CITATION: Kilitzoglou v. Curé et al, 2015 ONSC 369

COURT FILE NO.: CV-08-088632-00

DATE: 20150119

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Helen Kilitzoglou

Applicant

– and –

Tanya Curé and Shannon Curé, Estate Trustees of the Estate of Al Curé, Deceased

Respondents

Leo Klug, for the Applicant

Margaret Rintoul, for the Respondents

HEARD: January 14 and 15, 2015

REASONS FOR DECISION

mckelvey j.:

Introduction

[1] On April 2, 2008, Helen Kilitzoglou commenced an application seeking financial remedies under the Succession Law Reform Act and other relief relating to her common law relationship with Mr. Curé. Mr. Curé had died earlier, in April 2007. Numerous heads of relief were claimed in the application, including: support, an order transferring Mr. Curé’s interest in a property in Vaughan where the couple lived to Ms. Kilitzoglou, or alternatively, the right to partition and sale of the property, an order that the proceeds of a Transamerica life insurance policy taken out by Mr. Curé before his death be paid to Ms. Kilitzoglou, an order to determine the validity of the deceased’s last Will, an order removing Tanya and Shannon Curé as Estate Trustees of Mr. Curé, a declaration that the cohabitation agreement was void, as well as a number of other claims.

[2] This application was one of three legal proceedings involving Ms. Kilitzoglou and her company, Life Line Manufacturing Inc. Pursuant to an order of the court, all of the actions were tried together between May 2012 and July 2013. Written reasons for judgment were released on February 14, 2014.

[3] Subsequent to the release of the written Reasons for Judgment, Ms. Kilitzoglou brought a motion seeking an order to reopen the evidence at trial to permit further evidence on repairs needed to the home in Vaughan, which she asserts should be paid by the Estate. She also seeks to vary the Reasons for Judgment so as to allow expenses as set forth in her affidavits filed in support of the motion to be included in the judgment. The relief sought on this motion was vigorously opposed by the respondents.

[4] My decision was delivered orally on January 14, 2015 and I stated at that time that written reasons would be provided. These are my written reasons.

Background

[5] In my judgment on February 14, 2014 dealing with the application, I made an award in favour of Ms. Kilitzoglou for expenses relating to the home, based on a cohabitation agreement between the parties. At trial, the Estate acknowledged its responsibility for all home expenses for the first three years after Mr. Curé’s death. The Estate took the position that Ms. Kilitzoglou was responsible for all expenses, including capital expenses, after the expiry of three years. Given that the only evidence of expenses before me at trial related to the first three years following Mr. Curé’s death, I was not required to determine whose responsibility it was for payment of capital expenses following three years from Mr. Curé’s death. I noted in my judgment as follows.

There was considerable argument before me as to what financial obligations Ms. Kilitzoglou has to the Estate following the expiry of three years from the death of Mr. Curé. While the Estate acknowledges its responsibility for payment of all expenses for the first three years after Mr. Curé’s death, it takes the position that Ms. Kilitzoglou is responsible for all expenses after the expiry of three years. The agreement itself was clear that on the expiry of three years, Ms. Kilitzoglou was responsible for payment of maintenance of the premises. The question is whose responsibility it is to pay for any capital expenses required. While this issue is not something I am required to decide, in light of the acknowledgment by the Estate that the expenses before me relate to the first three years following Mr. Curé’s death and that they are payable by the Estate, I am providing my analysis of the proper interpretation of the agreement in hope that it may be of some assistance to the parties at a later time.

[6] I therefore considered at the time of my judgment that my comments with respect to the responsibility of the Estate to pay for capital expenses after three years from the death of Mr. Curé were obiter.

[7] On the motion before me, Ms. Kilitzoglou took the position that my interpretation of the ongoing obligation of the Estate for capital expenses was not obiter, that this was a matter I was required to decide and that the evidence should be reopened to allow Ms. Kilitzoglou to give evidence on captial expenses which were incurred after April 2010 (the third anniversary of Mr. Curé’s death) and which had not been claimed at trial.

