Bizon Estate (Re), 2014 ABQB 783

Court of Queen ’ s Bench of Alberta Citation: Bizon Estate (Re), 2014 ABQB 783 Date: 20141219 Court File Number ES03 133355 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial District Edmonton Estate Name Julian Aloisius Bizon, also known as Julian Bizon, also known as Julian A.

Bizon, also known as Julian Alosius Bizon Applicant Emil Bizon Respondent Victoria Bizon Personal Representatives Victoria Bizon, Emil Bizon Beneficiaries (Residuary) Emil Bizon, Stanley Bizon, Mitchell Bizon, Roman Bizon, Victoria Bizon, Terry O’Donnell, Cindy Bizon, Stanley Kanarek, Barbara Lupul, Anthony Kanarek, Bernice Chamzuk, Cassie Kanarek, Francis Kanarek, Tom Kanarek, Sherrie Kanarek, Michael Kanarek _______________________________________________________ Memorandum of Decision and Reasons on Leave of the Associate Chief Justice J.D.

Rooke _______________________________________________________ [ 1 ] On July 29, 2010, Julian A. Bizon (the Testator) executed a will in which he designated his siblings, Victoria Bizon (Victoria) and Emil Bizon (Emil), as co-executors. [ 2 ] His will provided that “[i]t is my wish that my remains be buried in the Prosperity Cemetery following a funeral service

conducted according to the rites of the Roman Catholic Church at Prosperity, Alberta”. [ 3 ] The Testator (thereby the Deceased) passed away on November 25, 2010. [ 4 ] An application for Probate of the Deceased’s Estate (Estate) was filed on February 16, 2011, and Probate issued on March 3, 2011. [ 5 ] Almost immediately after the Deceased’s death, and even before Probate, his co-executors have been in constant battle in person and in this Court (with one or more forays to the Court of Appeal).

Since Probate issued, while he apparently took appropriate steps to realize value for the Estate assets, as reflected in Read, J.’s decision (below), Emil has constantly bullied Victoria with a continuous attempt to wrestle the co-executorship of the Estate from her, and making continuous allegations against her and her Counsel, Robert Speidel.

The material on the Court file is extensive, and there have been significant costs awarded against Emil in the litigation he has commenced to try to remove his co-executor. [ 6 ] With much history in between, the Estate is now at the point of near final distribution, subject to settling some accounts of Emil claimed against the Estate.

I say “much history” because the record and transcripts of hearings would require many thousands of pages of material, wherein many of the background facts relevant to the decision herein lie, but which I will not herein mine – indeed, if I were to do so, I believe I would find more material to support the result herein.

During the time since Probate, over the last 3 plus years, Emil has brought many applications, alleging improprieties or worse against Victoria, and her Counsel, almost all of which have been dismissed, with costs (some on a solicitor-client basis), either payable from his inheritance or directly. Yet he continues to persist in such applications at every opportunity. [ 7 ] Illustrative of this course of conduct by Emil is seen in the decision of Read, J. of our Court rendered on October 9, 2012: 2012 ABQB 605 .

Therein she described the dysfunctional co-executor relationship: [3] Even before probate issued and certainly since, the co-executors have had difficulties cooperating with one another. Emil Bizon insists that his sister Victoria has done nothing to forward the administration of the estate and has, instead, actively obstructed this process. Victoria Bizon insists that her brother Emil has excluded her from the estate administration and attempted to remove her as an executor …. … [5] Emil Bizon has made five court applications on behalf of the estate [to the date of Justice Read’s Decision].

The first, made on December 6, 2011 before Ross, J was to remove Victoria Bizon as co-executor . A similar application was made before Ouellette, J on February 6, 2012. Both were dismissed. On April 2, 2012, Emil Bizon applied before Crighton, J to have Victoria Bizon found in breach of trust . This application was also dismissed…. In addition, Emil Bizon appeared before the taxing [review] officer on May 31, 2012 to tax [review] the accounts of Victoria Bizon’s counsel. [1] … [14] One of the applications before me was brought by Emil Bizon ostensibly as an application for advice and directions.

