Court File and Parties

Court File No.: CV-18-610813 Date: 2021-02-19 Superior Court of Justice - Ontario

Re: Katherine Lena Divitaris by her Litigation Guardian Triada Divitaris And: Harold Gerstel a.k.a. Harold the Jewellery Buyer a.k.a Harold the Mortgage Closer, Esther Gerstel, and Esther Gerstel Inc.

Before: J.E. Ferguson J.

Counsel: P. James Zibarras and Nafisah Chowdhury, for the Plaintiff Melvyn Solmon, for the Defendants

Heard: January 29, 2021 and February 8, 2021

Endorsement

[1] There was a problem when the statement of claim was issued. Through inadvertence no litigation guardian affidavit was filed as required by Rule 7. That issue was remedied in eight days. The defendants have seized upon this error as an attempt to short circuit this litigation. They challenge Rule 7 and want to take steps to ascertain whether Katherine Divitaris (“Katharine”) has capacity including conducting examinations under rule 7 with the hope of moving towards a summary judgment motion.

[2] Katherine as I understand, is a mentally ill woman. The allegations include that Harold Gerstel (“Harold”) befriended her, complimented her and earned her trust. Further it is alleged that he convinced her to sell him her property for $425,00.00. Three months later Harold sold the property for $1,012.000.00.

[3] Katherine’s mother commenced this action on behalf of her daughter. The defendants move under 7.06(2) – where it appears to the court that a litigation guardian is not acting in the best interests of the party under disability the court may substitute.

[4] First of all there is absolutely no evidence before the court that the litigation guardian is not acting in the best interests of her daughter.

[5] More importantly, this court will not further the improper behaviour of the defendants who are attempting to circumvent the court process. Harold proposes to examine the mother, the lawyer to the real estate transaction as part of his Rule 7 motion.

[6] It “appears” that Harold has manipulated Katherine. For me to allow this motion would bring the administration of justice into disrepute. This litigation needs to take the normal course. To use the words of counsel for the plaintiff, “this motion is a tactical manoeuvre to disrupt the litigation” and to allow the defendants’ motion would be to “double down on the manipulation”.

[7] The motion is dismissed. I can be provided with cost submissions. Please let my assistant know the timetable. I will deal with the costs of this motion at the same time as the costs of the motion to have the file case managed.

J.E. Ferguson J. Date: February 19, 2021