Court File and Parties

COURT FILE NO.: CV-13-494353 DATE: 20160726 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: GEORGIA TSITSOS, HARALABOS TSITSOS and STEVEN TSITSOS Plaintiffs/Defendants by Counterclaim – and – KAKOULI POKA Defendant/Plaintiff by Counterclaim

Counsel: Gregory Graham, for the Plaintiffs/Defendants by Counterclaim George Corsianos, for the Defendant/Plaintiff by Counterclaim

HEARD: July 21, 2016

Endorsement

DIAMOND J.:

Overview

[1] This case has a long and tortured history. A brief cast of characters is required.

[2] The plaintiff Georgia Tsitsos (“Georgia”) and the defendant Kakouli Poka (“Poka”) are sisters. The plaintiff Haralabos Tsitsos (“Bobby”) is Georgia’s husband. The plaintiff Steven Tsitsos (“Steven”) is the son of Georgia and Bobby, and Poka’s nephew.

[3] Georgia and Bobby reside in Thompson, Manitoba. Until the unfortunate events giving rise to this dispute occurred, Poka and Steven resided together at 41 Hill Crescent, Toronto, Ontario (“the Hill property”). Georgia, Bobby and Poka own the Hill property together as joint tenants.

[4] As a result of this litigation, the parties have been attempting to sell the Hill property for several years. Particulars of those efforts, and the resistance displayed by each side during that time, can be reviewed in my Case Conference Endorsements previously made in this proceeding.

The history of the motions

[5] In early 2015, the plaintiffs brought a motion seeking, inter alia, an Order appointing a receiver to manage and list the Hill property for sale (“the receiver motion”). After being adjourned on specific terms by Justice Chapnik on April 27, 2015, that motion was scheduled before me on June 1, 2015 and August 20, 2015. On both occasions, the plaintiffs’ motion was further adjourned and ultimately scheduled to be heard before me for a two-day hearing. I offered to “manage” the motion until the hearing dates should the need arise. As shown in my Case Conference Endorsement, I have tried to fulfill that need.

[6] By late 2015, the plaintiffs’ receiver motion had morphed into five separate motions, all set to be argued at the two-day hearing). In addition to the receiver motion, the plaintiffs were also seeking:

a) an order striking out portions of affidavits filed by Poka (“the motion to strike”);

b) an order staying Poka’s counterclaim (“the stay motion”);

c) an order granting the plaintiffs leave pursuant to Rule 39.02(2) of the Rules of Civil Procedure to tender the affidavit of Paul Martin (the “Martin affidavit”) after the completion of cross-examinations (“the leave motion”); and,

d) an order for the interim recovery of personal property located in the Hill property pursuant to Rule 44.01(1) (“the recovery motion”)

[7] The stay motion was resolved by the parties in advance of the hearing dates. The parties intended to proceed with the other four motions before me.

Partial progress

[8] At the outset of the hearing, some progress was achieved. Rather than proceed with argument of the plaintiffs’ receiver motion and motion to strike, the parties agreed to continue their efforts to sell the property and try to bridge the previously evolving chasm which had developed between them.

[9] At my suggestion, and with the parties’ agreement, I now make the following Order:

1. The plaintiffs shall be entitled to a supervised, physical attendance at the Hill property (either in their own capacity or through an authorized representative) on a mutually agreeable date. The attendance shall be for the purpose of inspecting the contents of the Hill property.

Counsel for the parties are permitted (and encouraged) to attend with their clients or their representative during the attendance. The plaintiffs or their representative shall identify all items which the plaintiffs claim to own, and thereafter provide the defendant with a list of those items together with a brief summary of the reasons supporting their ownership claims.

Upon receipt of that list, the defendant shall deliver a written response to the plaintiffs confirming which items are not in dispute (i.e. those items in which the defendant does not claim ownership), the items which the defendant claims to own herself, and the reasons supporting her ownership claims.

The attendance shall take place on or before August 30, 2016. The plaintiffs or their representative are at liberty to take photographs of the items over which they claim an ownership interest.

The plaintiffs shall deliver their list within seven business days of the attendance, and the defendant shall deliver her responding list within ten business days of receipt of the plaintiffs’ list.

