CITATION: Minkofski v. Dost Estate, 2014 ONSC 1904

DIVISIONAL COURT FILE NO.: DC-13-1955

DATE: 2014/03/28

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

M. LINHARES DE SOUSA J.

IN THE MATTER OF THE ESTATE OF Helmtrud M. Dost, deceased

BETWEEN:

HORST B. MINKOFSKI

Appellant

– and –

ALAIN BRUNET AND JUNE CHARRON, Estate Trustees

Respondents

Self-Represented

Christopher A. Moore, for the Respondents

HEARD: March 19, 2014 (at Ottawa)

DECISION ON APPEAL

INTRODUCTION

[1] The Appellant, Horst B. Minkofski, seeks to set aside the summary judgment of Master MacLeod dated October 24, 2012 granted to the Respondent, the Estate of Helmtrud M. Dost, deceased. In his summary judgment Master MacLeod found that the Last Will and Testament of the deceased, Helmtrud M. Dost, dated November 16, 2000, was a valid and subsisting Will of the deceased. Master MacLeod dismissed Mr. Minkofski’s Notice of Objection and ordered that the Certificate of Appointment of Estate Trustees with respect to the Estate of Helmtrud M. Dost be issued appointing June Charron and Alain Brunet the Estate Trustees so that they could proceed to administer the Estate in accordance with the will.

[2] Master MacLeod subsequently ordered that the Objector, being the Appellant, pay the Estate’s costs fixed in the amount of $10,000.

[3] The other relief sought by the Appellant is the following:

(1) That the will [of Helmtrud M. Dost] be declared invalid due to lack of capacity and other irregularities and that the Estate therefore proceed as an intestacy; or

(2) That if a trial is deemed necessary, the lawful course under the Rules be followed and the Estate proceed properly to compulsory mediation; or

(3) That the hearing for summary judgment be declared improper and the proceeding be returned to its proper steps by moving the proceeding to compulsory mediation.

[4] The Appellant also seeks an order rescinding the costs order of Master MacLeod dated April 2, 2013 ordering him to pay to the Respondent $10,000 in costs.

[5] Mr. Minkofski is the only natural son of the deceased and received a legacy of $200 under the will of his mother which is in dispute. The value of Ms. Dost’s Estate is approximately $236,803.37 to which Mr. Minkofski could make a claim if there was an intestacy.

[6] The Respondent contests the appeal.

[7] At the end of the Appeal hearing I gave brief oral reasons for the dismissal of the appeal, indicating that more fulsome reasons would follows. These are those reasons.

APPEAL FROM JUSTICE BEAUDOIN

[8] Prior to this appeal being perfected, Mr. Minkofski brought a number of motions which came before Justice Beaudoin. In those motions, among other relief, Mr. Minkofski sought to stay the order of Master MacLeod dated October 24, 2012 which he is appealing. He also sought an extension of time to file his notice of appeal. He further sought an order, which had been refused by Master MacLeod, that the Respondent bears the costs of preparing the transcripts of the hearings before Master MacLeod. All of these motions brought by Mr. Minkofski before Justice Beaudoin were dismissed for the reasons given by him except for the request for an extension of time to file his notice of appeal of Master MacLeod’s order. Costs of the proceedings before Justice Beaudoin were reserved to this appeal.

[9] Mr. Minkofski in his material filed on this appeal and in his oral submissions purported to seek an appeal of the decision of Justice Beaudoin. Clearly, Mr. Minkofski was not appealing the decision to grant him an extension of time to bring this appeal on which he was successful. The Respondent do not appeal that issue either. With respect to the other parts of the order of Justice Beaudoin, arising out of an interlocutory proceeding in this appeal, it is not subject to further appeal to this Court. Justice Beaudoin provided careful reasons for his decisions on the various issues and exercised his discretion judiciously. To the extent that Mr. Minkofski appeals any part of Justice Beaudoin’s order that part of his appeal is dismissed.

MOTION TO TRANSFER

[10] By way of preliminary motion to this appeal, served and filed one day before the hearing of the appeal, Mr. Minkofski sought an order to have this appeal transferred to Thunder Bay from Ottawa.

[11] This was contested by the Respondent.

[12] Mr. Minkofski submitted that the cost to him appearing in person in Thunder Bay would be much less expensive than his personal appearance in Ottawa. Mr. Minkofski did not provide any evidence about this cost differential. Mr. Minkofski submitted that he would be content with appearing by teleconference, as he was doing, in Ottawa if he had the transcripts of the hearing before Master MacLeod. Since he did not, because he was refused the order that the Respondent Estate pay for the cost of the transcripts, he could appear in Thunder Bay in person and more advantageously argue his appeal.

