Goldstick Estate (Re), 2021 ABQB 745

Court of Queen’s Bench of Alberta Citation: Goldstick Estate (Re), 2021 ABQB 745 Date: 20210917 Docket: ES03 070103 Registry: Edmonton Court File Number ES03 70103 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial Centre Edmonton Estate Name Abraham Goldstick Applicant (Plaintiff) Harold Israel Eist and Eleanor Monsma (in her personal capacity) Respondent (Defendant) Miles Jeffrey Goldstick (Residuary Beneficiary in both estates) _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D.

Rooke _______________________________________________________ [ 1 ] This Memorandum of Decision (Decision) relates to the reconsideration application [1] of Miles Jeffrey Goldstick (Mr Goldstick), for which he sought leave on this (and related matters) on June 2, 2021 (to which Rule 9.14 probably does not apply, but Rule 9.15(

b) may apply, at least in part [2] ) in relation to an Order that I granted on May 25, 2021, a form of leave and procedure being allowed by my letter to the parties of June 23, 2021, for the matter discussed below (currently subject to an appeal to the Court of Appeal, filed by Mr. Goldstick on June 24, 2021). For the reasons that follow, the application for reconsideration is denied.

BACKGROUND [2] On August 16, 2018, in a decision cited as 2018 ABQB 610 (Queen’s Bench Decision), I, in effect, dismissed the June 11,2015 applications of Mr. Goldstick to: eliminate his half brother and half sister, Harold Israel Eist and Eleanor Monsma, from inheritingfrom the residuary of his late father’s (Abraham Goldstick’

s) estate, following the passing of their common Mother, Bessie Goldstick[3];and to transfer the main asset of Abraham’s Estate, a bank building in Edson (Bank Property), to himself (as to ½) and his nephew andniece (¼ each). The result of dismissing his application then was that Mr.

Goldstick remained a beneficiary of ¼ of the residual of theestate of Abraham Goldstick (and the same of the estate of Bessie Goldstick under probate of a separate will), but he was found to haveno specific propriety interest in the Bank Property, which to this date remains being owned by Abraham’s Goldstick’s Estate. [3] The relevant parts of this background were summarized (some times in more detail) in both my Queen’s Bench Decision anda decision of the Court of Appeal, of December 17, 2019, which dismissed Mr. Goldstick’s appeal, cited as 2019 ABCA 508 (Court ofAppeal Decision).

Leave to appeal to the Supreme Court was denied on May 14, 2020: . CAVEAT AND APPLICATION TO DISCHARGE [4] On June 11, 2015, at the same time as he filed the application(

s) referenced above, Mr. Goldstick, through Counsel on hisbehalf, filed at the Land Titles Office, a caveat against the Bank Property, claiming “an interest as beneficial owner pursuant to the willof Abraham Goldstick, deceased” – the truth of him having an interest which my Queen’s Bench Decision and all other decisions after itdenied: see Counsel for Ms.

Monsma submissions at page 5, lines 14 – 19 of the transcript of the hearing on May 25, 2021 (short form:TR 5/14-19 – all such references are only in relation to that hearing). [5] On April 22, 2021, in face of the results in decisions referenced above, the personal representative of Abraham Goldstick’sEstate, Ms. Monsma, filed an application and supporting affidavit to discharge the caveat. Mr. Goldstick never, until this reconsiderationprocess, filed any submissions in response – even here, he filed no sworn affidavit.

Moreover, and most relevant and importantly, he hasnever provided a legitimate reason to maintain his caveat. [6] I will not deal, in this Decision, with the issues related to the procedure or substance of the application by Mr. Goldstick toremove or replace Ms. Monsma as the personal representative of the Abraham Goldstick Estate, pre-conditions which may have passed(or, to the extent met, not communicated to Ms.

Monsma’s Counsel - TR 2/25 – 3/1), but the deadline to do so – February 28, 2020[4]-is/may be now foreclosed, without proof of compliance with the pre-conditions (see my comments in para 4 of my letter of June 23,2021 to the parties), such that any such application is/may be deemed to have been dismissed without acceding to his wish to continue torelitigate matters that have been conclusively settled by the Courts: Monsma & Eist Beneficiary Brief (or B Brief) of Aug 3, 2021, para.2. 2.

Indeed, I indicated that I would not deal, and do not deal herein, with any matter unrelated to the caveat discharge Order of May 25,2021: Monsma Personal Representative Brief (or PR Brief) of August 3, 2021, paras 20 – 21 & 24; my letter of April 1, 2021; and para 5of my letter to the parties of June 23, 2021 – except, at the end of this Decision to indicate how I expect those issues will be resolved. QUESTIONING MS. MONSMA ON HER AFFIDAVIT INSUPPORT OF DICSHARGE OF THE CAVEAT [7] Prior to the hearing on May 25, 2021, as to the discharge of, or cause for maintaining the caveat, Mr.

