Action No. 9903 23367 JOANNE GORUK, Executrix Of The Estate Of WILLIAM JOHN GORUK (Deceased) Plaintiff - v. -, 2003 ABQB 271

Goruk (Estate of) v. Goruk, 2003 ABQB 271 Date: 2003 03 21 Action Nos. 9903 23367, 104199, 9703 01038, 0103 17015 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF EDMONTON BETWEEN: Action No. 9903 23367 JOANNE GORUK, Executrix Of The Estate Of WILLIAM JOHN GORUK (Deceased) Plaintiff - and - PEARL B. GORUK and ANNE SEMENOVICH Defendants AND BETWEEN: Action No. 104199 PEARL B. GORUK Applicant - and - THE ESTATE OF WILLIAM JOHN GORUK (Deceased), METRO GORUK, STEVE GORUK, CHRISTINE NECYK, PETER GORUK and JOANNE GORUK, EXECUTRIX OF THE ESTATE OF WILLIAM JOHN GORUK (Deceased) Respondents AND BETWEEN: Action No. 9703 01038 PEARL B. GORUK Applicant

- and - JOANNE GORUK, Executrix Of The Estate Of WILLIAM JOHN GORUK (Deceased) Defendant AND BETWEEN: Action No. 0103 17015 EVA WOLANSKI TRUSTEE FOR PEARL B. GORUK Plaintiff - and - ANNE SEMENOVICH Defendant _______________________________________________________ MEMORANDUM OF DECISION of the HONOURABLE MR. JUSTICE E. A. MARSHALL _______________________________________________________ APPEARANCES: Gary Romanchuk for Joanne Goruk Christopher Head Michael Savaryn for Pearl Goruk Norman W. Simons

for Anne Semenovich [ 1 ] This is an interlocutory application to restore the titles to real property to the state they were in at the time of the death of William Goruk. Essentially what was sought at the application was an order directed at the preservation of property. The application was brought by Joanne Goruk, the Executrix of the Estate of William Goruk, and was joined in by Pearl Goruk (wife of William Goruk for over 50 years) through her sister, Eva Wolanski.

The affidavits of Joanne and Eva, sworn June 5, 2001, were filed in support of the application. [ 2 ] There are currently four interrelated actions (not including the application for probate): 9703 01038 Pearl Goruk v. Joanne Goruk, Executrix of the Estate of William Goruk contesting William’s will. 104 199 Pearl Goruk v. Estate of William Goruk, et al Family Relief Act Application. 9903 23367 Joanne Goruk, Executrix of the Estate of William Goruk v. Pearl Goruk and Anne Semenovich alleging wrongful conversion of estate assets and undue influence. 0103 17015 Eva Wolanski, Trustee for Pearl Goruk v.

Anne Semenovich alleging undue influence in the transfers of land. [ 3 ] This litigation commenced after the death of William Goruk, the husband of Pearl. His will made no provision for his wife. Their only child, Henry, predeceased William and left his estate equally to his parents. They were executors of his estate. [ 4 ] Four quarter sections of land are in issue: #1. SW5-59-14-W4 #2. SW34-58-15-W4 #3. SE34-58-15-W4 #4. NW34-58-15-W4. Anne Semenovich, a sister of Pearl Goruk, currently has sole title to all four quarter sections. [ 5 ] The evidence is that Pearl Goruk was a joint owner of quarter

section #2, with her son, Henry Goruk and was sole owner of quarter

section #3. Therefore, no interest in those two quarter sections has been established by the Estate of William Goruk. It follows that those two quarter sections are the subject matter of only one action, being 0103 17015, which alleges that the transfer of the lands without consideration to Anne Semenovich was the result of Anne’s undue influence and Pearl’s incapacity. [ 6 ] The evidence with respect to the other two quarter sections, #1 and #4, is that they belonged to Pearl and William’s son, Henry, who bequeathed them to his mother and father in equal shares.

