Court File and Parties

COURT FILE NO.: 21119/A2 DATE: 2016-04-15

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

TIIU MARI-ANN ALOE and VALVE ELISABETH ALOE-GUNNELL, Plaintiffs – and – ESTATE OF VALDEKO ALOE, LEMBIT PETER ALOE, TOOMIS ERKI ALOE, ALO LUMBER AND BUILDING SUPPLIES, JOHN ALO DEVELOPMENTS LIMITED AND ALO CONSTRUCTION CO., Defendants

Counsel: Ms. Tiiu Marie-Ann Aloe, for Self Valve Elisabeth Aloe-Gunnell, for Self Mr. William Scott, Counsel for the Defendants

HEARD: April 14, 2016

VARPIO J.

REASONS on motion for directions

[1] As has been noted several times by this Court, this litigation has been on-going for fifteen years. Much of the delay is attributable to the plaintiff Ms. Valve Aloe-Gunnell who, on two separate occasions, has been found to be in contempt of Koke J.’s Final Order of March 11, 2011 that putatively settled the instant litigation.

[2] Paragraph 14 of Koke J.’s Order states:

Any party may ask for further directions from the Court in Sault Ste. Marie.

[3] The parties came before the Court on previous occasions seeking certain pressing relief. The balance of the matter was put over to April 14, 2016. The Defendants also seek relief as a result of matters that have arisen since the last hearing date. It should be noted that the Defendants had indicated to the Court that, as a result of the delay and complications arising from the instant litigation, the sale of the property to Scenic Hudson is now on “life support”.

[4] Ms. Aloe-Gunnell seeks the following:

a. An Order permitting Ms. Aloe-Gunnell to have contact with Scenic Hudson through counsel or personally. The defendants consent to such contact once the sale is completed but not prior thereto;

b. Pursuant to paragraphs 4 (a – e), 5 and 6 of her Notice of Motion filed September 17, 2015, she wishes for production of certain documents. This request was dealt with previously at paragraph 12 of my endorsement dated November 24, 2015 and need not be repeated here. I note that paragraph 12 indicated that the relief sought in paragraphs 4 – 7 of the Notice of Motion. This was a typographical error. My reasons ought to have read “paragraphs 4 – 6”;

c. Leave to commence a lawsuit as against Ms. Tiiu Aloe [henceforth “Ms. Aloe”] regarding an alleged loan to pay for legal services;

d. Leave to commence an application and/or action as against the Estate of Valdecko Aloe; and

e. A motion to strike paragraph 17 of Koke J.’s March 11, 2011 Order

[5] Ms. Aloe and the Defendants seek the following:

a. A direction from the Court that a revised plan filed with the Court satisfies the Defendants’ obligation to transfer approximately 3.43 acres to Ms. Aloe-Gunnell;

b. A direction from the Court that Ms. Aloe-Gunnell should have no contact with the relevant municipal authorities during the timeframe that re-zoning is being contemplated by the Town of Highland Falls. The evidence suggests that she is harassing relevant officials which will, in turn, likely scuttle the re-zoning;

c. A direction that Ms. Aloe-Gunnell sign a document (attached as “Schedule 1” to these reasons) in order to assist the re-zoning process; and

d. A “simplified” Order to file with the planning board so that local authorities will not come alive to the fact that an environmental concern is purchasing the land.

[6] I will deal with each request in turn.

Ms. Aloe-Gunnell’s Contact with Scenic Hudson

[7] Ms. Aloe-Gunnell provided no valid reason necessitating that she contact Scenic Hudson except to state that she has little faith that the Ms. Aloe and the Defendants will properly advise her of their communications with Scenic Hudson.

[8] Firstly, I see no reason why Ms. Aloe-Gunnell – who is not a party to the sale – would normally need to be in contact with a third party that is purchasing a property. Normally, I would imagine that such a sale would not involve Ms. Aloe-Gunnell at all.

[9] Secondly, Ms. Aloe-Gunnell’s prior acts of contempt and the history of the litigation of this matter (all of which has been canvassed extensively in my previous reasons) raises serious concerns that she will attempt to obfuscate the proceedings with the intention of thwarting the sale, despite her claim to the contrary.

[10] Accordingly, even if I had jurisdiction to vary my sentence on the contempt Order (about which I am uncertain), I would not be inclined to allow Ms. Aloe-Gunnell to have contact with Scenic Hudson prior to the completion of the sale since such contact would likely put the sale to Scenic Hudson at risk.

