COURT FILE NO.: 01-2289/12;
And COURT FILE NO.: 01-2338/12; COURT FILE NO.: CV-13-489717
DATE: 20140620
ONTARIO
SUPERIOR COURT OF JUSTICE
ESTATES LIST
IN THE MATTER OF THE ESTATE OF BOZENA OPARA, deceased
Court File No. 01-2289/12
THOMAS OPARA Applicant(Respondent)
– and –
MICHAEL OPARA Plaintiff (Moving Party)
And Court File No. 01-2338/12
AND IN THE MATTER OF THE ESTATE OF DARINKA PESTOTNIK (Also known as Doreen Pestotnik), deceased
LARA PESTOTNIK Applicant
– and –
TOM OPARA AND MICHAEL OPARA Responding Parties
AND
Court File No. CV-13-489717
MICHAEL OPARA Plaintiff
– and –
THE ESTATE OF BOZENA OPARA, THOMAS OPARA, LARA PESTOTNIK, MIKE PESTOTNIK, THE ESTATE OF DARINKA PESTOTNIK, ROBERT A.L. SHOUR, SHIBLEY RIGHTON LLP, MATTHEW URBACK and CLAYTON HUDSON Defendants
Angela Casey, Counsel for the Respondent
Natalie Schernitzki, Counsel for the Moving Party
Anne Posno and Nadia Campion, Counsel for the Applicant Lara Pestotnik
Susan Sack, Counsel for Defendant Robert Shour
Jameel Madham, Counsel for Defendants Shibley Righton LLP and Matthew Urback and Clayton Hudson
Sean Dewart, Counsel for Defendant Shael Eisen as E.T.D.L.
Robert Isles, former counsel for Michael Opara (not off the Record but will be a “witness” in this Motion)
HEARD: JUNE 10, 2014
ENDORSEMENT: GREER J.:
[1] On March 28 and 31, 2014, Mr. Justice D. Brown made 2 Orders on Consent of the parties in this litigation. All parties in the 3 actions before Brown J. had reached a Consent Agreement on the terms of the Orders. Michael Opara was represented by 2 counsel, Robert Isles and Jason Cherniak, on the 2-day hearing. He now moves before the Court for the extensive relief requested in his Notice of Motion dated May 6, 2014. He firstly asks that “all Orders” made by D. Brown J. on March 28, 2014 be set aside. Specific reference is not made to the Order of March 31, 2014. He then asks for an interim inunction refraining Shael Eisen, the E.T.D.L., from acting in the capacity, that he be ordered to deliver up certain documents, and that he be removed as the E.T.D.L. The grounds on which Michael Opara moves, are set out therein.
[2] On April 16, 2014, Counsel in this matter were put on notice that such a Motion would be brought on and were finally served with materials on May 6, 2014. An attempt was made on an urgent basis to get the matter on before the Court. They were given a May 21 date but it was not acceptable to Michael Opara’s counsel. Today’s date was finally given to them. It was set for 2 hours.
[3] All Responding Counsel prepared materials and served and filed them. Counsel for Lara Pestotnik served Michael Opara with an appointment to examine him on his Affidavit. He did not appear and was in default. Everyone assumed the Motion was going ahead on today’s date.
[4] Mr. Eisen, E.T.D.L., brought on a Cross-Motion to be heard, asking the Court for directions on the issue of the sale of the 29 Matthew Road house, owned by the Opara and Pestotnik Estates. In the alternative, he moved for an Order to have himself removed as the E.T.D.L.
[5] On June 3, 2014, all counsel received a fax from Ms. Schernitzki of Morrison Brown Sosnovitch LLP, asking for an adjournment of today’s Motion. She says they have “recently been retained” by Michael Opara. I assumed this meant that Mr. Isles, former counsel for Michael Opara, was either in the process of resigning as counsel or had been terminated by Michael Opara. This turns out not to have been the case. Mr. Isles wants to file an Affidavit in the proceeding, supporting his client’s Motion.
[6] The Responding Parties did not consent to an adjournment and appeared today opposing it, wanting the Motion to go ahead to keep the matter moving forward. Each opposing counsel argued why it should not be adjourned. Each counsel set out, in the time allotted, fulsome reasons why the Orders of D. Brown J. should not be set aside. Mr. Eisen’s counsel took no position on the two Orders. He said if an adjournment was granted, Mr. Eisen’s Cross-Motion should go ahead.
