Mike Morris

In an addendum to a previous decision on a motion to stay proceedings, the court reconsidered its ruling regarding the qualification of a forensic accountant employed by the Ontario Securities Commission.

Relying on recent appellate jurisprudence, the court reversed its prior finding that the witness had to be qualified as an expert.

The court held that the accountant could testify as a fact witness regarding the movement of funds, provided no opinion evidence was proffered.

The applicants, charged with fraud over $5,000 in relation to an alleged Ponzi scheme, brought a pre-trial motion seeking a stay of proceedings based on an abuse of process.

They argued that the charges were barred by issue estoppel due to a prior settlement with the Ontario Securities Commission, and alleged state misconduct including pre-charge delay and breaches of solicitor-client privilege.

The court dismissed the motion, finding that the OSC settlement explicitly excluded fraud, the pre-charge delay was justified by the complexity of the investigation, and the handling of potentially privileged documents did not prejudice the applicants' right to a fair trial.

Additionally, the court ruled that a forensic accountant retained by the police could not testify merely as a fact witness, but must be qualified as an expert witness at trial.