W. Friedman

The defendants brought motions for summary judgment arguing that the plaintiffs' claims for malicious prosecution, negligent investigation, misfeasance in public office, and civil conspiracy were statute-barred.

The plaintiffs had successfully defended against both criminal and civil forfeiture applications brought by the state.

The court dismissed the summary judgment motions, finding that while the plaintiffs knew they had suffered damage when the criminal forfeiture application was dismissed, it was not legally appropriate for them to commence an action until the related civil forfeiture application and the appeal of the costs decision were finally resolved.

Therefore, the claims were brought within the two-year limitation period.

Following the dismissal of a motion for leave to appeal, the successful responding parties sought costs.

They submitted a joint draft bill of costs reflecting fees, disbursements, and HST, with a reduction applied for duplication of work between two law firms.

The court found the respondents entitled to costs on a partial indemnity basis and held that the draft bill appropriately reflected the Rule 57.01 factors, including the complexity of the proceeding and late amendments to the grounds of appeal.

The moving party accepted the claimed amount but requested a deduction to account for an outstanding prior costs order.

The court fixed costs accordingly after deducting the outstanding amount.

Costs decision following a motion by the Attorney General seeking a stay of an order pending a motion for leave to appeal.

The underlying order directed that more than $4 million seized in an in rem forfeiture proceeding be released to the respondents.

The court found that although the Attorney General brought the motion on very short notice, the respondents’ opposition was unreasonable given the risk that releasing the funds could render the appeal moot and cause irreparable harm by allowing the money to leave the jurisdiction.

However, the respondents should not bear costs that would have been incurred even if the motion had been brought on consent.

The court fixed partial indemnity costs payable by two respondents jointly and severally.

The Attorney General of Ontario sought leave to appeal an interlocutory order dismissing a motion for the interim preservation of over $4 million under the Civil Remedies Act.

The funds were the proceeds of the sale of a commercial property previously housing an illegal marijuana grow operation and later leased to a company involved in a stock fraud scheme.

The court found no reason to doubt the correctness of the motion judge's finding that there were no reasonable grounds to believe the property was an instrument of unlawful activity.

Leave to appeal was denied.

The Attorney General of Ontario brought a motion under the Civil Remedies Act for an order to preserve over $4 million, representing the sale proceeds of a commercial property.

The property had previously housed a massive, concealed marijuana grow operation run by tenants, and was later leased to a company involved in a U.S. stock fraud scheme.

The court found no issue estoppel from prior unsuccessful federal criminal forfeiture proceedings against the property owner.

While the court found reasonable grounds to believe the property was an instrument of unlawful activity due to the grow operation, it ultimately dismissed the preservation motion.

The court concluded that preserving the funds would clearly not be in the interests of justice, as the owner had no knowledge of or participation in the unlawful activities, making a preservation order manifestly harsh and draconian.

The applicant mortgagee brought a motion to vary a restraint order under the Controlled Drugs and Substances Act to permit the sale of the subject property under power of sale.

The Crown consented to the sale, but the respondent owner opposed it, arguing the property had increased in value and disputing the mortgagee's claimed costs.

The court granted the motion to permit the sale, directing that the net proceeds be paid to the Crown.

The court declined to approve the mortgagee's claimed costs of over $388,000, directing that those funds be held by the Crown pending an assessment under Rule 58 and the final determination of the forfeiture proceedings.

The applicant sought to vary an ex parte restraint order under the Controlled Drugs and Substances Act to allow the sale of a property that had been used as a commercial marijuana grow operation.

The applicant wanted to use the sale proceeds to pay out a first mortgage held by a credit union before remitting the balance to the Attorney General.

The Attorney General opposed the payout, arguing that the mortgagee's innocence had not been established and should be determined at a forfeiture hearing.

The court dismissed the application, finding that it would be premature to allow the payout before a full hearing under s. 20 of the CDSA.