Superior Court of Justice – Ontario

Citation: Pietruszka v. Osika, 2015 ONSC 2082 Court File No.: FD 907-2010 Date: 2015-04-01

Re: Teresa Pietruszka (also known as Teresa Osika) (Applicant) And: Marek Jerzy Osika (Respondent)

Before: Justice B.W. Miller

Counsel: Norman A. Pizzale, for the Applicant James Dean, for the Respondent

Heard: March 4, 2015

Endorsement

[1] The Respondent is in the difficult position of asking the Court to exercise its discretion to reopen a Final Order. It is a task made all the more difficult by the Respondent’s history of delay and obstruction. For more than three years the Respondent frustrated the orderly movement of these proceedings, preserving a status quo that was to his advantage while ignoring court orders and treating his poor health as licence to defy orders whenever it suited him. The Applicant eventually obtained final judgment against him in default on September 17, 2013. It is against this Final Order of Justice Mitrow that the Respondent now moves.

[2] The Respondent’s chief argument is that he was extremely ill during some of the critical moments in the litigation, that his illness prevented him from instructing counsel, and that it would be just for the Respondent to now present his evidence and argument and have the Final Order reconsidered. It is the Respondent’s evidence that near the beginning of the proceedings he was hospitalized and, for a time, comatose and that none of the four judges who made rulings against the Respondent over the past five years accurately understood the nature of his illness and the extent of his incapacity.

[3] The difficulty is that such hardship as there might have been does not excuse the failure to file an Answer over a three year period and comply with other orders. This is particularly since the Respondent was apparently well enough to instruct his counsel (not Mr. Dean) on other matters and to execute tactics to frustrate the Applicant’s ability to realize on the sale of family property, tactics which were amply deserving of the censure that they received.

[4] The history of these proceedings up to April 2013 is canvassed in detail by Justice Mitrow in his reasons dated September 17, 2013. Those reasons chronicle the Respondent’s participation in the litigation and repeated failures to abide by orders to file an Answer, provide disclosure, facilitate the sale of properties, and pay costs.

[5] Justice Vogelsang made an order dated August 28, 2010, which was varied (with the participation of the Respondent) by the temporary order of Tausenfreund J. dated December 10, 2010. In May 2011, the Respondent consented to an order requiring that he deliver his answer within 15 days. On May 31, 2011, the Respondent failed to appear at a case conference and Henderson J. ordered that the applicant could bring a motion for judgment without notice to the respondent, and that the respondent be served with Henderson J’s order and endorsement. Justice Henderson made note at that time of the respondent’s failure to provide disclosure.

[6] On August 10, 2011 the respondent appeared in court in person and obtained an adjournment of the summary hearing to October 21, 2011. The respondent still had not filed an answer despite being ordered to do so. On October 21, 2011, the matter came for summary hearing before Templeton J. Respondent’s counsel appeared and requested an adjournment. The adjournment was granted but subject to a number of conditions. Among other things, the temporary order required the respondent to serve and file his answer forthwith, provide disclosure, an affidavit, and a factum within 21 days. He was further ordered to deposit $5,000 with the court within 21 days, failing which the matter would proceed to a summary hearing on an uncontested basis on a date convenient to the applicant.

[7] The respondent complied with no part of that order and instead filed an appeal in Divisional Court, by way of Notice of Appeal dated November 21, 2011. The respondent then took no further steps towards perfecting the appeal. On March 13, 2013 the appeal was dismissed for delay.

[8] With the appeal of the order of Templeton J disposed of, counsel for the Applicant was finally able to proceed with the summary hearing, which was set down without notice to the respondent (as provided for in the order of Templeton J.) and heard by Mitrow J. on April 3, 2013.

[9] The hearing, though unopposed, took a full day to argue. Justice Mitrow’s reasons for judgment are 20 pages long and canvass the evidence exhaustively. Justice Mitrow’s order addressed custody, access, child support, and matrimonial property.

[10] The respondent was served with the September 24, 2013 order of Justice Mitrow, and filed the present motion and supporting affidavit on November 18, 2013.

Reasons

[11] The respondent proceeds under Family Rule 25(19), which provides:

(19) The court may, on motion, change an order that,

(a) was obtained by fraud;

(b) contains a mistake;

(c) needs to be changed to deal with a matter that was before the court but that it did not decide;

(d) was made without notice; or

(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present. O. Reg. 151/08, s. 6.

[12] The respondent argues that the Order of Justice Mitrow contains mistakes within the meaning of Rule 25(19)(b) that permit the Court to reopen this matter. The respondent argues, for example, that Justice Mitrow inaccurately valued a mobile home and some property in Florida, and failed to fully appreciate the extent of the limitations imposed on the respondent on account of his poor health.

[13] That the respondent disagrees with a finding of fact, supported by evidence, does not convert it into a ‘mistake’ within the meaning of this rule. Rule 25(19) does not authorize the court to allow for the relitigation of matters (Purcaru v. Purcaru, 2010 ONSC 4031, Gray v. Rizzi, 2011 ONCA 436).

[14] Neither can the respondent avail himself of Rule 25(19)(d). Where a final order is made without notice because notice is not required, a party cannot resort to that rule (Diciaula v. Mastrogiacomo, (2006) 2006 CanLII 11928 (ON SCDC), 268 D.L.R. (4th) 180 (Div Ct).

