



COURT OF APPEAL FOR ONTARIO

CITATION: Volk v. Volk, 2020 ONCA 256

DATE: 20200414

DOCKET: M51430 (C67918)

Paciocco J.A. (Motion Judge)

BETWEEN

George Volk

Applicant (Respondent/Moving Party)

and

Doris Volk,
Darlene Mussato
,
    Lisa Volk,
Felicia Mussato
and Public Guardian and Trustee

Respondents (
Appellants/Responding Parties
)

Ellen Ann Brohm, for the moving party

Jerry W. Switzer, for the responding
    parties

Heard: April 14, 2020

REASONS FOR DECISION


[1]

Litigation under the
Substitute Decisions
    Act
,
1992
, S.O. 1992, c. 30, is underway relating to the property
    of Doris Volk, who is not competent to handle her legal affairs. Included in
    the dispute is real property registered in the name of Doris Volk (1%) and her
    granddaughter, Felicia Kowalski (n
é
e Mussato) (99%), as tenants-in-common (the home). The home is
    currently occupied by Doris Volks daughter, Darlene Mussato, who is Felicia
    Kowalskis mother.

[2]

George Volk, Doris Volks husband, instituted
    the action by application claiming that Darlene Mussato, a co-attorney of Doris
    Volks property along with her sister Lisa Volk, abused her power of attorney in
    order to enrich herself and her daughter, Felicia Mussato, and that property of
    Doris Volk was improperly disbursed to Darlene Mussato and Lisa Volk. George
    Volk contends that the considerable, ongoing expenses relating to the operation
    and maintenance of the home are being paid for with Doris Volks money, in further
    breach of trust.

[3]

On January 7, 2020, George Volk brought an interlocutory
    application for an order freezing various assets, ordering the transfer of
    other assets into the name of George Volk in trust for Doris Volk, and
    providing for the sale of the home, with the deposit of the proceeds to be paid
    to George Volk in trust for Doris Volk. The respondent to the application, Lisa
    Volk, consented to the order. The respondents Darlene Mussato, Felicia Kowalski
    and the Public Guardian and Trustee, did not appear or file opposing materials.
    The order was granted. Pursuant to that order, an agreement of purchase and
    sale has since been entered relating to the home, with a closing date of May
    16, 2020. This agreement of purchase and sale gives the stay motion added
    urgency.

[4]

Darlene Mussato and Felicia Kowalksi are now
    appealing the order of January 7, 2020, in appeal C67918. Included in the
    grounds of appeal is that the order was made in the absence of Darlene Mussato
    and Felicia Kowalski, who were not properly served or provided with adequate
    notice of the application.

[5]

Darlene Mussato and Felicia Kowalski now bring a
    motion before this court, M51316, to stay the order of January 7, 2020,
    relating to the sale of the home. Filed in support of that stay motion is an
    affidavit of Felicia Kowalski, dated February 3, 2020.

[6]

On February 26, 2020, Felicia Kowalski was
    cross-examined on her affidavit of February 3, 2020. On the advice of counsel,
    she refused to answer several of the questions, and an undertaking that was
    provided has yet to be answered. As a result, George Volk brought a refusals
    motion, seeking to compel the refused questions and the undertaking to be
    answered, either through further cross-examination or in writing. George Volk
    has also requested the adjournment of the stay motion brought by Darlene
    Mussato and Felicia Kowalksi, contending that the refusals by Felicia Kowalski
    have prejudiced his ability to respond to the stay motion.

[7]

Both the refusals motion and the stay motion
    were scheduled to be heard before me on April 14, 2020. I heard the refusals
    motion and the adjournment application relating to the stay motion during a hearing
    in which counsel for Darlene Mussato and Felicia Kowalksi attended by teleconference
    and counsel for George Volk attended by videoconference. At the completion of
    the hearing I advised the parties that I would be granting the refusals motion
    in part, adjourning the stay motion, and establishing a timetable for
    compliance with this order and for the hearing of the stay motion. I ordered
    that Felicia Kowalski is to provide answers in writing to the questions I
    identify within seven (7) days of the receipt of my written decision, as well
    as related orders. This is the written decision and the timetable I am ordering.

