CITATION: Guschewski v. Guschewski, 2017 ONSC 4553

COURT FILE NO.: CV-15-2057-00

DATE: 2017-07-26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

CHRISTINE GUSCHEWSKI

John G. Richardson, for the Plaintiff

Plaintiff

• and -

ROLAND GUSCHEWSKI, NORMAN GUSSCHEWSKI, JEAN CARBERRY, ESTATE OF MANFRED WANDERSLEBEN, and BARBARA GUSCHEWESKI

Jean Carberry, for the Defendants Guschewski and Carberry

Defendants

HEARD: July 24, 2017,

at Brampton, Ontario

Price J.

Reasons For Order

OVERVIEW

1Christa Guschewski died on December 7, 2010, with a Will that named her sons, Roland and Norman Guschewski, as her estate trustees. Christa’s husband, Ewald Guschewski, died on May 21, 2012. Christa’s and Ewald’s daughter, Christine Guschewski, undertook litigation against her brothers, Roland and Norman, and her sister, Barbara Guschewski, in which she alleged that her siblings had mismanaged their parents’ estates. The parties reached a settlement of the action on terms that permitted Christine to purchase the parents’ home in Caledon if she could obtain financing within 30 days, failing which the property was to be sold and the proceeds were to be divided equally among the siblings. The terms additionally provided for the sale of the parents’ other property in Tiny Township.

2Christine was unable to obtain financing. She claims that her siblings frustrated her ability to do so, by failing to make a proper inventory of the contents and put them into storage in a timely manner, which prevented her from obtaining a bank appraisal for purposes of securing approval for a mortgage. She additionally claims that her siblings evicted her from the property and disposed of the contents without accounting to her for the contents, which were part of the estate assets.

3Christine commenced further actions expanding her original claims against Roland, Norman and Barbara to include the events that have taken place since the 2013 settlement, claiming an accounting for the parents’ estates and the partition and sale of the Tiny Township property. Christine also caused her corporation, Friedrich Schiller Schule Inc., to commence two actions in the Small Claims Court over the alleged improper disposition of the corporation’s assets, consisting of school books, teaching books and supplies, which had been stored at the parents’ home in Caledon, and which the corporation alleged were disposed of improperly.

BACKGROUND FACTS

4Christine Guschewski commenced two actions in 2011 against her brothers, Roland and Norman Guschewski and her sister, Barbara Suschewski, arising from the administration of their mother’s estate (“the 2011 actions”). Ewald Guschewski died while those actions were ongoing.

5The 2011 actions were settled by Minutes of Settlement signed April 12, 2013, and incorporated into an Order of Fitzpatrick J. of the same date. The settlement provided for the following:

a) Christine Guschewski was to purchase the home at 7073 Castlederg Sideroad, Caledon East, Ontario, within 30 days, if she could obtain financing, provided that she was to permit Manfred Wandersleben to live in the home at a reasonable rent for as long as he wanted.

b) If Christine did not purchase the property within 30 days, she was to vacate the property by June 1, 2013, the property was to be immediately listed for sale, and the proceeds of sale were to be divided equally among the siblings.

c) Norman and Roland Guschewski were to be appointed executors of the estates of Christa and Ewald Guschewski, and were to share all correspondence and communications among the parties on a regular basis.

d) Barbara Guschewski was to obtain a new appraisal of the property at 1044 Tiny Beaches Road, in Tiny Township, within two weeks, and provide it to Roland and Norman Guschewski, who were to forward it to Christine. The Tiny Township property was then to be listed for sale within 30 days and the proceeds of sale also divided equally among the siblings.

e) Upon completion of the settlement, Christine was to discontinue the 2011 actions, and all further actions were to be barred.

6Christine Guschewski was unable to obtain financing for the purchase of 7073 Castlederg Sideroad, Caledon. She commenced a further action in 2015 in which she claims that Roland and Norman frustrated the implementation of the 2013 settlement, and that her failure to obtain financing resulted from their failure to remove the contents from the house and facilitate a bank appraisal of the property.

