COURT FILE NO.: CV- 23-93030-ES DATE: 2024/04/17

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: NATACHA ALEXANDRA MARIE-ANNE KRAMSKI (Applicant)

AND

BERNARD KRAMSKI IN HIS PERSONAL CAPACITY and BERNARD KRAMSKI IN HIS CAPACITY AS THE ESTATE TRUSTEE OF THE ESTATE OF FRANK KRAMSKI (Respondents)

BEFORE: Madam Justice S. Corthorn

COUNSEL: Anna Katyk, for the applicant No one appearing for the respondent, Bernard Kramski, personally and in his capacity as an estate trustee

HEARD: April 11, 2024 (By videoconference)

AMENDED ENDORSEMENT

The text of the original Endorsement of April 17, 2024 was amended on April 23, 2024 and a description of the amendment is appended.

Introduction

[1] The applicant is the granddaughter of the Late Frank Kramski (“the Deceased), the estranged daughter of the respondent, and a beneficiary under the Last Will and Testament of the Deceased (“the Will”). The respondent is the estate trustee of the Deceased’s estate (“the Estate”).

[2] In the fall of 2023, the applicant brought a motion in writing, without notice to the respondent, for an order requiring the respondent to provide an accounting for the Estate. Pursuant to the order of Justice R. Smith, dated October 31, 2023 (“the Order”), the respondent was required to,

• “provide an accounting for the period starting on the date of death of Frank Kramski and to the date of the Order, within 30 days of being served with [the] Order”; and
• “file accounts of the estate in accordance with Rules 74.17 and 74.18 of the Rules of Civil Procedure, in the court office within 30 days after being served with [the] Order.”

[3] The Order permitted the applicant to serve a copy of the Order on the respondent by email at the following email address: soulfulmemories@shaw.ca. The Order provides that service is effective when the email is sent.

[4] On the motion now before the court, the applicant submits that the respondent is in contempt of the Order. The applicant seeks relief to address the respondent’s contempt.

Service of Documents

[5] Based on the affidavits of service filed, I make the following findings regarding service of documents on the respondent:

• On November 7, 2023, the respondent was served by email with a copy of the Order;
• On February 5, 2024, the respondent was personally served with the notice of application and with the notice of motion for the motion now before the court; and
• On March 28, 2024, the respondent was served by email with a copy of the motion record and the applicant’s factum.

[6] With regard to service of the motion record and the applicant’s factum, the affidavit of service filed complies with the requirements of r. 16.06.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for service of documents by email.

[7] In 2024, and prior to serving the motion record, the applicant’s counsel sent two emails to the respondent. The first email was sent on January 10, 2024. In that email, the applicant’s counsel highlighted to the respondent that he had failed to comply with the terms of the Order. In addition, the applicant’s counsel set out her client’s position: that if the respondent did not comply with the Order by January 12, 2024, the applicant would bring a motion for a declaration that the respondent is in contempt of the Order and additional, related relief.

[8] On January 10, 2024, the respondent replied by email. In his email, the respondent reviewed his personal and/or business financial circumstances. He did not, however, address his lack of compliance with the Order.

[9] On January 25, 2024, the applicant’s counsel sent a second email to the respondent. In that email, the applicant’s counsel inquired of the respondent as to his availability for the return of the contempt motion on a date prior to the end of April 2024. The respondent replied by email on January 29, 2024. He informed the applicant’s counsel that he would be available in April 2024 for the return of the motion.

[10] Pursuant to r. 37.10(1), the applicant was required to serve the motion record on the respondent at least seven days prior to the return date for the motion. The motion record was served on the respondent on March 28, 2024 – more than seven days prior to the return date.

[11] The respondent did not serve responding materials and did not attend on the return of the motion.

The Respondent is in Contempt of the Order

[12] It has been more than five months since the respondent was served with the Order. There is no evidence of any step taken by the respondent to comply with the Order. I find that the respondent has, for more than four months, been in contempt of the Order and that he remains in contempt of the Order.

[13] The applicant requests a declaration that the respondent is in contempt of court by virtue of his failure to comply with the Order. A term to that effect is included in the order made at the conclusion of this endorsement.

The Sanction Imposed

[14] The applicant asks the court to order the respondent to purge his continuing contempt of the Order within 60 days of the date of being served with a copy of the order made on this motion.

[15] The applicant asks the court to require the respondent to “file accounts of the [E]state and an application to pass accounts, in accordance with [rr.] 74.17 and 74.18 of the Rules of Civil Procedure” within that 60-day period. In making that request, the applicant is mindful that the court does not routinely impose a punitive sanction on the first occasion that a litigant is found to be in contempt of court.

