Court File and Parties
COURT FILE NO.: 26047/12 DATE: 2015-09-10
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HELMUT ZGRAJA Applicant
– and –
HILDE MAGDALENA ZGRAJA, ROSWITA ZGRAJA and THE PUBLIC GUARDIAN AND TRUSTEE Respondent
Counsel: P. Johnson, Counsel for the Applicant D. Sirois, Counsel for the Respondent Hilde Zgraja S. Shoemaker, Counsel for the Respondent Roswita Zgraja J. Poitras, Counsel for Bank of Nova Scotia Trust Company (Respondent to the Motion)
HEARD: September 3, 2015
BEFORE: Rasaiah J.
Endorsement
[1] Further to my endorsement of September 3, 2015 I make the following endorsement.
A: Claim at paragraph 6 of the Moving Party’s motion for advanced costs:
[2] While the cases submitted by Mr. Johnson regarding this claim appear to support his submission that advanced costs have been viewed as exceptional and of last resort, there is jurisdiction to hear the claim (the court has the discretionary power to award interim costs in appropriate cases) and this accordingly will be a matter of argument to be made at a later date.
ORDER
[3] This claim at paragraph 6 of the Respondent Roswita Zgraja’s motion dated August 20, 2015 is adjourned to October 1, 2015 @ 10:00 a.m. to confirm the hearing of this claim on November 19, 2015 at 2:00 p.m. as tentatively set on September 3, 2015. If November 19, 2015 is confirmed, the parties shall file their factums by October 31, 2015 as discussed. If this date is not confirmed on October 1, 2015, then the parties will select another date for the hearing of this matter on a long motion’s day and may make further submissions on the date by which factums should be delivered and filed.
B. Claim at paragraph 5 of the Moving Party’s motion for compensation and to remain Hilde Zgraja’s Attorney:
[4] After reviewing the file, and having regard for the further arguments made, I am of the view that this claim should be heard in the context of the application brought in court file no. 26593/14 given it is an application for the appointment of Bank of Nova Scotia Trust Company as guardian of the property of Hilde Zgraja. In addition, in terms of procedural irregularities raised, given the nature of the claim for compensation under the Substitute Decisions Act, I am of the view that this claim for compensation should not be advanced procedurally by way of motion and ought to be brought by way of application. I accordingly leave it to Mr. Shoemaker to attend to the procedural irregularities as he suggested he would, having had no notice of objection prior.
ORDER
[5] The claim at paragraph 5 of the Respondent Roswita Zgraja’s motion dated August 20, 2015 is dismissed without prejudice to the Respondent Roswita Zgraja to renew those claims accordingly and in proper form.
C. Claim at paragraph 2 of the Moving Party’s motion:
Overview
[6] Prior to arguing this claim, the Respondent Roswita Zgarja narrowed her claim. She sought only to conduct cross-examination of Helmut Zgraja on his affidavits filed.
Moving Party’s Record, Responding Parties’ Records and other affidavits filed in support of the motion returnable May 14, 2015 and Orders:
[7] The above captioned documents filed for and in response to the motion were reviewed by me. In respect of the issue of cross-examination on affidavits, the substance of the materials primarily addressed the continued cross-examination of Roswita Zgarja and completion of undertakings by Roswita Zgarja. The focus appeared to be Roswita Zgarja, and amending Justice Gareau’s order of November 24, 2015 in respect of Roswita Zgarja.
[8] I did note in the affidavit of Megan Butler sworn May 6 2015, that Exhibits G, H, I, P and Q, prepared between March 25, 2015 and April 29, 2015, included a proposed consent order to extend Justice Gareau’s order. The proposal was to extend to on or before May 22, 2015 and to extend for all cross-examinations. The proposal included that answers to undertakings by “all other affiants cross-examined” be provided by June 5, 2015. The proposed consent order further contains wording providing that Justice Gareau’s order be “set aside”.
[9] While Justices McMillan and Varpio made previous orders to Justice Gareau’s order regarding cross-examinations, Justice Gareau’s order clearly extended the timetable. Then his order was set aside. That is the wording of Justice McMillan’s order.