7Christine Guschewski commenced a further action against Roland, Norman, and Barbara Guschewski in 2014 for the partition and sale of the Tiny Township property. That action resulted in an Order by DiTomaso J. dated May 28, 2015, referring the partition and sale of the Tiny Township property to a referee who was to take all necessary accounts for the sale, and regarding the interests of the parties entitled to share in the proceeds of sale.

8Christine caused corporations controlled by her, Friedrich Schiller Schule Inc. and OFD, to commence two actions in the Small Claims Court, alleging that Roland and Barbara removed library and teaching books that were the property of the corporation from the Caledon property. An order was made in that Court consolidating the actions or for their trial together, and the trial began on July 17, 2017, and was adjourned to October 17, 2017.

9Norman, Roland, and Jean Carberry filed a request pursuant to Rule 21.01(1) and 2.1.01 that Christine’s action be dismissed as frivolous and vexatious or otherwise an abuse of the process of the court. Following a response from Christine and an oral hearing, Regional Senior Justice Daley dismissed that motion on October 22, 2015.

10Justice Daley described the motion before him in the following terms:

7It was submitted on behalf of the moving defendants that the plaintiff’s action, as set forth in her statement of claim, is on its face frivolous or vexatious or otherwise an abuse of the court’s process. It was further submitted by counsel that if the plaintiff has any claims with respect to the administration of the two estates referenced in the statement of claim, she has a right to institute an application relating to the passing of the accounts of the estate trustees and as such it was asserted that the plaintiff’s action is not properly constituted.

10When questioned by me as to the basis upon which I should determine that this action is frivolous, vexatious or an abuse of court process, counsel for the moving defendants simply indicated that the plaintiff had a right to assert all of the claims that are within the statement of claim in an application related to the passing of accounts on the two estates. She further submitted that some aspects of the relief sought by the plaintiff in the statement of claim cannot be granted by a court, namely that some of the claims were not actionable.

11After reviewing the relevant jurisprudence, Justice Daley concluded:

14On the basis of the statement of claim and the submissions of the parties, I cannot conclude that this plaintiff is attempting to re-litigate issues already adjudicated in other proceedings or pending in the Small Claims Court actions which I have been advised of. The pleadings in those actions are not before me and the identity of the parties involved and the nature of those actions are unknown.

16While the statement of claim may be lacking in many respects and may be vulnerable to attack on a motion on another basis, a determination as to whether or not the statement of claim and the action as framed is vexatious, frivolous or an abuse of process is a very close call, and as such I have concluded that this is not a case where the action should be dismissed pursuant to Rule 2.1.01.

12On December 18, 2015, Christine Guschewski discontinued the action as against Green Storage Inc., o/a Northern Self Storage, and against Kerry Parr. On May 12, 2016, on a motion by Roland and Norman Guschewski and Jean Carberry, Ricchetti J. ordered a timetable for the action, requiring Christine to serve an Affidavit of Documents within 60 days, requiring the moving defendants to serve their Affidavit of Documents within 120 days, and requiring the examinations of all parties to be conducted in September or October 2016.

13Norman Guschewski died on August 7, 2016. Roland Guschewski is the surviving estate trustee for his parents’ Estates. Christine Guschewski has not yet obtained an order continuing her action against Norman Guschewski’s Estate. On August 18, 2016, Christine Guschewski discontinued her action as against Rexwell Disposal Services Limited and Anthony Marrocco.

14On February 3, 2017, Christine Guschewski’s corporation, Friedrich Schiller Schule Inc., commenced an action against Norman and Roland in Small Claims Court (the “Small Claims Action”). A trial of that action began on June 17, 2017, and has been adjourned to October 17, 2017.

15Roland has submitted the estate accounts for the estates of Christa Guschewski and Ewald Guschewski to be passed by the court. He and Jean Carberry now move pursuant to Rules 21.01(1)(a), (b), and (c), and (3)(c) and (d) to strike out Christine’s pleading as disclosing no reasonable cause of action.

16Christine Guschewski has responded with a cross-motion for leave to amend her Claim.

ISSUES

17The motion requires the court to determine the following issues:

a) Should Christine Guschewski be granted leave to amend her Claim?

b) Should the Claim be struck as disclosing no reasonable cause of action?

