Stanley J. Kershman

The Children's Aid Society of Ottawa brought a motion to set aside an order extending time for the respondent mother, I.C., to perfect her appeal of a Crown Wardship order, and to dismiss the appeal for delay.

The court reviewed the factors for extending time to perfect an appeal, including the length and explanation for delay, prejudice to the respondent, and the merits of the appeal, as established in *Paulsson* and *Monteith*.

The court deferred to the discretion of the previous judge who granted the extension, finding no reason to interfere.

The motion by the Children's Aid Society was dismissed, and I.C.'s appeal was not dismissed for delay, with new peremptory timelines set for its perfection and hearing.

The applicant creditors sought to continue an application for a bankruptcy order against the debtor, The Quiet Voice Productions Inc., after abandoning a partially argued motion.

The debtor had filed a Notice of Intention to Make a Proposal.

The court declined to hear the bankruptcy application immediately due to time limitations and the applicants' failure to allow previously ordered cross-examinations on affidavits.

The court issued orders to manage the proceedings, including directions for the proposal vote, future hearings for the bankruptcy application or proposal approval, and completion of cross-examinations, while also freezing the debtor's funds.

The applicant brought a motion for various relief, with the court addressing only the issue of counselling for the children.

On consent, the parties agreed to terms for the children's attendance at counselling to address separation and reunification issues.

The order detailed cooperation with the intake process, communication with professionals, confidentiality, participation duties, after-care plans, and cost-sharing for counselling services.

The father brought a motion to change a 2001 child support order, seeking to terminate support for his three adult children.

The mother brought a cross-motion for retroactive child support and section 7 expenses.

The court found that the youngest child, who was pursuing a master's degree, remained a child of the marriage, but reduced basic child support to the four summer months when he lived at home.

Applying the D.B.S. framework, the court ordered retroactive child support and section 7 expenses back to October 2007 due to the father's blameworthy conduct in refusing to pay and failing to disclose income increases.

The court declined to impute income to the father, finding his recent unemployment was involuntary.

The father was ordered to pay $68,362.77 in net arrears.

The defendants moved to dismiss the plaintiffs' statement of claim, or in the alternative, for leave to file a statement of defence, arguing that the action was barred by section 9 of the Crown Liability and Proceedings Act (CLPA) and section 111(2) of the Pension Act.

The plaintiffs, including a former RCMP Staff Sergeant, sought damages for intentional torts, breach of contract, and Charter violations arising from alleged harassment and assault during her service, for which she had already received a disability pension for PTSD.

The court dismissed the motion to strike, finding that it was not plain and obvious that the claims were entirely barred, particularly for damages not covered by the pension, claims for events after the initial injury, and Charter claims.

The court also found that section 111(2) of the Pension Act did not require a further stay as the plaintiff was not seeking to review or re-assess her pension.

The plaintiff, Phillip Owen, withdrew his claim against the Estate of Barbara Owen and consented to judgment on the counterclaim.

This endorsement addresses the issue of costs.

The defendants, including the Litigation Guardian and the Estate Trustee, sought full indemnity costs due to the plaintiff's vexatious conduct, including fraud and non-compliance with court orders.

The court found the defendants successful and awarded full indemnity costs, albeit reduced from the amounts claimed, to both the Litigation Guardian ($60,500) and the Estate Trustee ($30,000), payable by the plaintiff.

The defendants brought a motion to strike the plaintiff bankruptcy trustee's claims for the recovery of usurious interest and unlawful commissions paid as part of a Ponzi scheme.

The defendants argued the claims were statute-barred and failed to disclose a reasonable cause of action.

The plaintiff brought a cross-motion to amend the statements of claim to explicitly plead unjust enrichment.

The court dismissed the motion to strike, finding that the limitation period did not begin to run until the trustee discovered the fraudulent nature of the scheme, and that unjust enrichment was a valid cause of action.

The court granted the plaintiff's cross-motion to amend the pleadings, as the amendments would not cause non-compensable prejudice to the defendants.

The defendants brought a motion to strike the plaintiff bankruptcy trustee's claims for the return of usurious interest and unlawful commissions paid as part of a Ponzi scheme.

The defendants argued the claims were statute-barred and that breach of statute is not a valid civil cause of action.

The court dismissed the motion, finding that the limitation period did not begin to run until the trustee completed its investigation into the complex fraud.

The court also granted the plaintiff's cross-motion to amend the pleadings to explicitly frame the claims in unjust enrichment.

The plaintiff, Doyle Salewski Inc. (DSI), as Trustee in Bankruptcy for Golden Oaks Enterprises Inc. and Joseph Gilles Jean Claude Lacasse, brought claims against various defendants, including Victor Laschewski, for recovery of usurious interest and unlawful commissions arising from an alleged Ponzi scheme.

The defendant Laschewski brought a motion to strike DSI's claims, arguing they were statute-barred due to expired limitation periods and failed to disclose a cause of action.

DSI brought a cross-motion for leave to amend its statements of claim to explicitly plead unjust enrichment.

The court dismissed the defendant's motion to strike, finding that the claims were not statute-barred due to the discoverability rule in bankruptcy/fraudulent schemes and that unjust enrichment was a valid cause of action.

The court granted DSI leave to amend its statements of claim.

The defendant WSP Canada Inc. brought a motion for leave to appeal to the Divisional Court from a decision compelling the production of an internal Risk Management Report (RMR).

WSP claimed common law privilege over the RMR, arguing that the motion judge erred in applying the dominant purpose test for litigation privilege and that his decision conflicted with other authorities.

