CITATION: Kostiuk v. Liu, 2024 ONSC 3500

OSHAWA DIVISIONAL COURT FILE NOS.: DC-24-1557 and DC-24-1561

DATE: 20240618

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: IN THE MATTER OF THE ESTATE OF ROBERT WALTER KOSTIUK and THE ESTATE OF WALTER KOSTIUK

BORIS J. KOSTIUK, Applicant

AND:

WANLI LIU, and THE ESTATE OF ROBERT WALTER KOSTIUK, and THE ESTATE OF WALTER KOSTIUK, Respondents

BEFORE: The Hon. Mr. Justice R.E. Charney

COUNSEL: Frank A. Perruccio, Counsel for the Applicant

Wanli Liu, Self-Represented

HEARD: In-Writing

Case Management Direction

[1] This case relates to an Application under Rule 75.06 (Application for Directions) brought by the Applicant, Boris J. Kostiuk, for directions arising in connection with the administration of the Estate of Robert Walter Kostiuk and the administration of the Estate of Walter Kostiuk.

[2] The Application was heard on April 25, 2024 by Verner J., who granted a portion of the Applicant’s application “for oral reasons given” and adjourned the balance of the Application to August 29, 2024.

[3] I am advised by the Court Office that through an administrative error by court staff, Verner J.’s Order was not sent to Ms. Liu until June 6, 2024.

[4] Ms. Liu, who is self-represented, initially commenced an Application for Judicial Review on June 10, 2024. On June 11, 2024 I sent a direction to the parties which included the following:

One preliminary issue that is immediately apparent from the Notice of Application for Judicial Review is that the Applicant is seeking to judicially review the decision of a Superior Court Judge. The Corts have previously determined that the Divisional Court does not have jurisdiction to entertain an application for judicial review of a Superior Court Judge, see: Bevan v. Ontario Society for the Prevention of Cruelty to Animals, 2006 10140 (ON CA), at para. 8, and 1147335 Ontario Inc. v. Thyssen Krupp Elevator, 2012 ONSC 4139, at para. 10. Decisions of Superior Court may be appealed to the Divisional Court or the Court of Appeal depending on the nature of the Order to be appealed and whether leave to appeal must first be obtained: see sections 6 and 19 of the Courts of Justice Act.

The Applicant is encouraged to obtain legal advice to ensure that she has chosen the correct process to appeal from the decision of Justice Verner.

[5] See also 9383859 Canada Ltd. v. The Court of Appeal for Ontario, 2023 ONSC 5344, at para. 10, per Schabas J:

The Divisional Court, over which the Court of Appeal exercises appellate jurisdiction, has no jurisdiction to judicially review decisions of a “superior court of record”, but only those of an “inferior court”: Judicial Review Procedure Act, RSO 1990, c. J.1, s. 1.

[6] On June 14, 2024, the Ms. Liu filed a Notice of Appeal and a Notice of Motion to stay the decision of Verner J. pending the appeal. The Notice of Motion states that it is made without notice to the Applicant. I will deal with the Notice of Appeal and the Notice of Motion separately.

Notice of Appeal

[7] The Order of Verner J. is an order giving directions with respect to disclosure of financial and medical records and certain legal records in the possession of Ms. Liu, unnamed financial institutions, and unnamed lawyers. It also prevents Ms. Liu from dissipating or encumbering any property of the Estate pending the final determination of the application.

[8] The Order is an interlocutory order, and, accordingly, leave to appeal must be sought in accordance with s. 19(1) (b) of the Courts of Justice Act, R.S.O. 1990, c. C-43 and Rules 61.03 and 62.02 of the Rules of Civil Procedure. The Appellant seems aware of this, because her Notice of Appeal states that “The appellant deserves for leave to appeal” (sic). She has, however, filed the wrong court document for a motion for leave to appeal.

[9] The Notice of Appeal must be struck, and Ms. Liu must file a Notice of Motion for Leave to Appeal.

[10] Ms. Liu is therefore granted 15 days from today’s date to bring a motion for leave to appeal in accordance with Rules 61.03 and 62.02. The parties should also review the Consolidated Practice Direction for Divisional Court Proceedings, effective June 15, 2023, which is available on the Court’s website at:

https://www.ontariocourts.ca/scj/practice/div-court-pd/

[11] Part E of that Direction deals with motions for leave to appeal to the Divisional Court and requires that all motions for leave to appeal are heard in writing and are to be filed in Toronto.

