



COURT OF APPEAL FOR ONTARIO

CITATION: Piekut v. Romoli, 2020 ONCA 26

DATE: 20200116

DOCKET: C66865

Strathy C.J.O, MacPherson and Jamal JJ.A.

BETWEEN

Helen Piekut

Applicant (Respondent)

and

Krystyna Romoli
and
    Victor Wroblewski

Respondents (
Appellant
)

Romeo D'Ambrosio, for the appellant

Jonathan M. Friedman, for the respondent Helen Piekut

Paul Trudelle, for Victor Wroblewski

Heard: January 15, 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 Helens 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 Krystynas motion and Helens
    cross-motion were appropriate for summary judgment.

[5]

On Krystynas motion, the motion judge held that Helens 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 Helens 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 Helens 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 judges 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, Krystynas 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.