Leave to Commence Action as Against Ms. Aloe

[11] I heard oral argument regarding some of the allegations as against both Ms. Aloe and Ms. Aloe-Gunnell. Ms. Aloe advanced a limitations argument that will require written submissions from both parties. Those submissions will be filed no later than May 6, 2016 and I will give a decision on the matter once I have reviewed same. The submissions will not exceed 10 pages in length.

Leave to Commence Action/Application as Against the Estate

[12] For reasons given orally, I hereby direct the parties to provide the Court with written submissions (under separate cover) in this matter no later than May 6, 2016. The submissions will not exceed 10 pages in length.

Paragraph 17 of Koke J.’s March 11, 2016 Order

[13] The parties have filed extensive documentation with regard to Paragraph 17 of Koke J.’s March 11, 2011 Order. The most efficient way to deal with this matter is to receive written submissions from both parties no later than May 6, 2016 (no longer than 10 pages) outlining their arguments.

The Revised Plan

[14] The Defendants filed evidence that their new New York counsel has indicated that the best way to effectuate the transfer of property to Ms. Aloe-Gunnell is to complete the severance of the property first, and then commence a rezoning application. They have begun this process.

[15] In support of that process, the Defendants filed a revised survey listed as Exhibit 1 to this motion (it is too large to reproduce as a Schedule in these reasons) which they purport to use as the basis for said severance.

[16] Ms. Aloe-Gunnell opposes any transfer of property based upon Exhibit 1 since she does not like that a new road was allegedly added to the southerly Boundary as described by deed Libr 1288 at page 123. The roadway was previously described as being 50’ wide but it appears only to be 20’ to 25’ wide. Further, she questions whether the right of way so described is legal in the State of New York. She also indicates that the road may take away land that is available for development and, as such, the roadway could have a negative impact upon the value of the property. Ms. Aloe-Gunnell filed an opinion letter in support of this proposition but, in reading said letter, it does not mention that the roadway lowers the value of the property.

[17] On the contrary, the Defendants filed evidence indicating that said roadway was deeded on, and has been on title since, 1953.

[18] As I indicated in my reasons of March 1, 2016, Koke J.’s wording of “approximately 3.43 acres” makes clear that the parties always understood that Ms. Aloe-Gunnell was going to receive a specific piece of property whose exact nature and parameters were somewhat unclear. Further, it is clear on the evidence before me that the roadway in question existed at the time of the settlement and, as a result, Ms. Aloe-Gunnell always understood that she would receive the property with the roadway.

[19] With respect to the concern that the roadway is not legal in the State of New York, I am not a New York Court Justice. I can only make decisions with respect to matters that concern Canadian disputes. While the dispute regarding Mr. Aloe’s Estate and settlement thereof is within my jurisdiction, findings regarding the legality of a New York State planning board is not within the ambit of my authority and, accordingly, I make no statements in that regard.

[20] Ms. Aloe-Gunnell’s argument that said roadway is new and that it would lower the value of the property she intended to receive is, frankly, disingenuous. Her submissions were contradicted by the evidence and she could provide no sound answer for why the economic value of the property would diminish as a result of a pre-existing road.

[21] It should be noted that Ms. Aloe-Gunnell – according to an affidavit filed by the Defendants – has a Master’s degree in some form of urban planning. One would have imagined that an individual with advanced training in such a subject would have been able to adequately describe her aversion to the plan as proposed by the Defendants had her opposition been based upon a pressing and valid concern.

[22] I therefore reject her submissions in their entirety and hereby find that the revised plan for severance and transfer of land to Ms. Aloe-Gunnell as described by Exhibit 1 (filed on April 14, 2016) complies with Koke J.’s Final Order of March 11, 2011.

No Contact with Relevant Municipal Authorities

[23] The Defendants have furnished evidence that Ms. Aloe-Gunnell has been contacting a variety of Highland Falls Municipal officials as well as other Planning Board officials in an attempt, they claim, to scuttle the sale. Ms. Aloe-Gunnell has indicated that she only wishes to contact these authorities to gather information from them.

[24] Ms. Aloe-Gunnell indicates that she wishes to ensure that nothing being represented about her actions is slanderous in nature. Frankly, this appears to be an odd reason for contacting municipal officials and I am uncertain as to why she should require any further contact with these officials now that the plan as described in Exhibit 1 has been approved by me.

[25] I am unclear, however, as to my authority to prevent an American citizen from contacting American municipal authorities. If the Defendants were seeking an Order preventing Ms. Aloe-Gunnell from contacting the authorities as part of a Contempt sentence, I would have no hesitation in stating that the law appears to give me such authority. However, I do not know if the power of “directions” extends so far as to bind non-Canadians from contacting their own governments.

