Court File and Parties

COURT FILE NO.: CV-16-545115 DATE: 20180625 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MAISON SAINT-MICHEL Plaintiff – and – JACEK MORAWA and CANADIAN INSTITUTE OF DIVINE MERCY Defendants

Counsel: Jean-Alexandre De Bousquet, for the Plaintiff Christopher Du Vernet and Carlin McGoogan, for the Defendants

HEARD: April 24, May 22, 2018

J. Wilson J.

The Motion

[1] In this motion for summary judgment two Catholic charitable organizations, and their principals vie over a generous gift by the now deceased Barbara Genowef (Barbara).

[2] The Plaintiff, Maison Saint-Michel (Saint-Michel) alleges that the Defendants Jacek Morawa (Morawa) and the Canadian Institute of Divine Mercy (Divine Mercy), forged Barbara’s signature on certain documents, and defrauded Saint-Michel of a gift from Barbara. The Defendants, Morawa and Divine Mercy, bring this motion for summary judgment seeking to strike the claim as disclosing no cause of action.

[3] The gift concerns the condominium owned by Barbara at 65 Southport Street, Unit 610, Toronto, where she resided until 2004, when she went to live in a retirement residence (The Property). Barbara had no children and had given other gifts to her relatives. Her counsel confirms the wish of Barbara, and her deceased husband was for their estate to benefit a compatible charity.

[4] Barbara wished to give the Property to her trusted friend Morawa, who was involved with charitable works with Saint-Michel and Divine Mercy. Morawa had taken Saint-Michel’s vow of poverty and could not hold any property.

[5] Barbara gave the condo to the Plaintiff on terms giving Morawa absolute control as owner and decision maker. The Plaintiff disputes these terms. The Property was then transferred from the Plaintiff back to Barbara in 2014. The deed confirmed that it was a “return of gift”. Barbara then gifted the Property in 2014 to the second charity, the Defendant, Divine Mercy, controlled by the Defendant Morawa. Divine Mercy sold the Property in 2014. The Plaintiff claims to be entitled to the proceeds of sale.

[6] Barbara was represented by independent counsel at the time of the initial gift to the Plaintiff in 2004 and in the subsequent transactions in 2014. She died in December 2015. This action began in mid-2016.

[7] What is in dispute is the intention and terms of the transfer to the Plaintiff in 2004 as well as the reasons for the transfer from Barbara to Divine Mercy in 2014.

Allegations of Forgery, Theft and Fraud

[8] The Plaintiff has made three serious allegations against Morawa in this proceeding, and spread these allegations in various publications and emails within the religious community.

[9] First, Saint-Michel alleges that Morawa has forged documents, and in particular the Letter dated October 2, 2004 confirming that Barbara intended Morawa to be the owner and have control of the Property, notwithstanding that the Property was transferred on October 13, 2004 to the Plaintiff.

[10] Second, they allege that Morawa personally stole money from the proceeds of the sale. Marcel LeFebvre (LeFebvre), president of Saint-Michel appears to be the instigator from the board of directors defining the Plaintiff’s strategy in this proceeding. In his affidavit of sworn July 6, 2016 LeFebvre suggests that the Defendants had taken funds and transferred the funds to Poland to avoid execution.

[11] Third, Saint-Michel alleges that Morawa fraudulently misled members of the board at the time the Property was transferred back from the Plaintiff to Barbara in 2014 for his own purposes.

[12] For reasons I will outline, I conclude that none of these allegations have been proved. This action shall be dismissed with costs.

Denial of request for adjournment of motion

[13] When the motion was first scheduled to be heard on April 24, 2018, the Plaintiffs filed lengthy materials raising a variety of procedural issues about the pleadings and the contents of the affidavits seeking a ruling on these issues and an adjournment of the summary judgment motion. Many of the procedural issues raised had been dealt with by Master Abrams. The Plaintiff has throughout this proceeding raised a series of procedural issues about the nature of the pleadings adding to the costs and delay in this proceeding.

[14] If the affidavit material or the pleading is flawed as suggested, I ruled that counsel was entitled to make submissions in assessing the weight, if any to be attributed to the contested evidence or any allegedly deficient pleading. I note during argument, no issues were raised challenging the substance of the Defendants’ materials.

[15] The Plaintiff resisted the summary judgment motion being heard on its merits, and argued that this matter should proceed to proceed to a jury trial due to the serious credibility issues. I denied the request for an adjournment. In this case, the documents largely tell the tale, along with the evidence of the former counsel of Barbara, who was representing Barbara in the transactions that are challenged by the Plaintiff. The credibility issues can be readily assessed with an eye to the documents. Hence this is an appropriate matter to proceed by way of summary judgment, applying the robust guidelines in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87.

Overview

[16] Morawa was Barbara’s long time trusted friend. He was appointed under the Power of Attorney for personal care on October 19, 2004. He was also appointed as the alternative executor under her will in August 2012. Barbara died in December 2015. As the chosen executor renounced, Morawa has been Barbara’s executor for her estate. Most of her estate had been given prior to her death to Divine Mercy and Saint-Michel.

[17] Barbara and Morawa were both deeply religious. They shared a life philosophy. Both Barbara and Morawa are of Polish origin. Neither Barbara nor Morawa speak French. Barbara’s wishes were for her estate to benefit Catholic pilgrims, particularly Polish or of Polish origin in Toronto or in Poland. She was a big supporter of the Michel Polish Journal, which was a publication of the teaching of Saint-Michel in Polish. Prior to this dispute, Morawa was the editor of the Michel Polish Journal.

[18] The Property was originally transferred to the Plaintiff in 2004 on terms. The terms are in dispute. In 2014 it was transferred back Barbara, and then transferred to Divine Mercy, the second charitable organization. Divine Mercy later sold the Property to an arm’s length third party. Although the Plaintiff sued the Defendants for a million dollars, the amount in dispute is the proceeds of sale of the Property in the amount of $329,000.00.

