COURT FILE NO.: CV-16-3453-00 and CV-16-5654-00
DATE: 2019 10 08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ERNEST GROH
D. Loucks, Counsel for the Plaintiff (until October, 2018)
Plaintiff
- and -
DORIS STEELE and JOAN F. WOLFE also known as KITTY WOLFE and GABRIELLE GROHOTOLSKI, S.G. TRUCKING INC., and S.E.G MANAGEMENT INC., THE ESTATE OF SIEGMUND GROHOTOLSKI, deceased
P.D Stern, Counsel for Doris Steele and Joan F. Wolfe
D. Elliott and E. Mamay, Counsel for Gabrielle Grohotolski
Defendants
AND BETWEEN:
ERNEST GROH
D. Loucks, Counsel for the Plaintiff (Until October 2018)
Plaintiff
- and -
DORIS STEELE and JOAN F. WOLFE, also known as KITTY WOLFE, 1275921 Ontario Inc., carrying on business as Motion Endeavours, and GULL WING MOTOR CARDS INC.
P.D Stern, Counsel for Doris Steele and Joan F. Wolfe
D. Elliott and E. Mamay, Counsel for Gabrielle Grohotolski
C. Belsito, counsel for Silver Arrow Cars
S. Hutchison and A. Smith, Counsel for Gullwing Motor Cars
Defendants
HEARD: June 26th, 2018 and June 17th, 2019
REASONS FOR DECISION
LEMAY J
[1] I am case-managing a series of actions involving the parties. The action involves the affairs of Ms. Gabriella Grohotolski, as well as her son, Ernest Groh. She was the part-owner of the Halton Motel until 2015, when the assets of the Motel were sold by her attorneys for property, Ms. Doris Steele and Ms. Joan (“Kitty”) Wolfe. Mr. Groh has challenged, unsuccessfully, Ms. Grohotolski’s ability to grant those attorneys for property (see 2017 ONSC 3625).
[2] In the proceeding in Court File No CV-16-3453 (“the Ferrari action”), Mr. Groh seeks to challenge the sale by Ms. Steele and Ms. Wolfe of a 1973 Dino Ferrarri (“the Yellow Ferrari”) on the basis that it was his Yellow Ferrarri, rather than an asset of the Halton Motel. He claims damages against Ms. Steele and Ms. Wolfe, as well as against a number of intermediate purchasers who subsequently bought and sold the car.
[3] Summary judgment was originally sought in the Ferrari action by both the Plaintiff and the Defendants. This motion was originally argued in June of 2018. Mr. Groh seeks an Order that the Yellow Ferrari was his, and the moving Defendants all seek an Order that the Yellow Ferrari was owned by the Halton Motel and that Mr. Groh did not have an interest in the Yellow Ferrari.
[4] However, there is a larger application in Court File No. CV-16-5654 (“the Motel action”) that involves the winding up of the business of the Halton Motel. In this action, Mr. Groh is advancing claims against Ms. Grohotolski, Ms. Steele, Ms. Wolfe and a number of companies. In reasons issued on October 25th, 2018, I determined that the summary judgment motion in the Ferrari action was premature because there was an overlap in the issues to be determined between the Ferrari action and the Motel action.
[5] As a result, I directed that any summary judgment motions being brought in the Motel action should be brought together with the summary judgment motion in the Ferrari action. Those motions were returnable on June 17th and 18th, 2019. Detailed materials were filed in advance of the appearance scheduled for June 17th and 18th, 2019. In addition, I had the record from the original summary judgment motion in the Ferrari action before me.
[6] Mr. Groh did not attend at the appearance on June 17th, 2019, and I received no explanation for his absence. Based on my review of the record, I was satisfied that summary judgment should be granted to the Defendants in this case, and that both the Ferrari action and the Motel action should be dismissed, and I granted this relief orally from the bench with detailed written reasons to follow. These are my reasons for those decisions.
The Facts
a) The Background Facts
[7] In the early 1960’s Siegmund and Gabriella Grohotolski immigrated to Canada from Austria. Shortly after their arrival, they purchased the Halton Motel from a distant relative, and they ran the Halton Motel until Mr. Grohotolski’s passing in late 2014.
[8] Their son, the Plaintiff Ernest Groh, briefly came to Canada when his parents emigrated when he was six years old. He then returned to Austria for a time, and emigrated when he was 12 years old. He lived with his parents in a bungalow on the Hotel property and, when he was older, was also involved in the running of the Halton Motel. He lived in the bungalow rent-free from 1965 to the end of 2015.
[9] The Defendant, Joan “Kitty” Wolfe had a relationship with Mr. Groh starting in the early 1980’s. At some point shortly after her relationship with Mr. Groh started, she became the bookkeeper for the Grohotolskis’ businesses.
[10] The Defendant, Doris Steele, also had a relationship with Mr. Groh, which started after the end of Mr. Groh’s relationship with Ms. Wolfe. She lived on the Halton Motel property from 1995 to 2003 with Mr. Groh and his parents, and Ms. Steele and Mr. Groh have one child together, Ernest Michael.
[11] The Defendants 1275921 Ontario Inc. O/A Motion Endeavours and Silver Arrow Cars bought the Dino Ferrari in July of 2015. They then subsequently sold this car to Gullwing Motor Cars Inc. The sale transaction was handled primarily by Silver Arrow and its’ principal, Mr. Tim Quocksister.
[12] In late 2015, Gullwing put the car up for sale in an auction being run through Gooding and Company in California. Gooding and Company were contacted by counsel for Mr. Groh, who advised them that there were issues about whether the car had been improperly sold to Gullwing. Mr. Groh’s solicitor insisted that the car be withdrawn from the auction. Gullwing was concerned, and insisted that Silver Arrow repurchase the car from it.
[13] The car was duly withdrawn from the auction and repurchased by Silver Arrow. Silver Arrow then re-sold the car to a third party. I will review the details of this transaction below.
[14] In the meantime, at the direction of Ms. Grohotolski, Ms. Steele and Ms. Wolfe wound up the other affairs of the Halton Motel and the related companies. This work was done between the spring of 2015 and the spring of 2016. Mr. Groh has challenged many of those transactions, claiming an interest in the Halton Motel business.
b) The Structure of the Halton Motel Business
[15] There were a number of related business entities controlled by the Grohotolskis. First, there was S.E.G. Management. This company was set up in 1979, and was intended to be the management company for the Halton Motel. However, all of the statements and tax filings for this company show that it was a shell company. No assets were listed on any of its balance sheets, and it had no income.
[16] There are some records that suggest that the shares of S.E.G. Management were equally owned by Mr. Groh and his parents. However, there is other conflicting evidence that suggests that the shares of S.E.G. were owned only by the Grohotolskis. The evidence does not disclose any money being paid for the original purchase of these shares, or any income being paid out to shareholders by this company. I will address the issue of the ownership of shares and its effect in my analysis of the issues.
[17] There was also S.G. Trucking, which was a company that was owned solely by Siegmund Grohotolski. Mr. Groh was a director of this company, but there is no evidence that he owned any of the shares of this company. S.G. Trucking was incorporated so that Mr. Grohotolski could run a gravel hauling business.
[18] Mr. Grohotolski suffered a serious injury in 1999, and the gravel truck was sold in 2000. I had no evidence about S.G. Trucking having any additional assets or other businesses since 2000.
[19] Then, there was the Halton Motel. The documentation filed indicates that the income from the Halton Motel (and the associated losses) was split equally between Siegmund and Gabriella Grohotolski. This evidence is clear from the tax returns that were filed for both of the Grohotolskis, and these tax returns go back to 2007.
[20] There are some limited records from the 1980’s that suggest that the Halton Motel was owned solely by Mr. Siegmund Grohotolski at that time. However, most of the accounting records from that time period were not available for this motion.
[21] Mr. Groh was treated as an employee of the Halton Motel. He received a T-4 every year, and this T-4 was marked as coming from S.E.G. Management O/A the Halton Motel. None of the income (or losses) of the business were attached to the income tax returns that I have for Mr. Groh, which also go back to 2007.
c) The Purchase of the Yellow Ferrari
[22] The Yellow Ferrari was purchased on April 6th, 1981. The bill of sale shows the purchaser as the Halton Motel O/B Groh, Ernest. In his Affidavit on this motion, Mr. Groh states that the O/B means operated by.
[23] From as far back as the accounting records go, the expenses associated with the Yellow Ferrari were paid by the Halton Motel. As part of this motion, the journal records for a significant period of time were filed, as were the tax returns of the Grohotolskis. All of these records support the conclusion that the Halton Motel paid the expenses associated with the Ferrari, and there is no indication in any of these records that Mr. Groh paid anything towards the car’s operating expenses.
[24] The licence plate for the car, which is WOOOSH (a vanity plate), was also registered to Groh, Ernest Halton Motel. It was issued in this matter effective in mid-1985.
[25] Mr. Groh states that the Yellow Ferrarri was his. Ms. Wolfe, in her Affidavit, states that the Yellow Ferrarri was always owned by the Halton Motel partnership. This is one of the key issues on this motion, and I will return to it below.
d) The Change in Ownership of the Yellow Ferrarri
[26] Just before Ms. Steele and Ms. Wolfe sold the Yellow Ferrarri on behalf of Ms. Grohotolski, they discovered that the ownership was registered in Mr. Groh’s name.
