Court File and Parties

COURT FILE NO.: 14-CV-5050-ES DATE: 20151112

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Frank Mikol, Plaintiff

AND:

Krzysztof Kruczek, also known as Christopher Kruczek, in his capacity as the former Attorney for Property of Eugenia Irene Mikolajewicz, now deceased, and in his capacity as the Estate Trustee of the Estate of Eugenia Irene Mikolajewicz and in his personal capacity, Marian Kruczek, Maria Kruczek, Theresa Kruczek, Simon Robert Kruczek, Michael Mikol and Maria Jones, Defendants

BEFORE: L. A. Pattillo J.

COUNSEL: Heather Hogan, for the Plaintiff Mark Whiteley, for the Defendants for Krzystof Maria and Simon Robert Kruczek

HEARD: November 3, 2015

Endorsement

[1] The only issue remaining to be decided on the plaintiff/moving party’s (“plaintiff”) motion for directions is costs.

[2] Motions for directions on the Estate List in Toronto serve to identify the issues and expedite the proceedings in order to reduce costs. They generally provide for production of documentation from both the parties and third parties, set a time table through mediation which is mandatory in estate maters and deal with any other procedural issues. Such orders are quite standard and most often proceed on consent at a 9:30 a.m. scheduling appointment. On the rare occasion when they cannot be agreed to, a motion is scheduled to deal with the disputed issues. This is one of those rare occasions.

[3] This matter began as an application alleging breach of contract arising out of mutual wills executed by Bronislaw Mikolajewicz and his wife Eugenia Irene Mikolajewicz on September 16, 1996. Bronislaw died on January 17, 2002 and Eugenia on August 21, 2013. The parties are the children and other relations of Bronislaw and Eugenia from their prior marriages.

[4] The notice of application contained five pages of relief sought, including that the parties attend mandatory mediation within 60 days of the exchange of certain information.

[5] On May 20, 2014, Stinson J. issued an order for directions requiring, among other things, production of documents and that the application proceed by way of exchange of pleadings. Pleadings were exchanged up until late January 2015.

[6] Counsel for the plaintiff indicated that she wanted to examine the lawyer who drafted the mutual wills. Prior to that examination being arranged, plaintiff’s counsel was aggressively proposing that mediation should take place in April 2015. Counsel for the defendants/respondents Krzysztof, Maria and Simon Robert Kruczek (the “Respondents”) took the position that the examination of the lawyer should be completed before any dates are set for discovery or mediation.

[7] On April 14, 2015, plaintiff’s counsel sent a letter to the defendants counsel indicating that her instructions were to seek an order for directions including an order consolidating the action and the initial application and that both files continue under one file number; an order appointing a private mediator; a timetable setting dates for delivery of affidavits of documents, mediation, examinations and setting the matter down for trial. The letter indicated that, absent agreement as to a date for a scheduling appointment during the week of May 19, 2015, the scheduling appointment would be set for May 20, 2015. The letter concluded by stating that absent consent to the order, the scheduling appointment will be used to book a motion “for which our client will seek costs.”

[8] Counsel for the Respondents replied to the letter by email the next day. He indicated that he was not opposed to the order for consolidation but felt that the motion to appoint a mediator and set a timetable were “unnecessary and only adding to the cost of this litigation without purpose.” Consistent with his earlier proposal, he again proposed that the timetable not be set until after the lawyer’s examination. He also indicated that, in conjunction with counsel for the other defendants, his clients were not prepared to pay the costs of a private mediator and wished to use a roster mediator.

[9] The examination of the lawyer who drafted the mutual wills began on April 22, 2015 but was adjourned after a few introductory questions in order to permit the witness to retain counsel.

[10] The scheduling appointment was set by agreement for May 22, 2015. In advance, counsel for the plaintiff circulated a draft order for directions that had expanded from the initial draft order circulated. Counsel for the Respondents replied in a lengthy email on May 20, 2015. Although he reiterated that in his view much of the relief requested was unnecessary, he indicated he was either unopposed to it as drafted or unopposed with minor wording changes. With respect to mediation, paragraph 5 of the draft order required mediation before discoveries. Counsel for the Respondents indicated that while he did not preclude mediation prior to discoveries there was no purpose served by requiring it or forcing it on the parties.

[11] In the absence of agreement to all of the plaintiff’s terms, the scheduling appointment took place before me on May 22, 2015 and I set August 4, 2015 for one hour for the motion for directions.

[12] On July 20, 2015, counsel for the plaintiff sent a “without prejudice” draft order for directions which she said would be sought on the August 4th motion. Apart from the provisions for consolidation and style of cause (which were never opposed), the draft order sought entirely different relief than the draft order which had previously been discussed and which was the reason for the motion. In particular it sought an order waiving mediation, examinations of the parties within 60 days to be paid equally by the plaintiff and Krzysztof and Marion Kruczek and requiring Krzysztof Kruczek to pay $20,000 into court.

