Stanley J. Kershman

The plaintiffs brought a motion for summary judgment seeking payment on two defaulted charges/mortgages and possession of the secured properties.

The defendants had defaulted on payments and failed to pay out the charges at maturity.

One defendant did not appear, and the other appeared but filed no materials, arguing only that refinancing was difficult due to marital separation and lack of cooperation from the co-owner.

The court found no genuine issue for trial, granted summary judgment for the plaintiffs for the outstanding debt and possession of both properties, and assessed costs.

The court clarified that obtaining a Writ of Possession for a residential rental unit requires compliance with the Residential Tenancies Act.

The mother brought a motion seeking security for costs against the father in the amount of $25,000.

The father had previously been ordered to pay costs to the mother, declared bankruptcy, and subsequently brought a motion to change seeking sole custody and termination of child support.

The court found that the father ordinarily resides outside Ontario, has unpaid costs orders, and there is good reason to believe his motion to change is a waste of time or a nuisance.

The court ordered the father to pay $20,000 into court as security for costs.

This decision addresses the costs arising from a motion for court approval of a consumer proposal, necessitated by a creditor's objection.

The Administrator of Ocean Dezarie Bonneau's consumer proposal sought costs against Brenden Higgins, a creditor, after Higgins' extensive objections, including allegations of non-disclosure and fraud, were largely rejected by the court and the Office of the Superintendent of Bankruptcy.

The court found Higgins' actions caused the proceedings to become unduly protracted and that his objection was illogical, as a bankruptcy would have resulted in a lower dividend for creditors.

The Administrator was successful in obtaining approval of the proposal.

The court awarded partial indemnity costs to the Administrator, assessing them at $2,200, inclusive of disbursements and HST, payable by Higgins within 200 days, with an extended payment period granted due to his reduced income.

The moving party father brought a motion for make-up parenting time after the responding party mother suspended his access for three weeks, claiming she had COVID-19 symptoms and was self-isolating.

The court found that the mother made poor parenting decisions by allowing her husband, who had just returned from the United States, to isolate with her and the children while simultaneously denying the father his parenting time.

Determining it was in the child's best interests, the court granted the father two weeks of make-up time and ordered a temporary week-on, week-off schedule until the child returned to in-person schooling.

A motion was brought by the consumer proposal administrator to review Ocean Dezarie Bonneau's consumer proposal, which was deemed accepted by creditors.

A creditor, Brenden Higgins, demanded the review and opposed approval, raising concerns about non-disclosure of assets, post-filing debt, family unit income, and alleged fraudulent activity and BIA offences.

The court found that while some issues, like the purchase of a luxury vehicle post-filing, had poor optics, they did not disentitle the debtor from the proposal.

The court also clarified the family unit composition and dismissed allegations of BIA offences and fraud, noting fraud claims must be pursued in separate civil proceedings.

Ultimately, the court approved the consumer proposal, finding it provided a superior return to unsecured creditors compared to bankruptcy.

The defendants brought a motion to strike the plaintiffs' pleadings or for summary judgment dismissing the claim for unpaid consulting invoices, and alternatively sought security for costs from the corporate plaintiff.

The court declined to strike the pleadings but granted partial summary judgment, dismissing the claims against the individual defendant and one corporate defendant as they were not parties to the consulting agreement.

The claims against the main corporate defendant were directed to trial.

The court also ordered the corporate plaintiff to post security for costs in installments, finding it lacked sufficient assets in Ontario.

The Licensed Insolvency Trustee brought four motions seeking court approval for advances of remuneration in four ordinary administration bankruptcies prior to obtaining a Letter of Comment from the Office of the Superintendent of Bankruptcy (OSB) and proceeding to taxation.

The OSB opposed the motions, arguing they were premature and contrary to jurisprudence.

The court granted the motions in part, allowing an advance of 75% of the fees earned to date, noting that OSB Directive 27R permits court approval of advances and that the COVID-19 pandemic created exceptional cash flow challenges for trustees operating as essential services.

The Plaintiff, Patrick Harbord, brought an action for negligence and breach of fiduciary duty against Pierre Dupont, a podiatrist.

The Defendants, Pierre Dupont and Dupont Chiropody Professional Corporation, did not attend trial, and their pleadings were struck.

The action against Dupont Chiropody Professional Corporation was dismissed.

The Court found Pierre Dupont negligent in his treatment of the Plaintiff's right foot, failing to meet the standard of care by recommending and performing unnecessary stent surgeries without first attempting conservative treatments and without providing properly informed consent.

The Plaintiff suffered a permanent, significant disability to his right foot.

The Court awarded the Plaintiff $140,000 in general non-pecuniary damages, $76,000 for loss of income/competitive advantage, $5,465.96 for a subrogated claim, $8,544.10 for repayment of surgical services, $420 for orthotic expenses, $1,260 for future orthotic expenses, and $80,795.91 in substantial indemnity costs, plus pre-judgment and post-judgment interest.

The court addressed the non-payment of spousal support arrears amidst the COVID-19 pandemic.

The respondent had purchased a bank draft but lost it, causing a delay in payment.

Considering the operational suspensions of the court and the respondent's age, the court ordered the respondent to replace the draft by April 7, 2020, and ensure its delivery to the applicant's counsel, provided it was safe to do so.

Counsel were also directed to provide an update by April 9, 2020.

This decision addresses costs following a five-day summary trial in an estate matter concerning the authenticity of a "Questioned Document" and ownership of various assets.

The Estate Trustee was largely successful, particularly regarding the document's authenticity and several asset claims.

The court found the Respondents, primarily Alex Hayward, prolonged the proceedings by disputing the document's authenticity and other claims.