Those two quarter sections were held by Pearl and William as executors under Henry’s will at the time of William’s death. They are the subject matter of Actions 0103 17015, 9703 01038 and 9903 23367. [ 7 ] Joanne Goruk’s Affidavit dated December 13, 2002 contains copies of correspondence from Anne Semenovich indicating that she would transfer the titles back into Pearl’s name, but no such step has been taken.

[ 8 ] Anne Semenovich filed Statements of Defence containing general denials in Actions 9703 01038 and 9903 23367. She also filed an Affidavit dated August 15, 2001 stating that she entered into an agreement with William and Pearl Goruk in 1995 to purchase the “farm properties” in exchange for $40,000.00 and a promise by Anne to continue to care for William and Pearl until they passed away.

She appended a form of receipt to the affidavit. [ 9 ] A mandatory injunction is restorative in nature, requiring the defendant to take whatever steps are necessary to repair the situation in a manner consistent with the plaintiff’s rights. The general principles governing the availability of injunctive relief apply, but the fact of requiring a positive course of action raises special problems: R.

Sharpe, Injunctions and Specific Performance (Aurora: Canada Law Book, looseleaf updated to Nov. 2002) at 1-1. [ 10 ] Rule 467 expressly addresses the power of the Court to order preservation or interim custody of property: 467 Where there is a dispute respecting the title to any property, the court may make an order for the preservation or interim custody of the property or may order the amount in dispute be brought into court or otherwise secured or may order the sale of the property and the payment of the proceeds into court.

The cases dealing with this Rule establish that the criteria for a mandatory injunction apply in determining whether an order should issue. [ 11 ] Park J. in HF1 Fuels Ltd. v. Olsen (2001), 2001 ABQB 117 (CanLII) , 10 C.P.C. (5th) 385 (Alta.Q.B.) applied the tripartite test set out in the American Cyanamid Co. v. Ethican Ltd. , [1975] 1 All E.R. 504 (H.L.) for an injunction in relation to a preservation application: 1. There must be a serious issue to be tried. 2. There must be irreparable harm which is harm for which no fair and reasonable redress would be available after trial. 3.

There must be applied a test of a balance of convenience which favours relief to the applicant. See also Hoff v. Gerk (1999), 1999 ABQB 744 (CanLII) , 252 A.R. 86 (Q.B.) ; British Columbia v. Gover (2001), 17 M.V.R. (4th) 13 (Alta. Q.B.) ; Canadian Derivatives Clearing Corp. v. EFA Software Services Ltd. (2001), 2001 ABQB 425 (CanLII) , 294 A.R. 182 (Q.B.) ; Interclaim Holdings Ltd. v. Down (1999), 1999 ABCA 329 (CanLII) , 250 A.R. 94 (C.A.) ; 688560 Alberta Ltd. v. Genesis Land Developers Ltd. (2000), 2000 CanLII 28201 (AB KB) , 82 Alta. L.R. (3d) 236 (Q.B.) . [ 12 ] In DSWK Holdings Ltd. v.

Mutual Oil & Gas Ltd. , [1996] A.J. No. 582 (C.A.) (QL) , the chambers judge made a preservation order. The majority of the Court of Appeal found there was no urgency and the evidence did not establish a necessity that the property be detained or preserved. There were still many issues to be resolved in the main action and the order was therefore inappropriate. In particular, the Court stated that it may be that in an appropriate case jurisdiction exists, for instance, where waste may be established, or where urgency is shown, to grant an interim injunction.

However, in that case no urgency was shown to require the Court to act on an interlocutory basis and the criteria for injunctions had not been established. [ 13 ] Applying the tripartite test to this case, clearly there is a serious issue to be tried. [ 14 ] In this case, the following matters are relevant to the application. [ 15 ] The Statement of Claim filed by Pearl Goruk in Action 9703 01038 (filed on January 16, 1997) alleged that William Goruk lacked the requisite legal capacity to execute the will signed November 1, 1995. Alternatively, Pearl alleged that William was coerced into signing the Will.

