) ) HORST B. MINKOFSKI Appellant – v. –, 2013 ONSC 5371

CITATION : Minkofski v. Brunet , 2013 ONSC 5371 COURT FILE NO.: 20235/08 and 20276/08 DATE: 2013/08/20 ONTARIO SUPERIOR COURT OF JUSTICE IN THE ESTATE OF HELMTRUD M. DOST, deceased BETWEEN: ) ) HORST B. MINKOFSKI Appellant – and – ALAIN BRUNET and JUNE CHARRON, Estate Trustees Respondents ) ) ) ) ) ) ) ) )) Horst B. Minkofski, Self-represented (by teleconference) Christopher A. Moore, for the Respondents Alain Brunet and June Charron, Estate Trustees ) ) ) HEARD: August 13, 2013 (Ottawa) REASONS FOR DECISION beaudoin j.

Overview [ 1 ] There are a number of motions brought by the Moving Party, Horst Minkofski, as well as a cross-motion brought by the Respondents. These motions relate to the order of Master MacLeod dated October 24, 2012, granting

summary judgment to the Respondents in estate proceedings involving the Estate of Helmtrud Dost, Mr. Minkofski’s mother. At the outset, it was necessary to determine the proper materials to be considered by the Court. Mr. Minkofski agreed that I was to consider a 52-page bundle of materials faxed to the court office on August 6, 2013, described as a motion record as well as Factum IV. Within that motion record are two notices of motion and a lengthy affidavit from Mr. Minkofski. The affidavit of Mr.

Minkofski addresses the issues raised in the motions before me and in support of his appeal. [ 2 ] There is a further confusion in that the title of proceedings is inconsistent and this motion is sometimes described as taking place in the Divisional Court and sometimes described as taking place in the Superior Court. At all times, Mr. Minkofski cites the file number issued in the Estate proceedings. I have adopted the title of proceedings relied upon by the Respondents since Rule 63.02(1)(

a) allows a final order to be stayed by an order of the court whose decision is to be appealed. For the purpose of this motion, Mr. Minkofski is referred to as the Appellant and the estate trustees as the Respondents. [ 3 ] The first motion seeks an order directing the Estate to pay for the cost of the preparation of transcripts to be used in the appeal. In his notice of motion, the Appellant indicates that he is governed by a fee waiver and wishes to claim indigent status.

He also indicates that, “So far though, the applicant has been unable to ascertain exactly what the conditions for the granting of indigent status are, so that he could provide a sworn affidavit of these conditions in his affidavit.” He relies on the Court’s discretion with respect to assessing costs under

section 131 of the Courts of Justice Act . [ 4 ] The only evidence of Mr. Minkofski’s financial means is to be found in para. 14 of his affidavit where he states: In this regard, I wish to take cognizance of Master [MacLeod’s] comments in point 66 of his decision; I own no real estate, I have an account with Van City Credit Union that usually reaches a balance of less than $50 every month after my bills are paid, and I have a credit card that is substantially maxed out. And I find the prospect of borrowing money to pay court costs with my credit and income somewhat unlikely.

What would the lender take for collateral? I don’t own a car. It would cost more to organize a sale of my furniture and such, than one could raise from such a sale.

[ 5 ] I have not been provided with any estimate of the cost of obtaining a transcript. The information provided by Mr. Minkofski does not indicate his income and is insufficient to satisfy his onus to persuade me that the Estate should bear the cost of preparing transcripts. Master MacLeod considered his financial situation and ordered him to pay costs of $10,000.00 of the proceedings before him.

Although he was eligible to get a fee waiver certificate with respect to his original notice of objection in the Estate matter, he was required to produce a fresh one for the purposes of his appeal of Master MacLeod’s decision. If he has done so, he has not produced a copy for this Court. For these reasons, his request to have the Estate pay for the transcripts is dismissed. [ 6 ] The second motion seeks an extension of time to file his notice of appeal and a stay of that decision pending an appeal.

He also seeks leave to appeal but it is conceded by the Respondents that since Master MacLeod’s decision is a final one, an appeal lies as of right to the Divisional Court. The only issues to be considered on this appeal are the extension of time and whether or not Master MacLeod’s decision should be stayed pending the appeal. Extension of Time [ 7 ] It appears that Mr. Minkofski served a notice of appeal in Divisional Court on November 23, 2012. In filing that notice of appeal, he relied upon a fee waiver certificate issued by the Estates Office.

This was not recognized by the Divisional Court and his filing was returned and that office sought the payment of the filing fee. The Appellant was provided with a blank fee waiver application form to be completed. The Appellant was then advised that his appeal should be brought to the Court of Appeal. He then had communications with the Court of Appeal and he was then informed that since the decision being appealed was a final decision of a Master, the appeal should be filed with the Divisional Court. In addition, Mr.