Applying principles of estate costs, the court ordered full indemnification for the Estate Trustee, with substantial indemnity costs payable by the active Respondents (Alex, Shawn, David, Lori Hayward) and the balance from the Estate.

The active Respondents also received a portion of their costs from the Estate due to partial success on some claims.

Traders General Insurance Company brought an unsuccessful motion to strike an action, which was tantamount to a motion for summary judgment.

This decision addresses the costs of that motion.

The Plaintiffs sought full indemnity costs, alleging serious misconduct by Traders, while the Trustee in Bankruptcy sought partial indemnity costs.

The court found no fraud or misconduct amounting to contempt by Plaintiffs' counsel.

Considering the importance and difficulty of the motion, the court awarded the Plaintiffs partial indemnity costs of $25,438.16 and the Trustee in Bankruptcy partial indemnity costs of $7,262.33, both inclusive of disbursements and HST, payable by Traders within 21 days.

Following a main decision regarding an estate dispute, the parties appeared to argue costs.

Prior to costs arguments, the court addressed the mechanics of the decision, ordering timelines for the pick up of stored articles, tractors, and vehicles.

The court established conditions for the release of a specific tractor upon payment of a prior judgment amount, and set out the consequences of abandonment if items were not collected within the specified periods.

The applicant estate trustee brought a summary trial to determine the ownership of various assets, including vehicles, tractors, furniture, and sheds, following the death of the deceased.

The deceased's former husband, the respondent, claimed ownership of several items and sought reimbursement for a roof replacement and a vehicle purchase.

The court first determined that a supplementary separation agreement from 2002 was authentic, relying on expert evidence regarding thermal fax technology.

Applying this agreement and other evidence, the court allocated ownership of the disputed items between the estate, the respondent, and the children.

The court dismissed the respondent's claims for reimbursement for the roof and vehicle, finding the roof claim was statute-barred and failed the test for unjust enrichment, and the vehicle purchase was a gift.

The moving party sought to lift the stay of proceedings in her former husband's bankruptcy to pursue an equalization claim against his military pension.

Both parties had filed for bankruptcy and been discharged.

The moving party argued the bankrupt concealed his bankruptcy and that her claim was not provable or should survive discharge.

The court dismissed the motion, finding no concealment and applying established law that an equalization claim is a provable claim in bankruptcy that is extinguished upon discharge if not pursued beforehand.

The moving party insurer sought to set aside an ex parte order granted under s. 38 of the Bankruptcy and Insolvency Act, which allowed the plaintiffs to pursue a bad faith claim against the insurer that had been assigned to them by the discharged trustee in bankruptcy.

The court dismissed the motion, finding that the insurer lacked standing to challenge the s. 38 order as it was not a creditor, debtor, or aggrieved party.

The court further held that the s. 38 order was properly obtained without notice to the insurer, the discharged trustee had the authority to assign the chose in action, and the bad faith claim was property that vested in the bankrupt estate.

The moving party creditor sought to lift a stay of proceedings under the Bankruptcy and Insolvency Act to seize the bankrupt's RRSPs.

Prior to the bankruptcy, the bankrupt falsely stated under oath during a judgment debtor examination that he had no RRSPs.

Seventeen days later, he filed for bankruptcy and disclosed the RRSPs.

The court found that the RRSPs were exempt from the bankrupt estate but not exempt from seizure by a creditor under the Execution Act.

The court lifted the stay on equitable grounds, noting the creditor would have seized the RRSPs prior to bankruptcy had the bankrupt been truthful.

The appellant appealed a Consent and Capacity Board decision revoking a Community Treatment Order (CTO).

A new CTO was subsequently issued for the respondent.

The court found the appeal moot as the original dispute was no longer live and declined to exercise its discretion to hear the academic issue, dismissing the appeal.

The bankrupt, Troy Berthiaume, sought a discharge from bankruptcy, which was opposed by the Trustee and two creditors.

The court found that the bankrupt failed to disclose assets, made false statements regarding asset transfers, engaged in unjustifiable extravagance in living (including numerous post-bankruptcy vacations), and failed to perform his duties under the Bankruptcy and Insolvency Act.

The court imputed income to the bankrupt, finding his reported earnings from his wife's company to be significantly lower than his earning potential.

Consequently, the court granted a conditional discharge, requiring the bankrupt to pay $72,606.54, comprising surplus income and an additional sum, at a minimum rate of $500 per month.

The court emphasized the need to safeguard the integrity of the bankruptcy system from dishonest debtors.

The Appellant, Houssein Awada, appealed an arbitration award concerning net family property (NFP) equalization and income imputation for child and spousal support.

Mr. Awada argued that two properties (Laurier Avenue and Palmerston Drive) were held in trust for his brother and should not be included in his NFP, and that the Arbitrator erred in calculating his 2016 income and in not imputing a higher income to the Respondent, Sheryl Kristy O’Connell.

The court upheld the Arbitrator's findings on all issues, applying a standard of review of correctness for questions of law and palpable and overriding error for questions of mixed fact and law.

The court found no errors in the Arbitrator's assessment of evidence, credibility, or the imputation of income, emphasizing deference to the Arbitrator's findings.

The court clarified a previous costs endorsement in the Estate of William Malcolm Simms.

The Estate Trustees sought clarification on whether their fees, disbursements, and HST, totaling $11,471.67, should be paid from the Estate, despite an earlier order stating "Each party to bear their own costs." The defendant, Martyn Simms, objected.

The court ruled that Estate Trustees, acting in a representative capacity and without improper conduct, are entitled to their costs from the Estate.

Other requests by Martyn Simms (adjournment, Public Guardian and Trustee appointment, prior motion costs) were denied due to lack of proper motion or prior counsel consultation.