[27] This change had been made by Mr. Groh in 2009. He states that it was in response to a letter that he received from the insurance company, advising him that the ownership could not be listed in two names. That letter reads:
May 7th, 2008
Ernest Groh
3033 Dundas St. W.
Mississauga, Ont
L5L 3R8
Dear Mr. Groh:
Re:Gore Mutual Policy #1133278
The intent of this letter is to confirm our recent telephone conversation regarding your above noted Gore Mutual automobile policy.
As discussed, Gore Mutual needs you to transfer the vehicle ownerships to either you personally or SEG Management prior to the release of your April 2009 renewal. This is required in order to maintain proper insurance coverage. The vehicles involved are as follows:
1973 Ferrari
1988 Dodge Ram
1987 Jaguar
Once this is complete kindly fax a copy of each ownership to our office at 519-653-9603 and we will immediately forward them on to Gore Mutual.
Thank you for your anticipated co-operation in this matter.
Sincerely,
[28] Mr. Groh did not advise anyone of this change in ownership of the Yellow Ferrari. Indeed, it continued to be treated as an asset of the Halton Motel, and the expenses associated with it continued to be treated, for income tax purposes, as expenses of the Halton Motel.
[29] There was a second Ferrari, red in colour, owned by Mr. Groh personally. He was responsible for paying the expenses associated with that car, and the title to that car was in his name.
e) The Sale of the Yellow Ferrari
[30] When Siegmund Grohotolski passed away in December of 2014, Gabriella Grohotolski was in the hospital. Mr. Groh, on his own Affidavit, was having some significant difficulties. These included fatigue, exhaustion and back problems. As a result, Mr. Groh was unable to inform Ms. Grohotolski about the passing of her husband. That responsibility fell to her grandson, Ernest Michael, who was thirteen at the time.
[31] Mr. Groh continued to live in the bungalow on the hotel property after the passing of his father. However, the Halton Motel was not being run as a business after Mr. Grohotolski passed away. In addition, Ms. Grohotolski had periods when she was in and out of the hospital in 2014 and 2015. As a result, she decided to wind up the business of the Halton Motel and sell the property and assets of the business. She also determined that Mr. Groh was unable to function as one of her attorneys for property. As a result, she asked Ms. Steele and Ms. Wolfe to act as her attorneys for property.
[32] As part of their efforts to sell the car, Ms. Steele and Ms. Wolfe retained the services of Maurice Bramhill to appraise the car. There is a dispute between the parties about whether Mr. Groh was invited to attend the appraisal, but declined to do so. Mr. Groh says that he was not aware that the appraisal was taking place.
[33] Mr. Bramhill’s appraisal was filed as part of the materials on this motion, although I did not have an Affidavit from him. This appraisal listed the value of the car as $250,000.00 Canadian, and noted that there was no history that would allow Mr. Bramhill to determine whether the Yellow Ferrari was a “Chairs and Flares” edition. I understand that a “Chairs and Flares” Yellow Ferrari would be significantly more valuable than a regular yellow Ferrari.
[34] In addition, the car had not been driven in a number of years and was not operable when it was sold. As a result, Ms. Steele and Ms. Wolfe decided to sell the car on an “as-is” basis.
[35] As I have noted above, it came to the attention of Ms. Steele and Ms. Wolfe that the Yellow Ferrari’s ownership was registered to Mr. Groh’s name. As a result, they attended at the Hotel on August 4th, 2015 in order to have him sign the ownership for the car. Mr. Groh signed the ownership on the part of the form that said seller.
[36] The car was listed for sale at a price of $300,000.00 CDN. The next week, Ms. Wolfe was contacted by a potential purchaser of the car, Adam Lewis. Mr. Lewis is an automotive broker, and was acting on behalf of Richard Erlick and the Defendant Motion Endeavours. Mr. Lewis was permitted to view the car and take videos of it, but he was not permitted to conduct a formal inspection of the car because it was being sold on an “as-is, where-is” basis.
[37] Mr. Lewis discussed this car with Mr. Erlick, who discussed it with Mr. Quocksister, the principal of Silver Arrow Cars. It was determined that the car was probably worth purchasing. As a result, the two companies entered into a partnership to purchase the car.
[38] Mr. Lewis, therefore, offered between $215,000.00 and $225,000.00 CDN for the car. However, Ms. Grohotolski would not agree to that amount, and insisted on receiving the $250,000.00 appraised value of the vehicle. An agreement was reached to sell the car for this price. The negotiations were conducted by Ms. Steele over the telephone, with Ms. Grohotolski on one line and Mr. Lewis on the other.
[39] On August 14th, 2015, Mr. Lewis requested a bill of sale. One had originally been prepared showing the seller as S.E.G. Management O/A Halton Motel, but it was changed to Ernest Groh. The Halton Motel had a stamp with Mr. Groh’s signature on it, and Ms. Steele used the stamp to complete the bill of sale.
[40] In addition, a copy of Mr. Groh’s passport was obtained and provided to Mr. Lewis as part of the paperwork on the sale. This was additional information requested by the purchasers, to ascertain that Mr. Groh was still alive. The cheque for the sale price was made out to Ernest Groh by the purchasers, and the money was deposited into a bank account that was jointly held by Mr. Groh, Ms. Grohotolski and Ms. Steele.
[41] Once the car was purchased by the Silver Arrow and Motion Endeavours partnership, they refurbished the car and had some mechanical work done to make it operational again.
[42] Once this work was completed, Silver Arrow and Motion Endeavours had a Ferrari expert assess the car to determine whether it was a “Chairs and Flares” edition. The expert determined that the Yellow Ferrari was, in fact, a “Chairs and Flares” edition. As a result, it had a significantly higher value than the purchase price.
[43] Based on this significantly higher value, Silver Arrow sold the car to Gullwing for the sum of $400,000.00 USD. Gullwing then consigned the car to Gooding and Company for sale in an auction in California, and it was included in Gooding’s catalogue. The estimated price of the car in the catalogue was between $450,000.00 and $525,000.00 US.
[44] The catalogue came to the attention of Mr. Groh and his counsel, and counsel sent correspondence to Gooding and Company instructing it to remove the Ferrari from the auction because there was an issue with its title.
[45] In spite of Mr. Quocksister’s assurances, Gullwing had concerns about this correspondence, as they never buy cars where there is any dispute about the title to the car. As a result, Gullwing insisted that Silver Arrow repurchase the Yellow Ferrari, which they did.
[46] Silver Arrow then re-sold the Yellow Ferrari to the Stables Automotive Group for the sum of $422,490.00 USD, with the sale being conditional on the title to the car being registered in Arizona. This price allowed Silver Arrow to reimburse Gullwing for the costs that Gullwing had incurred in getting the Yellow Ferrari to California, where it was ultimately sold.
f) The Other Transactions Relating to Winding Up the Hotel Business
[47] As I have noted above, Mr. Siegmund Grohotolski passed away on December 14th, 2014. At that point, Ms. Grohotolski had been hospitalized (since September of 2014) with a significant illness, and Mr. Groh was also medically unable to work on the hotel property although he continued to live there.
[48] As a result, when Ms. Grohotolski was advised that Mr. Grohotlski had passed away, she decided that the hotel business needed to be wound up. At this point, Mr. Groh was Ms. Grohotolski’s Attorney for Property. However, Mr. Groh was unable to act in that capacity and refused to attend the hospital on a number of occasions.
[49] As a result, on March 13th, 2015, Ms. Grohotolski changed her Attorneys for Property to Ms. Steele and Ms. Wolfe. However, the Attorney for Property for Ms. Wolfe was not effective until October of 2015, as she was ill in March of 2015.
[50] In any event, Ms. Grohotolski called a series of meetings with her Attorneys for Property, her accountant, Michael Galea (“Mr. Galea”) and her financial advisor, Paul Tuccitto. A number of meetings took place in February, March and April of 2015. The purpose of these meetings was to develop a plan to simplify Ms. Grohotolski’s assets. Mr. Groh was invited to many, if not all of these meetings, but declined to attend any of them.
[51] Mr. Groh was advised by his mother, by Ms. Steele and Ms. Wolfe and by Mr. Galea that the Halton Motel was being sold, and that the assets were being liquidated. He was invited to discuss the sale with Ms. Grohotolski, but did not do so, and did not participate in any of the meetings about the sale.
[52] In April and May of 2015, Ms. Wolfe and Ms. Steele went to the Halton Motel to obtain documents relating to the property as well as to inventory the property and arrange for its sale. As discussed above, this property included the Yellow Ferrari.
[53] There were discussions between Ms. Wolfe, Ms. Steele and Mr. Groh about the personal effects that were in the property. Ultimately, Mr. Groh takes the position that there is a long list of his personal property that was improperly kept by the Attorneys for Property and improperly disposed of. The Attorneys for Property and Ms. Grohotolski take the position that all of the personal property that was Mr. Groh’s was provided to him. This is one of the issues to be resolved in this case and I will return to it below.
[54] In any event, the personal effects were removed from the Halton Motel over the course of 2015 and early 2016. The property itself was sold in early 2016.
[55] Litigation commenced in and around the time of the sale of the Halton Motel property. Mr. Groh’s Statement of Claim includes a request to have someone appointed as the litigation administrator to represent the Estate of Mr. Siegmund Grohotolski.
g) The Various Actions and Procedural History
[56] I am case-managing a series of three proceedings relating to Ms. Grohotolski’s affairs. The first proceeding (an application) is now, as far as I am aware, complete as a result of my decision in Groh v. Grohotolski 2017 ONSC 3625. The Application was for a declaration that the power of attorney that Gabriella Grohotolski had granted to Ms. Steele and Ms. Wolfe was not validly granted, and other relief. As I indicated above, this application was dismissed.