[12] Since the April 25, 2024 Order was made “for oral reasons given”, the proposed appellant must obtain the transcript of the Court’s reasons. The filing office can provide her with the website and email address if she needs assistance.

Motion for Stay

[13] Ms. Liu’s motion for a stay pending the appeal must be brought on notice to the Applicant and a hearing date scheduled before a single judge. A date must be obtained from the Trial Coordinator via email: Oshawa.scj.tc@ontario.ca

[14] Pending the hearing of the motion for a stay, I will exercise my authority as Divisional Court Administrative Judge to stay a part of the Order by case management direction.

[15] Paragraph 2 of the Order dated April 25, 2024 provides:

This court orders that within 30 days of this order, the applicant shall be provided an opportunity to attend in person at 166 Lorindale Drive, Oshawa, Ontario to take inventory of the contents of the house and to retrieve his personal belongings, including among other things, knapsacks, air compressor, clothing, books, magazines, artwork, furniture, tools, etc.

[16] This paragraph is too broadly worded to allow it to be enforced in its present form. It does not list the precise objects that the Applicant is permitted to retrieve. Based on the wording of this paragraph, the Applicant appears to have the authority to decide for himself what contents he may retrieve from Ms. Liu’s home. The Order fails to identify which items are his “personal belongings”. This concern is compounded by the fact that there is no indication in his Notice of Application what belongings he was claiming. The Court cannot authorize such a vague and amorphous order. A Court order must be precise enough for the parties to know exactly what they can and cannot do. Court orders should not include the word “etc.”.

[17] See also Rule 44.01(1) of the Rules of Civil Procedure, which states that:

An interim order under section 104 of the Courts of Justice Act for recovery of possession of personal property may be obtained on motion by the plaintiff, supported by an affidavit setting out,

(a) a description of the property sufficient to make it readily identifiable;

[18] The Order obtained by the Applicant does not comply with this requirement. If the Applicant requires an interim Order in the nature of paragraph 2 of the April 25, 2024 Order, he must comply with Rule 44.01(1) and the Order should reflect this requirement.

[19] Accordingly, paragraph 2 of the April 25, 2024 Order is stayed until further Order of the Court.

[20] Paragraphs 7, 8, 9, 10, 11, and 12 of the Order are also problematic. These paragraphs purport to grant the Applicant the right to examine unidentified lawyers, doctors and other health care providers. These persons are not parties to this proceeding and did not have notice of this Application.

[21] The Order purports to waive or dispense with any claim of solicitor-client privilege, and provides:

That any claim of professional confidentiality or privilege between the deceased and any healthcare provider, person, institution or the Ontario Provincial Police, inclusive of privacy regulations or legislation prohibiting obtaining of such information, personal health information in respect of the deceased and documentation governed by the Personal Protection and Electronic Act (sic) and Personal Health Information Protection Act or any other applicable legislation shall be waived.

[22] In my view, these paragraphs of the Order are unenforceable against persons who were not given notice of the Application, and, for greater clarity, all of these paragraphs must be made subject to the right of any person without notice of the Application to raise issues of confidentiality or privilege or legal prohibition with the court before being examined or disclosing documents. Nor can a court order simply “waive” all applicable legislation or regulations “prohibiting obtaining of such information”. I do not know whether any such statutory provisions even exist, but if they do, persons cannot be ordered or authorized to disobey the law.

[23] Accordingly, while I am not staying these paragraphs of the Court Order, these paragraphs are subject to the right of any person without notice of the Application to raise issues of confidentiality or privilege or legal prohibition with the Court before being examined or disclosing documents.

Conclusion

[24] This Court Orders:

a. The Notice of Appeal is struck. Ms. Liu is granted 15 days from today’s date to bring a motion for leave to appeal in accordance with Rules 61.03 and 62.02.

b. The Notice of Application for Judicial Review dated June 10, 2024 is struck.

c. Paragraph 2 of the April 25, 2024 Order is stayed until further Order of the Court.

d. Paragraphs 7, 8, 9, 10, 11, and 12 are subject to the right of any person without notice of the Application to raise issues of confidentiality or privilege or legal prohibition with the Court before being examined or disclosing documents.

e. Ms. Liu’s motion for a stay pending appeal must be brought on notice to the Applicant and a hearing date scheduled before a single judge.

Justice R.E. Charney

Date: June 18, 2024