CITATION: Gerritse et al. v. The Hospital For Sick Children et al., 2017 ONSC 973
COURT FILE NO.: CV-16-5492-00
DATE: 2017 02 09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Fred Gerritse and Dinah Louise Teffer
J. de Vries and A. Alizadeh, Counsel for the Applicants/ Responding Parties
Applicants/ Responding Parties
- and -
The Hospital For Sick Children, Canadian Cancer Society, Jan Korte, Frieda Korte, Monique Seiler Korte, Daniel Korte, Rietje Buddingh, Theodorus Buddingh, Hennie Buddingh, Ingrid Buddingh, Peter Verbeek and Adeline Blanchette
R. D’Ambrosio, Counsel for some of the Respondents / Moving Parties
Respondents/Moving Parties
HEARD: February 7, 2017
REASONS FOR DECISION ON MOTION
CONLAN J.
I. Introduction
The Background
[1] On June 26, 2016, Johanna Maria Schaefers (“Johanna”) died. She was 95 years old. Her husband had died many years earlier, in a car accident. Johanna had no children. Her sister, who also had no children, predeceased Johanna.
[2] An Application has been brought by Fred Gerritse (“Fred”) and Dinah Louise Teffer (“Dinah”).
[3] Fred alleges that he is the half-brother of Johanna.
[4] In the event that it is found that Johanna died intestate, Fred stands to be the lone heir.
[5] Dinah is Johanna’s niece.
[6] The Application brought by Fred and Dinah challenges the validity of two purported Wills made by Johanna, one dated December 4, 1998 and the other dated April 27, 2006.
[7] According to Fred and Dinah, the 1998 Will is a forgery, and the 2006 Will must be declared invalid because of suspicious circumstances surrounding its execution and a lack of testamentary capacity on the part of Johanna.
[8] If Fred and Dinah are correct, that would leave Johanna’s 1959 Will as the governing document.
[9] At the time of Johanna’s death, there were no surviving beneficiaries under the 1959 Will. Hence, the intestacy rules would prevail.
[10] Many of the Respondents have not filed a Notice of Appearance. Those who have are (i) Jan Korte, Frieda Korte, Monique Seiler Korte, Daniel Korte, collectively the “Kortes”, and (ii) Adeline Blanchette (“Adeline”).
[11] Adeline was Johanna’s close friend. Adeline’s husband, Respondent Peter Verbeek, was Johanna’s long-time lawyer.
[12] The Kortes are beneficiaries under Johanna’s 2006 Will. Thus, they have an interest in ensuring that the said Will is not declared invalid.
The Motion
[13] The Kortes and Adeline, all represented by the same counsel, bring a Motion to, among other things, stay the Application “pending a determination of the paternity for the applicant, Fred Gerritse”.
[14] The Motion also includes a prayer for other relief, however, I decline to deal with anything herein except the issue of the stay. My reading of the Endorsement of Emery J. made on January 31, 2017 is that only two matters were put to February 7th – the Application itself and the stay Motion.
[15] As the Application itself will be dealt with later by way of a consent timetable Order, the only item for this Court to decide is the stay Motion.
[16] Succinctly put, the Kortes and Adeline argue that Fred does not share the same father as the late Johanna. In other words, Fred and Johanna are not half-siblings.
[17] The Kortes and Adeline intend to apply to the Court to challenge the right of Fred to bring the Application at all. In the meantime, pending the determination of Fred’s paternity, the Application challenging the two Wills in 1998 and 2006 ought to be stayed, argue the moving parties.
[18] For the reasons that follow, the stay Motion is dismissed.
II. Analysis
The Test for a Stay
[19] Both sides filed very helpful materials. I am indebted to counsel’s assistance.
[20] The law is well-settled as to what is required for a stay to be granted in this type of situation. Special circumstances are required. This must be viewed as one of the clearest of cases. Two conditions must be met, both of which the moving parties have responsibility to demonstrate on a balance of probabilities: (i) that continuance of the Application would work an injustice because it would be oppressive or vexatious or would amount to an abuse of process, and (ii) the stay would not cause an injustice to the Applicants. Leung Estate v. Leung, 2004 CarswellOnt 1366 (S.C.J.), at paragraph 28, citing the decision of Justice Blair, as His Honour then was, in Canadian Express Ltd. v. Blair (1992), 1992 7535 (ON SC), 11 O.R. (3d) 221 (Gen. Div.).
The Test Applied to These Facts
[21] With respect for Mr. D’Ambrosio’s able submissions otherwise, the moving parties have failed to satisfy either criterion mentioned above.