[19] Originally the plan of Saint-Michel, Morawa and Barbara was to purchase a two family property in Toronto for pilgrims, using the proceeds of the Property added to by additional funds from the Plaintiff. Barbara supported this plan. This plan did not take place as the Plaintiff’s principals changed their minds. They decided that property in Toronto was too expensive and they were not prepared to pay sums toward the acquisition of a two family property. They simply wanted the money. Matters unraveled as Morawa, on Barbara’s clear instructions was not prepared to pay to Saint-Michel the proceeds from the sale of the Property for the general use of Saint-Michel.

[20] The Property was sold for $329,000.00.

[21] From the proceeds of sale, Morawa directed his counsel to repay his sister the sum of $95,315.64 representing amounts loaned by the sister to maintain the Property. Neither the sister nor Morawa lived in the Property. The Property was used to house pilgrims. The sister had paid all the expenses for the Property over 10 years from 2004 to 2014 until it was sold. She had also paid for repairs and improvements to the Property over the years. A summary of the sister’s expenses was provided to Morawa’s counsel handling the sale. Receipts have been provided for these expenditures.

[22] Divine Mercy received the balance of the proceeds from the sale of the Property in the amount of $219,945.00. To date the sum of $81,272.00 has been used for documented declared charitable purposes. The balance of $138,673.60 from Barbara’s funds is held in the bank account of Divine Mercy for use for future charitable work.

[23] Morawa has not received any money personally from the proceeds.

[24] For the reasons that I will outline, it is clear that from the beginning Barbara intended that Morawa, who was at that time very active and affiliated with both Saint-Michel, and Divine Mercy to be the owner of the Property, empowered to make decisions so that her gift could be used in accordance with her intended wishes for charitable purposes for pilgrims in Toronto and Poland.

The Mareva Injunction brought by Plaintiff

[25] The Property was sold by Divine Mercy on May 15, 2014. The dispute about the proceeds arose in the fall of 2014 after the Plaintiff resiled from the plan to purchase a duplex for pilgrims with Barbara’s proceeds held by Divine Mercy. Barbara died in December 2015.

[26] This proceeding was initiated by the Plaintiff in 2016 six months after the death of Barbara and over two years after the Property was sold.

[27] The Plaintiff took no steps to clarify its alleged position or its rights to an interest in the proceeds of the Property while Barbara was alive and was capable of clarifying matters directly, or through her counsel. There is no allegation that she was other than competent, and according to Morawa’s evidence her wishes were clear and unequivocal.

[28] The Plaintiff’s first step in August 2016 in this proceeding was to bring an emergency ex parte mareva injunction. The claim advanced damages of in excess of a million dollars. In the motion, the Plaintiff sought to freeze the assets of the Defendants and the Defendant’s sister to recover the sum of $329,000.00 from the sale of the Property.

[29] The Plaintiff was very selective in the material filed on the motion, and did not file with the Court documents confirming Barbara’s intentions, in particular her letter dated October 2, 2004 and her letter to the directors dated September 7, 2014 both received by the directors in October 2014.

[30] Justice Pollak granted the ex parte interim injunction on August 2, 2016.

[31] The Defendants responded challenging the truth of much of the material filed in support of the injunction, and filed documents and letters confirming the Defence position. Cross-examinations took place. The matter was heard on December 1, 2016. Pollak, J. found:

• I do agree with the submissions of the defendants that the moving party did not fulfill its obligation of proper disclosure to the Court.
• …I do not find that there was any intent to mislead the Court, however, I do find that the Court was misled.
• ….Without credible evidence supporting fraud, there is no justification whatsoever for the Court to have issued the mareva injunction because there is no evidence that this asset will be dissipated by the defendant.

[32] Pollak, J. vacated the injunction. Due to the Plaintiff’s selective disclosure she awarded costs in the amount of $40,160.09 against the Plaintiff.

Adjournment for further evidence on April 24, 2018

[33] The motion was first argued on April 24, 2018. Several issues arose during the argument that required clarification and further evidence.

[34] The first was the evidence of Barbara’s counsel. Barbara was represented by counsel during the transactions but the evidence of her lawyer was not before the Court. This is important evidence to explain the context of the transactions and Barbara’s wishes.

[35] I adjourned the conclusion of the argument of the motion to allow Mr. Stan Marak, counsel for Barbara to be examined by both counsel. I requested the production of the file from her counsel. Unfortunately he cannot locate his files, but he has a good recollection of the facts of this case, and the transcript of his evidence is now before the Court.

[36] The second was the need for a credible hand writing expert report. Morawa prepared various letters for Barbara written in English to provide evidence of her instructions and intentions. Although Barbara spoke and wrote English, it was not her first language. Morawa would take Barbara’s instructions given in Polish and would write letters to himself, or to others confirming her intentions and wishes.

[37] The Plaintiff asserted that key documents prepared by Morawa were forged, and in particular the letter dated October 2, 2004 (the October 2, 2004 Letter). The Plaintiff had retained an expert who conducted a hand writing analysis on two photocopied documents. That report questioned the authenticity of Barbara’s signature on two documents including the October 2, 2004 Letter and a letter dated January 25, 2013 (the January 25, 2013 Letter). The expert suggested that the signatures on these two letters were a “montage”, implying a combined cut and paste signature, or a copy. That expert did not have any original documents and prepared a cursory report analysing just two photocopied signatures on these two letters.

[38] I allowed the adjournment to also allow the parties to jointly retain a handwriting expert, who would have the opportunity to review original signatures on a wider array of documents, not simply two photocopies. As well the handwriting of Morawa could be analyzed to test the assertion that Morawa forged Barbara’s signature on key documents.

[39] The expert report filed the day of the continued hearing confirms all documents and letters submitted contain the signature of Barbara. She confirms that Morawa did not sign any of the signatures in question. She confirms that the October 2, 2004 Letter contains an original signature of Barbara. She concluded that the January 25, 2013 Letter giving Barbara’s permission to Morawa to sell the Property contains a photocopy of a signature of Barbara taken from the October 2, 2004 Letter signed by Barbara.

