SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-00-12167-00ES
DATE: 20150902
IN THE MATTER OF THE ESTATE OF EDWARD TURALINSKI, DECEASED
BETWEEN:
ELISABETH SUSAN MICHIE, Applicant
A N D:
RONALD STANLEY TURALINSKI, Respondent
BEFORE: MESBUR J.
COUNSEL:
Celina G. Augero, for the Applicant (responding party to the motion)
Susan Sack, agent for counsel for the responding party to the motion
Bruce Robertson and Naaila Sangrar for the Respondent (moving party on the motion)
HEARD: August 28, 2015
E N D O R S E M E N T
Background and nature of the motion:
[1] The applicant (Susan) and respondent (Ronald) are brother and sister. They and their brother, Edward Thomas Turalinski (Edward), are the sole surviving children of their late father, the deceased, Edward Turalinski, (the father).
[2] The father died on November 29, 2006, apparently without a will. About a year and a half later, in May of 2008, Susan and Edward each executed consents, consenting to Ronald’s applying for a certificate of appointment of Estate Trustee Without a Will. Each of them is described in the consents as a person “entitled to share in the distribution of the estate.”
[3] Ronald then applied in May, 2008 for a Certificate of Appointment as Estate Trustee of father’s estate. In his sworn application, Ronald describes himself, Edward and Susan as “persons entitled to share in the estate.”
[4] The court appointed Ronald as Estate Trustee Without a Will on August 15, 2008.
[5] On March 17, 2011 Susan commenced this application to require Ronald to file a Statement of Assets of the Estate to be filed with the court. She asserted that she had not received a list of assets, an accounting for the estate or any funds from or on behalf of the Estate. She had received nothing out of the estate. On this motion, Ronald moves to dismiss Susan’s application for delay.
[6] Susan’s application for this relief was first returned before the court on April 20, 2011. Ronald sought an adjournment, and the case was adjourned to a scheduling appointment on May 11, 2011. On May 10, 2011 Ronald delivered a Notice of Appearance. At the scheduling appointment, the application was adjourned on consent to July 11, 2011 for a half day hearing.
[7] On July 11, 2011 the application did not proceed. Instead, the court imposed a timetable for delivery of material for what was to be a cross-motion from Ronald, a response to that, and for cross-examinations. The application and cross-motion were scheduled for hearing the week of September 26, 2011.
[8] Ronald served his motion record for his cross motion on August 5, 2011 in compliance with the timetable. In his cross motion, Ronald asked that his appointment as Estate Trustee Without a Will be revoked. He asserted that he had located a will for the father about a year after he was appointed Estate Trustee Without a Will, (I assume sometime in the summer of 2009), and asked that he be appointed Estate Trustee With a Will, and for an order “validating the will of Edward Turalinski”.[^1] In this document (which has never been proven to be the last will and testament of the father) the father purports to leave the sum of $1.00 to each of Susan and Edward, and the balance of his estate to Ronald.
[9] In his affidavit in support of his motion, Ronald says after his father died in 2006, the estates lawyer told him to apply for a certificate of appointment as Estate Trustee Without a Will “right away”. He deposes that although he believed the father had made a will, he did not know where it was.
[10] On his cross-examination Ronald was asked about the steps he took between the father’s death in November 2006 and his appointment as Estate Trustee Without a Will more than two years later, to locate a will, as well as the steps he took after that.
[11] Ronald explained on cross-examination that he told his estates lawyer in the spring of 2007 there was probably a will. He said the lawyer advised him to proceed to obtain an appointment as Estate Trustee Without a Will, “but we could always change that.”[^2] Ronald went on to say that he had looked through the father’s house after his death and found at least ten boxes of papers. He removed what he called “all the sensitive material, anything worth a value” from the house within about two weeks after the father’s death and two weeks after the New Year. He says he began going through the material at Christmas of 2006, and after that, whenever he had a chance, over a period of about a year. By the spring of 2007 he says he had gone through about four or five boxes in his search for the will.
