Superior Court of Justice – Ontario
COURT FILE NO.: CV-23-00696400-00ES
DATE: 20240425
IN THE MATTER OF THE ESTATE OF BRUNO SIIMAN, deceased
RE: Andrew Gray in his capacity as Estate Trustee of the Estate of Bruno Siiman, Applicant
AND:
Michael Siiman and Liivia Siiman, Respondents
BEFORE: C. Gilmore, J.
COUNSEL: Sabrina Saltmarsh and Tyler O’Henly, Counsel for the Applicant Charlie Fuhr, Counsel for the Respondent Michael Siiman
HEARD: April 23, 2024
ENDORSEMENT on Case Conference
Introduction
[1] Today’s date was set for a Case Conference with respect to the upcoming hearing of this matter which is set for June 28, 2024.
[2] The hearing was originally set for March 25, 2024 but was adjourned at the request of the Applicant because of the multiple additional affidavits filed by the Respondents. The Applicant did not want the hearing date derailed by this additional evidence and sought directions and Orders at today’s conference regarding that evidence.
[3] The Respondent Michael Siiman (“Michael”) has been represented in this matter by counsel Charlie Fuhr. Since January 2024, Mr. Fuhr has indicated that he intends to remove himself from the record. Given that the March hearing date had been set in July 2023, I invited Mr. Fuhr to send his removal motion to me in writing. No motion was received. At today’s appearance Mr. Fuhr once again indicated that he intends to remove himself from the record. Counsel for the Applicant urges the Court to set a deadline by which Mr. Fuhr’s motion is to be received in order to ensure that a last-minute removal from the record by Mr. Fuhr will not result in a request for an adjournment of the June 28, 2024 date.
[4] Mr. Fuhr advised the Court that he will not be representing Michael at the upcoming hearing date and would comply with any deadline set for filing his removal motion.
[5] The Applicant seeks orders at this Case Conference to strike certain portions of the additional affidavits filed by Michael and his daughter the Respondent Liviia Siiman (“Liviia”) including those portions of the affidavits which contain reference to Offers to Settle as well as evidence that is outside the parameters of this Application.
Factual and Procedural Background
[6] The within Application was issued in March 2023. The Applicant in his capacity as Estate Trustee of the Estate of Bruno Siiman (“the Estate”) seeks the following orders:
a. A declaration that the property at 6 Wynthenshawe Wood, Scarborough (“the property”) is held in trust by the Applicant.
b. A declaration that Michael Siiman (“Michael”) and Liivia Siiman (“Liivia”) (“the Respondents”) are not tenants of the property and that Michael has no interest in the property other than as a beneficiary of the Estate.
c. An Order requiring the Respondents to vacate the property.
d. An Order requiring the Respondents to pay occupation rent in the amount of $3,500 per month commencing February 2023.
e. An Order for a Writ of Possession.
f. An Order permitting the Applicant to enter the property to make necessary repairs for sale.
g. An Order that the property be listed for sale by the Applicant or alternatively that the Respondents purchase the Property for fair market value.
h. An Order that any fees, costs or damages payable by the Respondents be paid from the Respondents’ share of the Estate.
[7] The deceased died on December 31, 2021. His wife predeceased him. On September 21, 2022 the Applicant was appointed Estate Trustee with a Will. The Applicant has been a life-long friend of the family.
[8] The beneficiaries under the Will are the deceased’s sons Michael, Matti and Victor Siiman. The Estate is to be divided into eight shares with Michael receiving 3.5 shares, and Matti and Victor each receiving 2.5 shares. Title to the property was transferred to the Applicant on September 30, 2022.
[9] Michael and Liivia lived in the property for many years before the deceased’s death. After his death they refused to vacate despite repeated requests that they do so. The Respondents have denied entry to the property by the Applicant and have paid no occupation rent. The Applicant has been personally funding the ongoing Estate and property expenses and expects to be fully reimbursed by the Estate.