[57] The two other actions are related. Court File No. 16-3453-00 is an action brought against all of the parties involved in the sale of the Yellow Ferrari. It alleges that the Yellow Ferrari was beneficially owned by Mr. Groh, and was improperly converted by the Defendants.
[58] Court File No. CV-16-5654-00 deals with a number of related issues. This action is brought by Mr. Groh against Ms. Grohotolski, Ms. Steele and Ms. Wolfe as well as S.E.G. Management Inc. and S.G. Trucking. This action seeks remedies for the alleged conversion of various items of personal property that Mr. Groh says belonged to him. It also seeks various remedies as a result of Mr. Groh’s claimed ownership interests in, and involvement with, the two corporate defendants, as well as remedies related to Mr. Groh’s claim for an interest in the Halton Motel business, regardless of which (if any) company holds that business. Finally, as noted above, Mr. Groh seeks the appointment of a litigation administrator for the Estate of Siegmund Grohotolski.
h) The Scheduling of the Summary Judgment Motion
[59] A summary judgment motion in the Ferrari action was scheduled for June of 2018. The motion was fully argued on a complete record at that time.
[60] On October 25th, 2018, I released an unreported endorsement in which I advised the parties that the hearing of the summary judgment motion in the Ferrari action was premature because there were issues in common between the Ferrari action and the Halton Motel action.
[61] Those issues in common related to the question of which person or entity was the beneficial owner of the Yellow Ferrari. As I noted in my endorsement, if I found that the Yellow Ferrari was not owned by Mr. Groh, I would then be required to determine who did own the Yellow Ferrari. Answering this question would require me to determine issues relating to the corporate structure of the Halton Motel. In my view, those issues were inextricably linked to questions that I was going to have to determine in the Halton Motel action. As a result, I determined that the summary judgment motion on the Ferrari action was premature.
[62] At the time, a three day summary judgment motion in the Halton Motel action had been scheduled for November 19, 20 and 21, 2018. That motion was cancelled, and November 18th, 2018 was scheduled as a half-day case conference in both matters. I should note that a timetable for the original three-day motion had been established. Mr. Groh did not adhere to that timetable, even before the motion was converted to a half-day case conference.
[63] In the meantime, I had been advised that Mr. Groh’s counsel, Mr. Loucks, was seeking to get off the record. Mr. Loucks did get off the record and Mr. Groh has been self-represented since November 18th, 2018.
[64] At the case conference on November 18th, 2018 I obtained Mr. Groh’s e-mail address, and advised all parties that he could be served by e-mail and by regular mail at his address. I also advised Mr. Groh that my judicial assistant would be communicating with him by e-mail, and that he was to copy all other parties on any correspondence with my judicial assistant.
[65] At the same case conference, I was advised by counsel for Ms. Grohotolski that she was no longer able to be cross-examined because of her advancing age. As a result, counsel sought to bring a motion to have the evidence tendered by Ms. Grohotolski in the power of attorney application used for the summary judgment motion in this matter.
[66] I directed that a further case conference be held by way of teleconference on January 7th, 2019. This conference was postponed by counsel for Ms. Groh, and was rescheduled to January 24th, 2019. Mr. Groh was present for this teleconference when it was held on January 24th, 2019, although he arrived a couple of minutes late. He was aware of the timetable for the motion to admit Ms. Grohotolski’s evidence, and that it would likely be scheduled for April 1st, 2019. It was also confirmed that Mr. Groh could be served with materials by e-mail and by hard copy.
[67] At that teleconference, I set out a timetable to address the motion regarding Ms. Grohotolski’s evidence. It was clear from my endorsement that the timetable was firm. I understood that Mr. Groh was still seeking to retain counsel, but I also made it clear that the new counsel would be required to adhere to the timetable I had set out.
[68] The motion to permit Ms. Grohotolski to admit her materials was heard and granted on April 1st, 2019. Although we waited until 10:25 am, Mr. Groh did not attend the Courtroom, and filed no materials in respect of this motion. I granted the motion, and permitted Ms. Grohotolski to use the materials (including the cross-examinations) from the application on the Power of Attorney on this action as well. I have considered those materials in coming to my decision.
[69] In my endorsement on April 1st, 2019, I outlined a new timetable for the summary judgment materials and stated that “Mr. Groh is NOT entitled to another extension of these deadlines.” This endorsement was sent to him by email. In addition, Ms. Mamay e-mailed Mr. Groh a copy of this endorsement.
[70] The Court has not received any communications from Mr. Groh since April 1st, 2019, and he filed no additional materials on the summary judgment motion. Mr. Groh has been properly served with all of those materials.
Issues
[71] There are nine issues that I must resolve in this case:
a) Should an adjournment be granted in this case so that the Court can contact Mr. Groh and invite him to participate further in this matter?
b) Is this an appropriate case for summary judgment?
c) If so, can I determine what entity or persons owned the Halton Motel business?
d) What remedies, if any, should be provided to Mr. Groh under the Business Corporations Act?
e) Given the answer to the third and fourth questions, should Mr. Groh be entitled to any remedies relating to the list of property that he claims was owned by him and improperly converted?
f) Given the answer to the third and fourth questions, who was the beneficial owner of the Yellow Ferrari?
g) Then, even if the Yellow Ferrari was owned by Mr. Groh, did title to it pass to Silver Arrow and Motion Endeavours?
h) Does Mr. Groh have an interest in the Royal Bank of Canada account?
i) Should a litigation administrator or other personal representative be appointed for the Estate of Siegmund Grohotolski?
[72] I will address each issue in the sections that follow.
Issue #1- Should an Adjournment Be Granted?
[73] At this point, an adjournment should not be granted for the following reasons:
a) The Court, and the other parties, have made significant efforts to advise Mr. Groh of the progress of these proceedings. From the Court’s perspective, those included numerous e-mails to Mr. Groh to canvass dates, as well as couriering all of the Court’s endorsements to Mr. Groh.
b) These proceedings have been pending before the Courts for a number of years.
c) Mr. Groh has provided no indication of any interest in, or willingness to participate in, this proceeding since he last appeared on this matter on January 24th, 2019. While the Court needs to ensure that parties to a proceeding are heard, parties also have a responsibility to ensure that they participate in the proceedings when they are clearly aware of both the timelines in the proceedings, and what is being decided. Mr. Groh was aware of both the timelines and what was being determined in the proceedings, and he has not taken any steps either to participate or to explain why he was not able to participate in the proceeding.
d) The Court’s intention to proceed on June 17th and 18th, 2019 was made clear in a number of endorsements. In my January 24th, 2019 endorsement, I made it clear that any new counsel that Mr. Groh retained would have to adhere to the timetable set out in that decision. In addition, in my April 1, 2019 endorsement, I indicated that Mr. Groh was not entitled to another extension of the timelines for hearing these matters.
e) The June 17th and 18th, 2019 dates were not the first time that this motion had been scheduled. It was previously adjourned in November of 2018.
[74] It could also be argued that, since Mr. Groh was not present in Court, the Court should attempt to contact him and provide him with a further opportunity to make submissions. There are two problems with this argument. First, as described above, significant efforts have already been made to contact Mr. Groh, and they have been fruitless. Second, Mr. Groh already provided a significant amount of material for the summary judgment motion on the Ferrari. That material covers many of the issues that I have to resolve to dispose of the summary judgment motions. As a result, substantial parts of Mr. Groh’s arguments, and the facts that he would rely upon, are already before the Court.
[75] In the circumstances, I have concluded that this matter should not be adjourned so that the Court can make yet further efforts to contact Mr. Groh. I will address the matter on its merits.
Issue #2- Summary Judgment?
[76] When I originally heard the summary judgment motion on the Ferrari case, I raised the question of whether this matter was appropriately disposed of by way of summary judgment. At that time, all counsel took the position that I should be determining the issues in this case on a summary basis. For the reasons that follow, I agree with those submissions. Indeed, as will be seen, I am prepared to dispose of the entire action (except the counterclaims) on the basis of the record before me.
[77] Hryniak v. Mauldin (2014 SCC 7) confirms that, as a matter of access to justice, summary judgment should be granted in cases where it provides a fair and just adjudication. As set out at paragraph 49 of Hryniak:
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.
[78] The way that motions judges are to use these powers has been described in Bruno Appliances and Furniture v. Hryniak (2014 SCC 8) as follows (at para. 22):
Summary judgment may not be granted under Rule 20 where there is a genuine issue requiring a trial. As outlined in the companion Mauldin appeal, the motion judge should ask whether the matter can be resolved in a fair and just manner on a summary judgment motion. 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. If there appears to be a genuine issue requiring a trial, based only on the record before her, the judge should then ask if the need for a trial can be avoided by using the new powers provided under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice.
[79] In this case, I am persuaded that I can make the necessary findings of fact and apply the law to those findings of fact to reach a conclusion. I am also persuaded that this is both the most proportionate and the least expensive manner in which to resolve this case.
[80] In reaching this conclusion, I note four points. First, given Ms. Grohotolski’s medical condition, she is unlikely to be able to testify at a trial in this matter. As a result, the best evidence that we are going to have from Ms. Grohotolski is already in the record. Second, the parties have already been cross-examined in detail over the issues in this case. It is, therefore, more proportional to have this matter determined by way of summary judgment. It is also not clear what other evidence, if any, would be added by conducting a trial. Third, Mr. Groh has stopped participating in this proceeding. It is, therefore, difficult to see how the evidence will get better. Finally, as will be seen, many of the key facts in this case are based in the documentation and are not really in dispute. The arguments in this case focus more on the emphasis to be put on specific facts and the inferences to be drawn from those facts.