Goldstick indicated hewished to question Ms. Monsma on her affidavit in support of discharging the caveat. However, I find that there is no evidence that hewanted to do so relevant to any legal or legitimate basis to file (or maintain) a caveat against the Bank Property, but, rather, for anirrelevant, improper and abusive procedural purpose, namely for the sole purpose of challenging Ms. Monsma in her administration ofthe Abraham Goldstick Estate, an independent application by Mr.

Goldstick which remains extant, pending proof of fulfilment ofconditions arising from my Queen’s Bench and the Court of Appeal Decisions: I agree with the submission in paras 16 & 21 of theMonsma Brief; moreover, see para. 3 of my letter to the parties of June 23, 2021. [8] Additionally, as to the procedure for any valid cross-examination, it was a condition of my Queen’s Bench Decision, notaltered by the Court of Appeal Decision, that any cross-examination of Ms.

Monsma be done by a member of the Law Society (see para 3of my June 23, 2021 letter to the parties), or through the use of written interrogatories, and there has never been any indication of Mr.Goldstick that he intended to proceed in this fashion, but he continues to challenge same: Monsma PR Brief, paras 17-19; Monsma & EistB Brief, para. 2, 3. [9] Providing more details of this issue, as I introduced at TR 4/8-14, Mr. Goldstick, prior to the hearing, indicated that wantedto examine Ms. Monsma on her affidavit that he claimed (I find, falsely) related solely to the discharge of the caveat.

However, as notedabove, I find that it is clear that what he really wanted to do was to examine her more broadly on her handling of the Goldstick Estate andin aid of his pending application to discharge her as personal representative of that Estate.

Indeed, in his July 20, 2021 Brief[5], herepeatedly says that his issue in filing a caveat was not his claim for a property interest in the Bank Property, but for the “deficientbehaviour of the executrix”: paras 3, 4 and et seq of his brief; see also reference to same at item 12 of his letter to the Court dated June14, 2021. [10] Indeed, his whole July 20, 2021 Brief is a complete abuse of process, in attempting to re-litigate the decisions that havealready been made about Abraham Goldstick’s Estate.

Moreover, in his Reply Brief of August 13, 2021, he continues to tie the caveat,not to an interest in the Bank Property, but to the administration of the Abraham Goldstick Estate: para. 3: “It is not possible to come toan accurate conclusion to discharge my caveat without disclosure of estate documentation by the executrix...”; and para. 32: “I thusmaintain my position that the application to discharge my caveat should be treated as subordinate to urgently ordering an interim passingof accounts and disclosure of estate information”.

[11] As I noted at TR 4/8 - 25: “... in Alberta [there] is a pretty automatic right to cross-examine on matters relevant to [an]application”. Mr. Goldstick referred to this in his unauthorized letter of July 14, 2021[6], and relied on Alberta (Attorney General) v.Alberta Power

(2000) Ltd., 2017 ABQB 195. However, his request was not in relation to his rights to register and maintain his caveat –thus it was for an improper purpose, and, moreover, contrary to a condition requiring any such cross-examination to be by a member ofthe Law Society. [12] However, there is no absolute right to cross-examine on an affidavit: see the oral decision of Justice Labrenz (unreported, buta transcript is available) on August 12, 2021, in Berman v.

Berman, Action No. 4801-169252, where he referenced Rules 6.7 and 6.8 andsaid (verbatim from the transcript): ... the Courts including the Alberta Court of Appeal has said that the right to cross-examine is not an absolute or unlimited right. TheCourt of Appeal case Point on the Bow Development Limited v. William Kelly & Sons Plumbing Contractors Limited, 2004 ABCA 53, [2004] 346 AR 171 at paragraph 7 where the Court says in part: A request to cross-examine may be denied in instances where the examination would be totally frivolous or is only designed to forestallthe proceedings.

Similarly, the Court can deny cross-examination where there is no reasonable prospect that the cross-examination may have an impact on the outcome of the application. Re: Battery Plus Incorporated, (ON SC), [2001] 29 CBR (4th) 191, a bankruptcycontext. Those passages ... are quoted with approval of Mr. Justice Lee of this Court in a case called Murphy v. Cahill, 2012 ABQB 220 atparagraphs 23 and 24. There are similar sentiments expressed in terms of agreeing with those propositions by Mr. Justice Macklin of this Court in a case calledKahara Bodas Company, LLC v.

Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 2009 ABQB 482. [13] In other words, on a broader basis, cross-examination will not be allowed if it is an abuse of process, including here, forattempting to relitigate/challenge decisions that conclusively deny an interest in the Bank Property. Moreover, cross-examination relatedto other applications in the same litigation is also an abuse of process. In the result – and, perhaps with more potential reasons – I didthen conclude and rule (TR 6/36-41) that, Mr. Goldstick: ... wishing to cross-examine [Ms.

