CITATION: Kubecka v. Kubecka, 2026 ONSC 683

COURT FILE NO.: FS-15-20432 & FS-25-51291

DATE: 2026-02-04

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Ingrid Kubecka

Applicant (Respondent/Respondent)

– and –

Jacqueline Novakovic and Michele Kubecka in their capacity as estate trustee for the estate of Josef Kubecka, 1382170 Ontario Ltd., Interna Furniture Design Limited, Nova Teak Designs Limited

Respondents (Applicants/Appellants)

Christopher A. Mamo and Patricia Gordon, for the applicant (respondent/respondent)

Jeffrey Radnoff and Charles Haworth, for the respondents (applicants/appellants)

HEARD: January 29, 2026

Robert Centa J.

1. Introduction

1Ingrid Kubecka is 94-years old. She has spent the last ten years fighting to obtain justice and her rightful share of the wealth she and her late husband, Josef Kubecka, built together. Over the last decade, Ingrid has faced fierce opposition: first from Josef after they separated and then, after his death in 2020, from her twin daughters Jacqueline and Michele, the trustees for Josef’s estate.

2As early as May 8, 2018, Paisley J. concluded that “the unreasonable delay in this case is largely attributable to [Josef’s] determination to conduct tactical warfare….” Almost four years ago, the first arbitrator in this proceeding, Rosanna Breitman, observed that “much ink has been spilled and a colossal amount of energy has been expended on this fight.” She summarized this history of the case this way:

Tragically, however, this case is not really about the complexity of the legal issues. This case is about complex, non-legal, highly emotional, toxic family dynamics which, heartbreakingly, remain a serious and perhaps fatal impediment to progress. The parties are entrenched, and each is convinced that the other is to blame for everything as a result, unless something changes dramatically, they will return to court to face off against each other in a trial, now that the arbitration process has come to an end with my resignation in circumstances which are well known to the parties, effective concurrent with the release of this award.

I do not use “tragic” and “heartbreaking” lightly - if anything these words are probably far too weak to describe the destruction that the past seven years of fighting have brought on the Kubecka family, including Ingrid, Josef - whose life ended with this malignant conflict raging on - and their children.

3The second arbitrator was the Hon. Emile R. Kruzick, who practised family law for decades before his appointment to the Superior Court of Justice, where he served as judge for 23 years. The arbitrator concluded that Josef and the trustees were primarily responsible for the extraordinary delay in this proceeding:

I briefly referred to delay earlier in these reasons. In my review of the totality of the evidence and the course of this litigation, I cannot but conclude that Josef, and then the Estate must bear the primary responsibility for the delay, While Ingrid is not entirely without blame, I find that her steps were by and large reactive to steps taken by Josef and the Estate and to assert her claims in what was rightfully hers.

4On February 25, 2025, the arbitrator released a bottom-line award in the arbitration between the parties. To oversimplify, the arbitrator awarded Ingrid $275,000 as equitable damages for the oppressive and unfair conduct of Josef and the corporations he controlled, and dealt with competing claims for occupation rent and the carrying costs in respect of three properties. The parties requested reasons for decision. So, on July 18, 2025, the arbitrator delivered reasons for decision set out in 358 paragraphs over 56 single-spaced pages. That should have been the end of this proceeding.

5Instead, the trustees and the corporations (to whom I will now refer collectively as the trustees) brought an application to set aside paragraphs 4 (dismissing the trustees’ request to reattend at Ingrid’s home to continue an inventory of contents), 12 (inviting submissions on costs), and 13 (dealing with prejudgment and postjudgment interest) of the award, pursuant to ss. 44, 46(1)(6), 46(1)(7) of the Arbitration Act, S.O. 1991, c. 17. The trustees also appealed the decision of the arbitrator pursuant to the appeal provisions of the arbitration agreement. I heard the application and the appeal on January 29, 2026.

6For the reasons that follow, I dismiss both the application and appeal.

2. Background

7I will not attempt to set out a comprehensive history of this litigation or the facts underpinning the arbitral award at issue. The arbitrator summarized well the background in paragraphs 14 to 53 of this arbitral award. The following skeletal outline is sufficient for the purposes of disposing of the application and appeal.

8Ingrid and Josef were married on July 30, 1955. They had twin daughters Jacqueline and Michele, and a son Kenneth. When Ingrid and Josef separated on September 12, 2015, they were in their 80s. Josef died on June 10, 2020. Jacqueline and Michele are the trustees of Josef’s estate.

9Ingrid and Josef amassed significant wealth during their marriage. In 1963, they started a furniture manufacturing business, the applicant/appellant corporation Interna Furniture Design Limited. Later, Ingrid and Josef incorporated the applicant/appellant corporation Nova Teak Design Limited, which engaged in the import, export, and distribution of furniture products. For a time, another couple also owned shares in these corporations, but Ingrid and Josef eventually bought them out through the applicant/appellant corporation 1382170 Ontario Ltd. At the time of their separation,

a. Josef owned 70% of the shares and Ingrid owned 30% of the numbered company;

b. Josef and Ingrid each held 50% of the shares in Nova Teak;

c. Josef and Ingrid were each directors, officers, and paid employees of the companies.

