Docket: T-740-25
Citation: 2026 FC 1128
Toronto, Ontario, September 4, 2026
PRESENT: The Honourable Mr. Justice A. Grant
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BETWEEN:
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SERGIO GRILLONE
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Applicant
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and
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B RILEY FARBER INC.
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Respondent
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REASONS AND JUDGMENT
I. OVERVIEW
[1] Mr. Sergio Grillone brings this motion under Rule 51 of the Federal Courts Rules, SOR/98-106 [the Rules], to appeal a decision of Case Management Judge John Cotter. In that decision, Judge Cotter granted the Respondent’s motion to strike Mr. Grillone’s application, without leave to amend. The consequence of this determination was that Mr. Grillone’s application was dismissed.
[2] Mr. Grillone also requires an extension of time to pursue this appeal, as he missed the filing deadline set out at Rule 51(2) of the Rules.
[3] Having considered the parties’ written materials and having heard their oral submissions by videoconference on July 14, 2026, I am satisfied that this appeal ought to be dismissed.
II. BACKGROUND
A. Facts
[4] Mr. Grillone is an experienced lawyer, although he is not presently licenced to practice law. In 2023, he was adjudged bankrupt. The Respondent in this matter, B. Riley Farber [the “Trustee”
], was appointed to administer his estate.
[5] Since that time, Mr. Grillone has put his litigation skills to significant use on his own behalf. In the Ontario courts, Mr. Grillone has been declared a vexatious litigant for the purposes of section 140 of the Courts of Justice Act, RSO 1990, c C.43.
[6] In the course of challenging the bankruptcy order, Mr. Grillone also wrote to The Office of the Superintendent of Bankruptcy [“OSB”
] to complain about the Trustee’s administration of his estate.
[7] On January 31, 2025, the Superintendent informed Mr. Grillone that his complaints against the Trustee would not be pursued and the file had been closed. This correspondence formed the basis for the application for judicial review that Mr. Grillone has brought before this Court.
B. Procedural History
[8] In his application for judicial review, Mr. Grillone requested the following substantive relief:
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1)An order quashing the decision of the OSB refusing to investigate and take action regarding the alleged misconduct of the Trustee in the Applicant’s bankruptcy proceeding.
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2)A declaration that the OSB acted unreasonably and breached procedural fairness in failing to address the Applicant’s complaint.
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3)A mandamus order directing the OSB to investigate and take appropriate action regarding the Trustee’s allegedly improper conduct.
[9] Initially, Mr. Grillone named the OSB as the respondent in this matter. However, on April 9, 2025, Associate Judge Trent Horne granted the Attorney General’s motion in writing to remove the OSB as respondent and to add the Trustee as respondent to the application. A Rule 51 appeal of that decision was dismissed by Justice Lobat Sadrehashemi on October 15, 2025.
[10] In November 2025, the Trustee brought a motion to strike the application. In the alternative, the Trustee also requested security for costs. On April 13, 2026, Associate Judge Cotter granted the Trustee’s motion, finding that the Federal Court did not have jurisdiction to hear Mr. Grillone’s application. The notice of application was therefore struck without leave to amend, and the proceeding was dismissed. As a result of this finding, Judge Cotter declined to consider the Trustee’s alternative request for security for costs.
C. The Decision Under Appeal
[11] In granting the Trustee’s motion, Judge Cotter first noted that, while there is no specific rule in the Rules providing for a motion to strike a notice of application, such authority may be found in the Court’s plenary jurisdiction to restrain the misuse or abuse of the court’s processes.
[12] With this as a departure point, Judge Cotter applied the test applicable to motions to strike. That is, assuming the facts set out in the application were true, Judge Cotter turned his mind to whether the Application was “so clearly improper as to be bereft of any possibility of success”
: JP Morgan Asset Management (Canada) Inc v Canada (National Revenue), 2013 FCA 250 at para 47.
[13] Turning from the test associated with motions to strike, Judge Cotter then considered whether the Court had jurisdiction to hear Mr. Grillone’s application. Having regard to the Court’s jurisdiction under the Federal Courts Act, RSC 1985, c F-7, and the Bankruptcy and Insolvency Act, RSC 1985, c B-3 [BIA] Judge Cotter determined that the Federal Court does not have jurisdiction over an application for judicial review of the Superintendent’s decision not to make or cause an inquiry or investigation into the conduct of a trustee.
[14] Given his finding that the Court does not have jurisdiction to hear Mr. Grillone’s application, Judge Cotter struck the notice of application without leave to amend and dismissed the proceeding because the jurisdictional defect could not be cured by amendment.
[15] Having granted its motion, Judge Cotter also awarded the Trustee costs of the motion in the amount of $1,600, payable by Mr. Grillone no later than May 13, 2026. To date, Mr. Grillone has not paid the costs award to the Trustee.
III. ISSUES
[16] This motion raises two issues:
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1)Whether Mr. Grillone should be granted the extension of time required to bring his motion.
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2)If an extension of time is granted, whether the Associate Judge made any reviewable error in striking the application for lack of jurisdiction.