[16] While the court is mindful of that approach to contempt proceedings, the order made must make clear to the respondent that his continuing failure to comply with the Order, without any explanation whatsoever, is not acceptable. The respondent’s conduct is particularly egregious, given that the respondent’s failure to comply with the Order is in the context of the respondent’s obligations as the estate trustee in the administration of the Estate.

[17] General deterrence is one of the principles to be considered by the court when determining the sanction imposed. Contempt orders are intended to send a message to the community – in this case, the community of estate trustees: Estate of Paul Penna, 2010 ONSC 6993, at para. 43; and Estate of Nordby, 2023 ONSC 821, at para. 26.

[18] To date, the respondent has ignored (a) the Order, (b) the notice of application (i.e., the respondent did not deliver a notice of appearance), (c) service of the motion record, and (d) the return date for the motion. The respondent has not demonstrated respect for the applicant, or for the court process. I am not convinced that a sanction of nothing more than the imposition of yet another deadline, by which the respondent is to take certain steps, is sufficient to bring home to the respondent the significance of his failure to comply with the Order.

[19] For those reasons, the order made,

• requires the respondent to take the steps he was ordered by Justice R. Smith to take in the fall of 2023, and to do so within 60 days of being served with the order made on this motion;
• requires the respondent to pay the applicant’s costs of this motion, on the substantial indemnity scale, as fixed below, and to do so within 30 days of being served with the order made herein;
• provides that the motion is adjourned and shall be brought back by the applicant, before me (I remain seized of the matter), in the event the respondent fails to comply with one or both of the above-listed terms; and
• provides that if the motion is brought back before the court, the respondent shall attend (by videoconference) and he shall be given an opportunity to purge his contempt.

[20] The applicant’s motion is brought pursuant to r. 60.11 of the Rules of Civil Procedure. Subrule 60.11(5) gives the court a wide discretion in terms of sanctions it may impose in the event of a finding of contempt. Those sanctions include imprisonment (rr. 60.11(5)(a) and (b)), the payment of a fine (r. 60.11(5)(c)); and the payment of costs as are just (r. 60.11(5)(e)).

[21] At para. 43 of Estate of Paul Penna, Greer J. highlights that the failure of an estate trustee to provide accounts for the administration of an estate is “egregious conduct”. It is important that the respondent realizes that if he remains in contempt of the Order and fails to comply with the order made pursuant to this endorsement, he faces the potential for the imposition of serious sanctions.

Costs

[22] At the conclusion of the hearing of the motion, the court reviewed the applicant’s costs outline. The costs outline was uploaded to Caselines on the return date for the motion. If the costs outline has not been filed, then the applicant’s counsel shall arrange for the costs outline to be electronically filed in accordance with the most recent notice to the profession.

[23] The applicant seeks her costs of the motion on the substantial indemnity basis in the total amount of $5,876.72. That amount includes $5,277.72 for fees for work done prior to the return of the motion and a counsel fee of $260.00 for counsel’s attendance on the motion. Both monetary figures are inclusive of HST.

[24] The applicant is entirely successful on the motion. She is entitled to her costs of the motion.

[25] In determining the scale upon which costs are payable, and the quantum of costs payable, I consider the factors listed in r. 57.01(1), including the following principles:

• The principle of indemnity (r. 57.01(1)(0.a));
• The importance of the issues to the applicant (r. 57.01(1)(d));
• The conduct of the respondent to date in the proceeding (r. 57.01(1)(e)); and
• The failure of the respondent to admit his lack of compliance with the Order (r. 57.01(1)(g)).

[26] Relevant to both the scale upon which costs are payable and the amount of costs payable is the finding made in the previous section of this endorsement that the respondent’s failure to provide accounts for the Estate is “egregious conduct”.

[27] With the exception of 0.2 hours of work done by senior counsel and 0.7 hours of work done by an articling student, all of the work on the motion was performed by Ms. Katyk, who is a 2020 Call. I find that the time docketed by senior counsel and by Ms. Katyk (19.2 hours) is reasonable. I am satisfied that the actual hourly rates for senior counsel ($360) and Ms. Katyk ($260) are reasonable.

[28] I disallow the fees for the work docketed by the articling student. That work is described as “Record assembly”. The assembly of the materials delivered on the motion is an administrative task and not one for which the opposing party should be responsible to pay. I reduce the fees allowed by $110.25 for that reason.

[29] The costs requested include disbursements (inclusive of HST) in the amount of $339.00, for a single disbursement item – the fee for filing the motion record. That disbursement item is reasonable and I include it in the costs awarded to the applicant.

