Court File and Parties

Court File No.: SC-16-545115 Date: 2018-09-11 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: June 15, 2018

Before: J. Wilson J.

Addendum to Reasons in the Motion for Summary Judgment

[1] This addendum deals with the question of the $50,000.00 US gift given by Barbara to the Plaintiff for the purpose of purchasing a property in Poland for pilgrims.

[2] After consulting with his client, Mr. Lefebvre, president of the Plaintiff, by telephone, counsel for the Plaintiff advised me on May 22, 2018 that $41,000.00 was remaining from these funds.

[3] On May 22, 2018 I required the Plaintiff to provide an accounting of the $50,000.00 gift from Barbara within seven days, with supporting bank statements.

[4] On May 29, 2018 the Plaintiff filed an affidavit by Janusz Lewicki (Lewicki). He is the president of Fundacja Pielgrzymow Sw. Michala (Foundation of Pilgrims of Saint Michael) (the Polish Foundation).

[5] He confirmed that he had received on June 6, 2012 the $50,000.00 US gift from Maison Saint-Michel after Jacek Morawa (Morawa) had asked for these funds to be transferred to him for the purpose of purchasing a property for pilgrims in Poland.

[6] Thereafter, it is clear that the gift of Barbara was not used for its intended purpose. The funds were placed in Lewicki’s personal account, not the account of the Polish Foundation.

[7] First, $9,000.00 of this gift was used by Lewicki to purchase Morawa’s father’s car that was in storage in Poland. Lewicki and the Plaintiff know well that this use was not the intended purpose of Barbara’s gift.

[8] Second, it appears that Lewicki has used the balance of the $41,000.00 funds as partial payment for a one-bedroom condominium registered in his name where he resides (the Condominium). The transaction took place on July 17, 2016. There is no evidence that the Condominium is used for pilgrims, except for Lewicki.

[9] In his affidavit, Lewicki states that the Foundation is a 43% owner of the Condominium, but the Foundation is not registered on title. The Foundation was in existence at the time of the purchase.

[10] If the Foundation is in fact a 43% owner of the Condominium, it would be appropriate and honest for Lewicki to register the Foundation’s interest in the Condominium, rather than misappropriating Barbara’s gift for his own personal use.

[11] Alternatively, if the Foundation is not a part owner in the Condominium, it would be appropriate and honest for Lewicki, or the Plaintiff to repay Barbara’s funds appropriated for his personal use. The funds of $41,000.00 should be returned to the estate of Barbara, to be distributed in accordance with her will. The two residual beneficiaries are Polish Catholic charities.

[12] There is a bizarre set of circumstances related to the car in Poland prior to its sale from Morawa’s father to Lewicki. I accept the affidavit of Morawa, which has supporting documents verifying the facts. I do not accept the bald assertions in the affidavit of Lewicki.

[13] Morawa’s father had left a car in storage in Poland with a friend intending to return to Poland one day to live and to use the car. Unbeknownst to the father, Lewicki misappropriated the car to his own use, without permission advising the friend that the father had given permission to use the car.

[14] The car was in storage, and hence was not insured by the father. Lewicki was involved in and charged with at least one, and probably two car accidents. He was charged, including leaving the scene of the accident while driving the father’s car without insurance. Morawa was required to pay $5,000.00 in fines and costs in Poland to sort out this mess.

[15] Morawa received the $5,000.00 funds from Saint-Michel. The Plaintiff’s principals are well aware of the true facts. Morawa did nothing inappropriate, and merely rectified the mess created by Lewicki in Poland. It was clearly not appropriate for Lewicki to use Barbara’s funds to pay Morawa’s father for his car.

[16] The further disclosure only reinforces my conclusions as to the credibility and reliability of the witnesses. Where there is a conflict in versions of fact, I accept Morawa’s evidence and I do not accept the evidence of Lewicki or the Plaintiff.

[17] Counsel for the Plaintiff raised the question of jurisdiction. I raised the issue of the applicability of a potential limitation period.

[18] Clearly I do not have jurisdiction to make an order against Lewicki or in relation to the Foundation in Poland. I have only jurisdiction to make orders against the Plaintiff.

[19] Counsel for Morawa argues that I should order the Plaintiff to pay these funds to the estate of Barbara.

[20] The evidence discloses that Barbara was aware in 2014 when she wrote the letter to Saint-Michel that her wishes with respect to the $50,000.00 gift had not been respected. This is one of the reasons why she gave the Property to Divine Mercy.

[21] On September 7, 2014 Barbara signed a letter prepared by Morawa sent to the Directors of the Plaintiff on her instructions.

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.

[Emphasis added]

[22] A two-year limitation period applies from the date the facts are known or are discoverable, even with respect to civil fraud: ss 4-5, Limitations Act, 2002, S.O. 2002, c 24, Sch B.

[23] Therefore, although the Plaintiff may have a moral obligation to rectify the situation as the conditional gift lapsed, it is not legally enforceable as clearly Barbara and Morawa were aware that Lewicki had failed to use the gift for its intended purpose.

[24] The Defendants should be entitled to some award of costs. Counsel was required to respond to the false allegations in the affidavit of Lewicki again alleging unfounded impropriety in Morawa’s conduct. Again these allegations are blatantly false.

[25] Counsel for Morawa seeks partial indemnity costs of this aspect of the file in the amount of $11,650.30 inclusive of HST plus disbursements. The substantial indemnity costs sought are higher, in the range of $17,500.00 inclusive of HST.

[26] Costs must be proportional to the amount in dispute. It did not require two lawyers to work on this aspect of the file. The time spent was excessive. A factum was not necessary.

[27] From the date of the last court appearance on May 22, 2018 I fix costs in the amount of $7,500.00 inclusive of HST plus the disbursements in the amount of $4,106.61 payable by the Plaintiff to the Defendants. This includes disbursements for the examination of Stan Mamak, as the Plaintiff refused to pay its share, as well as Morawa’s share of the additional account from the signature expert.

J. Wilson J. Released: September 11, 2018