculative, factually misconceived, or legally unfounded.

Applying the Cody and Babos tests, the court summarily dismissed the abuse of process application and quashed the subpoenas.

The Bernstein Defendants brought a motion seeking to dismiss the crossclaim of Norma Walton and Ronauld Walton (the "Waltons") for damages due to their failure to pay a $32,000 costs award.

Alternatively, they sought to stay the crossclaim until costs were paid and the Waltons posted $200,000 security for costs.

The court ordered the Waltons to pay the outstanding $32,000 costs plus an additional $12,000 for the current motion within 60 days, failing which their crossclaim for damages would be dismissed.

If these costs were paid, the Waltons were then required to post $200,000 security for costs for their damages crossclaim within another 60 days, failing which it would also be dismissed.

The Waltons' claims for contribution and indemnity were permitted to proceed irrespective of these conditions.