Brian R. Kelly

The appellant unsecured creditor appealed a decision dismissing an appeal from a Deputy Registrar's refusal to lift a stay of proceedings under s. 69.4 of the Bankruptcy and Insolvency Act.

The Court of Appeal dismissed the appeal, finding that the Deputy Registrar had properly considered the equitable grounds to lift the stay and applied the correct test.

In a dispute arising from four leases and one rental agreement, the court determined the defendant's indebtedness after rejecting the plaintiff's calculations of buyout provisions and administrative fees and disallowing insurance charges where the defendant had proven coverage.

The court accepted the defendant's calculation of outstanding indebtedness subject to a further deduction for improper insurance charges, resulting in a net amount owing of $42,101.47.

On prejudgment interest, the court selected the date of the last payment as the date of default and enforced the contractual interest rate of 24% per annum.

Funds previously paid into court were ordered released to the plaintiff and credited against the amount owing.

The appellant, a licensed electrical contractor, appealed a decision of the review panel of the Electrical Safety Authority confirming a defect notice.

The notice was issued after the appellant disconnected and reconnected an electrical panel without authorization, allegedly violating rule 2-012 of the Ontario Electrical Safety Code.

The Divisional Court determined the standard of review was reasonableness and found the review panel's broad interpretation of the rule—requiring authorization for all disconnections regardless of method or reason—was reasonable.

The appeal was dismissed.

A creditor appealed a deputy registrar’s refusal to lift the automatic stay of proceedings under s. 69.4 of the Bankruptcy and Insolvency Act following the debtor’s bankruptcy.

The creditor argued the underlying judgment involved conduct amounting to fraudulent misrepresentation such that the debt would survive discharge under s. 178(1)(e), and that the registrar failed to consider sound reasons to lift the stay.

The court held that the registrar correctly applied the governing principles and was not required to make new findings of fraud absent such findings by the trial judge.

Because the underlying judgment contained no finding of fraud or false pretences, and lifting the stay would give the creditor an advantage inconsistent with the statutory scheme, there was no basis to interfere.

The appeal was dismissed.

Following dismissal of a motion to set aside a prior order, the successful party sought recovery of legal costs under Rule 24 of the Family Law Rules.

The court considered the Rule 24(11) factors and the costs consequences of an unaccepted Rule 18 offer to settle.

The moving party had pursued relief despite ongoing non‑compliance with financial disclosure obligations and ignored an early settlement offer.

The court found the litigation conduct unreasonable and ordered full recovery of the costs claimed.

Seventy‑five percent of the costs were characterized as relating to child support issues and were therefore enforceable by the Director of the Family Responsibility Office under the Family Law Responsibility and Support Arrears Enforcement Act, 1996.

Following the execution of an Anton Piller order in a commercial dispute, certain seized documents were identified as relating to “controlled goods” under the Defence Production Act.

The moving party sought an order declaring that the independent supervising solicitor appointed under the Anton Piller order was not required to register under Part 2 of the Defence Production Act in order to possess or examine such documents.

The Attorney General of Canada intervened and argued that the registration requirements applied.

The court held that an independent supervising solicitor appointed under the Model Anton Piller Order functions as a person employed for the execution of civil process and qualifies as a “peace officer” within the meaning of the Criminal Code for the limited purpose of the statutory exemption.

Accordingly, the solicitor was exempt from the registration requirement under s. 36 of the Defence Production Act.

A custody and child support dispute following a nine‑day trial concerning a child born in 2006 to unmarried parents.

The applicant sought sole custody and increased child support, while the respondent sought joint custody and equal week‑about parenting time.

The court addressed complex issues regarding the respondent’s income derived from numerous corporations and preferred the evidence of the respondent’s financial expert when determining income for child support purposes.

Child support was fixed at $3,750 per month based on an averaged income assessment and the child’s realistic needs, with no retroactive award given the respondent’s longstanding voluntary payments.

Joint custody was ordered with the child’s primary residence with the mother and structured parenting time for the father.

An employee brought a wrongful dismissal claim after her employment as a clinical trials coordinator was terminated without cause after more than eight years of service.

The court determined the effective working notice period was 6.5 weeks because the employer’s revised termination letter replaced the original notice, resetting the notice date.

Applying the Bardal factors, including the employee’s age (64), length of service, professional responsibilities, and limited availability of comparable employment, the court fixed reasonable notice at ten months.

The employer argued the employee failed to mitigate by not applying for hospital nursing positions, but the court held the employer failed to prove on a balance of probabilities that additional efforts would likely have resulted in higher income.

Damages were awarded after deducting mitigation income.

The applicant father brought a motion seeking joint custody and expanded access to the parties’ young child, while the respondent mother sought sole custody, supervised or suspended access, retroactive child support, interim spousal support, and transfer of the proceeding to another municipality.

The court found the parties’ affidavit evidence on allegations of abuse and parental involvement to be sharply conflicting and incapable of resolution on a motion record.

Maintaining the status quo, the court granted the mother interim sole custody pending the report of the Office of the Children's Lawyer.

The father was granted a gradual reintroduction to the child beginning with short-term supervised access at a supervised access centre before transitioning to unsupervised and then overnight parenting time.

The court declined to order retroactive child support, refused interim spousal support due to lack of demonstrated need, and dismissed the request to transfer the proceeding.

The appellant appealed a trial judgment ordering the return of the respondent's investment funds.

The appellant argued the trial was unfair because he was self-represented, that there was insufficient evidence the respondent made the advances, and that there was no legal justification for returning the investment.

The Court of Appeal dismissed the appeal, finding no unfairness in the trial process, sufficient evidence to support the trial judge's findings, and that the appellant's failure to account for the advanced funds justified the order for their return.