The Orders of Mr. Justice Brown
[7] Mr. Justice Brown was faced with several Motions in the 3 litigation matters before the Court. The Will challenge action continues to remain outstanding and was not part of those Orders. The motions before him were:
(a) removing Anthony Frost as E.T.D.L.
(b) lift a stay in proceeding to allow him to obtain a CPL on the Maxwell house property and to amend his Statement of Claim.
(c) that of Thomas Opara to vary the Settlement Agreement and Consent Orders of Mr. Justice Moore made June 4, 2013 and to appoint Shael Eisen as new E.T.D.L.
(d) Lara Pestotnik’s Motion to vary as in (c) above.
[8] The parties consented to the terms of an agreement settling all issues in Minutes of Settlement dated March 28, 2014, which amended or varied the Moore J. Order of June 4, 2013. Mr. Opara says D. Brown J. placed his “personal agenda” ahead of Mr. Opara’s right to be heard and did not give him a “fair and just” hearing. He said D. Brown J. placed him under “duress” and “coerced” him into signing the Minutes. He says his counsel was not allowed to make submissions. He makes other allegations against D. Brown J.’s conduct in obtaining the Settlement.
[9] The adjournment was requested so that new counsel could familiarize herself with the mass of materials already filed, to further amend the Notice of Motion and add new evidence, to allow examination of all lawyers present at the Hearing. At no time did Michael Opara ever move to Appeal the terms of the Consent Order, which settled 3 litigation files. Mr. Opara was critical of the fact that D. Brown J. had only spent 2 hours reading the materials. (emphasis added)
Analysis
[10] The heart of all this litigation is the house on 29 Maxwell Avenue in Toronto, owned by the 2 Estates as tenants-in-common. It has been the centre of this litigation. Mr. Eisen’s task as E.T.D.L. was to sell it, with the proceeds to be held in trust pending the outcome of all these actions. Mr. Opara wants the house to be his and says his First Right of Refusal on the sale of the house, was ignored. Indeed, para. 15 of the D. Brown J. Order of March 28, 2014 directs that para. 2 of the Order of Moore J. dated June 4, 2013 in Court File No. 01-2289/12 dealing with a right of first refusal to purchase 29 Maxwell, as set forth in Schedule “A” attached, is no longer of force or effect.
[11] It is Michael Opara’s position that this adjournment should be granted. He refers to Khimji v. Dhanani Estate, 2004 12037 (ON CA), [2004] O.J. No. 320 (C.A.) para. 14, where the Court says that “…a trial judge enjoys wide latitude in deciding whether to grant or refuse the adjournment of a scheduled civil trial. The decision is discretionary and the scope for appellate intervention is correspondingly limited.” Further, the Court points out that the Judge must balance the interests of the parties. In para. 17, the Court says the overall objective of civil proceedings is “a just determination of the real matters in dispute”. (emphasis added)
[12] Indeed, Opara also refers to Ariston Realty Corp. v. Elcarim Inc., 2007 13360 (ON SC), [2007] O.J. No. 1497 (Ont.S.C.J.). That case sets out in para. 14, a list of factors that must be weighed by the Judge or Master in reaching such a decision. One of these is the competing interests of the parties in advancing or delaying the progress of the litigation. Another is the prejudice not compensable in costs suffered by a party in the granting or refusing of the adjournment. Further, it states the Court must look at the need of the administration of justice to effectively enforce court orders.
[13] The Respondents all oppose the adjournment (except Mr. Eisen, whose position I have earlier stated). Their position can be summarized as follows:
The vacant house – it is empty with the costs of operation continuing to mount at the expense of both estates. The Pestotnik Estate has borne all the expenses, so far, by agreement of the parties, to be equalized after the house sells. Those expenses owing are now over $11,000. There is only $600 left in the Pestotnik Estate chequing account and the Bank refuses to release further funds with no Estate Trustee is in place. The insurer while continuing coverage, is concerned about the vacancy continuing.
Michael Opara has made threats to remove Mr. Eisen, to sue the real estate agent, and has made allegations against nearly all counsel involved as well as criticized the 2 different E.T.D.L.’s as well as the judiciary.