[13] The Respondent relies on Rule 13.1.02 (Motion to Transfer to Another County) of the Rules of Civil Procedure in contesting Mr. Minkofski’s motion to transfer.

[14] Based on the circumstances of this case, and the reasons advanced by Mr. Minkofski, I am not persuaded that Mr. Minkofski is not able to have a fair hearing in this jurisdiction. Nor am I persuaded that it would be “desirable in the interests of justice”, having regard to the enumerated circumstances found in Rule13.1.12(2)(a) to (b) to have this matter transferred to Thunder Bay. A consideration of all of those factors point to Ottawa being the fairest and most appropriate jurisdiction. This matter has no connection to Thunder Bay.

[15] Mr. Minkofski’s argument regarding the absence of transcripts, given the nature of this appeal, is not persuasive. The presence or absence of the transcripts can have no bearing on the issues that he has raised in this appeal. They have no bearing on his ability to fulsomely present his arguments in support of his appeal. All of the evidence which was before Master MacLeod is before this appeal court.

[16] For all of these reasons the motion to transfer was dismissed.

THE APPEAL FROM MASTER MACLEOD

DECISION OF MASTER MACLEOD

[17] In coming to his conclusion on the motion for summary judgment that there was no genuine issue requiring a trial, Master MacLeod examined the evidence concerning the factual background of the making of the will in relation to Ms. Dost’s health at the time. Master MacLeod examined the evidence of the medical personnel who treated Ms. Dost and those individuals who were close to her. He examined the evidence of Mr. McCowell the lawyer who interviewed Ms. Dost and took her own written instructions concerning the terms of the will and drafted the will. One of these notes received by Mr. McCowell from Ms. Dost indicated that she wished to bequeath $200 to her son, “who has not shown any compassion for his mother”. The evidence showed that Mr. Minkofski had been alienated from his mother and had not seen her for approximately 40 years, since he left home as an adolescent. In his affidavit material filed in this litigation he identified many grievances he held against his mother, including bringing him to Canada from Germany as a child.

[18] Master MacLeod concluded that the evidence provided by the Estate, unless it could be successfully challenged, was sufficient to establish the validity of the will.

[19] Master MacLeod recognized that Mr. Minkofski need not conclusively persuade the court that he would succeed at trial but he need only show that there was a “genuine question requiring a trial” pursuant to Rule 20.02(2).

[20] Master MacLeod then noted that Mr. Minkofski had not complied with the Rules of Civil Procedure and had not filed any affidavit to the motion for summary judgment. Nonetheless, Master MacLeod carefully examined the various documents Mr. Minkofski did file as part of his Factum and examined earlier affidavits filed by Mr. Minkofski and others in earlier proceedings in addition to hearing Mr. Minkofski’s oral submissions.

[21] In his reasons Master MacLeod comments on the content, relevance and evidentiary value of those documents and affidavits to the main issue before him. Of note is the fact that Mr. Minkofski, having been alienated from his mother for nearly all of his adult life could not provide any “temporally relevant firsthand knowledge” (para. 34) about his mother’s testamentary capacity and the circumstances of the making of her will. He noted the many “suppositions” and ungrounded “opinions” found in that material relied on by Mr. Minkofski could be found to be simply wrong by more reliable evidence.

[22] At the end of his examination of all of the evidence, Master MacLeod concluded at paras. 47 and 48:

47 There are no facts in these affidavits which would establish real doubt about testamentary capacity in the face of the clear and cogent observations of Ms. Charron and Mr. McCowley [sic, McCowell] corroborated by the letters written by the deceased herself. Those letters establish clearly that the testator knew she was making a will, knew how she wanted to distribute her effects, what bequests she wished to make and who should be the residual beneficiary. Most importantly with regard to the objector, the evidence clearly shows that she turned her mind to whether or not to leave anything to him. At least as far as that bequest is concerned there can be absolutely no doubt that the will represented her genuine wish and intent.

48 I have reached the conclusion that the affidavit evidence filed by the objector is not of sufficient quality to demonstrate that there is a genuine issue requiring a trial. It is insufficient to refute the direct evidence of the moving parties and Mr. McCowell corroborated by the written instructions and other correspondence.

