Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20220913 DOCKET: C69570

Tulloch, Nordheimer and Harvison Young JJ.A.

BETWEEN

Georgia Tsitsos, Haralabos Tsitsos and Steven Tsitsos Plaintiffs (Respondents)

and

Kakouli Poka Defendant (Appellant)

AND BETWEEN

Kakouli Poka Plaintiff by Counterclaim (Appellant)

and

Georgia Tsitsos, Haralabos Tsitsos and Steven Tsitsos Defendants to the Counterclaim (Respondents)

Counsel: Eric D. Freedman, for the appellant Alex Van Kralingen and Katherine Chau, for the respondents

Heard: September 6, 2022

On appeal from the judgment of Justice Susan Vella of the Superior Court of Justice, dated May 11, 2021, with reasons reported at 2021 ONSC 3418.

Reasons for Decision

[1] This appeal arises out of an unfortunate breakdown in what for many years had been a very close family relationship. The appellant, Kakouli Poka, is the sister of the respondent Georgia Tsitsos and sister-in-law of Georgia’s husband Haralabos (“Bobby”). The respondents succeeded at trial in an action for a monetary remedy and an accounting of property that they own and from which they claimed they were unlawfully excluded. The appellant did not succeed in her counterclaim for unjust enrichment based on a joint family venture largely based on her claim that she was a one-third partner in the family pizza business. The appellant claimed that she had contributed $150,000 (24 million Greek drachmas) to the purchase of the pizzeria business, that she had worked for both businesses and that she had acted as a surrogate mother for the respondents’ son.

[2] Following the oral hearing, we dismissed this appeal for reasons to follow. These are our reasons.

[3] The relevant facts are straightforward. In 1992, the respondent, Bobby, and his business partner purchased a pizzeria in Manitoba for $425,000. The appellant argued unsuccessfully at trial that she was a partner in this joint family venture. She claimed to have contributed 24 million Greek drachmas (approximately $150,000 CAD) that she had received from her ex-husband and that she provided these funds to the respondents to buy their share of the pizzeria. The respondents then reinvested funds from the pizzeria to purchase another business, which the appellant also claimed to form part of the joint family venture. Over the years, the appellant frequently cared for the respondents’ young son who was musically talented. They purchased property in Toronto and the appellant was on title as a joint tenant. From 2005 onwards, the appellant and the respondents’ son were based full-time in Toronto where he was able to pursue his musical studies. The home at the heart of this case was purchased in 2012 and all parties were joint tenants.

[4] Overtime the relationship began to slowly breakdown. Matters came to a head in 2013, shortly after the appellant’s son was charged with a serious criminal offence. Georgia returned to Toronto to act as a surety for the appellant’s son. She returned on the condition that the appellant vacate the home so that she could live there. The appellant’s son was denied bail, so the respondent, Georgia, returned to Manitoba and the appellant moved back into the property. When the appellant returned to the property, she changed the locks and alarm code and refused to give the respondents a new set of keys or the alarm code, thereby preventing them from having access to the home. During this period, the respondents paid the property’s carrying costs and also paid rent for their son’s alternative accommodation in Toronto.

[5] The trial judge, applying the Kerr v. Baranow, 2011 SCC 10, [2011] 1 SCR 269, rejected the claim that there was a joint family venture, making a number of key findings. First, she did not accept the appellant’s claim to have transferred $150,000 to the respondents’ business. In making this finding, she did not accept the evidence of Ioannis Papasotiriou (“Ioannis”) that he provided the appellant with the $150,000. In so doing, she struck Ioannis’ affidavit and dismissed him as a witness, refusing to allow him to testify. She also rejected the appellant’s evidence that she regularly worked at the pizzeria business. In addition, she found that the appellant overstated her role at the businesses and did not perform significant services between 1996 and 2005, and none at all by the time she moved to Toronto. Lastly, she found that while the appellant devoted a significant amount of time to the caring of the respondents’ son, it failed to rise to the level required to establish a joint family venture.

[6] The appellant takes no issue with the application of the Kerr v. Baranow framework to the circumstances of this case. She raises a number of grounds of appeal, and in addition, brought a motion to admit fresh evidence.

[7] At the outset, we see no merit in the application to admit fresh evidence as it fails to satisfy the criteria for admission as established in Palmer v. The Queen, [1980] 1 SCR 759, at p. 775. Central to the proposed evidence is an affidavit of a Greek bank employee, who alleges, amongst other things, that relevant bank records had been improperly altered.

