Scott K. Gfeller

This endorsement from the Ontario Court of Appeal addresses three motions within the ongoing bankruptcy appeal of Sergio Grillone.

Bluecore Capital Inc. sought an order precluding Mr. Grillone from bringing further motions without leave, increased security for costs, and to quash a summons.

Mr. Grillone brought a cross-motion for contempt and sought to vary a previous order.

Daniel Loberto sought to quash a summons.

During oral arguments, Mr. Grillone withdrew most of his motions and summonses.

The court granted Bluecore's request to preclude Mr. Grillone from bringing further motions without leave under Rule 37.16 due to his history of multiple motions, collateral attacks, and abuse of process.

The request for increased security for costs was denied as the related motions were withdrawn.

The summonses to counsel were quashed by consent.

The court ordered Mr. Grillone to perfect his appeal within 10 days and expedited the appeal.

The appellant's action for breach of fiduciary duty and negligence against real estate agents was dismissed on summary judgment due to being commenced outside the two-year limitation period.

The appellant argued she did not discover the material facts until later.

The Court of Appeal upheld the motion judge's decision, affirming that the discoverability period begins when the plaintiff knows or ought to have known the material facts, not the legal conclusion.

The court noted the appellant had previously pleaded the agents were her agents in a prior action, indicating knowledge of the material facts.

The appeal was dismissed with costs.

The defendants moved for summary judgment to dismiss the plaintiff's action for breach of fiduciary duty and negligence, arguing it was brought beyond the two-year limitation period.

The plaintiff contended the claim was discoverable later due to alleged fraudulent concealment of the defendants' agency status.

The court found the plaintiff knew or ought to have known the material facts earlier, as evidenced by her pleadings in a prior related action.

The court dismissed the action as limitation barred, emphasizing that knowledge of material facts, not legal conclusions, triggers the limitation period.

The appellant, executor of an estate, appealed a summary judgment dismissing a claim against a brokerage for damages arising from a margin account sell-out.

The Court of Appeal upheld the summary judgment, finding that the brokerage had provided clear warnings about the undermargined accounts and its right to sell out, and that the action was not too complicated for summary judgment.

The defendant lawyer moved to strike the plaintiff's professional negligence claim.

The plaintiff alleged the lawyer was negligent in a prior unsuccessful lawsuit against a bank for failing to adduce expert evidence on the duty of care.

The court granted the motion to strike, finding that the prior courts had definitively ruled the bank owed no duty of care based on the contract, making the negligence claim an improper collateral attack on those decisions.

The claim was struck with leave to amend to plead claims not predicated on the prior decisions being incorrect.

The defendants sought to dismiss two actions brought by the self-represented plaintiff under Rule 2.1.01 as frivolous, vexatious, or an abuse of process.

The actions involved allegations of improper disclosure of medical information and forged consent, which had already been conclusively dismissed in a prior summary judgment motion.

The court found that the new actions were an attempt to relitigate the same issues, constituting an improper collateral attack and res judicata.

The actions were dismissed as an abuse of process.

The moving party Plaintiffs ("AFEX") sought a continuation of an ex parte Mareva injunction against the Defendants (MBM Trading, Mendel Streicher, and Emmeco Inc.).

AFEX's claim arose from six USD wire transactions totaling over $845,000 that were initiated by MBM but subsequently rejected by MBM's financial institutions due to insufficient funds or frozen accounts.

The court found a strong prima facie case of fraud, inferring that Streicher knew or was wilfully blind to the frozen status of his accounts when initiating the transactions.

The court rejected the Defendants' arguments regarding jurisdiction and the absence of a signed account agreement, finding that the parties' conduct implied an agreement to Ontario jurisdiction and that a mediation clause did not preclude urgent interlocutory relief.

The court also found a serious risk of asset dissipation, noting Streicher's lack of transparency regarding the use of AFEX funds and his rapid repayment of other creditors.

The Mareva injunction was continued, and the MBM Defendants were ordered to provide a sworn statement of worldwide assets and submit to examinations.

The defendant, TD Waterhouse Canada Inc., brought a motion for summary judgment to dismiss the plaintiff's action.

The plaintiff, Zhe Chen, alleged negligence by TD Waterhouse regarding margin account management, foreign exchange losses, trading restrictions, and incorrect tax reporting (T-5008 forms) which led to an erroneous CRA assessment.

The court found that the contractual agreements entitled TD Waterhouse to manage accounts as it did, without notice, and that there was no misrepresentation or breach of good faith.

Regarding the tax issue, while TD Waterhouse may have breached a statutory duty by not filling in cost information on T-5008 forms, it provided a CRA-approved T-5008 Summary with all necessary information.

The court found no basis to establish a duty of care for the foreseeable harm caused by the plaintiff's accountant's bad advice or the plaintiff's failure to file tax returns.

The motion for summary judgment was granted, dismissing the action.

The defendants brought a motion to dismiss the action for delay under Rule 24.01(1) of the Rules of Civil Procedure, citing the plaintiffs' two years of inaction and failure to respond to correspondence.

The plaintiffs argued the defendants were in default for not delivering affidavits of documents and offered an explanation for their delay.

The court found the defendants were not in default due to rule amendments and rejected the plaintiffs' explanation as incredible.