Issue #3- Who Owned the Halton Motel Business?
[81] Determining who owned the Halton Motel business will assist in resolving a number of issues in the Halton Motel action. As will be seen, answering that question will also assist in determining who owned the yellow Ferrari. It is, therefore, appropriate to determine this issue first.
[82] There are a number of factors to consider in determining who owned the Halton Motel business, as follows:
a) What information can be gleaned from the corporate records, including what those records show about the ownership of the business?
b) What do the tax returns show?
c) What does the history of the business suggest in terms of the ownership?
d) What does the testimony and affidavit evidence suggest about the terms of ownership of the business?
[83] As will be seen, the first three areas of consideration all favour a finding that the Halton Motel was a joint proprietorship between Gabriella and Siegmund Grohotolski. It is only the testimony and affidavit evidence that contain any conflicts. I will resolve those conflicts when I come to them. I will review each of the factors in the sections that follow.
[84] Once I have reviewed each of these factual issues, I will set out some conclusions about which entity owned the Halton Motel, whether Mr. Groh had an interest in that entity, and whether Mr. Groh can successfully advance a claim for unjust enrichment over the assets of the Halton Motel.
a) What Do the Corporate Records Show?
[85] I have the advantage of more than twenty years of at least some corporate records, tax returns and journal entries. All of these documents, with one exception, show that the Grohotolskis were partners in the Halton Motel, and that Mr. Groh was an employee. I will return to the one exception at the end of my analysis.
[86] S.E.G. Management was incorporated in 1979. Mr. Groh represented to everyone that he was a shareholder in the company. The original corporate records support the conclusion that he, his mother and his father each received ten (10) common shares of the Company. However, no subsequent records for this corporation were provided. In this regard, I disagree with the assertion made by Ms. Grohotolski’s counsel that there was no evidence that Mr. Groh owned any of the shares of S.E.G. Management. However, as will be seen, Mr. Groh’s shareholding (if he had one) is immaterial to the outcome of this motion.
[87] The corporate records show that S.E.G. Management was a shell corporation. Its annual financial statements dating back to 2007 show no income, approximately $300.00 on the balance sheet, and no assets. These annual income tax returns were all shared with Mr. Groh. The evidence from Mr. Galea, the accountant who has worked with the Grohotolski family since 1990, was that this was consistent with his understanding of S.E.G. Management. On Mr. Galea’s evidence, it never had any assets and was just a shell corporation.
[88] The records also disclose that S.E.G. Management had a bank account that the Halton Motel used. However, given the corporate records, I am of the view that any monies that flowed through this account did not belong to S.E.G. Management. Instead, the Halton Motel was simply using this bank account.
[89] Then, there is the fact that two audits of the business were performed. One by Revenue Canada for Employment Insurance purposes, and one by the Ontario Ministry of Finance for compliance with the Retail Sales Tax Act. It is clear from the records that Mr. Groh was involved in these audits. It is also clear that, in both cases, the Halton Motel was operating as a partnership between Gabriella and Siegmund Grohotolski.
[90] Indeed, the letter from the Ontario Ministry of Finance reads in part as follows:
We have just completed the audit of Gabriella Grohotolski & Sigmund Grohotolski Partnership , operating as HALTON MOTEL for the period January 01, 2002 to September 30, 2005. During this audit, certain areas of non-compliance with the Retail Sales Tax Act were noted and brought to your attention. You were not assessed at this time, but for record purposes we feel it desirable to provide you with written confirmation of our findings and expect the necessary corrective action to be taken by you.
[91] Similarly, Ms. Wolfe deposed that, in 1994, the Halton Motel had to make back payments of $1,583.93 on account of Employment Insurance payments, as Mr. Groh was deemed to be an employee (and not exempt from paying E.I. premiums) by Revenue Canada.
[92] The ledger accounts show Mr. Groh as having a draw account. However, Mr. Groh was treated as a salaried employee. The profits and/or losses of the hotel business did not seem to affect his salary at all. In addition, Ms. Wolfe explained in her Affidavit that this “draw” account was used to pay Mr. Groh’s expenses, and he was treated as a salaried employee. It was not a partnership account of any sort.
[93] This brings me to the one exception in the documentary evidence. There was a handwritten set of financial statements prepared for the year ending 1989 that showed the Hotel as being owned only by Mr. Siegmund Grohotolski. These documents were prepared by Paul Babber and Associates, the predecessor accountants.
[94] This document does not assist Mr. Groh’s case for the following reasons:
a) Even if it was accurate, it would not support Mr. Groh’s claim that the Ferrari was his, or that he was a partner in the Halton Motel business.
b) It is only one document and it is in draft. There are no other documents that support that Mr. Grohotolski was the sole owner of the business.
c) A conclusion that Mr. Grohotolski was the sole owner of the Halton Motel is not consistent with the rest of the evidence before me. Mr. Groh claims it was a three-person partnership. Ms. Wolfe says that it was always a partnership between Mr. and Mrs. Grohotolski, although Ms. Wolfe acknowledges that she did not see the Grohotolskis’ tax returns.
[95] The most reasonable conclusion about this document is that it is a draft that does not reflect the underlying reality.
[96] The corporate records all support the conclusion that the hotel business was run as a partnership between Gabriella and Siegmund Grohotolski.
b) What Do the Tax Returns Show?
[97] I start with the tax returns, which go back to 2007. I had the advantage of reviewing the returns for Mr. Groh and his parents for that time. On every tax return, the Grohotolskis are listed as the partners in the Halton Motel, and Mr. Groh is an employee of the Halton Motel, and is provided with a T-4 slip.
[98] Mr. Groh received this T-4 every year, and claimed to be an employee of the Halton Motel rather than a business partner every year. Mr. Groh was also responsible for signing off on the tax returns on a regular basis. On his cross-examination, Mr. Groh acknowledged that he received these T-4’s.
[99] Mr. Groh earned employment income of between $48,000.00 and $62,000.00 between 2007 and 2013. In 2014, he only earned $12,000.00 in employment income from his employment with the hotel. In contrast, the partnership reported a net loss on both Siegmund and Gabriella’s tax returns for every year from 2004 to 2014. I acknowledge that this might have been because of expenses for the business also having a personal component. However, even if that were the case (and I make no finding that it was), the gross profit from the business was only around $100,000.00 to $150,000.00.
[100] In addition, the S.E.G. Management tax return shows nil income and no assets since at least 2007. Mr. Galea deposed that these returns were consistent with how the business had been operating since he became involved with it in 1990.
[101] The tax returns are all consistent with the Halton Motel being a partnership between Mr. and Mrs. Grohotolski, with Mr. Groh being an employee.
c) What does the History of the Business Suggest in Terms of Ownership?
[102] One of the key facts on this question is the date the business was purchased. The Halton Motel was originally purchased in 1965 by the Grohotolskis from a distant relative. The purchase was made when Mr. Groh was 12 years old and living in Austria.
[103] I note that Mr. Groh asserted that his parents bought the Halton Motel on his advice. The problem with this assertion is that Mr. Groh was twelve years old when his parents bought the motel. In his cross examination he stated as follows:
Q. You say they bought the business from Joseph Groh?
A. They did.
Q. In paragraph 15 you say, “When my parents bought the property and the Motel business, the surrounding area was much less developed then it is now.”
You knew that there was a property and there was the Halton Motel business; right?
THE DEPONENT: [Inaudible]
BY MR. STERN:
Q. I’m sorry, sir, I can’t quite hear you. Please keep your voice up and you shouldn’t be consulting with your lawyer about your answer.
MR. LOUCKS: He’s not consulting with me. I’m not sure what he’s saying.
THE DEPONENT: My parents bought the property which is a house and a motel.
BY MR. STERN:
Q. Yeah, they bought it together jointly; right? The two - -
A. Two lots.
Q. the two of them; right?
A. In - - yeah.
Q. Okay.
A. I was 12. Under my advice they bought it. If I wouldn’t have stayed in Canada, this - - we wouldn’t be her right now.
[104] Even when confronted about the fact that he was twelve, Mr. Groh reaffirmed his position that he advised his parents to buy the motel. The dialogue from the cross-examination, which happens very shortly after the first answer is given, is as follows:
Q. So when you were 12, you told them to buy the property?
A. Yeah, they buy me a horse, a quarter horse – that was the deal and they did four years later.
Q. Let me clarify something. The title - -
A. They bought a property outside of Toronto. They were going to buy a bungalow in Don Mills in Scarborough, thinking about it or go back to Austria.
Q. It’s probably a large subdivision today, that property, but anyway, your parents were jointly on title for the Halton Motel property.
A. Yeah.
Q. You knew that?
A. At the age of 12.
Q. But you’re telling me it was your idea when you were 12 years old?
A. Thousand percent.
[105] This evidence is not believable. In my view, the only conclusion that I can reach on the evidence is that Mr. and Mrs. Grohotolski purchased the business without Mr. Groh’s advice. Given that he was twelve years old at the time, there is also no indication that he was given an ownership share in the business at the time.
d) What Does the Affidavit Evidence suggest about Ownership?
[106] Mr. Groh’s Affidavit suggests that the development of the Halton Motel was based on his ideas once he became involved in the business, that he ran the business and that he was a beneficial owner of the business. I reject this evidence as unbelievable, and conclude that it is not necessary to have a trial to assess it. There are three reasons for this conclusion.