[10] On January 20, 2023 the Applicant delivered a letter to Michael and Liivia demanding that they vacate and pay occupation rent from January 2022 to January 2023. The Respondents refused to vacate. The Applicant is concerned that the Respondents have caused damage to the property and have denied the Estate the opportunity to realize rental income.
[11] In September 2022, the Applicant arranged for an inspector to visit the property in order to ready the property for sale but Michael denied entry to the inspector. Michael sent an email to the Applicant advising that he intends to challenge the Will and the Applicant’s conduct as Estate Trustee. Michael has never taken any steps or issued an Application in this regard.
[12] At one point Michael suggested that he would purchase the property from the Estate. However, as Michael has not worked in over 20 years this is not tenable. In any event, Michael has never presented a realistic plan to purchase the property. The other beneficiaries have no interest in Michael’s proposals and simply want the property sold.
[13] Given that Michael refused to cooperate with the Estate Trustee and refused to vacate, the Estate Trustee offered to advance relocation funds to Michael from his share of the Estate. Michael still refused to vacate.
[14] The property is in a state of disrepair and requires repairs and staging before sale. However, at this point the Applicant will not take steps to assess any damage or prepare the home for sale until Michael and Liivia have vacated the property.
[15] As of February 2023 the property was appraised at $1.150 to $1.175M and had a rental value of $3,200 to $3,500 as of January 2022.
[16] In January 2023 the Applicant engaged legal counsel who wrote to Michael and demanded rental arrears of $49,000 and requested that Michael and Liivia vacate failing which an Application would be issued.
[17] In February 2023 Michael sent the Applicant’s counsel an email enclosing a document entitled “Statement of Bruno Siiman, dated January 14, 2018.” The statement purports to be signed by the deceased and witnessed by his wife and purports to allow Michael and Liivia to remain living in the property until Liivia complete her studies at the University of Toronto. The statement was only provided after the Estate made demands that Liivia and Michael vacate the property. Further, the other beneficiaries question the authenticity of their father’s signature on the statement.
[18] The matter first came before me in July 2023. The parties had agreed on a consent timetabling Order which set a hearing date of March 25, 2024. I required that the parties attend mediation after cross-examinations had been completed in October 2023 and prior to November 30, 2023.
[19] The parties appeared before me again on January 2, 2024. The Applicant had requested a Case Conference given the continuing problems with the case. Mr. Fuhr appeared on that date but had no instructions from his client. He advised at that time of his intention to bring a removal motion. Further, other than an exchange of pleadings, none of the steps in the July timetabling Order had been completed. Although the Applicant’s counsel had made several attempts to suggest a mediator and timing for mediation, no response was received.
[20] At the January 2, 2024 Case Conference the Applicant sought an Order for an urgent inspection of the property given concerns raised by Michael about asbestos and animal feces. The Applicant also sought to re-schedule the remaining steps in the litigation.
[21] Following January 2, 2024 Case Conference, I made an Order requiring the Respondents to vacate the property by February 16, 2024 failing which the Applicant was permitted to bring an ex-parte motion in writing to seek a Writ of Possession. I also waived the requirement for mediation and ordered that factums for the March 25, 2024 hearing be exchanged in accordance with the Rules. The January 2, 2024 Order and endorsement was required to be personally served on Michael and Liivia. I also requested that Mr. Fuhr send those documents to his client.
[22] The Applicant arranged a further Case Conference on February 2, 2024. Attempts to serve the Respondents with the January 2, 2024 Order and endorsement had been made by email, regular mail and personal service but without success. Given the evidence available at the February 2, 2024 appointment, I validated service of the Order and endorsement on Michael and Liivia and the requirement to vacate by February 16, 2024. I confirmed that the hearing in March 2024 would proceed on the issues of occupation rent, expenses and legal fees. Finally, I confirmed that an ex-parte motion in writing for a Writ of Possession could be placed before me if the Respondents did not vacate by February 16, 2024.