[40] I will comment later in these reasons on the curious finding about the January 25, 2013 Letter. Ultimately, I find that this lone finding by the jointly retained expert has no impact on the outcome of these proceedings, given the clear and overwhelming evidence supporting the position of the Defendants. For reasons I will outline, this finding does not negatively impact on the credibility of Morawa.

[41] The Plaintiff alleges that the funds received by Morawa or Divine Mercy have not been used for charitable purposes. I requested evidence and an accounting confirming the details of payments made by Divine Mercy following the sale. The evidence filed confirms that all donations made by Divine Mercy were properly for charitable purposes. The Plaintiff did not challenge a single payment. Counsel now simply asserts that Saint-Michel was entitled to the proceeds from the Property sale.

[42] Barbara gave a gift of $20,000.00 to Saint-Michel. The funds were given to Morawa in cash. He gave these funds to his sister to hold. I requested proof that these funds in fact continued to be held by his sister. Proof of these funds being held in trust has been furnished.

Further Evidence Filed after May 22, 2018 Argument

[43] After the argument on May 22, 2018, I requested that further evidence be filed to complete the record. Counsel for the Plaintiff had referred to excerpts from the cross-examination of Morawa but had failed to file the complete transcript.

[44] Barbara had given a further gift totaling $50,000.00 U.S. to the Plaintiff on terms that they would purchase a property for pilgrims in Poland. I requested the Plaintiff to file proof of what is going on with these funds, with an eye to an accounting to ensure that Barbara’s wishes for the gift be respected.

Credibility

[45] LeFebvre, the president of Saint-Michel in his affidavits has made unfounded personal attacks and accusations against Morawa of forgery, fraud, and theft. As I will outline, the evidence on this motion does not support any of these allegations.

[46] The Plaintiff has been vocal in publishing negative commentary in the Toronto Polish Catholic community through the Maison Saint-Michel newsletter and various emails to members condemning Morawa’s conduct and questioning his honesty and integrity. These false allegations have taken a significant toll on Morawa personally.

[47] LeFebvre’s treatment and threats to Alain Pilote that I will outline later in these reasons are telling and provide context to my negative findings of credibility concerning LeFebvre and the Plaintiff’s affiants.

[48] The evidence of Morawa is confirmed by the documents prepared at the time, and by the evidence of Stan Marak, counsel for Barbara at the time of the transactions in question. Morawa has struggled to ensure Barbara’s wishes for her gift be respected. Contrary to the allegations, the documents confirm that Morawa has not benefited one penny from the proceeds of the Property, and that all funds that have been spent have been used for appropriate charitable purposes consistent with Barbara’s wishes.

[49] Where there is a conflict between the evidence of the Plaintiff’s representative, particularly LeFebvre, and the Defendant Morawa, I accept the evidence of Morawa. Morawa’s evidence makes sense, is internally consistent, and is consistent with the reliable evidence of documents prepared at the time as well as the evidence of Barbara’s counsel.

Factual Background

[50] Morawa has been active for many years with both Saint-Michel and Divine Mercy.

[51] Saint-Michel and Divine Mercy are different legal entities but until this dispute have shared complimentary goals and objectives to make a better society and facilitate the lives of pilgrims. After Morawa became president of Divine Mercy in 2007, and while he was still involved with Saint-Michel, the two entities worked cooperatively on projects in the Catholic Polish community in Toronto.

[52] Saint-Michel is a corporate cloistered Catholic missionary organization affiliated with the Saint-Hyacinthe at Saint Sacrement, Québec. According to counsel, the board members of Saint-Michel are all elderly: in their 80’s. There are approximately 100 to 200 members of Saint-Michel in Québec. The Plaintiff operates what it calls a « movement » and strongly resists the description as a sect or cult. The Plaintiff’s headquarters is a walled cloister containing two buildings, one for men and one for women. They live in small rooms described as cells. There are very strict rules of obedience, and significant control is exerted upon its members. Morawa and the members of Saint-Michel are required to swear vows of poverty, chastity and obedience to the Plaintiff. Morawa could not hold property. The Plaintiff controlled his daily life.

[53] The Defendant Divine Mercy is a registered Catholic charitable organization functioning in Toronto since 1971 established by Father Roman Hoppe. It has an emphasis on work in the Polish Catholic community. In 1999 Father Hoppe moved back to Poland and continued to direct Divine Mercy from Poland until his death in 2007.

[54] The Defendant Jacek Morawa was a member of Saint-Michel for some 20 years until this dispute. He had a cell in Rougemont, although he lived primarily with his parents in Toronto. Morawa has also been a board member of Divine Mercy since 1999 assisting Father Hoppe. He now lives in a home owned by Divine Mercy with his parents. He became president of Divine Mercy in 2007 after the death of Father Hoppe. Morawa has no traditional employment and has worked full time for Saint-Michel and Divine Mercy.

[55] Morawa was very active in the Toronto Polish Catholic community with Saint-Michel as well as Divine Mercy.

[56] He was a very successful fundraiser for Saint-Michel raising hundreds of thousands of dollars for the Plaintiff over the years. He was the editor of the Polish Michael Journal, which was near to the heart of Barbara.

[57] Over the years, Divine Mercy has also contributed significant funds to Saint-Michel for specific projects. Since Morawa became the president of Divine Mercy, over $400,000.00 has been given by Divine Mercy to Saint-Michel from 2008 to 2014 ear marked for specific projects often the Michael Polish Journal.

[58] A major shared project was the publication of the Michael Polish Journal. Morawa was its editor.

[59] Saint-Michel and Divine Mercy had planned to purchase a property in Toronto for pilgrims partially funded by the proceeds from the Property held by Divine Mercy, and added to by funds from the Plaintiff. This project had Barbara’s support. Unfortunately the Plaintiff changed its mind, and simply sought the funds from the sale of the Property.

[60] As a result of this dispute Morawa has resigned from Saint-Michel. He chose to resign as he was advised by his long time friend Alain Pilote that he was to be expelled from Saint-Michel. The Plaintiff’s practice is to have a police escort to conduct the expulsion. To avoid this public shame, Morawa chose to resign. His resignation was accepted. He is now banned from participation in any Saint-Michel activities.