10Over time, Josef and Ingrid acquired commercial, residential, vacation, and investment properties in Etobicoke, King, Florida, and Austria. Following the separation, Josef pushed Ingrid out of her job with the company and eliminated her role in the operation of the business. After his death, the trustees continued to exclude Ingrid from any role in the operation of the business. Josef and the trustees suggested they did so because they thought Ingrid lacked the mental capacity to manage her duties in this fashion. Every medical report showed that these concerns were baseless and, it appears, pretextual.

11Ingrid commenced an application in the Superior Court on September 30, 2015. Josef delivered an answer. In 2018, Justice Paisley observed that Josef had failed to make meaningful disclosure and ordered that he do so. Justice Paisley also ordered that Josef pay Ingrid $7,216 per month in spousal support. Josef unsuccessfully appealed the order for support. Despite having the appeal dismissed, the arbitrator noted that Josef and his estate never complied with this order and the arrears under the order have never been paid.

12On April 21, 2021, the parties signed a mediation arbitration agreement appointing Ms. Breitman as mediator/arbitrator. On May 18, 2022, Ms. Breitman released an award that dealt with many of the property issues. Justice Pinto ordered that the Hon. Mr. Kruzik be appointed as arbitrator and the parties signed an agreement amending the original arbitration agreement.

13The parties resolved some of the issues between them and the remaining issues proceeded to arbitration between October 17 and 20, 2023. The trial record at the arbitration consisted of well over 60 affidavits and financial statements.

14On February 25, 2025, the arbitrator released his bottom-line award. The parties requested reasons for decision, which he delivered on July 18, 2025. I will address the time lapse from the hearing to the release of the decision below.

3. The application is dismissed

15On August 20, 2025, the trustees and corporations delivered a fresh application bearing court file FS-25-l51290-0000. As noted above, the application sought to set aside paragraphs 4 (dismissing the trustees request to reattend at Ingrid’s home to continue an inventory of contents), 12 (inviting submissions on costs), and 13 (dealing with prejudgment and postjudgment interest), pursuant to ss. 44, 46(1)(6), 46(1)(7) of the Arbitration Act. The application also sought declarations that the arbitration was terminated, or that the arbitrator should be removed, or that there was no arbitration agreement at all.

16The application spanned 14 pages and included four schedules that covered anther 81 pages. In support of the application, the trustees filed an affidavit from Jacqueline that, including exhibits, comprised 1,783 pages. Jacqueline swore a supplementary or reply affidavit dated December 19, 2025, that, including exhibits, spanned 537 pages.

17At the commencement of the hearing, I asked counsel for the trustees if they could point me to their factum on the application. Counsel admitted that they did not file a factum on the application. While the trustees and the corporations filed a factum on the appeal, that factum did not address any of the grounds to be argued on the application. Counsel had no explanation for why they failed to file a factum on the application.

18On October 27, 2025, Diamond J., as case management judge, issued an endorsement directing that the appeal and the application would be heard together by the same judge on a one-day long attendance. The estate was to deliver its application materials on or before November 14, 2025. The two matters were to be heard together on written materials and without live evidence.

19Pursuant to s. F(2)(c) of the Superior Court of Justice’s “Consolidated Provincial Practice Direction for Family Proceedings” (February 6, 2025), factums or summaries of argument are required for all long family motions (more than one hour) unless otherwise directed by a case conference judge. Justice Diamond did not relieve the trustees from this requirement. In addition, the provincial practice direction cautions that factums are also required on short motions (less than one hour) in the Toronto Region. For its part, the “Consolidated Practice Direction - Toronto Region”, (October 14, 2025), at 40-43, and 46, states that a properly drafted factum or summary of argument is required on all motions, except for urgent motions brought without notice. The text, context, and purpose of the practice directions demonstrate that a factum was required on this application.

20Compliance with the practice direction is not optional. It is unfair to Ingrid to have to guess what arguments the trustees wish to advance. It is unfair to the court to hear oral argument without the benefit of a structured, thoughtful written argument that sets out the appropriate legal test and marshals the evidence in support of the parties’ submissions. The court should not be expected to root around in 2,200 pages of evidence and search for the arguments that might meet the statutory test.

21The trustees put the court in a terrible position. If I adjourned the hearing to require the trustees to prepare a factum, this case would require another hearing day, which would deprive other parties of their day in court. This would exacerbate the issues of delay in the family justice system. Moreover, the trustees would thereby obtain a further delay in the final disposition of this case in circumstances where courts and arbitrators have blamed Josef and the trustees for delay since 2018. On the other hand, if I allowed the hearing to go forward, I have essentially rewarded the trustees for their failure to comply with the practice directions. It is not clear that I have the jurisdiction to dismiss the application for failure to comply with the practice direction, although that would appear to be the most appropriate outcome. Ultimately, mostly because Ingrid is 94 years old and should not have to suffer any further delays, I have decided to determine the application on its merits. The application is dismissed.

22The court has very limited jurisdiction to set aside the decision of an arbitrator pursuant to s. 46 of the Arbitration Act. Section 46 cannot be used as a broad appeal route to bootstrap substantive arguments attacking an arbitrator’s findings.¹ The obligation to treat the parties to an arbitration equally and fairly incorporates the requirement of natural justice and procedural fairness. They provide parties with the right to be heard and the right to an independent and impartial hearing.²

23First, the trustees and the corporations submit that arbitrator violated natural justice by taking too long to release his bottom-line award and his reasons for decision. Not only is there no merit to this submission, the trustees and the corporations are entirely responsible for any delay. After the completion of the evidentiary phase of the arbitration, the trustees brought motions that delayed the proceeding. As the arbitrator explained in his award:

61. As agreed upon by the Parties, the Arbitration hearing was set and proceeded virtually for four days commencing October 17, 2023, to October 20, 2023.