PARTIES’ POSITIONS

18The moving defendants submit that Christine Guschewski’s Claim should be dismissed as against the Moving Defendants on the ground that

(a) The Claim discloses no reasonable cause of action,

(b) The issues raised in the pleadings are res judicata, or

(c) The Claim is frivolous, vexatious, and an abuse of process.

19In the alternative, they seek summary judgment dismissing the action as against them.

20The Moving Defendants submit that the Small Claims Action brought by Friedrich Schiller Schule Inc. and OFD contain claims for alleged removal of library and teaching books, which is also made in the present action. They argue that the basis and rationale of both actions are the alleged failure of Norman and Roland, as estate trustees, to deal properly with the contents and belongings found in the estate home. They say that the evidence at trial and the decision in the Small Claims Court will determine the issue.

21The Moving Defendants submit that the Statement of Claim discloses no reasonable cause of action as against them. They say it claims damages for alienation and emotional upset arising from their alleged mishandling of the Plaintiff’s belongings, and that even if proven, this is not an actionable claim.

22The Moving Defendants seek to differentiate the within motion from the motion brought on October 22, 2015, before Justice Daley. They argue that the within motion should not be determined by reading only the Statement of Claim, but by also reviewing the surrounding facts and the application of the law.

23They argue that the Plaintiff should have taken steps to protect her own assets as well as those of her company when she left the estate home.

24The Moving Defendants say that they do not wish to declare Christine Guschewski a vexatious litigant, but they say that the principles surrounding such a declaration are applicable in the context of this case. They argue that the Plaintiff has no reasonable prospect of success in this case.

Christine Guschewski’s position

25Christine Guschewski seeks leave to amend her Claim. She further opposes the defendants’ motion on the ground that it amounts to an attempt to re-litigate issues already determined in her favour by Regional Senior Justice Daley.

26Christine submits that the findings contained in Justice Daley’s October 22, 2015, Endorsement were made with respect to the Original Statement of Claim. She says that Justice Daley found that the action framed in the Original Claim was not vexatious, frivolous or an abuse of process for the purposes of Rule 2.1.01. She says that the test to be applied on this motion is identical to the test applied by Justice Daley. As such, she says that the motion should be dismissed having already been determined by Justice Daley.

ANALYSIS AND EVIDENCE

a) General principles applying to motions for summary judgment

27Rule 20.04 provides that where there is no genuine issue for trial with respect to a claim or defence, the court shall grant summary judgment accordingly. Rule 20.04(2) states:

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

28Accordingly, the court may grant summary judgment in the following circumstances:

1. Where the parties agree;

2. Where the claim is without merit;

3. Where the motions judge is able to dispose of the matter and where the trial process is not required in the “interest of justice.”¹ [Emphasis added]

29In 2014, the Supreme Court of Canada, in Hyrniak v. Mauldin,² and Bruno Appliances and Furniture Inc. v. Hyrniak,³ reinterpreted Rule 20 of the Rules of Civil Procedure, taking into account the need for the court to preserve the public’s access to justice. The Supreme Court held that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely, and just adjudication of claims. It held that a trial is not required if the court hearing a summary judgment motion can make a fair and just adjudication, by making the necessary findings of fact, and applying the law to those facts, and if the process is a proportionate, more expeditious, and less expensive means of achieving a just result than a trial.

30The Supreme Court observed that the summary judgment motion judge must assess the interests of justice that would be served by summary judgment, by considering the relative efficiencies that would be served by that process and those that would be served by a trial, including the cost and speed of each procedure, the evidence that is available on the motion versus the evidence that would be available at trial, and the opportunity to evaluate such evidence fairly. As the Supreme Court stated, there will be no genuine issue requiring a trial if the summary judgment process gives the motion judge the evidence required to fairly and justly adjudicate the dispute on its merits, and is a proportionate, more expeditious, and less expensive means to achieve a just result.