In the further alternative, she alleged that the will made no provision for her benefit, all of the assets of the estate of

William Goruk were held either jointly or in common with Pearl, and as a result of the contributions made by Pearl to acquisition and improvement of the property, her exclusion from the estate is “morally wrong, unconscionable and without just cause”. [ 16 ] The transfer of the four quarter sections into the names of Pearl Goruk and Anne Semenovich took place in September of 1997. [ 17 ] The second transfer into the name of Anne Semenovich alone took place in June of 1999. [ 18 ] The Statement of Claim filed by Joanne Goruk in Action 9903 23367 (filed on December 14, 1999) against Pearl and Anne Semenovich alleged wrongful transfer of the lands and conversion of personal property belonging to the Estate.

It alleged that Anne Semenovich unduly influenced Pearl to transfer the lands, which transfers reflected “nil” consideration. [ 19 ] Pearl filed a Statement of Defence (January 10, 2000) in the wrongful conversion action alleging that she had a legal, equitable and moral right to deal with all of the assets of the estate of William Goruk. She denied having converted to her own use any estate assets, and alleged that any use of the assets was for the purpose of preserving the assets and for day-to-day operation of the farm.

She further denied having been unduly influenced by Anne Semenovich. [ 20 ] Anne Semenovich filed a Statement of Defence (January 11, 2000) in the same action, containing a general denial, and stating that she was aware that Pearl Goruk had filed claims dealing with the will of William Goruk and alleging that Pearl is entitled to the assets of his estate. [ 21 ] An order appointing Eva Wolanski as litigation trustee for Pearl was granted on May 5, 2000. The evidence before the Court with respect to Pearl’s competence included the letter of Dr.

Skelton, dated March 16, 2000, the letter of Peter Fratesi (psychologist) dated January 20, 2000 and the transcript of an examination of Pearl on her affidavit which took place in September of 1999. Peter Fratesi’s opinion letter took into account the difficulties evidenced by Pearl in the transcript of the examination in September of 1999.

That transcript reveals that Pearl was either extremely reluctant, or unable to respond to simple questions, that she wished for Anne Semenovich to attend to reply for her, and that Pearl, by her own admission, relied at that time very heavily, if not totally, on Anne Semenovich for assistance in making decisions. [ 22 ] Eva Wolanski deposed in an Affidavit sworn June 8, 2001 that she had reviewed Pearl’s financial records and was unable to find evidence of any payments received by Pearl for the transfers of land to Anne. [ 23 ] Eva Wolanski filed a Statement of Claim in Action 0103 17015 on August 15, 2001 on behalf of Pearl against Anne Semenovich alleging undue influence in relation to the transfers of land and conversion of other property. [ 24 ] In an affidavit sworn and filed on August 15, 2001, Anne Semenovich deposed that she entered into an agreement with Pearl and William in 1995 for the sale of the farms and machinery in exchange for $40,000.00 and care for Pearl and William during the remainder of their lives.

The receipt appended to the affidavit is signed “Pearl & Bill Goruk” and is dated August 24, 1995. Anne deposed that William Goruk refused to evidence the transaction in writing. The assertion that Pearl and William sold the farms and machinery to Anne Semenovich is not supported by any of the pleadings in this matter. Further, the disputed will was signed by William Goruk on November 1, 1995. Exhibit “G” to Joanne Goruk’s affidavit sworn December 13, 2002 is a letter purportedly written by Pearl on May 30, 2002. She states therein: “Bill shook hands on the sale because of mental illness.

His mind was excellent for his condition at the sale”. [ 25 ] In a letter dated May 6, 2002, Mr. Grotski advised that his notes indicated that a person who picked up Pearl Goruk’s file described herself as Eva Wolanski. In an Affidavit sworn January 17, 2003, Anne Semenovich admitted having taken the file from Grotski’s office in June 2002 and stated that she left it with Pearl. [ 26 ] In Joanne Goruk’s affidavit sworn December 13, 2002, she deposed that Anne Semenovich agreed to re-transfer the lands to Pearl, appending a hand-written letter of Anne Semenovich dated May 7, 2002 to that effect.

A subsequent letter purportedly written by Pearl dated May 30, 2002 states that Pearl does not agree to the re-transfer.