[15] Alternatively, and this appears to be the main thrust of the respondent’s argument, at various stages in the proceeding the Respondent was not present due to his illness and this tainted the entirety of the proceeding. If he had not been ill, he says, he would have filed an answer, would have participated in all of the various steps of the litigation, and would have filed affidavit material providing the court with evidence that might have resulted in different orders being made.

[16] His illness, he argues, prevented him from instructing counsel in the summer of 2010, and on an on-going basis prevented him from complying with numerous court orders throughout 2010 and 2011, including serving and filing an answer at any time from 2010 to 2013.

[17] The only evidence related to his health that the respondent filed on this motion is his affidavit, sworn November 18, 2013. That affidavit is 15 paragraphs long and attaches no exhibits. Six of those paragraphs are assertions of various health problems. Most of those paragraphs simply summarize the more complete evidence that the Respondent had provided in his affidavit dated September 24, 2010, which attached medical reports and records.

[18] The evidence of the Respondent’s poor health was specifically brought to Justice Mitrow’s attention by counsel for the Applicant. As Mitrow J. noted in the reasons for judgment, ‘(a)lthough this was an uncontested trial, Mr. Pizzale, quite fairly, invited the court to consider the respondent’s affidavit evidence as it relates to his medical issues.’ The medical evidence drew this comment:

[20] While the affidavit evidence does establish that the respondent had some health issues that contributed to his failure to file pleadings resulting in the final order of Vogelsang J dated August 18, 2010, the evidence supports the finding, which I make, that the respondent has steadfastly ignored his responsibility to file his pleadings and provide disclosure as ordered by the court. Further the respondent engaged in conduct designed to obstruct the efforts of the applicant and her counsel to sell the various income properties.

[21] In particular, the respondent engaged in inexcusable, obstructive behaviour in relation to the Stuart Street property, needlessly forcing the applicant’s counsel to bring motions to remove the respondent from the property, so that the property could be sold with vacant possession.

[19] What Mitrow J. alludes to in reference to the Stuart Street property is this: despite agreeing to cooperate in the sale of a duplex located on Stuart Street, the respondent refused to cooperate in any aspect of the sale, from permitting a realtor to view the property for listing it for sale, to providing vacant possession, and every step in between. To facilitate the listing and sale of that property, the applicant had to obtain orders from Templeton J (April 6, 2011), Mitrow J (May 11, 2011), Vogelsang J (July 13, 2011), and a writ of possession (June 15, 2011). The Sheriff attended on multiple occasions to enforce the writ of possession, which the respondent simply circumvented by moving his possessions from one half of the duplex to the other.

[20] The respondent, though claiming to be too ill during this period to instruct counsel and otherwise comply with any of the orders made, was nevertheless physically able to resist the enforcement of the writ of possession. He was also able to attend court in person on April 6, 2011, August 10, 2011, and October 21, 2011.

[21] There is no basis in Rule 25(19) to reopen an order in these circumstances.

[22] Although this motion was brought under both Family Law Rules, Rule 25(19) and Rule 19.08 of the Rules of Civil Procedure, counsel rightly chose not to proceed with the argument under the Rules of Civil Procedure, which have no application.

Disposition

[23] In summary, there are consequences to not complying with court orders. Notwithstanding the heroic efforts of Mr. Dean in his oral submissions, the motion is dismissed.

Costs and funds held in trust

[24] The Applicant submitted a bill of costs in the amount of $13,835.46 (inclusive of HST and disbursements) based on an hourly rate of $350, which is entirely reasonable for a counsel of Mr. Pizzale’s seniority. Mr. Pizzale noted that that bill was inflated by $700 for a hearing in December that ultimately did not take place, but did not account for $1,400 in fees for today’s hearing. Accordingly, costs are awarded in the amount of $14,626.46 (inclusive of HST and disbursements) payable by the Respondent forthwith.

[25] I am advised that there is approximately $33,000 in funds that remain in trust pursuant to the Order of Mitrow J. dated September 13, 2013. These costs may be paid by the Applicant to herself from these funds which she the Applicant is currently holding in trust to the credit of the Respondent.

[26] Further, the Applicant may withdraw the sum of $10,000 from these trust funds, as provided by para. 18 (c) of the Order of Mitrow J. dated September 13, 2013.

[27] The remainder of the funds in trust are to the credit of the Respondent. I am advised that the Applicant has been served with a notice of garnishment from Harrison Pensa LLP, with respect to a solicitor’s lien. The Applicant is directed to pay out to Harrison Pensa LLP, from the funds remaining that are held in trust to the credit of the Respondent, the amount specified in the notice of garnishment (or such lesser amount as remains in trust to the credit of the Respondent). If there are any funds remaining to the credit of the Respondent, they are to be paid to the Respondent by sending a cheque payable to him at his last solicitor of record.

[28] Given the Respondent’s history of non-cooperation in these proceedings and the attendant increase in cost to the Applicant, the need for personal service of the order and endorsement is dispensed with, and the Applicant is to serve a copy of the order and these reasons on the Respondent by ordinary mail sent to his last counsel of record.

Justice B.W. Miller Date: April 1, 2015