IV. STANDARD OF REVIEW
[17] The standard of review for a discretionary decision by an Associate Judge is correctness for questions of law and mixed law and fact, and palpable and overriding error for factual findings: Canada (Attorney General) v Iris Technologies Inc., 2021 FCA 244 at para 33; Hospira Healthcare Corporation v Kennedy Institute of Rheumatology, 2016 FCA 215 at paras 64-65.
V. ANALYSIS
A. Extension of Time
[18] Mr. Grillone initially attempted to appeal Judge Cotter’s decision to the Federal Court of Appeal. Upon being informed by the Court’s registry that this was not the correct procedural route, Mr. Grillone filed this motion, but by the time he did this he had missed the applicable deadline.
[19] Without considering the test for an extension of time in any detail, I am satisfied that Mr. Grillone has demonstrated that he has a continuing intention to pursue this matter. In the circumstances, I prefer to consider the matter on its merits.
B. The Associate Judge’s Decision Reveals No Reviewable Errors
(1) The Associate Judge Applied the Correct Test on a Motion to Strike
[20] Mr. Grillone argues that his application should not have been struck because he has raised a novel legal issue which should be considered by the Court on the basis of a full evidentiary record. In making this argument, Mr. Grillone essentially argues that Judge Cotter erred in determining that his application was doomed to fail. I disagree.
[21] There is no indication in Judge Cotter’s decision that he failed to apprehend the applicable test on a motion to strike. He properly recognized that the jurisdictional question was a threshold one: if the Court does not have jurisdiction to consider the kind of application that the Applicant pursues, the application is bereft of any possibility of success. At root, Mr. Grillone takes issue with Judge Cotter’s assessment of jurisdiction, rather than his application of the applicable test on a motion to strike.
(2) The Associate Judge Correctly Considered the Jurisdictional Question
[22] Turning to the jurisdictional question, I similarly see no error in Judge Cotter’s reasons.
[23] The thrust of Mr. Grillone’s argument is that the Federal Court does have jurisdiction to consider his application because, at its core, it is a judicial review of a decision of a federal board, commission, or tribunal, which falls squarely within the Court’s jurisdiction under sections 18 and 18.1 of the Federal Courts Act. More specifically, Mr. Grillone alleges that, in refusing to pursue his complaint, the OSB failed to discharge responsibilities imposed by the BIA and failed to properly investigate allegations concerning the conduct of a Licensed Insolvency Trustee, which it is statutorily required to do.
[24] If stakeholders are permitted to make complaints to a federal authority such as the OSB, Mr. Grillone continues, they are also entitled to a response to that complaint, and if they are dissatisfied with that response, the appropriate remedial course is an application for judicial review before the Federal Court. In failing to recognize this, Mr. Grillone argues that Judge Cotter’s decision is tainted by error.
[25] Once again, I disagree. While there is a superficial logic to Mr. Grillone’s position, it is incompatible with the statutory and jurisdictional framework established under the BIA. As the Respondent notes, the general provisions of the Federal Courts Act cannot confer jurisdiction on the Federal Court in cases where federal legislation confers jurisdiction on a provincial court, unless the Federal Court is expressly empowered under that particular legislation. Subsection 17(6) of the Federal Courts Act provides as follows:
17(6) If an Act of Parliament confers jurisdiction in respect of a matter on a court constituted or established by or under a law of a province, the Federal Court has no jurisdiction to entertain any proceeding in respect of the same matter unless the Act expressly confers that jurisdiction on that court.
[26] The BIA is a federal statute and a complete, comprehensive code for bankruptcy and insolvency matters: Edell v Canada (Revenue Agency), 2008 FC 1306 [Edell] at paras 28-30 (appeal allowed on other grounds but not on this point, 2010 FCA 26 at para 7). With one exception, which I will set out below, the BIA confers jurisdiction over all bankruptcy matters on provincial superior courts. Section 183 of the BIA states:
183(1) The following courts are invested with such jurisdiction at law and in equity as will enable them to exercise original, auxiliary and ancillary jurisdiction in bankruptcy and in other proceedings authorized by this Act during their respective terms, as they are now, or may be hereafter, held, and in vacation and in chambers:
(a) in the Province of Ontario, the Superior Court of Justice […]
[27] Of note, subsection 183(1) of the BIA does not confer any jurisdiction on the Federal Court. For matters arising in Ontario, then, the combined effect of subsection 17(6) of the Federal Courts Act and section 183 of the BIA is that bankruptcy and other proceedings authorized by the BIA are generally to be pursued in the Ontario Superior Courts.
[28] As noted above, there is one exception to this approach, which is set out at subsections 14.02(4) and (5) of the BIA, relating to trustee disciplinary hearings. However, it is clear from the facts alleged in the notice of application, and from Mr. Grillone’s own assertion, that subsections 14.02(4) and (5) of the BIA do not apply in this case.