62. As agreed by the parties, the evidence consisted of affidavit evidence and cross-examinations. It was also agreed that submissions in writing would follow and would be completed by January 2024.

63. On November 30, 2023, following the Arbitration hearing and before submissions were completed the Estate brought a post-hearing motion. On January 23, 2024, the Estate Amended its original Notice of Motion. On January 29, 2024, in response to the Amended Motion of the Estate, Ingrid opposed the bringing of the motion and, if considered, brought a cross-motion.

64. The post hearing motion[s] returnable in February 2024 were adjourned several times, and on consent, argued on June 14, 2024. Before submissions on the motions were concluded, the parties made further submissions on a narrow evidentiary issue, on June 29, 2024. The dates for submissions on the motions, in writing, were set for July 10 and 19, 2024.

65. A Temporary Award dated August 12, 2024, disposed of the evidentiary issue.

66. Following the release of the Award on the evidentiary issue, a further issue arose with respect to the sale of the Florida condominium. When the parties were unable to agree on the process, Ingrid brought a further motion. That motion was scheduled to be heard and settled by a Consent Award, made on December 10, 2024.

67. The Pre-Motions were then dealt with in an Award dated January 31, 2025. Following the release of that Award counsel did not respond to a proposal that a final award issue with reasons to follow.

68. On February 25, 2025, this Tribunal issued the Final Award with Reasons to follow, if requested.

24The trustees submit that none of their motions should have impeded the release of the award. The problem with this submission is that the arbitrator explicitly disagreed. On October 2, 2024, the arbitrator explained in correspondence why he concluded that he needed to dispose of the interlocutory issues before rendering the award:

In the early winter, when I anticipated releasing my Final Award in the late Spring of 2024, I did not foresee the length of time it took the parties to organize the interlocutory motions nor the sub- interlocutory issues.

I remain of the view that the additional evidence on the motions and the resolution of the motions issues will, or may have, impact on the Final Award. While counsel expressed otherwise, I maintain the position, that so long as the interlocutory issues raised in and since November 2023 are outstanding and ongoing, I am unable to render a final Award.

On the subject of timing, the resolution of the interlocutory enforcement motions was derailed by the intervening evidentiary issue on those motions. The parties have that temporary Award. My Award on the motions of both parties may now be addressed, however, it may be subject to the anticipated motion of Ingrid Kubecka as it relates to the Florida property. The Final Award on the substantive issues will follow after all the interlocutory matters are resolved.

With respect to a date for a further motion on the Florida property issue, as requested in the correspondence of Ms. Gordon, I have limited availability from now until October 22, 2024, and then greater availability following the second week in November. Counsel can coordinate a return date with Ms. Daly.

25The arbitrator’s decision is entirely within his jurisdiction and is owed considerable deference in this court. I see no basis to interfere with it.

26The trustees also complain about the delay between the release of the bottom-line award on February 25, 2024, and the reasons for decision on July 18, 2025. There is no merit to this complaint. The arbitrator repeatedly asked the trustees to pay their outstanding accounts with him and to provide a further retainer. As late as July 10, 2025, the trustees still owed the arbitrator $3,005.81. Once the trustees fulfilled their contractual obligations, the arbitrator released his award within days.

27Second, the trustees argue that the arbitrator unlawfully altered his decision on prejudgment and postjudgment interest in the bottom line award in his reasons for decision. This submission has no merit. In the bottom line award released on February 25, 2025, the arbitrator stated “Pre- and post-judgment interest on all amounts owing shall be pursuant to the Courts of Justice Act.” In his reasons for decision, the arbitrator provided that

[Ingrid] shall be entitled to Pre and Post Judgment Interest pursuant to the Courts of Justice Act, RSO 1990, c. 43 as claimed.”

28In paragraph 357 of his award, the arbitrator stated:

357. The Final Award inadvertently made no reference to Pre & Post Judgment Interest. Ingrid shall be entitled to Pre & Post Judgment Interest pursuant to the Courts of Justice Act, RSO 1990, c. 43 as claimed. Accordingly, the Award is amended to reflect pre and post judgment interest.

29Although I believe the arbitrator was incorrect when he stated that the bottom line award made no reference to interest, in my view, there is no meaningful distinction between the provisions in each award. All of the parties claimed prejudgment interest and postjudgment interest for any amounts owing and that issue was squarely before the arbitrator when he made his decision. The award required the trustees to pay certain amounts to Ingrid. Ingrid was, therefore, pursuant to s. 128 of the Courts of Justice Act, a person “entitled to an order for the payment of money” who was “entitled to claim and have included in the order an award of interest thereon.” Similarly, because the bottom-line award on February 25, 2025, ordered the trustees to pay money to Ingrid, pursuant to s. 130 of the Courts of Justice Act, that money bears interest at the postjudgment rate from the date of the award. There is no merit to the submission that the arbitrator breached s. 46 of the Arbitration Act in the way in which he dealt with prejudgment and postjudgment interest on the award.

30Third, the trustees argue that the arbitrator unlawfully altered his decision on costs from the bottom line award in his reasons for decision. This submission has no merit. In the bottom line award released February 25, 2025, the arbitrator stated:

The parties are encouraged to settle costs in these proceedings on or before the 14th of March. If costs are not settled, submissions shall be in writing and no more than 20 pages (excluding exhibits). There will be no reply. I encourage counsel to set the timeline for delivery of costs submissions on or before March 21, 2025, failing which a timeline will be set by the Tribunal.

