Grillone (Re), 2024 ONCA 244

Court of Appeal for Ontario

Date: 2024-04-03 Docket: M54911, M54913 & M54921 (COA-23-CV-1202)

Before: Benotto J.A. (Motions Judge)

In the Matter of the Bankruptcy of Sergio Grillone

Bankruptcy Application under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended

Counsel: Sergio Grillone, for the respondent, acting in person (M54911, M54921) and for the moving party by way of cross-motion, acting in person (M54913) Meredith Bacal, for the moving party Bluecore Capital Inc. (M54911) and respondent by way of cross-motion (M54913) Scott K. Gfeller, for the respondent by way of cross-motion (M54913) and moving party (M54921) Daniel Loberto

Heard: March 26, 2024

Endorsement

1There are three motions before the court. To put them in context, I briefly outline the facts.

Background

2In December 2018 Bluecore Capital Inc. (“Bluecore”) loaned Mr. Grillone and his then law firm funds which totalled approximately $1.3 million. On September 29, 2021, Bluecore commenced a bankruptcy application. Following a five-day trial before Kimmel J., Mr. Grillone was adjudged a bankrupt.

3In her reasons, the trial judge detailed the litigation strategy of Mr. Grillone, which included “a multitude of objections” both procedural and substantive, and bringing motions, and launching personal and professional attacks against Bluecore and its counsel.

4Following the trial, Mr. Grillone sought to reopen the hearing to claim a mistrial because of what he referred to as counsel’s contempt of court in not properly filing a document that the trial judge had requested. The mistrial was dismissed with the trial judge finding that the failure to file was an “irregularity” that in no way prevented Mr. Grillone from presenting his case fully or from securing a fair adjudication on the merits.

5Mr. Grillone appealed the bankruptcy order and sought leave to appeal the dismissal of the mistrial application.

6Bluecore moved for an order lifting the stay of the bankruptcy and seeking security for costs. In extensive reasons, Brown J.A. said it was apparent that Mr. Grillone “wishes to replicate” his litigation strategy in this court. On December 18, 2023, Brown J.A. made the following orders:

1. The stay of the Bankruptcy Order of Kimmel J. made October 12, 2023 is cancelled;
2. Within 30 days of the date of this order, Mr. Grillone shall pay into court security for costs of the appeal fixed in the amount of $30,000, failing which Bluecore may move to dismiss the appeal; and
3. If Mr. Grillone pays such security for costs into court within 30 days of the date of this order, he must perfect his appeal within 60 days after posting of the security, failing which Bluecore may move to dismiss his appeal.

7The security for costs was not posted until February 8, 2024. [1] As of the date of this hearing, the appeal was not perfected.

8Mr. Grillone has, however: (i) sought to bring a motion in this court alleging contempt against Bluecore’s counsel in the same terms as his mistrial application; (ii) issued a summons to Bluecore’s corporate counsel (Michael Adams) to be examined under oath; (iii) issued another summons against another of Bluecore’s corporate counsel (Daniel Loberto); and (iv) served a motion to a panel of this court to vary the order of Brown J.A.

Motions Before the Court

9Three motions were before the court:

1. A motion by Bluecore for: a. An order pursuant to r. 37.16 of the Rules of Civil Procedure precluding Mr. Grillone from bringing further motions without leave. b. An order for increased security for costs. c. An order quashing the summons to counsel Mr. Adams.
2. A motion by Mr. Grillone for counsel to show cause why they should not be found in contempt.
3. A motion by Mr. Loberto to quash the summons and certificate of non-attendance issued against him.

Oral Argument

10During the course of oral submissions, Mr. Grillone:

1. Withdrew his motion to vary or review the order of Brown J.A.;
2. Consented to bring no further motions;
3. Withdrew his motion for contempt;
4. Withdrew the summons against Mr. Adams;
5. Withdrew the summons and the certificate of non-attendance he obtained against Mr. Loberto; and
6. Agreed to perfect the appeal within 10 days.

Discussion and Disposition

11I will now address the motions before me.

R. 37.16

12Notwithstanding the consent of Mr. Grillone, I am satisfied that the requested order is appropriate. Mr. Grillone has brought multiple motions, made collateral attacks on the issues in the appeal including the mistrial application, has not paid costs ordered and otherwise abused the court.

13On the basis of material filed and on the basis of Mr. Grillone’s consent, I grant the order sought by Bluecore.

Increased Security

14The request for the increased security related to the anticipated outstanding motions and court appearances which have now been withdrawn or abandoned. I do not grant increased security.

The Summons to Counsel

15This order is granted on consent and the summons with respect to Mr. Adams and Mr. Loberto are quashed. The certificate of non-attendance against Mr. Loberto is also quashed.

Additional Orders

16There will be the following additional orders:

1. Mr. Grillone will perfect the appeal within 10 days of March 28, 2024.
2. The respondent will file its factum within 30 days thereafter.
3. The costs of the motions will be as follows: a. As between Bluecore and Mr. Grillone – on consent they are adjourned to the panel hearing the appeal. b. Mr. Grillone will pay Mr Loberto costs of $1,000 inclusive of disbursements and taxes.
4. The appeal is to be expedited.

17In light of these orders, there are to be no further issues that arise before the appeal is heard. In the unlikely event that there are, I will remain seized.

“M.L. Benotto J.A.”

Footnotes

1The cheque was not certified and did not clear until February 21, 2023