[26] The Defendants provided me with no authority to suggest that I had such a power. In my research last night, I found Abrams v. Abrams 2010 ONSC 2703 (OSCJ). It is an informative decision regarding the ability to give directions, but not clearly on point.

[27] Further, the Defendants indicated that they required immediate relief regarding the severance and zoning issues since the planning board is meeting later this month and documents need to be filed well in advance.

[28] Despite the defendants’ request for a timely determination of this matter, I will not bar Ms. Aloe-Gunnell from contacting local American officials without further and better submissions thereon. The parties are free to schedule a timetable for written submissions should the Defendants choose to pursue this remedy.

[29] Ms. Aloe-Gunnell should note, however, that if the Court were to find that she was bothering officials in Highland Falls, New York in an attempt to thwart the sale to Scenic Hudson, it is quite possible that she would be found to be in contempt of Koke J.’s March 11, 2011 Order for a third time. I believe that it goes without saying that any Court looking at sentencing a contemnor for a third time would have to strongly consider the possibility of a meaningful period of incarceration. She should therefore exercise appropriate restraint if she is to contact these officials in the future.

[30] The Defendants also indicated that this issue may be moot if I were to provide a direction that Ms. Aloe-Gunnell sign the document located at Schedule 1 to these reasons.

Document Signature

[31] The letter contained at Schedule 1 to these reasons effectively indicates that Ms. Aloe-Gunnell consents to the severance and re-zoning application and agrees to pay such fees as are deemed necessary by Alo Construction Co. Ltd.

[32] Ms. Aloe-Gunnell indicated that she did not wish to sign this document because the document is insufficiently precise in that it should refer to all the alleged points of dispute between the parties including the 25’ versus the 50’ road described above. Equally, she wishes to have an American attorney review the letter for her, although I have no idea why she has not already done so.

[33] Ms. Aloe-Gunnell agrees that the rezoning application should proceed once the severance is completed.

[34] Firstly, there is nothing in the letter that appears to bind Ms. Aloe-Gunnell save and except that it indicates her support for the severance and rezoning process. Counsel advises – and the evidence of Peter Aloe sworn April 7, 2016 demonstrates – that such a letter is necessary to effectuate the severance and rezoning processes.

[35] Further, paragraph 12 of Koke J.’s March 11, 2011 states:

The parties are to make themselves available to sign any document required to effect the Minutes

[36] It seems clear that, as part of the settlement, Koke J. Ordered the parties to do that which was necessary – and sign that which was necessary – to finalize the sale to Scenic Hudson.

[37] The fact that the sale to Scenic Hudson is on “life support” makes perfect sense given the litigious nature of the matter since settlement was reached on March 11, 2011. As indicated in a variety of judgments from Koke J., myself and Justices of the Ontario Court of Appeal, much of the blame for this delay falls at the feet of Ms. Aloe-Gunnell.

[38] Accordingly, I accept that the letter as filed as Schedule 1 is reasonably necessary for the severance process to take place. Were Ms. Aloe-Gunnell not to sign the letter, I am satisfied that such a phenomenon would greatly increase the chance that the sale to Scenic Hudson would be scuttled.

[39] Secondly, Ms. Aloe-Gunnell has given no good reason why she should not sign the letter. Accordingly, I direct that she sign the letter contained in Schedule 1 and courier three original copies to Mr. Scott’s office no later than April 19, 2016.

Orders and Costs

[40] Mr. Peter Aloe’s affidavit asks that Scenic Hudson and conservation easements not be mentioned in any Order to be given to the New York planning board since such mention might constitute a “red flag” to the planning board that Scenic Hudson is an environmental group. There is strong local opposition to the purchase of the land by an environmental group since such a purchase would erode the tax base.

[41] Previously, the parties haggled over the wording of certain orders so as to provide “clean” orders to the New York planning board. It was never adequately explained to me why such “clean” orders were necessary but, at the end of the day, the parties – and their counsel – agreed to specific wording and, as a result, I signed the consent Orders.

[42] The evidence described in paragraph 40, above, however, makes the importance of the wording of the Orders clear. Simply put, creating a “clean” order would be tantamount to a mild form of deception upon elected officials in New York since the parties do not wish to waive a “red flag” regarding Scenic Hudson’s true desires.

[43] To ask the Court to engage in deception of any sort is deeply concerning. I will not knowingly tailor the wording of any Orders to promote oblique motives.

