Piekut v. Romoli, 2020 ONCA 26

By Strathy C.J.O, MacPherson and Jamal JJ.A.
Ontario Court of Appeal
Jan 19, 2020

On appeal from the judgment of Justice Bernadette Dietrich of the Superior Court of Justice, dated March 26, 2019, with reasons reported at 2019 ONSC 1190.

REASONS FOR DECISION

[1]             Stanislaw and Jadwiga Wroblewski, a married couple, owned five properties in Toronto. They had three grown children – Helen, Victor and Krystyna. On February 2, 2001, Mr. and Mrs. Wroblewski executed a will providing that, upon both their deaths, their estate would be divided equally among their three children.

[2]             After both parents died in June and July 2008, Krystyna asserted that her parents had executed codicils to their wills in July 2006 providing that Krystyna was to inherit two of the five properties (the “Dundas St. properties”). Krystyna did not tell her siblings about these purported codicils until after both parents had died.

[3]             In January 2015, Helen brought an application in the Superior Court of Justice seeking a determination as to whether the codicils were valid. Krystyna brought a motion for summary judgment, seeking the dismissal of Helen’s claim on the basis that it was statute-barred pursuant to the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. Helen brought a cross-motion for summary judgment on her application.

[4]             The motion judge decided that both Krystyna’s motion and Helen’s cross-motion were appropriate for summary judgment.

[5]             On Krystyna’s motion, the motion judge held that Helen’s application for a declaration on the validity of the codicils was not barred by the Limitations Act. Applying s. 16 (1)(a) of the Limitations Act, which provides that “there is no limitation period in respect of a proceeding for a declaration if no consequential relief is sought”, she said:

I find that Helen’s question with respect to the validity of the codicils is restricted to declaratory relief. She is not seeking consequential relief. She is not asking the court to determine the ultimate beneficiary of Dundas St. properties or to vest the properties in any particular beneficiary or beneficiaries.

[6]             On Helen’s motion, the motion judge held that the purported codicils were invalid. She reviewed several factors and summarized her conclusion in this fashion:

Taken together, I find that the evidence before the court cannot lead to a declaration that the codicils of each of Mr. and Mrs. Wroblewski and the "joint" codicil are valid. There is insufficient evidence to find that the codicils were executed in compliance with the requisite formalities as set out in the Succession Law Reform Act. There is no evidence, other than Krystyna's uncorroborated evidence, to confirm that the codicils were executed by two witnesses who were present at the same time as each other and at the same time as the testator and testatrix and who saw the latter sign the codicils. There is also no evidence to show that the testator and testatrix reviewed the codicils and signed them in the presence of the witnesses. In addition to the possible non-compliance with the requisite formalities, there is evidence of a probable lack of testamentary capacity on behalf of Mr. Wroblewski, and there are suspicious circumstances surrounding the preparation and execution of all codicils.

[7]             Krystyna appeals from the motion judge’s decision. She makes two submissions.

[8]             First, Krystyna submits that it was inappropriate for the motion judge to make a declaration about the codicils in the context of summary judgment motions. Rather, the context required that evidence be placed before the judge, presumably by testimony from various witnesses.

[9]             We disagree. Both parties brought summary judgment motions in these proceedings. Both filed affidavits and attached exhibits. The motion judge applied the test in Hryniak v. Mauldin, 2014 SCC 7, and found that a trial was not required because the court could make a fair and just determination of the issues.

[10]         Second, Krystyna’s principal argument is that the motion judge erred in her analysis and conclusion on the limitation period issue. She says that Helen acknowledged receiving the codicils on August 19, 2009. She therefore had until August 19, 2011 to challenge them. She did not do so; she commenced her claim on January 13, 2015, more than three years outside the two-year statutory period. In support of this position, Krystyna relies on Leibel v. Leibel, 2014 ONSC 4516, and Birtzu v. McCron, 2017 ONSC 1420.

[11]         We do not accept this submission. Both Leibel and Birtzu are readily distinguishable from this appeal.

[12]         In Leibel, Greer J. acknowledged the potential application of s. 16(1)(a) of the Limitations Act, but held that it did not apply because the applicants had clearly sought consequential relief in addition to a determination of the validity of the will. This consequential relief included: an Order revoking the grant of the Certificate of Appointment of Estate Trustees with a Will; an Order removing the Estate Trustees; an Order that the Estate Trustees pass their accounts; an Order appointing an Estate Trustee During Litigation; and an Order for damages in negligence against the drafting solicitor and her law firm. In addition, in Leibel the primary will of the deceased had been probated. Birtzu had a similar fact pattern.

[13]         In contrast, in this case Helen sought none of this consequential relief. Nor has anyone done anything to propound the will. It sat there for seven years, presumably because the siblings were all trying to work out their disagreements. In these circumstances, Helen was entitled to seek declaratory relief, simply to establish the validity, or lack of validity, of the codicils – to define the rights of the parties in order to avoid future disputes.

[14]         The appeal is dismissed. Helen is entitled to her costs of the appeal fixed at $12,500 inclusive of disbursements and HST.

“G.R. Strathy C.J.O.”

“J.C. MacPherson J.A.”

“M. Jamal J.A.”