[30] For those reasons, I fix the applicant’s costs of the motion, on the substantial indemnity scale, in the amount of $5,750.00 inclusive of fees, disbursements, and applicable HST. Those costs shall be paid within 30 days of the date of the order.

[31] Payment of those costs within the 30-day period specified is a pre-condition to the respondent filing any materials in response to the motion, if continued by the applicant. If the respondent fails to comply with the order made as to the costs payable and the method by which they shall be paid, he will not be permitted to file any materials in response to the motion if it is continued. The sanctions to be imposed for the respondent’s continued contempt – if found – will be determined in the absence of and without explanation from the respondent.

Disposition

[32] For the reasons set out above, I make an order on the terms set out in the draft order attached as Appendix ‘A’.

[33] Although no order regarding service of documents on the respondent is required, I wish to make it clear that the applicant continues to be entitled to rely on service by email at the email address set out in para. 3, above.

[34] As noted in para. 19, above, I remain seized of the matter. If the motion is brought back, the applicant’s counsel shall schedule the continuation of the motion before me.

Date: April 17, 2024

APPENDIX ‘A’

Court File No.: CV-23-93030-ES

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE ESTATE OF FRANK KRAMSKI, DECEASED

Before the Honourable ) Wednesday, this 17th Madam Justice Sylvia Corthorn ) day of April, 2024

B E T W E E N:

NATACHA ALEXANDRA MARIE-ANNE KRAMSKI Applicant

-and-

BERNARD KRAMSKI IN HIS PERSONAL CAPACITY and BERNARD KRAMSKI IN HIS CAPACITY AS THE ESTATE TRUSTEE OF THE ESTATE OF FRANK KRAMSKI Respondents

AMENDED ORDER

The text of the original Order, of April 17, 2024 was amended on April 23, 2024 and a description of the amendment is appended.

THIS MOTION, made by the applicant, for an order finding the respondent, Bernard Kramski, in contempt of court was heard on April 11, 2024, by videoconference, at the Courthouse, 161 Elgin Street, in Ottawa, Ontario.

ON READING the motion record dated March 28, 2024, and on hearing the submissions of counsel for the applicant, no one attending on behalf of Bernard Kramski, although he was properly served, as appears from the affidavit of service of Thomas Johnsen sworn on February 5, 2024:

1. THIS COURT DECLARES that the respondent, Bernard Kramski (“the Respondent Kramski”), is in contempt of court and, in particular, in contempt of the order of Justice R. Smith, dated October 31, 2023 (“the Order”).

2. THIS COURT ORDERS that the Respondent Kramski shall, within 60 days of the date on which he is served with this order, and to purge his contempt, comply with the Order.

3. THIS COURT ORDERS that the Respondent Kramski shall, within 30 days of the date on which he is served with this order, pay to the applicant her costs of this motion, on the substantial indemnity scale, fixed in the amount of $5,750.00.

4. THIS COURT ORDERS that the Respondent Kramski shall pay the costs ordered in paragraph 3, above, by certified cheque or bank draft payable to the applicant, which cheque or bank draft shall be sent by regular mail to the attention of counsel for the applicant at the municipal address which appears on the back page to this order.

5. THIS COURT ORDERS that if the Respondent Kramski fails to pay the costs as ordered in paragraphs 3 and 4, above, he shall be prohibited from filing any materials for the purpose of the continuation of the motion within which this order is made.

THIS ORDER BEARS INTEREST at the rate of _____ percent per year commencing 30 days from the date on which the order is served on the Respondent Kramski.

APPENDIX

April 23, 2024: The word “not” has been removed from paragraph 5 in Appendix ‘A’ , such that what originally read as “he shall not be prohibited” reads as “he shall be prohibited”.

COURT FILE NO.: CV-23-93030-ES DATE: 2024/04/17 ONTARIO SUPERIOR COURT OF JUSTICE RE: NATACHA ALEXANDRA MARIE-ANNE KRAMSKI (Applicant) AND BERNARD KRAMSKI IN HIS PERSONAL CAPACITY and BERNARD KRAMSKI IN HIS CAPACITY AS THE ESTATE TRUSTEE OF THE ESTATE OF FRANK KRAMSKI (Respondents) BEFORE: Madam Justice S. Corthorn COUNSEL: Anna Katyk, for the applicant No one appearing for the respondent, Bernard Kramski, personally and in his capacity as an estate trustee HEARD: April 11, 2024 (By videoconference) AMENDED endorsement Corthorn J.

Released: April 17, 2024