[8]

The refused questions and undertaking can be
    grouped thematically, using the question numbers employed in the Chart of
    Refusals and Undertakings found at pp. 12-19 of George Volks Motion Record,
    filed in motion M51430, dated March 7, 2020, as follows:

(a)

Questions pertaining to the non-attendance of
    Darlene Mussato and Felicia Kowalski at the January 7, 2020 application:
    Questions 7,8,11,43,44,45, 47;

(b)

Questions pertaining to the use of funds
    provided by Doris Volk: Questions 12, 13, 40;

(c)

Question pertaining to the operation/ownership
    of the hairdressing business: Question 39;

(d)

Questions pertaining to utility payments:
    Question 76;

(e)

The undertaking pertaining to Doris Volks
    contribution to the property: Question 156;

(f)

Questions pertaining to other gifts from Doris Volk
    to Felicia Kowalski: Question 12, 13;

(g)

Question relating to other support and help
    Felicia Kowalski provided to Doris Volk: Question 167;

(h)

Questions relating to Doriss state of mind or
    actions: Question 111, 164; and

(i)

Questions seeking undertakings relating to
    future use of the property: Question 159, 160, 161.

[9]

On the advice of counsel, Felicia Kowalski
    refused to answer these questions because, in counsels view, they did not fall
    within the four corners of Felicia Kowalskis affidavit. Felicia Kowalskis
    conception of the questions that need to be answered when an affiant is being
    cross-examined on an affidavit in support of a motion is unreasonably narrow
    and wrong in law.

[10]

As Borins J. noted in
Moyle v. Palmerston
    Police Services Board
, [1995] O.J. No. 627 (Div. Ct.), at para. 11, the
    nature of the relief sought on an interlocutory motion often plays a
    significant role in determining the proper scope of cross-examination. This is
    because the cross-examination is meant to serve the fact-finding needs that the
    motion requires. Accordingly, as Borins J. affirmed, quoting Gale J. from
Thomson
    v. Thomson
, [1948] O.W.N 137 (H.C.) at 138, a person cross-examining on an
    affidavit is not confined to the four corners of the affidavit but may
    cross-examine on matters that are relevant to the issue in respect of which the
    affidavit was filed. Therefore, although the cross-examiner is not free to
    cross-examine on all matters that touch upon the underlying action, if the
    cross-examiner has a bona fide intention to direct questions to the issues
    relevant to the resolution of the motion and those questions are fair, the
    question should be answered, not refused. This includes questions relevant to
    credibility determinations that are within the competence of the motion judge,
    which would include questions intended to expose errors, omissions,
    inconsistencies, exaggerations or improbabilities of the deponents testimony
    contained in his or her affidavit:
Moyle
, at para. 14.

[11]

The motion in this case is for the stay of an
    order to preserve the disputed asset. A motion for a stay pending appeal engages
    the same general legal standards from
RJR-MacDonald Inc. v. Canada (Attorney
    General)
, [1994] 1 S.C.R. 311, which are

employed in granting
    interlocutory injunctions, namely, consideration of whether the appeal raises a
    serious issue, whether the applicant will suffer irreparable harm if the stay
    is not granted, and the balance of convenience: see
Buccilli v. Pillitteri
,
    [2013] O.J. No. 6110 (C.A.), at para. 34 (Gillese J.A., in Chambers). In
Moyle
,
    Borins J. noted that because of the nature of the discretionary remedy to grant
    in interlocutory injunction, the scope of cross-examination for such motions is
    apt to be broader than in respect of many motions for other remedies: at para.
    18. The same is necessarily true of motions for a stay pending appeal.

[12]

I would therefore order Felicia Kowalski to
    answer, in writing, the questions listed above in (a), (b), (c), (d), and the
    undertaking in (e), for the following reasons.

[13]

The questions related to topic (a), the
    non-attendance of Darlene Mussato and Felicia Kowalski, are relevant to the
    seriousness of the issues to be tried, given that Darlene Mussato and Felicia
    Kowalski seek to rely in their appeal on their absence from the January 7, 2020
    application hearing where the disputed order was made.

[14]

Questions related to topic (b) are relevant to
    the use of Doris Volks funds, which use is relevant to Felicia Kowalksis
    description of the use of funds set out in her affidavit, and to the balance of
    convenience in granting the stay sought.