[13] On July 27, 2015, and in the absence of being served with the plaintiff’s motion material, counsel for the Respondents wrote a lengthy email to counsel for the plaintiffs responding with his position to each of the paragraphs in the “draft order”. He noted the significant change in the relief requested and asked for the reasons. In particular, he asked for the factual and legal basis for dispensing with mediation. He also raised a number of scheduling issues not addressed.

[14] Counsel for the plaintiff responded by email the same day stating that because he wrote his email prior to her motion record being served, she was not going to read it. She asked for the Respondents’ position with respect to the relief requested in the notice of motion.

[15] Notwithstanding the August 4th motion date was set on May 22nd, the motion record was served late. It was supported by an affidavit from a legal assistant in the plaintiff’s counsel’s firm. The notice of motion sought nine orders. Some mirrored the earlier “without prejudice” draft order plaintiff’s counsel had circulated. The requirements that Krzysztof Kruczek pay $20,000 into court and that the parties dispense with mediation remained. New relief sought included an order for a third party examination, an order “timetabling examinations of the Parties” and an order providing that any party who wished to bring a Rule 21.01 motion serve and file the motion record after examinations or in the alternative that the parties shall attend an early pre-trial or case conference within 60 days of the motion.

[16] Counsel for the Respondents objected to both the substantial change in the relief requested from the scheduling appointment and the late service. Although he was prepared to agree to some of the relief requested, he requested an adjournment of the motion to an agreeable date to be able to properly respond. Counsel for the plaintiff refused.

[17] The motion came on before Justice Penny on August 4, 2015. Justice Penny granted the uncontested relief requested and put over the issues of payment of the $20,000 and the waiver of mandatory mediation to November 3, 2015 and set a timetable for responding and reply materials, if any, and factums in accordance with the Rules. Costs were reserved to November 3, 2015.

[18] Counsel for the Respondents subsequently filed responding material and a lengthy factum. In the responding material, although Krzysztof Kruczek took issue with the lack of evidence to justify a payment into court, he agreed, on a without prejudice basis, to pay the $20,000 he was holding into court. Counsel for the plaintiff filed no reply material nor a factum.

[19] On November 2, 2015, counsel for the plaintiff advised counsel for the respondents that the plaintiff was prepared consent to an order setting out the time frame for mediation and the appropriate mediator. Before me on November 3, counsel for the plaintiff submitted that it was not until she received the Respondents’ factum that she understood that the Respondents were agreeable to mediation which is what the plaintiff wanted all along. That submission is completely untenable given the record before me.

[20] Both the plaintiff and the Respondents seek their costs. The plaintiff seeks partial indemnity costs totaling $10,360.90 inclusive of disbursements and taxes. The Respondents seek partial indemnity costs totaling $7,399.09.

[21] In my view, this motion should never have been brought. It occurred as a result of an aggressive, unreasonable, uncompromising and shifting strategy adopted by plaintiff’s counsel from the outset. Cut to its heart, all that really was at issue initially was whether the examinations should be held in advance of mediation and who was going to be the mediator. Plaintiff’s counsel was unwilling to discuss or compromise on those issues. Rather than resolve a reasonable timetable and directions to advance the action, plaintiff’s counsel kept advancing unilateral positions with the threat of costs if not agreed while ignoring any proposed alternatives from Respondents counsel. The problem was exasperated by the shifting position in respect of the relief sought on the motion.

[22] The actions of plaintiff’s counsel in not attempting to resolve the issues expeditiously and at an early stage has resulted in significant costs being incurred in this matter by both sides for nothing. This fact was pointed out to plaintiff’s counsel on more than one occasion to no avail. Litigation is far too expensive today to condone such conduct. It is incumbent on counsel to attempt to resolve as many issues as possible expeditiously and out of court in order to reduce the costs as much as possible. This is particularly so where what is involved is a motion for directions.

[23] For the above reasons therefore, I award costs to the Respondents on a partial indemnity basis fixed at $7,399.09. Although I consider what transpired here could justify an award of substantial indemnity costs, I do not consider that the actions of counsel which resulted in the motion arose from instructions of the plaintiff.

[24] I consider the Respondents’ costs as claimed to be fair and reasonable having regard to what occurred. I also consider that they are well within the expectations of the plaintiff given his costs outline.

[25] There will also be an order requiring the respondent Krzysztof Kruczek to pay $20,000 into court on a without prejudice basis until further order of the court or agreement of the Parties. I leave it to counsel to agree on the details and timing of the mediation.

L. A. Pattillo J.

Released: November 12, 2015