[61] Morawa continues to do charitable work in the Polish community in Toronto and in Poland through Divine Mercy.

[62] Morawa now asserts that the Plaintiff is a far right religious cult. He is under the care of a psychologist for stress. He has initiated a separate action against the Plaintiff for psychological damage caused by control over Morawa’s daily life, and the events that took place after Morawa, respecting Barbara’s wishes, refused to pay her funds to the Plaintiff.

The 2004 transfer from Barbara to Saint-Michel

[63] In October 2004 Barbara wished to transfer her Property to Morawa to be used for charitable purposes in accordance with her values and wishes. I accept Morawa’s evidence that Barbara could not transfer the Property directly to Morawa, as he had taken a vow of charity with the Plaintiff renouncing the right to hold property.

[64] The condo was a major gift and the lion’s share of Barbara’s assets. She knew and trusted Morawa as a friend and advisor. Saint-Michel was a cloistered organization in Québec. Barbara spoke Polish, not French. She had no personal affinity with anyone from the Québec board of Saint-Michel, although she had some friends in Toronto that were affiliated with Saint-Michel, particularly Pierre Marchioldon, who she wanted to help. I accept that Barbara did not know or trust Saint-Michel, but that she knew and trusted Morawa.

The October 2, 2004 Letter

[65] I accept that Morawa went to a free Polish legal clinic with Barbara to seek assistance to prepare the October 2, 2004 Letter and the Pilote Letter to ensure that Barbara’s wishes for her estate would be respected.

[66] On October 2, 2004 Barbara signed a letter confirming the conditions of the transfer to Saint-Michel (the October 2, 2004 Letter).

[67] The Plaintiff has alleged that the October 2, 2004 Letter was a forgery. The jointly appointed hand writing expert confirms that this original letter bears Barbara’s signature.

[68] The October 2, 2004 Letter states:

This is to certify that I, the undersigned, …. Will sell the above mentioned condo to Mr. Jacek Morawa for $5.00… for the sole purpose to provide Mr. Morowa and Mr. Pierre Marchildon a place to stay and continue to propagate the Polish Michael Journal and its mission in the Toronto area.

It is my wish and desire for Mr. Jacek Morawa to be the sole proprietor of the condo. I will only allow the title to be transferred to Maison Saint-Michel under one and only one condition and that it is for Mr. Jacek Morawa to be the administrator of the condo, to be the only person to make any and all decisions pertaining to the sale, renovations, title transfer after the initial sale and anything else Mr. Morawa sees necessary and when he feels it is necessary to do.

I will transfer the title only when Mr. Alain Pilote, a representative of Maison Saint-Michel signs a statement that such demand is understood and will be honoured at all times, especially when I am no longer alive to testify to the above.

May God bless you and the Polish Michael Journal and its mission.

The Pilote Letter

[69] Before transferring the Property to the Plaintiff, on October 13, 2004, Barbara required Alain Pilote, a representative of Saint-Michel, to sign a letter confirming Morawa’s ownership and control of the Property (the Pilote Letter).

[70] On October 13, 2004 Alain Pilote confirmed that Morawa was the administrator of the condo entitled to make all decisions relative to the Property and that the gift was to Morawa and Pierre Marchioldon (the Pilote Letter). That letter states:

I the undersigned, Alain Pilote, a representative of Maison Saint-Michel hereby testify that your wishes and demands for Mr. Jacek Morawa to be the administrator of the condo, to be the only person to make any and all decisions pertaining to the sale, renovation, title transfer after the initial sale, and anything else Mr. Morawa sees necessary and when he feels it is necessary to do will be honoured when the title is transferred to Maison Saint-Michel.

Because of your generous gift to Mr. Jacek Morawa and Pierre Marchioldon, the Polish Michael Journal and its mission will thrive in the Toronto area.

[71] Alain Pilote, who is still a member of Saint-Michel filed affidavit material alleging that he did not understand the letter. He has then posted conflicting Facebook messages and emails confirming that he was under pressure from Marcel Lefebvre, a director of Saint-Michel to sign the affidavit.

[72] I do not accept the evidence in the recent affidavits filed by Pilote in these proceedings. Clearly he is under pressure and influence of the principals of Saint-Michel, particularly, Lefebvre.

[73] I accept the contemporaneous Pilote Letter signed on the date of the transfer to the Plaintiff, as accurately confirming the facts about ownership of the Property.

[74] Barbara’s counsel knew about the Pilote Letter. The Pilote Letter was also in Barbara’s file.

Agreement Transferring the Property to the Plaintiff

[75] Counsel for Barbara prepared the Direction and Agreement signed by Barbara on October 13, 2004 transferring the Property to Saint-Michel for five dollars, on terms.

[76] On October 13, 2004 Counsel also prepared an Agreement signed by Barbara, and Morawa and Pilote on behalf of Saint-Michel (the Agreement). It states:

MAISON SAINT-MICHEL in consideration of receiving a conveyance of 65 Southport Street, Unit 4, Level 6, Toronto, M6S 3N5, YCC 118 HEREBY agree to allow GENOWEFA BARBARA WIECZOREK to live in and reside in the said unit rent free for as long as she shall wish.

It is understood that the said GENOWEFA BARBARA WIECZOREK shall pay for the Common Expenses and Property Taxes during her residence in the said condominium.

GENOWEFA BARBARA WIECZOREK shall be entitled to take all furniture and paintings (artwork) with her when she vacates.

It is agreed that when the condominium is sold by MAISON SAINT-MICHEL,. Fifty Per Cent (50%) of the net proceeds shall be paid to MISSIONS OF SAINT-MICHEL and the remaining Fifty Per Cent (50%) shall be paid over to MISSIONS OF MAISON SAINT-MICHEL in Poland.

The decision to sell shall be made by PIERRE MARCHILDON, JACEK MORAWA and ALAIN PILOTE.

The Parties below have agreed to the above this 13 th day of October, 2004.