[29] Rather, in complaining to the Superintendent about the Trustee, Mr. Grillone implicitly invoked section 5 of the BIA, and specifically paragraphs 5(3)(e) and (f), which provide that the Superintendent shall:
(e) from time to time, make or cause to be made any inquiry or investigation of estates or other matters to which this Act applies, including the conduct of a trustee or a trustee acting as a receiver, within the meaning of subsection 243(2), or as an interim receiver, that the Superintendent considers appropriate, and for the purpose of the inquiry or investigation the Superintendent or any person appointed by the Superintendent for the purpose shall have access to and the right to examine and make copies of all books, records, data, including data in electronic form, documents and papers, that are relevant to an inquiry or investigation pertaining or relating to any estate or other matter to which this Act applies;
(f) receive and keep a record of all complaints from any creditor or other person interested in any estate and make such specific investigations with regard to such complaints as the Superintendent may determine; and
[30] I am not convinced that the Associate Judge erred in concluding that Mr. Grillone’s unsuccessful attempt to invoke the above provisions triggers the jurisdiction of the Federal Court. As this Court noted at para 29 of the Edell decision, the “sole jurisdictional exception carved out for the Federal Court is that of judicial review of a decision of the Superintendent made in respect of a disciplinary hearing into the conduct of a trustee.”
[31] Fundamentally, it is clear that Mr. Grillone is dissatisfied with the proceedings before the Ontario courts and is attempting to do indirectly what he cannot do directly: that is, to litigate his dissatisfaction before the Federal Court. In the present circumstances, neither the BIA, nor the Federal Courts Act permit this course of action. In the end, I cannot improve on the words of the Associate Judge in this matter, who stated (at para 17):
Having regard to section 17(6) of the Federal Courts Act in tandem with sections 5, 14.02(5), and 183(1)(a) of the BIA, the Federal Court does not have jurisdiction in respect of an application for judicial review of a decision of the Superintendent not to make or cause an inquiry or investigation into the conduct of a trustee (Re Fantasy Construction Ltd. (Bankrupt), 2007 ABQB 502 at paras 40-42, 47-51; Edell v Canada (Revenue Agency), 2008 FC 1306 at paras 27-30, rev’d in part on other grounds but confirming the Superintendent and trustee must be removed as defendants, 2010 FCA 26 at para 7).
[32] I would finally note that this result aligns with the recent decision of Justice Negar Azmudeh in Green v Canada (Attorney General), 2026 FC 685 [Green], which concerned an application for judicial review by this Court of a decision by the Indian Registrar. The Registrar, like the Superintendent, is empowered by a federal statute (the Indian Act, RSC 1985, c I-5) that nevertheless grants a right of appeal to the provincial superior courts (section 14.3(5)). Justice Azmudeh held that this specific conferral of jurisdiction to the provincial superior courts was enough to take away the Federal Court’s jurisdiction, by operation of section 17(6) of the Federal Courts Act. This is the same principle that dooms Mr. Grillone’s application.
(3) The Associate Judge did not err in deciding the matter under Rule 221 of the Federal Courts Rules
[33] Mr. Grillone further argues that the Associate Judge “improperly determined disputed jurisdictional questions on a Rule 221 motion to strike.”
This is simply incorrect. First, Associate Judge Cotter did not consider this matter under Rule 221, which relates to actions rather than applications. Instead, and as discussed above, he noted that the Court’s jurisdiction to hear a motion to strike an application is derived from the Court’s plenary jurisdiction to restrain the misuse or abuse of the court’s processes. There is no error in this conclusion. There is also no authority for Mr. Grillone’s suggestion that it is inappropriate to consider “disputed jurisdictional questions”
on a motion to strike. On the contrary, it is entirely appropriate to strike out a notice of application that fails to properly invoke the jurisdiction of the court.
(4) The Associate Judge did not fail to consider whether the Notice of Application could be amended
[34] Next, Mr. Grillone argues that the Associate Judge failed to consider whether his pleading could be amended before striking it in its entirety. I disagree. Once again, the Associate Judge’s determination was based on a threshold jurisdictional finding. Having found no error in this determination, there is correspondingly no error in the conclusion that the application was fatally flawed and could not be amended to cure the jurisdictional deficiencies.
(5) The Associate Judge did not err in failing to consider the Applicant’s claims for mandamus and declaratory relief
[35] Finally, Mr. Grillone argues that the Associate Judge erred in failing to consider the Applicant’s claims for mandamus and declaratory relief. This argument is entirely without merit, given the Associate Judge’s jurisdictional findings. Indeed, it would have been inappropriate to consider these other claims, given that they were all anchored in the same confusion over the Court’s jurisdiction.
(6) Costs
[36] Associate Judge Cotter awarded the Trustee costs, which he fixed in the amount of $1,600, to be paid by Mr. Grillone. It is my understanding that, to date, these costs remain unpaid. I also note that Mr. Grillone appears to have disregarded costs orders against him in the Ontario Courts: Bankruptcy of Sergio Grillone, 2025 ONSC 1259 at paras 56-58.
[37] I understand that Mr. Grillone is an undischarged bankrupt. This fact alone, however, does not disentitle the Trustee from an award of costs given its success on this motion. In the circumstances, I will fix costs in the all-inclusive amount of $1,000, which is to be paid forthwith, and in addition to the costs already ordered by Justice Cotter in his April 13, 2026 Order.
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