31Following the release of the bottom line award, the parties requested that the arbitrator prepare written reasons for decision, which he did. In paragraph 356 of his reasons for decision, he stated:

In the Final Award the parties were encouraged to settle costs. Since the release of the Final Award in February 2025, neither party has made submissions on the issue of costs. Unless I am otherwise informed, I will assume costs have been settled.

32The trustees submit that the arbitrator changed his initial award and, since counsel did not set a timeline for the delivery of costs submissions by March 21, 2025, the matter of costs could not be reopened. I disagree. The trustees are misreading the bottom-line award. The arbitrator did set a fuse on his ability to deal with costs. The arbitrator encouraged the parties to set a timeline by a certain date. He explicitly retained the time-unlimited jurisdiction to set a timeline for the submission of costs orders if it was necessary to do so. The arbitrator did not violate s. 46 of the Arbitration Act in the way in which he dealt with costs.

33Fourth, the trustees submit that the arbitrator denied them procedural fairness in dismissing their request to reattend at Ingrid’s home to continue an inventory of contents. They submit that the arbitrator chose not to review nine hours of videotape recordings from the first inventory before ruling on this matter and, therefore, he did not treat them fairly.

34After the arbitration hearing, the trustees brought a motion seeking to reattend at Ingrid’s home to continue the inventory of contents. On January 31, 2025, the arbitrator released his ruling on that motion. In his reasons, he deferred the issue of the further inventory of Ingrid’s home to his final decision. However, he dismissed the trustees’ motion for leave to introduce into evidence the affidavit of Felix Opoku, a security guard at the property, and the video evidence attached to that affidavit.

35The arbitrator held that the evidence should have been called at the main arbitration hearing. The arbitrator noted that, if the trustees attempted to admit the evidence at the main arbitration, he would have held a voir dire to hear the evidence of the videographer to hear evidence about whether the video footage accurately reflected the facts of the day. The arbitrator held that the manner in which the trustees presented the evidence on the motion, simply attached to an affidavit, did not allow the arbitrator to assess the threshold issues of reliability, accuracy, content, and probative value. He held that attempting to put the evidence in by affidavit put Ingrid at a disadvantage and was not fair to the process. The arbitrator also held that viewing nine hours of videotape evidence was disproportionate to the issue of the value of the contents of Ingrid’s home. For these reasons, the arbitrator did not admit the videotape evidence on the motion.

36Having excluded the videotape evidence, the arbitrator dealt with the trustees request to reattend at Ingrid’s home to continue the inventory in his reasons for decision. He refused to permit the trustees to reattend. He held as follows:

290. From a practical point of view any re-attendance would continue to involve the intervention of counsel and no doubt security personnel at a further cost to the parties. Time is another factor to be considered. After many years of litigation, the parties are now at the stage where they need to move on. I cannot help but note that following the May 19, 2022, Award it took the parties some 16 months to arrange the attendance on September 7, 2023. All of this goes to my finding that the Estate continues to delay and protract the resolution of this case.

291. Ingrid is now 94 years old. Further attendance at Edenvale by the Estate would result in injustice. It would constitute disruption to Ingrid at the home she purchased from the Estate and now owns. To my mind re-attendance at Ingrid’s home would not only be unjust but further harassment of her. There must be a point where enough is enough.

292. The Estate’s claim to re-attend at Edenvale and the related claim regarding the CIBC safety deposit box and the storage locker, are dismissed. [Emphasis added.]

37In my view, the arbitrator was not required to review nine hours of videotape, or any part of it, before concluding that he could not be satisfied as to the reliability, accuracy or probative value in the absence of live evidence of the videographer. Moreover, his determination that it would be disproportionate to spend nine hours watching videotape to deal with the issue of a further inventory of contents is due significant deference. Finally, I find that his ultimate conclusion that permitting a further re-attendance at the home of the 94-year old Ingrid would amount to further harassment of her by the trustees is entirely correct. Even if the trustees can raise the arbitrator’s evidentiary ruling of January 31, 2025, as part of their application, they can not establish that the arbitrator violated s. 46 of the Arbitration Act.

38The application is dismissed.

4. The appeal is dismissed

39The trustees also filed an appeal of the arbitrator’s decision.

40The trustees did file a factum with respect to the appeal. The factum, however, was 30 pages long. Both the above-cited Consolidated Practice Direction for Family Proceedings and the Toronto Region Practice direction state that no factum or summary of argument may exceed 20 pages unless leave is granted. Counsel for the trustees conceded that they did not obtain leave of the court to file a long factum.

41The conduct of the trustees is not acceptable. It is disrespectful to the court and to Ingrid. The practice directions are clear and unambiguous. They are designed to focus parties on the issues that truly matter. Concise and focussed factums permit the court to manage its workload and to understand what is truly at issue in the case. When one party files a long factum, the other party (as happened here) may be tempted to file a responding of equal length. They should not have done so.

A. Rights of appeal and the standards of review

42In the arbitration agreement, the parties created broad rights of appeal from the arbitrator’s award. Section 14.1 provided as follow:

14.1. Any Award may be appealed as follows: A party may appeal the Award on:

(a) A question of law;

(b) A question of fact;

(c) A question of mixed fact and law;

(d) An error in fact;

(e) An error in law.