The litigation has dragged on for 3½ years and a further delay is prejudicial to the rights of the Respondents who also have interests in the 29 Maxwell house.
Michael Opara was represented by 2 competent counsel during the settlement negotiations. Mr. Opara did not seek an adjournment on that date (although his counsel says he was going to do that). The Confirmation form filed by Michael Opara’s counsel says he was ready to go on all issues.
The issue of Michael Opara having a right of first refusal on a sale of the property was “played out” and the issue was spent before the discussion came on before D. Brown J.
The action involving LawPro and the Shibley Righton, firm, Hudson and Urback was dismissed on Consent and the LawPro released signed. Counsel heard nothing until April 17, 2014 and still do not have a clear answer as their separate Order of March 31, 2014 by D. Brown J. is not mentioned specifically in the relief sought. They say there is no merit to the claim and no basis to adjourn the Motion, which should be dismissed.
They say this Motion and the adjournment are in the nature of an injunction, freezing the administration of the property at the expense of the other beneficiaries, and at great cost to all. In addition, Michael Opara is in reality seeking an interim injunction to refrain everyone, including Mr. Eisen, from in any way dealing with the assets of the 2 Estates. This simply means that the sale of the house will again be delayed by Michael Opara, as there are no dates available, if it is adjourned, until October 2014, for the adjourned Motion to be heard.
Conclusions
[14] I refuse to adjourn the following aspects of the Michael Opara Motion for the following reasons:
(a) The March 31, 2014 Order of D. Brown J. in File No. CV-13-489717, respecting the claims against the Shibley Righton firm, Matthew Urback and Clayton Hudson, and Robert Shour, which was agreed to, is a discrete issue in the litigation. It involved the counsel and firm having to notify LawPro due to allegations made by Opara. A release was signed with respect to it and it has been dismissed. To adjourn that issue and have it go forward on a Motion to set it aside, would not be in the interests of the administration of justice. The “real matter” in dispute is the issue of the sale of the 29 Maxwell Avenue property and Michael Opara’s perception that he was coerced in settling the issues.
[15] Counsel for all those parties and Robert Shour were adamant that Michael Opara’s counsel, Jason Cherniak, made substantive submissions in the proceeding. All counsel and LawPro were in agreement that that action should be dismissed. They say there was no merit to the case and they say there is “no evidence of judicial duress in this action.”
[16] This case was, as counsel put it, one where Michael Opara alleged that 2 of those counsel had interfered with his right of first refusal. As I see it, Michael Opara was alleging solicitors’ negligence, which was denied. He agreed to pay a portion of those solicitors’ costs, as set out in the Order, to be paid on the closing of the sale of the house, from his own partial entitlement to it.
[17] To allow this Order to be set aside on an adjournment, would leave all these Respondents in limbo. In exercising my discretion to not adjourn that Order and the Shour one, and to deal with it on the merits, falls within that factor set out in Ariston, supra, as, “the need of the administration of justice to effectively enforce court orders.” The Order and Shour Order remain in force.
(b) Para. 2 of Michael Opara’s Notice of Motion asks for an interim injunction to refrain Mr. Eisen from carrying out his duties as the E.T.D.L. In para. 3, he asks for an Order that Mr. Eisen deliver up certain documents. In para. 4, he asks for an Order removing Mr. Eisen as the E.T.D.L. I refuse to grant an adjournment of the relief sought in those paragraphs.
Mr. Eisen was appointed on the consent of all parties as a neutral party. He replaced Mr. Frost as the former E.T.D.L. To now remove Mr. Eisen would be a folly in the circumstances of this case. He has intimate knowledge of the litigation. He has dealt with aspects of a possible listing. To now have a third E.T.D.L. appointed would further increase the legal costs. None of the Respondents in the 3 litigation matters would consent to that removal to prevent the whole issue to be re-litigated again.
[18] Michael Opara’s new counsel put forth the name of a retired accountant as a new E.T.D.L. as being someone acceptable to Opara, as having “reasonable” hourly rates. Such a move, again, would be in the form of an injunction, since Michael Opara would oppose him dealing with the sale house while he litigated the issue of whether the Orders of D. Brown J. should be set aside.