[12] Ronald said he felt the father had made a will because the father had told him so seventeen years earlier, during the father’s divorce proceedings. Ronald said he understood his father had made a will right after the divorce. Ronald also said that around the time of the parents’ divorce, he and Edward and Susan orally agreed “[t]hat basically my sister had taken in my mother and received the assets of my mother and my brother and I would basically take my father’s estate on his passing.”[^3]
[13] Although he has never been appointed as Estate Trustee With a Will, Ronald deposes in his affidavit sworn July 6, 2015 that he found a will about a year[^4] after he was appointed Estate Trustee Without a Will. The document in question is handwritten in the Polish language. It was apparently “scribed” by Ronald’s mother in law at the father’s request, since the father could apparently neither read nor write. A translator’s affidavit sworn April 5, 2011 describes the document as “a text dated September 10, 2006 written for Mr. Edward Turlinski (sic) by Ms. J. Lasic in the Polish language”
[14] The main asset of the father’s estate was his home. Ronald sold the father’s home on September 1, 2009 for $453,000. I can only conclude, given the timing, that he sold it under his appointment as Estate Trustee Without a Will, since he may not have yet located the purported will. Ronald says he preserved the proceeds for a while, but he ultimately distributed the proceeds of sale “in accordance with the will.” It appears he did so after Susan commenced this application.[^5]
[15] Although the purported will provided nothing for Edward, Ronald gave his brother $75,000. He gave Susan nothing, not even the $1.00 the purported will provided for her.
[16] From what I can tell, Susan did not comply with the timetable the court had set in relation to her application. She never delivered a response to Ronald’s cross-motion to have the purported will declared valid and for him to be appointed Estate Trustee With a Will. It also appears Ronald never responded to Susan’s application itself. I infer that his cross-motion to declare the purported will valid was likely his response, though it was not a proper response to the application, something Susan’s lawyer pointed out to Ronald’s lawyer in a letter dated August 19, 2011.[^6] Through the summer and fall of 2011 both lawyers exchanged correspondence about both the delivery of material and scheduling cross-examinations. Ronald’s lawyer was pressing for both.
[17] In October of 2011 Ronald’s lawyer again asked Susan’s lawyer about scheduling cross-examinations. A week or so later, they agreed to adjourn the hearing which had been re-scheduled for October 20. They agreed to put it over until January 12, 2012.
[18] In November of 2011, Ronald’s counsel again asked Susan’s counsel for dates for cross-examinations. None had yet been arranged. On January 9, 2012 Ronald’s lawyer wrote to Susan’s lawyer and proposed “adjourning the matter sine die until we can arrange for the aforementioned cross examinations”[^7] Susan’s counsel responded the same day, saying: “I agree with your suggestion to adjourning the matter sine die returnable on whatever period that you consider appropriate.”[^8] Ronald’s counsel replied immediately, suggesting the matter be returnable on 30 days’ notice. The application was adjourned sine die on those terms, on consent of both lawyers.
[19] Since then, nothing has occurred in the application. No steps have been taken by either side. Ronald has never pursued his motion to revoke his appointment as Estate Trustee Without a Will, nor has the father’s purported will ever been validated or proved.
[20] Even though the father’s purported will has not been proved, Ronald has distributed all the assets of the father’s estate anyway. He claims that he and his brother and sister had an agreement whereby Susan and Edward would receive essentially nothing from their father. Ronald says Susan has taken this position for years, since their parents’ divorce. He says Susan confirmed it at the father’s funeral. Ronald says that at the father’s funeral, Susan said she wanted nothing to do with the father’s estate or with the father. He claims she said so in front of various witnesses. Ronald relies on this “graveside renunciation” as further evidence that Susan agreed she would receive nothing from the father’s estate. As a result, Ronald takes the position he was entitled to distribute the estate as he did, since it was in accordance with the agreement among him, Edward and Susan, and this agreement happened to coincide with the provisions of the purported will.