[23] Master MacLeod did not stop there he went on to examine the medical records which Mr. Minkofski had asked be produced for him but which he had not presented in evidence on the motion. Master MacLeod recognized his limitations in examining those medical records. Master MacLeod found that those medical records appeared generally to be consistent with the evidence presented on behalf of the Estate.

[24] At the end of his decision, Master MacLeod recognized the limitations of his powers on a motion for summary judgment relating to “enhanced powers” of a judge under the amended Rule 20. In the final analysis, however, Master MacLeod found that he did not have to rely on any enhanced powers to come to the conclusion which he did, simply on the evidence before him that there was no genuine issue requiring a trial. He therefore granted the motion for “summary judgment dismissing the Notice of Objection”. He further ordered that the “Letters of Administration may issue and the estate trustees may proceed to administer the estate in accordance with the will.” (Para. 70).

[25] Master MacLeod, subsequently set a date for settling the form of his order and to deal with the question of costs. Mr. Minkofski, having been refused his request for an adjournment, chose not to participate at the hearing. Master MacLeod, for the reasons given by him, ordered Mr. Minkofski to pay the costs of the Respondent, the successful litigant, on a partial indemnity scale in the amount of $10,000.

POSITION OF THE APPELLANT

[26] In his Factum and in his oral submissions, Mr. Minkofski raised a number of grounds of appeal. During the course of his arguments, Mr. Minkofski attempted to present his own evidence, and had to be reminded that such presentation of evidence was not appropriate nor permitted on this appeal.

[27] Mr. Minkofski submits that Master MacLeod erred in hearing the summary judgment motion brought by the Respondent and that Master MacLeod exceeded his jurisdiction in hearing and deciding that motion. Mr. Minkofski further argues that Master MacLeod failed in a promise not to direct the matter to mandatory mediation. Mr. Minkofski also submits that Master MacLeod failed to consider certain of his requests such as his requests for the passing of accounts by the Respondent.

[28] Mr. Minkofski submits that Master MacLeod demonstrated apparent bias towards him throughout the proceedings. Master MacLeod did not assist him in making out a case for indigence. According to Mr. Minkofski, Master MacLeod disregarded the evidence he presented by way of oral argument regarding the issue of capacity and undue influence. Hence, Master MacLeod erred in his findings on the question of capacity. It was not disputed that Mr. Minkofski did not file any affidavit evidence for the hearing before Master MacLeod.

[29] Mr. Minkofski submits that Master MacLeod misapprehended vital evidence and failed to consider other evidence on the issue of capacity and undue influence.

POSITION OF THE RESPONDENT

[30] Counsel for the Respondent submits that using the applicable standard of review of an appeal of a Master’s order, whether final or interlocutory, Master MacLeod neither erred in law nor in fact based on the evidence before him. Furthermore, Master MacLeod had the jurisdiction to hear and determine a motion on summary judgement when the matter came before him. Counsel for the Respondent submits that, as was clear from the reasons given by him for his decision, Master MacLeod was cognisant of the limits of his jurisdiction on motions for summary judgment and did not exceed those limits in any way.

[31] Counsel for the Respondent submits that based on the evidence before him, all of which is before the Court on this appeal, Master MacLeod’s assessment and analysis of all of the evidence showed that there was a thread of consistency in that evidence supporting Master MacLeod’s conclusions that there was testamentary capacity and that there was no undue influence in the making of the will. Consequently, in the face of that consistent evidence, Master MacLeod was correct in concluding that there was no “genuine issue requiring a trial”. Granting the summary judgment was therefore correctly done. Pursuant to Rule 75 of the Rules of Civil Procedure, Master MacLeod, based on his conclusions, had the power to remove Mr. Minkofski’s Notice of Objection and appoint Estate Trustees.

[32] With respect to the question of bias and procedure, counsel for the Respondent submits that there was no such bias. In fact, counsel for the Respondent argues that Master MacLeod was extremely careful and diligent in permitting Mr. Minkofski to fully and thoroughly present his case and arguments even though he had not followed the required evidentiary rules. Counsel for the Respondent points out that Mr. Minkofski did not file any evidence on the motion for summary judgment. Nor did he present any documentary evidence in support of his arguments before Master MacLeod. Nonetheless, Master MacLeod permitted into evidence and for his own examination certain medical reports that Mr. Minkofski argued supported his case for lack of testamentary capacity and undue influence. After examining this medical evidence Master MacLeod concluded that it did not contradict other evidence to lead to the conclusion that Ms. Dost had testamentary capacity when she made her will.