[107] First, there are twenty years of income tax records, as well as records involving interactions with other governments, that show that the parties, including Mr. Groh, treated him as an employee of the Halton Motel, and his parents as the business partners. To accept Mr. Groh’s evidence at this point would require me to conclude that the Grohtolskis, Mr. Groh, Mr. Galea and Ms. Wolfe had misled Revenue Canada for more than twenty years.
[108] This conclusion would be even more incredible when it is remembered that the businesses were audited by both Revenue Canada and the Ontario Ministry of Finance. To accept Mr. Groh’s evidence would not only require me to conclude that everyone was misleading Revenue Canada, but that they did so through an audit.
[109] Second, there is the income amounts that each person earned. As an employee, it is probable that Mr. Groh earned more money from the business than he would have been entitled to as a partner.
[110] Finally, there was Mr. Groh’s approach to the giving of his evidence. He was argumentative and unreasonable in a number of occasions. I have set out his evidence to how the purchase of the hotel was his idea, even though he was only twelve at paragraphs 103 and 104. I have also discussed other problems with Mr. Groh’s evidence in my discussion of the Yellow Ferrari issue, below, at paragraphs 161-163.
[111] When all of these facts are considered, Mr. Groh’s self-serving claims that he was a partner in the Halton Motel business are not supported by the facts, and should not be given any weight.
e) Conclusions on Ownership and Unjust Enrichment
[112] Based on the analysis I have set out above, I have concluded that Mr. Groh did not have an interest in any partnership that ran the Halton Motel. He was an employee of the Motel, and his parents were the partners. There are two issues that remain to be dealt with, however.
[113] First, whether the Halton Motel business was owned by S.E.G. Management. It is clear from the documentation that this company was originally set up to manage the Halton Motel. However, the documentation filed shows the following:
a) S.E.G. Management did not have any assets, and I saw no balance sheets that would indicate that it ever owned any assets.
b) The S.E.G. Management bank account was used to flow money from the Halton Motel through it, but it never had a balance of its own.
c) S.E.G. management had no income, and reported a null tax return every year for which I have records.
d) All of the income and losses for the Halton Motel were reported on Mr. and Mrs. Grohotolski’s income tax returns as if the business were a partnership, rather than a company.
[114] Based on these facts, it is clear that S.E.G did not have any ownership interest in the Halton Motel. The Halton Motel was a partnership between Siegmund and Gabriella Grohotolski.
[115] This brings me to Mr. Groh’s claim of unjust enrichment. In order to establish unjust enrichment, three elements must be shown:
a) An enrichment;
b) A corresponding deprivation; and
c) An absence of a juristic reason for the enrichment and deprivation
[116] I am of the view that none of these criteria are met in this case. I start with the enrichment. While it is true that the Halton Motel partnership benefitted from Mr. Groh’s work, he was amply compensated for that work. He earned at least $48,000.00 from 2007 to 2013 on account of his work for the business. The partnership as a whole lost money in each of those years on a net basis.
[117] Given that Mr. Groh made more money than each of the partners in the business, it is difficult to see how the business was unjustly enriched as a result of his efforts. Instead, it is clear that he was paid for his efforts. In addition, it must be remembered that Mr. Groh lived rent free at the bungalow on the Halton Motel property from 1972 to the end of 2015, and was not required to pay any of the expenses associated with the bungalow. I see no evidence of an enrichment in this case.
[118] This brings me to the question of deprivation. In his materials, Mr. Groh alleges that he was deprived of an opportunity to attend the Art Institue of Pittsburgh.
[119] In my view, this does not amount to a deprivation within the legal sense of what is required to establish unjust enrichment. Mr. Groh may have passed up an opportunity to attend this school, but there is no indication that this opportunity would have resulted in any success. In addition, he was compensated for the work that he did do for the Halton Motel.
[120] This brings me to the final factor, the “juristic reason”. In this case, the juristic reason for any enrichment that might exist goes back to the fact that it was Siegmund and Gabriella Grohotolski who purchased the Halton Motel. As a result, if there was a profit to be earned from the Motel, or from the eventual sale of the land, it was theirs to keep.
[121] Having determined that none of the criteria for an unjust enrichment can be met in this case, this claim is also dismissed.
[122] Overall, Mr. Groh does not have any interest in the assets of the Halton Motel partnership, and he has no claim against anyone for either a share of those assets or for any improprieties in how those assets were disposed of.
Issue #4- The Ontario Business Corporations Act (“OBCA”) Remedy
[123] Mr. Groh seeks remedies under section 248 of the OBCA. Specifically, he is seeking to have various transfers of property set aside, the return of assets to the Corporate Defendants and a purchase of his shares or other compensation. None of these claims can succeed.
[124] First, the parties are all agreed that Mr. Groh did not have a shareholding in S.G. Trucking. He was only an officer and a director. This brings me to the question of whether Mr. Groh actually owns shares in S.E.G. Management. I note that his Statement of Claim only asserts that he was an officer and director of this company (see paragraph 8). As a result, on that assertion, Mr. Groh would not be entitled to an ownership interest in S.E.G. Management.
[125] However, in his materials, he has claimed a shareholding in the company. The Corporate records I have discussed at paragraph 16 seem to support this assertion. For the purposes of this analysis, I will assume that Mr. Groh was a shareholder in S.E.G. management.
[126] There are three reasons why the claim of oppression cannot succeed. First, and most importantly, I have already established that there were no assets owned by S.E.G. Management. Therefore, it is impossible to see how there would be any remedy under section 248 of the OBCA in any event. Similarly, the remedies available for S.G. Trucking also appear to be limited because that company also does not have much, if anything, in the way of assets.
[127] Second, after Mr. Grohotolski passed away in December of 2014, it is clear that Ms. Grohotolski inherited all of his shares in the business. As a result, these shareholdings were all owned by Ms. Grohotolski and it was open to her to determine what happen with the assets of the companies. She had all of the shares of S.G. Trucking and the majority of the shares of S.E.G. Management. It is up to Mr. Groh to show some sort of oppressive conduct in the manner in which the assets were managed.
[128] This brings me to the third point, which is simply that there is no oppressive conduct on the facts before me. Ms. Grohotolski was in her late seventies at the time that these applications were commenced. She is now in her early eighties. It is not unreasonable for her to decide to wind up her business affairs, and retire. It is also clear from the evidence that Ms. Grohotolski has significant medical problems, such as a bad back and that he was suffering from depression, although he did not seek medical treatment. Therefore, the winding up and disposition of these assets is not “oppressive”.
[129] As a result, the request for a remedy under the OBCA is dismissed.
Issue #5- The Personal Property
[130] Mr. Groh has attached to his Statement of Claim a list of property that he claims was his, and that was improperly converted when the Halton Motel business was wound up and the Halton Motel was sold. Ms. Grohotolski, Ms. Steele and Ms. Wolfe all allege that the property on the list was either returned to Mr. Groh before the commencement of proceedings, or was not his to begin with.
[131] For the reasons that follow, I reject Mr. Groh’s claims respecting personal property.
[132] First, I have already outlined significant issues with Mr. Groh’s credibility as a witness, and will outline further concerns in the next section at paragraphs 147, 148, and 161-163. These credibility problems make it more difficult to accept Mr. Groh’s evidence that personal effects were improperly converted by any of the other parties.
[133] Second, I do not have any evidence, other than Mr. Groh’s assertion, that he can prove the ownership of any of the items he is claiming. I have not received any receipts, any transaction records or anything else of this nature. It is a basic principle of our law that “he who asserts must prove”. In this case, Mr. Groh has not tendered any proof, other than his own testimony, to support either the ownership of these items or the value of them.
[134] Third, the preponderance of the evidence I do have favours the version of events offered by Ms. Grohotolski and her powers of attorney. Specifically, the powers of attorney were directed to conduct a systematic review of Ms. Grohotolski’s property, ready the Halton Motel site for sale and otherwise wind Ms. Grohotolski’s business affairs up.
[135] It makes sense that they would do so by removing the items that belonged to Ms. Grohotolski and arranging for the ones that belonged to Mr. Groh to be shipped to his new residence. It is also clear that Mr. Groh was uncooperative with the efforts to wind up Ms. Grohotolski’s affairs during this time period. As a result, it is not unreasonable to conclude that Ms. Steele and Ms. Wolfe had properly disposed of the assets.
[136] Fourth, Ms. Wolfe and Ms. Steele took significant efforts to return Mr. Groh’s personal property to him, and those efforts were described in the materials before me. Those steps included attending at the Halton Motel, where Mr. Groh was still living, and reviewing each item with him.
[137] However, one of the steps that they took was particularly striking. In 2016, during the Application over the Powers of Attorney, the property was returned to Mr. Loucks at Ms. Grohotolski’s cross-examination. Mr. Loucks refused to sign for the material, but instead put an “X” next to each item that had been returned. This evidence, which is uncontradicted by either Mr. Loucks or Mr. Groh, supports the version of events offered by Ms. Grohotolski, Ms. Steele and Ms. Wolfe.
[138] For these reasons, Mr. Groh’s claim for improper conversion of personal property is dismissed.
Issue #6- Who Owned the Yellow Ferrari?
[139] Mr. Groh argues that the Yellow Ferrari was always his car, and that everyone should have been aware that it was always his car. In the alternative, he argues that the car was owned by the Halton Motel, and that he has a beneficial interest in the car, along with the other assets. As can be seen above, the alternative argument has failed. This section will address the principal argument.
[140] The Defendants all adopt similar arguments. In essence, they argue that the Ferrari was not beneficially owned by Mr. Groh, and that title properly passed when the Ferrari was sold in 2015.