2. The Hill property is currently listed for sale with Wright Sisters Group for $3,670,000.00. That listing is set to expire on October 7, 2016.

If the Hill property is not sold before the expiry of the listing, the parties shall extend that listing with the Wright Sisters Group for a further six months.

To the extent that the listing price may need to be reduced, in addition to the appraisals which the parties have already obtained, they may seek and obtain evidence from the Wright Sisters Group relevant to the necessity, timing and amount of any proposed price reduction.

In the event the parties cannot agree upon a potential price reduction, they may schedule a telephone case conference with me through my assistant Michelle Giordano, and I will either resolve or choose the new listing price.

The parties are at liberty to file written submissions (if necessary) up to two days in advance of the scheduled telephone case conference, such written submissions being limited to no more than four pages.

3. While the leave motion and the recovery motion were argued before me on July 21, 2016 (set out hereinafter), the terms of this Endorsement are without prejudice to the parties’ respective rights and interests in the receiver motion and the motion to strike.

4. I will continue to manage the receiver motion and the motion to strike should they need to be argued. If any material disputes arise between the parties relating to those two motions, they may contact Ms. Giordano to set up a case conference to address any such matters.

[10] As stated above, the parties argued the leave motion and the recovery motion before me on July 21, 2016. It is the plaintiffs’ position that the contents of the new Martin affidavit are relevant to the disposition of the recovery motion.

[11] As such, I shall decide the leave motion first.

The leave motion

[12] In early November 2012, Poka’s son, Demitry Papasotiriou-Lanteigne (“Demitry”) was charged with, inter alia, conspiracy to commit murder. Criminal bail proceedings proceeded in 2013. Georgia, Bobby, Demitry and Poka all swore affidavits in support of those bail proceedings. Poka and Demitry swore two affidavits each both dated July 25, 2013 and November 11, 2014 (“the bail affidavits”).

[13] In this proceeding, the parties included both Poka and Demitry’s affidavits in Schedule “B” to their respective affidavits of documents. The reason for including those affidavits in Schedule “B” (as they were not subject to any privilege) was that the affidavits were made subject to a publication ban pursuant to section 517 of the Criminal Code, and neither counsel for the plaintiffs nor counsel for the defendant were certain as to whether those affidavits could be produced in a civil litigation in the face of that publication ban.

[14] The parties did not include the bail affidavits in any of the multiple motion records filed leading up to the hearing before me.

[15] It is the plaintiffs’ position that the contents of the bail affidavits are very relevant to the issues to be determined in this proceeding. Poka has taken the position that she is a co-owner of two businesses (a restaurant and a movie theatre) run by Georgia and Bobby in Thompson, Manitoba. Poka further states that the funds deposited into a joint account held by Georgia and herself originate from the businesses, and as such those funds are in fact partially hers.

[16] The plaintiffs submit that the contents of the bail affidavits cast Poka’s evidence into serious doubt. On Poka’s cross-examination in this proceeding, counsel for the plaintiffs attempted to place Poka’s bail affidavits before her and ask questions surrounding the apparent inconsistencies in her evidence. Counsel for Poka refused to allow her to answer any questions arising out of the bail affidavits.

[17] Rather than bring a motion before a Master seeking an order compelling Poka to answer the refused questions, the plaintiffs have brought their leave motion. The Martin affidavit essentially attaches all of the bail affidavits. I note that the parties did not encounter or experience any difficulty whatsoever in retrieving the bail affidavits from the criminal court file.

[18] Poka opposes the plaintiffs’ leave motion, but has delivered her own affidavit responding to the alleged inconsistencies in the event the leave motion is granted.

[19] To begin, I see nothing problematic in either party filing the bail affidavits in this proceeding, as such a step does not amount to a publication. Filing the bail affidavits would not amount to “making them generally known, making a public announcement, or placing them before the public” as those terms were defined in by Justice Sigurdson in R. v. Daly, 2003 BCSC 1143, [2003] B.C.J. 1742 (B.C.S.C.).

[20] To the extent that I grant the plaintiffs leave to tender the Martin affidavit, the Court can clearly place notices upon the bail affidavits advising of the existence of a publication ban in the criminal proceedings.