The court dismissed the motion for leave to appeal, finding no conflicting decisions on common law privilege principles and no good reason to doubt the correctness of the original decision.

The court affirmed that the RMR was not prepared for the dominant purpose of litigation and therefore was not protected by litigation privilege, correctly applying the Slavutych test.

The Proposed Intervenors brought a motion for leave to intervene in an application to set aside an arbitration award arising from the receivership of a Ponzi scheme.

The Proposed Intervenors argued they had an interest in the subject matter, would be adversely affected, and shared common questions of law or fact, as they faced similar claims in separate proceedings.

The court dismissed the motion, finding the Proposed Intervenors had no direct interest in the subject matter, would not be adversely affected by the judgment, and would not make a useful contribution without causing injustice or delay to the immediate parties.

The defendants brought a motion to compel the plaintiff to attend a defence medical examination with an orthopedic surgeon without an audio recording.

The plaintiff opposed, arguing the examination should be recorded due to the expert's alleged bias and past adverse judicial findings against him.

The court applied the test from Bellamy v. Johnson, finding the plaintiff failed to show substantial and compelling reasons to order a recording.

The court held that general allegations of bias or the fact that an expert primarily conducts defence assessments do not justify recording the examination.

The motion was granted.

This is a scheduling endorsement in a complex bankruptcy and receivership proceeding.

The court established timetables on consent for upcoming motions to strike in related Small Claims Court matters, a motion to intervene by a law firm, and an application to appeal an arbitration award.

The court also directed the filing of arbitration transcripts and encouraged the parties to agree on terms for turning over certain rent-to-own properties.

The applicant brought a motion to find the respondent in contempt for failing to comply with a prior court order requiring him to sign a listing agreement for the sale of their jointly owned property.

The respondent brought a cross-motion to consolidate the civil partition action with a family law application he commenced in another jurisdiction.

The court applied the three-pronged test for contempt and found the respondent deliberately breached the clear and unequivocal order beyond a reasonable doubt, though he purged his contempt by signing the agreement in court.

The court dismissed the cross-motion, finding the two actions dealt with distinct issues and consolidation would cause unfair delay and expense.

Opposition to a bankrupt’s discharge under the Bankruptcy and Insolvency Act by both the trustee and a former spouse creditor.

The court found numerous breaches of the bankrupt’s statutory duties, including failure to disclose assets, failure to keep the trustee informed of his address, and failure to provide required financial documentation.

The bankrupt had also reaffirmed a vehicle loan post‑bankruptcy while retaining the benefit of the vehicle but then ceased making payments, leaving a co‑obligor exposed.

The court held that reaffirmation of a debt through conduct during bankruptcy may render the debtor liable notwithstanding the bankruptcy.

Given the misconduct, the court granted a conditional discharge requiring payment to the trustee and permitting the opposing creditor to pursue reimbursement relating to the reaffirmed vehicle loan.

The plaintiff lender brought a motion for summary judgment to recover amounts owing under a loan agreement and to enforce security granted under a general security agreement over a boat.

The defendants admitted the essential elements of the loan, default, guarantee, and security but filed a counterclaim alleging the lender failed to provide business advice and improperly demanded loan repayment.

The court held that there was no genuine issue requiring a trial, finding that the admissions in the pleadings established the debt and the validity of the security interest.

The lender was granted summary judgment for the outstanding loan balance with interest and an order for possession of the collateral.

The defendants’ counterclaim and cross‑motion for summary judgment were dismissed.

The father, residing in Manitoba, brought an application to vary a 2008 child support order to terminate support for three adult children.

A provisional order was granted in Manitoba terminating support on various dates and cancelling arrears of penalties.

The mother, residing in Ontario, opposed the repayment of any resulting overpayments, arguing the children were still in school and the father's income had increased.

The Ontario Superior Court of Justice confirmed the provisional order with variations, terminating support as of the dates in the provisional order but ordering that the mother was not required to repay any child support overpayments, as the father's income had increased and he would have been liable for section 7 expenses.

The mother's request for costs was dismissed.

Following dismissal of a civil action arising from alleged flood-related damages, the court determined the appropriate costs award.

The defendants sought substantial indemnity costs relying on unaccepted Rule 49 offers to settle and their complete success at trial.

The court applied Rules 49 and 57 of the Rules of Civil Procedure, considering the offers, the complexity of the technical issues, the time spent by counsel, and the parties’ reasonable expectations regarding litigation costs relative to the amount in dispute.

The court awarded partial indemnity costs up to the date of the defendants’ first offer and substantial indemnity costs thereafter, while reducing certain disbursements, including expert and transcript expenses, as excessive.

The appellants appealed a Master’s decision dismissing their motion to remove opposing counsel due to an alleged conflict of interest arising from a prior limited solicitor‑client interaction.

The appellants also appealed the Master’s costs award.

The court held that the Master committed no palpable and overriding error in finding that any privilege in a legal invoice had been waived and that the earlier retainer was not sufficiently related to the present dispute to justify removal of counsel.

The court further held that the lawyer’s potential role as a witness was speculative and did not justify disqualification.

The appeal and the challenge to the costs award were dismissed.

The plaintiffs sued the defendant home builder in negligence and nuisance after their basement flooded, causing agreed damages of $65,328.99.

The plaintiffs alleged that the defendant's construction activities on the adjacent lot obstructed a municipal drainage ditch, causing water to back up and overwhelm their sump pump.

The court preferred the evidence of the defendant's expert, finding it more likely that spring runoff overwhelmed the sump pump or that the pump malfunctioned independently.

The court concluded the plaintiffs failed to prove causation on a balance of probabilities and dismissed the action.