[44] I am not specifically stating that, to this point, the parties have attempted to specifically deceive the Court. Such a finding would require considerable revisitation of expansive litigation and would not be good use of Court time. However, the parties are on notice that any attempt to use Court proceedings so as to manipulate democratic debate and/or governmental processes will be treated very, very seriously.

[45] The parties will provide me with copies of their suggested Orders regarding my outstanding reasons no later than end of day, April 19, 2016.

[46] I will deal with costs once I deal with the balance of the motion.

Varpio J.

Released: April 15, 2016

Aloe-Gunnell v. Aloe et al 2016 ONSC2576

SCHEDULE 1

ALO CONSTRUCTION CO. LTD

BUILDERS, CONTRACTORS & DEVELOPERS SINCE 1956

April 14, 2016

BY HAND DELIVERY

Ms. Valve Elizabeth Aloe-Gunnell 432 Rolling Hills Lane Petoskey Michigan 49770

Re: Letter Agreement-Subdivision Application and Rezoning Petition by Alo Construction Co. Ltd. To Village of Highland Falls for property located on Main Street in the Village of Highland Falls, Orange Country, New York, 10928, identified on Orange Country, New York, tax maps as Section 105, Block 5, Lot 6.21, consisting of approximately 35.264 acres of land (the “Premises”)

Reference is made to an order of the Ontario Superior Court of Justice, dated November 23, 2015, Court File No. 21119/A2 (the “2015 Order”), whereby the Honorable Justice M. Varpio ordered that a severance (i.e. a subdivision) of approximately 3.430 acres of land be obtained from the Village of Highland Falls concerning the Premises.

Reference is made to an Order of the Ontario Superior Court of Justice, dated March 11, 2011, Court File No. 21119/A2 (the “2011 Order”), whereby the Honorable Justice E.J. Koke ordered that Valve Elisabeth Aloe-Gunnell be deeded approximately 3.430 acres of land from the Premises in the Village of Highland Falls, New York.

In accordance with the 2015 Order and the 2011 Order (collectively the “Orders”) ALO CONSTRUCTION CO. LIMITED, a Private Company (the “Company”) pursuant to the Province of Ontario, Canada, Letters Patent dated March 20, 1956, is seeking subdivision approval for the premises from the Village of Highland Falls Planning Board in Orange County, New York (the “Subdivision Approval”), in order to subdivide (i.e. to sever) the Premises into two (2) lots, including proposed Parcel 1 consisting of 3.430 acres of the Premises and proposed Parcel 2, consisting of the remaining 31.834 acres of the Premises.

In Furtherance of the Orders, Valve Elisabeth Aloe-Gunnell hereby consents, confirms, permits and authorizes the Company to take all such actions and to execute and deliver all such documents, instruments and agreements including, without limitation, an application for the Subdivision Approval, and any related application submissions, including, without limitation, a subsequent application to the Village of Highland Falls to rezone a portion of the Property (the “Rezoning Application”) to comply with the Orders, and to pay all such fees and expenses as in the Company’s judgement shall be necessary, proper or advisable in toder to carry out the intent as described herein and to accomplish the Subdivision Approval application and a Rezoning Application and to comply with all terms, covenants and conditions of any such Subdivision or Rezoning Approvals.

Accordingly, if the foregoing correctly sets forth our agreement concerning the Subdivision Approval and the Rezoning Application in furtherance of the Orders, we respectfully request that Valve Elizabeth Aloe-Gunnell confirm her agreement, approval and authorization by countersigning a copy of this letter in the spaces provided below.

[NO FURTHER TEXT ON THIS PAGE; SIGNATURE PAGE FOLLOWS]

[SIGNATURE PAGE TO LETTER AGREEMENT]

Very truly yours,

ALO CONSTRUCTION CO. LTD

By: L. Peter Aloe Title: President

CONFIRMED AND AGREED:

This___ day of __________________, 2016

By: Valve Elizabeth Aloe-Gunnell 432 Rolling Hills Lane Petoskey Michigan 49770

ACKNOWLEDGEMENTS [Insert Canadian Notary/Witness Page]

ONTARIO SUPERIOR COURT OF JUSTICE TIIU MARI-ANN ALOE AND VALVE ELISABETH ALOE-GUNNELL Plaintiffs – and – ESTATE OF VALDEKO ALOE, LEMBIT PETER ALOE, TOOMIS ERKI ALOE, ALO LUMBER AND BUILDING SUPPLIES, JOHN ALO DEVELOPMENTS LIMITED AND ALO CONSTRUCTION CO. Defendants

REASONS on motion for directions Varpio J.

Released: APRIL 15, 2016