However, I concluded that in substance it was a further attempt to have Victoria Bizon removed as an executor and otherwise to complain that she had actively obstructed the proper administration of the estate . Emil Bizon had made similar complaints before Ross, J, Ouellette, J, Crighton, J and before the taxing [review] officer. [15] From my review of the court file and the various applications and orders made, Victoria Bizon has been almost entirely successful and Emil Bizon has been almost entirely unsuccessful in these various applications.

Furthermore, in the case before me, Emil Bizon again raised claims of bad faith, deviousness and lying by Victoria Bizon…. There was little evidence to substantiate these claims and, as I noted in my reasons, all of these allegations have been before this court in previous applications made by Emil Bizon. All of these previous applications were dismissed. … [17] In my view, none of the applications made by Emil Bizon, with the exception of the December 2011 application before Ross, J and the application for probate were necessary or helpful in the administration of the estate.

Indeed, they were duplicative and were found to be without merit by each of the judges who heard them. They seem [to] have been attempts of various sorts by Emil Bizon, ostensibly acting on behalf of the estate, to have his co-executor removed or censured. They were brought against Victoria Bizon as co- executor…. She had no choice but to respond to these applications and did so. She was entitled to be and was represented by counsel throughout. … [19] In my view, this is a clear case for an award of solicitor-client costs. … Emil Bizon chose instead to criticize, denigrate and try to bully his sister.

He actively sought to remove her as co-executor. [20] The fight between the executors seems to have been personal and did nothing to forward the administration of the estate. Instead, Emil Bizon’s actions exacerbated the tensions between the co-executors and prolonged the administration of the estate…. [21] … Unfounded allegations of misconduct, deceit and bad faith were made [by Emil] against her. … … [23] In my view, the costs should be paid by Emil Bizon personally and not by the estate. Most of the applications made by Emil Bizon did not benefit the estate or move along its administration.

Some were, in substance, duplicates of earlier applications, already

dismissed and relied upon the same allegations. I note, for example that the application before Ouellette, J in February, 2012 was essentially the same application made before Ross, J in December, 2011. … Indeed, it appears that the same evidence that was before Ross, J was put before Ouellette, J. Another application seemed, frankly, bizarre and an abuse of process . The application before Crighton, J. heard in April, 2012, was filed only three weeks after Ouellette, J had dismissed the application before him.

In it, Emil Bizon alleged that Victoria Bison was in breach of trust because she had been instrumental in ensuring that the testator’s body had been buried rather than cremated…. [24] These applications made by Emil Bizon did not benefit the estate and simply delayed distribution.

They seem to have been either an attempt to settle personal scores with his sister, the co-executor or an effort to obtain the removal of his sister as co-executor so that he could administer the estate himself, contrary to the express intention of the testator.… [Emphasis added throughout.] [ 8 ] Since then, applications by Emil (February 19, and May 2, 2014) to have Victoria declared in contempt for failing to carry out the duties and responsibilities of co-executor and to be removed as co-executor , have been dismissed with costs, and costs on a solicitor-client basis respectively, by Manderscheid J. (March 3 and May 6, 2014).

Additionally, on February 27, 2014, Pentelechuk J. ordered that the cremated ashes of the Deceased be delivered to Victoria for a religious ceremony and reinterment at the gravesite, and the grave marker be reinstalled, at the cemetery at Prosperity, Alberta, and that all costs associated therewith be the sole expense of Emil . To my knowledge, none of these Orders have been appealed. [Emphasis added.] [ 9 ] One of the early issues between the executors was whether the body of the Deceased would be buried in a grave in the usual fashion or cremated.

While there is evidence that the Catholic Church accepts cremation, it could not happen, in accordance with the Deceased’s wishes in the will, in accordance with the rites of the Church, until after the funeral mass. [ 10 ] It appears to me (from evidence to which I will refer below) that there were arguments between the co-executors as to burial or cremation, with Victoria favouring burial and Emil favouring cremation.