31In Sweda Farms v. Egg Farmers of Ontario, in 2014, Corbett J. described the current approach to summary judgment motions following the Supreme Court of Canada’s decision in Hryniak v. Mauldin, as follows:

Summary judgment motions come in all shapes and sizes, and this is recognized in the Supreme Court of Canada’s emphasis on “proportionality” as a controlling principle for summary judgment motions. This principle does not mean that large, complicated cases must go to trial, while small, single-issue cases should not. Nor does it mean that the “best foot forward” principle has been displaced; quite the reverse. If anything, this principle is even more important after Hryniak, because on an unsuccessful motion for summary judgment, the court will now rely on the record before it to decide what further steps will be necessary to bring the matter to a conclusion. To do this properly, the court will need to have the parties’ cases before it.⁴

32The Supreme Court of Canada, in Hryniak v. Mauldin, gave guidance as to how Rule 20 should be applied to promote timely and affordable access to the civil justice system. Justice Karakatsanis, on behalf of the court, noted that such motions are an opportunity to simplify pre-trial procedures and move the emphasis away from the conventional trial, in favour of proportional procedures tailored to the needs of the particular case. She stated:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.⁵ (Emphasis added)

33Justice Karakatsanis held that the judge hearing a motion for summary judgment must compare the procedures available in such a motion, supplemented, if necessary, by the fact-finding tools provided by Rules 20.04(2.1) and (2.2), with those available at trial, to determine whether the court can make the necessary findings of fact and apply the principles of law to those facts in a proportionate, most expeditious, and least costly manner, to achieve a just result:

This inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial. This would involve a comparison of, among other things, the cost and speed of both procedures. (Although summary judgment may be expensive and time consuming, as in this case, a trial may be even more expensive and slower.) It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it. (Even if the evidence available on the motion is limited, there may be no reason to think better evidence would be available at trial.)⁶ (Emphasis added)

34Based on the guidelines set out in Hryniak v. Mauldin, I must first determine, based on the evidence before me, and without using the new fact-finding powers under Rule 20.04, whether there is a genuine issue requiring trial, whether I can fairly and justly adjudicate the dispute, and whether the motion is a timely, affordable, and proportionate procedure under Rule 20.04(2)(a). If there is no genuine issue requiring a trial, I must grant summary judgment.⁷

35If there appears to be a genuine issue requiring a trial, I must exercise my discretion to determine whether the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2), provided their use will not be contrary to the interests of justice and will lead to a fair and just result, and serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole.⁸

36The party moving for summary judgment has the onus of establishing that there is no genuine issue of material fact requiring a trial. Once that onus is met, the burden shifts to the responding party, opposing summary judgment, to demonstrate that the claim has a “real chance of success”.⁹ A self-serving affidavit is not sufficient to create a triable issue in the absence of detailed facts and supporting evidence.

b) Is Christine Guschewski entitled to amend her claim?

37Rule 26.01 of the Rules of Civil Procedure provides that on a motion, at any stage of an action, the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. In Spencer v. Tom and Jerry's Bistro (2009), Kelly J., on hearing a motion by the defendant for summary judgment dismissing the action based on a limitations defence, considered Rule 26.01 and granted the plaintiff leave to amend the Claim to plead discoverability.¹⁰

38In Grant v. Grant (2001), the Court of Appeal held that the motion judge had erred in granting a motion for summary judgment dismissing a defamation action on the basis of a variance between evidence and statement of claim. The court held that the motion judge should have granted the plaintiff leave to amend the statement of claim to conform to the evidence of words spoken by the defendant.¹¹

39Christine Guschewski should not be prevented from proceeding to trial on her proposed Amended Claim if there is a genuine issue for trial as to whether the relief she seeks in that Claim would be barred by a limitations defence. A plaintiff should not be deprived of its right to a trial of its Claim by reason of defective pleading alone, when the defect is capable of being cured by amendment without prejudice to the defendant that cannot be compensated for by an award of costs.

40I will now turn to consider whether the Amended Claim raises a genuine issue for trial.

c) Does Christine Guschewski’s Claim disclose a reasonable cause of action?

41Ms. Guschewski submits, in effect, that the defendants breached their fiduciary duty as trustees, and that she was harmed as a result. She submits, among other things, that they converted estate assets and failed to account for them. It is not disputed that the defendants were trustees and owed a fiduciary duty to Ms. Guschewski. Ms. Guschewski has alleged facts which, if proven, would amount to breaches of the trustees’ fiduciary duty.

