Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: BRENT LAMPTEY, DANIELLE BLAIS, GIUSEPPE (JOE) BATTISTI, MARCELLO BATTISTI, RICHARD HART, DR. BRENT LAMPTEY MEDICINE PROFESSIONAL CORPORATION, DR. CHRISTOPHER MCLAUGHLIN MEDICINE PROFESSIONAL CORPORATION and DANIELLE BLAIS INTERIOR DESIGN GROUP INC.
Plaintiffs
AND:
SUSKE CAPITAL, AVENIR MEMORY CARE LOS ANGELES LP, AVENIR SENIOR LIVING, STEPHEN SUSKE, AVENIR HOLDINGS LIMITED, AVENIR RETIREMENT HOLDINGS INC. and DAVID LESLIE CRAIK
Defendants
BEFORE: Justice Sean Dunphy
COUNSEL: John Mather & Corey Groper, for the Plaintiffs Giuseppe Battisti, Danielle Blais, Richard Hart
Melvyn Solomon, Christopher Staples & Oren Chaimovitch, for the Defendants Stephen Suske, Avenir and David Leslie Craik
Kyle Harris, for the Trustee
HEARD: May 20, 2026
ENDORSEMENT
Background
1On March 13, 2026, J. Dietrich J. issued an interim order in this application for a “Mareva” injunction. The interim order froze certain assets and set a timetable for the filing of materials and the conduct of cross-examinations leading to a hearing date for the injunction to be scheduled for some time after June 9.
2Meanwhile, two of the named defendants – Stephen Suske and Suske Capital Inc. – had been separately named as respondents to separate applications for a bankruptcy order by Royal Bank of Canada. Neither debtor filed an objection to the Bank’s application. On May 11, 2026, Associate Justice Rappos issued a bankruptcy order against each defendant finding that the applications of the Bank had been properly served and the pre-requisites for a bankruptcy order had been established without contest from the relevant debtor.
3Upon the issuance of a bankruptcy order, two things happened. First, all of the property of the bankrupt vested in the trustee in bankruptcy named (Harris & Partners). Second, all proceedings against each bankrupt were subject to an immediate stay of proceedings. Since both newly-named bankrupts were party defendants to the claim in which the Mareva injunction was being sought, the two bankruptcy orders threw something of a spanner into the works of the court-ordered timetable ordered prior to May 11.
4Mr. Solomon represented Mr. Suske and the eponymous corporation in the civil suit. He initially filed an appeal of the bankruptcy orders in the mistaken belief that appeal lay under s. 193 of the Bankruptcy and Insolvency Act to the Court of Appeal and that doing so created an automatic stay of the bankruptcy orders pursuant to s. 193.
5That is not the case. Mr. Solomon subsequently altered the form of his notice to re-direct it to a judge of the Superior Court.
6Both bankruptcy orders were made on May 11, 2026 by the Associate Justice pursuant to s. 192(1)(a) of the BIA. There can be no question that the Associate Justice had jurisdiction to make the orders that he made on that day. The appropriate application materials had been filed and served along with affidavits of service. The applications each attached copies of a judgement of the Superior Court of Ontario that had not been satisfied for more than a year (each for approximately $180,000 plus interest) beyond only a small payment made in October 2025 as well as a copy of the formal demand letter sent to the debtors sent without reply.
7Mr. Solomon alleges that the Associate Justice committed an error of law in concluding that either debtor had generally ceased paying debts as they come due as alleged in the bankruptcy applications. I express no view on the merits of that question which will of course be for the judge hearing the appeal to consider.
Analysis
8Where, as here, the bankruptcy order was made by the Associate Justice under s. 192(1)(a), appeals therefrom lie with a judge sitting in bankruptcy under s. 192(4) and not with the Court of Appeal under s. 193 of the BIA. Section 195 of the BIA imposes a stay of proceedings in the case of appeals to the Court of Appeal but does not create an automatic stay in the event of appeals to a judge under s. 192(4): Royal Bank of Canada v. LaHave Equipment Ltd., 2007 NSCA 106 at para. 14; Re Atlantic Sea Cucumber Limited, 2025 NSSC 419 at para. 28.
9It follows that the present action is stayed as against both bankrupt defendants and will remain stayed unless and until the relevant bankruptcy order itself is vacated on appeal. It also follows that a Mareva injunction is both unnecessary and unavailable, all of the property of the bankrupt that might be the object of such an injunction having passed into the hands of the Trustee to be dealt with according to law.
Disposition
10In light of these developments, I am scheduling the hearing of the Mareva application in respect of the other defendants only. The remaining parties have agreed to the following modified timetable which I am ordering:
(a) Cross-examinations completed by June 9;
(b) Moving party factum by June 12;
(c) Responding defendants factum by June 17
(d) Application for Mareva Injunction to be heard on July 3 at 10am via Zoom.
11Counsel for the Avenir defendants and Mr. Craik advise that they may be seeking to examine Mr. Suske personally as a witness for the defence. That will have to be arranged by counsel to occur by June 9 in accordance with the timetable. That may entail seeking consent of the Trustee for Mr. Suske to lift the stay of proceedings as against Mr. Suske to that limited extent.
12Following the completion of this case conference, I heard the scheduling case conference of Mr. Solomon in bankruptcy court and ordered that his clients’ appeals of the bankruptcy orders made against them shall be heard on June 5, 2026. Depending upon the outcome of that appeal, Mr. Solomon and his clients may have to be folded into the above timetable.
Justice Sean Dunphy
Date: May 20, 2026