While, as I will allude to below, it appeared that Emil convinced Victoria on cremation between the death and funeral of the Deceased, Victoria changed her mind, and, based on her wishes, the Deceased was buried. [ 11 ] Among his many applications, on February 4, 2012, Emil brought an application before Crighton J. to determine whether Victoria “is in breach of trust for failure to comply with the wishes of the … [Deceased] … to have his remains cremated and buried …”, alleging an agreement by Victoria to do so prior to the funeral, and seeking leave for the disinterment of the remains, cremation of them and re-burial of them.

His application was denied, with costs to Victoria . [Emphasis added.] [ 12 ] Notwithstanding Justice Crighton’s Order in relation to that application, Emil unilaterally had the remains disinterred and cremated, and has sought the costs of doing so. In an application not connected with this one, but for which a finding herein favourable to Emil would have a potential impact on the claims related to the cremation that he seeks, his claim has previously been denied. On September 4, 2014, I ordered Emil to pay Victoria for the cost of reinstallation of the grave marker at the Cemetery in Prosperity, Alberta.

On October 3, 2014, I disallowed Emil’s claim for disinterment expenses. To my knowledge, neither of these Orders has been appealed. [ 13 ] Resulting from the disinterment, it appears, he was charged on December 3, 2013 that he “[o]n or about the 14 th day of November, A.D. 2012, at or near Edmonton in the Province of Alberta did knowingly provide false or misleading information to the Registrar contrary to

Section 73 of the Vital Statistics Act.” As explained during the trial of the matter (discussed below), the issue was whether the statement in Emil’s application for disinterment that “[T]he two executors came to an agreement that the deceased wished his remains to be cremated, and he had stated so clearly to both of them” was a false or misleading statement. [ 14 ] Moving forward in time, after much litigation in our Court, I became involved in June 2014 and, on the Court’s own motion, became the Case Manager of this matter on June 13, 2014.

As part of my “Conditions and Guidelines of Case Management” set by letter to the parties on that date, it required any self-represented litigant (SRL) to obtain leave from me before bringing an application before the Court – in this instance, me, as Case Manager. The purpose of that condition is that, while lawyers are officers of the Court and are supposed to know and follow the law, SRLs are not officers of the Court and do not always know and/or follow the law.

Indeed, in my experience of more than 23 years on the bench, I often find that SRLs, because of their lack of knowledge or (in some small number of cases) malice - seek to bring applications that have no merit, or are vexatious, or an abuse of process.

Emil’s conduct in this litigation becomes the “poster boy” of the merits of such a leave process – to prevent the waste of the Court’s time, and costs to innocent parties. [ 15 ] As Case Management Justice, I have dealt with a number of matters within the Estate such that (as alluded above) it is now almost ready for final distribution, with the major remaining issue being only the determination of the expenses (if any) from the Estate to which Emil is entitled.

With the Court having ruled that he is not entitled to expenses related to the cremation, he now raises a recent event – the trial on the charge against him, on October 14, 2014, to reinvigorate his now dismissed claim. [ 16 ] The matter of the charge against Emil (above) came forward for trial on October 14, 2014, and at that time Judge Mahar dismissed the charge. [ 17 ] On the basis of that finding, because Emil is a SRL, pursuant to the aforementioned Conditions and Guidelines for Case Management, on November 5, 2103, he sought leave from me to bring an application to, inter alia : order the “ dismissal of Victoria … as Co-Executor ” and order “the recovery from Victoria … of all costs stemming from her contravention of the clearly expressed wishes of the deceased regarding the final disposition of his remains”. [Emphasis added.] [ 18 ] As the grounds for his application, he asserted that: In a trial held in Provincial Court in Boyle on October 14, 2014, it was decided by [Judge] Mahar, after testimony and cross-examination of witnesses, that there was an agreement between the two co-executors that the deceased wished his remains to be cremated.

