Stanley J. Kershman

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.

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.

Dr. Baldeep Kaur Saran, a dentist, applied for a discharge from bankruptcy, which was opposed by her Trustee and the Canada Revenue Agency (CRA).

The bankruptcy was tax-driven, stemming from her participation in a 'natural person' detaxing scheme and a charitable giving scheme, resulting in over $3.1 million in tax debt (including penalties and interest).

The court found that her assets were less than 50 cents on the dollar of unsecured liabilities and that she contributed to the bankruptcy through unjustifiable extravagance in living.

The court rejected her claims of being duped and imputed income to her based on her past earnings and her husband's control over their combined income.

A conditional discharge was granted, requiring her to pay an additional $200,000 to the Trustee, file accurate tax returns, remain current with CRA obligations, and her discharge was suspended for a minimum of 36 months.

The bankrupt, Raymond Henry Lalonde, sought discharge from bankruptcy.

Jevco Insurance Company, an unsecured creditor, opposed the discharge on two grounds under the Bankruptcy and Insolvency Act: assets not equaling $0.50 on the dollar of unsecured liabilities (s. 173(1)(a)), and putting creditors to unnecessary expense by a frivolous or vexatious defence (s. 173(1)(f)).

The court found the s. 173(1)(a) ground was met, as the bankrupt's assets were significantly less than 50% of liabilities, and he was responsible for signing the indemnity.

The court did not find the s. 173(1)(f) ground met regarding a frivolous defence, as the statement of defence was not in evidence.

However, the court found the bankrupt's conduct in filing false Articles of Dissolution for a corporation, stating no proceedings were pending, to be dishonest.

Balancing the interests of the bankrupt and creditors, and considering the dishonesty, the court granted a conditional discharge, requiring an additional payment of $6,000 to the Trustee for the benefit of creditors, in addition to the $50,000 for equity repurchase.

The creditors sought to lift a stay of proceedings in bankruptcy to continue a civil action against the bankrupt, Thomas G. Assaly, and to annul his bankruptcy.

The court found that the bankrupt had engaged in a pattern of filings (US Chapter 11, consumer proposal, then bankruptcy) to avoid litigation.

While the consumer proposal ceased to exist upon bankruptcy, the court declined to annul the bankruptcy, finding that the bankrupt's liabilities exceeded his assets, distinguishing it from cases where annulment was granted due to solvency or abuse of process.

The court lifted the stay of proceedings to allow the quantification of provable claims for the purpose of filing a proof of claim in bankruptcy, and also allowed non-monetary claims (declaration of vexatious litigant, and an order restricting future proceedings) to proceed as they are not provable in bankruptcy.

The court also ordered the bankrupt to disclose all worldwide creditors and for the trustee to investigate certain assets.

The Alliance to Protect Prince Edward County (APPEC) sought a declaration that a Feed-In-Tariff (FIT) Contract between the Independent Electricity System Operator (IESO) and WPD White Pines Wind Incorporated (White Pines) was null and void, arguing White Pines failed to meet contractual capacity requirements.

APPEC also raised issues of legitimate expectations and negligent misrepresentation by IESO.

The court dismissed APPEC's application, finding that the doctrine of legitimate expectations did not apply as it creates procedural, not substantive, rights, and APPEC was not a party to the contract.

Furthermore, no special relationship existed to support a claim of negligent misrepresentation, and IESO and White Pines properly amended their contract in accordance with the FIT Rules and the Environmental Review Tribunal's decision.

An application for wrongful dismissal where the enforceability of a termination clause limiting notice to Employment Standards Act minimums was at issue, along with the effect of an erroneous initial termination and subsequent re-hiring.

The court found the termination clause enforceable, supported by consideration.

It ruled that the initial termination was effective, but the employee's immediate re-hiring occurred under the same contractual terms.

The applicant was awarded seven weeks' notice under the ESA, plus benefits and mobile phone costs, significantly less than the nine months' common law notice sought.

The Respondent Father brought a motion seeking unsupervised access to his two young children, while the Applicant Mother brought a cross-motion for sole custody and continued supervised access.

The court granted the Father unsupervised access, to be implemented gradually, finding no evidence to support the Mother's safety concerns regarding the Father's and his family's medical conditions or housing.

The Mother's request for interim sole custody was denied, with the court preferring to leave the final custody determination to a trial judge to avoid prejudging the issue.

Costs for the motion and cross-motion were awarded to the Father.