However, the court declined to dismiss the action, noting that "contumelious" delay typically requires serial violations of court orders, which was not present.

The motions were dismissed without prejudice, but the plaintiffs were ordered to pay $11,000 in costs to the defendants and to deliver their affidavit of documents within 30 days, with defendants to follow 30 days thereafter.

This action arose from a real estate transaction oversight where the Mundenchiras inadvertently received title to both halves of a subdivided property instead of just the one they purchased.

The Mundenchiras, as plaintiffs by cross-claim, sued their lawyer, Mr. Suvendu Goswami, for negligence and sought substantial damages for business losses, property value reduction, carrying costs, and mental distress.

The court found that Mr. Goswami breached his duty of care by failing to ensure good marketable title.

However, most of the Mundenchiras' damage claims were dismissed as not reasonably foreseeable or factually unproven, particularly those related to speculative secondary transactions.

The court only awarded a refund of a $5,000 retainer paid to Mr. Goswami to rectify the title error.

Raymond James Ltd. (RJL) successfully obtained summary judgment against Jayanth Noronha for a forgivable loan and dismissal of his $2.0 million counterclaim.

RJL sought costs on a full indemnity basis, relying on an indemnification clause in the Agency Agreement and Noronha's unsubstantiated allegations of bad faith.

The court awarded RJL full indemnity costs of $93,403.10, finding the indemnification clause valid and Noronha's conduct prolonged the litigation, making the requested costs reasonable and fair.

The plaintiff investment dealer, Raymond James Ltd. (RJL), terminated its agency agreement with the defendant investment advisor, Jayanth Noronha, after discovering he was involved in off-book investments and using personal email for business, contravening RJL's compliance manual and IIROC rules.

Upon termination, the outstanding balance of a forgivable loan to Noronha became immediately due.

RJL sued for this balance, while Noronha counterclaimed for wrongful termination and breach of good faith, alleging RJL sought to misappropriate his book of business.

The Investment Industry Regulatory Organization of Canada (IIROC) subsequently found Noronha guilty of multiple rule violations, including off-book trading, undisclosed remuneration, conflict of interest, and deleting email records, leading to a lifetime ban.

RJL moved for summary judgment.

The court found no genuine issue for trial, holding that the loan was contractually due upon termination, and Noronha's termination was justified by his regulatory breaches, not a pretext to seize his client base.

The IIROC findings further confirmed the validity of RJL's actions.

The motion for summary judgment was granted, allowing RJL's claim and dismissing Noronha's counterclaim.

The appellant appealed a summary judgment decision dismissing her claims against Minto Group Inc. (her penthouse landlord) and Fasken Martineau DuMoulin LLP (her lawyers).

The appellant had been defrauded by a man she met online who misrepresented his age, wealth, and background.

She sought damages from various parties, alleging they failed to protect her from the fraudster.

The Court of Appeal upheld the summary judgment, finding that the appellant's claims against both Minto and Faskens lacked merit.

Against Minto, the court found no genuine issue requiring trial on claims for intrusion upon seclusion, breach of contract, negligence, negligent misrepresentation, or infliction of mental distress.

Against Faskens, the court found that the lawyer had no obligation to conduct background investigations on the appellant's fiancé absent explicit instructions, and that the scope of the retainer did not include such duties.

The plaintiff was defrauded by her spouse, who she met online.

She sued her former landlord (Minto) and her former law firm (Faskens), alleging they had a duty to protect her by warning her of her spouse's fraudulent background.

Minto had conducted a credit check on the plaintiff without her explicit consent when her spouse applied for a lease.

Faskens had been retained for estate planning prior to the marriage.

Both defendants brought motions for summary judgment.

The Superior Court of Justice granted the motions and dismissed the claims against both defendants, finding that neither the landlord nor the law firm owed a duty to investigate the spouse or protect the plaintiff from his fraud.

The defendant, Jameson Bank, successfully moved for summary judgment and opposed the plaintiff's motion to amend the statement of claim and add new defendants.

Jameson Bank sought costs on a partial indemnity basis up to its offer to settle date (September 11, 2014) and substantial indemnity thereafter, totaling $132,790.43.

The plaintiff, Yunsheng Du, argued for limited costs of $10,000, citing his partial success on the amendment motion and the defendant's unreasonable conduct and excessive rates.

The court found the plaintiff's litigation approach disproportionate and unnecessarily complicated, noting serious but unfounded allegations.

While the plaintiff's conduct was unreasonable, it was not egregious enough to warrant substantial indemnity costs.

The court awarded the defendant partial indemnity costs of $95,495.91, inclusive of HST and disbursements, finding the claimed rates and time spent reasonable given the complexity caused by the plaintiff's actions and counsel's experience.

The applicant sought enforcement of minutes of settlement reached during court‑mandated mediation in a wrongful dismissal action.

The settlement required the respondents to pay $18,500, including a portion payable directly to Human Resources and Skills Development Canada to cover employment insurance overpayment.

After paying an initial instalment, the respondents repudiated the agreement and refused to complete the settlement.

The court held that the signed minutes of settlement constituted a legally binding agreement and that the essential terms were clear and agreed upon while both parties were represented by counsel.

Applying the principles governing enforcement of settlements under Rule 49.09 of the Rules of Civil Procedure, the court enforced the agreement and granted judgment for the outstanding settlement balance.