Sharon Ann Heldmann v. Paul Parlee et al., 2021 ONSC 4904

COURT FILE NO.: 339/21

DATE: 20210712

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Sharon Ann Heldmann, Plaintiff

AND

Paul Parlee, Parlee Law Offices Professional Corporation, Jovenil Raepple, Estate Trustee of the Estate of Lloyd Addison William Heldmann, Defendants

BEFORE: Justice S. Nicholson

COUNSEL: O. Sabo for the Plaintiff, Sharon Ann Heldmann M. Cook for the Defendant, Jovenil Raepple, Estate Trustee of the Estate of Lloyd Addison William Heldmann E. Kadwell for the Defendants, Paul Parlee and Parlee Law Offices Professional Corporation

HEARD: June 28, 2021

DECISION ON MOTION

NICHOLSON J.:

[1] The defendant, Jovenil Raepple, Estate Trustee of the Estate of Lloyd Addison William Heldmann, brings this motion to dismiss the action as against the Estate, to strike out certain paragraphs in the statement of claim and to enjoin the plaintiff from commencing further court proceedings against it. The Estate relies upon rules 21.01 (3)(c), 21.01 (3)(d), 25.11(b) and 25.11(c) of the Rules of Civil Procedure.

[2] The defendants, Paul Parlee and Parlee Law Offices Professional Corporation, take no position on the motion.

Background:

[3] The plaintiff, Sharon Ann Heldmann and the deceased, Lloyd Addison William Heldmann were married for 53 years, operating a farming business together. Mrs. Heldmann developed health problems, necessitating that Mr. Heldmann required assistance around the farm, as well as personally. This assistance was provided by a neighbour, Ms. Jovenil Raepple.

[4] Mr. and Mrs. Heldmann had retained solicitor Paul Parlee to draft “mirror” wills for them in February of 2001. In Mr. Heldmann’s 2001 Will, Mrs. Heldmann was named as the sole Estate Trustee and beneficiary of his estate. On February 15, 2019, unbeknownst to Mrs. Heldmann, Mr. Heldmann created a new Will, prepared by Mr. Parlee. The new Will named Jovenil Raepple as his executor, estate trustee and a beneficiary of his estate. On the same date, Mr. Heldmann also severed the joint title in the farm property owned jointly with Mrs. Heldmann, creating a tenancy in common. Mr. Heldmann died on February 20, 2019, five days later.

[5] Ms. Raepple filed the original of the new Will with an Application for a Certificate of Appointment as Estate Trustee with a Will on May 3, 2019. The plaintiff filed a Notice of Objection to a Certificate of Appointment.

[6] The plaintiff then commenced a Notice of Application for Directions on May 9, 2019 whereby she contested the validity of the new Will. In that proceeding, she seeks to set aside the new Will and the transaction where the joint tenancy was severed. She alleges that Mr. Heldmann lacked testamentary capacity, that he was subject to undue influence and that the circumstances surrounding the making of his new Will were suspicious. That application also sought the appointment of an estate trustee during litigation to represent the estate pending the resolution of the dispute. Mrs. Heldmann is represented in that proceeding by the law firm of Harrison Pensa.

[7] Separately, Mrs. Heldmann also commenced an application under the Family Law Act, R.S.O. 1990, c. F. 3, as amended, seeking an extension of time in which to file an election under that Act, also through Harrison Pensa.

[8] On August 2, 2019, Mrs. Heldmann’s Application for Directions was heard by Justice Campbell in Woodstock. The parties agreed to a consent order directing the trial of issues and to the appointment of an estate trustee pending litigation. The trial of issues is pending in Woodstock and will determine such issues as the testamentary capacity of Mr. Heldmann at the time the new Will was executed and undue influence.