Genowefa Barbara Wieczorek

MAISON SAINT-MICHEL by Jacek Morawa, Authorized Signing Officer

MAISON SAINT-MICHEL by Alain Pilote, Authorized Signing Officer

[77] The Plaintiff relies on the terms of the Agreement as conclusive that it was the owner of the Property. They argue first, that the October 2, 2004 Letter was a forgery. However, the jointly retained expert confirms that the October 2, 2004 Letter contains Barbara’s original signature.

[78] Alternatively they argue that the clear written terms of the Agreement supersede any intention to provide a prior gift to Morawa.

[79] Stan Marak, counsel for Barbara confirmed that he recognized the October 2, 2004 Letter written by Barbara to Morawa and that he was of the view that the letter was in his file. It is his view, which I share, that the terms of the October 2, 2004 inform, explain and ultimately trump the Agreement transferring the Property to Saint-Michel.

[80] Morawa explained that in the Agreement he added the terms of the gift to go to the missions of Saint-Michel and the missions of Saint-Michel in Poland in case something should happen to him, and he could not make sure Barbara’s wishes were respected. This explanation makes sense. It was clear that Barbara did not want funds going to the general coffers of Saint-Michel.

[81] The gift from Barbara was intended to be to Morawa, to ensure that her charitable wishes would be fulfilled, and to Pierre Marchioldon, a member of Saint-Michel, now deceased, to provide him a place to live.

[82] Unfortunately neither Morawa nor Pilote provided copies of these letters to the Board of Saint-Michel to clarify the terms and conditions of Barbara’s conditional gift to the Plaintiff. Morawa retained the original of both letters as his “security” to ensure in the future that Barbara’s wishes would be respected. Copies of these letters were provided to the Plaintiff in October 2014 after the plan unraveled to purchase a two family property in Toronto for pilgrims and the dispute arose about the sale proceeds.

[83] I conclude from the documentary evidence, and in particular the October 2, 2004 Letter, that Barbara was content to transfer the Property to Saint-Michel respecting Morawa’s vow of poverty, so long as Morawa had overriding control of ownership including all decisions related to the Property, in the future including its sale, and the disposition of the proceeds of sale.

[84] I find that the October 2, 2004 Letter outlined the condition of the gift to the Plaintiff. It was explained to her by her counsel, Marak.

[85] I find that the transfer to the Plaintiff would not have taken place without the October 2, 2004 Letter and the Pilote Letter clarifying the role played by Morawa as her trusted friend to ensure that her intentions in the future would be respected.

[86] Barbara required that Pilote, a cloistered member of Saint-Michel on the date of the transfer to the Plaintiff, to separately confirm the true state of ownership of the Property prior to agreeing to transfer the Property to the Plaintiff.

[87] Over the ten years of ownership, Morawa looked after the Property, the maintenance and payments and ensured it was available for Pierre Marchioldon until his death and other pilgrims. The Plaintiff played no role whatsoever in the administration, or upkeep of the Property.

[88] As Morawa did not earn income from employment, over the years, he borrowed money from his sister to pay the necessary expenses and the repairs and improvements for the Property from 2004 to 2014 to allow pilgrims to use the Property.

The January 25, 2013 Letter and Allegation of Forgery

[89] From 2016 when this action began, the Plaintiff, and in particular LeFebvre has alleged that Morawa forged the signature of Barbara on the October 2, 2004 Letter and on the January 25, 2013 Letter. When this allegation was made by the Plaintiff only photocopies of the two letters were available. The October 2, 2004 underpins the Defendant’s case.

[90] The jointly retained hand writing expert confirmed that the signature on the October 2, 2004 is an original signature of Barbara. She expressed the unequivocal view that the signature on the January 25, 2013 Letter is a slightly smaller photocopy of the original signature of Barbara on the October 2, 2004 Letter.

[91] The original of the January 25, 2013 Letter has not been produced.

[92] In 2013 Morawa was interested in selling the Property as its upkeep was expensive and it was too small to accommodate the needs of the pilgrims. On January 25, 2013 Morawa prepared the letter from Barbara to himself giving permission to sell the Property (the January 25, 2013 Letter). The January 25, 2013 Letter confirms that the intention was to purchase another property in Toronto for the pilgrims of Saint-Michel.

[93] Morawa testified in his cross-examination that after Barbara signed the January 25, 2013 Letter, he gave the original of this letter to the Plaintiff’s representatives in a meeting at Rougemont. He did not provide a photocopy, as the he stated the Plaintiff “demanded originals”.

[94] Morawa confirmed on his cross-examination that he probably had a copy of the January 25, 2013 Letter on his hard drive, but that he did not have a photocopy of the signed letter.

[95] Two copies of the January 25, 2013 Letter, with notes on them from the Plaintiff’s representatives were submitted to the handwriting experts by the Plaintiff.

[96] I note that the Plaintiff, and in particular LeFebvre has been quick to allege forgery by Morawa in this proceeding.

[97] First, the Plaintiff alleged forgery of the October 2, 2004 Letter in the materials in the ex parte injunction application. To advance the allegation of forgery of the October 2, 2004 Letter, the Plaintiff submitted photocopies of the October 2, 2004 Letter and the January 25, 2013 Letter to a hand writing expert in Québec. We now know from the second jointly retained handwriting expert that Barbara’s original signature appears on the October 2, 2004 Letter.

[98] Second, Pilote’s email to Morawa raises a second potential false allegation of forgery by LeFebvre. He sent an email to Morawa confirming that LeFebvre, the president of Saint-Michel would allege that Morawa forged Pilote’s signature on the Pilote Letter if he did not sign an affidavit in this proceeding.

[99] Pilote’s email to Morawa on August 8, 2016 states:

You know I was forced by ML to sign this [the Affidavit in this proceeding], he said that if I did not sign this he would go to court and say you forged my signature, he said I had no right to sign your letter… …I deeply regret I put my name on ML’s stuff, because I know you are right and did not commit any crime or tried to mislead anyone…….

[Emphasis added]

[100] If this signature on the January 25, 2013 letter is a photocopy of the signature on the October 2, 2004 Letter as confirmed by the expert, which I accept for the purpose of this analysis to be correct, there is no evidence about who and when, a photocopy of a signature took place.