[22] The chief objective of the Kortes and Adeline is to be permitted to challenge the notion that Fred is the half-brother of Johanna. They are in no way prevented from doing so as part of the Application itself.
[23] For example, the moving parties could seek to cross-examine Fred on his sworn evidence that is already included in the very thorough Application Record.
[24] Further or in the alternative, the moving parties could adduce their own evidence to suggest that Fred is not the son of Johanna’s late father, Adolph. In fact, Adeline’s Affidavit in support of the stay Motion already sets out some of the evidence relied upon in support of that suggestion, such as the fact that Fred’s birth certificate names someone other than Adolph as his father.
[25] Further or in the alternative, the moving parties could bring a motion to convert the Application into an action if it is felt that a trial with viva voce evidence is required.
[26] I express no views on the merits of any of those alternatives. My point is simply that the moving parties have a toolbox at their disposal.
[27] In short, there is no reason why the Application needs to be stayed in order to allow the Kortes and Adeline to try to accomplish their primary objective – to demonstrate that Fred is not related by blood to Johanna, and thus, he has no right to challenge the 1998 and 2006 Wills.
[28] Given that finding, it is inevitable that a conclusion be drawn that allowing the Application to proceed would in no way amount to anything that is unjust, oppressive, vexatious and/or an abuse of process.
[29] Quite the contrary; this Court’s duty is to see that the estate is probated without undue delay. That cannot be accomplished until all interested parties know what Will is the governing document.
[30] Further, the staying of the Application would cause an injustice to Fred and Dinah.
[31] Although there is a trustee in place for the estate during the litigation, the law is clear that no distribution of property may occur. That hiatus is not unusual and does not itself create an injustice, but the granting of the stay as requested would only serve to exacerbate the time period.
[32] We have no idea how long the challenge to Fred’s paternity would take. Or how expensive it would be. Or how it would be done, in terms of the practicalities (remember that Adolph and Johanna are both deceased). Or even where the challenge would take place (in Ontario or in the Netherlands, where Fred lives).
[33] The Application, essentially, could be stalled indefinitely. And that would work an injustice to many parties involved, including Fred and Dinah and the other Respondents.
[34] On the latter, take The Hospital For Sick Children as an example. It is a beneficiary under the 2006 Will. Although not having filed a Notice of Appearance, that entity still deserves to know, in a reasonable amount of time, whether that Will is to be upheld.
[35] The moving parties argue that the challenge to Fred’s paternity, if successful, would effectively dispose of the Application, at least in terms of Fred.
[36] In Leung Estate, supra, however, at paragraph 28, Justice Greer cites other leading decisions that have long stood for the proposition that such an argument is not sufficient, alone, to constitute the type of special circumstances required to justify a stay of proceedings. It is, after all, a remedy that is resorted to rather sparingly.
[37] In summary, a stay of the Application is unnecessary. The very position of the Applicants is that, under the 1959 Will, because of the intestacy rules, Fred is the beneficiary of the estate. That position depends on the veracity of Fred’s assertion that he is Johanna’s next-of-kin – her closest blood relative at the time of her death. In other words, her half-brother. In the context of the Application itself, the Kortes and Adeline have every opportunity to challenge that assertion.
[38] Not only would allowing the Application to continue not be unjust, staying it would be.
II. Conclusion
[39] The Kortes and Adeline have failed, on balance, to satisfy the test for a stay of the Application.
[40] Accordingly, that part of their Motion is dismissed. I may be spoken to by counsel on the issue of costs, if necessary, along with the consent Order outlining a timetable for the Application.
[41] In terms of the other relief sought in the Motion that was not adjourned to February 7th by Emery J., that is (i) the removal of Dinah as an Applicant and (ii) the request that Fred post security for costs, those are adjourned sine die.
CONLAN J.
Released: February 9, 2017
CITATION: Gerritse et al. v. The Hospital For Sick Children et al., 2017 ONSC 973
COURT FILE NO.: CV-16-5492-00
DATE: 2017 02 09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Fred Gerritse and Dinah Louise Teffer
- and –
The Hospital For Sick Children, Canadian Cancer Society, Jan Korte, Frieda Korte, Monique Seiler Korte, Daniel Korte, Rietje Buddingh, Theodorus Buddingh, Hennie Buddingh, Ingrid Buddingh, Peter Verbeek and Adeline Blanchette
REASONS FOR DECISION ON MOTION
CONLAN J.
Released: February 9, 2017