Minkofski claims that he suffered a stroke just after January 1, 2013 and that there was a fire in the apartment next to his, resulting in water damage to his unit and these events effectively disrupted his

schedule and caused further delay. [ 8 ] Without conceding that there is any merit to the appeal, the Respondents acknowledge that there have been significant problems incurred by Mr. Minkofski in filing his notice of appeal. It is still not clear whether or not a fee waiver form has been submitted to the Divisional Court or whether or not the notice of appeal has been accepted for filing. In any event, an extension of time is granted to the Appellant on the terms set out below. [ 9 ] The main issue is whether I should issue a stay on Master MacLeod’s decision pending the appeal. There are three criteria for granting such a stay: (

a) the appeal raises a serious question; (

b) the Appellant will suffer irreparable harm if the stay is not granted; and (

c) on a balance of convenience, the Appellant would suffer greater harm if the stay is not granted than the Respondents would suffer if the stay is granted. [1] [ 10 ] In his factum, Mr. Minkofski says that the serious question raised in this appeal is whether or not a motion for

summary judgment can be allowed (or considered legitimate and equitable) after legal manoeuvres that restrict and deprive the litigant of significant probative evidence. [ 11 ] In his lengthy and somewhat rambling affidavit, it is difficult to ascertain exactly what probative evidence Mr. Minkofski was unable to obtain. He complains that he sought orders of financial information relating to income that his mother was receiving prior to her death.

The Appellant relies on his notice of objection that refers to the appointment of the estate trustees June Charron and Alain Brunet due their “unfitness to act as an estate trustee”. For this reason he says the misfeasance of the trustees was a relevant issue. [ 12 ] These allegations of misfeasance on the part of the estate trustees are not relevant to the issues of capacity and undue influence which were the focus of the

summary judgment motion. Master MacLeod also noted that previous orders for financial disclosure had been refused by Justice Lalonde as being premature since any form of accounting on the part of the trustees would only be available if the Appellant was successful in setting aside the will. What’s more, the estate trustees were appointed as “estate trustees during litigation” on December 12, 2011. [ 13 ] Mr. Minkofski also indicates that he could have obtained information through the mediation process. He complains that Master MacLeod allowed the motion for

summary judgment to proceed under Rule 20 instead of allowing the matter to proceed to mediation. In my view, it was open to Master MacLeod to consider the appropriateness of mediation. There is no presumption of mediation in Estate matters as there is in civil cases. I am not satisfied that the mediation process would have revealed any evidence that could have been of any assistance to Mr. Minkofski in this matter. [ 14 ] The third area of concern by Mr.

Minkofski is that Master MacLeod had previously ordered the production of the deceased’s medical records for a three-year period prior to the making of the Will and for a one-year period after. The Appellant argues that Master MacLeod’s order was not clear as to whom the record should be produced as they were not entered into evidence by either party. In any event, those records were available and were reviewed by Master MacLeod in his decision and treated as if they were properly in evidence before him. [ 15 ] I have reviewed Master MacLeod’s decision very carefully. He gave a very generous

interpretation of the evidence put forward by Mr. Minkofski. In fact, the Appellant did not submit an affidavit in response to the motion for

summary judgment. He filed a factum that Master MacLeod noted consisted mostly of argument and statements and not factual observations. Master Macleod considered earlier affidavits filed in earlier motions, a letter from a Dr. Murphy and the medical records ordered produced. He properly considered the test before him and concluded that there was no genuine issue of fact requiring a trial. He was satisfied that the evidence as a whole supported a positive finding of testamentary capacity and that the objector had failed to show that there was sufficient relevant, admissible and probative evidence to have any chance of success at trial on the question of undue influence or that of capacity.

He directed that Letters of Administration be issued and that the notice of objection be dismissed. [ 16 ] On all of the evidence before me, I am not satisfied that the appeal raises a serious question. Furthermore, I am not satisfied that the Appellant would suffer irreparable harm if the stay is not granted. The Appellant says that he will suffer irreparable harm because the Estate may be distributed and he would not receive $100,000.00 or more from the Estate. It is his belief that if the stay is not granted, the funds will be distributed to somebody residing in Croatia. Those particulars are not provided.

The Appellant does not understand the personal liability of the estate trustees. If they distribute any funds remaining in the Estate pending an appeal, they are personally exposed to any liability for judgment in the event that Mr. Minkofski is successful. I have not been provided with any information to suggest that Mr. Minkofski would not be able to recover from the estate trustees if that should happen. [ 17 ] I am required to consider on the balance of convenience whether the Appellant would suffer greater harm if the stay is not granted and the Respondents would suffer if the stay is granted.