[8] In addition, Ms. Kilitzoglou sought to introduce new evidence on expenses that she had previously given evidence on at trial where she had relied on estimates which she concluded after receiving my judgment were inaccurate. For this reason as well, Ms. Kilitzoglou sought to reopen the evidence so that she could “update” the cost estimates which she had introduced at trial.

Was the court required to adjudicate on who was responsible for payment of capital expenses after three years from Mr. Curé’s death and were the comments in the judgment in this regard obiter or made pursuant to a legal issue that was properly before the court?

[9] Ms. Kilitzoglou relies upon an endorsement of Justice Lauwers, dated May 12, 2010, to support her position that the Estate’s responsibility for payment of capital expenses for the period after April 2010 was a live issue the court was required to determine at trial and that my comments on this issue were not obiter. In this endorsement, it was ordered that all of the outstanding actions be heard at the same time. At paragraph 12 of the endorsement, Justice Lauwers states,

At the moment, Ms. Kilitzoglou owns one-half of the residence and is entitled to reside in it indefinitely. This raises the thorny question of who is responsible for capital improvements to the residence and what is contemplated by the words: “the ordinary and reasonable costs of maintaining the said residence” in the cohabitation agreement. In my view, this is a matter best left to the determination of the trial judge.

[10] By the time of trial, however, there had been significant changes in the issues that were outstanding on the application. Some had been resolved or abandoned. In addition, the positions of the parties had changed from those that which had been set out in the application. For example, at trial, the applicant asserted that the cohabitation agreement was valid and binding on the Estate of Mr. Curé and that she was entitled to purchase the home in Vaughan. However, this position was contrary to the relief sought in the application. As a result, the applicant brought a motion to amend the relief sought in the application. In order to clarify what issues the court was required to address, the parties reached a formal agreement on the issues to be determined on the application, which was marked as Exhibit 38 at trial. This was referred to in paragraphs 240 and 241 of my Judgment. Paragraph 241 states,

By the time of trial, however, most of the issues in this application had been resolved or abandoned. For the issues that remained, the applicant was taking a position contrary to that which was set out in her application. At trial, the applicant asserted that the cohabitation agreement was valid and binding on the Estate of Mr. Curé and that she was entitled to purchase the property. During the course of oral submissions, the applicant brought a motion to amend the relief sought in the application. An order was granted allowing Ms. Kilitzoglou to amend the relief sought in the application to conform with the position she had taken during the course of the trial. Subsequently, the parties to the application reached a formal agreement on the issues to be determined, which was marked as Exhibit 38.

[11] In paragraph 242, based on Exhibit 38, the issues that were to be determined on the application were identified. During argument on the motion, I arranged for a copy of Exhibit 38 to be provided to both counsel, who confirmed that the issues outlined in paragraph 242 of my judgment are identical to the issues set out in the exhibit, which was marked as Exhibit 38. All of the issues in paragraph 242 of my judgment were addressed in the judgment itself. The issue of who is responsible for paying for capital expenses after April 2010 is not an issue listed in Exhibit 38.

[12] I conclude, therefore, that while the endorsement of Justice Lauwers from May 12, 2010 contemplated that the trial judge would make a determination of who was responsible for capital improvements to the residence, this order was superceded by the subsequent agreement of the parties during legal argument at the conclusion of the trial as reflected in Exhibit 38. I conclude that I was, therefore, correct in concluding that my comments with respect to responsibility for payment of capital expenses were, in fact, obiter, as indicated in my judgment.

Is this a case where it is appropriate to reopen the trial to permit Ms. Klitizoglou to give further evidence on deficiencies in the home and the cost of remediation of those deficiencies?

[13] During her evidence at trial, Ms. Kilitzoglou spent a considerable amount of time describing the state of her home and the defects which required repair. Photos of the home highlighting many of the defects which required repair were introduced as exhibits at trial. In addition to providing receipts for expenses which had been paid by Ms. Kilitzoglou, she also introduced estimates for work on the home which had not yet been performed but which required repair. In particular, these expenses included an estimate for window replacement, dated January 22, 2010, in the amount of $27,218 and an estimate from Avenue Road Roofing, dated November 24, 2009, for roof replacement where the cost of work was estimated at $32,401.14. The Estate obtained another roofing estimate, dated December 2009, which estimated the total cost for a roof replacement at $14,545.75.