Victoria … broke this agreement and violated the wishes of the deceased.

The violation must dis qualify her from further participation in the management of the affairs of the estate…. [ 19 ] I indicated that I would not rule on the leave application until I had a transcript of the Reasons of Judge Mahar, which I received on December 8, 2014. [ 20 ] A fair reading of Judge Maher’s Reasons would indicate that he concluded that there was likely an agreement between the co- executors immediately after the death, due to the pressure put on Victoria by Emil, that the remains of the deceased would be cremated, but that Victoria, genuinely believing that the Deceased did not want to be cremated, reneged on any agreement, and that, in the result, the Deceased was buried.

He also effectively held that each believed sincerely in position that they had taken as to their perception as to the real intent of the Deceased. Indeed, in his judgment he said: … he’s [Emil is] entitled to be acquitted. I have a great deal of sympathy for the position [Victoria] found herself in. I suspect she was in fact … bullied by her older brother [Emil]. He’s a very domineering personality. It’s clear from the way he testified today that he’s used to having his way, and he’s used to having his way one way or another by leveraging, by badgering, by bullying.

I have no doubt that both of them have their own idea as to what the deceased wanted, and I have no doubt that in the mind of [Victoria] cremation was not consistent with what else he wanted in terms of Roman Catholic rights. And at the same time I have no doubt in his mind that [Emil], the accused, thought that his brother wanted to be cremated. And I have no doubt that in [Emil’s] mind, they had a deal. … [Victoria] alluded to the fact that she caved in. Well, if she caved in, that was indicative of some kind of an understanding or an arrangement. [Emphasis added.] He concluded by dismissing the charge.

Thus, properly interpreted, he simply found that the Crown had not proved Emil’s guilt beyond a reasonable doubt. That is different than a finding that Victoria was “in breach of trust for failure to comply with the wishes of the … [Deceased] … to have his remains cremated”, which is the basis for Emil seeking her removal yet another time. [ 21 ] In the result, rather than Judge Mahar finding, as Emil asserts, that he, Emil, was correct as to the wishes of the Deceased, what Judge Mahar really did was simply have a doubt as to Emil’s guilt and therefore found him not guilty.

Thus, the finding of Judge Mahar does not support the conclusion that Emil seeks – that is, it does not support a conclusion that, in fact, Victoria was “in breach of trust for failure to comply with the wishes of the … Deceased … to have his remains cremated and buried …”. [ 22 ] With the above background, plus the real and clear meaning of this alleged new evidence before Judge Mahar, properly understood, I have concluded that any person with legal knowledge would conclude that Emil cannot be successful in proving the fact he alleges that Judge Mahar found, which Judge Mahar did not, in fact, find.

Thus, his application on this basis could not succeed and leave should not be granted, because it would result in costs to the co-executor incurring costs to defend an application without merit. Moreover, Emil is a vexatious litigant, in the context of this action – continuing to bring the same or substantially the same application that has been litigated and decided (in this case dismissed with costs) before. This is because, on various grounds, he keeps seeking to have Victoria discharged as co-executor.

However, he should not have endless opportunities to try to do so, especially when the Estate is almost wound up, and the role of both co-executors near the end. [ 23 ] This means that there is no new and clear evidence of misconduct on behalf of Victoria, as Emil asserts, but yet another application on substantially the same grounds and allegations as previous applications to dismiss his co-executor, all of which applications have been dismissed with costs.

To allow yet another such application to proceed, especially at the near conclusion of the administration of the Estate, would be an abuse of process. [ 24 ] Thus, leave to bring these applications is denied prior to the formal application stage on the basis of the material relied upon by Emil, without any need to hear the parties further, and without costs to any party, as, due to me refusing leave without appearances, there are no costs to be recovered. Dated at the City of Edmonton, Alberta this 19 th day of December 2014. J.D. Rooke A.C.J.C.Q.B.A. Appearances:

Emil Bizon Self-Represented Robert A. Speidel for Victoria Bizon