[101] The Plaintiff had received a photocopy of the October 2, 2004 Letter by the fall of 2014 when this dispute arose between the parties. The only copies of the January 25, 2013 Letter that have been produced are the Plaintiff’s copies.

[102] It does not make sense that Morawa would photocopy a signature of Barbara. He had ready access to Barbara to obtain her signature. The contents of the January 25, 2013 Letter are not in dispute. Barbara confirmed that she was in agreement with selling the Property to purchase a second property in Toronto. Her counsel confirmed that she was aware of the sale.

[103] At the time of making this allegation, LeFebvre was unaware that Morawa had kept the original of both the October 2, 2004 letter as well as Pilote’s letter of October 13, 2004 as “security”.

[104] The Plaintiff has not produced the original of the January 25, 2013 Letter. Morawa testified that the Plaintiff’s representatives advised him that the original of this letter is lost.

[105] I find that it is more likely than not, based upon the facts, that a representative of the Plaintiff photocopied the signature from the October 2, 2004 Letter to the January 25, 2013 Letter to submit to the Québec handwriting expert to substantiate a claim of forgery of the October 2, 2004 Letter.

[106] For these reasons, I find that the conclusion of the expert that the January 25, 2013 is a photocopy of the signature on the letter dated October 2, 2004 does not affect my conclusion that there is no credible evidence that Morawa forged Barbara’s signature.

Context for transfer to Divine Mercy: Conditional Gifts to Plaintiff Not Respected

[107] In 2012, Barbara made two other significant conditional gifts to Saint-Michel to purchase a property in Poland. The Plaintiff accepted the gifts but did not respect the conditions imposed by Barbara for these gifts.

[108] I infer from these uncontested facts that Barbara lost trust in Saint-Michel, and was concerned that her wishes for the use of the gift of the Property would not be respected.

[109] Barbara gave a cheque in May 2012 in the amount of $20,000.00 to the Plaintiff. In her note accompanying the cheque was that it was to be cashed only if a property was purchased in Poland for the Michael Journal Polish Edition. Barbara states to the Plaintiff, “Pls respect my decision otherwise do not cash my cheque.”

[110] Notwithstanding Barbara’s clear and express wishes, the Plaintiff cashed the $20,000.00 cheque, and no property in Poland was purchased. The directors gave the $20,000.00 in cash money to Morawa to use « appropriately ». He placed in his sister’s bank account. I have received confirmation from the sister that these funds remain in her account to this day.

[111] Over the years Morawa has tried to promote the purchase of a property in Poland respecting Barbara’s wishes to no avail.

[112] There was a second larger gift of $50,000.00 US given by Barbara over time from 2001 to 2012 to Michael Journal. The intended purpose was to purchase a property for poor pilgrims in Poland.

[113] Morawa confirms in his affidavit sworn Dec 6, 2017 at para 72 that by 2013 Barbara had lost any trust in the Plaintiff as they had accepted gifts and had not respected the conditions of the donation:

By the time I spoke to Wieczorek, [in 2013] she had become completely disillusioned with the Plaintiff. Wieczorek told me, and I verily believe, that she did not trust the Plaintiff at all. She told me and I verily believe, that this was because she had made a cash donation to a branch organization in Poland, and also St. Michel, with directions to pass the donation to a priest who was building a hostel to provide lodging for the poor and needy religious pilgrims. However, despite many requests she never received confirmation that her donation was used for such a purpose. Eventually, she determined that the funds she had donated had been held in the private bank account of one of the leaders of the Polish branch of the Plaintiff. Upon discovering this, Wieczorek was outraged and demanded that the funds be returned to her. However the funds were never returned.

[114] Morawa too was frustrated that the conditions for Barbara’s significant gifts channeled through him to the Plaintiff had not being respected.

[115] I have asked the Plaintiff to file material confirming what is going on with that $50,000.00 US donation. Counsel made inquiries with his client in Montreal. Counsel for the Plaintiff, after this consultation, advised me that no property has been purchased and the funds remaining in Poland are $41,000.00. I asked for an accounting in writing and explanation as to how these funds have been depleted. At the time of writing these reasons the status of these funds, and whether property has been purchased in Poland is not clear.

[116] Understandably, after conditional gifts were accepted by the Plaintiff, and her wishes not respected, Barbara lost faith in the Plaintiff.

Transfer of Property from Plaintiff to Barbara

[117] In 2014 the Property was transferred back from the Plaintiff to Barbara.

[118] Morawa had his lawyer in Toronto prepare the transfer deed from Saint-Michel to Barbara, which was signed on January 27, 2014 by Florentine Seguin, the President of Saint-Michel and witnessed by the Plaintiff’s Québec notary.

[119] The wording in the transfer deed is clear and simple. It states that the transaction was a:

« return of a gift ».

[120] The Plaintiff’s representative attended before a notary to sign the transfer deed back to Barbara. I do not accept the suggestion that the directors of the Plaintiff did not understand the meaning of this document.

[121] The Defendants argue, that even if there is some confusion about Barbara’s intentions at the time of the transfer in 2004 to Saint-Michel, any interest in the Property was extinguished by the transfer back from Saint-Michel to Barbara in 2014.

Transfer of Property to Divine Mercy and its sale

[122] It was intended by all that the funds from the proceeds of the Property would be used, along with additional funds to be provided by the Plaintiff to buy a more appropriate two family house for pilgrims in Toronto.

[123] It makes sense that in light of the significant gifts to the Plaintiff that had not been used for their intended purpose, that Barbara had lost faith in the Plaintiff and did not want the proceeds from the Property to go to the general coffers of the Plaintiff. She wished to ensure that her life legacy would be respected. Therefore she transferred the Property to Divine Mercy.

[124] In February 2014 the Property was transferred to from the Plaintiff to Barbara, and then from Barbara to Divine Mercy. Barbara was represented by her lawyer, Mr. Marak in both transactions. Marak confirms that Barbara’s wishes were to ensure her gift would go to the charity Divine Mercy and that he was following her instructions.