[141] In my view, the Yellow Ferrari was beneficially owned by the Halton Motel, even though the ownership was in Mr. Groh’s name. As set out above, I have also concluded that the Halton Motel was a partnership owned by Siegmund and Gabriella Grohotolski, and that Mr. Groh had no interest in that partnership.
[142] In order to explain the reasons for my ultimate conclusions, I will set out my conclusions on a number of different issues relating to the purchase, expensing and sale of the Yellow Ferrari. Each of these issues has been the subject of evidence and argument both at the original motion and in the materials filed for the larger motion. I have considered all the materials and arguments, including the arguments originally made by Mr. Loucks, in reaching my decision.
a) The Name of the Car’s Purchaser
[143] The original bill of sale states that the car was purchased by the Halton Motel O/B Groh, Ernest. Mr. Groh explained that O/B meant operated by. As a result, the initial purchaser of the car appears to be the Halton Motel.
[144] Mr. Groh testified that it was on his instructions to the vendor that the original bill of sale was in the name of the Halton Motel. Mr. Groh testified that could not remember, thirty-six years later, why this had been done.
[145] It is clear, however, that the car was purchased in the name of the Halton Motel. Had Mr. Groh been the purchaser of the car, the documentation would have indicated that.
b) The Sources of Funds for the Purchase of the Car
[146] One of the key issues is where did the money come from for the purchase of the Yellow Ferrari. There is no documentary evidence before me as to who paid for the Yellow Ferrari. On his cross-examination, it was suggested to Mr. Groh that the Halton Motel paid for the Yellow Ferrari, and that this is why the ownership was in the Halton Motel’s name.
[147] Mr. Groh rejected this position, and provided a number of other possible sources for the funds. His evidence on cross-examination was as follows:
Q. You probably did that because the purchase money came from the Halton Motel; is that right?
A. I don’t know. Maybe it came from the Corvette that I sold.
Q. Sir, are you serious?
A. Yeah, I’m serious.
Q. You know that sold the Corvette later after the purchase; correct?
A. Little bit later, I guess, yeah.
Q. That tells us that the money --
A. It could be a loan, it could have been collateral, I don’t remember.
Q. The Corvette was sold for about $12,000; right?
A. Right.
Q. The Ferrari cost close to $47,000; right? Correct, sir?
A. Correct.
Q. So you’re just throwing it out there, making it up about the Corvette. It could not possibly have paid for the Ferrari under any dimension, could it?
A. Could have been a loan. Do you know?
Q. A loan against the Corvette?
A. No, it could have been a loan to buy the Ferrari. I don’t remember. Let’s see the bank statements. The bookkeeper should know that. She’s your client.
[148] There is no documentation to show where the money to purchase the car came from. This is not surprising, as the transaction took place thirty-six years ago. As a result, I am left with the evidence before me.
[149] First, Mr. Groh agreed that it was on his instructions that the purchase documentation for the Yellow Ferrari showed the Halton Motel as the purchaser. This is a clear indication that the money may have come from the Halton Motel. Second, as discussed in the next section, the Halton Motel paid the expenses for the Yellow Ferrari. The payment of the expenses by the Halton Motel suggests that it was the Halton Motel’s asset.
[150] Finally, there is Mr. Groh’s employment situation. At the time of the purchase of the Ferrari, Mr. Groh was under age 30. Other than working in the Halton Motel, Mr. Groh had only been employed working part-time at the gas station across the street from the Motel, in helping a gentleman named John Stilling with a new type of sign that he had invented for a short period of time and at Trend Pools in the shop and dong sales. This work would not have produced significant income for Mr. Groh, and he did not claim it as a significant source of income.
[151] The bill of sale for the Ferrari from 1981 is difficult to read. It appears to have cost $41,500.00 when it was purchased in 1982. It is unlikely that Mr. Groh had the money to purchase the Yellow Ferrari on his own. Certainly, on cross-examination, Mr. Groh provided no reasonable source of income or funds from which he could have purchased this car. As a result, it is reasonable to infer that the Yellow Ferrari was purchased by the Halton Motel with money that the Grohotolskis had generated from their business.
c) The Expensing of the Car
[152] The carrying costs of the Yellow Ferrari included insurance and storage. These costs were recorded as a business expense for the Halton Motel and deducted from the taxable income for the Grohotolskis. None of the expenses were paid by Mr. Groh.
[153] Although we do not have records going back to the early 1980’s, Ms. Wolfe was the Halton Motel’s bookkeeper starting in about 1983. As a result, she could confirm that the expenses relating to the Yellow Ferrari were charged to the Hotel’s accounts. There is nothing in Mr. Groh’s evidence to dispute this fact.
[154] These facts suggest that the Yellow Ferrari was an asset of the Halton Motel, and was treated by everyone as such.
d) The Change in Title in 2009
[155] In 2009, Mr. Groh changed the vehicle registration with the Ministry of Transportation so that the Yellow Ferrari was solely in his name.
[156] From 2009 to 2015, the expenses for the Yellow Ferrari continued to be paid by the Halton Motel and, for income tax purposes, the asset continued to be treated as if it was owned by the Halton Motel by Mr. Galea, by Ms. Wolfe, by the Grohotolskis and by Mr. Groh.
[157] Mr. Groh claims that he only signed the tax returns for himself, his parents and their businesses, but did not review them. As a result, Mr. Groh claims that he was not really aware of whether the expenses for the Yellow Ferrari were being claimed by the business. This evidence is inconsistent for a number of reasons:
a) It is inconsistent with the fact that Mr. Groh attended at the Ministry of Finance Audit, and was thanked by the Ministry for assisting them. That letter (portions of which are reproduced at paragraph 90 above) makes it clear that Mr. Groh was involved in the business.
b) Mr. Groh’s own evidence, given elsewhere, makes it clear that he was involved in doing “everything” for the business.
c) The evidence of the other individuals involved, particularly Mr. Galea, makes it clear that Mr. Groh was briefed on the business affairs and seemed to understand them.
[158] If I were to accept that the Yellow Ferrari was actually beneficially owned by Mr. Groh personally, I would have to accept that he (and everyone else involved in the tax filings) misled Revenue Canada for an extended time period. I am not prepared to reach that conclusion, particularly when everyone else who provided evidence stated that the Yellow Ferrari was an asset of the Halton Motel.
e) The Sale of the Car in 2015
[159] There are a number of factual issues between the parties over the sale of the car in 2015. It is not necessary to resolve all of those issues. However, four of these issues are clearly relevant to my determination as to whether Mr. Groh owned the car or not, and whether it was properly transferred to Silver Arrow and Motion Endeavours even if Mr. Groh owned it. I will address those issues, which are:
a) Whether Mr. Bramhill’s appraisal of the Yellow Ferrari was reasonable.
b) Whether Mr. Groh was aware of events in 2015.
c) Whether Mr. Groh knowingly signed over the ownership of the Yellow Ferrari in August of 2015.
d) The significance of the use of the signature stamp to complete the transaction.
[160] The first issue is whether Mr. Bramhill’s appraisal of the Yellow Ferrari was reasonable. Mr. Bramhill appraised the Yellow Ferrari at $250,000.00 CDN. He did this in the absence of any evidence that the Yellow Ferrari was a limited edition “Chairs and Flares” model. Mr. Groh challenges both the appraisal, and the sale price. Mr. Groh states that the appraisal was a “joke”, and that the sale price was significantly reduced because Ms. Wolfe and Ms. Steele wanted to get the car sold as quickly as possible, because they knew that they did not have the authority to sell the car. I reject both arguments.
[161] I start with the appraisal. While I did not have an Affidavit from Mr. Bramhall, I did have his appraisal. The appraisal, on its own, would not have been sufficient for me to conclude that the appraisal was reasonable. However, I also have Mr. Groh’s evidence. During the course of his cross-examination, he stated as follows:
Q. You’ll see on the last page of the Statement of Claim, appears to bear the date August 3rd, 2016, and in paragraph 16 you talk about the value of the Ferrari. The comment in paragraph 16 – I’ll give you a moment to look at that.
A. Yeah.
Q. And did you estimate that the value of the Ferrari at the time was $1,250,000?
A. Minimum.
Q. Your belief was that the $250,000 appraisal as you’ve said was just all wrong.
A. Correct. There was no reason to appraise the car, again. The car’s not to be sold.
Q. In your view, only a liar would say it was worth $250,000; is that right?
A. Thief.
Q. Pardon?
A. A thief.
Q. A thief, okay. Have a look at another affidavit of yours, sir.
A. What are we looking at?
Q. This is from Superior Court, Brampton, Court File --
A. Yeah, that’s fine.
Q. – FS-03-9415, financial statement support claims, affidavit of August 11th, 2016. You’ll see at the bottom of the first page that this is your affidavit, sir, Ernest Groh.
A. Okay.
Q. You’ll see at page 6 of the document, it appears to have been sworn on August 11th, 2016?
A. Yeah.
Q. That is your signature, isn’t it --
A. Sure.
Q. -- on page 6?
A. Yes.
Q. You appeared before a commissioner of oaths; right?
A. Yes.
Q. And you swore or affirmed the document to be true; correct?
A. Correct.
Q. There’s a section in the affidavit headed “Assets” in part 3. As you go to the second page of that, at page 5 of the affidavit you’ll see “Other Assets” as the last box?
