[1]           This case is about elder abuse.

[2]           It involves Veronica Kalimbet Piela, a woman in her late eighties at the time the events in issue began.

[3]           Mrs. Piela’s Succession, in continuance of her proceeding, claims that Defendants colluded together in an unlawful and intentional interference of her Charter rights, and this with a view to financial gain.

[4]           Defendants claim they only wanted to help an elderly woman in need of assistance, to protect her from financial abuse by others and from dangerous living conditions.

[5]           They also allege that Mrs. Piela, before her death, never approved the lawsuit against them and, further, that it was instituted and then continued solely to provide financial gain for Plaintiff’s lawyer, the liquidator and a local pastor.

[6]           Although certain Defendants agree with others on specific points, they do not offer a common defence.  Defendant Lindsay Goldsmith considers that Alissa Kerner lied to and misled her.  Kerner and Charles Gelber, her husband, have sued Defendant Anita Obodzinski and Arthur Trcziakowski in warranty, claiming the latter two misled them.

[7]           In 2013, Defendant Obodzinski falsified the signature of the late Mrs. Piela on a Mandate in case of incapacity[2], naming herself mandatory in the event of the latter’s incapacity.  This she has admitted.

[8]           In November of that year, Defendant social worker Kerner issued a psychosocial report and Defendant Dr. Goldsmith issued a medical report diagnosing Madam Piela as having Alzheimer’s, both of which reports were used by Obodzinski, in December 2013, to have the falsified Mandate homologated by the Court.  Defendant Gelber, husband of social worker Kerner, presented the judicial demand, which the Court granted.

[9]           Thereafter, Mrs. Piela was forcibly removed from her dwelling and transported to a seniors residence, where she was not to have any visitors or phone calls.

[10]        Days later, in the middle of February 2014, Mrs. Piela fled from the residence.  The police became involved.

[11]        On July 17, 2014, a safeguard order was issued at Madam Piela’s request, provisionally suspending the Mandate in case of incapacity.

[12]        Later, the Mandate was declared null, the Judgment in homologation revoked and Madam Piela declared competent.

[13]        In 1924, Mrs. Piela was born Veronika Kalimbet[3]. Her place of birth was in the Ukraine.

[14]        It is said that during World War II, she lost her parents and other family members. She was detained for years in a Nazi camp located in Germany.  In 1945, she married Jozef Piela, who had been born in Poland[4].

[15]        After World War II, they came to Montreal, where they remained.  They never had children.  Photos of her and her husband at various stages of their lives have been filed in proof.[5]

[16]        Mrs. Piela’s husband died in 1987.  Thereafter, she lived alone. 

[17]        In 2007, Mrs. Piela sold the two (2) duplexes that she and her husband had acquired over the years.  The sale of the immoveable property was the primary source of the money she had deposited in her bank accounts.

[18]        Many of her subsequent life-facts are relevant to the decision which the Court is to make and will accordingly be reviewed later in the present judgment.

[19]        Mrs. Piela died in December 2016, at the age of 92 years old, shortly after the present proceedings were instituted.

[20]        Obodzinski is a well-educated woman.  She testified that she obtained a Bachelors of Commerce in business and finance, a Russian degree at McGill University, as well as music degrees at Vincent d’Indy.

[21]        She claims to have worked as a financial analyst at a number of highly recognizable international companies and also as a consultant for real estate companies in Toronto, where she lived during a period of ten years prior to returning to Montreal in 2000.

[22]        As regards her connection to Mrs. Piela, Obodzinski’s mother, Lidia Lagodich, had been the latter’s friend, who in fact had named her as a beneficiary for $2,000 in her 1996 Last Will and Testament.[6] That Will was subsequently changed and Mrs. Lagodich did not remain a beneficiary.

[23]        As to whether they were sisters-in-law, and hence Obodzinski the niece of Mrs. Piela, that relationship will be addressed anew later in the present judgment.

[24]        Prior to the sale of Mrs. Piela’s duplexes in 2007, Obodzinski and her mother are alleged to have assisted her with shopping, transportation and other needs, for which she would pay them money.  That relationship ceased shortly thereafter.

[25]        Other relevant facts will be referred to in the analysis of issues.

[26]        Trcziakowski was born in Poland.  He came to Canada in 1985.

[27]        In 2002, he met Mrs. Piela who was at a spring bazaar with Mrs. Lagodich, Obodzinski’s mother.  Mrs. Piela could speak Polish with Trcziakowski.  That is where he met Obodzinski, and their relationship developed from there.  They married in September 2003.

[28]        Mrs. Piela did not attend their wedding.  He is not certain if she gave them a wedding gift or a christening gift for their daughter.

[29]        After completing her undergraduate studies at McGill University, she completed her Masters in social work at Columbia University in New York City.  Thereafter, she worked in various medical centers and hospitals in New York.

[30]        In 2000, she returned to Montreal for family health reasons.  She worked in local hospitals and health centers, mainly in relation to adults and seniors.

[31]        She worked until she became pregnant, stopping in February 2007.

[32]        Thereafter, she has worked on a limited, part-time bases as a social worker in the field of geriatrics.

[33]        She became involved with Obodzinski at the end of August 2013 through a referral by a social worker at a local hospital.

[34]        The analysis of the case will include further facts involving Kerner.

[35]        Gelber was, until being temporarily radiated by the Bar of Quebec, a lawyer.

[36]        He became involved in this matter through his wife, Kerner.

[37]        The facts pertaining to his role in relation to the relevant events will be analyzed further.

[38]        During 2011-2012, Goldsmith did her full-time Fellowship in elderly medicine.

[39]        Around August 2012, she worked two days per week at the offices of a local family medicine group and three days per week at the Montreal Institut de gériatrie.

[40]        During these years, she performed dozens of evaluations at the hospital in relation to patients’ capacity.  These were effected under the supervision of an attending.  Those evaluations were always counter-signed.

[41]        After approximately two years of specialization in geriatrics, she began her practice in family medicine.  She states that a large portion of her patient population are elderly persons.

[42]        In the autumn of 2012, she met with Kerner, who had been marketing various health professionals in order to obtain mandates as a social worker.

[43]        The case analysis will include additional facts relating to her involvement in the present matter.

[44]        Apart from certain objections to evidence made during the Hearing and taken under reserve by the Court, the primary issues raised by the parties for determination are the following:

[45]        Just two weeks prior to the commencement of Trial, Defendants Obodzinski and Trcziakowski filed a Motion to Dismiss.  They claimed that the Court had to “act expeditiously in this Motion to Dismiss as it is an emergency and is in the public interest to do so”.

[46]        Essentially, these two Defendants were arguing that the lawsuit against them was not only illegitimate but also fraudulent, that the Succession’s lawyer was committing a fraudulent act in presenting the claim and that they were the victims of a “major fraud”.

[47]        The said Motion was filed essentially at the same time as a demand to postpone the Trial.

[48]        The Court concluded that the principles of proportionality and the orderly conduct of proceedings mitigated in favour of moving forward with the Trial and having the Motion to Dismiss heard at the same time.

[49]        On what bases do these Defendants argue that the action against them should be dismissed as illegitimate and fraudulent?

[50]        The reasons given are essentially twofold:

[51]        Clearly, the heirs of a deceased are seized of the latter’s patrimony, including rights of action to claim damages, such as punitive damages, against the author of any infringement of his personality rights.[7]  In the event that an action has already been instituted prior to death, the succession can continue that action after death.[8]

[52]        The issue here as raised by certain Defendants is that counsel for the Succession was acting in bad faith when he unlawfully instituted the action during Mrs. Piela’s lifetime allegedly without her knowledge and consent.

[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.[9]

[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.[10]

[57]        However, she went on to say that she had signed it while at a seniors residence known as the Ukrainian Villa.[11] 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.[12]

[59]        As well, she admitted that she could not read French and that nobody had explained the document to her.[13]

[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.[14]

[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.[15]

[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.

[74]        As regards the alleged disavowal by Mrs. Piela of her Last Will and Testament, the Dismissing Defendants’ argument is rather difficult to follow.

[75]        On the one hand, none of the Defendants contest the most recent notarized Last Will and Testament of Mrs. Piela, signed February 1, 2016 before notary Petro Choma[16] (the “Recent Will”).

[76]        It is by means of the Recent Will that Mrs. Piela bequeathed seventy percent of her assets to her relative Andrey Kalimbet of Kazakhstan, fifteen percent to Viacheslav Goriunov and fifteen percent to police officer Elizabeth Kraska.  The latter two were named co-liquidators.

[77]        Kraska, a policewoman with 32 years of service, then the Community Relations Officer responsible for abuse against seniors, who was of assistance to Mrs. Piela and was obviously greatly appreciated by the latter, has renounced to all her rights to the Succession and to the office of co-liquidator.[17]  As a result, Goriunov acts as sole liquidator and will seemingly receive an additional fifteen percent of Mrs. Piela’s estate. The Court need not decide this latter issue. Nevertheless, it raises it as a potential issue that may impact Goriunov’s credibility, which is attacked by the Dismissing Defendants. It was as Liquidator that Goriunov decided to continue her proceedings.[18]

[78]        What the Dismissing Defendants nonetheless argue is that at the end of her videoconference testimony on November 30, 2016, Mrs. Piela stated that a notary other than Petro Choma was her notary and that she only signed a Last Will and Testament in front of that other notary.

[79]        In the Court’s view, the preponderance of proof establishes that during the videoconference testimony conducted shortly before her stroke and death, Mrs. Piela was simply confused as to the issue of her Recent Will, as she was with the lawsuit.  Moreover, if the Dismissing Defendants seriously intended to contest the validity of the Recent Will, the appropriate means was not by the Motion to Dismiss as presented. In fact, none of them contested the validity of the Will during the Hearing.

[80]        Accordingly, the Motion to Dismiss will itself be dismissed.

[81]        On December 4, 2015, Justice Hélène Langlois issued a rectified judgment (the “Langlois Judgment”)[19] whereby she revoked the judgment rendered on December 19, 2013 by which had been homologated the Mandate in case of incapacity, dated March 28, 2013, that had purportedly mandated Obodzinski to be her mandatory so as to both protect her person and administer her property should she become incapable to do so.

[82]        The Langlois Judgment declared null and void the alleged Mandate to Obodzinski, declared Mrs. Piela capable of taking care of herself, administering her property and exercising her civil rights.  Obodzinski was ordered to render an account of her administration of Mrs. Piela’s property.