[23] The in-writing motion was received on March 13, 2024. The Respondents had not vacated by the required date. A Writ of Possession was granted on March 13, 2024. An attempt by the Sheriff to enforce the Writ was made on April 23, 2024, however, no notice of the attempt was given to the Estate Trustee and he was unable to attend at the property. A further date for enforcement is to be arranged.
Requests for Orders Made by the Applicant at the Case Conference on April 23, 2024 and the Positions of the Parties
[24] This is now the fourth time the Applicant has had to request assistance from the Court regarding the Respondents’ ongoing occupation of the property and their conduct in this litigation. They have not vacated the subject property and have provided a flurry of improper and prejudicial evidence.
[25] The parties have exchanged pleadings in this matter and the Responding Record was delivered on July 14, 2023. The Applicant is concerned that the Respondents have now delivered a barrage of new affidavits. On March 5, 2024 Michael delivered an affidavit sworn on March 2, 2024. The affidavit attaches a 25-page letter entitled “Submissions by Respondent Michael Siiman to the January 2, 2024 Endorsement of Justice Gilmore.”
[26] On March 15, 2024 a further affidavit from Michael Siiman sworn March 13, 2024 was delivered to the Applicant. On March 21, 2024 the Applicant received an affidavit from Liivia Siiman sworn March 18, 2024.
[27] Michael delivered a third affidavit sworn April 3, 2024. Appended to the affidavit are two documents entitled “Sworn Affidavit Letter – Point 1” and “Sworn Affidavit Letter – Point 2.” In those letters, Michael gives reasons why he and Liivia should be permitted to remain in the home. The affidavit contains attachments which are made up photographs of improvements which Michael claims to have made to the home without the consent of the Estate Trustee.
[28] Based on the affidavits filed and their exhibits it appears that the Respondents have made alterations to the property. The Applicant demanded that they cease doing so.
[29] As Mr. Fuhr served all of the affidavits, the Applicant’s counsel asked if Mr. Fuhr intended to remain on the record and whether the Respondents intended to rely on all of the additional affidavits at the upcoming hearing. The Applicant’s counsel also asked how many further affidavits the Respondents intended to file. No response was received.
[30] The Applicant objects to certain references made in the new affidavits to Offers to Settle made by Michael to his brothers. The Applicant also objects to the inclusion of evidence related to matters already decided in my endorsements and orders dated January 2nd and February 2nd, 2024. As well, given that there was no evidence regarding Liivia’s enrolment in university I made a finding that she was not attending. Liivia has now filed new evidence regarding her enrolment in university.
[31] Finally, the Applicant objects to evidence in the new affidavits relating to issues outside the scope of the within Application. The January 2, 2024 Order is clear that the hearing in this matter would deal only with the issues of occupation rent, expenses and legal fees owed by Michael.
[32] Liviia’s affidavit contains a U.of T. student card dated in 2016 and an invoice for tuition for 2022/23 school year. While Liivia claims to still be in school there is no proof of current enrolment.
[33] The Applicant requests that this Court exercise its discretion to strike certain portions of the additional affidavits submitted by the Respondents on the grounds that they contain without prejudice communications in breach of Rule 49.06 (2) and (3), that the affidavits contain evidence relating to matters already decided by me in my January 2, 2024 Order which was not appealed, and the affidavits contain evidence concerning issues which are outside the scope of the within Application without having filed a Cross-Application.
[34] The Applicant has provided a chart in his brief outlining exactly which portions of the affidavits should be expunged.
[35] The Applicant is further concerned that on April 4, 2024 Mr. Fuhr advised that the Respondents intend to rely on all of the additional affidavits at the hearing in June 2024 notwithstanding the issues raised concerning their content.