[125] In the transfer to Divine Mercy, Morawa was represented by separate counsel, Mr. Wheeler. I have reviewed the complete file of Mr. Wheeler, who was representing Morawa and Divine Mercy on the 2014 transfer from the Plaintiff to Barbara, and from Barbara to Divine Mercy and in the 2014 sale to third parties.

[126] Divine Mercy sold the Property to a third party in May 2014.

[127] A schedule of expenses incurred by the sister related to the condo had been prepared and filed with the lawyer for payment of the debt to the sister. These expenses totaled $95,315.64. The balance after real estate commission and legal fees were deposited into the bank account of Divine Mercy.

Conflict between the parties about the proceeds

[128] Clearly after the sale of the Property, Barbara and Morawa were content to use the proceeds from Barbara’s Property held in the account of Divine Mercy to purchase another property for pilgrims in Toronto as originally planned when the decision was made to sell the Property. Saint-Michel was to make up any shortfall on a purchase price, perhaps from the $50,000.00 funds in Poland, and from other sources, to acquire a second property.

[129] The Plaintiff alleges now that Morawa was acting for the Plaintiff in these transactions, not for Barbara. The directors allege that in essence Saint-Michel was duped by Morawa, and that they did not understand the documents signed by them that say simply “return of gift”. They allege that Morawa diverted funds properly payable to the Plaintiff to his personal use.

[130] This allegation today does not accord with the Plaintiff’s document at the time. Saint-Michel decided that it was too expensive to purchase another property in Toronto.

[131] The email dated June 23, 2014 was written by Therese Tardif, directrice of Saint-Michel. It is of note that the email is written in English to Morawa changing the plan to buy another property in Toronto.

Dear Mr. Jacek, I beg your pardon for the delay to answer. I spoke with the other directors and we decide to do not buy another house in Toronto. It is too expensive for the needs. Mrs. Barbara would like to have a center in Poland. If she agree, we can use the money of the condo of Toronto to buy a house with a land around in Poland. With the money off the sale of the house of Janusz I think we can have a valuable house and land.

[Emphasis added]

[132] This email confirms, properly, that Barbara’s wishes as to the disposition of the sale proceeds should prevail and be respected. This email from the Plaintiff at the time makes a reasonable proposition saying “if she agree, we can use the money …..” to purchase a property in Poland.

[133] In his Affidavit sworn December 6, 2017 Morawa confirms in response to this email, that he was shocked by the email. He showed it to Barbara. He states:

I brought it to Wieczorek, and showed it to her. Wieczorek told me that under no circumstances was I to give any money to Maison St. Michel. Having lost all the money she had donated to the Plaintiff’s Polish branch, [the $50,000.00 and the $20,000.00 gifts] she did not want to entrust the plaintiff with any cash. She reminded me that her earlier wishes had not been honoured and she concluded that the same thing was happening again.

[Emphasis added]

[134] When the plan to purchase another property for pilgrims in Toronto from the Property proceeds did not come to fruition this dispute between the parties escalated.

[135] On September 7, 2014 Barbara signed a letter prepared by Morawa sent to the Directors of the Plaintiff on her instructions in response to the Plaintiff’s June 23, 2014 email. Barbara’s letter was received by the Plaintiff in October, 2014.

[136] As it is important I outline the September 7, 2014 Letter:

September 7, 2014

Dear Directors:

In response to Miss Therese Tardif’s Proposal to send funds from the sale of the Condo to Poland, regretfully, I must decline.

When Mr. Jacek Morawa informed me that the upkeep of the condo has significantly gone up and continues to go up and proposed the Condo to be sold, and to assist with paying the upkeep of a house, a 2 Family dwelling be purchased, I agreed.

At that time we discussed that with the sale of the Condo there will not be enough money to acquire a 2 Family house. I asked Mr. Jacek to request that Mr. Lewicki returns the $50,000.00 that was sent to Poland eight years ago and was sitting dormant in his private account be immediately returned to Canada to be used as additional funds to purchase a 2 Family house. But my request was ignored.

To ensure that my wishes be fulfilled and the money properly distributed, I have allocated the funds with another non profit which will honor my wishes.

The Lord can call upon me anytime and before I go, I want to make certain that my money go to a good cause for those who really need it.

I have given enough money to Rougemont in the past and trust you will respect my decision.

[Emphasis added]

[137] Three important points emerge from the September 7, 2014 Letter after the Property was sold:

First, Barbara declined the suggestion of Ms. Tardif to purchase a property in Poland and expressed frustration with the non-accountability for the $50,000.00 U.S. conditional gift for a property in Poland not being met. She was also frustrated that the plan to purchase a two family dwelling in Toronto for pilgrims was not going to proceed.

Second, Barbara confirms that she has provided the proceeds from the Property to another charity “to ensure that my wishes be fulfilled and the money properly distributed, I have allocated the funds with another non profit which will honour my wishes”.

Third, Barbara wished to make sure her funds would be used as she wished, and she felt that she had provided enough funds to Rougemont [the Québec Saint-Michel]. She ends that letter: “The Lord can call upon me anytime and before I go, I want to make certain that my money go to a good cause for those who really need it. I have given enough money to Rougemont in the past and trust you will respect my decision.”

[Emphasis added]

[138] There is a note on this letter that it was provided on October 27, 2014 by Morawa to Melvin Sickler, one of the directors of the Plaintiff. This same day that the Plaintiff states it received the copies of the October 2, 2004 Letter from Barbara to Morawa, as well as the January 25, 2013 Letter, which the Plaintiff alleges in this proceeding to be forgeries.

[139] Morawa was summoned to Rougemont in January 2015 and in the months following and was interrogated and pressured by the directors to pay the funds held by Divine Mercy from Barbara’s Property to Saint-Michel. He describes the lengthy inquisitorial style of questioning by many people. Morawa’s affidavit evidence is not contested by anyone from the Plaintiff.

[140] Morawa’s position is that Barbara at all times trusted him to make sure her gift would benefit the Polish Catholic community in Toronto and Poland. Although the Plaintiff decided that it was not feasible to purchase another property in Toronto due to housing prices, Morawa states that he has respected the wishes of his friend Barbara, and placed her interests above those of the Plaintiff.