[83]        As regards the rendering of account, it should be noted that Obodzinski had already been ordered by Justice Claude Dallaire, by way of judgment rendered July 17, 2014[20], to deliver all of Mrs. Piela’s assets to the Public Curator on an interim basis.

[84]        In the context of the claim by the Piela Succession, the latter seeks to base its entire claim on the Langlois Judgment, pleading that it constitutes res judicata as regards the Defendants.

[85]        In the present proceedings, the Defendants do not contest the conclusions of the Langlois Judgment to the effect that Mrs. Piela was in fact capable of taking care of herself, administering her property and exercising her civil rights.

[86]        However, Defendants Kerner, Gelber and Goldsmith plead that they were not parties to the proceedings before Justice Langlois, even if they were called to testify before her, and that the Langlois Judgment does not otherwise diminish their respective rights to a full defence, including the right to submit all lawful evidence in support of their respective positions in relation to the Succession’s claim in damages.

[87]        By way of example, in the context of the proceedings to set aside the mandate to Obodzinski, Justice Langlois concluded that Goldsmith “could not have diagnosed a moderate Alzheimer without an objective test that she did not do”[21] and, further, that neither Kerner’s nor Goldsmith’s evaluations respected the Legislator’s recommended criteria to determine a person’s incapacity.[22]

[88]        Plaintiff objects to any proof which could tend to contradict such conclusions of fact expressed in the Langlois Judgment.

[89]        Without in any way diminishing the importance of the Langlois Judgment, the reality is that the judge was not seized with the issue of fault as regards the Defendants.  There was no actual contradictory debate (« véritable débat contradictoire”[23]) as to the question of legal liability, particularly not as regards Defendants Trcziakowski, Kerner, Gelber and Goldsmith.

[90]        The applicable criteria in Quebec law relating to res judicata are set forth in the first paragraph of Article 2848 C.C.Q., which reads as follows:

[91]        The purpose of this legal notion is to provide stability to judgments and to avoid multiple trials and contradictory judgments.[24]

[92]        Its effect is to create an absolute presumption[25], not only as regards the dispositive[26] but also the motives which are indispensable and essential to the decision on contested issues, as opposed to mere observations and comments which constitute obiter dictum.[27]

[93]        For res judicata to apply, however, there must exist the triple identity of parties, object and cause.  Should that not be the case, there can be no absolute presumption, although in certain circumstances there may be a simple presumption.

[94]        In the present matter, there is no identity of parties, certainly not as regards Kerner, Gelber, Goldsmith and Trcziakowski.

[95]        Not being parties to the proceeding before Justice Langlois, these current defendants were neither acting in the same quality nor were they in a position to seek revocation or to appeal the Langlois Judgment.  They were simply witnesses.

[96]        However, Obodzinski was a party.

[97]        She did appeal the Langlois Judgment.  The Court of Appeal granted Mrs. Piela’s Motion to Dismiss the Appeal.[28]

[98]        Accordingly, the present analysis must continue as regards Obodzinski in order to determine whether there exists identity of cause and of object.

[99]        To start with, there is no identity of object.  Although the majority of facts are the same in both proceedings, that is of itself insufficient due to the fact that the dispositives sought in the two actions are extremely different.[29]

[100]     Justice Langlois did not, as mentioned above, determine whether Obodzinski, or any of the other present Defendants, had committed a fault.  It was not an issue before her.  The qualification of the facts were different than in the present matter, where the Court will need determine whether there exists Charter violations, fault, damages and causality.

[101]     Accordingly, the Langlois Judgment does not constitute res judicata in relation to any of the Defendants.

[102]     That said, in the Court’s view, the factual observations and conclusions identified in that judgment may very well constitute a simple presumption of fact.  This modifies the burden of proof.  This is to be evaluated on a fact-by-fact basis, taking into consideration of the positions adopted by the parties in that regard.

[103]     The Succession pleads the Defendants’ civil liability based on the general provisions of extra-contractual liability at civil law as established at Article 1457 C.C.Q. and on the violation of rights pursuant to the Quebec Charter of Human Rights and Freedoms[30]:

[104]     In this regard, the first two paragraphs of Article 1457 read as follows:

[105]     As regards the violation of Charter rights, the particular sections raised by Plaintiff are 1, 4, 5, 6 and 48, which read as follows:

[106]     In Quebec law, the Charter does not create a separate and distinct legal system[31].  Violating a person’s Charter rights can, depending on the circumstances, constitute a fault within the meaning of Article 1457 C.C.Q.

[107]     The Court will assess the specific defences raised by the Defendants individually during the course of its analysis.  Suffice it to say that they all deny having committed a fault, having caused any damages and, further, that the damages claimed are exaggerated.

[108]     Beyond that Obodzinski, Kerner and Gelber contend that they were only trying to assist an elderly woman from the abuse and negligence of others.  They all assert that they were acting in good faith.  Kerner and Gelber claim to have been misled by Obodzinski; hence, as mentioned above, their action against her in warranty.

[109]     Trcziakowski, Obodzinski’s husband, claims that Mrs. Piela was being abused by others and that she required assistance, but beyond that he heard nothing, saw nothing and did nothing, other than break into Mrs. Piela’s apartment for which he pleaded guilty to criminal charges.  He asserts that he never intended to harm Mrs. Piela.  He pleads awkwardly that what is written is true, but if it is not written anywhere, it did not happen. That is not a credible position.

[110]     As mentioned above, insofar as Goldsmith is concerned, she pleads that she was essentially lied to by Kerner and misled by both her and Obodzinski.  In addition to denying liability or intent to do harm, she raises the spectre that the person she met and declared incapable was not Mrs. Piela, or at least not the latter in her normal state.

[111]     She too asserts that she was acting in good faith.

[112]     She is the only Defendant represented by legal counsel.

[113]     The conduct of the Defendants is so intertwined that it is both difficult and counter-productive to describe and evaluate all of the facts relating to each of them separately.  Moreover, although a somewhat lengthy process, the Court considers that it is useful to set out chronologically many of the details relating to the events which gave rise to the outrageous situation which Mrs. Piela faced, and hence to the present claim.

[114]     From a legal perspective, the point of origin is found in the fictitious Mandate in case of Mrs. Piela’s incapacity. This leads us directly to Obodzinski.  In the context of criminal proceedings, she and her husband Trcziakowski made certain admissions which serve as a backdrop to the key facts. Those are worth repeating.

[115]     Their admissions are set out in an “Agreed Statement of Facts”[32], which form part of their guilty pleas to criminal charges:

[116]     Obodzinski was found guilty and convicted for obstruction of justice, various forgery-related offences, mischief and unlawful presence in a dwelling house with intent to commit an indictable offence.[33]

[117]     Having admitted to fabricating a false Mandate in case of incapacity, the Court concludes that she did so.  This is not in dispute.

[118]     However, how this was done is relevant. What Obodzinski did was to actually stage the signing of the Mandate by Mrs. Piela. Staging is an important element in the present matter.

[119]     In any event, as regards the Mandate, Obodzinski testified before this Court that she had spoken to Mrs. Piela about signing a Mandate, but that the latter just never did.  Even if that is true, and the Court underscores the word if, then obviously Mrs. Piela did not want to sign it.  That required Obodzinski to find a way around her refusal.

[120]     At a brand-name coffee shop, Obodzinski had two witnesses supposedly watch Mrs. Piela sign the Mandate.  One of the witnesses was the ballet teacher of Obodzinski’s daughter, who apparently worked there.  The other witness just happened to speak Russian.

[121]     But the reality is that Mrs. Piela did not sign a Mandate.  During Trial, the Court asked Obodzinski what Mrs. Piela would have signed instead.  She replied that it would have been a document relating to her lease. So, if Obodzinski is correct in saying that Mrs. Piela actually signed a document in the coffee shop, in front of witnesses, she staged a scene, pretending that it was the alleged Mandate. The other explanation is that none of this ever took place, and the staging was only a fictitious creation for the benefit of the Court.

[122]     In the Court’s view, this would not be the only time that Obodzinski staged a scene to create the impression that something was taking place, when in fact it was not.  It is useful to remember that she unsuccessfully attempted to convince Justice Langlois that Mrs. Piela had indeed signed the Mandate, knowing full well that she had not done so.

[123]     Thereafter, Obodzinski took steps to have the falsified Mandate homologated by the Court.

[124]     But to do so, she required the necessary written reports of a social worker and a medical doctor, as well as the assistance of a lawyer.

[125]     Whether it was her idea originally or not, Obodzinski told people that she was Mrs. Piela’s niece, claiming that her father, before he died, had told her that Mrs. Piela’s husband was his brother.  The story is said to involve her father’s post-World War II change in identity and the fact that he had hidden his true identity in order to come to Canada, with the result that he could face deportation from Canada.

[126]     Defendant Gelber put into evidence that Obodzinski and some man, said to be a cousin from Toronto, explained the story to him.  Apparently, that resulted in Gelber describing Mrs. Piela as Obodzinski’s aunt in legal proceedings.

[127]     It must have been difficult for her to demonstrate any family relationship to Mrs. Piela.  Absolutely no credible documents accomplish that objective in the present proceedings.  Just as importantly, there is no proof that either Mrs. Piela or her late husband ever considered or treated Obodzinski as a niece.  Mrs. Piela certainly never admitted it and, in fact, denied it.  And when she included Obodzinski’s mother in her Will, she described her only as a “friend”, not as a family member.

[128]     Interestingly enough, it was not until the end of the Trial, during the parties’ respective representations, that Obodzinski began to refer to Mrs. Piela as “Aunty Piela”.  In the Court’s view, this theatrical gesture does not alter the fact that the preponderance of proof fails to demonstrate the existence of any family relationship between the two. Justice Langlois also concluded that Obodzinski failed to make proof of this relationship.

[129]     Frankly, it is difficult to understand how a lawyer would accept to describe a client in legal proceedings before the courts as a “niece” in such circumstances, without at least describing the bases of such relationship, particularly in a proceeding to homologate and then execute a Mandate in case of incapacity. Obviously, from Gelber’s perspective, the end justified the means.

