Court File and Parties

Court File No.: CV-16-00550104 Date: 20181114 Ontario Superior Court of Justice

Between: ONTARIO PROFESSIONAL FIRE FIGHTER’S ASSOCIATION Plaintiff – and – PAUL ATKINSON, COLIN GRIEVE, PROFESSIONAL FIREFIGHTERS ADVOCATES INC., SHERWIN H. SHAPIRO, SHAPIRO LAWYERS PROFESSIONAL CORPORATION, FRANCES FURMANOV and FRANCES FURMANOV PARALEGAL SERVICES Defendants

And Between: PAUL ATKINSON, COLIN GRIEVE and PROFESSIONAL FIREFIGHTERS ADVOCATES INC. Plaintiffs by Counterclaim – and – ONTARIO PROFESSIONAL FIRE FIGHTER’S ASSOCIATION and CARMEN SANTORO Defendants to the Counterclaim

Counsel: Rahool Agarwal and Andrew McCoomb for the Plaintiff Gavin J. Tighe and Anna Husa, for the Defendants, Paul Atkinson, Colin Grieve and Professional Firefighters’ Advocates Inc.

Heard: In Writing

Endorsement

DIAMOND J.:

[1] For nearly 18 months, I have been the Case Management Judge assigned to this proceeding. While I have heard numerous motions brought by all parties, it now appears that scheduling examinations for discovery is finally in sight.

[2] Before that stage occurs, the plaintiff has one more substantive motion it wishes to pursue. The plaintiff is seeking an interim and interlocutory Mareva injunction against the Atkinson defendants. That motion was originally scheduled to proceed before me on December 5, 2018. Due to certain scheduling and evidentiary issues, that motion has now been rescheduled to proceed before me on February 21, 2019.

[3] A preliminary issue has arisen which requires my disposition. The plaintiff’s original motion materials included four affidavits from three individuals. Subsequent to the delivery of those four affidavits, the preliminary inquiry in the criminal proceedings commenced. To date, the preliminary inquiry has lasted 10 days, but has yet to be completed and a decision has yet to be rendered by the presiding Judge. The preliminary inquiry is scheduled to resume on November 22, 2018 when defence counsel will call their witnesses.

[4] At the outset of the preliminary inquiry, and at the request of Atkinson and Grieve, a publication ban was issued by the presiding Judge pursuant to section 539(1)(b) of the Criminal Code. As such, any evidence taken at the preliminary inquiry cannot be published in any document, or broadcasted/transmitted in any way before such time as (a) Atkinson and Grieve are either discharged, or (b) if Atkinson and Grieve are ordered to stand trial, the trial of the criminal proceedings ends.

[5] The plaintiff has now expressed its intention to rely upon the transcripts (obtained to date) from the preliminary inquiry in support of its pending motion for a Mareva injunction. Of note, two of the three affiants who gave evidence on the plaintiff’s pending motion in this proceeding also testified at the preliminary inquiry. The Atkinson defendants oppose the plaintiff’s request. I directed the parties to exchange and file written submissions for my review and consideration.

[6] For the reasons which follow, I agree with the Atkinson defendants and find that the plaintiff is not permitted to rely upon the transcripts obtained to date from the preliminary inquiry as part of its motion materials filed in this proceeding.

[7] To begin, in my view the filing of the transcripts in this civil proceeding amounts to a broadcast or transmission of the evidence taken at the preliminary inquiry, and could easily amount to a breach of the publication ban as those transcripts would be readily available to anyone wishing to review them in the court file. The plaintiff has not sought a sealing order pursuant to section 137(2) of the Courts of Justice Act R.S.O. 1990 c. C. 43, and in any event even if the plaintiff had taken such a step it is very unlikely that it could satisfy the stringent test for a sealing order set out by the Supreme Court of Canada in Sierra Club of Canada v. Canada (Minister of Finance) 2002 SCC 41.

[8] While I do agree with the plaintiff that the Atkinson defendants’ reliance upon section 23(1) of the Canada Evidence Act RSC 1995 c. C.5 is misplaced (as that legislation applies to criminal proceedings and civil proceedings for which federal Parliament has jurisdiction), I do not agree with the plaintiff that section 5(2) of the Ontario Evidence Act R.S.O. 1990 c. E. 23 assists the plaintiff in the circumstances. Specifically, I do not find the transcripts from the preliminary inquiry to be “otherwise admissible by law.” I do not believe the plaintiff can simply rely upon the contents of Rule 39.01(4) of the Rules of Civil Procedure to claim that the transcripts will not amount to hearsay due to them being filed in an affidavit based upon information and belief. It is trite to state that the test for a Mareva injunction is an onerous one, and very rarely (if at all) granted upon the filing of hearsay evidence. The plaintiff could just as easily secure the evidence of the witnesses who testified at the preliminary inquiry by way of examinations in this proceeding pursuant to Rule 39.03(1). Such an approach would not only elicit direct evidence from those witnesses, but also allow them to be cross-examined on their evidence in this proceeding.

[9] I also do not find the purpose for which the evidence was tendered in the preliminary inquiry to be the same as the purpose for which the plaintiff seeks to use the transcripts on its motion for a Mareva injunction. The plaintiff argues that as the first part of the test for a Mareva injunction (i.e. whether the plaintiff has a strong prima facie case) is similar to the onus placed upon the Crown at a preliminary inquiry to demonstrate that there is sufficient evidence to commit Atkinson and Grieve to trial, there is thus no prejudice to the Atkinson defendants by the filing of the transcripts in this proceeding. I do not agree. While the two tests may have some similarities, they are certainly not the same. In addition, there are two other parts to the test for a Mareva injunction, and neither of those parts were live in the preliminary inquiry, and thus not cross-examined upon by defence counsel. Accordingly, I find the presence of actual prejudice to the Atkinson defendants.

[10] I am reserving the costs of this decision to me as the Case Management Judge hearing the plaintiff’s motion for a Mareva injunction. If counsel encounter any difficulty with the scheduling of the remaining steps leading up to the hearing, they may contact my assistant to arrange another case conference.

Diamond J. Released: November 14, 2018