[19] In para. 5 of the Grounds of his Motion, Michael Opara says that Mr. Eisen “acted improperly”, “not acted loyally, prudently or in good faith. His behaviour has been improper and reckless in a manner that endangered the Estates or the beneficiaries. He misled the Court”. There is no basis, in the extensive materials I read for the Motion, thinking it was going ahead, that in any way supports these general comments. They are totally without merit and border on being scandalous. Mr. Eisen is a lawyer and an officer of the Court. He shall remain in place as the Estate Trustee during Litigation with all the powers connected thereto.
[20] Mr. Eisen’s own Cross-Motion is adjourned without prejudice to him bringing it back on before the Court if any beneficiary tries to interfere with his role, or if he believes it is in the best interests of the Estates to resign.
[21] I adjourn the balance of the Motion as it relates to the truncated version of the March 28, 2014 Order of D. Brown J. Paras. 1-7 remain as they relate to the role of the E.T.D.L. Paras. 9, 10 and 11 and 13 and 16 remain as well regarding Mr. Eisen’s powers. That leaves paras. 8, 12, 14 and 15 remaining in place as that part of the Order Michael Opara wants to argue should be set aside. An Order shall go accordingly that those paragraphs remain to be dealt with on the adjournment Motion.
[22] When the issues of the Costs of the on-going expenses of 29 Maxwell Avenue and how these are to be paid and who shall do the daily inspection of the property as the litigation continues, were raised by all Respondents, Michael Opara, through his counsel, he undertook to do those daily inspections and to personally pay all on-going expenses, subject to the division of those between the two Estates once the house is sold and he has been repaid. An Order shall go accordingly to that effect. He shall provide the E.T.D.L. with copies of paid receipts monthly for all expenses.
Adjournment
[23] The balance of the Motion is adjourned to OCTOBER 17, 2014, a date agreed upon by the Estates Office, for 2 HOURS.
Costs
[24] All of the Respondents ask for their Costs of today. Each had done extensive preparation and was ready to argue the Motion. They were taken by surprise by the request for an adjournment. Each argued the position of the Respondents each acted for and argued that no adjournment should be granted. Counsel all had Bills of Costs prepared and made submissions on behalf of his or her clients as follows:
Ms. Anne Posno and Ms. Nadia Campion for the Respondent, Lara Pestotnik ask for their Costs of today and those thrown away on the failure of Michael Opara to appear at the appointment set up to Cross-examine him on the new Affidavit. Their Bill of Costs on a Full Indemnity Basis including today’s appearance is $14,312.50 plus $1,860.63 in HST plus $1,845 for today plus $1,320.47 for disbursements. These fees are ½ of what the actual cost is on an hourly basis.
Angela Casey for the Respondent, Thomas Opara, asks for $12,500.36 on a substantial Indemnity basis, with fees of $8,917.50 plus today’s appearance of $1,500 plus $644.76 disbursements plus $1,438.10 HST.
Jameel Madham for the Respondents, Shibley Righton LLP, Matthew Urback and Clayton Hudson asks for the amount of $7,012.50 plus HST, which I calculate as $911.63, for a total of $7,924.13. It includes fees of $4,712.50 plus $800 for today’s appearance, plus $911.63 HST, on a Substantial Indemnity rate.
Susan Sack for the Respondent, Robert A.L. Shour, asks for the amount of $7,483.43 inclusive of fees of $6,622.40 plus HST of $860.93 with no disbursements.
Sean Dewart for Shael Eisen E.T.D.L. asks for the amount of $15,811.97 as his actual rate, including fees of $13,052.64 inclusive of HST plus $2,500 for today’s appearance plus $259.33 for disbursements.
[25] The Applicant, Michael Opara, takes the position that no Costs should be on a full indemnity basis, no matter who the Respondent is. He says his is only a request for an adjournment. All Motion materials will be used again if the adjournment is granted. In his view, all Costs should be left to Judge hearing the Motion and if any are awarded, it only should be on a reduced scale.