[130]     As regards working with social worker Kerner, Obodzinski paid her to, amongst other things, attend at Mrs. Piela’s bank with her, break into the latter’s apartment with a view to taking photographs[34], find a seniors residence other than the one Mrs. Piela wanted to move into, prepare a report for the homologation proceedings and coordinate with a medical doctor in order to obtain a report for that purpose.

[131]     Identifying a residence other than the Ukranian Villa where Mrs. Piela wanted to reside, was an important strategic decision for the Dismissing Defendants.  Obodzinski and Kerner both testified in passing that there were no available units at the Ukranian Villa.  But absolutely no specifics have been provided in this regard for the specific time frame in question, being more precisely February 2014.  The proof establishes that not long after leaving Residence Snowdon, Mrs. Piela was given a room at the Ukrainian Villa. 

[132]     More importantly, the preponderance of proof demonstrates that these Defendants would not have wanted her there.  Clearly, they wanted to distance her from Fr. Kutash, Goriunov and Mtre. Dogaru.  They refuse to acknowledge this notwithstanding that it would be consistent with their position at Trial to the effect that Mrs. Piela was being financially abused by these other three people.  This raises serious doubt, which the Court considers determinant, as to their motivations.

[133]     The preponderance of proof is to the effect that placing Mrs. Piela in another residence, located nowhere near the Ukranian Villa, was an intentional strategy which would limit, if not eliminate contact with her friends and acquaintances.  Isolating Mrs. Piela was strategic.  She was to have no contact other than those approved by Obodzinski and Kerner.  As already mentioned, even when the police arrived to speak to her, they were told they could not because Mrs. Piela was not allowed visitors.

[134]     According to Kerner, Mrs. Piela refused the idea of being placed anywhere, as if she insisted on staying in her apartment.  The Court does not find Kerner to be credible, and this for reasons that will become clearer later in the present judgment.  But even if Kerner had had such discussions with Mrs. Piela, there is absolutely no credible proof to the effect that the latter would ever have refused being moved to the Ukrainian Villa.  As mentioned, the preponderance of proof confirms that she definitely wanted to go there.  This is a crucial element.  Had the objective really been to improve Mrs. Piela’s physical state, as Defendants repeated constantly throughout the Trial, in graphic detail, moving her to where she wanted to go should have been an easy solution.  Not doing so, without credible proof that it was not possible, demonstrates that the priority was elsewhere… the money.

[135]     In order to give effect to the strategy of isolating Mrs. Piela and taking control of her assets, it was necessary to homologate the Mandate so that Obodzinski could make any and all necessary decisions.  In order to do that, it was necessary to have Mrs. Piela declared incapable of giving consent.

[136]     But Mrs. Piela was not incapable, as determined by Justice Langlois.  Moreover, the preponderance of proof is to the effect that she was a lively and outspoken person, who could communicate in English and even had a limited understanding of French.

[137]     Even Kerner apparently spoke to her in English during her supposed numerous visits to see Mrs. Piela. She knew, in any event, that she could speak some English and was not a unilingual Russian-speaker.

[138]     Although Goldsmith’s liability will be dealt with later herein, it is important to understand the scenario which Goldsmith encountered when she arrived to assess Mrs. Piela’s capacity.

[139]     On the night prior to the home visit at Mrs. Piela’s apartment for the purposes of evaluating her capacity, Defendant Kerner called Goldsmith to explain that Mrs. Piela, a widow, was unilingual, and only spoke Russian, which was not the case.

[140]     Kerner told Goldsmith that as a result, her “niece”, Obodzinski, who spoke perfect English, would translate.  She described Mrs. Piela’s family as being Obodzinski, who was taking care of her, along with her husband Trcziakowski.  They were concerned because the elderly woman was expressing concerns about a priest taking advantage of her.  The conditions were dire, and they needed to homologate a Mandate in case of incapacity.  Goldsmith sensed that there was urgency.  Kerner gave her the address and organized that they would meet outside Mrs. Piela’s apartment around 9 - 10 o’clock on the morning of November 8, 2013.

[141]     Kerner had set the scene.

[142]     Upon her arrival the next morning, a woman whom Goldsmith was told was a “cleaning lady” answered the door.  During her entire visit, this so-called “cleaning lady” just kept sweeping in the background; she seems to have done nothing else but sweep.  Goldsmith states that she was told that the cleaning lady had been hired by the priest, not Obodzinski.  There is no credible proof that the priest had actually hired this particular person.

[143]     Present were Goldsmith, Kerner, Obodzinski, Trcziakowski, the so-called “cleaning lady” and, of course, an elderly woman who was smiling and seemed happy to see everyone, and not at all agitated.

[144]     Goldsmith was introduced to the elderly woman by Kerner, who said it was Mrs. Piela.

[145]     On seeing the old woman, Goldsmith found her appearance to be “quite frightening”.  She looked old, overweight with a wild look, dirty, hair that looked sticky with excrement in it, strong body odour and what looked like urine and feces on her.

[146]     Obodzinski explained how worried she was for her and that she was taking care of her “aunt”.

[147]     Goldsmith also noticed a “gruesome smell”, like excrement, feces and urine.  The floors were grimed and sticky, with dirt and excrement on it.

[148]     Goldsmith did not know what language Obodzinski or Kerner were speaking to the old woman, but it did not seem possible that she was able to speak English.  She never answered Goldsmith directly, and did not react to any of her questions in English.

[149]     Goldsmith arrived to do three tests.  That said, she did not communicate directly with the elderly woman.  The doctor spoke in English and everything was then translated by Obodzinski, into what seemed to have been Russian.  During the exchange, everyone was present in the kitchen, except Kerner, who had left the room.

[150]     Goldsmith did “not get far” with her questioning.  She kept being told that the elderly woman did not remember anything.  No explanations were given as to her medical condition or her medications.

[151]     Goldsmith noticed that the elderly woman kept repeating something over and over again.  When she inquired, Obodzinski told her that she kept calling the latter “her princess”.

[152]     On the table was a “rancid green egg”.  The old woman seemingly did not remember what she had had for breakfast.

[153]     Also on the breakfast table was an empty Martini glass.  There were also open bottles of alcohol on the counter.  In response to her questions, Obodzinski told her that the elderly woman had already had one drink at this early hour of the morning, and that it was her daily routine, her regular state.

[154]     After approximately 30 minutes with little useful input, Goldsmith looked around the apartment.  She noticed barely anything in the fridge, except for food that was green and rancid.  The knobs on the stove were not locked.  The inside of the stove was filled with newspapers.  The bedroom was dirty, with three to four cats, a litter box not changed in weeks, a bed visibly soiled and floors visibly soiled with excrement everywhere.  In the kitchen, the balcony door was wide open.  Huge bags of garbage were on the balcony, some falling into the apartment, with squirrels rummaging in the garbage even inside the apartment.  She described the state of the apartment was “unreal”.

[155]     Although there was the so-called “cleaning lady” present, constantly sweeping, the apartment looked as if it had never been cleaned.

[156]     Generally, nothing in her professional experience had prepared her for what she saw; she was shocked.  She had never seen anything like this before.  For her, it could not get more extreme.

[157]     She would later question how the person she evaluated was in fact Mrs. Piela.

[158]     According to Goldsmith, she was “blown away” when she saw Mrs. Piela testify before Justice Langlois and during taped interviews with the police.[35]  Apart from the fact that the two elderly woman had the same hair and body shape, Goldsmith testified that “I could say it was not the same person”.

[159]     It seemed “impossible” to her that it was the same person.  Mrs. Piela looked 20 years younger, was “sharp”, answered questions, participated actively in back-and-forth conversation and used words in English and in French.

[160]     In this regard, the Court considers the testimony of Goldsmith to be credible and consistent with the preponderance of the proof.

[161]     Did Goldsmith actually meet and evaluate Mrs. Piela?

[162]     This issue is not only important in relation to Goldsmith’s liability but also as regards that of Obodzinski and Kerner, if not others.

[163]     Firstly, Mrs. Piela always denied ever meeting a doctor in her apartment and, more particularly, ever having met Goldsmith.

[164]     In this regard, the Succession argues that Goldsmith never attended at Mrs. Piela’s to evaluate her but rather, simply completed the medical report based on what she was told by Kerner and Obodzinski.

[165]     The proof does not support this theory.  There is no proof that Goldsmith was a friend or business associate with either Kerner or Obodzinski.  A prior marketing lunch organized by Kerner does not equate to either, or to a conspiracy.  Nor do Goldsmith’s agenda entries support Plaintiff’s theory.  Simply put, Plaintiff has failed to establish that Goldsmith completed the medical report without attending at the patient’s residence to conduct an evaluation.  The proof does not support the legal presumption argued by Plaintiff in this regard.

[166]     Secondly, and as observed by Goldsmith, the description of the elderly woman to whom she was presented by Kerner for an evaluation as to Mrs. Piela’s incapacity, is totally inconsistent with the preponderance of proof regarding Mrs. Piela.  Such proof demonstrates that the latter was indeed the talkative, “sharp” individual, capable of speaking in English, with a limited understanding of French, as described later by Goldsmith.

[167]     During a cross-examination conducted by Gelber, Goldsmith acknowledged that she was not suggesting that she had been presented to a different person, but that she could not identify her as being the same person.

[168]     Notwithstanding, in the Court’s view the preponderance of proof establishes that the unilingual, non-English speaking elderly woman she was introduced to, who seemingly could not remember anything, and routinely consumed alcohol every morning, was not Mrs. Piela.  This is consistent with Mrs. Piela’s unwavering position to the effect she never met Goldsmith.

[169]     In this regard, there is certain proof, emanating from Mrs. Piela, to the effect that Obodzinski and Trcziakowski had tried to make her drink “poison”.  Other proof from Goldsmith shows that Kerner had later tried to obtain tranquilizers and an anti-psychotic drug to administer to Mrs. Piela.  Although this might suggest the possibility that the elderly woman introduced to Goldsmith was Mrs. Piela under the influence of alcohol or drugs, or both, it is not as plausible or likely a conclusion as there having been present a completely different individual.  There is no reason to believe that Mrs. Piela could not have at least said “yes” or “no” in English to any one of Goldsmith’s questions.  That seems entirely improbable.

[170]     In view of all of the foregoing, the Court concludes that Obodzinski, this time with the assistance of at least Kerner and Trcziakowski, once again staged a fake scene for the purposes of taking control of Mrs. Piela’s person and assets.