[36] Finally, the Applicant seeks an Order requiring that that the June 28, 2024 hearing date be peremptory on the Respondents, that the Applicant be permitted to file a supplementary affidavit and a factum by June 12, 2024. The Applicant also requests that the costs of this conference be determined by the judge hearing the Application on June 28, 2024.
[37] There was no real response by Michael or Liivia other than their affidavit material as their counsel had no instructions. Michael requested that he be entitled to speak at the Case Conference. Initially that request was denied given that he had counsel present. He later interrupted the proceeding and addressed the Court in a loud and aggressive voice, claiming that everything the Court was told about him was inaccurate. I requested that the Registrar mute his microphone.
Analysis and Ruling
[38] Pursuant to Rule 50.13(6) of the Rules of Civil Procedure, a judge may make procedural orders, give directions or make an interlocutory order at a Case Conference. The purpose of this Rule is to ensure that a judge may manage cases appropriately, avoid unnecessary, time consuming or costly steps in a proceeding where applicable and ensure that court time is used efficiently.
[39] I am concerned that in this case, Court time has not been used efficiently to date because the Respondents have kept their own counsel dangling, failed to follow a court ordered litigation timetable, filed affidavits after pleadings were closed, filed affidavits with impermissible content and failed to respond to requests concerning their position on steps taken in this litigation.
[40] With respect to the additional affidavits filed by Michael, I agree with the Applicant that some content in those affidavits must be struck. This should be done such that the judge hearing the matter in June is not burdened with multiple pre-hearing motions but may proceed to decide the issues as set out in my January 2024 Order. I refer to and rely on Rule 25.11 of the Rules which permit this Court to strike all or part of a pleading or other document on the ground that it may prejudice or delay the fair trial of an action, is scandalous, frivolous or vexatious or is an abuse of process of the Court.
[41] Dealing first with the Respondents’ affidavits which reference Without Prejudice communication and Offers to Settle in breach of Rule 49.06(1), I refer to the chart provided by the Applicant at Exhibit X to the affidavit of Amandeep Sohal sworn on April 17, 2024. Paragraphs 38, 42 and 43 of Michael’s affidavit sworn July 14, 2023 contain explicit references to Offers to Settle and shall be struck. Paragraph 18 of the affidavit of Liivia sworn July 14, 2023 shall also be struck on the same grounds.
[42] With respect to Michael’s affidavit sworn March 4, 2024, the underlined portions of preamble (as per the chart at Exhibit X), paragraph 53, 54, the underlined portion of paragraph 55 and 56 and all of paragraph 97 shall be struck on the same grounds.
[43] With respect to Michael’s affidavit sworn March 13, 2024, paragraph 33 shall be struck. Paragraph 3 of Liviia Liviia’s affidavit sworn March 13, 2024 shall be struck.
[44] Finally, paragraph 3 of Michael’s affidavit sworn April 3, 2024 shall be struck on the same grounds.
[45] With respect to striking evidence that relates to matters already decided by me, I note that none of those previous Orders have been appealed. Notwithstanding the lack of an appeal, the Respondents have attempted to relitigate in their new materials the continued occupation of the subject property, alleged statements of the deceased regarding their continued occupation and their insistence that the deceased declared in writing that Liivia could remain in the home until she completed her university education.
[46] The issue of the Respondents’ occupancy of the subject property has been litigated and decided. The Respondents’ lack of response to that litigation led to the issuance of a Writ of Possession. I was satisfied based on the evidence provided that the Writ should issue. Only now, the Respondents provide evidence in response. It is far too late.
[47] Turning to the specific evidence to be struck with respect to matters already litigated and decided, I rely on the index chart at Exhibit Y of Mr. Sohal’s affidavit. With respect to Michael’s affidavit sworn March 4, 2024 paragraphs 71, 73, 93, and 94 shall be struck in their entirety as they relate to the date on which the Respondents propose to vacate the property. That issue has already been decided. Further, the underlined portions of paragraphs 87 and 95 are to be struck.
