Executive Summary: Key Legal and Evidentiary Issues

• Reasonable apprehension of bias alleged against the presiding judge based on comments about Willie’s illiteracy and perceived prejudgment of issues.
• Scope and application of the objective test for judicial recusal, including the need for a “real likelihood or probability of bias” supported by evidence.
• Evidentiary shortcomings of the recusal motion, including the absence of an affidavit from Willie himself and reliance on an articling student’s evidence.
• Proper role of a judge in asking probing questions about a party’s abilities and the complexity of commercial transactions without crossing into prejudgment.
• Admission of fresh evidence mid-proceeding, specifically a new Virk agreement of purchase and sale, and the court’s discretionary power to allow it.
• Allocation of partial indemnity costs following an unsuccessful recusal motion, including the bar on Willie taking fresh steps until costs of $2,806 are paid.

Background and family business dispute

The dispute in Huismans v. Huismans arises out of a long-running conflict between two brothers, Peter and William (“Willie”) Huismans, who are shareholders in Huismans Poultry Farm Ltd. (“HPF”), a family-owned poultry operation. The farm involves a substantial enterprise with over 40,000 hens and significant real property and quota holdings. Peter has historically managed the financial and administrative side of the business, while Willie has managed day-to-day farm operations and employees. Their relationship has deteriorated to the point of competing applications about how to dispose of HPF and divide its value.

Competing applications regarding sale of the farm

Peter commenced a Fresh as Amended Application in court file CV-24-00097983 (“983”), seeking, among other relief, an order that he be directed to complete eight transactions to dispose of all HPF assets and distribute the proceeds equally between himself and Willie. His approach seeks a global liquidation of HPF’s assets and equal sharing of the proceeds. Willie responded by launching his own Fresh as Amended Application in court file CV-24-00097329 (“329”). In that cross application, Willie sought an order that he be allowed to sell the main farm property and associated egg quota to Virk Poultry Farm Ltd., In Trust (“Virk”), followed by a buyout of Peter’s HPF shares at half of market value, pegged to a price that Peter allegedly offered on July 17, 2025 and which Willie says he accepted on July 28, 2025. The applications were heard together before Justice Kershman on November 17, 2025. Because of the complexity of the record and time constraints, the court heard the main submissions that day and adjourned the matter, leaving Peter’s reply to be argued later.

Parallel misappropriation action and its limited role

Separate from the applications, Willie had commenced a civil action against Peter, referred to as the Misappropriation Action (court file CV-24-00096423-0000), alleging misappropriation of HPF funds and related wrongdoing. While this action was referenced in the materials and argument, the court made clear during the November 17, 2025 hearing that allegations in the Misappropriation Action were not being determined in the context of the application and cross application. The judge emphasized that he was not deciding the misappropriation allegations and that little to no evidence on that action was formally before him for adjudication at that time.

Allegations of bias and the recusal motion

Before Peter’s reply could be heard, Willie brought a recusal motion asking that Justice Kershman step aside from both 983 and 329 on the ground of reasonable apprehension of bias. Willie alleged that the judge’s comments during the November 17, 2025 hearing showed prejudgment of key issues, particularly concerning Willie’s illiteracy and the Misappropriation Action. Central to Willie’s complaint were remarks made when his counsel suggested an order directing Willie to finalize the sale to Virk. The judge responded, in substance, by questioning the practicality of requiring “a gentleman who cannot read or write” to finalize an agreement for purchase and sale in a transaction worth in excess of $20 million. Additional comments referred to Willie’s own affidavit admission that he cannot read or write, and the judge analogized that a person might work their whole life and still not become literate. Willie, his son, and daughter-in-law considered these remarks “ableist” and concluded that he was not receiving a fair hearing. Counsel framed this through the concept of “ableism”, invoking disability as a prohibited ground of discrimination under the Ontario Human Rights Code, though no human rights claim was formally before the court in this motion.

Response to the recusal allegations

Peter opposed the recusal motion and argued that the judge’s comments did not amount to a reasonable apprehension of bias. Peter’s position was that Willie himself had made his illiteracy a central issue in the litigation, expressly swearing that he could not read or write, and that the judge was entitled to probe how Willie could independently navigate complex commercial transactions such as a multi-million-dollar farm and quota sale. Peter emphasized that the issue of literacy was not raised “out of the blue” by the court but arose naturally from Willie’s own affidavit material. Peter also challenged the evidentiary foundation of the motion. There was no affidavit from Willie, despite his having sworn several affidavits elsewhere in the proceedings, and no evidence from his son or daughter-in-law who reportedly viewed the hearing and perceived bias. Instead, the motion relied on an affidavit from an articling student in Willie’s counsel’s office. Peter argued that the absence of direct evidence from Willie undercut the seriousness of the allegations and failed to meet the onus necessary for recusal.