[141] When he refused to transfer the money to the Plaintiff, respecting Barbara’s clear wishes, he was required to attend before the Board of Directors at Rougemont in lengthy interrogation sessions where he was pressured to pay the funds to the Plaintiff. They used intimidation and threats:

100. They were shouting, even though I was only six feet away. They told me that if I did not comply with their demands immediately and hand over the money, that I would be in breach of my vow of obedience. They told me I would go to Hell if I broke my vows. They threatened to expel me. They told me they would destroy my reputation in the Polish religious community. They told me they would bankrupt me with legal proceedings…..

101. Despite the extreme pressure exerted by the Plaintiff I did not capitulate. I managed to resist the Plaintiff’s extreme pressure tactics only by seeking counsel from a Polish priest and old friend … who provided me with guidance throughout this ordeal. I also felt a strong moral obligation to Wiezorek that kept me from handing over money I knew she did not want the Plaintiff to have.

[142] There has been a huge personal cost for Morawa to respect Barbara’s wishes in light of the pressure and accusations by the Plaintiff. He is now essentially excommunicated from the organization that was a central part of his spiritual and daily life. His reputation has been stained.

Conclusions

[143] I find that clearly the allegations of the Plaintiff have not been proved. There was no forgery, no theft, and no fraud.

[144] As I have outlined, I conclude that the questioned signature on the January 25, 2013 Letter being a photocopy does not impact my conclusions. If there was a photocopy of a signature, it is more likely than not that it was done by a representative of the Plaintiff, with the intention of challenging the validity of the October 2, 2004 Letter confirming Morawa’s ownership and control of the Property.

[145] It is so unfortunate that the generosity of Barbara, leaving her life savings to a Catholic charity to assist those from Poland or of Polish descent could result in such a despicable mess.

[146] It is clear that the lion’s share of the responsibility for taking this matter to this extreme falls on the shoulders of the Plaintiff, and in particular Marcel LeFebvre.

[147] There is no doubt that LeFebvre took the lead in the hawkish, aggressive position in this file, making rash unfounded allegations of fraud and forgery and perhaps influencing the other directors to bring this lawsuit forward. He and others have also made unfounded accusations about the honesty and integrity of Morawa in the community.

[148] The material filed on the ex parte request for an injunction was selective and misleading. Counsel for the Plaintiff cannot be blamed, as he was not given the full picture by the Plaintiff in the information provided to him.

[149] I note however, that the communication between Morawa with the Plaintiff was less than ideal. Morawa contributed to, though certainly did not cause, this situation escalating to its present unfortunate state.

[150] Morawa and Pilote should have had the courage to confirm the conditions of Barbara’s gift at the time it was given. The Property could have been transferred by Barbara to Divine Mercy in the first place. It may be however that in light of the control exerted by the Plaintiff that transparency is not possible.

[151] After the sale of the Property, according to the Plaintiff, Morawa advised Saint-Michel that the Property sold for $220,000.00 rather than $329,000.00. He said that he confirmed that $220,000.00 was “in hand”. When they found that the sale proceeds were not as disclosed by Morawa the Directors of the Plaintiff became suspicious, and began an inquiry that became nothing short of a mission.

[152] It was totally appropriate and proper for Morawa to repay his sister for funds borrowed to maintain the Property over the ten-year period. It would have been helpful however for Morawa to have confirmed this information with Saint-Michel to avoid the suspicions and tensions mounting between the parties.

[153] Clearly the Plaintiff, and LeFebvre in particular, bears responsibility for this escalating situation.

[154] The Plaintiff knew that Barbara had left her remaining estate to another charity in October 2014 when they received the September 7, 2014 Letter. Had the Plaintiff wished to assert a claim to the sale proceeds or clarify the situation, it could have done so during Barbara’s lifetime, through her counsel. The Plaintiff was well aware that Barbara was represented by her counsel, Mr. Stan Marak. That is in LeFebvre’s affidavit filed on the ex parte injunction in August 2016. It would have been easy enough during her lifetime for Barbara’s counsel to confirm Barbara’s wishes and reasons for leaving the Property to Divine Mercy. Instead, the Plaintiff chose to not bring this action until after Barbara died, two years after the Property was sold. Barbara could no longer express her wishes.

[155] For all these reasons, the action brought by the Plaintiff is dismissed with costs.

Disposition of $20,000.00 and Accounting from the $50,000.00

[156] The Defendants seek direction about how to dispose of the $20,000.00 plus interest that is presently in Morawa’s sister’s bank account.

[157] Morawa proposes that these funds be distributed in accordance with Barbara’s will to the two charitable residual beneficiaries: the Congregation of Albertine Brothers and the Congregation of the Holy Family. The good work of these organizations in the Catholic Polish community is described in the supplementary affidavit.

[158] This disposition of these funds is reasonable and respects Barbara’s wishes.

Disposition of the $50,000.00 gift to Saint-Michel

[159] Morawa seeks that the Plaintiff be required to return the $50,000.00 U.S. gift from Poland that was not used to purchase a property, and that these funds be given to the two residual beneficiaries confirmed in Barbara’s will.

[160] At the time of writing these reasons, the facts about these funds in Poland and whether a property has been purchased is not clear. The disposition of these funds will be dealt with in separate supplementary reasons.

Costs

[161] I have received the Bill of Costs of the parties. The Defendants are seeking substantial indemnity costs, as the Plaintiff has recklessly and irresponsibly alleged theft, forgery and fraud.

[162] The Plaintiff at the conclusion of argument presented a Bill of Costs in the amount of $33,895.18 for actual costs, including HST and disbursements of $4781.03.

[163] The Defendants submit a bill seeking substantial indemnity costs for two counsel in the amount of $156,173.60 and partial indemnity costs in the amount of $118,424.30. In addition there is a final bill of the jointly appointed handwriting expert in the amount of $2735.78.

[164] Before I determine the question of costs I request any offers to settle the motion be produced to me within 7 days.

J. Wilson J. Released: June 25, 2018