[21] Ronald takes the position Susan confirms this in her affidavit sworn June 19, 2015 in which she says: “On August 15, 2008, following an agreement between the three siblings, Ronald was appointed estate trustee without a will of Father’s estate.” Ronald interprets this as confirmation of the “agreement” made seventeen years ago that Susan was renouncing any entitlement under the father’s will.
[22] Susan denies any such agreement. I cannot conclude an agreement exists on the basis of the documents Ronald points to. Susan (and Edward) signed consents to Ronald’s appointment as Estate Trustee without a Will. I read Susan’s statement in her affidavit as confirming no more or less than that. At best, I would conclude there was an agreement among with siblings that Ronald would be appointed Estate Trustee without a Will. There is certainly insufficient evidence before the court today to conclude Susan renounced any entitlement to the father’s estate, or reached any agreement with her brothers to that effect.
[23] Nevertheless, Ronald takes the position that since all the siblings agreed, he distributed all the estate assets, and thus Susan’s application is now moot, as is his motion to appointed Estate Trustee With a Will.
[24] Ronald also takes the position he has understood since 2012 that Susan was not proceeding with her application. He suggests he relied on this this, and would be unduly prejudiced if Susan’s application were permitted to continue after such a lengthy delay. For her part, Susan denies ever instructing her lawyer, Mr. Derek Ball, not to pursue her application.
[25] In his affidavit sworn in support of his motion to dismiss, Ronald takes the position that his lawyer told him that Susan’s lawyer had told him that Susan had told him that she did not wish to pursue her application. Given that this statement is tantamount to quadruple hearsay, it would have been helpful if there were some other corroboratory evidence to support it. There is essentially none.
[26] Ronald has been cross-examined on his affidavits filed both in support of this motion to dismiss, and his original motion to validate the purported will and be appointed Estate Trustee with a Will. On his cross-examination Ronald said a number of things.
[27] First, he says he was unaware whether his lawyer was ever advised by Susan’s lawyer Mr. Ball, “That it was her instructions not to proceed with the application.”[^9] That being said, Ronald’s counsel said he was told this in January of 2012.
[28] Second, Ronald said he was unaware of whether there were any “written communications, confirmatory letter, confirmatory email between you – between your counsel and Mr. Ball.”[^10] Although Ronald undertook to produce any letters or written confirmation that Mr. Ball advised Ronald’s lawyer that Susan would not be proceeding, none has been produced.
[29] Third, although Ronald’s lawyer agreed to produce any note or other contemporaneous record he has of this conversation with Mr. Ball, none has been produced.
[30] Although Ronald wishes Susan’s application to be dismissed for delay, on cross-examination he admitted he took no steps himself after January of 2012 to push the application along, or to have it treated as abandoned and seek costs. He also took no steps to pursue his own motion to validate the father’s purported will and have himself appointed as Estate Trustee With a Will.
[31] Ronald can point to no communication from his lawyer to Susan’s lawyer demanding responding material and dates for examinations, failing which he would move to dismiss. When it was put to Ronald that he was “just going to sit and wait for time to pass” or “sit and lie in the bushes”, Ronald responded “I was going to wait for the appropriate time. I didn’t know the time lines on all those things … We were going to eventually end it.”[^11]
[32] Ronald went on to confirm he took no steps to proceed with his own motion to declare the will valid. He said he did not do so because it was “moot”.[^12]
[33] Susan’s lawyer on the application was a Mr. Derek Ball. Mr. Ball died suddenly in December of 2014. Susan denies she ever instructed Mr. Ball not to proceed with her application. To the contrary, she continued to contact Mr. Ball and press him to pursue her claim. She thought he was doing so. According to the affidavit of the late Mr. Ball’s secretary, Susan or her husband called Mr. Ball every few weeks asking for updates about her case. As late as September, 2014 Mr. Ball emailed Susan to tell her he was attending Assignment Court to obtain a date for hearing her application. This was untrue.