[15]

Question (c) is relevant to the claim made by
    Felicia Kowalski in her affidavit that she has a small hair salon business
    which she operates from the home.

[16]

Question (d), relating to the utilities payments,
    is relevant to the claim made by Felicia Kowalski in her affidavit that she
    paid for the utilities and upkeep of the home.

[17]

The undertaking in (e) was provided and should
    be answered. I do not accept Felicia Kowalskis position, taken through her
    counsel, that this undertaking can be answered later as part of the responding
    materials in the application. This undertaking was furnished during the
    cross-examination on the affidavit filed in support of the motion for a stay and
    the information is relevant to the seriousness of the issue to be tried, and to
    the balance of convenience in determining whether the stay should be granted.

[18]

I would not order questions (f) and (g) to be
    answered. They do not relate to the issues raised in the motion. I recognize
    that the answers provided to question (f) could raise questions about the
    plausibility of some of the facts represented in Felicia Kowalskis affidavit, but
    this is not the kind of credibility factor a motion judge could properly
    consider during a stay motion, as described in para. 10 of these Reasons for
    Decision.

[19]

I would not order questions (h) or (i) to be
    answered. The questions in (h) relating to what Doris Volk could have done were
    unfair to Felicia Kowalski, who is not poised to speak to other steps Doris
    Volk could have taken in accomplishing her goals. The questions in (i) are
    irrelevant and unfair. Felicia Kowalskis position is that she has done nothing
    wrong. There is no reason for her to give the kinds of undertakings sought in
    those questions.

[20]

As counsel for George Volk recognizes, it is not
    feasible in the current COVID-19 crisis to order the parties to reconvene for
    cross-examination. I therefore direct that the erroneous refusals are to be
    remedied, in the following manner, and on the following schedule:

(1)

Questions
    (a), (b), (c) and (d) are to be answered in writing by Felicia Kowalski, with
    the answers delivered electronically to counsel for George Volk, by 10:00 a.m.
    on April 22, 2020;

(2)

Counsel
    for George Volk may deliver follow-up questions arising from the answers to
    questions (a), (b), (c) and (d), in writing to counsel for Felicia Kowalski by
    electronic transmission by 10:00 a.m. on April 24, 2020;

(3)

Unless the
    information being sought is privileged or otherwise protected by law, Felicia
    Kowalski will answer in writing any and all follow-up questions received by her
    counsel according to paragraph (2) above, by electronic transmission by 10:00
    a.m. on April 28, 2020, along with the undertaken information described above
    in question (e) at para. 8 of these Reasons for Decision. Disputes about the
    propriety of the answered questions shall be resolved by the motion judge hearing
    the stay motion. If those questions prove to have been improper the motion
    judge can disregard the answers as inadmissible;

(4)

George
    Volk may serve and file an amended factum relating to the stay motion
    incorporating information arising from paragraphs (1) and (3) above, by joint
    electronic transmission to counsel for Felicia Kowalski, and the court, by
    10:00 a.m. on May 1, 2020. No further proof of service shall be required.

(5)

George
    Volk shall serve and file electronic copies of the answers, follow-up
    questions, answers to follow-up questions, and the response to the undertaking
    described in paragraphs (1), (2), and (3) above, by joint electronic
    transmission to counsel for Felicia Kowalski and to the court, by 10:00 a.m. on
    May 1, 2020. No further proof of service shall be required.

(6)

The stay
    motion, M51316 shall be adjourned to May 6, 2020, peremptory on Darlene Mussato
    and Felicia Kowalski. The parties shall confirm in advance whether the motion
    will be heard in person, or electronically, and shall be responsible for ensuring
    that proper arrangements have been made for their attendance.

[21]

Costs in this motion are reserved to the motion
    judge hearing the stay motion. If the stay motion is abandoned, costs will be
    reserved to the panel hearing the appeal. If the appeal is abandoned, the
    parties may bring a costs application before me in writing, not to exceed 3
    pages in length plus supporting bills of costs, within 10 days of the notice of
    abandonment of the appeal being filed.

David
    M. Paciocco J.A.