[48] With respect to the affidavit of Liivia sworn March 18, 2024, paragraph 2 shall be struck in its entirety as well as the underlined portion of paragraph 3. The issue of the alleged declaration of the deceased in relation to Liivia’s occupancy has never been litigated. Further, no evidence concerning Liviia’s enrolment or status at the University of Toronto was provided at the relevant time. Even the evidence currently provided is deficient.
[49] With respect to Michael’s affidavit sworn April 3, 2024, paragraphs 1, 8 and 9 shall be struck in their entirety as they relate to matters already decided by me. Similarly, the underlined portion of paragraph 7 shall be struck.
[50] With respect to evidence in the affidavits which is outside of the scope of the within Application, I clearly ordered on January 2, 2024 that the hearing would proceed only on the issues of occupation rent, legal fees and expenses owed by Michael. While threatening to do so, Michael has never commenced a Will Challenge or issued a Cross-Application.
[51] In this regard, I rely on the chart at Exhibit Z to Mr. Sohal’s affidavit. Paragraphs 3, 10, 11, 12, 15, 18, 20, 21, 27, 28, 37, 66, 72, and 86 of Michael’s affidavit sworn March 4, 2024 shall be struck in their entirety as well as the underlined portions of the other paragraphs set out in the chart relating to that affidavit. Those paragraphs contain rambling and irrelevant references to issues which do not form part of the relief sought in the Application.
[52] With respect to Michael’s affidavit sworn March 13, 2024 the paragraphs and excerpts set out in the Exhibit Z chart shall be struck on the same grounds.
Other Issues Relating to Procedures for the June 2024 Hearing
[53] It was brought to this Court’s attention during the course of the Case Conference that Michael has been declared a vexatious litigant in the past. Specifically, in an Application under section 140 of the Courts of Justice Act, brought by the Crown against Michael on December 6, 2012, Justice Perell stated at paragraph 6 that “it is not necessary to review the absolutely appalling and totally unacceptable conduct of Mr. Siiman” (see Her Majesty the Queen in right of Ontario v. Siiman, 2012 ONSC 7088.
[54] In concluding that an Order declaring Michael a vexatious litigant should issue, Justice Perell set out one example of Michael’s egregious behaviour as follows at paras 6 and 7:
Just one example of his persistent abuse of the lawyers acting for the Crown - and not necessarily the worst example - is sufficient. On November 30, 2008, Mr. Siiman screamed and left the following phone message on Crown counsel’s voicemail:
It doesn’t matter what it takes because we are not stopping … This crazy OPP officer …. I could have killed the guy. If I had a shotgun, I would have fucking killed the son of a bitch. I want this played for a judge. I’m going to kill that fucking son of a bitch. … I’ll put a bullet in his fucking head. Tape this. I’ll put a bullet in his fucking head until there is fucking justice. This bullshit is going to fucking end. This bullshit is going to end real soon … These guys are going to die in fucking hell. You people are going to die in fucking hell.
As a result of his conduct of his civil proceedings against the Crown and others, on January 9, 2009, Mr. Siiman was charged with criminal harassment, uttering threats, mischief, and harassing telephone calls. He should regard himself as blessed and not vindicated that those charges were stayed on September 1, 2011 due to the Crown’s unreasonable delay in providing disclosure of its case.
[55] Further examples of Mr. Siiman’s behaviour are set out at paragraph 31 of Justice Perell’s decision as follows:
Between 2001 and the commencement of the vexatious litigant application, in the course of conducting his various proceedings against the Crown, Mr. Siiman has, among other inappropriate and offensive conduct: (a) inundated Crown counsel with voluminous correspondence including letters and faxes exceeding 100 pages in length; (b) frequently telephoned Crown counsel and left lengthy vile recorded messages; (c) frequently sent correspondence about his complaints to politicians, Ministers of the Crown, Premiers, Prime Ministers, Attorney Generals, mayors, Police Commissioners, judges, Chief Judges, political party leaders, and the media; (d) complained to the Law Society about the professional conduct of Crown counsel; and (e) inexcusably abused administrative staff and civil servants who had the misfortune of having to deal with Mr. Siiman as a part of their jobs as clerks, receptionists, and assistants. Mr. Siiman’s correspondence is defamatory, inflammatory, insulting, and intimidating, and it describes or hints at the possibility of acts of violence.