The defendant brought a motion for summary judgment seeking dismissal of the action against her.

The plaintiff had advanced $250,000 to a co-defendant for investment purposes and alleged losses after the funds were traded and lost.

The moving defendant was a joint holder of a bank account through which some of the funds briefly passed, but there was no evidence she participated in the transfers, trading activity, or received any benefit from the funds.

The court applied the summary judgment framework under Rule 20.04 and the “full appreciation test” from Combined Air Mechanical Services v. Flesch.

Finding no evidence supporting liability or a viable tracing claim, and determining the Fraudulent Conveyances Act claim was premature, the court held there was no genuine issue requiring a trial and dismissed the action against the moving defendant.

The applicant father brought a motion seeking regular unsupervised parenting time with the parties’ children following separation.

The respondent mother opposed overnight access and requested that the father’s contact occur only in her presence due to allegations of abusive and aggressive behaviour.

The court applied the best interests of the child test under s. 16 of the Divorce Act and considered the factors in s. 24 of the Children’s Law Reform Act.

Although the evidence included conflicting allegations and credibility concerns, child protection investigations had not identified safety risks.

The court concluded that supervision was not warranted and ordered a graduated schedule increasing the father’s parenting time leading to alternate weekends and mid‑week overnights.

The plaintiff brought an action seeking recovery of funds allegedly invested in two restaurant ventures with the defendant, asserting that the parties were equal partners and that the defendant retained proceeds and investments without accounting.

The defendant denied the existence of a partnership in the first venture and argued that the plaintiff was merely an investor in the second.

The court assessed conflicting evidence and found the defendant’s testimony unreliable, concluding that the plaintiff had invested substantial funds and that the defendant had been unjustly enriched.

The court held that the plaintiff was a partner or investor in both ventures and entitled to recover the invested amounts.

Judgment was granted for the plaintiff, subject to the Small Claims Court monetary jurisdictional limit.

Following the dismissal of a plaintiff’s motion for summary judgment, the responding defendants sought substantial indemnity costs.

The court considered Rule 20.06 of the Rules of Civil Procedure and rejected the argument that substantial indemnity costs should presumptively apply, noting the rule no longer creates such a presumption.

The court also held that the defendants’ Offer to Settle did not trigger Rule 49.10 because it lacked a genuine element of compromise and included a demand for substantial indemnity costs.

Given that the plaintiff would likely recover some damages at trial, the court determined that the most appropriate course was to reserve the costs of the motion to the trial judge for determination in the context of the overall proceeding.

In a wrongful dismissal action brought under the simplified procedure, the plaintiff moved for summary judgment seeking determination of the reasonable notice period and damages.

The court held that although reasonable notice issues may in appropriate cases be determined summarily using the Bardal factors, the case also raised a contested issue regarding whether the plaintiff reasonably mitigated her damages.

Evidence concerning the plaintiff’s job search and the availability of alternate nursing employment created a factual dispute that would benefit from oral evidence and cross‑examination.

Relying on guidance from Combined Air Mechanical Services Inc. v. Flesch regarding summary judgment in Rule 76 actions, the court found that deciding only the notice period would not promote procedural efficiency.

The motion was therefore dismissed and the matter directed to proceed toward trial.

Following a five‑day hearing on a motion to change child support, the court determined the appropriate costs award.

The responding party to the motion had unsuccessfully sought a retroactive reduction of child support after selling a dental practice and relocating abroad, and income had been imputed based on prior earnings.

The successful party sought substantial costs including partial and full indemnity rates.

Applying Rule 24 of the Family Law Rules and considering success, offers to settle, the parties’ conduct, and the complexity of the issues, the court found the successful party was entitled to costs but reduced the amount claimed.

The court fixed costs at a fair and reasonable figure rather than the full amount incurred.

The father brought a motion to change a 2000 divorce judgment, seeking to terminate child support for one child and adjust it for the other based on a reduction in his income after he sold his dental practice and moved to Honduras.

The court found the father was intentionally unemployed and under-employed, and that his health issues did not reasonably justify the sale of his practice.

The court imputed income to the father and determined the periods during which each child remained a 'child of the marriage' while pursuing post-secondary education.

The father was ordered to pay retroactive table support and his pro rata share of section 7 expenses for both children.

The self-represented moving party sought to review a single judge's decision dismissing his motion to extend the time to appeal a Small Claims Court judgment.

He argued that because he had an appeal as of right, the motions judge erred by considering the merits of the appeal.

The Divisional Court panel dismissed the motion, holding that an extension of time is an indulgence that requires the moving party to demonstrate an arguable case on the merits, regardless of whether the motion was filed before or after the deadline expired.

The appellant, a paralegal, acted as an agent for an accused in a Provincial Offences Act trial.

After the trial, the justice of the peace initiated proceedings under s. 50(3) of the Act and barred the appellant from appearing before him as an agent.

The appellant's application for certiorari was dismissed by the Superior Court.

On appeal, the appellant argued the justice of the peace lacked jurisdiction to make the order after the trial concluded and alleged a reasonable apprehension of bias.

The Court of Appeal dismissed the appeal, finding that the justice of the peace had jurisdiction under the second branch of s. 50(3), which relates to an agent's general conduct and understanding of their duties, and that there was no reasonable apprehension of bias.

The appellant appealed his conviction, arguing that the trial judge erred in assessing the credibility of a Crown witness who had given a prior inconsistent statement, and that the verdict was unreasonable.

The Court of Appeal found no error in the trial judge's review of the evidence or credibility assessment.

The court agreed with the summary conviction appeal judge that the verdict was not unreasonable, as it was open to the trial judge to accept the witness's evidence despite the prior inconsistency.

The appeal was dismissed.