[9] On February 26, 2020, Mrs. Heldmann, by her solicitors Harrison Pensa, issued an Application for the sale of the farm property under the Partitions Act, R.S.O. 1990, c. P. 4. Ms. Raepple opposed the sale and brought a motion for further directions in the Estate Dispute Application. On consent, the parties agreed to an order of Justice Donohue dated October 1, 2020 by which the property was listed for sale. The order also provided for the distribution of the proceeds from the sale.

[10] Justice Donohue’s October 1, 2020 order also set out a timetable for the completion of examinations for discovery in anticipation of the trial of issues. Those discoveries have not been completed as there was a dispute between counsel as to the timing of Mrs. Heldmann’s discovery. I am not being asked to resolve that dispute for the purpose of the within motion although the history of the dispute is set out at length in each party’s material.

[11] The statement of claim in this proceeding was issued on February 19, 2021. Mrs. Heldmann is being represented by the law firm of Ledroit Sabo in this action. The claim seeks damages for negligence, breach of contract and/or breach of fiduciary duty as against Mr. Parlee and his law firm. The remaining relief sought includes a declaration that the new Will is null and void, that Jovenil Raepple be removed as executor for the Estate, an order that Ms. Raepple account for any money received or taken from the Estate and punitive and aggravated damages. Importantly, Ms. Raepple is not sued in her personal capacity.

[12] With the exception of the claim for punitive and aggravated damages, the balance of the claims as against Ms. Raepple as Estate Trustee are similar to the issues to be determined by trial in the Estate Dispute Application.

Position of the Parties:

[13] The Estate argues that the claims made against it in the statement of claim are almost identical to the claims against it in the Application challenging the validity of the new Will and that allowing this action to continue against it is an abuse of process.

[14] The Estate relies upon Maynes v. Allen-Vanguard Technologies Inc., 2011 ONCA 125, 274 O.A.C. 229 (Ont.C.A.). In that case, the Court of Appeal upheld a motion judge’s decision striking a statement of claim that repeated substantially the same allegations against the same defendants, as well as new defendants, as in two other ongoing actions. It was held that the doctrine of abuse of process seeks to promote judicial economy and to prevent a multiplicity of proceedings.

[15] The Estate also relies upon Re Lang Michener and Fabian, 1987 CanLII 172 (ONSC), in which Henry J. struck pleadings on the basis that they constituted an abuse of process and that the proceedings were vexatious. He also declared Mr. Fabian a vexatious litigant, prohibiting him from commencing further actions without leave.

[16] The plaintiff, Mrs. Heldmann, argues that the Rules of Civil Procedure, the Family Law Act and the Partitions Act compelled her to bring the three prior proceedings separately. The relief sought in each of those proceedings was different. In her submission, the within proceeding is also required to be brought separately as it seeks relief against the solicitor that was not available in the prior proceedings. The plaintiff then intends to move for an order that the trial of this action be held together at the same time as the trial of issues directed by Justice Campbell, or immediately thereafter. In the plaintiff’s submission, this would prevent inconsistent findings from being made.

[17] The plaintiff relies upon the decision of Goodman J. in Dueck v. Chaplin, [2015] O. J. No. 3795, 2015 ONSC 4604 (Ont.Sup.Ct.). In Dueck, a widow similarly sought to invalidate a second Will made by her deceased husband in favour of his prior Will. Procedurally, a trial was ordered to determine the validity of the Will. The trial would determine issues such as the testator’s knowledge, testamentary capacity and whether there was undue influence by his new partner.

[18] The Dueck case was predominantly about who was required to propound the Will in question. However, Goodman J. did agree that the trial of an issue regarding allegations of the applicant’s breach of fiduciary or other duties and negligence ought not to be “piggy-backed” onto the application for directions. In Justice Goodman’s view those claims required the commencement of a separate proceeding and originating process.

[19] Accordingly, counsel for Mrs. Heldmann argues that the manner in which Mrs. Heldmann has constituted these four proceedings is not only proper but required.

Analysis:

[20] The Rules of Civil Procedure must be interpreted and enforced in a manner that provides for the least expensive and most expeditious hearing of disputes on their merits.