A. Okay.
Q. You listed as other assets, two Ferrari automobiles; right?
A. Correct.
Q. The first one was the 1973 Ferrari Dino; correct?
A. Correct.
Q. The very car we’ve been talking about –
A. Correct.
Q. -- the yellow Dino. You put down its value was $250,000.
A. Yeah.
Q. Correct?
A. It was appraised at that.
Q. You put down the value as being exactly the same appraisal that Mr. Bramhall came up with.
A. Yeah, I told you that.
Q. The difference between being that he did it by way of evaluation which we have in the file which --
A. Doesn’t mean I agree with it.
[162] This passage clearly discloses that, in this proceeding, Mr. Groh is claiming that the Ferrari had a value of $1,200,000.00 CDN. However, in his family law proceeding, Mr. Groh swore an Affidavit less than two weeks after his Statement of Claim in this action was served. In his Family Law Affidavit, Mr. Groh stated that the value of the Yellow Ferrari for the purposes of the family law action was $250,000.00. This evidence is internally inconsistent, and Mr. Groh offered no reasonable explanation for the inconsistencies.
[163] Indeed, on my review of the evidence, the only apparent explanation is that the different values are self-serving. A lower value in the family law proceeding would make Mr. Groh’s Net Family Property lower and any equalization payment owing to Ms. Steele lower. A higher value for the Yellow Ferrari in the action before me would give Mr. Groh a larger claim against all of these parties. In these circumstances, I cannot rely on Mr. Groh’s evidence about the value of the Yellow Ferrari.
[164] As a result, the only evidence of any value before me about the value of the Yellow Ferrari comes from Mr. Bramhill’s report. In my view, the value of the car he has set out is reasonable, especially given that there was no reliable information at the time of the appraisal that it was a “Chairs and Flares” edition. Indeed, in his cross-examination, Mr. Groh admits that he did not have any provenance documentation acknowledging that the Yellow Ferrari was a Chairs and Flares edition.
[165] In light of my findings on the value of the car, the significance of Ms. Steele and Ms. Wolfe selling it quickly diminishes. However, even if Ms. Steele and Ms. Wolfe wanted it sold quickly, I am not persuaded that any negative inference can be drawn from that fact. It is clear from all of the materials that were filed on the motion that Ms. Grohotolski wanted to have her affairs in order promptly. Ms. Steele and Ms. Wolfe were simply carrying out their instructions.
[166] This brings me to the second and third issues in this section, which can be considered together. Mr. Groh stated in his Affidavit that he was not aware of what he was signing when he signed the ownership of the Yellow Ferrari in August of 2015. In support of this position, Mr. Groh stated as follows in his Affidavit:
Having looked at some of the documents produced by the Steele Defendants it appears that they were asking me to sign a variety of documents during the spring and summer of 2015. Copies of documents dated during that time that appear to have my signature on them are annexed as Exhibit “G” to this affidavit. I do not recall signing those specific documents.
I do recall being asked by Wolfe to sign documents. I understood that she was doing bookkeeping work related to the motel business and the closing of it. She was also looking after filing tax returns for me and my parents. In the past I signed most documents that Wolfe asked me to sign without paying much attention. I have no idea whether I signed the documents that make up Exhibit “G” and the ownership registration at her request. I do not recall Steele asking me to sign any documents during this time.
It is clear from the affidavits sworn by the Steele Defendants that they did not dare to ask me to sign the bill of sale for the 1973 Dino. For that signature they used a rubber signature stamp. I had that signature stamp made for use by me.
[167] The problem with this statement is that Mr. Groh testified as follows on his cross-examination:
Q. Okay. Now, as 2015 progressed, you were physically exhausted you say; right?
A. Right.
Q. You often slept in your clothes in the basement?
A. As usual.
Q. You did not look after your health; right?
A. Right.
Q. You agree that your poor mental and physical condition was obvious to anyone who saw you; right?
A. No, I don’t agree. Certain times.
Q. You do not remember clearly much of what happened between the start of 2015 and November 2015 when you moved out of the bungalow; right?
A. No, I do.
Q. You do what?
A. I do remember.
Q. Oh. You remember clearly, do you, Mr. Groh?
A. Yes.
Q. So it would be lie to say that you do not remember clearly much of what happened?
A. Right.
Q. So let’s take a look at your affidavit sworn six weeks ago.
A. Okay.
Q. And go to page 17, paragraph 75. In paragraph 75 it says, “It appears from the affidavits sworn by Steele, Wolfe and Galea, that my poor mental and physical condition at this time was obvious to anyone who saw me. I do not remember clearly much of what happened between the beginning of 2015 and November 2015 when I moved out of the bungalow.”
A. All right, yeah, but I do remember some.
Q. So --
A. Clearly remember what? What is the question?
Q. Sir, you just said to me that anyone who said that, that it would be a lie. Now you see it’s your own statement.
A. No, no, no, no, no. I’m saying to you, much is -- what is much? Like, what you trying to say? I don’t remember what?
Q. “I do not remember clearly much of what
[168] The evidence given on cross-examination is internally inconsistent. It also contradicts the evidence that Mr. Groh gave in paragraph 75 of his Affidavit. I cannot put any weight on this evidence.
[169] Instead, I note that there is no dispute that this was Mr. Groh’s signature on the Ownership, and on the application for vehicle transfer. I also note that Mr. Groh has bought and sold a number of cars over his lifetime, so would have been familiar with the paperwork required to transfer a vehicle.
[170] The only other argument that Mr. Groh advances on this point is that Ms. Steele and Ms. Wolfe took advantage of his medical condition in this time period. All of the witnesses agree that Mr. Groh had become reclusive during the period after his father’s death. Mr. Groh states that he was suffering from chronic back pain that left him feeling weak and nauseous during this time period. On the basis of these events, Mr. Groh’s counsel states that “it is a reasonable inference that [Mr.] Groh was seriously depressed after the death of his father…” Mr. Groh also argues that he signed the document under duress.
[171] I disagree. There is no medical evidence that Mr. Groh was suffering from depression. Further, there is no medical evidence before me that he was incapable of understanding the effect of his actions. In the absence of any independent corroboration that Mr. Groh was unable to appreciate what he was signing this argument cannot be sustained.
[172] In addition, duress is a high legal standard to meet. As noted in Waddams on Contracts (at paras 509-515), it is a type of unconscionability. The term economic duress has been considered by our Court of Appeal in Stott v. Meri Investment Corp. ((1988) 1988 CanLII 192 (ON CA), 48 D.L.R. (4th) 288). In that decision, Finlayson J.A. stated (at page 305):
The term "economic duress" as used in recent cases, particularly in England, is no more than a recognition that in our modern life the individual is subject to societal pressures which can be every bit as effective, if improperly used, as those flowing from threats of physical abuse. It is an expansion in kind but not class of practices that the law already recognizes as unacceptable such as those resulting from undue influence or from persons in authority. But not all pressure, economic or otherwise, is recognized as constituting duress. It must be a pressure which the law does not regard as legitimate and it must be applied to such a degree as to amount to "a coercion of the will", to use an expression found in English authorities, or it must place the party to whom the pressure is directed in a position where he has no "realistic alternative" but to submit to it, to adopt the suggestion of Professor Waddams (S.M. Waddams, The Law of Contract, 2nd ed. (1984), at p. 376 et seq.). Duress has the effect of vitiating consent and an agreement obtained thorugh duress is voidable at the instance of the party subjected to the duress unless by another agreement or through conduct, either express or implied, he affirms the impugned contract at a time when he is no longer the victim of the duress.
[173] Finally, there is the way that Mr. Groh came to the conclusion that he had signed the document under duress. Both his discovery and his cross-examination transcripts suggest that Mr. Groh came to his understanding of duress by listening to Mr. Elliott (counsel for Ms. Grohotolski) on a broadcast. I am of the view that Mr. Groh adopted this position as a convenient way of avoiding responsibility for his decision to sign the ownership documentation.
[174] As a result, I conclude that Mr. Groh was aware of events in 2015, and was aware that he signed over the ownership of the Yellow Ferrari to a third party. He was not under duress when he signed this ownership over to a third party.
[175] This brings me to the use of the signature stamp to complete the paperwork for the sale. Although Mr. Groh signed the ownership as seller, he did not sign the bill of sale. Instead, the bill of sale was completed using a signature stamp that Mr. Groh had had made.
[176] Mr. Groh stated that he had this stamp made for his own personal use, and that Ms. Wolfe and Ms. Steele should not have been using it for the car transfer documentation.
[177] Ms. Wolfe and Ms. Steele both stated that they had been instructed by Gabriella Grohotolski that they could use the signature stamp with Mr. Groh’s signature on it for Halton Motel business as the stamp had been created for Halton Motel business.
[178] In these circumstances, the use of the signature stamp was justified, as this was a transaction for the Halton Motel.
f) Missing Evidence
[179] In terms of the conclusions I have reached, I must address the absence of many of the accounting records from the 1980’s.
[180] As I have noted, much of Mr. Groh’s evidence is, in itself, not believable and internally inconsistent. I have set out a number of examples of my concerns with Mr. Groh’s evidence on this motion above.
[181] As a result, Mr. Groh’s evidence on who owns the business, and on the assets associated with the business is unreliable and I reject it. I am able to come to the necessary conclusions based on the contemporaneous documents that were provided in evidence.
[182] This brings me to the absence of the accounting records. Mr. Groh argues that these records are in the possession of the Attorneys for Property, and it was their obligation to produce those records. The Attorneys argue that these records do not exist as they were destroyed by Mr. Groh on a routine basis and/or were damaged in a flood at the property.