[21] The true issue is whether the plaintiffs have met the test under Rule 39.02(2). The parties do not dispute the elements of that test, which are as follows:

a) is the matter raised on cross-examination relevant to the litigation?

b) is the new affidavit responsive to the matter raised on cross-examination?

c) if leave is granted, will it operate unfairly against the adverse party?

d) if leave is granted, what additional terms, if any, are appropriate?

[22] In my view, (a), (c) and (d) are not in issue. There is no doubt that the contents of the bail affidavits are relevant to the issues in this proceeding. There is not true prejudice to Poka as she has already delivered a “conditional” affidavit explaining the alleged inconsistencies. Further, I see no need to grant any additional terms in the circumstances.

[23] This boils down to whether the new affidavit is responsive to “the matter raised on cross-examination.” Poka submits that the purpose of the plaintiffs relying upon the bail affidavits on her cross-examination was to challenge her credibility, and it was well known to the plaintiffs in advance of the cross-examinations that credibility was a significant issue on these motions. As such, Poka submits that the affidavits are not “responsive” to anything raised on her cross-examination.

[24] I disagree. I find that the “matter raised on cross-examination” was Poka’s position that the bail affidavits were not admissible in this proceeding - a position which, in my view, was incorrect. Rightly or wrongly, counsel for the plaintiffs assumed that he could use the bail affidavits on Poka’s cross-examination. While it would have been preferable for the plaintiffs to proceed with a motion before a Master seeking an Order compelling Poka to answer the refused questions (and mark the bail affidavits as exhibits), in a proceeding as contentious as this one, I am desirous of arriving at a just determination of all matters in dispute on these motions.

[25] Accordingly, the plaintiffs’ leave motion is granted. The Court office shall place a notice upon the plaintiffs’ Ninth Supplementary Motion Record (containing the Martin affidavit) and Poka’s Sixth Supplementary Responding Motion Record, advising of the existence of the publication ban in the R. v. Demitry Papasotiriou-Lanteigne criminal proceedings.

The recovery motion

[26] The subject matter of the recovery motion is a Steinway & Sons grand piano, and various sundry books of sheet music, all of which the plaintiffs allege belong to them, and are located at the Hill property.

[27] To begin, Poka denies the existence of any sundry books of sheet music at the Hill property. She states that she has searched for those items and has not been able to locate them. Poka does not oppose the recovery motion with respect to those sundry books of sheet music, and I therefore grant the relief sought with respect to those items. The plaintiffs will be able to search for and (if found) retrieve the sundry books of sheet music during their upcoming attendance at the Hill property.

[28] Poka disputes that the plaintiffs own the piano, and claims that she is in fact the owner. Before I embark upon a review of the relevant evidence (including the bail affidavits and Poka’s response to them), it is important to review the test under Rule 44.01(1) of the Rules of Civil Procedure. Rule 44.01(1) permits the Court to grant an interim order for recovery of possession of personal property when presented with evidence setting out:

a) a description of the property sufficient to make it readily identifiable;

b) the value of the property;

c) that the plaintiff is the owner or lawfully entitled to possession of the property;

d) that the property was unlawfully taken from the possession of the plaintiff or is unlawfully being detained by the defendant; and

e) the facts and circumstances giving rise to the unlawful taking or detention of the property.

[29] On this motion, only (c), (d) and (e) are in dispute.

[30] As held by Justice Dambrot in Bernhard v. McDonald, 2016 ONSC 3936, the plaintiffs are under an obligation to show substantial grounds for each of the above five factors, as the test requires a high degree of assurance that the plaintiffs will be successful at trial. As stated by Justice Dambrot, “where there is documentations supporting the plaintiff’s position, the substantial grounds tests will likely be met…however, in cases where issues of credibility will determine the action, the test is less likely to be met.”

[31] The plaintiffs have produced an invoice dated February 21, 2006 from Pianos Prestige to Georgia (at her Thompson address) for the sale of the piano. The invoice totals $85,000.00, and was paid by way of two $42,500.00 payments drawn on Georgia’s and Poka’s joint account. The plaintiffs have also produced banking records evidencing deposits into the account by way of cheques from the restaurant to Georgia.