[10] There is no further order thereafter setting a timetable for any other cross-examinations except that of Roswita Zgarja. There is no order precluding the cross-examination of Helmut Zgraja.
Endorsements of Justice McMillan and the Order of Justice McMillan on the Motion returnable May 14, 2015:
[11] The endorsements of Justice McMillan dated May 14, 2015 and June 4, 2015 which pertain to the making of his order of June 10, 2015 do not specifically address the issue of cross-examination of Helmut Zgraja or what was sought by counsel or what his rulings were.
[12] The May 14, 2015 endorsement says that the “Court determined various issues presented and matter is adjourned to June 4, 2015 at 10:00 a.m. to permit counsel to prepare and present a draft order in accordance with the Court’s rulings.” The motion was heard in chambers.
[13] The June 4, 2015 endorsement says “Settled issues respecting draft order. Costs, fixed at $5,000.00 incl. of disb. & H.S.T., to Resp. Hilda Zgraja, payable at the rate of $500.00 per month, on the lot[last] day of each consecutive month until fully paid commencing July 1, 2015”.
[14] Following the hearing of the motion and prior to making this endorsement, on consent of all parties, a letter was provided to me by Mr. Johnson dated September 4, 2015, which suggests that the parties and Justice McMillan turned their minds to the issue of cross-examination of Helmut Zgraja. He enclosed a copy of an email of Mr. Shoemaker dated September 3, 2015 which enclosed copies of draft orders that were passed back and forth between counsel June 2, 2015. The copies of the draft orders include a provision for the cross-examination of Helmut Zgraja.
[15] The file that I was brought to review, namely court file no. 26047/12, did not include the draft orders attached to Mr. Johnson’s letter, nor is there any indication that such draft orders were presented to Justice McMillan that I can see.
[16] As far as draft orders are concerned, there was only one. It was attached to a copy of an email from Megan Butler of Weaver Simmons dated June 9, 2015 addressed to the trial coordinator, Marc Baril. In this draft order provided to the court, there is no provision for or reference to cross-examination of Helmut Zgraja.
[17] The order of Justice McMillan dated June 10, 2015, with the exception of the date of June 4, 2015 being added to the preamble, is virtually identical to the draft order submitted by Ms. Butler.
[18] There is an email in the file dated June 8, 2015 from Mr. Shoemaker to Mr. Baril regarding, for the most part, cost issues and comments regarding alleged interest payments being received by his client. There is no reference to cross-examination of Helmut Zgraja.
[19] Due to this matter being consolidated with court file no. 26593/14 by Justice McMillan’s order dated November 13, 2014, I also reviewed this file as now being part of this file to address Mr. Johnson’s letter. This file did not contain any draft orders as attached to Mr. Johnson’s letter or anything referring to whether or not other affiants could or could not be cross-examined post Justice Gareau’s order.
[20] I cannot interpret the email of Mr. Shoemaker of September 3, 2015 and materials attached to Mr. Johnson’s letter as a concession that the issue and/or the draft orders attached were submitted to Justice McMillan. It may well be that counsel put their minds to it. I accept that. However, the email does not concede the foregoing. In fact, Mr. Shoemaker seems to suggest that the preparation of the draft orders that were circulated do not hurt his argument.
[21] In addition, based on all of the above, I am not in a position to conclude that:
(a) Justice McMillan turned his mind to the issue;
(b) Justice McMillan considered whether or not Helmut Zgraja should be cross-examined; and/or
(c) Justice McMillan refused the request.
ANALYSIS
[22] Roswita Zgarja has a prima facie right to cross-examine Helmut Zgraja on the affidavits he filed by the Rules of Civil Procedure. That is what she is requesting.
[23] The above being said, Roswita Zgarja must exercise this right with reasonable diligence. In addition, the Court of Appeal in the case of Canada (Attorney General) v. Mennes (2014), 2014 ONCA 690, 122 O.R. (3d) 434 has confirmed that while this prima facie right exists, the right to cross-examine on an affidavit is always subject to the court’s discretion to control its own process.
[24] Helmut Zgarja makes allegations of misappropriation against Roswita Zagraja in the sum of $200,000.00 plus from my review of his affidavits. The evidence relating to this allegation is relevant to the determination of the applications before the court and Roswita Zgraja’s defence of the applications.