[34] After Mr. Ball’s death, his brother Alan Ball was appointed his Estate Trustee. Alan Ball deposes that after Mr. Ball died, as Estate Trustee he provided Susan with her file, and reported a potential claim by her to LawPRO. He says this was not the only potential claim he reported in relation to his late brother’s law practice.
[35] Alan Ball deposes he rarely saw Mr. Ball, and never at Mr. Ball’s home. After Mr. Ball’s death, Alan Ball concluded Mr. Ball had been suffering from serious mental health issues. He came to this conclusion particularly because of what he discovered at Mr. Ball’s home, which included:[^13]
a) A derelict car in the driveway that had not been moved in over ten years with weeds growing into the trunk;
b) The roof of the house in terrible shape with missing shingles;
c) The backyard fence falling down in several places;
d) Both interior floors of the house covered in garbage, including newspapers more than a decade old;
e) Daily Racing Forms papers, fast food containers, dirty dishes, cutlery and alcohol bottles;
f) Mice infestation and mice droppings throughout the home;
g) Almost no working lights in the home;
h) Mr. Ball had no current driver’s licence or OHIP insurance.
[36] Alan Ball concluded his brother had serious hoarding issues along with some very serious mental health issues. Alan Ball infers that Mr. Ball’s mental health issues had a significant impact on his responsibility to his clients, and caused him to be immobilized. In my view, this is a reasonable inference to draw.
[37] LawPRO has appointed counsel on behalf of Mr. Ball, as a result of the potential claim against his estate. LawPRO argued this motion as agent for Susan’s current lawyer.
[38] Susan has sworn she only learned after Mr. Ball died that he had misled her, and had done nothing on her file to advance her case since January of 2012 when the proceeding had been adjourned on consent sine die, to be brought back on 30 days’ notice. On making this discovery, she immediately hired new counsel to pursue her claims. Ronald’s response was this motion to dismiss
[39] It is against this factual backdrop that I turn to a discussion of Ronald’s motion to dismiss Susan’s application for delay.
The law and discussion:
[40] Ronald has framed his motion under rule 24.01 of the Rules of Civil Procedure. That rule sets out the circumstances in which the court may dismiss an action for delay. The rule does not apply here, since the rule applies to actions but not to applications.[^14] Since this case is an application, r.24.01 does not apply.
[41] Ronald also relies on rule 48.14 to support his positon. Rule 48.14 deals with the circumstances when the Registrar is required to dismiss an action for delay. The rule was amended effective January 1, 2015, and now provides that the Registrar shall dismiss an action for delay if it has not been set down for trial within five years after the first defence is filed.[^15] Again, the rule deals with actions not applications, but even if it did, Susan’s application was commenced in March of 2011. Five years have not elapsed since then, and thus cannot have elapsed since delivery of any response to it. If this application were an action, rule 48.14 would not require the Registrar to dismiss it. In any case, Ronald has never really delivered a response to the application itself, which would be equivalent to a defence.
[42] Ronald suggests that the rules should be interpreted broadly, and by analogy to actions. Even if I were to do so, rule 48.14 would not apply. Looking at the issue at its broadest, however, I will consider the general circumstances in which courts are asked to exercise a discretion to dismiss cases where there has been inordinate delay in pursuing them, or, conversely, the criteria the court is to impose where a party seeks to set aside a dismissal.
[43] Ronald urges me to apply the criteria the courts used historically which have often been called the Reid factors.[^16] They arose in the context of a motion to set aside a dismissal order, but are relevant in a situation like this one. The enumerated factors are the following:
a) Explanation of the litigation delay: The plaintiff must adequately explain the delay. If either the solicitor or the client made a deliberate decision not to advance the litigation toward trial then the motion to set aside the dismissal will fail;
b) Inadvertence in missing the deadline: the plaintiff or solicitor must lead satisfactory evidence to explain that they always intended to set the action down;
c) The motion is brought promptly: the plaintiff must show she moved quickly to set aside the dismissal order as soon as learning of it;
d) No prejudice to the defendant: The plaintiff must convince the court that the defendants have not demonstrated any significant prejudice in presenting their case as a result of the plaintiff’s delay or as a result of their own steps taken following the dismissal of the action.