[171]     That faked scene goes beyond having someone else stand in the place of Mrs. Piela.  It also includes setting a fake, staged physical scene.

[172]     That scene also includes open alcohol bottles and an empty Martini glass on the kitchen table to create the impression that Mrs. Piela had a drinking problem.  It worked, in that it led Goldsmith to make an inquiry and then to opine that she had an alcohol consumption problem.  However, apart from that scene, there is no evidence, or even suggestion, that she ever had an issue with alcohol consumption.

[173]     There is also the “rancid green egg” on the kitchen table.  One is given the impression that it must have been there for some time.  How is it that such a caring “niece” and a social worker, not to mention a “cleaning lady”, would leave it sitting there so long, and at least long enough to be seen by the evaluating doctor?  The same can be said of the refrigerator which seems to only have had rancid food in it.  This would suggest that Mrs. Piela never really ate and that no one ever took care of her, yet there is no medical or another credible proof suggesting that she suffered from malnutrition or alcoholism.

[174]     As for the filth, Goldsmith commented that it appeared as if her apartment had never been cleaned.  Yet, there was a so-called “cleaning lady” with a broom, who actually stayed in the kitchen area during the evaluation.  The proof is completely insufficient to permit the Court to identify who that person really was.  She certainly did not seem to have cleaned anything.

[175]     And if, as it seemed, no one ever cleaned Mrs. Piela’s apartment, there is no proof to explain what was in all the garbage bags on the balcony, in such a large quantity that they blocked the balcony door, allowing squirrels to enter the apartment rummaging through the bags.

[176]     The issue of the state of Mrs. Piela’s apartment and of her own hygiene was the object of much proof, often repeated in great detail throughout the Trial, and this without any regard for either her dignity or reputation.

[177]     With all the staging that took place in this matter, it is difficult for the Court to separate reality from fiction.  The proof ranged from an acknowledgement by some that the apartment could have been cleaner to another witness who, without any medical opinion in support, claimed Mrs. Piela was a “hoarder” based on what he saw only after she had ceased living there.

[178]     The same holds true for her personal hygiene.  The most independent description was given by an employee of the Snowdon Residence where Mrs. Piela was brought under Court Order.  More will be said about that later, but one must understand that, in addition to potential staging earlier that day even before the police and bailiff had arrived, Mrs. Piela’s personal state was being described by that employee only after the police had entered her apartment through the back door without her knowledge and had forcibly restrained her for transport to a residence against her will.  One can easily imagine that she resisted.  Context is an issue in such circumstances, particularly given her age.

[179]     That being said, there is little doubt that Mrs. Piela’s apartment was not being well maintained and that she may have had difficulties as regards her own hygiene; it is the extent thereof that is not necessarily credible.  Even Justice Langlois, in declaring Mrs. Piela capable, referred to proof regarding dirty conditions in her apartment and her state of personal hygiene.[36]  But what is important is that those elements did not render Mrs. Piela incapable and, in the Court’s view in the present matter, they did not justify the conduct of Defendants.

[180]     Moreover, notwithstanding their repeated descriptions throughout the Trial of the filth and poor hygiene, there is absolutely no proof that any of the Defendants actually did anything to assist Mrs. Piela by either offering to clean her nails, wash her hair, clean out the fridge, wash the floor, empty the cat litter, prepare a meal, buy her groceries or organise to have someone else do it.

[181]     Although Defendants argue that Mrs. Piela had previously refused certain limited government services[37], there is no proof that she refused any at-home services which Defendants could have offered or organised.  In fact, she wanted to go to the Ukranian Villa since she knew it would be better for her there.

[182]     As for Kerner’s psychosocial report[38], it appears that it was prepared only after Goldsmith had issued her medical report confirming Mrs. Piela’s incapacity and moderate Alzheimer’s[39].

[183]     In her report, Kerner described Mrs. Piela as living in “squalor and thus at grave risk for causing a fire in addition to being legally intoxicated beginning in the early hours of the day”.[40]  No proof was submitted as to how she determined Mrs. Piela to be “legally intoxicated”.  She goes on to report that her “alcohol abuse” is “perpetuated by the Priest who allegedly supplies her with the alcohol”.[41]  No proof was submitted to support the conclusion that Fr. Kutash was feeding an addiction.

[184]     Her psychosocial report also addressed “the suspected financial abuse by the priest”, and that it has resulted in the need for protective supervision since “it is imperative that the suspected financial abuse on behalf of the priest be abruptly terminated”[42].  This issue will be addressed later in the present judgment.

[185]     With these reports in hand, Gelber proceeded days later to file a Motion for Homologation of Mandate Given in Anticipation of Mandator’s Incapacity.  According to the bailiff’s Minutes of service, that Motion was served on Mrs. Piela but in Obodzinski’s presence.[43]  Gelber had organized it with the bailiff to ensure that service would be made when Obodzinski was present.

[186]     Before Justice Langlois, Mrs. Piela denied having any knowledge of the Motion.  She testified that no one had explained to her what it meant and that she could not read the legal proceedings in English.[44]  Obodzinski testified during that Hearing that the bailiff placed the proceeding on the table where Mrs. Piela was seated and that it was she who explained it to the latter.[45]

[187]     In fact, a copy of the proceeding was never found in Mrs. Piela’s apartment.[46]

[188]     Justice Langlois concluded as follows :

[189]     No proof was made in the present matter that would lead to a different conclusion, and the Court accordingly adopts that conclusion.

[190]     That said, the Deputy Clerk of the Superior Court, upon receipt of the Motion and the Court file, insisted on receiving an additional psychosocial report[47], as well as an Affidavit by a witness to the signature of the Mandate and Mrs. Piela’s RAMQ card.[48]

[191]     In reaction thereto, Gelber obtained an Affidavit.  He also sent an email to his wife, Kerner, not only indicating that the Special Clerk required further information, but also suggesting the wording she should use in her supplementary report, adding the following:

[192]     Gelber later admitted that he had written and proposed the text for his wife’s report.[50]

[193]     Thereafter, Kerner responded to the Court’s demand by means of an email dated December 11, 2013, without consulting Goldsmith, stating that “her moderate dementia will remain permanent and irreversible” and further, that during the two weeks since her report dated November 25^th “I have visited Ms. Piela on several occasions and I have observed that her condition is deteriorating”.[51] To what recent visit was she referring?

[194]     Just days before Kerner’s supplementary report, more specifically on December 7, 2013[52], Obodzinski and Trcziakowski broke into Mrs. Piela’s apartment without her consent, which they later admitted.[53]

[195]     During a videotaped police interview, Mrs. Piela stated[54] that Obodzinski and Trcziakowski had broken in.  The latter pushed her on the floor and put a bottle with “poison” in her mouth.  They took her briefcase which contained documents, jewellery and some money.  They left her bruised.  It also appears that they attempted to have her sign a document.[55]

[196]     This break-in is in sharp contrast to the version Obodzinski provided to Justice Langlois, being a pleasant two-hour visit on invitation by Mrs. Piela.[56]

[197]     Just days after they left her apartment with some of her documents, Gelber sent to the Court not only his wife’s supplementary report but also photocopies of Mrs. Piela’s RAMQ card.[57]  In the Court’s view, the proof is such that it gives rise to the presumption that the December 7, 2013 break-in was, at least in part, for the purposes of locating Mrs. Piela’s RAMQ card so that it could be submitted to the Court.

[198]     Days after Gelber sent the supplementary report and information, and before the Court even had the opportunity to render judgment, Mrs. Piela’s lawyer sent a letter of demand, dated December 16, 2013, to Obodzinski in relation to the December 7^th break-in.

[199]     That letter was then referred to Gelber.  The day after the Mandate was homologated, the latter replied[58] to the effect that Mrs. Piela had been diagnosed with Alzheimer’s and accordingly, she was incapable of giving any valid mandate to Mtre. Dogaru.  That said, he made no mention of the homologation proceedings before the Court and the judgment, not even in response to Mtre. Dogaru’s subsequent letter[59] wherein he claimed that there was no medical report or Court judgment against his client.

[200]       Clearly Gelber did not want Mrs. Piela’s lawyer to know what was taking place, preferring to avoid any adversarial debate before the Court by taking justice into his own hands.

[201]     Basing herself on the newly provided information and opinion, the Deputy Clerk rendered judgment on December 19, 2013, declaring Mrs. Piela unable to care for herself and to administer her property and, further, homologating the Mandate.  In the Court’s view, the Deputy Clerk had been misled. This resulted in Obodzinski being named as Mrs. Piela’s mandatory.[60]

[202]     On December 27, 2013, Scotia Bank records[61] indicate that Obodzinski attended with Gelber at the Queen Mary branch, providing a photocopy of the homologation judgment.

[203]     On January 9, 2014, Obodzinski attended again at Scotia Bank.  She wanted to cash out Mrs. Piela’s GIC in the approximate amount of $283,000.[62]  When asked by the bank why she wanted to withdraw the funds, she said that she would put the money in a trust account with her lawyer and then she would manage it.  The bank required internal approval to proceed.

[204]     On January 13, 2014, the Scotia Bank gave Obodzinski two drafts in the amount of $283,349.14 and $582.91, both made payable to “Me Charles Gelber in trust (for the benefit of Veronica Piela)”.[63]

[205]     According to Gratiela Dina, representative of the Scotia Bank, the bank insisted on adding to the drafts a notation to the effect that the money was for the benefit of Mrs. Piela.  That had not been requested by any of the Defendants. In her view, it was unusual for a mandatory to close accounts and remove the money.  Dima, who has been with Scotia Bank for 19 years, testified that she has never seen a mandatory do that.

[206]     As regards Mrs. Piela’s accounts at the Royal Bank of Canada (“RBC”) branch on Queen Mary, Obodzinski, Trcziakowski and Kerner attended there also on December 27, 2013, providing them with a photocopy of the homologation judgment.  That same afternoon, Obodzinski returned with Gelber.  He gave another photocopy of the document.  Once again, the bank told them that they required input from the bank’s legal department before proceeding as requested.

[207]     Roula Marinos, an RBC employee for 31 years and the Branch Manager at that time, testified that she detected from those Defendants a sense of urgency, which was a “red flag” for the bank.  As a result, she put a note in the records requiring any payment to be made either to Mrs. Piela or to “Anita Obodzinski Curator for Veronika Piela”.[64]  This was not done at the request of any of the Defendants.