[21] In my view, it is easiest to look at the nature of the dispute as a whole rather than as four separate proceedings. What is the plaintiff trying to accomplish and against whom? The answer is that Mrs. Heldmann is challenging the validity of the new Will and depending upon the outcome of that issue, she may be required to make an election under the Family Law Act, and she may be able to assert a claim against Mr. Parlee for his role in the drafting of the new Will given their prior solicitor-client relationship. The Family Law Act proceedings and the claim as against Mr. Parlee are accordingly contingent on the result of the trial of issues ordered by Justice Campbell.

[22] Justice Campbell’s order dated August 2, 2019 defines the issues to be tried in relation to the new Will.

[23] Notably, Mr. Parlee and his law firm are not parties to that Application. Accordingly, any liability vis-à-vis Mr. Parlee will have to be determined in a separate proceeding in which he and his law firm are parties.

[24] Pursuant to Justice Campbell’s order the issues include:

(a) Whether Mr. Heldmann duly executed the new Will;

(b) Whether Mr. Heldmann had testamentary capacity at the date of execution of the new Will;

(c) Whether Mr. Heldmann had knowledge of and approved the contents of the new Will;

(d) Whether the new Will was procured by undue influence;

(e) Whether Mr. Heldmann had the requisite capacity to transfer his interest in the farm property, severing the joint tenancy with Mrs. Heldmann;

(f) Whether the transfer of Mr. Heldmann’s interest in the property was procured by undue influence; and

(g) Whether Ms. Raepple owed a fiduciary duty to Mr. Heldmann as a caregiver and breached that duty in her own self-interest by influencing him to execute the new Will and transfer the property to himself.

[25] The statement of claim specifically names Mr. Parlee and his law firm as defendants and seeks relief as against them in the form of damages. Ms. Raepple, as Estate Trustee, does not take the position that this is inappropriate. Neither does Mr. Parlee, although he obviously disputes the allegations against him.

[26] The impugned parts of the statement of claim deal with the relief sought “as against all defendants”. Specifically, the plaintiff seeks:

(a) a Declaration that the new Will is null and void by reason of undue influence, coercion and/or lack of testamentary capacity;

(b) an Order removing Jovenil Raepple as executor of the Estate and replacing her with the Plaintiff or an independent third party;

(c) an Order requiring Jovenil Raepple to account for any money received or taken from the Estate;

(d) an Order that the defendants repay any amounts found to have been improperly received by them to the Estate or pay damages for unjust enrichment in the amount of $1,000,000;

(e) a Declaration that the Last Will and Testament of the deceased issue in terms of the provisions of the 2001 Will;

(f) Punitive and/or Aggravated damages in the amount of $1,000,000.

[27] The body of the statement of claim particularizes the background relationship between Ms. Raepple and the deceased, as well as sets out causes of action as against Mr. Parlee and the Parlee law firm. Notably, the claim does not make a claim against Ms. Raepple in her personal capacity. Additionally, on a careful reading, the statement of claim does not make allegations as against Ms. Raepple as Estate Trustee that would lead to the damages sought in paragraphs 1(d), (e) and (g) above. The only possible exception is paragraph 35 in which it is pleaded that the defendants acted in an egregious and high-handed manner worthy of aggravated and/or punitive damages.

[28] I agree with the plaintiff that this statement of claim is not vexatious, as defined in Re Lang Michener and Fabian, supra. That case is clearly distinguishable. In that case, Fabian commenced serial litigation, and several appeals, against the defense lawyers and medical experts, essentially in retaliation for every poor outcome obtained by him in previous proceedings. That is far from the case at hand. In my opinion, Mrs. Heldmann is clearly legitimately trying to advance a valid dispute over the making of her deceased husband’s new Will in the face of what she considers suspicious circumstances.