[14] Following judgment, Ms. Kilitzoglou obtained updated estimates for the cost of these repairs. In her supporting affidavit on this motion, she attaches an estimate for replacement of the windows and some doors, which total $71,504.05. She also attaches an estimate for the roof in the sum of $17,263.50, plus HST, as well as a quotation for $7,226.70, plus HST, for the eaves trough, down pipes and elbows. She also attaches further estimates for things such as interior painting of the house and replacement of the garage doors. In a subsequent affidavit, she attaches an inspection report, dated July 19, 2013, from a company called Environment Service Group, dealing with mould growth in the home. She states in the affidavit that the Estate refuses to cooperate or fund any remediation work. Ms. Kilitzoglou seeks to have the evidence reopened so that she can adduce evidence with respect to the updated estimates, as well as the cost of repairs, including capital expenses which were not referred to at all in evidence at the trial before me.

[15] While my Reasons for Judgment were released on February 14, 2014, the formal judgment has not been taken out by the parties. There is, therefore, some discretion to allow further evidence to be adduced. With respect to the applicable legal principles governing the admission of new evidence, Ms. Kilitzoglou relies upon the decision in Matzelle Estate v. Father Bernard Prince Society of the Precious Blood, [1996] O.J. No.2605. In that decision, the court considers the principles to be applied if a party moves to reopen the evidence at trial after reasons are released, but before judgment is issued. The court in that case refers to an earlier decision in Qit Fer et Titane Inc. v. Upper Lakes Shipping Company Ltd., (1991), 1991 CanLII 7297 (ON SC), 3 O.R. (3d) 165 (Gen. Div.) where the court stated certain principles as follows:

(a) Until judgment has been entered, a trial judge has discretion to reopen a trial and hear fresh evidence;

(b) In exercising such discretion, the judge should be guided by the twofold test: that the evidence would probably have changed the result at trial and it could not have been discovered by reasonable diligence;

(c) Where justice demands it and particularly where fraud is involved or the court may have been deliberately misled, a judge is justified in departing from the diligence requirement in order to prevent a miscarriage of justice;

(d) The power should be exercised sparingly. The court should discourage unwarranted attempts to bring forward evidence available at the trial to disturb the basis of a judgment delivered or to permit a litigant, after discovering the effect of a judgment, to re-establish a broken down case with the aid of further proof;

(e) Once a litigant has obtained judgment, he is entitled not to be deprived of it without very solid grounds.

[16] In the Matzelle Estate case, the court also states that a trial judge does have the discretion to reopen a hearing to allow new evidence, whether or not the evidence could have been discovered by the exercise of reasonable diligence prior to trial, but that this discretion should only be exercised in the clearest of cases and only to prevent a miscarriage of justice.

[17] There is some question as to whether the principles outlined in the Matzelle Estate case remain applicable today.

[18] The Supreme Court of Canada considered this issue subsequently in 2001 in their decision, 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] S.C.J. No.61. In the Sagaz case, the Supreme Court refers with apparent approval to the decision of Lord Denning in Ladd v. Marshall, [1954] 1 W.L.R. 1489 (CA), where Lord Denning states,

It is very rare that application is made to this court for a new trial on the ground that a witness has told a lie. The principles to be applied are the same as those always applied when fresh evidence is sought to be introduced. To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.

[19] The Supreme Court therefore appears to support the position that before permitting fresh evidence to be introduced, the moving party must show that the evidence could not have been obtained with reasonable diligence for use at the trial, as well as demonstrating that the new evidence would have an important influence on the result of the case. This conclusion is supported later in their decision where the court states,

The court in Scott mandated that both branches of the test to reopen a trial to admit fresh evidence must be met. Having failed to meet the first branch of the test, it is unnecessary to examine whether the precluded evidence in this case could have been obtained by the exercise of reasonable diligence.

