2021 QCCA 449, 2021 QCCA 449

Obodzinski c. Succession de Kalimbet Piela 2021 QCCA 449 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029149-200 ( 500-17-096485-167 ) MINUTES OF HEARING DATE: March 18, 2021 CORAM: THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. SUZANNE GAGNÉ, J.A. LUCIE FOURNIER, J.A.

APPELLANTS COUNSEL ANITA OBODZINSKI ARTHUR TRCZIAKOWSKI Unrepresented a bsent RESPONDENT COUNSEL SUCCESSION of VERONICA KALIMBET PIELA , represented by Viacheslav Goriunov, liquidator Mtre IGOR DOGARU Absent IMPLEADED PARTIES COUNSEL CHARLES GELBER ALISSA KERNER Mtre LOUIS DESSUREAULT ( Litvack Dessureault ) Absent LINDSAY GOLDSMITH Mtre KARINE JOIZIL ( McCarthy Tétrault ) Absent On appeal from a judgment rendered on April 16, 2020 , by the Honourable Gary D.D. Morrison of the Superior Court , District of Montreal . DESCRIPTION: Application to dismiss an appeal (Article 365 C.C.P. ).

Clerk at the hearing : Mélahelle Sicotte Courtroom: Pierre-Basile-Mignault HEARING 9:30 Continuation of the hearing held on March 15, 2021. The parties were excused from appearing in Court. BY THE COURT : Judgment – see page 4. Conclusion of the hearing. Mélahelle Sicotte, Clerk at the hearing JUDGMENT [ 1 ] The Respondent Estate seeks the dismissal of the appeal on the basis that it was irregularly initiated, as a result of having been served and notified outside the prescribed 30-day delay, and it also argues that, in any event, the appeal is frivolous, thereby justifying its

summary dismissal. [ 2 ] The judgment under appeal, which was rendered on April 16, 2020, following an 18-day hearing, condemned the Appellants along with other defendants, namely a social worker and her lawyer husband, to pay compensatory, moral and punitive damages to the Estate of the late Veronika Piela following their abuse of the elderly woman. Appellant Obodzinski was also condemned to pay the legal fees and expenses of the Estate. [ 3 ] The acts of abuse committed by the Appellants consisted in fabricating a false mandate in anticipation of Mrs.

Piela’s incapacity, obtaining a court judgment homologating the counterfeit mandate, siphoning out the entirety of the elderly woman’s bank account savings (totalling $474,000), breaking into her home, fraudulently obtaining a court order forcibly removing her from her dwelling and transporting her to a seniors’ residence where she was not to have any visitors or phone calls. [ 4 ] She fled the residence, prior to being rescued by the police who carried out an investigation which uncovered the fraudulent scheme.

The Superior Court later concluded that the incapacity mandate had been falsified and the court orders were revoked in December 2015, after forensic documentation experts revealed the forgeries. [ 5 ] Mrs. Piela died in December of 2016, during the preliminary inquiry in the criminal proceedings against Appellant Obodzinski. The latter eventually pleaded guilty to various charges of forgery-related offences, obstruction of justice, mischief and unlawful presence in a dwelling-house with intent to commit an indictable offence, after admitting the fabrication of a false mandate in the case of incapacity.

Luckily, right before Mrs. Piela’s death, as a result of the civil proceedings instituted on her behalf, her rights were fully reinstated and she recovered her money. [ 6 ] Following her death, her Estate pursued her claim in damages against the Appellants and other defendants (social worker, doctor, lawyer who participated in the fraudulent scheme) leading to the judgment under appeal. [ 7 ] The Respondent argues that the Appellants’ Notice of Appeal was filed outside the 30-day delay provided for under

article 360 C.C.P., which delay expired on September 30, 2020. This argument is unfounded and must be set aside, considering that Order 2020- 4251 pertaining to health emergency measures related to the COVID pandemic came to an end on September 1, 2020 [1] , and that the calculation of the 30-day delay began the following day. As a result, the Notice of Appeal was properly filed on the 30th day, being October 1, 2020. [ 8 ] The other arguments raised by the Respondent to support the dismissal of the Appeal relate to its frivolous and dilatory nature. They are well founded.

The Respondent is right in arguing that the appeal is an attempt to plead anew the Motion for Recusation which was dismissed by the trial judge prior to the commencement of the hearing in an extensively reasoned judgment that was not appealed. [ 9 ] Also, and as emphasized by the Respondent, the Notice of Appeal refers at length to the trial judge’s refusal to hear the Appellants’ Motion to Dismiss prior to trial. The Appellants insist that the judge should have dismissed the case prior to the 18-day hearing instead of addressing the dismissal on the merits, based on the testimony of Mrs.

Piela from her hospital bed, prior to her death.

They claim that this testimony demonstrated that Mrs. Piela had not authorized nor acknowledged the lawsuit which was introduced fraudulently and in bad faith. [ 10 ] In his reasons, the trial judge addressed the argument at length and dismissed it as being ill founded in fact and in law after careful review and consideration of the evidence adduced before him, as per the extracts of his judgment reproduced below: [53] The proof establishes that the initial lawsuit was indeed signed by Mrs.

Piela shortly before her death. [54] Obodzinski, Trcziakowski and the other Defendants supporting their demand, Kerner and Gelber (the “Dismissal Defendants”), do not deny that Mrs. Piela signed the procedure. Rather, they argue that she did not know what she was signing. [55] This argument is based on the testimony given by Mrs.

