COURT FILE NO.: 229/13

DATE: 2018-04-04

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

YEVGENI BARON and GALINA BARON

Plaintiffs

– and –

STAN A. MAMAK

Defendant

Galina Baron, Self-represented

Sean Lawler, for the Defendant

HEARD: April 3, 2018

REASONS FOR JUDGMENT

gray j.

1This case is a sequel to one heard by Lang J.A., sitting as an ad hoc judge of this court. Her reasons are reported as Juzumas v. Baron, 2012 ONSC 7220. By her decision, Lang J.A. set aside a purported transfer of the home owned by Kazys Juzumas to Yevgeni Baron, the son of Galina Baron. Lang J.A. also dismissed a claim by Galina Baron that she had loaned $120,000 to Kazys Juzumas; dismissed an application by Galina Baron for equalization of the parties’ net family property; dismissed a claim by Yevgeni Baron for payment on a quantum meruit basis for work allegedly performed around the house; dismissed a quantum meruit claim by Galina Baron; and granted a divorce. In a subsequent endorsement, Lang J.A. awarded costs in the amount of $80,000 against Galina and Yevgeni Baron.

2Galina and Yevgeni Baron now claim damages from the defendant, Stan Mamak, who was the lawyer who prepared the transfer of the house from Mr. Juzumas to Yevgeni Baron, and various other documents.

3Galina Baron, at the time of trial, was self-represented, and she testified on her own behalf. Yevgeni Baron is ill, and was unable to attend the trial.

4For the reasons that follow, the action is dismissed.

Background

Background

5Much of the relevant background is contained in the lengthy reasons of Lang J.A., and I will review only enough of it to set the stage for the current proceedings.

6As of 2007, Galina Baron, then aged 65, had been providing housekeeping services to Kazys Juzumas, who was then 89 years old. Ms. Baron lived with her son, Yevgeni, who was then 23 years old.

7Mr. Juzumas was born in Lithuania in 1918. He spoke very little English. He had some family in Lithuania. He and his deceased wife lived in a home, and he continued to live there after she died. He rented out one of the upper floors in the home.

8Ms. Baron was born in Lithuania, but identifies as Russian. She is fluent in Lithuanian, Russian and Polish. Her English is limited. She had been married several times.

9Mr. Juzumas was anxious to remain in his own home until his death. He did not want to die in a nursing home.

10An understanding was reached between Mr. Juzumas and Ms. Baron that they would get married, and in his will he would leave Ms. Baron the house. In exchange, Ms. Baron would look after him and take care of the house until his death.

11The wedding took place on September 27, 2007. Mr. Juzumas wanted to keep the marriage a secret.

12On September 26, 2007, Mr. Juzumas and Ms. Baron attended at the office of the defendant in this action, Mr. Mamak. He operated a store-front sole law practice. They asked Mr. Mamak to prepare a will in contemplation of their marriage, naming Ms. Baron as the sole executor and beneficiary of Mr. Juzumas’ estate. Mr. Mamak did not meet separately with Mr. Juzumas. He did not discuss with Mr. Juzumas the value of house or discuss whether a marriage contract might be appropriate.

13On February 24, 2009, Mr. Juzumas went to a different lawyer and executed a new will. Much of the estate was to be left to Mr. Juzumas’ niece in Lithuania, and a modest bequest of $10,000 to Galina Baron.

14Ms. Baron found out about the new will near the end of April, 2009. She was upset. She consulted Mr. Mamak. Eventually, it was decided that there should be a transfer of the house to Galina Baron, and subsequently it was decided that it should be transferred to Yevgeni Baron, subject to a life interest to Mr. Juzumas.

15On May 14, 2009, Galina and Yevgeni Baron and Mr. Juzumas attended at Mr. Mamak’s office.

16Mr. Mamak did not meet separately with Mr. Juzumas. He explained to Mr. Juzumas, in the presence of Galina and Yevgeni Baron, that the transfer to Yevgeni Baron meant that Mr. Juzumas could not sell his house. There was no discussion or understanding of the term “life tenancy”. Mr. Mamak did not ask Ms. Juzumas the value of the property, which was worth approximately $665,000 at the time.

17Yevgeni Baron had prepared a side agreement, in which it was stipulated that Galina Baron would care for Mr. Juzumas. Mr. Mamak slightly altered the agreement so that Galina Baron would only have to care for him “as long as her health permits”. It also was changed to state that the agreement was in consideration of the transfer to Yevgeni Baron, subject to a life interest to Mr. Juzumas.