[208]     On January 20, 2014, Obodzinski and Gelber returned, finally with an original version of the judgment and the Mandate.  They insisted on closing all of Mrs. Piela’s accounts at RBC.[65]  On January 23^rd, the bank transferred approximately $190,000.[66]

[209]     As a result of the foregoing transactions at both banks, a total amount of $474,174.87 was transferred and deposited into Gelber’s trust account.[67] This took approximately one month, with most of the delays resulting from the administrative requirements of the banks.

[210]     Mrs. Piela was not made aware by any of the Defendants of these transfers of funds and the closure of accounts; nor was Mtre. Dogaru, her lawyer.

[211]     Only once the funds were transferred, did Kerner phone the Montreal police (“SPVM”) stating that it was “urgent” to rapidly remove Mrs. Piela from her residence and to place her in a seniors residence.  This was on January 28, 2014.[68]

[212]     The same afternoon, she attended at the police station and met SPVM officer Kraska, the Community Relations Officer responsible for abuse of seniors, as mentioned above.  Kerner told her that she had been hired by Mrs. Piela’s “niece” and, as well, that Fr. Kutash had stolen $800,000 from Mrs. Piela, who lived with 20 cats in terrible dilapidated conditions.[69]  Not only is there no proof to support these quantitative declarations, the preponderance of proof, at best, demonstrates an inexplicable exaggeration, which undermines once again Kerner’s credibility.

[213]     This is the same information she had given that morning on the phone to police officer Anna Palotta, as per the latter’s testimony at Trial.  Palotta was the Community Relations Officer responsible for conjugal violence. She fixed an appointment with Kraska for that afternoon.

[214]     Kerner claims that it was at that meeting when the she was informed by officer Kraska that she could call the City of Montreal’s 3-1-1 line and request that police officers attend at Mrs. Piela’s premises with a view to inspecting her living conditions and, if appropriate, having her transported to a hospital.[70]  Frankly, it is not credible that a social worker would need be advised by a police officer on how to proceed in such a situation.

[215]     In any event, Kerner informed officer Kraska that she did not want Mrs. Piela to be hospitalized and, further, inexplicably inquired as to the reason why she should be hospitalized when “elle n’est pas malade”.[71] In any event, she left.

[216]     It is as if Kerner did not want any independent professionals to assess Mrs. Piela’s medical situation, including her state of mind and capacity. Clearly as a social worker, Kerner knew that people with mental diseases can be assessed medically at a hospital. She obviously knew that a medical evaluation was required in order to assess capacity. Either Kerner was simply trying to avoid exposing Mrs. Piela to an independent evaluation in a situation she could not control or, alternatively,  she seriously believed that Mrs. Piela was not suffering from any medical issues, including those which could lead to her being declared incapacitated. Neither of these explanations are favourable to Kerner.

[217]     Not long after, Kerner returned to the police station.  She still did not provide an original version of the homologation judgment and Mandate, as requested by the SPVM.[72]  However, she did show the police a copy of her psychosocial report on Mrs. Piela, as well as Goldsmith’s report. She again wanted the police to help transport her to a seniors residence, and this without the need for any other formality.

[218]     Officer Kraska, who testified that Kerner wanted the police to act quickly, told her that there was nothing the police could do to remove Mrs. Piela from her apartment to a seniors residence without a Court order.  Again Kraska repeated that all the police could do would be to visit her premises and, if necessary, transport her to the hospital.[73]

[219]     Again, Kerner said that this was not what was wanted.  According to officer Kraska, Defendant Kerner then texted Gelber, after which she left the police station.

[220]     On Kerner’s departure, officer Kraska made a phone call so as to have police officers go to Mrs. Piela’s residence and determine her state of health.  After hearing back from the police officers who went to Mrs. Piela’s apartment, officer Kraska wrote in her report as follows:  “Mme Kerner semble cacher des informations que nous lui demandons, la nièce ne nous rencontre pas et ne semble pas trop intéressée à nous rencontrer”.[74]

[221]     According to officer Palotta, during her cross-examination by Gelber, what the police officers saw at Mrs. Piela’s residence was not what Kerner had described.  Mrs. Piela appeared to be “all there” and notwithstanding the cats and the smell of urine, she did not appear to be in danger.

[222]     In her report, officer Kraska wrote that Mrs. Piela even requested assistance for house-cleaning.[75] The Court considers Kraska to be a credible witness throughout her testimony and that her written reports are reliable.

[223]     In any event, Kerner’s attempts to have Mrs. Piela removed by the police and transported to Snowdon Residence without a Court order, did not succeed.

[224]     A few days later, on February 2, 2014, another break-in occurred at Mrs. Piela’s apartment.

[225]     This time, Kerner went with Obodzinski and Trcziakowski, and all three of them entered by force, breaking the door, given that Mrs. Piela, who was present, refused to give them entry.  They all eventually pleaded guilty to criminal charges in this regard.[76]  Kerner admitted that she was even reimbursed with Mrs. Piela’s money because she had apparently ripped her coat during the illegal entry.

[226]     Those three Defendants searched her apartment, and Kerner took photos of it and of Mrs. Piela.[77]  As a result, they were arrested and released.  All three eventually pleaded guilty to the charges.[78]

[227]     On the day after the break-in, Goriunov retained the services of L.M.J. Renovation.  The latter charged $862.31 to replace the broken door with a steel one[79], which said amount is claimed in the present proceedings.

[228]     Clearly, this break-in was intended to obtain, if not “stage”, the proof which would be used in order to obtain a Court Order to force the removal of Mrs. Piela.  In the Court’s view, the proof permits such a conclusion of fact.

[229]     Two days later, Mrs. Piela went to the RBC with Fr. Kutash in order to change her bank account number, and this as a result of the break-in.[80]  Because of her visit, Roula Marinos of the bank left a message for Obodzinski so as to inform the latter thereof.  Consequently, as of February 4, 2014, Obodzinski was aware that Mrs. Piela was making inquiries at the bank.

[230]     Mrs. Piela returned to the RBC with Fr. Kutash on February 8, 2014 and was then informed that she could not have access to her accounts because Obodzinski had obtained a Court order naming her the curator of her finances.[81]  She was essentially told the same thing by the Scotia Bank on February 10^th.[82]

[231]     What Mrs. Piela did not realize, and had not been informed by anyone, was that both Obodzinski and Kerner had recently signed Affidavits in support of the Motion to Obtain An Order For Authorization to Care[83], drafted by the latter’s husband, Gelber.[84]  The purposes of the proceeding was to obtain a Court order to forcibly remove her from her apartment and to bring her to Snowdon Residence, located in the west-end of Montreal, nowhere near the Ukrainian Villa located in the Rosemont borough.

[232]     The Motion was presented in room 2.08 on February 10, 2014.  It had not been served on Mrs. Piela.  Neither she nor her attorney, Mtre. Dogaru, were advised of the Motion or its planned presentation.  Having been filed and made presentable so quickly, it was not even on the Court Roll.[85]

[233]     When asked if it had been served and why it had not been fixed on the Roll, Gelber explained that he had tried to present it to the Judge in Chambers but that that Judge would not hear the Motion and had it transferred to room 2.16, from where it was then referred to room 2.08.[86]  Upon further questioning, Gelber explained that according to her doctor, Mrs. Piela suffered from Alzheimer’s and that, as a result, legal service of the proceeding really served no purpose.[87]  He asked for the Court’s authorization not to serve the proceeding so as to not “perturber la vieille dame”.[88]

[234]     Gelber then explained how, in the same sense, the Motion for homologation of mandate had been served in the “niece’s” presence so as not to “déranger sa tante qui est dans une situation quand même exceptionnelle, vu son âge, vu sa santé, etc.”[89]

[235]     In addition, Gelber confirmed that he was filing the Affidavit of the social worker, adding that Mrs. Piela’s situation was “débile”.[90]

[236]     At no time did Gelber inform the Court that Mrs. Piela had mandated a lawyer, with whom he had already communicated.  Nor did he advise the Judge that the social worker in question was his wife.  The Judge was also not informed that paragraph 4 of Kerner’s Affidavit, which related to paragraph 7 of the Motion, referred to information purportedly observed during the break-in of February 2, 2014.

[237]     He also did not disclose that Mrs. Piela wanted to go to a different residence, the Ukrainian Villa.

[238]     And finally, although Gelber’s Motion declared that there was “urgency”[91] requiring that delays be shortened, which the Judge accepted to do[92], he did not advise the Court that since December, he, Kerner and Obodzinski had focused their attention on Mrs. Piela’s bank accounts rather than on her physical situation.  No disclosure was made to the effect that the so-called urgency only arose a few days after Mrs. Piela had attended at the RBC attempting to modify her accounts, as mentioned above, and the branch manager had left a message for Obodzinski. He also did not disclose, as will been seen shortly, that his wife, Kerner, had just recently been advised that a public social worker was to visit Mrs. Piela in the days to follow.

[239]     Clearly, Defendants Gelber, Kerner and Obodzinski sought once again to avoid a transparent and loyal debate before the Court.

[240]     Relying on Gelber’s representations, the exhibits and the Affidavits of Obodzinski and Kerner, and without having been informed of all relevant issues, the Court authorized the forcible removal of Mrs. Piela from her apartment for transportation to Snowdon Residence.[93] The Court had once again been successfully misled.

[241]     On February 13, 2014, Nathalie Geoffrion of CSSS Côte-des-Neiges was to visit Mrs. Piela at her home in order to identify her needs.[94]  That visit, of course, did not take place.

[242]     Geoffrion testified that at the beginning of February 2014, she had received a phone call from Kerner inquiring as to her involvement with Mrs. Piela.  Without having the specific date, she said that her most recent contact could have been the 10^th or 11^th.  Kerner is said to have rapidly hung up. The Court considers the testimony of Geoffrion in this regard to be credible, notwithstanding her imperfect memory on certain factual elements.

[243]     Also, at a point in time prior to February 12, 2014, Kerner called Goldsmith.  She wanted, as mentioned above, the latter to prescribe sleeping pills and an antipsychotic drug for Mrs. Piela.  Goldsmith refused.  The latter explained to the Court that for a person of Mrs. Piela’s age, those medications “are not benign”; in other words, they could be harmful to her.

