Court File and Parties

Citation: Gedcke v. Tulpin, 2016 ONSC 140 Divisional Court Files No.: 2072/14 Date: 2016-01-08 Superior Court of Justice – Ontario – Divisional Court

Re: Stephen Austin Gedcke, Respondent (Responding Party) And: Debora Tulpin, Appellant (Moving Party) And: Rod R. Refcio, (Responding Party)

Before: Kent, Molloy, and Lederer JJ.

Counsel: Robert W. Scriven, for the Moving Party Rod R. Refcio, for the Responding Parties

Heard: January 6, 2016, at Toronto

Endorsement

Introduction

[1] Debora Tulpin is the Estate Trustee with respect to the Estate of Pamela Anne Keen (Ms. Tulpin’s sister), who died on November 15, 2013.

[2] Stephen Gedcke commenced an application in the Ontario Superior Court seeking various forms of relief, including an order appointing himself as the executor and trustee of the Estate of Pamela Keen. In his application, Mr. Gedcke claimed to be the common law spouse and fiancé of Pamela Keen. He also sought an Order that he, and others, be named as beneficiaries of the Estate, although not named as beneficiaries under the will.

[3] By Order dated February 14, 2014, Gorman J. removed Debora Tulpin as Estate Trustee, but did not appoint anybody in her place. Gorman J. also ordered a trial of the issues as to: whether Mr. Gedcke was a spouse; whether Pamela Keen’s Last Will and Testament was valid; and, whether Ms. Tulpin should remain administrator of the Estate given that she was named as the sole beneficiary under the will.

[4] By Order dated April 28, 2014, Mitchell J. granted leave to appeal from the Order of Gorman J.

[5] The appeal came on for argument before this Panel in London, Ontario on April 28, 2015. At that time, counsel for Stephen Gedcke advised that his client had died on April 24, 2015.

[6] On consent, an Order was made: (1) granting the appeal; (2) dismissing the application of Stephen Gedcke; and (3) directing that costs could be addressed in writing on a schedule that provided for the Respondent’s submissions within 45 days, and the applicant’s submissions within 15 days after that.

Subsequent Direction re Costs Submissions

[7] Counsel for the successful respondent filed written submissions seeking costs payable against Stephen Gedcke’s solicitor (Rod Refcio) personally, as well as against the Estate of Stephen Gedcke.

[8] The Panel directed that counsel be advised that if relief was sought against the solicitor in his personal capacity, a motion would need to be brought on notice to the solicitor. Further, if counsel for the moving party decided to proceed with such a motion, it could be scheduled before the Panel in Toronto.

[9] The motion was duly scheduled in Toronto for January 6, 2016 and materials were delivered.

The Appearance on January 6, 2016 and Conflict of Interest Issues

[10] Shortly after the commencement of the argument, the Panel realized that Mr. Refcio was the only responding counsel present and that he purported to represent both the interests of the Estate of Stephen Gedcke and his own interests on the motion. The Panel raised this conflict of interest issue with counsel.

[11] The father of the late Stephen Gedcke (the Rev. I. Austin Gedcke) was in court on January 6, 2016 with Mr. Refcio. Rev. Gedcke advised that he is the sole executor and beneficiary under the will of his son Stephen. When asked by the Panel, he stated that he has not had independent legal advice with respect to this matter, but said that he trusted the advice given by Mr. Refcio and wished to proceed.

[12] The purpose of directing a motion and hearing in the first place was so the solicitor could be separately represented from his client. On the issue of who should pay costs, there is a clear conflict of interest between Mr. Refcio and the Estate of Stephen Gedcke. When asked, Mr. Refcio confirmed that he was not undertaking to personally pay any costs award payable against either himself personally or against the Estate. Therefore, any submissions Mr. Refcio may make that he should not personally be liable for costs, is adverse in interest to his client, because a finding that the solicitor is personally liable for the costs may result in the Estate being solely liable. Further, the potential adverse impact on his client, the Estate, is not insignificant as costs are being sought on a substantial indemnity basis in the amount of $56,777. 45 and the Estate is described as being “modest.”

[13] One of the arguments advanced by Ms. Tulpin in support of her claim for costs is that the application brought by Mr. Refcio on behalf of Stephen Gedcke was totally devoid of merit and should never have been brought. In our view, Rev. Gedcke, on behalf of the Estate, is not able to fairly assess the merits of that position without independent legal advice. Further, he is not in a position to waive the rights of the Estate without independent legal advice.

[14] Although Rev. Gedcke advised the Court that he was the sole beneficiary under his son’s will, Mr. Refcio subsequently checked with his office and advised that Stephen Gedcke’s mother is also a beneficiary. Although Mr. Refcio initially thought that Rev. Gedcke had been appointed as Estate Trustee, when he checked with his office, he was advised that the Order has not yet been issued by the court office as there is a problem with some missing documentation in relation to a divorce decree. Although Mr. Scriven advised that he had obtained an Order continuing this matter in the name of the Estate, we have not seen any Order to that effect, although there is a Requisition for it in the Court file. This also needs to be regularized.

[15] In these circumstances, the Panel was not prepared to proceed with the motion with Mr. Refcio representing both his own interests and the interests of the Estate. Further, the Panel was not prepared to permit Rev. Gedcke to speak on behalf of the Estate. He has not been formally appointed as Estate Trustee and has not had independent legal advice as to the interests of the Estate. We also raised a concern as to whether the Estate may need to be represented in court by a lawyer, pursuant to Rule 15.01(1). Finally, although this was not addressed in Court, it is not entirely clear from the material if costs are being sought only against Mr. Refcio personally, or whether the claim is against his law firm. This needs to be clarified.

Order

[16] This motion for costs is adjourned. Mr. Refcio is directed to seek independent advice as to his position of conflict in this matter. Rev. Gedcke is directed to obtain independent legal advice on the position to be taken by the Estate on the costs motion.

[17] Mr. Refcio shall advise the Court and the other parties in writing by January 29, 2016: (a) if he intends to continue representing himself on this motion; and (b) if not, who will be representing him.

[18] Rev. Gedcke shall file with the Court by February 10, 2016: (a) a certificate of a lawyer confirming independent legal advice has been provided; (b) either personally, or through a solicitor, confirmation as to the status of the application to appoint him as Estate Trustee and to continue this proceeding in the name of the Estate; (c) confirmation as to who will represent the Estate on the continuation of this motion.

[19] If Rev. Gedcke wishes to represent the Estate personally, without a lawyer, submissions shall be made in writing to the Court by no later than February 19, 2016 providing the legal authority for the Estate to be represented in litigation other than by a lawyer. Responding submissions may be made by counsel for Ms. Tulpin within seven days after receipt of the submissions on behalf of the Estate.

[20] If the Estate is to be represented by a lawyer, all counsel should confer on whether the continuation of the motion is to be in writing or by oral submissions. If the parties consent, the Panel is prepared to make a decision based on written submissions. If the parties are unable to agree on a timetable for such submissions, the Court should be advised and we will impose a timetable. The parties may rely solely on the submissions already filed, if they see fit. Unless exceptional circumstances can be shown, we would expect all written submissions to be filed by no later than the end of March, 2016, preferably earlier.

[21] There shall be no costs of the January 6, 2016 attendance.

KENT J. MOLLOY J. LEDERER J.

Released: January 8, 2016