The administration of the Estate has already been held up for approximately five years. The Appellant has been able to conduct this litigation without once having to appear before court. He has conducted numerous motions by teleconference. He has brought motions in writing seeking legal advice from the court. He has refused to obtain legal advice even though he claims to have an interest in a substantial amount of money from the Estate. He has a brought a motion for contempt against Mr. McCowell, the solicitor who drafted the Will, requiring Mr. Moore to take carriage of the file.

The procedural history was thoroughly canvassed by Master MacLeod in his decision. In fact, it appears the Estate has done everything possible to avoid the assets of the Estate being utilized to fund unnecessary procedural steps. This is a modest Estate and the administration should not be delayed any further. The Appellant still has a remedy against the trustees. [ 18 ] For these reasons, I refuse to grant a stay of Master MacLeod’s decision. [ 19 ] The Respondents seek an order dismissing a notice of objection filed on December 16, 2012 by Carolla Dost (“Ms. Dost”), the step-daughter of the deceased.

They also sought an order requiring the Appellant to post security for costs in the event that the Court granted the Appellant a stay of the judgment of Master MacLeod. That relief is now moot. Finally, they ask that the Appellant be required to perfect his appeal on or before September 30, 2013 failing which his appeal is to be dismissed by the Registrar with costs. [ 20 ] On December 16, 2012, Carolla Dost filed a notice of objection in the Estate of Helmtrud M. Dost. She says she is a beneficiary under the Will and is the deceased’s step-daughter.

She repeats the objections made by the Appellant, namely, “a lack of testamentary capacity and undue influence, fitness to act as an estate trustee.” [ 21 ] Master MacLeod’s decision of October 24, 2012 dismissed the objections filed by Mr. Minkofski, declared the Will to be valid and permitted the Letters of Administration to be issued. Judgment was not entered until April 2, 2013. Rule 75.03(1) requires a notice of objection to be filed “at any time before a certificate of appointment of estate trustee has been issued.” In this case, Master MacLeod’s decision became effective October 24, 2012.

A judgment is effective from the date that it is pronounced and the failure to have a formal judgment issued and entered until April 3, 2013 does not affect the validity of that judgment or its operative date. To do so otherwise would encourage parties to delay the issuance of a formal judgment so that additional notices of objection could be filed thereby obtaining a procedural stay without the necessity of seeking a court order. Ms. Dost’s objection is out of time. [ 22 ] Furthermore, I conclude that the objection filed by Ms. Dost is an abuse of process.

Rule 75.02 allows a certificate of appointment to be removed by order of the court. Ms. Dost was fully aware of the proceedings before Master MacLeod and delivered an affidavit that supported Mr. Minkofski’s response to the motion for

summary judgment. At no time during the more than four years from the date of Mr. Minkofski’s original notice of objection has she ever sought to participate in this litigation. She only sought to do so once Mr. Minkofski’s notice of objection was struck. [ 23 ] Ms. Dost was properly served with the Respondents’ notice of a cross-motion at the address listed in her notice of appearance with the court, namely, 67 River Road, Grandview, NY 10960 USA and she did not see fit to attend on today’s date nor did she seek to participate by teleconference. She did fax a document on August 9, 2013 described as a factum.

It contains a letter from her wherein she confuses the rules with respect to the service of an originating document and the service of a notice of motion. While she says she did not receive the notice of cross-motion, her statement is not under oath and I must rely on the sworn evidence of Elaine Somerville that she did serve Ms. Dost by mail at the address provided to the court. Accordingly, I order that the notice of objection filed by Ms. Dost be removed pursuant to Rule 75.03(2) as being out of time and as an abuse of process and hereby order Ms.

Dost to pay the Estate its costs which I fix in the amount of $750.00 payable forthwith. [ 24 ] Considering the delays in this matter, I make the order that the Appellant perfect his appeal by October 31, 2013 failing which his appeal is to be dismissed by the Registrar. [ 25 ] I will leave the costs of these motions as between the Estate and Mr. Minkofski to be decided by the Court hearing the appeal. Mr. Justice Robert N. Beaudoin Released: August 20, 2013

CITATION : Minkofski v. Brunet , 2013 ONSC 5371 COURT FILE NO.: 20235/08 and 20276/08 DATE: 2013/08/20 ONTARIO SUPERIOR COURT OF JUSTICE IN THE ESTATE OF HELMTRUD M. DOST, deceased BETWEEN: HORST B. MINKOFSKI Appellant – and – ALAIN BRUNET and JUNE CHARRON, Estate Trustees Respondents REASONS FOR DECISION Beaudoin J. Released: August 20, 2013