Piela on November 30, 2016, conducted by videoconference from the hospital in which she was a patient, more precisely during her cross-examination by counsel for Obodzinski and Trcziakowski as part of the Preliminary Inquiry conducted before Justice Joelle Roy, Court of Quebec, Criminal Division. [56] During her testimony, given in

part via a translator, Mrs. Piela was said to have been shown a copy of her lawsuit against Defendants. She admitted that it was her signature on the document, dated November 22, 2016. [57] However, she went on to say that she had signed it while at a seniors residence known as the Ukrainian Villa. This she claims occurred on a day when she was actually hospitalized. [58] In addition, she testified that when she signed, two police officers were with her, Mr.

Dumont and Madam Desrochers, or at least somebody. [59] As well, she admitted that she could not read French and that nobody had explained the document to her. [60] This is what Obodzinski qualifies as the “major fraud” by Plaintiff counsel, Mtre. Dogaru, and the estate liquidator, Viacheslav Goriunov. [61] However, different proof was also submitted to the Court as regards Mrs. Piela’s signing of the initial lawsuit. [62] The Liquidator Viacheslav Goriunov testified that Mrs.

Piela was quite stressed by the idea of having to testify in Obodzinski’s criminal proceedings by way of videoconference, from the hospital. Afterwards, she was nervous and, as well, told him that the translator had complained about the fact that she had spoken partly in Russian, in Ukrainian and in English rather than in the one language for which the translator was certified.

In fact, the official stenographer actually issued a Notice to Reader with the transcript confirming that particular language issue and the resulting difficulties. [63] Goriunov went on to say that after her testimony, she was very tired, sat there with her eyes closed and her face somewhat disfigured. The day after, she was supposed to continue testifying but she did not. Shortly after, she suffered a stroke and could not speak. She died days later, on December 6, 2016. [64] Lt. Detective Julie Desrochers also testified as to Mrs. Piela’s videoconference testimony during the Preliminary Inquiry.

She described Mrs. Piela as being confused concerning the documents presented to her, adding that the length of her testimony went beyond the time authorized by her doctor. [65] According to Desrochers, she never had Mrs. Piela sign the lawsuit but she did have her sign an authorization to divulge medical information. [66] As for the lawsuit, Desrochers testified that she did not show Mrs. Piela the entire document. The document was only on Desrochers’s iPad. In the hospital room from where Mrs. Piela was testifying, they did not have a paper copy of the proceeding.

Desrochers, given the specific question asked by Obodzinski’s lawyer, only showed her the last page of the lawsuit, where she had signed, without either showing her the rest of the proceeding or providing any further explanation given that she was undergoing cross- examination. It was Obodzinski’s lawyer who counted the number of pages contained in the proceeding, but he was at Court before the Judge, not with her at the hospital. [67] Overall, the Court found Desrochers to be a credible witness.

This is in no way diminished by the fact that Obodzinski later made a complaint against her, which was investigated by the Sûreté du Québec, with no charges or reprimand resulting therefrom. [68] In addition to the foregoing proof, Pamela Di Franco, a social worker at the Centre Hospitalier Université de Montréal (CHUM), testified that she was asked to witness Mrs. Piela sign the lawsuit in the hospital, which she did. Also present was the patient’s lawyer and the commissioner for oaths. [69] According to Di Franco, Mtre. Dogaru quickly explained to Mrs.

Piela what the document was, and she seemed to want to go ahead with the proceedings. Moreover, the lawyer mentioned that he had been present with Mrs. Piela the prior day and had explained all the details, which Mrs. Piela confirmed he had done. [70] Di Franco further testified that prior to Mrs. Piela’s stroke, she had never observed in the latter any loss of memory or cognitive problems. That said, she was not present on the day of her videoconference testimony. The Court considers Di Franco to be a credible witness.

There is no proof that she has an interest in the present matter or is otherwise biased in her testimony. [71] The Court is of the view that the Dismissing Defendants have failed to establish that Mrs. Piela never acknowledged or recognized her lawsuit. The preponderance of proof demonstrates that she wanted the lawsuit to be instituted and that she signed to indicate her intent. Accordingly, the Dismissing Defendants have failed to establish any bad faith or fraud in the institution of the legal proceedings against them.

[72] Nor does the proof establish that Mrs. Piela actually forgave everyone, as asserted by Fr. Kutash at the end of his testimony before the Court. He claims that on her death bed, Mrs. Piela sat up, spread out her arms and told him that she forgave everyone. The problem is that the preponderance of proof demonstrates that Mrs. Piela could no longer speak at that time.

The Court will address this further, later in the judgment. [73] In the Court’s view, this portion of the Dismissing Defendants’ Motion to Dismiss is ill-founded both in fact and in law. [ 11 ] The Appellants raise the same arguments which were set aside by the trial judge. None stand any reasonable chance of success in appeal in light of the applicable standard of review. [ 12 ] Moreover, the Court of Appeal is not the proper forum to address the attacks or allegations of contempt, professional misconduct or exhibit-tampering raised against the Respondent’s attorney in the Appellants’s oral arguments.

The Court’s conclusion regarding the dismissal of the appeal is based on the weakness of the Notice of Appeal, without resorting to any other exhibits filed in support of the Respondent’s Motion to Dismiss. FOR THESE REASONS, THE COURT: [ 13 ] GRANTS the Motion to dismiss the Appeal, with legal costs; [ 14 ] DISMISSES the appeal with legal costs. GENEVIÈVE MARCOTTE, J.A. SUZANNE GAGNÉ, J.A. LUCIE FOURNIER, J.A.