[8] When the fresh evidence is taken with the other evidence adduced at trial, even if believed, it could not have reasonably affected the result. Further, the proposed fresh evidence could have been produced at trial with due diligence and it is neither credible, nor reliable.

[9] All grounds of appeal raised by the appellant are reviewable on a standard of palpable and overriding error as they are questions of mixed law and fact. The appellant has not raised any errors of law with respect to the evidentiary rulings at issue. Trial judges are entitled to wide discretion in making evidentiary rulings and significant deference must be given to their weighing of probative value against prejudicial effect: R. v. Araya, 2015 SCC 11, [2015] 1 SCR 581, at para. 31.

[10] The first ground of appeal is that the trial judge erred in dismissing all of the evidence of one of the appellant’s witnesses, Ioannis, and in dismissing him as a witness after striking his affidavit for lacking an affidavit of translation. The objective of his evidence was to provide confirmation for the transfer of the 24 million drachmas in 1992. The trial judge’s concern arose out of the fact that although the affidavit was written and sworn in English, Ioannis needed an interpreter to testify and was not able to say who had translated the affidavit for him except to say that it was not his lawyer. He also admitted that he had not spoken to English-speaking people for many years. There was no certificate of translation of the affidavit. The trial judge stated, at para. 58, that: “[i]n the absence of a certificate of translation, and based on Ioannis’ admissions … I struck the affidavit and ruled Ioannis’ testimony was inadmissible … on the basis the affidavit and his resulting testimony was unreliable ” (emphasis added). It should be noted that the trial proceeded as a summary procedure trial. The trial judge committed no error in both striking Ioannis’ affidavit and dismissing him as a witness, in the particular circumstances of this case. We see no error in the trial judge’s determination on this point and no basis for interfering with her ruling on that issue. It is also clear that, when read in their entirely, the trial judge’s thorough reasons demonstrate that she considered the evidence as a whole in determining that the appellant did not contribute the $150,000 (24 million drachmas) to the respondents.

[11] The second argument on this appeal is that that the trial judge erred in admitting the respondents’ Greek bank statements into evidence. We disagree. The trial judge found that the probative value of the respondents’ reply evidence outweighed the potential prejudice caused by the limited time that the appellant had to obtain her own responding documents. The respondents were entitled to have a fair opportunity to respond to new matters raised in the appellant’s trial affidavits, including the Greek Bank Statement proffered by the appellant. The respondents’ reply affidavit was filed in compliance with the timetable established by Kimmel J. As already noted, a trial judge is afforded significant discretion and deference when making evidentiary rulings. The appellant has not identified any palpable and overriding error that could justify interfering with her decision on this issue.

[12] Finally, the appellant argues that the trial judge erred in her application of the law of ouster and occupation rent to the facts in this case. Specifically, she submits that the trial judge failed to consider that the appellant had first been ousted by the respondents before subsequently changing the locks and that she failed to properly appreciate the impact of the appellant’s allegations that she was allegedly assaulted by the respondents’ son in her ouster findings. The appellant also submits that the trial judge erred in granting the respondents occupation rent for their son because he had no right to live in the house even if the respondents had not been ousted. Again, we disagree. The trial judge acknowledged that the ouster occurred after the appellant signed an agreement requiring her to vacate the property and after returning and discovering that the locks had been changed on all but one door.

[13] The trial judge also considered and rejected the argument that the appellant feared for her safety. Following her consideration of the evidence, at para. 189, the trial judge found that the appellant “changing the locks was a form of self-help remedy” and further that “[i]f she was fearful for her physical safety, she had other lawful routes to pursue in the civil and criminal justice systems.”

[14] A trial judge’s exercise of discretion in ordering occupation rent should not be interfered with unless the finding is unreasonable, or the trial judge has erred in principle: Griffiths v. Zambosco (2001), 54 O.R. (3d) 397 (C.A.). The appellant has established neither. When her reasons are read as a whole, there is no basis to suggest that the trial judge failed to consider evidence relevant to the issues or failed to give proper effect to the appellant’s evidence, in finding that the respondents had been ousted and were entitled to occupation rent.

[15] The appeal is dismissed. The appellant acknowledged that a costs award for the appeal of $40,000 (inclusive of disbursements and H.S.T.) was reasonable and for that reason, we find that the respondents are entitled to costs in the amount of $40,000 inclusive of disbursements and H.S.T.

“M. Tulloch J.A.”

“I.V.B. Nordheimer J.A.”

“A. Harvison Young J.A.”