42Dickson J., in Fales v. Canada Permanent Trust Co. (1977), sets out the standards for a trustee in general terms as follows:

Traditionally, the standard of care and diligence required of a trustee in administering a trust is that of a man of ordinary prudence in managing his own affairs (Learoyd v. Whiteley (1887), 12 App.Cas. 727, at p. 733; Underhill's Law of Trusts and Trustees, 12th ed., art. 49; Restatement of the Law on Trusts, 2nd ed., para. 174) and traditionally the standard has applied equally to professional and non- professional trustees. The standard has been of general application and objective though, at times, rigorous.¹²

43Section 35 of the Trustee Act reads as follows:

35. If in any proceeding affecting a trustee or trust property it appears to the court that a trustee ... is or may be personally liable for any breach of trust whenever the transaction alleged or found to be a breach of trust occurred, but has acted honestly and reasonably, and ought fairly to be excused for the breach of trust, and for omitting to obtain the directions of the Court in the matter in which he committed the breach, the Court may relieve the trustee either wholly or partly from personal liability for the same.¹³

44In Philip H. Pettit, Equity and the Law of Trusts, 6th ed. (Wellington, N.Z.: Butterworths, 1989) at p. 47:

The provisions of the section, it has been said, were intended to enable the court to excuse breaches of trust where the circumstances of the particular case showed reasonable conduct, that was never meant to be used as a sort of general indemnity clause for honest men who neglect their duty. [Emphasis added]

45There is an onus on the trustees to show he acted honestly and reasonably.¹⁴ There is no such duty on a beneficiary.

46While the Moving Defendants assert that the issues will be dealt with in the Small Claims Court, Ms. Guschewski is entitled to make her own claim. She alleges that the trustees converted her personal property, including jewellery, and evicted her from the estate’s house. The Small Claims Court’s determination of the issues involving the companies is unlikely to be determinative of Ms. Guschewski’s claims in relation to her own property or alleged eviction.

47If there is a sufficient overlapping of the issues of fact or law between the present proceeding and the proceeding in Small Claims Court, the remedy may be for the parties, or one of them, to move, pursuant to section 110 of the Courts of Justice Act, for an order transferring the Small Claims Court action to this Court, where it could be tried with the present action, or one immediately following the other.¹⁵ See, in this regard, Jacob v Westwood Mall, 2017 ONSC 1754, at paragraphs 12 to 14.

48I am mindful of the fact that the trial in that Court has begun, but if a sufficient identity of interests is present, and all the parties to the present action have been present or represented at the trial in Small Claims Court, the transfer could be on terms whereby the evidence heard thus far could apply to the trial in this Court. As neither party has requested such an order, and the necessary evidence is not before the court, it is not appropriate for the court to impose this solution on the parties at this time. However, the availability of this option is a further factor militating against a dismissal of the present action solely on the ground that the events are the subject of evidence in the Small Claims Court trial.

49The Moving Defendants additionally assert that the claims can be dealt with in the passing of accounts. Borins J.A., on behalf of the Court of Appeal in Simone v. Chiefetz, 2000 ONCA 16978, stated:

While there is statutory authority for awarding damages for “misconduct, neglect or default” by a trustee on the passing of accounts (Estates Act, s.49 (3)), it is rare for the court to permit the parties to litigate a substantial claim for damages for breach of a trustee’s fiduciary duties through the medium of an audit. As Professor Waters states: “…the courts prefer to see beneficiaries bring breach of trust actions for reinstatement of loss to the trust, rather than that a breach allegation be fought out through the medium of a remuneration hearing.” Waters, Law of Trusts in Canada, (2^nd ed., 1984) 956. I would add that Flinn J.’s consideration of the Supercart transaction as a factor to be considered in fixing the trustee’s remuneration does not preclude the beneficiaries from asserting a breach of trust claim claim in respect to that transaction, if so advised.¹⁶

50Ms. Guschewski has alleged that she suffered emotional distress. In Prinzo v. Baycrest Centre for Geriatric Care, (2002), Weiler J.A. stated:

A review of the case-law and the commentator confirms the existence of the tort of the intentional infliction of mental suffering, the elements of which may be summarized as: (1) flagrant or outrageous conduct; (2) calculated to produce harm; and (3) resulting in a visible and provable illness.¹⁷

51There is no allegation from Ms. Guschewski that she is suffering from a “visible and provable illness”. The case is similar, in this respect, to B.L. v. Furman, (2011), in which summary judgment was granted dismissing a claim for damages for intentional infliction of mental suffering based on the absence of a pleading of visible and provable illness.

