Serediak v Serediak Estate, 2013 ABQB 93

Court of Queen ’ s Bench of Alberta Citation: Serediak v Serediak Estate, 2013 ABQB 93 Date: 20130207 Docket: 0603 03956 Registry: Edmonton Between: Paul Serediak Plaintiff - and - Meyers Norris Penny Ltd., Court Appointed Executor and Trustee Under the Last Will and Testament of Orest Serediak, Deceased, and Olessia Serediak Defendants _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Brian R.

Burrows _______________________________________________________ [ 1 ] Paul Serediak alleges that Olessia Serediak is in contempt of an order that she appear for continuation of questioning on September 5, 2012 and seeks various remedies. In the application document the remedy sought was an order that she appear or alternatively be arrested and brought to Court to show cause why she should not be held in contempt, an order for thrown away costs, and such further relief as the Court might deem necessary, just or equitable. At the hearing, the remedy sought was an order that Ms.

Serediak be prohibited from testifying at trial.

[ 2 ] The history of this litigation is complicated. Five years of that history, from the date of Orest Serediak ’ s death in March 2004 until June 2009, is traced in a decision I issued on June 18, 2009 (

(2009) ABQB 373). [ 3 ] In very brief

summary, in his Will, Orest Serediak left the bulk of his estate to his widow Olessia Serediak. This included land and bank accounts worth about $500,000 at the time of the application for probate. He left his brother Paul Serediak farm machinery and “ related farm buildings ” . In this action, Paul Serediak claims that he contributed his labour for many years to the working of the land on the understanding that when Orest Serediak died he would inherit a significant portion of the land. He alleges a trust or unjust enrichment. [ 4 ] My first involvement was in March 2009 when Paul Serediak applied for

summary judgment. By that time Olessia Serediak ’ s defence had been struck. I denied

summary judgment. I said: . . . it is clear to me that it would not be just to grant judgment for the relief claimed in the Amended Statement of Claim, at this stage of the proceedings, without a further attempt being made to have the evidence relevant to the issues carefully presented before the Court and tested by cross-examination. . . . I recognize that Paul Serediak and his counsel have encountered difficulty securing cooperative responses from Olessia Serediak in this action.

However, in my view it would be unjust to grant Paul Serediak the relief he seeks given the extensive conflicts in the sworn materials filed in the proceedings. The Court requires confidence that Paul Serediak ’ s claim is just. The filed materials do not permit the Court to have such confidence. [ 5 ] I was appointed to case manage the action in 2009 after I issued the decision referred to above. The steady stream of complications continued unabated. Olessia Serediak has retained and lost two more lawyers.

She attended one session of questioning which was terminated by counsel for Paul Serediak when Olessia Serediak ’ s counsel objected to many questions. At the subsequent application for an order that she answer, I agreed with her counsel that the questions were inappropriate and dismissed the application. Months later, after efforts to arrange continuation of questioning by service of appointments failed, Paul Serediak applied for and was granted an order requiring Ms. Serediak to appear for resumed questioning on September 5, 2012.

By then her counsel had lost contact with her and was not certain she had received the order when he sent it to her. [ 6 ] Ms. Serediak is again without counsel. (Her most recent counsel, Mr. Hladyshevsky appeared at the hearing of this application as a courtesy to the Court, though he had ceased to act.) The materials on this application do not establish that Ms. Serediak has personally received notice of this application. Neither, as previously mentioned, do they establish that she had personal notice of the order requiring her to attend for resumed questioning in September 2012.

In my view, both must be established before the custodial type of order sought in the Application as filed could be granted. [ 7 ] At the hearing of this application, Paul Serediak sought a remedy different from that outlined in the Application document. He sought an order preventing Olessia Serediak from testifying at the trial of this action as a penalty for contempt.

He relied on Rule 10.53(1). [ 8 ] Whether or not such an order is available under that Rule and whether or not it could be granted even though it is not certain that Olessia Serediak had knowledge either of the order requiring her attendance for resumed questioning in September 2012 or of this application, I will not grant such an order in the circumstances of this case. [ 9 ] Olessia Serediak ’ s Statement of Defence has been struck out. She will not be entitled to participate in the trial of this action as a party Defendant.

The order sought would punish the other Defendant, the Executor, who is not in contempt. There should be no impediment on the Executor ’ s ability to call Ms. Serediak as a witness. In my view, the appropriate consequence for her failure to cooperate in pretrial processes will be such inferences against the acceptance of her evidence, if she eventually testifies, as are sought and

the trial judge considers appropriate to draw. [ 10 ] I dismiss this application. [ 11 ] From what I can see, no further pretrial processes will make this matter more ready for trial than it is. It appears that the time has come for Paul Serediak and Olessia Serediak (if she will cooperate) and any other witnesses with relevant knowledge, to testify and be cross-examined before a judge and for a judicial determination to be made. I call on counsel to have this matter set down for trial. If an order is required to facilitate that, I invite counsel to apply for it, perhaps as a matter of consent.

If I have failed to appreciate some aspect of the matter that requires further pretrial process, I invite counsel to raise it in opposition to such an application. Heard on the 14 th day of November 2012. Dated at the City of Edmonton, Alberta this 7 th day of February 2013. Brian R. Burrows J.C.Q.B.A. Appearances: Duncan E. M. Wood for the Plaintiff Sandra L. Hawes for the Defendant Meyers Norris Penny Ltd. Olessia Serediak, unrepresented, did not participate Andrew Hladyshevsky, Q.C., former Counsel for Olessia Serediak appeared as a courtesy to the Court