Monsma] ... and failing to deal with the order of the Court of May 15, 2017, with respect toexamination of the Executrix, and failing to demonstrate that he had questions relevant to the validity of the caveat as opposed to thingsthat the Executrix might lawfully do afterwards.,[7] would not be permitted such an examination of Ms. Monsma’s affidavit on the application to remove his invalid caveat. FAILURE OF MR. GOLDSTICK TO ATTEND MAY 25, 2021HEARING [14] That application was heard by WebEx on May 25, 2021 (transcript produced as part of the Monsma Brief).

All partiesattended through Counsel, or in person (including Andrew Sloniowski), except Kathlyn Sloniowski, and Mr. Goldstick, who, as theCounsel for Ms. Monsma stated “... had trouble connecting with the virtual courtroom”. [15] While Mr. Goldstick claims that he was prevented access to the virtual hearing on May 25, 2021, for various reasons beyondhis control, I find that, as I said to the parties at the hearing (TR 5/33-36), Mr. Goldstick was given all the information to join the hearingand failed to do so, and, as I said, in my subsequent letter of June 23, 2021: “... the Court’s investigations are that Mr.

Goldstick did notattend the hearing of May 25, 2021 (although he tried) because he did not (due to technology or other issues) contact/access the correctcommunication links (that all other parties had and were able to access the hearing)”. Moreover, while blaming others (“there was someother technical/human error not within my control”: unauthorized email of Mr. Goldstick of May 26, 2021 and similarly repeatedthereafter), he admitted – by another email of the same date - that there were “computer/Internet issues at my end”.

In the result, Iconclude that his failure to attend at the May 25, 2021 hearing was due to matters within his control. In other words, I find that hisinability to access the hearing was due to his fault, no one else.

Yet, by unauthorized letter of July 2, 2021, he still argues that theapplication to discharge the caveat “does not give ‘the correct communication links’...”. [16] Nevertheless, in the result, all of this is now substantially irrelevant, as is, inter alia, para. 5.2 of his Civil Notice of Appeal,because he had now been given a broad right to address reconsideration herein – an ability to submit written submission that he wouldotherwise have been able to make on May 25, 2021 to show cause why his caveat should be maintained – he still has not done so. Thus,while Mr.

Goldstick’s blames others, and seeks pity, for his inability to register for the WebEx hearing, not unlike his argumentsconsidered in the Court of Appeal (parts and the substance of paras 13, 29, 30, 32, and 54-60 of the Court of Appeal Decision), in theend, he is to blame for his own failure, but that is all irrelevant as a result of him being given a chance herein to address areconsideration, but still failing to provide a legitimate reason to maintain the caveat. SUBSTANCE AS TO MAINTAINENCE OF THE CAVEAT [17] As to the substance, at no time or place, even with reconsideration offered to Mr.

Goldstick, has he shown, as required by s.141 of the Land Titles Act, cause why his caveat should not be discharged.

[ 18 ] Further, as to the substance, as noted above , Mr. Goldstick never did justify (show cause) why his caveat should be maintained on the merits of his alleged interest in the Bank Property, required by s. 130 and 141(1) of the Land Titles Act (there has been a conclusive and final decision that no such interest was ever existent or remains), but rather he alleges irrelevant grounds for maintaining the caveat: “the deficient behavior of the executor is the sole reason for my caveat...”.

Moreover, if and when the Bank Property is sold by the personal representative of the Abraham Goldstick Estate, “any net sale proceeds will form part of the estate”, for distribution according to law, subject to an offset for costs against Mr. Goldstick: Monsma PR Brief, paras 10 – 15; Monsma & Eist B Brief, para 2. 1. [ 19 ] Finally on this point, I believe his application for reconsideration, much like his complaint about unfair treatment and application to admit fresh evidence in the substantive case, as referenced in the Court of Appeal Decision paras 58 - 60, is without substance.

To quote the Court of Appeal, there, and I now find here, at para 58, “He was given a fair and ample opportunity to present his case”; at para. 59, “No procedural unfairness has been shown” (especially when he was given an opportunity to provide further submissions in writing -in the within reconsideration - both original and in reply); and, at para 60, “Much of the tendered evidence could have been placed on the record prior to the [virtual WebEx] hearing before the case management judge. Little of it is relevant, and none of it might reasonably be expected to affect the outcome”.

REASONS TO DENY RECONSIDERATION [ 20 ] There may be other reasons why I might find the application for reconsideration to be without merit. However, in substance they come to this. [ 21 ] My Court of Queen’s Bench Decision and the Court of Appeal Decision clearly rule that Mr.