[244]     On February 12, 2014, Mrs. Piela was forcibly removed, manu militari, from her apartment.  The Court Order was executed by bailiff Jacques Bouthillier in the presence of two police officers and two ambulance technicians.  According to Bouthillier, none of the Defendants were present.  He said that he had called for a locksmith and for police support.

[245]     The bailiff had been contacted the previous day by Gelber.

[246]     Kerner admitted, in the context of the disciplinary proceedings before her professional order[95], that she was indeed present at Mrs. Piela’s residence on the day that the latter was transported to Snowdon Residence.  Yet, before the Court, she denied having been there and, further, was unable to explain why she had admitted the contrary.  The mere fact that the bailiff did not see her does not mean that she was not present that day, whether earlier or later. This is yet another reason to consider Kerner’s testimony to not be credible or reliable.

[247]     In describing Mrs. Piela’s transfer, bailiff Bouthillier testified that she was in a state of crisis.  She was screaming.  The police and ambulance technicians forcibly installed her on the stretcher for transport.  He could smell her.

[248]     According to police records, [96] they had received a call to assist a bailiff “pour intervention chez une femme connue pour violence, démence”.  It is not known who described Mrs. Piela that way, but there is no proof in support of her being known for violence or dementia.  Someone directly involved wrongly informed the police about her.

[249]     In any event, Mrs. Piela was transported to Snowdon Residence, a relatively small, privately-owned residence.  A handwritten report by Victoria Ramos[97] described her condition upon her arrival.  She also testified and indicated that Mrs. Piela was a “little bit confused and frustrated” on her arrival.

[250]     As mentioned above, Mrs. Ramos described her physical condition. They cleaned her for over two hours. Ramos added that she had never before seen a lady in that condition. The Court has already commented on context in this regard.

[251]     It is also interesting to note that, according to Mrs. Ramos, Mrs. Piela was cooperative with her.  There is no indication that she refused any assistance.  She did use a walker, but she could go to the bathroom on her own and did not require either diapers, a specialized toilet or a chair in the shower.  She used a lift to go upstairs for her meals.

[252]     But Mrs. Piela had no intention of staying at Snowdon Residence.  On only the third day after being forcibly transported, she walked away.

[253]     On February 15, 2014, without informing anyone, Mrs. Piela walked out of the residence, pushing a walker, without even a coat on her back.[98]  A 9-1-1 call was made by someone, which resulted in the police finding her.

[254]     One of the police officers who found her and prepared an incident report, Sgt. Detective Fiona Ramy, testified that there was ice and snow everywhere and that Mrs. Piela was cold.  She was wearing only a nightgown.

[255]     Mrs. Piela told the police that she did not want to return to the residence, having been forced to go there.  She also told them that she was not allowed to use the telephone or have visitors.  On numerous occasions she said that she would commit suicide if forced to stay there.

[256]     The police officers went back to the residence with her.  They were informed that Mrs. Piela had been brought there under Court Order.  The Director confirmed that they were under orders from Gelber, Kerner and Obodzinski not to allow her to use the telephone or to have visitors.  In case of emergency, the only two contacts were Obodzinski and Kerner.

[257]     Witness Ramos, employee of the residence, said she was unaware of such orders for Mrs. Piela.  In fact, according to her, there were no rules at the residence limiting visitors and phone calls, and that residents could make calls and receive visitors “whenever”.  The Court understands from this testimony that the rule against any outside contact for Mrs. Piela was exceptional.

[258]     In fact, Kerner confirmed the existence of special rules for Mrs. Piela when she testified that this prohibition was suggested by the owners of the residence to give Mrs. Piela the time to settle in without disturbance.  The owners of the residence did not testify before the Court.  But the Director who spoke to the police is said to have told them that they were “under orders” from the Defendants.  As already mentioned, the Court considers Kerner not to be credible.

[259]     As part of their investigation on February 15^th, the police also spoke to Gelber, who went to meet them at the residence.[99]  He gave them a copy of the Court Order, explaining that she suffered from Alzheimer’s.  He also told them that a priest had stolen several hundreds of thousands of dollars from her and that a lawsuit has been instituted against him.[100]  He assured them that her money was in a trust account.

[260]     There is no proof of any such lawsuit having been instituted against Fr. Kutash.

[261]     In any event, given the Court Order, Mrs. Piela was returned to Snowdon Residence.  Nonetheless, the police remained involved.

[262]     On February 17, 2014, officer Kraska was informed of the February 15^th intervention involving Mrs. Piela.

[263]     Given Mrs. Piela’s numerous comments that she wanted to commit suicide, Kraska contacted the TRACOM crisis centre and scheduled a meeting at Snowdon Residence for that afternoon.  Kraska, Ramy and two other police officers, and representatives from TRACOM all went to the residence.[101]

[264]     On their arrival, the Director of the residence advised them that they could not enter to see Mrs. Piela, since she had no right to visitors.  He explained, as mentioned above, that he had received instructions not to allow visitors.[102]  He also indicated that she had to remain there by reason of the Court Order.

[265]     Kraska and Ramy insisted on seeing Mrs. Piela on the grounds of ensuring her safety.  After some continued resistance, they were eventually granted entry and met Mrs. Piela.

[266]     She explained her story to them.  She told them that she did not want Obodzinski and Kerner to handle her affairs, that the former was not her niece and that they had made false statements about her.  There was another residence where she wanted to live.[103]  According to Ramy, Mrs. Piela was saying “help me… help me, or I’ll kill myself if I stay here”.

[267]     She also asked to be able to call Fr. Kutash.  A TRACOM representative provided her a phone to make the call.  As an aside, this call to Fr. Kutash would appear to contradict Obodzinski’s testimony that she reconnected with Mrs. Piela in 2013 because the latter had been so concerned about being financially abused by him.

[268]     That same day, the decision was made by the police to remove Mrs. Piela from Snowdon Residence and to bring her to the TRACOM crisis centre, and this so as to ensure her safety.  No one at the residence was told where she was being taken.

[269]     According to Kraska’s written report[104], Mrs. Piela could not have been suffering from Alzheimer’s or dementia given that she could express herself so well.  This obvious contradiction gave rise to a serious concern by Kraska and other police officers of possible financial abuse by Obodzinski and Kerner.

[270]     Even though she had been brought to a crisis centre, Mrs. Piela’s drama did not stop there.

[271]     Kerner sent Kraska an email on February 19, 2014, insisting on knowing where Mrs. Piela was located.[105]  On February 21, 2014 she called officer Palotta, with whom she had spoken previously.  The latter explained that Kraska had already called Obodzinski but that there had been no reply.  Palotta then assured Kerner that Mrs. Piela was in a safe place and that soon everyone would be contacted.

[272]     According to Palotta’s report[106], Kerner stated the following:

[273]     That afternoon, officer Palotta returned Obodzinski’s call and essentially told her the same thing as she had said to Kerner, that Mrs. Piela was in good hands and safe.  That did not reassure Obodzinski, who became angry and responded that they would be hearing from her lawyer.[107]

[274]     On February 26, 2014, Gelber presented a Motion for the Issuance of a Writ of Habeas Corpus, relying on an Affidavit signed by Obodzinski.[108]  The Notice of Presentation, addressed to the SPVM, had indicated that it would be presented on March 4, 2014, but it was presented on February 26, 2014.  After “ex parte” representations by Gelber, the Court ordered the return of Mrs. Piela within 10 days.[109]

[275]      The next day, then Sgt. Detective Julie Desrochers began an investigation into Mrs. Piela’s situation, which she later transferred to a Sgt. Detective in commercial fraud.  Mrs. Piela was interviewed at length on three separate days in the spring of 2014 as part of the investigation.[110]

[276]     Days later, the City of Montreal presented a Motion to have the Court’s Return Order retracted.  Mrs. Piela also filed proceedings which were presentable the same day, March 6, 2014, to set aside the Mandate.

[277]     The Court granted the retraction of the Order to return Mrs. Piela, which Obodzinski no longer contested.[111]  Ultimately, Gelber and Obodzinski renounced to the forcible housing of Mrs. Piela at Snowdon Residence.

[278]     They undertook not to communicate with Mrs. Piela.  Gelber further undertook to provide an accounting and not to spend any of Mrs. Piela’s money without adhering to the specific protocol established by the Court.

[279]     However, Obodzinski did contest Mrs. Piela’s demand to set aside the Mandate in case of incapacity, and this even after a medical report in March and a psychosocial report in April 2014 had concluded that she had normal cognition, no apparent cognitive or psychiatric disorder and possessed excellent memory and, further, was capable of making personal decisions and managing her assets.[112]

[280]     On July 17, 2014, the Court granted[113] a Safeguard Order provisionally suspending Obodzinski’s powers as mandatory and authorizing the Public Curator to provisionally protect Mrs. Piela and her assets, the whole until final judgment.  Gelber was ordered to remit to the Public Curator all of Mrs. Piela’s assets that he held in his trust account.

[281]     In September 2014, an eleven-day Hearing commenced, spread out over a period of one year.  This culminated in the Langlois Judgment which declared Mrs. Piela capable and the Mandate an absolute nullity.  Obodzinski was ordered to render an account as mandatory within 21 days.

[282]     As outrageous as it was for Obodzinski to contest Mrs. Piela’s proceedings given that she admits having staged the signing of the Mandate and, further, that she obviously knew the staged conditions to which Goldsmith was exposed in order to obtain her opinion, she nonetheless refused to accept Justice Langlois’s judgment. Obodzinski inscribed the Langlois Judgment in appeal.[114]  The Court of Appeal dismissed the appeal on the basis of a Motion to Dismiss, being of the view that the appeal had no reasonable chance of success.[115]

[283]     Given the Court Orders for Gelber and Obodzinski to provide financial information and render accounts, Mrs. Piela was to find out what had actually happened to her money.

[284]     Gelber informed Mtre. Dogaru in March 2014 that he had received $474,145.87 from Mrs. Piela’s bank accounts.[116]

[285]     From that amount, he had paid approximately $5,248.00 to Kerner, his wife.  He paid his own legal fees, in the amount of $18,036.73.  Certain amounts were paid for rent, partly to Piela’s landlady and some to Snowdon Residence.[117]

[286]     In addition, Gelber had paid $20,000 to Obodzinski for “sundry items”.[118]

[287]     What was not mentioned by Gelber in that letter was the cheque he had issued weeks earlier, two days after Mrs. Piela had been transferred to Snowdon Residence, in the amount of $100,000.  That cheque was made payable to RBC Dominion Securities to a personal account in the name of Obodzinski.[119]

[288]     Although Obodzinski testified that it was the bank which had insisted that the account be in her name, the fact is that the deposit form indicated that the source of the funds was “client’s own account with lawyer’s trust”.[120]  This is consistent with Gelber’s cover letter stating that it was “for the benefit of Anita Obodzinski”.[121] No one from RBC Dominion Securities was called to testify on the subject.