43However, courts are to show significant deference to the decision of a family law arbitrator.³ This reflects the importance of finality in family law cases, the discretion exercised by the arbitrator, as well as the privileged position of the arbitrator to hear the witnesses and grapple with the factual record.⁴ In this case, the arbitrator appointed to hear the dispute is well known and respected for his expertise and experience in family law.⁵

44In addition, the arbitration concerned Ingrid’s claim that she was entitled to a remedy for oppression under s. 248 of the Ontario Business Corporations Act.⁶ Under the oppression provisions, the trial judge or arbitrator may make any order she or he thinks fit.⁷ The purpose of the remedy is to rectify oppression or unfair conduct, and a court’s power of review of remedies granted by an arbitrator is limited.⁸

45I accept the trustees’ submission that the Supreme Court of Canada articulated the applicable standard of review in Wilson.⁹ In that case, the Court observed that the analogous provisions of the Canada Business Corporations Act, vested the arbitrator hearing that case with broad discretion.¹⁰ For that reason, courts should adopt a deferential stance when reviewing judgments rendered on oppression applications. In Wilson, at para. 59, the Court articulated three principles to be applied:

a. absent palpable and overriding error, the court must defer to the arbitrator’s findings of fact;

b. the court may intervene and substitute its own decision for the arbitrator’s decision if the decision is based on errors of law, erroneous principles, or irrelevant considerations; and

c. even if there is no such error identified, the court may intervene if the arbitral award is manifestly unjust.¹¹

B. The appeal of the arbitrator’s finding of oppression is dismissed

46In paragraphs 38 to 46 of their factum, the trustees submit that “Ingrid’s oppression claim must fail.” However, they do not allege that the arbitrator committed an error of law, acted on erroneous principles or irrelevant considerations. Therefore, the arbitrator’s finding of oppression could only be set aside if he committed a palpable and overriding error or is manifestly unjust.

47In oral argument, counsel for the trustees acknowledged that there was evidence upon which the arbitrator could have found oppression. Given the deferential standard of review applicable to findings of fact, and in the absence of an alleged error of law, it is difficult to understand why the trustees would not simply concede the finding of oppression and address the other issues at play.

48In any event, I find that the arbitrator did not commit a palpable and overriding error in finding that Josef, the trustees and the corporations engaged in conduct that was oppressive or unfairly prejudicial to or that unfairly disregarded Ingrid’s interests.

49In addition to the live evidence heard at the arbitration, the trial record at the arbitration consisted of “well over 60 sworn affidavits and financial statements.” The arbitrator noted that “this case turns on credibility and which version of events the [arbitrator] accepts.” The arbitrator found that the conduct of the trustees toward Ingrid caused him to doubt their version of events. The arbitrator found that “at best, [their] conduct toward Ingrid could be described as insensitive, if not cruel.” The arbitrator found the conduct of trustees “disturbing and concerning.” He gave several examples from the evidence:

101. In my assessment of the evidence of the Estate, and then the reliability of that evidence I considered motive. I find the conduct of the Estate both disturbing and concerning. In my overall assessment of the evidence and the history of these proceedings, I enumerate the following:

102. Rather than weeks later, the failure to promptly inform Ingrid of the death of her husband and their father, the man with whom she lived, if not loved, for well over 60 years

103. Following Josef’s death, the delay and protraction of this matter (briefly referred to above) is largely because of the conduct of the Estate

104. Making and perpetuating statements of incompetence against Ingrid, that were proved untrue and unfounded

105. Persisting in the allegation that Ingrid was suffering dementia; even after the Estate had a clear and comprehension report from Baycrest that made no finding of dementia, unfounded allegations continued, and the qualifications of the assessor were questioned.

106. Perpetuating Josef’s failure to pay temporary spousal support to Ingrid pursuant to the order of the court and then maintaining the position that the court was wrong, that the order was only temporary and that Ingrid did not need the money

107. Perpetuating Josef’s conduct by not paying expenses of the properties that Josef and Ingrid owned jointly and, then as the court ordered

50The arbitrator found Michele to be “less than forthright, evasive and argumentative” and continually attempted to minimize Ingrid’s role in the business. In contrast, the arbitrator found Ingrid’s version of events to be more reliable and he generally accepted Ingrid’s evidence.

51Against that backdrop, the arbitrator found that Ingrid was deeply involved in running the three corporations as an employee, director, officer, and shareholder. He found as follows:

125. Ingrid’s evidence, which I accept, is that she was deeply involved in the three corporations, namely, 1382170 Ontario Ltd, Nova Teak and Interna. Since the conception of the family business, Ingrid’s evidence is that she oversaw the corporate books and working with the companies’ accountants. I also accept that she was responsible for the banking activities, trial balances and audited statements, among other activities. As manager of the office, I accept her evidence that she managed the accounts receivable, accounts payable, general ledgers, human resources, ordering and coordinating with the plant foreman. Her evidence is that she assisted Josef with all, and any tasks related to the operations of the businesses. At the same time they equally enjoyed the fruits of their labour and endeavour, being their income and benefits.

126. The evidence which I accept is that, in running their business, Josef and Ingrid were fully and equally engaged in a common purpose. I accept Ingrid’s evidence that Josef frequently traveled for business purposes for periods of four to six weeks. In his absence it was Ingrid who ran the businesses and managed both their business and financial affairs. At the same time she was also managing the family household.

