Court File and Parties
COURT FILE NO.: CV-22-00681067 DATE: 2024-02-23
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ALEXANDER JOHN OPALINSKI, Plaintiff AND: CONSTANTINE DALAMAGAS, YVONNE OPALINSKI and ALEXANDER OPALINSKI, Defendants
BEFORE: Justice Papageorgiou
COUNSEL: Joanne Hwang and Hannah Goranson, for the Plaintiff Keith Juriansz, for the Defendants
READ: February 23, 2024
ENDORSEMENT
Overview
1This is a motion for approval of a settlement involving Alexander Opalinski, who is a party under disability as a result of cognitive impairment (the “Party Under Disability”). His litigation guardian of the defendant Alexander Opalinski is his son-in law, Constantine Dalamagas. Mr. Dalamagas is also his Attorney for Property and for Personal Care. Pursuant to rr. 7.03(1) and 7.03(2.1), he was appointed without Court Order.
Nature of the Motion
2This motion is brought pursuant to r. 7 for approval of a proposed settlement that affects the Party Under Disability.
Issues
3In order to decide this matter, I must determine the following issues:
Is the settlement fair and reasonable?
Have the criteria set out in r. 7.08 been complied with?
Analysis
Issue 1: Is the settlement fair and reasonable?
4The Party Under Disability had purchased property with his late wife (the “Property”)
5The Plaintiff took up residence at the Property in 2014. The Party Under Disability attempted to evict him in 2020 and 2022 unsuccessfully.
6On May 12, 2022, the Plaintiff commenced this proceeding.
7The Plaintiff sought a declaration that he held the Property by way of constructive trust, that all defendants had been unjustly enriched and that he could not be evicted.
8On March 14, 2023, the Plaintiff in this action was sued as a defendant in Bracebridge where the party is. The Plaintiffs in that proceeding brought a motion for summary judgment.
9Prior to it being argued, the Plaintiff in this action agreed to provide vacant possession of the Property and that he would abandon his counterclaim. Additionally, the Plaintiff agreed to a dismissal of this action, without costs.
10The Plaintiff did provide vacant possession of the Property.
11The Litigation Guardian provided an affidavit that said that given the litigation risks, it was in the best interests of the Party Under Disability that this action be dismissed without costs. If it proceeded in the ordinary course, there would be risk as well as legal costs. It is also unlikely that any costs award could ever be enforced against the Plaintiff.
12Counsel also provided an affidavit in support.
13I agree that this is a fair and reasonable settlement in the best interests of the Party Under Disability.
14Issue 3: Have the requirements of r. 7.08 been complied with?
15All requirements of r. 7.08 have been complied with.
Conclusion
16Judgment to go in the form as signed by me today.
Justice Papageorgiou
Date: February 23, 2024