STANDARD OF REVIEW

[33] The standard of review to be used by this Court on an appeal of a master’s order on a motion of summary judgment is stated at para. 4 of the case of Mehdi-Pour v. Minto Developments Inc., 2011 ONSC 3571 as follows.

4 Appellate interference with a Master’s decision on a motion of summary judgment is justified only if the Master made an error of law, exercised discretion on wrong principles or misapprehended the evidence such that there is a palpable and overriding error. Applied to this appeal the standard of review requires that the Master be correct in his determination that he had jurisdiction to hear the motion and to exercise the powers that he did exercise, that he applied the proper principles of law, and that in terms of the factual context of this motion, that his determination that no genuine issue requiring a trial exists is one that was open to him to find on the record before him.

[34] The Supreme Court of Canada, in the case of Hryniak v. Mauldin, 2014 SCC 7, recently examined the Standard of Review to be exercised by an appellate court in determining the appropriate test for summary judgment and reiterated the above standard of review as being the correct one to be applied. Paras. 80-84 of that decision reads:

80 The Court of Appeal concluded that determining the appropriate test for summary judgment -- whether there is a genuine issue requiring a trial -- is a legal question, reviewable on a correctness standard, while any factual determinations made by the motions judge will attract deference.

81 In my view, absent an error of law, the exercise of powers under the new summary judgment rule attracts deference. When the motion judge exercises her new fact-finding powers under Rule 20.04(2.1) and determines whether there is a genuine issue requiring a trial, this is a question of mixed fact and law. Where there is no extricable error in principle, findings of mixed fact and law, should not be overturned, absent palpable and overriding error, Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 36.

82 Similarly, the question of whether it is in the "interest of justice" for the motion judge to exercise the new fact-finding powers provided by Rule 20.04(2.1) depends on the relative evidence available at the summary judgment motion and at trial, the nature, size, complexity and cost of the dispute and other contextual factors. Such a decision is also a question of mixed fact and law which attracts deference.

83 Provided that it is not against the "interest of justice", a motion judge's decision to exercise the new powers is discretionary. Thus, unless the motion judge misdirected herself, or came to a decision that is so clearly wrong that it resulted in an injustice, her decision should not be disturbed.

84 Of course, where the motion judge applies an incorrect principle of law, or errs with regard to a purely legal question, such as the elements that must be proved for the plaintiff to make out her cause of action, the decision will be reviewed on a correctness standard (Housen v. Nikolaisen, at para. 8).

[35] I now consider this standard of review and apply it to the decision of Master MacLeod.

JURISDICTION

[36] The Appellant argues that Master MacLeod ought not to have decided the motion for summary judgment under Rule 20 and ought to have sent the matter to trial or mandatory mediation. As was pointed out by Justice Beaudoin on the interlocutory proceedings in this matter (para. 13) when this same point was argued by Mr. Minkofski,

… it was open to Master MacLeod to consider the appropriateness of mediation. There is no presumption of mediation in Estate matters as there is in civil cases. I am not satisfied that the mediation process would have revealed any evidence that could have been of any assistance to Mr. Minkofski in this matter.

[37] I adopt the words of Justice Beaudoin. I would even go further and say that sending the matter to mediation would have only resulted in adding to the already five-year delay in this matter.

[38] The jurisprudence supports the conclusion that Master MacLeod had the jurisdiction to hear the motion for summary judgment brought before him by the Respondent under Rule 20. The court includes a master of the court and either a judge or a master, pursuant to Rule 20 are entitled to determine on the evidence presented on the motion whether there is or whether there is not a “genuine issue requiring a trial.” (See Harlon Canada Inc. v. Lang Investments Corporation, 2010 ONSC 5264; Mehdi-Pour v. Minto Developments Inc. 2011 ONSC 3571).

[39] In his reasons Master MacLeod correctly stated the legal test to be applied on a motion for summary judgment. Furthermore, Master MacLeod clearly recognized the limitations of his powers under Rule 20.04(2.1) and (4) which reads:

Powers

20.04 (2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

Only Genuine Issue Is Question Of Law

(4) Where the court is satisfied that the only genuine issue is a question of law, the court may determine the question and grant judgment accordingly, but where the motion is made to a master, it shall be adjourned to be heard by a judge.