52Around the time of their separation, Josef used his status as majority shareholder within the corporations to cause the termination of Ingrid’s employment either directly or constructively, and her removal as a director. He did so under the false pretext that Ingrid no longer had the mental capacity to serve. Josef pushed Ingrid out of the business and denied her not only the benefits she received but also the right and opportunity to participate and steer the business she had built over 50 years. The arbitrator found as follows:

143. Given the evidence which I accept, I am unable to rely on the position and evidence of the Estate that Ingrid left the business of her own accord and therefor is not entitled to make an oppression remedy claim. There is no evidence of any justifiable reasons for the steps taken by Josef and subsequently the Estate including Ingrid.

144. In this case, I find that when Ingrid was shut out from the operation of the business she was denied her ongoing salary and benefits. The advantages she enjoyed from the corporate structure changed. The income and benefits she enjoyed flowed to Josef and then to their daughters, who are now the trustees. There is no evidence of due process or fairness in the steps or actions that Josef took to oust Ingrid. That conduct to keep Ingrid out of the business continued when the Estate assumed Josef’s role. In doing so, by the actions of the trustees, I cannot but find that Josef, and then the Estate, acted in bad faith.

145. The evidence of Ingrid, which I accept, is that she was no longer involved by Josef in the operation and decision making of the business. I accept that little by little and without cause or justification Josef and, then the Estate, eroded Ingrid’s involvement and participation in the day-to-day operation until she was shut out and not welcomed to work or participate in the business. It is not denied that Ingrid was deprived of her salary and all corporate benefits which she enjoyed including the payment of her personal expenses.

146. Josef’s actions were, I find, and as alleged by Ingrid, callous and highhanded given ownership, her contribution and long involvement. While Josef and then the Estate maintain that they were simply trying to continue the business Josef had spent his life building, Josef and, then the Estate, fail to satisfy the onus upon them that Ingrid in her capacity as director, shareholder and employee was detrimental to the day-to-day operation or was detrimental to the business.

53The arbitrator found as a fact that Ingrid’s reasonable expectations included being consulted, informed, and involved in business decisions and that Josef breached those expectations in 2015 and the trustees continued to breach those expectations after his death. The arbitrator found that from 2015 onward, Josef and the trustees “did not involve, consult or inform Ingrid of the operation of the business or her interest in it.” As a result of this conduct, Ingrid lost all financial benefits from the business and excluded Ingrid from benefitting from the businesses. The arbitrator found that this conduct violated Ingrid’s reasonable expectations as a shareholder, officer, and employee. Not only were these findings available to the arbitrator on the evidence, but they are also unassailable. There is nothing manifestly unjust about the arbitrator’s conclusion.

54As a subsidiary point, the trustees submit that the arbitrator erred by finding that Ingrid was oppressed by the failure of Interna to pay rent to Nova Teak. The simple answer to this submission is that the arbitrator made no such finding. The arbitrator found that given the financial circumstances of the business, it would have made sound financial sense to rent the space to a third party and the businesses (from which she had been excluded) did not take that step.

C. The appeal from the arbitrator’s award of a remedy for oppression

55Ingrid sought $631,469.00 as a remedy for the oppressive conduct. The trustees appeal from the arbitrator’s award that Ingrid is entitled to $275,000 in damages for the oppressive conduct of Josef, the trustees, and the corporations. This part of the appeal has no merit.

56The arbitrator had jurisdiction under s. 248(3)(j) of the OBCA to make “an order compensating an aggrieved person”. This includes an order for equitable relief and damages. The arbitrator had a very broad discretion to craft a fair and just remedy to respond to the malfeasance demonstrated in the case.¹² Once a claim in oppression is made out, an arbitrator can grant any remedy the arbitrator thinks fit to rectify the oppression.¹³ Unless the arbitrator erred in principle or made a significant error in determining and weighing the considerations relevant to those findings, the arbitrator’s finding must be affirmed.¹⁴

57The arbitrator’s consideration of the appropriate remedy in this case spanned paragraphs 177 to 220 of his decision. The arbitrator stated that he was crafting a remedy to give Ingrid what she could reasonably have expected as a shareholder. He accepted the trustees’ submission that the remedy should not simply fulfill Ingrid’s “wish list.”

58The arbitrator found that Ingrid was completely shut out of the business and lost not only all of its benefits and income stream, but she also lost the ability to have input into its operations and to participate in decisions to maximize its profitability.

59Ingrid argued that Interna should have rented out the Nova Teak space to a third party, but the businesses chose not to do so. The arbitrator accepted that “it was not a wise business decision” for the businesses to fail to rent out this space. Ingrid tendered expert evidence that showed the fair market rent for the Nova Teak space from September 2015 to September 2021 could have been over $1.2 million. The arbitrator accepted that opinion, as he was entitled to do.

60The arbitrator noted that businesses suffered an overall business downturn after Ingrid was pushed out of the business. The arbitrator did not accept that Josef and the corporations should bear complete responsibility for the financial downturn, and he saw this as a mitigating factor, meaning one that would reduce the financial award to Ingrid.