[56] Ultimately Michael was declared a vexatious litigant by Justice Perell and was prohibited from instituting any proceedings in any court in Ontario without leave. He was entitled to pursue certain civil litigation but under strict conditions and only if represented by counsel. In a subsequent costs Order related to the section 140 Application, Michael was ordered to pay costs of $38,475 to the Crown.
[57] Michael’s behaviour does not seem to have improved with age. After the Case Conference on April 23, 2024, Michael sent the following email to counsel for the Applicant addressed to the Estate Trustee. What is disturbing about this email is Michael’s threat to send emails to his brothers’ employers and his threats to the reputation of the Applicant’s counsel. [Note: given the defamatory content of the email with respect to both the Estate Trustee and his counsel, the email in its original form was only included in the decision released to the parties and not for publication].
[58] The requests by the Applicant that the hearing in June be virtual are reasonable. Other restrictions must also be put into place given Michael’s past and current conduct.
Orders and Costs
[59] The hearing set for June 28, 2024 shall be held virtually and is peremptory on the Respondents.
[60] Mr. Fuhr to file his removal motion with me by May 3, 2024.
[61] Michael is not to communicate with the Estate Trustee, the beneficiaries or with counsel for the Applicant until such time as Mr. Fuhr is removed from the record. If he does so, such communication shall be forwarded to me and further sanctions may follow.
[62] Once Mr. Fuhr is removed from the record, Michael may communicate only with the Applicant’s counsel (not the other beneficiaries or Mr. Gray) in a respectful and cordial manner and related only to issues for the upcoming hearing. If he continues to send emails such as the one sent to Mr. Gray via counsel on April 23, 2024, I am to be notified and further sanctions may be imposed on the Respondents.
[63] Michael and Liivia may not file any further affidavit material with respect to the upcoming hearing on June 28, 2024. If they attempt to do so, Court Administration and/or the Estates Office is directed to remove the affidavit from Caselines.
[64] The Respondents may file a responding factum, in accordance with the Rules which is limited to 25 pages. The factum is not to contain any new evidence or reference any of the evidence which has already been struck by the terms of this Endorsement. The factum is not to contain reference to any past Offers to Settle, or ongoing settlement negotiations. In the event that Michael’s factum contains without prejudice, irrelevant or vexatious content, the Applicant may move to have those portions of Michael’s factum struck by way of pre-hearing motion.
[65] The Applicant is permitted to file one further affidavit in reply to those portions of the Siiman affidavits which were not otherwise struck and a factum, by June 12, 2024. The Respondents’ factum is due by June 21, 2024 in order to give the Applicants time to file a reply factum if so advised.
[66] The Applicant may proceed to undertake the deletions and redactions set out in this decision in relation to the affidavits of Mr. Siiman and Ms. Liviia Siiman. The previous affidavits are then to be removed from Caselines and the new affidavits uploaded. Alternatively, if the above process is not possible, the affidavits are simply to be redacted on their face.
[67] As Michael has already been declared a vexatious litigant, he is not permitted to commence any Application in this Court without leave from a Superior Court judge.
[68] The costs of the April 23, 2023 conference are fixed at $2,000 and are payable by Mr. Siiman personally and from his share of Estate proceeds in any event of the cause.
[69] The Applicant may provide a draft Order for my review based on this endorsement. The endorsement need not be approved as to form and content by the Respondents if Mr. Fuhr is no longer counsel.
C. Gilmore, J.
Date: April 25, 2024