[ 27 ] The only evidence supporting an entitlement to the lands on the part of Anne Semenovich is the statement in her own affidavit, filed one and a half years after her Statement of Defence was filed (which Defence does not assert her entitlement), that she purchased the properties from Pearl and William in 1995. Pearl has put into question William’s capacity to execute his will two months after the alleged purchase by Anne Semenovich. Her ambivalent statements in her letter of May 30, 2002 suggest that William Goruk was mentally ill at the time of the alleged sale to Anne Semenovich.

Pearl’s capacity has been successfully challenged in relation to her ability to conduct litigation, based on evidence from as early as September 1999 (three months after the transfer of the properties to Anne Semenovich). The transfer of the lands into the sole name of Anne Semenovich took place in June 1999.

Given the foregoing, the Court finds that the pleadings and affidavit evidence establish a prima facie case of entitlement either of the Estate and Pearl Goruk, or Pearl alone, in all four of the quarter sections in issue. [ 28 ] Pearl’s position in her pleadings is that she was entitled to the entire estate on William’s death. This contradicts Anne Semenovich’s assertion that William and Pearl had sold the property to her prior to his death.

Pearl’s own transfer to Anne Semenovich would be in keeping with her assertion that she had full ownership of all four quarter sections, but it would be inconsistent with her claim for relief under the Family Relief Act with respect to the two properties in which the Estate has no interest. Further, there is evidence that shortly after the transfers were made, Pearl was unable to articulate direct responses to the most basic questions, including whether she had transferred any land in 1999.

According to the affidavit evidence of Eva Wolanski, there is no evidence in Pearl’s financial records of any consideration actually having passed from Anne to Pearl or William for the transfers. Pearl did make a statement during her examination on affidavit that $2,000.00 was given by Anne Semenovich to William in August of 1995 and the receipt appended to Anne’s affidavit. As stated above, the transcript of the examination of Pearl reveals grave difficulties on the part of Pearl Goruk. [ 29 ] What is the evidence of irreparable harm? As matters stand, the land is beyond the use of Pearl Goruk.

There is no evidence of who is receiving the profits from the land. Pearl is at an advanced age and could find herself in a position at any time where she might require costly care. There is no evidence respecting the ability of Anne Semenovich to pay a judgment for costs. She is beyond the usual age of retirement. It appears evident to me that neither Anne Semenovich nor Pearl Goruk appreciate the significance of the William Goruk Estate caveat on the lands. In the circumstances there appears to be no deterrence to Anne Semenovich transferring the lands further to someone she wishes to benefit.

There appears to be some irreparable harm likely to the Applicants, on balance. [ 30 ] The balance of convenience favours the applicants. While counsel for Anne Semenovich argues that a caveat is on the lands protecting the applicants, this did not deter the transfer of the lands from Pearl Goruk.

The balance of convenience favours the return of the property to its prior state. [ 31 ] The transfers of land to Pearl Goruk and Anne Semenovich, then ultimately to Anne Semenovich, have defeated the proper legal determination of the disposition of the estate of William Goruk. [ 32 ] On the basis of the material presently before the Court, there is a strong indication that the conveyance may have been fraudulent. The circumstances surrounding the removal of Pearl’s file from Mr. Grotski’s office and the mixed messages with respect to the re-transfer give rise to serious concerns.

The Court must be concerned about due process of litigation and the fragile condition of Pearl Goruk, insofar as her legal rights are concerned. There is also substantial evidence that Anne Semenovich agreed to re-transfer the lands, which is another basis for relief. Conclusion [ 33 ] An Order is granted cancelling title to the four quarter sections. They shall be registered in the names in which they stood at the time of the death of William Goruk. [ 34 ] The order of May 5, 2000 is extended nunc pro tunc to grant Eva standing as trustee of Pearl Goruk in relation to Action 0103 17015. Costs

[ 35 ] Costs will be determined in the cause. HEARD on the 25 th day of February 2003. DATED at Edmonton, Alberta this 21 st day of March 2003. __________________________ J.C.Q.B.A.