61The arbitrator then turned to the quantum of damages to be awarded, at paragraphs 196 to 220 of his reasons for decision. He awarded Ingrid $275,000, which was less than half of the amount she claimed. The arbitrator considered the following factors:

a. The businesses should have rented out the Nova Teak space and Ingrid was not permitted to have any input into the decision;

b. The fact that the property was eventually sold should not disentitle Ingrid to damages because she was denied the capital gain and the use of funds had the property been sold earlier;

c. Pushing Ingrid out of the business and denying her the income and benefits associated with the businesses had a particularly harmful effect on Ingrid because Josef and the estate were, at the same time, not paying Ingrid $7,216 in spousal support pursuant to the order of Paisley J., dated May 8, 2018; and

d. As the income of the businesses declined, it began to deplete its retained earnings and cash on hand in order to fund its operations. This was contrary to Ingrid and Josef’s plan to use those retained earnings as a tax efficient way to fund their retirement; and because Josef pushed Ingrid out of the business, she did not benefit from any of the cash spent by the business after her exclusion.

62The arbitrator then stepped back and considered the nature and effect of the oppressive actions of Josef and the trustees. He concluded Josef and the trustees’ conduct was not only oppressive of Ingrid’s reasonable expectations, it was also “egregious and high-handed” and that they “acted in bad faith and with total disregard of Ingrid’s right pursuant to the shareholders’ agreement.”

63The arbitrator correctly stated the law relating to the remedial principles underpinning the oppression remedy. All of the arbitrators’ findings were available to him on the evidence as he crafted his equitable remedy for the disregard of Ingrid’s reasonable expectations.

64The trustees submit that Ingrid did not prove her damages by, for example, proving dollar for dollar what benefits she lost as a result of the termination of her employment and being pushed out of the business. I disagree.

65The arbitrator was not constrained to fashioning a remedy that was limited to putting Ingrid in the position she would have been in had the company not terminated her employment contract. Based on the evidence Ingrid led at the arbitration, there is absolutely no doubt that she suffered significant losses as a result of Josef and the trustees’ conduct, which the arbitrator found to be egregious, high-handed, and in bad faith. This included the foregone income by failing to rent the Nova Teak space to a third party and the depletion of the retained earnings and cash on hand. The trustees also submit that the arbitrator erred by failing to recognize that Interna and Nova Teak had an agreement that no rent would be charged for their space. I disagree. The arbitrator found that the business made a bad decision by not renting that space to a third party. He did not find that the companies should have been paying rent to each other. The arbitrator had a broad discretion to fashion an equitable remedy that was responsive to the harms caused to Ingrid by Josef and the trustees.

66During oral argument, counsel for the trustees submitted that the arbitrator erred by considering Josef and the trustees’ failure to comply with the temporary support order and to pay the arrears owing on that amount. It is remarkably audacious for the trustees to ask the court to set aside the arbitrator’s award because he considered the effect over eight years of the trustees’ failure to comply with an order of the same court. In any event, the arbitrator was entitled to consider Josef and the trustees’ conduct in crafting his remedy for the oppression. ¹⁵

67In my view, when considering how Josef and the trustees’ oppressive actions harmed Ingrid, the arbitrator was entitled to consider the fact that the oppressors were also not in compliance with the order to pay $7,216 per month in spousal support or the arrears from that order.

68The remedy crafted by the arbitrator is entitled to significant deference. The arbitrator made findings of fact that were supported by the evidence. The trustees have not demonstrated that the arbitrator made an error of law, acted on erroneous principles or based his remedy on irrelevant considerations. The remedy crafted by the arbitrator is not manifestly unjust.

69The appeal of the arbitrator’s award of $275,000 to Ingrid, pursuant to s. 248(3) of the OBCA, is dismissed.

D. The appeal from the occupation rent decisions is dismissed

70In their factum, the trustees appeal from the arbitrator’s award related to occupation rent. They did not press this point during oral argument. The arbitrator:

a. ordered the trustees to pay $45,000 to Ingrid as occupation rent for the King Property, less any amounts paid for expenses;

b. ordered the trustees to pay US $55,000 to Ingrid as occupation rent for the Florida Property, less any amounts paid for expenses; and

c. dismissed the trustees’ claim for $175,000 for occupation rent from Ingrid for the matrimonial home.

71The decision whether to award occupation rent to a party of a marriage is a discretionary, case-specific, fact-based relief designed to address the equities of a given case.¹⁶ The arbitrator may exercise the discretion to award occupation rent when the arbitrator considers it reasonable and equitable to do so.¹⁷

72In this case, I see no basis to interfere with the arbitrator’s exercise of discretion. The trustees do not suggest that the arbitrator made an error of law. The arbitrator spent 56 paragraphs finding facts and explaining why he thought it was appropriate for the trustees to pay occupation rent to Ingrid for two properties. The arbitrator spent 43 paragraphs finding facts explaining why he declined to order Ingrid to pay occupation rent to the trustees. There is no basis for interfering with his findings of fact or his exercise of discretion. I decline the trustees’ invitation to re-weigh all of the evidence before the arbitrator as that is not my appropriate role on this appeal. There is nothing manifestly unjust about the arbitrator’s decision on the occupation rent issues.

E. The appeal from the arbitrator’s failure to permit a further inventory is dismissed

73The trustees appeal from the decision of the arbitrator not to permit the trustees to continue to inventory the contents of Ingrid’s home. They submit that the arbitrator erred in law in not reviewing the nine hours of videotape evidence before deciding the issue. For the reasons set out in paragraphs [33] to [37], I disagree.