[44] While the Reid factors are somewhat helpful, the Ontario Court of Appeal noted in Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited[^17] that in Scaini v. Prochnicki[^18] they had reversed the line of authority that strictly required a moving party to satisfy each of the four Reid criteria in. Instead, the court is directed to use a contextual approach, consider and weigh all the relevant factors to determine what is just in the circumstances of the particular case.[^19] I turn to that contextual approach now.
[45] On the issue of whether Susan has adequately explained her delay, as far she knew, her lawyer Mr. Ball was vigorously pursuing her case. She clearly intended to pursue her case, and thought she was doing so. In fact, just a couple of months before his death, her lawyer had told her he was going to Assignment Court to arrange a trial date, even though he was not. Ronald urges me to infer that Mr. Ball’s delaying actions were deliberate, and thus Susan is bound by his actions. He therefore suggests Susan cannot adequately explain her delay.
[46] On the evidence, it appears Susan was pressing her lawyer to proceed. He failed to follow her instructions. She knew nothing of the delay. I cannot see that Susan is responsible for delay, although her lawyer certainly contributed to it.
[47] As for Mr. Ball, I am not persuaded he was sufficiently competent to have made a deliberate decision to delay. His seeming immobility and inability to act coupled with his obviously deteriorating living conditions are not the same as a deliberate decision to delay the case. It appears Mr. Ball’s immobility made him incapable of deliberately making any decision.
[48] Importantly, however, the January 2012 adjournment was made on consent, and at the request or suggestion of Ronald’s lawyer, not Susan’s. From this I cannot infer it was Susan’s lawyer who wanted to delay. Since Ronald and his lawyer took no steps to push Susan’s lawyer to proceed or to pursue Ronald’s motion, I cannot blame Susan’s lawyer entirely for the delay. Ronald’s lawyer must bear some responsibility as well.
[49] Not only did Ronald do nothing to push Susan’s lawyer to proceed with the application, Ronald and his lawyer took no steps to advance his equally important motion to declare the purported will valid. As the court said in Housser v Savin Canada Inc.[^20], quoting the Divisional Court in Albrecht v Meridian Building Group Ltd.[^21]:
If the defendant does what he can do to keep the action moving on towards trial and the plaintiff delays him, the courts can be asked for assistance. But a defendant who just sits idly by waiting for time to pass and does nothing to move the action on to completion is hard put to complain that he did not want the action hanging over his head.
[50] I am therefore persuaded Susan has adequately explained the delay, and always intended to proceed with her application. As soon as Susan learned the late Mr. Ball had actively misled her, she moved promptly to retain new counsel and proceed with her application. This leaves the last branch of the test, namely the question of prejudice.
[51] As far as prejudice is concerned, Ronald asserts the following. He says delay will be very prejudicial to him. He points out the father died nearly 10 years ago. Susan’s lawyer took no steps with respect to the matter. She and her lawyer were the cause of the delay.
[52] Ronald says he is not responsible for the delay. He says not only has there been significant delay since the application began, but also since the alleged cause of action arose. He says documents are no longer available. He says at least one of his witnesses has died. He points out that the witness to the purported will is now 83 years old and is unlikely to remember things clearly.[^22]
[53] There is no question the father died nearly 10 years ago. That fact, in and of itself, is not evidence of any prejudice. It took Ronald a year and a half after the father’s death to even apply to be appointed Estate Trustee without a Will. There is also no question Susan’s lawyer took no steps to advance her application. Susan, however, was actively pressing him to do so. As I have said, Susan has adequately explained the delay. As I have also said, Ronald must bear some responsibility for the delay. He did nothing to actively press Susan to pursue her application. Importantly, he did nothing to pursue his own motion. He simply carried on and did what he wanted. He sold the father’s home, and although he had been advised by a paralegal he retained not to distribute the estate until the will had been declared valid, Ronald ignored this advice and distributed it anyway according to what he says were the terms of father’s will. Father’s will has never been proven. Ronald can hardly say he has been prejudiced by doing what he wants, without the necessary sanction of a court order he himself was seeking.