[29] I agree that the plaintiff was compelled to commence separate proceedings in relation to preserving her election under the Family Law Act and for the sale of the farm property under the Partitions Act. I also agree that in order to seek a remedy against Mr. Parlee and Parlee Law, the within action is necessary as this was not encompassed by the trial of issues ordered by Justice Campbell.

[30] The Maynes case does not simply stand for the proposition that there is an abuse of process every time there are duplicative claims asserted in separate proceedings. In Maynes, the second claim was held to have been commenced to effectively circumvent the express procedural requirement that leave of the court was to be obtained to add a non-consenting party to the proceedings following the close of pleadings. This resulted in what the court felt was an unfair shifting of legal onus onto the defendants to strike the claim when the plaintiff ought to bear the burden of convincing the court that leave should be granted to amend their pleadings in the original action.

[31] In my view, in order to invoke the doctrine of abuse of process there has to be an improper use of judicial proceedings brought for purposes other than the assertion of a litigant’s legitimate rights. That element is lacking in this case.

[32] However, there can be no doubt that the validity of the new Will, the testamentary capacity of the deceased and whether there was undue influence, for example, should only be determined by a court of competent jurisdiction once. Justice Campbell has provided the mechanism to make those determinations and to the extent that this action also seeks those findings, the action as against Ms. Raepple as Estate Trustee constitutes a multiplicity of proceedings that the court must avoid.

[33] I do not take Dueck as standing for the proposition that the subsequent action should result in the possibility of relitigating the issues raised in the trial of an issue. The breach of fiduciary duty and negligence action contemplated in that case would not have involved a re-litigation of the validity of the Will.

[34] Had the plaintiff brought a cross motion for an order that this action be tried with the application on the return of this motion, I could have streamlined an order and ensured that there was no risk of inconsistent findings. She did not do so.

[35] The Ontario Court of Appeal addressed rule 21.01 (3) (c) in Birdseye Security Inc. v. Milosevic, 2020 ONCA 355 at paras. 14-18, as follows:

[14] A defendant may move for an order staying or dismissing an action (in this case a counterclaim) under r.21.01(3)(c) where “another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter”. Having concluded that the duplicative counterclaim justified a stay, the motion judge ought to have stayed, and not “struck” the counterclaim. No issue was made of this, and nothing turns on it for the purpose of the appeal. Rather, the issue is whether there was a reversible error in the application of r. 21.01 (3)(c) to bring to an end the counterclaim in Action 4669.

[15] The determination of whether a stay of proceedings should be granted because another proceeding is pending between the same parties involves an exercise of discretion, taking into consideration the circumstances of the particular case. The moving party must demonstrate that the continuation of the action would cause it substantial prejudice or injustice (beyond inconvenience and expense) because it would be oppressive or vexatious or would otherwise be an abuse of the process of the court, and that the stay would not cause an injustice to the responding party: Farris v. Staubach Ontario Inc. (2004), 2004 CanLII 11325 (ON SC), 32 C.C. E.L. (3d) 265 (Ont. S.C.), at para. 15. Factors relevant to prejudice include: the likelihood and effect of the two matters proceeding in tandem, the possibility and effect of different results, the potential for double recovery, and the effect of possible delay: Farris, at para. 16.

[16] The fact that another proceeding is pending between the same parties in respect of the same subject matter does not automatically lead to an order dismissing or staying the claim. Rather, the order is discretionary and the judge hearing the motion must be satisfied that the stay or dismissal is warranted in the particular circumstances of the case. While a multiplicity of proceedings may constitute an abuse of process which warrants an order staying or dismissing a proceeding (see e.g., Maynes v. Allen-Vanguard Technologies Inc. (Med-Eng Systems Inc.), 2011 ONCA 125, 274 O.A.C. 229, at paras. 36, 46), that is not necessarily always the case. All of the circumstances must be considered to determine whether, in the interests of justice, a stay or dismissal should be granted. (emphasis in original)

[17] In this case, the motion judge stayed the counterclaim “to avoid an unjust multiplicity of proceedings”. He concluded that the duplicative litigation would “on the facts of this case” constitute an abuse of process, and he rejected Mr. Milosevic’s claim of prejudice on the basis that he would be able to pursue his counterclaim in Action 1527 regardless of whether Birdseye discontinued the main action in that proceeding.