[32] The plaintiffs also rely upon a letter dated February 21, 2006 from Pianos Prestige to Georgia confirming that the salesmen had spoken with both Georgia and Poka, and had requested a copy of Georgia’s driver’s license or other documents evidencing her residence in Manitoba (presumably for the purpose of not charging Ontario provincial sales tax).

[33] Poka’s position is that she purchased the piano for Steven, with whom she was living at the time. Poka submits that Georgia was unwilling to buy Steven the piano as she and Bobby already had a piano in their Thompson home. Poka states that she asked Georgia to deposit money from the businesses into the joint account in order that she purchase the piano for Steven. As Poka claims to be a part owner in the businesses, it is her position that her funds were used to purchase the piano.

[34] I have some difficulty with Poka’s version of events. For one, if she was the individual looking to purchase the piano from a Toronto retailer, and she and Steven resided in Toronto, why are the invoice and letter from Pianos Prestige addressed to Georgia in Thompson, Manitoba? Apart from facilitating the funding of the purchase, why would Georgia be involved at all with Pianos Prestige? Poka’s response was that Georgia asked that the invoice be made out to her so that the piano could be used for “tax write-off purposes”. While I was initially confused by that position (what would a restaurant and movie theatre need with a piano?), counsel for Poka pointed me to an excerpt from Georgia’s cross-examination where she seems to state that an expensive violin was previously purchased and was an “asset of the business”.

[35] There is no dispute that the joint account was used to help Poka pay for just about everything while living in Toronto. The plaintiffs submit that the piano transaction was a “one off” in that it was an extraordinary expense unlike the other transactions in the joint account. The plaintiffs submit that the piano belongs to Georgia, and had always been used by Steven until he was kicked out of the Hill property by Poka.

[36] It is interesting to note that at the outset of this proceeding, the plaintiffs obtained an ex parte order dated December 13, 2013 from Master Haberman granting them interim possession of the personal property at the Hill property, including the piano. By consent order dated March 24, 2014 of Master Graham, the order for interim possession was set aside without prejudice to the “rights of the parties to pursue interim possession of the personal property at the Hill property”. The plaintiffs did not move for further interim possession until nearly two years later when they brought their recovery motion before me. If there was any desire or need on Steven’s behalf to use or play the piano, it seems to has vanished during that time period and has only recently regenerated.

[37] While I admittedly have some difficulty with Poka’s version of events, at this stage I am not satisfied that there is a high degree of assurance that the plaintiffs will succeed in their claims for ownership of the piano, which has remained in the Hill property since the commencement of this proceeding.

[38] As held by Justice Dambrot in Bernhard, there is a heavy burden on a party seeking to avail itself of the provisions of Rule 44.01(1), and properly so as the remedy sought is analogous to execution before trial and must be granted sparingly. I believe that on the record before me, the inherent credibility issues are best left to trial.

[39] The plaintiffs’ recovery motion is therefore dismissed save for the sundry books of sheet music. The piano shall remain at the Hill property, and the parties shall not take any steps to move, relocate, sell, transfer, dissipate or otherwise damage the piano in any way pending further Court order or further agreement between the parties.

[40] In the event the Hill property is sold either during the current listing or during the six month extension, the piano (and any other items in dispute at the Hill property) shall be relocated and maintained at a neutral, third party location to be agreed upon by the parties or ordered by the Court.

Costs

[41] The costs of the plaintiffs’ receiver motion and motion to strike are reserved to me, or another judge if I am unable to hear those motions.

[42] With respect to the plaintiffs’ leave motion and recovery motion, I would urge the parties to exert the necessary efforts to try and resolve the costs of these motions. If such efforts prove unsuccessful, the plaintiffs may serve and file written costs submissions (totaling no more than four pages including a Costs Outline) within ten business days of the release of this decision.

[43] The defendant shall thereafter serve and file her responding costs submissions (also totaling no more than four pages including a Costs Outline) within ten business days of the receipt of the plaintiffs’ costs submissions.

Diamond J. Released: July 26, 2016

COURT FILE NO.: CV-13-494353 DATE: 20160726 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: GEORGIA TSITSOS, HARALABOS TSITSOS AND STEVEN TSITSOS Plaintiffs/Defendants by Counterclaim – and – KAKOULI POKA Defendant/Plaintiff by Counterclaim

ENDORSEMENT Diamond J. Released: July 26, 2016