[26] I find that all Respondents are entitled to some Costs of the Motion. They were all prepared. The actual time was 3 hours, not 2, and that was only for the adjournment request, and a partial hearing, not the full Motion. To try to resile from a settlement at this late date in a proceeding is unusual. The other parties are beneficiaries of the estate or former counsel and all have had to respond to the Motion of a litigant with a ¼ interest in the Estates, subject still to a Will challenge not yet determined. The lateness of the request for an adjournment has delayed the sale of the house further. Some see Michael Opara’s actions as “vexatious”, some see further delays as “impairing” the rights of the other beneficiaries, some say the delay in bringing the request for the adjournment plus the depletion of estate assets for the upkeep and expenses of the house causes irreparable harm. I agree that they are entitled to some Costs.
[27] In considering what Costs should be awarded in the circumstances of this case, I have taken into account the following factors:
● the principle of proportionality, given the number of years this litigation has taken, with one more aspect, the Will challenge, still to be dealt with;
● the complexity of the various aspects of the litigation and number of counsel involved;
● the claims against the E.T.D.L. were vexatious and bordered scandalous;
● the expectations of the moving party and the Respondents;
● the delay again in dealing with the sale of the house.
[28] Given the above, I conclude that Michael Opara must bear the Costs of this partial adjournment. I fix the scale of the Costs on a partial indemnity basis, as the counsel for the Respondents will use their materials already filed, thinking that the Motion was to proceed that day.
[29] I award the following Costs to the Respondents:
Ms. Posno and Ms. Campion for Lara Pestotnik. Their Costs are fixed at the reduced rate, as it is far below their regular rate, less the time of a second counsel on the Motion. Costs awarded are $18,424.60. I have taken into account the time spent on trying to cross-examine Michael Opara on his new Affidavit and his failure to attend.
Ms. Casey for Thomas Opara. She has set out her fees on a partial basis as $8,641.43. This includes $1,000 for the Appearance today.
Mr. Madham for Shibley Righton LLP, Matthew Urback and Clayton Hudson. The mathematical calculation appears to be incorrect on the first page. There is no HST calculation and the 3 figures add up to $5,612.50 so I assume it is included in the figure. They were successful in having their aspect of the litigation not adjourned. Their Costs are fixed at $5,612.
Ms. Sack for Robert L. Shour. Her actual and partial rates per hour are only $7/hr. difference. She was successful in having her client’s opposition to the adjournment heard and that part of Michael Opara’s Motion dismissed. Her Costs inclusive of HST are fixed at $7,000. I award no Costs for the preparation of the Costs outline.
Mr. Dewart for Shael Eisen, E.T.D.L. I refused to adjourn that part of Michael Opara’s Motion dealing with the E.T.D.L. and Mr. Eisen remains at the continuing E.T.D.L. Mr. Dewart’s partial and actual rates remain the same. The E.T.D.L. is entitled to his actual Costs less $1,000 of the fee for today’s Appearance. They are fixed at $14,811.97.
[30] All Costs totalling $54,490 are payable by Michael Opara personally within 30 days of this Order. Interest shall run at the Courts of Justice Act rate until paid in full.
Greer J.
Released: June 20, 2014
COURT FILE NO.: 01-2289/12;
And COURT FILE NO.: 01-2338/12;
COURT FILE NO.: CV-13-489717
DATE: 20140620
ONTARIO
SUPERIOR COURT OF JUSTICE
ESTATES LIST
IN THE MATTER OF THE ESTATE OF BOZENA OPARA, deceased
Court File No. 01-2289/12
THOMAS OPARA Applicant(Respondent)
– and –
MICHAEL OPARA Plaintiff (Moving Party)
And Court File No. 01-2338/12
AND IN THE MATTER OF THE ESTATE OF DARINKA PESTOTNIK (Also known as Doreen Pestotnik), deceased
LARA PESTOTNIK Applicant
– and –
TOM OPARA AND MICHAEL OPARA Responding Parties
AND
Court File No. CV-13-489717
MICHAEL OPARA Plaintiff
– and –
THE ESTATE OF BOZENA OPARA, THOMAS OPARA, LARA PESTOTNIK, MIKE PESTOTNIK, THE ESTATE OF DARINKA PESTOTNIK, ROBERT A.L. SHOUR, SHIBLEY RIGHTON LLP, MATTHEW URBACK and CLAYTON HUDSON Defendants
ENDORSEMENT
Greer J.
Released: June 20, 2014