[25] It is clear that cross-examination timetables have been extended over the past two years by order and/or on consent, and that they are still not completed.
[26] I agree that timetables are important. Timetables are not a mere technical requirement that can be ignored if they prove to be inconvenient. That being said, a party may receive court approval when the party requires an indulgence and must deviate from the terms ordered in a timetable. Evidence should be submitted to explain the delay and non-compliance. The defaulting party must provide evidence to the court that it has acted reasonably, in good faith and it has made best efforts to comply with the timetable.
[27] There is no court ordered timetable remaining in respect of Helmut Zgarja.
[28] The applicable timetable in respect of Roswita Zgarja was that as set out in Justice McMillan’s June 10, 2015 order.
[29] The emails from Roswita Zgarja’s counsel attached to the affidavit of Matthew Shoemaker, in my view sufficiently establish that efforts were being made to comply with the order, which included offering Roswita Zgraja for continued cross-examination prior to the timetable deadline set by the order.
[30] The emails also establish a request to cross-examine Helmut Zgraja and no concession on the part of Mr. Shoemaker that same was precluded. The request was refused by letter of Mr. Johnson dated July 22, 2015. It stated on that issue: “the availability for any party to cross-examine my client [Helmut Zgraja] or, for that matter, any other affiant other than Roswita Zgraja has long passed. I refer you to the Order of Justice Gareau dated November 27, 2014, in that regard”. There is no reference in this letter to Justice McMillan having made a decision that Helmut Zgraja could not be cross-examined.
[31] The Respondents to the motion submitted that if the court was to permit the cross-examination requested, the prejudice to them in allowing it was that there would be further delay in having the applications heard; and that the timeline set by Justice McMillan’s order for delivering factums could not be met.
[32] The hearing date has not yet been set in this application, court file no. 26047/12. By Justice McMillan’s order, this application, court file no. 26047/12 was adjourned to October 1, 2015 for the purpose of setting a hearing date in respect of the relief sought in the application in court file no. 26593/14. Factums in respect of the application in court file no. 26593/14 were to be delivered by September 30, 2015. What appears to be remaining on the application in court file no. 26593/14 are claims for a final order on the appointment of the Bank of Nova Scotia Trust Company; interim fees and disbursements; interest; costs and such further and other relief as the Applicant may advise.
[33] I note that a trustee is now in place, namely the Bank of Nova Scotia Trust Company, replacing Roswita Zgarja as guardian of Hilde Zgarja’s property on an interim basis.
ORDER
[34] On the basis of all of the above, I am satisfied that the request to cross-examine Helmut Zgraja should be granted and hereby order:
(a) The Applicant Helmut Zgraja shall attend to be cross-examined on his affidavits filed in the applications in court files 26593/14 and 26047/12 on or before October 14, 2015 upon being served with a Notice of Examination at least 10 days in advance thereof.
(b) The Applicant Helmut Zgraja shall answer any and all undertakings given at the said cross-examination within 30 days of the date of that cross-examination.
(c) This application shall otherwise remain returnable October 1, 2015 as previously ordered.
(d) The parties at the said return date, shall re-set the date for delivering and filing of factums for the hearing of the application in court file no. 26593/14 accordingly.
(e) Submissions as to costs, if any, may be made in writing to me within 15 days of release of my endorsement, not to exceed five pages.
[35] Finally, I decline to address the setting of continued cross-examination of the Respondent Roswita Zgraja as suggested by her counsel. This is relief that the parties other than Roswita Zgraja have a right to request. This relief was not being requested by these other parties. I was further advised that this issue may well be the subject of a future motion, along with other issues arising from Justice McMillan’s order, as indicated to the court by Mr. Sirois. It appears in any event by her counsel’s submissions that if the other parties wish to continue her cross-examination, that she will co-operate.
Rasaiah J.
Released: September 10, 2015
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HELMUT ZGRAJA
- and -
HILDE MAGDALENA ZGRAJA, ROSWITA ZGRAJA AND THE PUBLIC GUARDIAN AND TRUSTEE
ENDORSEMENT
Rasaiah J.
Released: September 10, 2015