Court File and Parties

COURT FILE NO.: 05-258/19 DATE OF HANDWRITTEN ENDORSEMENT: 20191126 DATE OF RELEASE: 20200120 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: THE BANK OF NOVA SCOTIA TRUST COMPANY in its capacity as the Succeeding Estate Trustee of Johann (Jay) Rubin, Applicant

AND:

JOSEPH PERNICA, in his capacity as the Litigation Guardian for Ida Rubin, ANNIE MAYER, FAIGY ESTHER HAMMER, MORRIS ERIC RUBIN, SARAH WERNER, and JUDY S. MOCK ESQ. in her capacity as Temporary Personal Needs and Property Guardian of Ida Rubin, Respondents

BEFORE: Conway J.

COUNSEL: D. Lobl, for the Applicant S. D’Souza and J. Firestone, for the Respondent, Joseph Pernica, in his capacity as the Litigation Guardian for Ida Rubin A. Bloom and A. Bettencourt, for the Respondent, Annie Mayer J. de Vries and J. Kaufman, for the Respondent, Morris Eric Rubin H. Juroviesky, for the Respondent, Sarah Werner M. Valentini (having taken no position), for the Respondent, Faigy Esther Hammer

HEARD: November 26, 2019

ENDORSEMENT (Transcription of Handwritten Endorsement Delivered in Court)[^1]

[1] This is an Application for enforcement of the July 10, 2019 order of Justice Knipel of the Supreme Court of the State of New York. The July 10 order appoints Ms. Mock as the Temporary Guardian (TG) of Ida Rubin, with broad powers to investigate her whereabouts and return her to New York. There is a long history to this very acrimonious dispute between the 4 siblings, the children of Ida, all of whom purport to be acting in their mother's best interest. Suffice it to say that Justice Knipel found that it was in Ida's best interest and for her personal safety that a TG be appointed forthwith. Since July, Ms. Mock has been attempting to obtain the funds ordered by Justice Knipel in the July 10 order from Scotiabank, who is the trustee of the $100 million spousal trust for Ida and who was ordered by Justice Knipel to pay funds for Ida's well-being and authorized by him to pay up to $250,000 (confirmed to be $250,000 by September 24th order) for the TG to investigate Ida's whereabouts. To date, Scotia has been unable to give effect to this order because Morris and Sarah challenge recognition of the July 10 order in this court – hence, Scotia's application. Justice Knipel has sent a letter to me requesting assistance. I have disregarded that letter as my decision of whether or not to recognize the order is governed by the terms of the order and the principles of Ontario law on recognition of foreign orders.

[2] I say at the outset that while the order is broad, most of its effect takes place outside of this jurisdiction and I am focusing only on the portions to be performed in Ontario – namely, the payment of money by Scotia (18, 19 and last para on p. 6) and the ability for Ms. Mock to access Ida's medical and confidential records in Ontario.

[3] I also say that the record is replete with irrelevant evidence as to the merits of the July 10 order, the chances of it being overturned on appeal and what Ida's living circumstances in Israel are at the present time.

[4] The test for recognizing a foreign judgment is clear, see Pro-Swing v. Elta Golf Inc., 2006 SCC 52: Did the New York Court have jurisdiction to make the order? In this case, the answer is yes. Ida was in New York when Annie started the guardianship application. Lawyers represented to Judge Knipel that they were representing Ida in those proceedings. The New York court had traditional presence-based jurisdiction. Further given that Ida had been living in New York with Sarah for some time there is no issue that a real and substantial connection existed.

[5] The next issue is whether the order is a final one. The concept of final does not mean the order must be the final step in the proceeding: (ProSwing, at para 94). The issue is whether the order cannot be varied or abrogated, regardless of whether under appeal: Continental Casualty Company v. Symons, 2015 ONSC 6394, at para 36, citing the Four Embarcadero Venture v. Kalen, 1988 CanLII 4828 (ON SC), 1988 CarswellOnt 412 (HCJ) case. While Sarah and Morris argue that the July 10 order is not final as it is an evolving situation, I disagree, for the following reasons:

(1) The expert evidence of John Brickman, which I prefer to that of retired Judge Ritholtz as it is more straightforward, contains no advocacy and does not opine on the merits of an appeal, is that the July 10 order cannot be abrogated or varied.

(2) The order made a conclusive determination as at July 10 that Ida needed to have a TG appointed.

(3) The order is clear and direct that Scotia is to make the payments to the TG (and Annie for Ida's benefit). There is no supervision required by this court to implement that order.

(4) The fact that Ida's guardianship requirements may change is inherent in any guardianship order – that may have to be changed as events unfold.

[6] I have no difficulty concluding that the order requiring Scotia to pay the TG is clear, final and easily administered by this court.

[7] Finally, there is no merit to the defences to recognition here. There is nothing to substantiate fraud, denial of natural justice in the New York proceeding or public policy.

[8] I am therefore recognizing the July 10 order to the extent that it relates to Scotia's funding of Ms. Mock for $250,000 US and the funding of Annie's counsel of $100,000 US, in accordance with the terms of the order.

[9] With respect to the provisions of the order granting Ms. Mock the right to seek medical and confidential information of Ida, I am not persuaded at this time that those should be recognized, given the privacy interests at stake for Ida, without prejudice to anyone seeking recognition of those provisions on a more complete record that addresses these issues – see ProSwing, at paras 62 and 60.

[10] If the parties are unable to agree on costs (although I encourage them to do so) they can attend before me by no later than Jan 15, 2020, for 1 hour, on a date to be arranged by Mr. Lobl through the Commercial List office. They shall attend with their bills of cost at the hearing and shall NOT file anything in advance.

[11] Mr. Lobl shall provide a copy of this Endorsement to Mr. Juroviesky today as he had to leave court for religious reasons just before I delivered my Reasons.

Conway J.

Date of Handwritten Endorsement: November 26, 2019

Date of Release: January 20, 2020

[^1]: The only changes made from the handwritten endorsement are minor, non-substantive corrections – for example, “NY” has been changed to “New York”; “July 10/19” has been changed to “July 10, 2019”; and “&” has been changed to “and”. I have also added the full case citation for the Four Embarcadero case.