[20] Regardless of whether reasonable diligence is a prerequisite on its own, which must be satisfied, or only a factor to be considered, I have concluded that this court should not allow the case to be reopened for purposes of receiving further evidence, which, in my view, could have been obtained for use at trial through the exercise of reasonable diligence.

[21] The applicant in this case elected to proceed to trial with estimates on the cost of repair for the roof and the window replacement, which were several years old. Had they wished to update these estimates, this evidence could have been introduced at trial. There is no explanation for why these estimates were not updated before trial. Similarly, Ms. Kilitzoglou was well aware that there were serious deficiencies in the state of repair of the home. This was highlighted in her evidence at trial. There is no acceptable explanation for why the other matters raised in her material on this motion could not have been identified and addressed in the evidence at trial. I note in this regard that the mould report was submitted to Ms. Kilitzoglou on July 19, 2013, which is during the time that final submissions were being argued (final submissions were not completed until July 26, 2013). There is no explanation as to why this issue was not raised during the course of final submissions or prior to judgment being released.

[22] To open up new evidence at this point would unduly prolong what has already been a difficult, lengthy and complex trial. The trial itself started in May 2012 and final submissions were not completed until July 2013. In addition, by opening up the trial to new evidence which ought to have been available during the course of the trial, it means that the Estate would also have the right to introduce new evidence as well. The net result would be that these issues which were dealt with in the trial before me would have to be re-litigated almost in their entirety.

[23] This is a case where I am sympathetic to the comments expressed by Justice Wilkins in Strategic Resources International v. Cimetrix Solutions Inc., (1997), 1997 CanLII 12168 (ON SC), 34 O.R (3d) 416, where he notes that after a trial is complete and judgment rendered, it is always a simple matter, utilizing hindsight, to go about reconstructing a better method of presenting the case when one is not satisfied with the result.

[24] There is no issue in my mind about a miscarriage of justice in this case. Ms. Kilitzoglou was well aware of the issues relating to the house. These were vividly described in her evidence and reflected in photographs introduced as exhibits at trial. She had a full opportunity to present relevant evidence. Justice does not require that she be entitled to re-litigate issues where she was fully aware of deficiencies in the state of repair of this home and introduced considerable evidence on those deficiencies during the course of the trial and where there is no explanation as to why the new evidence which she seeks to introduce was not tendered during the trial itself.

[25] Ms. Kilitzoglou, during argument, did make reference to paragraph 273 of my Judgment, where I state as follows,

There is one issue that none of the parties raised during the course of the trial. That concerns the claim against the Estate for the cost of replacing the roof and windows. These repairs have not yet been carried out by either Ms. Kilitzoglou or the Estate. If Ms. Kilitzoglou is to receive an award to cover the cost of these repairs, there may be an issue as to whether the Estate is entitled to any assurance that the repairs are actually carried out in light of the fact that the Estate is entitled to share in the proceeds of the home once it is sold. I am assuming that the parties will be able to sort out these issues between themselves. However, in the event that the parties are not able to do so, counsel may arrange a further attendance to address any issues which arise out of this portion of my judgment.

[26] This paragraph was not meant as an indication I would be prepared to open up an issue to further evidence as suggested by Ms. Kilitzoglou. In fact, it was included for the benefit of the Estate, which was subject to a judgment for the amount of the repairs, even though they had not been made and there might be an issue as to whether Ms. Kilitzoglou would perform the repairs once she received the funds from the judgment. In argument, the Estate confirmed that it is not pursuing this as an issue. It is content that the judgment stand without any further clarification as to any rights it might have if the repairs are not carried out.

[27] For the above reasons, I have concluded that it is not appropriate to reopen the trial to receive further evidence from Ms. Kilitzoglou to update the costs estimates given at trial or to claim new expenses which were not raised at trial. The case law makes it clear that the discretion to re-open a trial for further evidence should be exercised only in extraordinary circumstances. The interests of justice requiring finality in this litigation outweigh any potential benefit in re-litigating the home expenses. The applicant’s motion is therefore dismissed. Costs of the motion will be addressed as part of the consideration in assessing the costs of the action.

Justice M.K. McKelvey

Released: January 19, 2015