[183] Either way, the records are not going to be available to the Court. As a result, I am left to make a decision on what I do have. In this case, the records all point to the same conclusion, which is the car was an asset of the Halton Motel, a partnership between Siegmund and Gabriella.
g) Conclusions on Ownership
[184] In the end, I am of the view that the Halton Motel owned the Yellow Ferrari and that the Halton Motel was a partnership between Gabriella and Siegmund Grohotolski. Mr. Groh did not beneficially own the Yellow Ferrari at any point from 1982 to the present.
Issue #7- Even if Mr. Groh Owned the Yellow Ferrari, Did Title Pass to Silver Arrow and Motion Endeavours?
[185] It is not, strictly speaking, necessary to answer this question as I have determined that Mr. Groh did not own the car. However, for completeness I will answer this question. First, I will consider the law. Then, I will consider the relevant facts.
a) The Law
[186] Section 22 of the Sale of Goods Act R.S.O.1990 c.S-1 states as follows:
Subject to this Act, where goods are sold by a person who is not the owner thereof and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by conduct precluded from denying the seller’s authority to sell but nothing in this Act affects,
(a) the Factors Act or any enactment enabling the apparent owner of goods to dispose of them as if he, she or it were the true owner thereof; or
(b) the validity of any contract of sale under any special common law or statutory power of sale or under the order of a court of competent jurisdiction. R.S.O. 1990, c. S.1, s. 22.
[187] Motion Endeavors, Mr. Quocksister and Silver Arrow are claiming that Mr. Groh is precluded, by his conduct, from denying the authority of Ms. Steele and Ms. Wolfe to sell the car. This is a factual question, but a review of a couple of cases will help illustrate the standard that is applicable.
[188] In support of his position that the exception does not apply, counsel for Mr. Groh referred me to a number of cases, including McManus v. Eastern Ford Sales Ltd. ((1981) 1981 CanLII 2861 (ON SC), 128 D.L.R. (3d) 246 (Ont. Cty.Ct.)) Gosselin v. Ron Clark Motors Ltd. ([2001] O.J. No. 1370 (S.C.J.)) and Canaplan Leasing Inc. v. Dominion of Canada General Insurance Company ((1990) 1990 CanLII 1059 (BC SC), 69 D.L.R. (4th) 531).
[189] The most instructive passage comes from the Canaplan decision where Lander J. stated (at paragraph 29):
Mr. Baroni is precluded by his conduct from denying the seller's authority to sell. Although Mr. Vandriel exceeded his authority, he was given the indicia of authority to sell, with the intent that the vehicle be sold. This is sufficient conduct to raise the exception to the nemo dat rule. Mr. Baroni may also be an innocent party, but between the different innocent parties, he is the one who enabled Mr. Vandriel to carry out this transaction, and therefore should suffer any loss there may be.
[190] With this legal background in mind, I now turn to the facts in this particular case.
b) The Facts
[191] When the law is considered, four key facts emerge. All of these facts support the conclusion that the exception set out in section 22 of the Sale of Goods Act applies in this case.
[192] First, Mr. Groh signed the agreement to transfer the car. As I set out at paragraph insert above, I reject Mr. Groh’s claim that he was unable to understand the signing of the transfer documentation. In my view, he was well aware of what he was signing, and was well aware of its significance. In other words, he assisted in the transfer of this car. His signing of the ownership documents was not “mere carelessness”, but a clear indication that he was well aware as to who the real owner of the car was.
[193] Second, the documentation that Silver Arrow and Motion Endeavours received appeared to be complete. It included the signed ownership, as well as a signed bill of sale.
[194] Third, Silver Arrow and Motion Endeavours took steps to follow up and confirm that Mr. Groh was still alive and able to enter into this transaction. They obtained a copy of his passport as well as other documentation to substantiate his existence.
[195] The fact that Silver Arrow and Motion Endeavours took these steps to ascertain Mr. Groh’s ability to enter into this transaction meant that they were alive to the issue of who owned the car and whether Ms. Steele and Ms. Wolfe had the authority to sell it. These Defendants did not just think that the car was being sold by the estate of Siegmund Grohotolski. They made more detailed inquiries.
[196] Finally, the cheque for the value of the Yellow Ferrari was payable to Ernest Groh, and deposited to a bank account in his name. As a result, the third party purchasers should not be liable for any finding that Ms. Steele and/or Ms. Wolfe improperly sold an asset that allegedly belonged to Mr. Wolfe. Motion Endeavours and Silver Arrow really are bona fide purchasers for value without notice.
[197] As a result, even if I had dismissed the summary judgment motions brought by the other Defendants in the two actions, I would have granted the summary judgment motion brought by Motion Endeavours and Silver Arrow.
Issue #8- Does Mr. Groh Have an Interest in the RBC Account?
[198] No.
[199] Some history about this account is necessary to understand the answer to this question. On the evidence before me, it is not precisely clear when this bank account was opened. However, I also have evidence that Mr. and Mrs. Grohotolski have had this bank account since at least September of 1990.
[200] The interest from this account was included in the income of Mr. and Mrs. Grohotolski and, as far as I can determine, not included in the income of Mr. Groh at any point.
[201] Mr. Groh had a power of attorney for his parents’ affairs. This power of attorney had come into effect back in 1990, and was in effect on April 26th, 2013 when Mr. Groh was added to the account by way of unwitnessed RBC forms signed by his parents.
[202] On the evidence I have, the only money that Mr. Groh deposited into the bank account was his tax refund for the 2014 taxation year in the sum of $3,087.05. This amount was immediately transferred to the Halton Motel nominee account (the S.E.G. Management account) as Mr. Groh had a debt to the Halton Motel, and this money was credited against that debt. The accounting records support this conclusion.
[203] The question is whether Mr. and Mrs. Grohotolski intended to gift a third of this account to Mr. Groh when they added him to the account back in 2013. The law on this point is described in Pecore v. Pecore (2007 SCC 17), where Rothstein J. stated (at paragraph 36):
I am inclined to agree. First, given that a principal justification for the presumption of advancement is parental obligation to support their dependent children, it seems to me that the presumption should not apply in respect of independent adult children. As Heeney J. noted in McLear, at para. 36, parental support obligations under provincial and federal statutes normally end when the child is no longer considered by law to be a minor: see e.g. Family Law Act, s. 31. Indeed, not only do child support obligations end when a child is no longer dependent, but often the reverse is true: an obligation may be imposed on independent adult children to support their parents in accordance with need and ability to pay: see e.g. Family Law Act, s. 32. Second, I agree with Heeney J. that it is common nowadays for ageing parents to transfer their assets into joint accounts with their adult children in order to have that child assist them in managing their financial affairs. There should therefore be a rebuttable presumption that the adult child is holding the property in trust for the ageing parent to facilitate the free and efficient management of that parent’s affairs.
[204] In other words, the presumption of advancement does not apply to Mr. Groh unless there is something more to demonstrate that his parents intended to make a gift to him of one third of the assets in the account. No further evidence was adduced on this point. As a result, Mr. Groh’s claim for this interest fails.
Issue #9- Should a Litigation Administrator be Appointed for the Estate of Siegmund Grohotolski?
[205] An administrator should not be appointed at this stage because there is no indication that Siegmund Grohotolski had a will or that he had assets that were not jointly held with Gabriella Grohotolski. It is arguable that the jointly held assets passed to Ms. Grohotolski at the time of Mr. Grohotolski’s passing.
[206] I have determined that no administrator should be appointed in this action and at this stage. However, I do not have a complete record before me. Specifically, it is not clear whether Siegmund Grohotolski had a will when he passed away or, more importantly, whether Mr. Grohotolski had any additional assets that I am not aware of.
[207] However, based on the information I do have, there is no basis at this time to appoint an administrator. If a party (or other non-party) has other additional information, they may commence a separate, proper Estate application.
[208] In order to ensure that there is no duplication in proceedings or any attempts to re-litigate matters that I have already decided, I am also ordering that any estate application relating to the Estate of Siegmund Grohotolski is to proceed before me.
Conclusion and Costs
[209] For the foregoing reasons, the motion for summary judgment is granted. I have determined that the Ferrari was beneficially owned by the Halton Motel Partnership, and I have further determined that Mr. Ernest Groh did not have an interest in that partnership.
[210] I have not determined any of the issues in relation to the counterclaim brought by Silver Arrow and Tim Quocksister. Those issues (both liability and damages) remain to be determined, either through a summary judgment motion or through a trial. I remain, however, the case management judge assigned to those matters.
[211] The counterclaiming parties are to advise me within forty-five (45) days by e-mailing my judicial assistant with a copy to Mr. Groh whether they are proceeding with their counterclaim. If I do not receive any indication that the counterclaiming parties are advancing their counterclaim in that time period, it will be dismissed without costs.
[212] This brings me to the subject of costs in this case. I note that Mr. Loucks is now off the record, although my office has provided him with a courtesy copy of this decision. As a result, I have also served Mr. Groh with a copy of this decision both by e-mail and by courier to the last address we have on file.
[213] In addition, given that Mr. Groh is now self-represented and some of the parties may take a different view of costs depending on whether or not there is an appeal of this decision, I will provide additional time for the preparation, service and filing of costs submissions.
[214] All parties, including Mr. Groh if he wishes, will serve and file his submissions within forty-five (45) days of the release of these reasons. Those submissions are to be no more than four (4) single-spaced pages, exclusive of offers to settle, bills of cost and case law.
[215] All parties may file reply submissions within fifteen (15) days after receiving the submissions outlined in the previous paragraph. Those submissions are to be no more than two (2) single-spaced pages, exclusive of case law.
LEMAY J
Released: October 8, 2019