74The trustees submit the arbitrator erred in finding that the issue was res judicata. Whether or not the arbitrator erred in so finding does not assist the trustees. After considering the doctrine of res judicata, the arbitrator went on to consider the issue as a matter of first impression and concluded that it would not be appropriate to order the continuation of the inventory:

289. As expressed by the Supreme Court in Danyluk (supra) even if the three part test is not met, the application of the doctrine of issue estoppel is discretionary. The trier is directed to stand back and consider the entirety of the circumstance and prevent any injustice.

290. From a practical point of view any re-attendance would continue to involve the intervention of counsel and no doubt security personnel at a further cost to the parties. Time is another factor to be considered. After many years of litigation, the parties are now at the stage where they need to move on. I cannot help but note that following the May 19, 2022, Award it took the parties some 16 months to arrange the attendance on September 7, 2023. All of this goes to my finding that the Estate continues to delay and protract the resolution of this case.

291. Ingrid is now 94 years old. Further attendance at Edenvale by the Estate would result in injustice. It would constitute disruption to Ingrid at the home she purchased from the Estate and now owns. To my mind re-attendance at Ingrid’s home would not only be unjust but further harassment of her. There must be a point where enough is enough.

292. The Estate’s claim to re-attend at Edenvale and the related claim regarding the CIBC safety deposit box and the storage locker, are dismissed.

75I completely agree with the arbitrator. The parties are at the stage where they need to move on. Ingrid is 94 years old and any further attendance at her home would constitute harassment of her. Enough is enough.

5. Conclusion and costs

76The application and the appeal are dismissed. I urge the parties to resolve the issue of costs. If they are not able to do so, Ingrid may email her costs submission of no more than two double-spaced pages to my judicial assistant on or before February 11, 2026. The trustees may deliver their responding submissions of no more than two double-spaced pages on or before February 18, 2026.

77No reply submissions are to be delivered without leave.

Robert Centa J.

Footnotes

1. 1Tall Ships Landing Development Inc. v. The Corporation of the City of Brockville, 2022 ONCA 861, 476 D.L.R. (4th) 500, at para. 95, leave to appeal refused, [2023] S.C.C.A. No. 29.
2. 2Abraham v. Abraham, 2024 ONSC 5315, at para. 23; The Canada Soccer Association Incorporated v. Association de Soccer de Brossard, 2023 ONSC 1367, at paras. 23-24; and The Tire Pit Inc. v. Augend 6285 Yonge Village Properties Ltd., 2022 ONSC 6763, at para. 23.
3. 3Petersoo v. Petersoo, 2019 ONCA 624, 29 R.F.L. (8th) 309, at para. 35, leave to appeal refused, [2019] S.C.C.A. No. 349; Rathee v. Rathee, 2024 ONCA 912, 8 R.F.L. (9th) 251, at para. 23.
4. 4Pustai v. Pustai, 2018 ONCA 785, at para. 30.
5. 5Murphy v. Murphy, 2015 ONCA 69, 56 R.F.L. (7th) 257, at para. 11.
6. 6Business Corporations Act, R.S.O. 1990, c. B.16 (“OBCA”), s. 248.
7. 7Murray v. Pier 21 Asset Management Inc., 2021 ONCA 424, 156 O.R. (3d) 197, at para. 34.
8. 8Naneff v. Con-Crete Holdings Ltd. (1995), 1995 959 (ON CA), 23 O.R. (3d) 481, 85 O.A.C. 29 (C.A.), at pp. 486-87.
9. 9Wilson v. Alharayeri, 2017 SCC 39, [2017] 1 S.C.R. 1037, at para. 59; Vellenga v. Boersma, 2020 ONCA 537, 152 O.R. (3d) 305, at para. 29; APAC Limited v. Cronin, 2019 ONSC 86, 88 B.L.R. (5th) 264 (Div. Ct.), at para. 21, citing Basegmez v. Akman, 2018 ONSC 812, 141 O.R. (3d) 549 (Div. Ct.), at para. 7.
10. 10Canada Business Corporations Act, R.S.C. 1985, c C-44
11. 11Wilson, at para. 59.
12. 12Wilson, at para. 1; J.S.M. Corporation (Ontario) Ltd. v. The Brick Furniture Warehouse Ltd., 2008 ONCA 183, 41 B.L.R. (4th) 51, at para. 59; Fedel v. Tan, 2010 ONCA 473, 101 O.R. (3d) 481, at para. 100, leave to appeal to S.C.C. refused, 33890 (April 14, 2011).
13. 13Ernst & Young Inc. v. Essar Global Fund Limited, 2017 ONCA 1014, 139 O.R. (3d) 1, at para. 233; Naneff, at para. 22.
14. 14PriceWaterHouseCoopers Inc. v. Olympia York Realty Corp. (2003), 2003 25511 (ON CA), 68 O.R. (3d) 544, 180 O.A.C. 158 (C.A.), at para. 43.
15. 15790668 Ontario Inc. v. D’Andrea Management Inc., 2017 ONCA 1019, at paras. 13-14.
16. 16Jasiobedzki v. Jasiobedzka, 2023 ONCA 482, 92 R.F.L. (8th) 253, at para. 15; Griffiths v. Zambosco (2001), 2001 24097 (ON CA), 54 O.R. (3d) 397, 146 O.A.C. 83 (C.A.), at paras. 49-50; Higgins v. Higgins (2001), 2001 28223 (ON SC), 19 R.F.L. (5th) 300 (Ont. S.C.), at paras. 53-54.
17. 17Griffiths, at para. 54.