52The Supreme Court of Canada established the test for claims for damages for mental suffering in Mustapha v. Culligan of Canada Ltd., (2006). McLachlin C.J., speaking for the Court, stated:

8Generally, a plaintiff who suffers personal injury will be found to have suffered damage. Damage for purposes of this inquiry includes psychological injury. The distinction between physical and mental injury is elusive and arguably artificial in the context of tort. As Lord Lloyd said in Page v. Smith, [1996] 1 A.C. 155 (H.L.), at p. 188:

In an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may already seem somewhat artificial, and may soon be altogether outmoded. Nothing will be gained by treating them as different “kinds” of personal injury, so as to require the application of different tests in law. [Emphasis added.]

9This said, psychological disturbance that rises to the level of personal injury must be distinguished from psychological upset. Personal injury at law connotes serious trauma or illness: see Hinz v. Berry, [1970] 2 Q.B. 40 (C.A.), at p. 42; Page v. Smith, at p. 189; Linden and Feldthusen, at pp. 425-27. The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury. I would not purport to define compensable injury exhaustively, except to say that it must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept. The need to accept such upsets rather than seek redress in tort is what I take the Court of Appeal to be expressing in its quote from Vanek v. Great Atlantic & Pacific Co. of Canada (1999), 1999 2863 (ON CA), 48 O.R. (3d) 228 (C.A.): “Life goes on” (para. 60). Quite simply, minor and transient upsets do not constitute personal injury, and hence do not amount to damage.¹⁸ [Emphasis added]

53The Supreme Court recently revisited the test for mental distress claims in Saadati v. Moorhead, (2017), in which the court resisted an effort to extend the reach of Mustapha v. Culligan by requiring evidence of a recognizable mental illness. Brown J. stated:

This Court has, however, never required claimants to show a recognizable psychiatric illness as a precondition to recovery for mental injury. Nor, in my view, would it be desirable for it to do so now. Just as recovery for physical injury is not, as a matter of law, conditioned upon a claimant adducing expert diagnostic evidence in support, recovery for mental injury does not require proof of a recognizable psychiatric illness. This and other mechanisms by which some courts have historically sought to control recovery for mental injury are, in my respectful view, premised upon dubious perceptions of psychiatry and of mental illness in general, which Canadian tort law should repudiate. Further, the elements of the cause of action of negligence, together with the threshold stated by this Court in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 9, for proving mental injury, furnish a sufficiently robust array of protections against unworthy claims. I therefore conclude that a finding of legally compensable mental injury need not rest, in whole or in part, on the claimant proving a recognized psychiatric illness. It follows that I would allow the appeal and restore the trial judge’s award.¹⁹

54In the present case, Christine Guschewski, in her Amended Claim, asserts:

86A. The Defendants Roland Guschewski and Norman Guschewski were provided with medical reports in respect of the Plaintiff’s physical and mental condition prior to the eviction of the Plaintiff from the House June 28, 2013, from which those Defendants were aware, or should have been aware, that the breach of the Settlement Agreement and the eviction of the Plaintiff from the House June 28, 2013, and the withholding of and refusal to allow access to personal property of the Plaintiff and to the property of FSSI and of OFD contained within the House had caused and would continue to cause significant emotional, psychological and mental distress for the Plaintiff and, further, that the Plaintiff would not be physically able to remove her personal property and the property of FSSI and OFD from the House and/or from the Storage Unit on any expedited basis.

55I am unable to conclude, from Ms. Guschewski’s Amended Claim, that her allegation of mental distress does not meet the threshold set in Mustapha v. Culligan, as clarified in Saadati v. Moorhead, or that it has no prospect of success. I find that there is a genuine issue for trial in this regard.