18The meeting at Ms. Mamak’s office was brief. Mr. Mamak explained the terms to Galina Baron in Polish and Mr. Juzumas in English.

19On May 26, 2009, Mr. Juzumas asked a neighbour to drive him to Mr. Mamak’s office. While in the waiting room, Ms. Baron appeared unexpectedly. Mr. Juzumas wanted to reverse the transfer. Mr. Mamak’s position was that the transfer could not be undone because it was “in the computer”. The neighbour advised Mr. Juzumas to get his own lawyer.

20On three different occasions in May and June, 2009, Mr. Juzumas asked Mr. Mamak to reverse the transfer. Mr. Mamak’s consistent response was that the transfer could not be reversed because “it was in the computer”.

21The conclusion of Lang J.A. on whether the transfer should be set aside was as follows:

At the time he executed the transfer, the then 91-year-old Kazys was in failing health. He was vulnerable and in fear of being abandoned to a nursing home. He signed the transfer under the domination, control, and intimidation of his significantly younger wife/housekeeper Galina, as well as under the influence of her son, Yevgeni. The transfer in my view resulted from their undue influence of a vulnerable elder. Kazys did not have the benefit of legal advice or any understanding of the irrevocable nature of the document he signed. In addition, the inequality of the bargaining power and the unfairness of the transaction render it unconscionable. The transaction must be set aside.

22Ms. Baron had claimed that she had advanced $120,000 to Mr. Juzumas in November 2008 for him to send to relatives in Lithuania. In her reasons, Lang J.A. held that there was insufficient evidence of such a loan, and dismissed Ms. Baron’s claim for its repayment.

23In their Statement of Claim in this action, the plaintiffs claim that Mr. Mamak violated his duty to the plaintiffs because he failed to obtain a joint retainer, and he did not explain that he could not represent both parties and that there should be a second lawyer involved. They claim that as a result, the plaintiffs have lost the benefit of the transfer of the house to Yevgeni Baron ($800,000); loss of the loan paid to Mr. Juzumas ($120,000); legal expenses paid to their lawyers ($80,000); costs awarded to Mr. Juzumas ($80,000); and mental distress ($100,000).

24While not pleaded, Ms. Baron also took the position that Mr. Mamak failed in his duty by not having an interpreter present for the meetings at which Mr. Juzumas was present, and by failing to have a doctor present in view of Mr. Juzumas’ ill-health.

25In her evidence before me, Ms. Baron attempted to assert a state of facts that differ, in some respects, from the facts as found by Lang J.A. in her decision. While it is understandable that she would disagree with Lang J.A.’s decision, it is not open to her to challenge the decision in this way. The decision of Lang J.A. was not appealed.

26Of some significance, Ms. Baron testified that if Mr. Mamak had arranged for an interpreter and a physician to be present, and separate legal representation, the proper conclusion would have been that the transaction should not be entered into. I agree with her evidence in that respect.

Analysis

Analysis

27Mr. Lawler, counsel for the defendant, fairly concedes that Mr. Mamak fell below the standard of care reasonably expected of a competent solicitor. Under the circumstances, he was clearly not in a position to represent both Galina and Yevgeni Baron on the one hand, and Mr. Juzumas on the other hand. He was obliged to obtain separate representation for Mr. Juzumas.

28I need not decide whether it was also part of Mr. Mamak’s duty to arrange for medical advice and an interpreter, although it clearly would have been prudent to ensure that Mr. Juzumas understood what was going on. His English was weak and he did not understand Polish, which is the language in which Mr. Mamak communicated with Ms. Baron.

29Even though Mr. Mamak fell below the requisite standard of care, it is impossible to find, on this record, that the breach of the standard of care caused any of the damages claimed by the plaintiffs. As clearly found by Lang J.A., the transfer of the property from Ms. Juzumas to Yevgeni Baron was the product of a scheme perpetrated by the Barons on an elderly and unwell man. It was the product of their undue influence. Even if Mr. Mamak had fulfilled his duty of securing separate representation for Mr. Juzumas, there is little doubt, as acknowledged by Ms. Baron, that that would simply have ensured that the transaction would not have occurred.

30Since I have concluded that none of the plaintiffs’ damages were caused by any action or inaction on the part of Mr. Mamak, the action must be dismissed. Approval of the form and content of the formal judgment by the plaintiffs is not required.

Costs

31I will entertain brief written submissions with respect to costs, not to exceed three pages, together with a Bill of Costs. Mr. Lawler will have five days to file his submissions, and the plaintiffs will have five days to respond. Mr. Lawler will have three days to reply.

Gray J.