[54] Ronald also asserts documents have been lost. He says may have burned some. He cannot, however, specifically point to the loss or destruction of any relevant document. He has failed to obtain the files of his former estate solicitor. If those files have been destroyed, it is because of Ronald’s inaction in getting them, not because of Susan’s delay.
[55] As to the death of a witness, Ronald relies on the fact that a Mr. Roach who apparently heard Susan’s “graveside renunciation” has died. He died before Ronald was even appointed Estate Trustee Without a Will. The effect of his death has nothing to do with any delay on Susan’s part. In any case, Ronald’s material clearly says that many others heard Susan’s statement as well. Thus no material evidence has been lost.
[56] As to the age of the alleged “witness” to the purported will, (or “scribe”, as she described herself), she was already elderly at the commencement of this proceeding. Ronald has undertaken to obtain information from her. He has yet to fulfil that undertaking, so the court has no evidence at all of whether her memory has “dimmed” or not in the last two and a half years.
[57] Overall, I cannot find the delay has created any non-compensable prejudice. Ronald suggests prejudice is presumptive after a lengthy delay. First, given the revised wording of rule 48.14, I cannot find the delay lengthy. Second, even if the delay gives rise to a presumption of prejudice, Susan has adequately rebutted that presumption.
[58] Ronald’s last point is that since Susan likely has a negligence claim against the late Mr. Ball’s estate, she should pursue that avenue instead of continuing with her application against him. The Divisional Court recently dealt with this issue in Klaczkowski v. Blackmont Capital Inc.[^23] There, the court noted that the practical reality of these cases is this: “if a meritorious claim is dismissed because a solicitor missed a deadline to set the matter down for trial … this only leads to new litigation because the plaintiff must sue his or her former counsel to obtain a remedy.”[^24]
[59] In looking at the effect of requiring such new litigation the Divisional Court agreed with the decision of Master Short in Elkhouli v. Senathirajah et al[^25] where he said that a consumer of litigation services:
... ought not to be forced to seek new counsel to pursue possible recovery by way of an indemnity claim against his counsel. Such an action will first require the proof of the likely liability of the defendants in the original action without having the normal rights of discovery and production, from the others involved in the accident. In addition, more costs and court time will be consumed in addressing the questions of whether or not the lawyers ought to be responsible for the losses suffered as a result of the apparent deleterious conduct of that action.
[60] I agree. I therefore reject Ronald’s suggestion that Susan’s appropriate remedy is to sue Mr. Ball’s estate.
Conclusion:
[61] For all these reasons I exercise my discretion and decline to dismiss the application for delay. Accordingly, the motion to dismiss for delay is dismissed, with costs.
[62] After argument, but before knowing the outcome of the motion, counsel agreed on the appropriate amount of costs for the losing party to pay. In accordance with that agreement, Ronald will pay Susan’s costs of the motion on a partial indemnity basis, fixed at $15,000 all inclusive.
[63] Susan also brought a motion returnable August 28, 2015 for an order permitting her to amend her application. Obviously, Ronald’s motion to dismiss had to be heard and determined first. Now that I have decided Susan’s application should not be dismissed, her motion to amend her application can now proceed to argument. It shall be heard on a date to be fixed by the Estates Office. One hour is required. The parties may schedule the date, on consent, without the necessity of any further court attendance to do so. If the parties cannot agree on a return date for the motion to amend, they may arrange a 9:30 scheduling appointment to do so.
MESBUR J.
Released: 20150902