Goldstick had, and has, no property interest in the Bank Property, and his attempts to continue to make this demand through the attempt to maintain the caveat reflect an attempt to relitigate issues already decided, recognized in like fashion in the Court of Appeal Decision: Monsma PR Brief, para 19, referencing the last sentence of para 49 of the Court of Appeal Decision. [ 22 ] At various times since May 25, 2021, Mr. Goldstick has asked that my Order of that day be stayed, pending appeal. I have never granted such a stay and will not do so in this Decision.

Thus, having now, herein, rejected his application for reconsideration on the substance of the matter, my Order of May 25, 2021, striking the caveat, remains in full force and effect, as it has been since that date, reconsideration now being denied. If Mr. Goldstick seeks a stay pending appeal, he may apply to the Court of Appeal. COSTS [ 23 ] Costs on the reconsideration application, are granted to Ms. Monsma, as may be taxed before the Assessment Officer.

CONTINUING APPLICATIONS AND CASE MANAGEMENT [ 24 ] After all the history of this case and my involvement with it (as discussed, in part, at TR 3/ 3 – 4/6), and in accordance with my letter of April 1, 2021 to Ms Ward (reproduced in the Monsma PR Brief), I resign in the capacity of Case Management Justice, effective immediately.

Any application to continue case management with another justice must be made to Associate Chief Justice Nielsen, who has the deciding jurisdiction in relation to case management of Edmonton based cases. [ 25 ] Any applications that are pending (several have been sought by letter, without formal filing of applications for leave on the substance), subject to any remaining conditions, following the Court of Appeal Decision, can be brought, absent further direction from Associate Chief Justice Nielsen, in ordinary Civil Chambers or other procedure before another Justice. [ 26 ] To particularize same, there are several pending applications to be heard, if leave were to be given by the Case Management Justice, under the “Condition and Guidelines for Case Management”, set out on August 24, 2016, when I first became CMJ. [ 27 ] One of the applications for which leave has been sought (informally, and formally on May 19, 2021), which I have not decided pending this matter, but which I can now disclose that I would decide in the negative on the law and all the facts now known to me, is for leave to bring an application for my recusal.

Without getting into the facts alleged against me, the majority of which could be absolutely be refuted (e.g. bias for invoking Rule 9.4(2(

c) in relation to the approval of the Order of May 25, 2021 – that Rule only applies to parties who attended – Mr. Goldstick did not attend), there is no legal basis for me to ultimately grant such an application that I recuse myself: see the legal considerations in other cases where my recusal was sought, as summarized in Simon v. Feeney , 2020 ABQB 641 , and cases referenced therein, and, in particular paras 15 -33, to the extent applicable. In addition to the legal principles that would deny such an application, to be clear, I deny any factual basis for allowing such an impossible application to proceed.

Cut to its core, Mr. Goldstick’s factual basis for such an application is that I have not granted his applications and have held against him, which is not a legal basis for recusal. Thus, I would have denied leave on the basis of the law and the fallacy of the allegations that he makes. However, I now don’t need to detail same because of the reason that, absent leave (which I would not grant), and absent any legal or factual basis for me to grant leave to hear such an application or to actually grant such an application to recuse myself, I now do recuse myself, voluntarily, and on my own volition.

Accordingly, not for any reasons of impropriety on my behalf, but because of the continual abuse of the process of the Court in this hopeless application and conduct by Mr. Goldstick, regarding his opposition to removal of his caveat, I have now, as this date (but not before) lost all of my judicial objectivity vis-à-vis Mr. Goldstick, caused by his legal abuse of process herein. Therefore, I recuse myself from hearing any other matters involving Mr. Goldstick these actions, on my own motion.

[ 28 ] Another matter that is pending is his application for leave (brought informally for some time, and, perhaps more formally, but I have not searched for same) to bring an application to have Ms. Monsma removed as personal representative of the Abraham and Bessie Goldstick Estates, and/or for an order compelling her to provide an accounting and related relief regarding the administration of the Estates. For reasons that are on the record, and having regard to the facts that appear evident, while Ms.

Monsma was challenged in the litigation addressed in my Queen’s Bench Decision and the Court of Appeal Decision, I would have given leave to Mr. Goldstick to bring such applications, I will not actually now do so now. He can apply to any new case management justice appointed to secure leave, if and as necessary, or, if none is appointed, can proceed with such application(

s) before another member of the Court, in Chambers, all subject to the directions of Associate Chief Justice Nielsen. [ 29 ] As to other applications that flow from the Court of Appeal Decision, they can be determined by another member of the Court, my having recused myself, as above – in essence, no different than had I retired or died. [ 30 ] I now terminate my involvement in these actions. Heard on the 25 th day of May, 2021, with reconsideration thereafter pursuant to written submissions of the parties of July 20, August 3 and August 13, 2021.

Dated at the City of Edmonton, Alberta this 17 th day of September, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: Helen R. Ward and Haley Edmonds for the Applicants Miles Jeffrey Goldstick on his own behalf