56Given the potential complexity of the issues, and the amounts that may be at stake, it is my view that a trial would be the most efficient and proportionate manner of securing a determination of them. I find that the need for a trial cannot be avoided by using the new powers under Rules 20.04(2.1) and (2.2). Their use in the particular circumstances of this case would be contrary to the interests of justice and would not lead to a fair and just result, or serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole.

COSTS

57Ms. Guschewski has been successful in opposing the defendants’ motion. She is therefore presumptively entitled to her costs on a partial indemnity scale. Ms. Guschewski’s lawyer, John Richardson, was called to the Bar in 1976. According to the Costs Bulletin of 2005, he was entitled to claim a maximum hourly rate of $350.00 at that time. Adjusted for inflation, that rate is now $428.00. Mr. Richardson’s actual rate does not exceed that amount.

58Mr. Richardson states that he spent 14.7 hours on the motion, which translates to costs of $6,291.60 plus HST, at the hourly rate stated above. He estimates his disbursements, consisting of process server fees, at $100 to $120.

59Ms. Carberry, who was called to the Bar in 1972, stated that her clients’ costs amounted to $5,303, not including the costs of the hearing. Including the hearing, she estimates their costs are $6,800.00. This amount approximates the costs claimed by Ms. Guschewski.

60Because the action is against the defendants, or some of them, in their capacity as Estate Trustees, I will entertain written submissions on costs. I urge counsel, however, to make an effort to resolve this issue through discussion, with reference to the principles set out by me in Arvanitis v Levers, 2017 ONSC 3758, at paragraphs 70 to 80.

CONCLUSION AND ORDER

61For the foregoing reasons, it is ordered that:

1. The automatic stay of proceedings is lifted. Christine Guschewski has leave to continue the action as against the Estate of Norman Guschewski, who died on August 7, 2016.

2. Christine Guschewski’s motion for leave to amend her Claim is allowed. She shall deliver her Amended Claim by August 24, 2017.

3. The defendants’ motion to dismiss Christine Guschewski’s Claim, or for summary judgment, is dismissed.

4. The parties and their counsel shall consider the desirability of having the action, and the related proceedings, mediated.

5. If the parties are unable to agree on the costs of the motion, they may submit written arguments, not to exceed 4 pages, and a Costs Outline, by August 24, 2017.

Price J.

Footnotes

1. 1Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, at paras. 41-44
2. 2Hryniak v. Mauldin, 2014 SCC 7 [Hyrniak]
3. 3Bruno Appliances and Furniture Inc. v. Hryniak, 2014 SCC 8
4. 4Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 32
5. 5Hryniak,at para. 49
6. 6Hryniak, at para. 58
7. 7Hryniak, at para. 66
8. 8Hryniak, at para. 66
9. 9Hamilton Kilty Hockey Club Inc. v. Ontario (Attorney General), (2003), 2003 24429 (ON CA), 64 O.R. (3d) 328 at para. 20.
10. 10Spencer v. Tom and Jerry's Bistro, 2009 16583 (ON SC), para. 24
11. 11Grant v. Grant, 2001 27938 (ON CA)
12. 12Fales v. Canada Permanent Trust Co., 1976 SCC 14, 1976 14 (SCC), [1977] 2 S.C.R. 302, 70 D.L.R. (3d) 257, at p. 315 S.C.R., pp. 267-68 D.L.R.
13. 13Trustee Act, RSO 1990, c T.23
14. 14See Hogg J. in Lamport v. Thompson, 1940 21 (ON CA), 1940 ONCA 21, [1940] O.R. 201, [1940] 2 D.L.R. 619 (S.C.) (affd [1940] O.R. 201 at 225, [1940] 2 D.L.R. 619 at 640 (C.A.), affd 1941 12 (SCC), [1941] S.C.R. 503, [1941] 3 D.L.R. 589), at p. 211 O.R., p. 628 D.L.R.
15. 15Courts of Justice Act, R.S.O. 1990, c. C.43
16. 16Simone v. Chiefetz, 2000 ONCA 16978, para. 17
17. 17Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 45005 (ON CA), 60 O.R. (3d) 474, at 490, para. 48
18. 18Mustapha v. Culligan of Canada Ltd., [2008] 2 SCR 114, 2008 SCC 27,
19. 19Saadati v. Moorhead, 2017 SCC 28, para. 2