[18] An order dismissing or staying a proceeding under r. 21.01(3)(c) is a discretionary order that is subject to deference on appeal, absent an error in principle: 1420041 Ontario Inc. v. 1 King West Inc., 2010 ONSC 6671, 1 R.P.R. (5th) 33 (Div.Ct.), at para. 24, rev’d on other grounds 2012 ONCA 249, 349 D.L.R. (4th) 97, leave to appeal refused, [2012] S.C.C.A. No. 272; Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391, at para. 87. In this case, the motion judge did not explain why permitting Mr. Milosevic to assert his counterclaim in both actions would constitute an abuse of process. He appears to have assumed that the existence of an almost identical pleading in both actions would ipso facto constitute an abuse of process. His failure to consider the context of the litigation was an error in principle that warrants this court’s intervention.

[36] Although, I agree with the position of the moving party that the relief sought in paragraphs 1 (b) through (g), as against the Estate, either were, or ought to have been, brought in the prior proceeding, I do not accept that the proper remedy in the context of this litigation as a whole is to strike all or any part of the claim, or to stay the claim. I do not find that the commencement of this action in light of the trial of issues constitutes an abuse of process. I believe that the duplicative nature of this action with the outstanding application can be remedied in a less intrusive manner.

[37] While there is clearly some sense in trying this action together, or immediately after the trial of issues, that motion was not before me. I decline to simply grant such an order in the absence of a formal motion and submissions if the parties cannot agree to do so. There may be valid reasons to decline to make that order, such as the trial of issues being delayed.

[38] However, if the claim against the Parlee defendants is tried together with the trial of issues, the plaintiff would be placed in position to have all of the issues regarding her husband’s Will, and the circumstances surrounding its making, determined by a court without any risk of inconsistent findings. Furthermore, if the order to try the proceedings together is obtained with dispatch, there will be no additional costs to any of the parties of parallel proceedings.

[39] From the above, it is clear that I do not accept the moving party’s characterization of Ms. Heldmann as a vexatious litigant. In my view she is trying to raise facially genuine concerns surrounding the execution of her husband’s new Will. Procedurally, I simply believe that the statement of claim is drafted too broadly by including the claims against Ms. Raepple, as Estate Trustee.

[40] Accordingly, I decline to declare that Mrs. Heldmann is a vexatious litigant that requires leave of the court to commence further proceedings in relation to this matter.

[41] The plaintiff is required to move forthwith for an order trying this action together with the trial of an issue, or immediately thereafter. The within motion is dismissed without prejudice to being renewed in the event that the order trying the action and the trial of an issue together or one after the other is not granted.

[42] If the parties are unable to resolve the issue of costs, I shall receive submissions in writing from the plaintiff by August 6, 2021 and by the Estate by August 16, 2021. Those submissions should be no longer than two pages, double spaced. In assisting the parties in resolving the issue of costs, I should note that I consider this motion to be a technical procedural matter that has little bearing on the ultimate merits of whether Mrs. Heldmann has a legitimate concern relating to her late husband’s Will.

[43] In that regard, I invite the parties to review the recent decision of Edwards RSJ. in McIntosh v. Jason Boccinfuso, 2021 ONSC 2360. His words are apt and I agree wholeheartedly with them. In my view, procedural motions that do not advance the determination of the ultimate dispute between parties should be discouraged, even if technically correct. At the end of this motion, has the landscape of this litigation as a whole really changed?

[44] Other than dealing with the costs of the motion, I am not seized of this matter.

Justice Spencer Nicholson

Date: July 12, 2021