[289]     Gelber pleaded guilty before his professional order in relation to that payment, for which he was declared guilty.[122]

[290]     Obodzinski admitted that she invested the $100,000 in gold[123], as she had previously done with her own personal investments.  She claimed it was for Mrs. Piela’s benefit, a statement which the Court considers to be neither credible nor reliable, being inconsistent with the preponderance of proof. Moreover, having invested it as she did, it confirms anew that she likely never intended to leave the money in Mrs. Piela’s accounts, contrary to what was argued by her and Gelber.

[291]     Incredibly, that amount of $100,000 was not even accounted for until December 2015 when Obodzinski finally undertook to reimburse it.

[292]     Prior to that, Obodzinski had attempted to hide the existence of that amount from the Public Curator and Mrs. Piela.  She eventually admitted to forging two bank account statements by taking a photo of a portion of one bank statement superimposed over a part of another[124], which she then provided to Gelber so he could send them to the Public Curator.  This was done with a view to falsely showing that more money was in the account than, in fact, there was actually.

[293]     In the context of the criminal proceedings against her[125], Obodzinski admitted to doing this.

[294]     By March 2016, Obodzinski finally reimbursed the $100,000.  However, she also owed an additional amount of $45,885.33 pursuant to Mrs. Piela’s contestation of her accounting.  She was ultimately ordered by the Court to pay that additional amount.[126]

[295]     Plaintiff seeks the solidary liability of all the Defendants, except Goldsmith, for moral and punitive damages, which constitutes the bulk of the claim.

[296]     The Court will commence by analyzing the issue of fault as regards Goldsmith, followed by that of the other Defendants.

[297]     For the reasons that follow, the Court is of the view that Plaintiff has failed to establish Goldsmith’s fault and, hence, her liability.

[298]     As mentioned above, the Court has concluded from the proof that the doctor did not actually meet Mrs. Piela.  Instead, the preponderance of proof would indicate that she most probably met a stand-in during a faked scene that Obodzinski staged with the assistance of Kerner, and Trcziakowski. Even had she met Mrs. Piela under the extreme influence of alcohol or drugs, to such an extent that she was no longer, for all intents and purposes, the same person, unable to respond to the doctor’s questions, the outcome of Plaintiff’s claim would be the same.

[299]     That scene, as mentioned, was set in no small part by Kerner’s phone call the night before, when she told Goldsmith how Mrs. Piela could not speak any English or French, requiring her “niece” to translate, lived in dire conditions, and, further, was being financially taken advantage of by a priest.

[300]     One must keep in mind that Kerner claims to have met Mrs. Piela on several occasions.  She therefore knew very well that Mrs. Piela could both understand and speak some English, that she could actively participate in discussions and accordingly did not require a translator for the entire exchange with Goldsmith.  She also must have known that the person she presented to Goldsmith as Mrs. Piela was, for whatever reason, not really her. Goldsmith argues that Kerner lied to her, and the preponderance of proof supports that assertion.

[301]     Should Goldsmith have at least suspected that what was taking place in front of her, given the extreme conditions and physical state of Mrs. Piela, which were in stark contradiction to a so-called “loving niece” taking care of her and the presence of so-called cleaning lady?

[302]     Perhaps. But to a certain extent, Goldsmith was herself the victim of a fraud. Moreover, concluding as to liability of a professional based purely on subjective hindsight is not the appropriate test for the Court to apply.  As a doctor performing a professional service, Goldsmith is to be judged on the bases of what other doctors, called upon to perform the same test, would have done in such circumstances.

[303]      Yet, Plaintiff chose not to file an expert opinion in this regard.

[304]     A medical report prepared by Dr. Catherine Ferrier, dated March 27, 2014, was filed as an exhibit[127], but not as an expertise.  That report was prepared for presentation before Justice Langlois on the subject of Mrs. Piela’s capacity.  Its objective was not to comment on whether or not Goldsmith had respected the rules of her profession.  The same can be said of the psychosocial report prepared by Carole Honeywell[128], at least as regards Goldsmith.  The opinions therein do not constitute proof of professional fault against Goldsmith in the present matter.  Nor do such opinions take into consideration all the circumstances described in the present judgment.

[305]     In the absence of proof as to the rules which govern a given profession, it would be imprudent for a judge to simply substitute his or her personal view as to what those rules are or should be.[129]

[306]     Nor does the proof establish a presumption of facts[130] which would lead to a probable conclusion of fault by Goldsmith.

[307]     Moreover, simply because the Langlois Judgment concluded that Goldsmith’s report was not reliable for the purpose of concluding that Mrs. Piela was not capable[131], and the reasons giving rise to that conclusion, these are insufficient for the purposes of establishing fault and liability in the present matter.

[308]     In this regard, and as mentioned above, not only was Goldsmith not a party to the proceedings before Justice Langlois, but the qualification of the facts was totally different.[132]  The Judge did not have to, nor did she attempt to decide as to liability.

[309]     The Court need not repeat all of Plaintiff’s arguments in this regard, most of which have already been addressed above. Another argument however is raised, which need be addressed. .

[310]     Plaintiff argues that Goldsmith, while in her office, had signed an Affidavit on March 5, 2014, confirming that she did not know Mrs. Piela, had never met her and had never prepared a medical report regarding her.[133]

[311]     Goldsmith objected to its production on the grounds that the Affidavit had not been communicated prior to Trial and, further, that Justice Langlois had it removed from the court file before her.

[312]     The Court took the matter under reserve, but the objection is now dismissed.  Goldsmith was aware in advance of trial that the lawyer who received her solemn declaration had been called as a witness.  There was no other reason for him to testify other than as regards her Affidavit.  There should accordingly be no resulting surprise.  This is not a case of procedural inequity.  Also, as regards the Hearing before Justice Langlois, the Court understands that the Affidavit was withdrawn by consent of the parties.  As mentioned, liability was not an issue in that proceeding. 

[313]     The Affidavit is therefore received in proof.

[314]     That said, the context of the affidavit is important to the issue of Goldsmith’s liability

[315]     On March 5, 2014, Goldsmith received a Subpoena on the part of Mrs. Piela to appear before Justice Langlois and to bring with her a copy of her medical report concerning Mrs. Piela dated November 8, 2014.  The report was not attached to the Subpoena.  Moreover, the Subpoena was not served by bailiff. It was sent by mail to medical offices other than where Goldsmith was working.  She was actually working at a completely different family medicine group.

[316]     Goldsmith verified her office records and office agenda, which contained no mention of Mrs. Piela, or of any appointments the day in question.  She immediately phoned Mtre. Dogaru to explain the situation.  He asked her to provide a letter by fax to that effect.  She sent him a letter the same day, indicating that she was not at work on the day indicated on the medical report and that Mrs. Piela was not a patient of hers.[134]

[317]     Without notice, Mtre. Dogaru showed up at her office with another lawyer, along with an Affidavit which he had drafted for her to sign.  Dogaru and this other lawyer were only there for about 20 minutes.

[318]     Mtre. Dogaru presented her the Affidavit for signature.  She again verified her clinic office records, without finding any relevant information.  She called a friend, a lawyer, who indicated that if she believed it to be true, she could sign it.  So she did.

[319]     It was only after she signed the Affidavit that Mtre. Dogaru told her that he had a report with her name on it and, further, that the police were already involved.  He refused her request to see the report.  He left.

[320]     Later that afternoon, she called Mtre. Dogaru from home.  She told him that she recalled having seen a patient outside her office at the family medicine group where she was working.  She wanted more time to verify the information and asked him to put a hold on the Affidavit.

[321]     Mtre. Dogaru did not agree.  According to Goldsmith, he “yelled” at her, saying that he had decided to withdraw the complaint he had made to the Collège des médecins du Québec but, because of her call, he would not withdraw it.

[322]     Goldsmith then called Kerner, who texted her to contact her husband Gelber.  Goldsmith called him.  He sent her a copy of her report.  She immediately emailed a letter to Mtre. Dogaru, confirming that she had attended at Mrs. Piela’s home and evaluated her on November 8, 2013 and, as well, that the affirmations in the Affidavit were inaccurate.[135]

[323]     All of these exchanges took place during the same day.

[324]     In the Court’s view, Goldsmith’s testimony is credible.  Mtre. Dogaru did not testify. The lawyer who received her sworn statement did testify and said nothing which contradicted her version.

[325]     Goldsmith’s Affidavit was not made in the present proceeding, in which it is being invoked by Plaintiff.  But even if it had been, it could be revoked if proven to have been made through an error of fact.[136]

[326]     To the extent that Goldsmith’s signature of the Affidavit constitutes a judicial admission, the facts establish that it was made in error and accordingly, can be revoked.  Moreover, that error was made partly as a result of Mtre. Dogaru’s own lack of cooperation, if not transparency in the circumstances.

[327]     Plaintiff has simply failed to establish any fault on the part of Goldsmith.  It is interesting to note that Goldsmith, without knowing how the Court would conclude, admitted that she had nightmares about Mrs. Piela after the police told her what had happened.

[328]     Goldsmith was not charged criminally, unlike other Defendants, nor by her professional order, as were Kerner and Gelber.  That is not determinant as to liability of course, but it is understandable in the circumstances.

[329]     That said, Plaintiff having failed to establish Goldsmith’s fault, the Court need not conclude as to either quantum or causality relating to Goldsmith.  Nor does the Court need consider the other arguments raised by the latter.  The lawsuit against Goldsmith is to be dismissed, with costs.

[330]     Plaintiff is of the view that the present case involves elder abuse.  As stated at the outset, the Court agrees.

[331]     In support of its claim, Plaintiff filed the report of Marie Beaulieu.[137]  That report concludes that Mrs. Piela was the subject of financial exploitation by Defendants.