[40] Master MacLeod recognized that as a master he was “not entitled to weigh the evidence or make findings of credibility as such.” Master MacLeod stated at para. 59 of his reasons,

59 Under the rule either a master or a judge is entitled to determine that there is no genuine issue of fact or law and therefore that no trial is required because there is no merit to the position of both parties. By contrast a judge may now determine that notwithstanding there is merit to the position of both parties and therefore a genuine if either fact or law the judge may in an appropriate case go on to decide the genuine issue if it is reasonable and just to do so without the forensic machinery of a trial.

[41] Master MacLeod then went on to examine in detail not only all of the evidence presented by the Respondent Estate on the motion but also evidence which was not presented by the Appellant but had been filed in earlier proceedings to the benefit of the Appellant. His conclusion was that there was “no genuine issue requiring a trial” which he was empowered to do. Furthermore, it is evident from his reasons that Master MacLeod, in coming to his final decision as to whether there was a genuine issue requiring a trial on the evidence before him, did not resort to the to the so called “enhanced powers” accorded to only judges under Rule 20.

[42] For these reasons, I find that Master MacLeod correctly dealt with the motion for summary judgment before him. Nor did he exceed his jurisdiction in dealing with the motion.

Genuine Issue For Trial On the Evidence Before Him

[43] Did Master MacLeod misapprehend the evidence such that there is a palpable and overriding error? Mr. Minkofski spent much of his oral argument on this point, arguing points of evidence and interpreting the real meaning of the evidence before Master MacLeod, including that evidence which he failed to put before Master MacLeod in the proper way dealing with the issues of testamentary capacity and undue influence.

[44] In his detailed examination of all of the evidence, Master MacLeod concluded that all of the evidence presented on behalf of the Estate established solidly and consistently the validity of the will. By comparison, the evidence of Mr. Minkofski, firstly, not being first-hand knowledge, consisted of much “opinion, speculation and supposition” which did not in any way establish a “real doubt about testamentary capacity” (para. 46). In the final analysis, Master MacLeod concluded that “the evidence filed by the objector is not of sufficient quality to demonstrate that there is a genuine issue requiring a trial.” (para. 48).

[45] Master MacLeod was acting within his jurisdiction in his analysis of the evidence to determine if there was a genuine question of fact. As he correctly stated at para. 60 of his decision,

60 There is no genuine question of fact if the party relying on a key fact that is essential to success at trial cannot prove it. In determining that issue, the court may draw a negative inference under Rule 20.02(1) if it is appropriate to do so. The court may reject evidence that could not persuade a trial judge such as a bald self serving affidavit, an affidavit that is illogical or internally inconsistent, or an affidavit that is demonstrably incorrect ...

[46] Master’s MacLeod’s analysis of the evidence and findings of fact is allowed deference. My own examination of the evidence would lead to the same conclusion as that of Master MacLeod that there was no genuine issue requiring a trial. For these reasons I cannot find that Master MacLeod misapprehended the evidence such that there is a palpable and overriding error.

BIAS

[47] The legal test for an apprehension of bias appears to be one of “reasonableness” as was enunciated by the Supreme Court of Canada in the case of Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369. The question to be asked is would a “reasonable and right-minded person, applying themselves to the question and obtaining thereon the required information have concluded from observing the proceedings conducted by Master MacLeod and the comments made by him have concluded that there was bias on his part? That question is answered in the negative. Master MacLeod exercised much discretion and demonstrated much flexibility with the rules of procedure and evidence in order to consider whatever evidence was available to him to consider so that the best possible evidentiary case for Mr. Minkofski could be put forward. This ground of appeal is refused.

[48] For all of these reasons Mr. Minkofski’s appeal is dismissed.

COSTS

[49] At the end of this appeal I heard the parties’ submissions on costs. The Respondent has been substantially successful on this appeal and is entitled to its costs that I fix in the all-inclusive amount of $8,969.95. Mr. Minkofski has a number of costs orders outstanding as a result of his pursuit of this litigation. I am of the view that he should not be permitted to bring any further proceedings in this matter until all outstanding costs orders against him have been satisfied and it is so ordered.

M. Linhares de Sousa J.

Released: March 28, 2014

CITATION: Minkofski v. Dost Estate, 2014 ONSC 1904

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

M. LINHARES DE SOUSA J.

BETWEEN:

HORST B. MINKOFSKI

Appellant

– and –

ALAIN BRUNET AND JUNE CHARRON, Estate Trustees

Respondents

decision on appeal

M. Linhares de Sousa J.

Released: March 28, 2014