Legal test for reasonable apprehension of bias

Justice Kershman set out the governing test for recusal, relying on Mazumder v. Bell Canada, a case that articulates the two-part objective standard for reasonable apprehension of bias. The question is whether a reasonable, informed person, viewing the matter realistically and practically and having considered all the circumstances, would conclude that there is a real likelihood or probability of bias. The “reasonable person” is presumed to be familiar with the legal traditions of integrity and impartiality, and to understand that judges swear an oath to be impartial. Mere suspicion or subjective concern does not suffice; the moving party bears the burden of demonstrating more than dissatisfaction with judicial comments or interim rulings. Citing Mazumder, the judge noted that courts must not be intimidated into stepping aside whenever a litigant alleges bias without an adequate evidentiary basis, as that would undermine both the reality and appearance of justice.

Application of the test to the facts

In applying this standard, the court reviewed the transcripts and notes from the November 17, 2025 hearing and concluded there were no comments prejudging the Misappropriation Action. Other than a bare allegation in Willie’s factum, no specific prejudicial statements about that action were identified, and none were pressed in oral submissions. On the literacy issue, the judge stressed that Willie’s illiteracy was disclosed in Willie’s own affidavit, not invented by the court. The litigation involved complex corporate and real estate transactions—sales of significant farm assets and egg quota and competing proposals for corporate restructuring. In that context, it was legitimate for the court to ask questions and make comments about whether Willie personally could understand and carry out what he proposed in his cross application, particularly when the monetary stakes were very high. The judge acknowledged he had posed pointed questions and comments about Willie’s literacy and capability to complete the Virk transaction. However, he found that these exchanges reflected an effort to understand the practicalities of the proposed orders, not animus or prejudgment. He also observed that while Willie’s counsel suggested there were “numerous” examples of bias throughout the hearing, counsel could not point to more than the few quoted passages when pressed for specifics.

Findings on the evidentiary record

The court held that Willie had not provided an adequate evidentiary foundation for such serious allegations against a judicial officer. He chose not to file his own evidence for the recusal motion despite having previously sworn multiple affidavits in the underlying matters, and neither his son nor daughter-in-law provided affidavits to substantiate their impressions of bias. The only supporting evidence came from an articling student. In the court’s view, this fell short of the “real likelihood or probability of bias” required under the objective test. The judge reiterated that no decision had yet been made on the merits of the application or cross application, further undermining the assertion that he had already prejudged the outcome. Overall, the court concluded that a reasonable, informed observer, aware of the full context and the judge’s obligations, would not see a reasonable apprehension of bias. Accordingly, the recusal motion was dismissed, and Justice Kershman confirmed he would continue to preside over the proceedings impartially.

Admission of the new Virk agreement as fresh evidence

A secondary issue on the motion concerned whether Willie should be granted leave to file new evidence in the form of an updated agreement of purchase and sale with Virk dated December 8, 2025. The new Virk agreement concerned the sale of the farm property at 1789 Huismans Road, Ottawa, Ontario and 90% of the quota under licence number 01918, representing 41,520 hens. Willie argued that the court has discretion to admit additional evidence before a hearing resumes and relied on the framework from Palmer v. The Queen. He submitted that the Virk agreement was highly relevant because it showed that Virk remained a serious purchaser willing to proceed on essentially the same terms as its July 17, 2025 offer, which had previously been acceptable to Peter. In Willie’s view, excluding this updated agreement would risk an unfair or incomplete adjudication of the best available transaction for the farm. Peter made limited submissions on this point, essentially noting that another prospective purchaser, Rocky Hill Farm Ltd. (“Rocky Hill”), had offered a higher price that could provide a greater benefit to HPF and its shareholders. The court found that the December 8, 2025 Virk agreement was essentially the same as the earlier July 17, 2025 offer, including the price, and that its existence confirmed Virk’s continuing interest in purchasing the property. Without making any finding that Rocky Hill was not interested or that Virk’s offer was superior, the court exercised its discretion to permit Willie to file the new Virk agreement as evidence. This allowed the updated transaction to be considered when the main application and cross application resume, without deciding the ultimate merits of which offer should prevail.

Costs ruling and consequences for the parties

On costs, both parties submitted materials, with Peter seeking partial indemnity costs of $2,806 (and a higher amount on a substantial indemnity basis) and Willie seeking higher figures on both partial and substantial indemnity scales. While Willie succeeded on the narrow issue of being allowed to introduce the new Virk agreement, the court held that the “real issue” in the motion was recusal, on which Willie was unsuccessful. Relying on authorities such as Aganeh v. Aganeh, the court observed that ordinary costs principles apply even when a motion seeks to remove a judge for alleged bias, and unsuccessful moving parties may properly be ordered to pay costs. Considering the factors under Rule 57.01—including which party was successful, the complexity of the issues, counsel’s time, and the need to balance compensation with access to justice—the court fixed costs in Peter’s favour on a partial indemnity basis. Peter was awarded $2,806, inclusive of disbursements and HST, payable by Willie by January 22, 2026. The court further ordered that Willie cannot take any fresh steps in this proceeding or in related court file 329 until these costs have been paid. As a result, on this recusal motion, Peter emerged as the successful party, obtaining dismissal of the recusal request, securing his entitlement to continue before the same judge, and receiving a monetary costs award of $2,806, with no additional damages or monetary awards determined at this stage.