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

[1] This 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

[2] This motion is brought pursuant to r. 7 for approval of a proposed settlement that affects the Party Under Disability.

Issues

[3] In 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?

[4] The Party Under Disability had purchased property with his late wife (the “Property”)

[5] The Plaintiff took up residence at the Property in 2014. The Party Under Disability attempted to evict him in 2020 and 2022 unsuccessfully.

[6] On May 12, 2022, the Plaintiff commenced this proceeding.

[7] The 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.

[8] On 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.

[9] Prior 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.

[10] The Plaintiff did provide vacant possession of the Property.

[11] The 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.

[12] Counsel also provided an affidavit in support.

[13] I agree that this is a fair and reasonable settlement in the best interests of the Party Under Disability.

[14] Issue 3: Have the requirements of r. 7.08 been complied with?

[15] All requirements of r. 7.08 have been complied with.

Conclusion

[16] Judgment to go in the form as signed by me today.

Justice Papageorgiou

Date: February 23, 2024