[332]     The Defendants object to the filing of her report and, in the same vein, to her testimony as an expert.  The Court received Madam Beaulieu’s proof under reserve of those objections.

[333]     In the Court’s view, there is no doubt that Marie Beaulieu, a titular professor at the School of Social Work, University of Montreal, is a specialist in the field of elder abuse.  Since 2010, she holds the Research Chair on Mistreatment of Older Adults, which is financed by the Quebec Government. One need only consider all the other details of her lengthy curriculum vitae[138] to understand her impressive reputation, and this at an international level.  She is certainly an expert in her field.           

[334]     That said, however, the Court considers the objections to be well founded.  The primary purpose of her report is to draw conclusions which the Court must decide as to the abuse of Mrs. Piela, including the questionable conduct of certain Defendants.  Moreover, from a legal perspective, it is neither a medical nor psychosocial expertise.  The report does not identify any specialized rules which apply to or govern a profession or industry.  More importantly, the report for the most part encroaches on the role of the judge, primarily as to its conclusions.  As a result, it is not receivable as expert proof in the present matter, nor is Mrs. Beaulieu’s testimony.

[335]     Nevertheless, the report contains numerous doctrinal comments and references of a general nature, which are of interest to the issues before the Court in the present matter.  The latter considers that the report can be treated simply as doctrine, much like the text co-authored by Mrs. Beaulieu, entitled “La maltraitance matérielle ou financière des personnes aînées: un état de connaissances”[139], which Plaintiff has filed along with other texts as doctrine.

[336]     That said, the analysis of fault regarding Obodzinski, Trcziakowski, Kerner and Gelber (the “Remaining Defendants”) should take into account that neither Kerner nor Gelber were retained by Mrs. Piela, nor were they part of her social entourage. Accordingly, there is no contractual relationship with her.  Furthermore, none of those four, including Obodzinski, have established that they were relatives. In the Court’s view, the issue pertaining to the actual relationship between Obodzinski, as well as Trcziakowski, and Mrs. Piela is relevant to their defences primarily as regards their conduct and intentions, as well as those of other Defendants.

[337]     That said, Obodzinski and Trcziakowski did know Mrs. Piela socially.  Obodzinski’s mother had been a friend of Mrs. Piela, to the point, as mentioned above, that she had been named in a 1996 version of the latter’s Last Will and Testament.[140]

[338]     According to the transcript of Mrs. Piela’s testimony before Justice Langlois on June 23, 2015[141], she met Obodzinski’s mother at a bazaar.  Contrary to Obodzinski’s representation, Mrs. Piela did not say, in the references she cites, in what year they had met and certainly did not say that she had only met Obodzinski’s mother when selling the two duplexes she owned in 2007 or 2008.

[339]     In 2007, when Mrs. Piela sought to sell her two duplexes, Obodzinski and her mother wanted to purchase them.  Mrs. Piela decided not sell to them.  Instead, she sold the duplexes to a third party from Ottawa, for a combined total amount of $590,000.[142]  That produced between $500,000 and $564,000 net, which she deposited in her banks.[143]

[340]     Thereafter, the relationship with Obodzinski and her mother soured, and there appears to have been no further communication with Mrs. Piela until 2013.

[341]     According to Obodzinski, and as mentioned above, during that year Mrs. Piela called her and her mother because she was concerned about financial pressure from the pastor, Fr. Kutash.  When they visited her, they were shocked to see her living conditions, as well as her own physical state.  She claims that Mrs. Piela told her, while crying, that she had given Fr. Kutash a Power of Attorney, but he would not answer any of her questions.  He just left her there. 

[342]     The Court has already expressed the view that Obodzinski’s testimony in this regards is both unreliable and not credible. Given Obodzinski’s lack of honesty in relation to Mrs. Piela, it is difficult to give any probative value to her description of the reconnection which took place in 2013.

[343]     Contrary to her version, the Langlois Judgment[144] described the situation as follows:

[344]     Given the absence of credible proof to the contrary, the Court, as mentioned, has concluded as did Justice Langlois.

[345]     Mrs. Piela also confirmed that a renewed connection did take place that year.  She stated that Obodzinski had offered to get her groceries.  Each time, Mrs. Piela would pay Obodzinski $100.  Obodzinski did not personally return with the food.  Instead, she would have the food delivered to Mrs. Piela.[145]

[346]     According to Mrs. Piela, she bought a lot of food once every two weeks.  She gave Obodzinski up to $400 every two weeks.[146]

[347]     In this regard, SPVM officer Kraska testified that Mrs. Piela had told her that she was giving Obodzinski $300 to $400 every two weeks for groceries but did not always receive them.  This corroborates Mrs. Piela’s later statements.

[348]     In any event, the relationship once again came to an end when, according to Mrs. Piela, Obodzinski had taken $200 from her wallet without permission and then refused to admit what she had done.  Mrs. Piela no longer wanted Obodzinski to work for her.[147] What is clear, is that Obodzinski knew that Mrs. Piela had money and no local relatives.

[349]     It was in March of that same year, that Obodzinski falsified Mrs. Piela’s Mandate in case of incapacity.  The rest of her story unfolded from there.

[350]     As regards the issue of fault resulting from the foregoing, the specific articles of the Quebec Charter on which Plaintiff’s case against the Remaining Defendants is based are the following:

[351]     In the Court’s view, the Remaining Defendants did interfere with many of Mrs. Piela’s Charter rights.

[352]     Given the foregoing, the principal violations of Mrs. Piela’s rights are the following:

[353]     In addition to the foregoing, and as mentioned above, Obodzinski falsified financial statements, knowing they would be sent to the Public Curator, and this so as to create the impression that all of Mrs. Piela’s money was accounted for when in fact she had retained $100,000 in investments in her own name.

[354]     There can be no doubt that all of the Remaining Defendants have violated Mrs. Piela’s rights.

[355]     Moreover, those violations were unlawful.

[356]     In order to determine whether an interference is unlawful, the proof need demonstrate wrongful conduct.  The Supreme Court of Canada described the requirement as follows in the matter of Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand[149]:

[357]     Defendants argue, as mentioned above, that they only wanted to help Mrs. Piela and protect her from what they describe as financial abuse by Fr. Kutash with assistance from others.  That is a question of intent.

[358]     The Court will assess the issue of intentional interference in its analysis of the claim for punitive damages.

[359]     That said, even if the Remaining Defendants were attempting to assist Mrs. Piela and to protect her from exploitation, that unto itself does not render their conduct lawful.  There is nothing lawful in the present case about falsifying documents, breaking into someone’s dwelling so as to remove documents and objects and to take photos, in misleading the Court so as to avoid an honest debate and obtain an ex parte judgment, in isolating a person to prevent communication with friends and acquaintances, and at the same time, spending that person’s money for purposes other than her own personal needs.

[360]     Obodzinski invites the Court to ask the question as to "who benefits?".  Clearly, she did, and the others were making money assisting her.

[361]     Moreover, one need keep in mind that Mrs. Piela's escape from Snowdon Residence put a premature end to the Remaining Defendants' plans. The situation that existed at that point in time does not necessarily represent the entire breadth and depth of what they planned to do over time.

[362]     In the Court’s opinion, the conduct of the Remaining Defendants was wrongful and their interferences were unlawful.

[363]     Accordingly, Plaintiff has established the Remaining Defendants’ fault at law.

[364]     The argument of the Remaining Defendants brings to mind the expression “with friends like that, who needs enemies?”

[365]     The Court will now address the various heads of damages which are being claimed and which the proof establishes were, in both fact and law, caused by them.

[366]     Since Mrs. Piela’s money and, for the most part, her documents and certain objects were ultimately returned to her, the only material compensatory amount claimed is for the replacement of her apartment door, and this in the amount of $862.31.

[367]     This event is not to be confused with other damages caused to Mrs. Piela’s dwelling, including the unlawful entry of December 7, 2013, which Mrs. Piela said had been committed by Obodzinski and Trcziakowski, nor the phone line which had been disconnected outside of her apartment in October 2013, in both of which cases Goriunov carried out the repairs.

[368]     The claim only relates to the unlawful entry by Obodzinski, Trcziakowski and Kerner on February 2, 2014, which gave rise to their arrest.

[369]     These three Defendants, as mentioned, have admitted to being involved in the break-in.

[370]     According to Goriunov, the door had been so badly broken that it needed to be replaced on an urgent bases, and this so as to render her apartment more secure.  The amount charged and paid for repairs is established in an invoice dated February 8, 2014, issued by L.M.J. Renovation.  Neither the right to claim such a repair, nor the invoice amount and payment are contested. The Defendants simply deny being liable for same.

[371]     Plaintiff seeks a solidary condemnation against the three stated Defendants who participated in the break-in, relying on Article 1526 C.C.Q.

[372]     Both Obodzinski and Trcziakowski have admitted to having “caused a mischief to the door”.[151]  Kerner made an admission that seems to indicate that they all broke down the door[152], although it is not clearly expressed.  In her sentencing judgment dated September 6, 2017, following Kerner’s guilty plea, Justice Linda Despots writes that Trcziakowski broke down the door[153], which reflects Kerner’s version.

[373]     In the Court’s view, from a civil law fault perspective, the breaking of the door by Obodzinski and Trcziakowski is a separate event from entering and being present unlawfully in a dwelling and committing a mischief therein.  They are distinct acts within the meaning of Article 1526 C.C.Q.

[374]     Under the circumstances, and given the preponderance of proof, the Court considers that Obodzinski and Trcziakowski are solidarily liable for the repair of the door.

[375]     Plaintiff also seeks a solidary condemnation in the amount of $600,000 in moral damages against Obodzinski, Trcziakowski, Kerner and Gelber.

[376]     Completely separate amounts were claimed against Goldsmith. So too against Snowdon Residence and the bailiffs Paquette & Associés with whom Plaintiff has concluded agreements to terminate the proceedings.  The Court need not address those particular issues further.

[377]     What are moral damages?

[378]     The following definition is provided by the Supreme Court of Canada in the matter of Hôpital St-Ferdinand:[154]

[379]     The assessment of an amount to award as moral damages, being non-pecuniary in nature, is to be made in light of the circumstances of a given case which should be compared “with other analogous cases”, as the Supreme Court of Canada directs in Hinse v. Canada (Attorney General).[155]

[380]     The Supreme Court of Canada has, on a number of occasions, indicated that there are three different approaches to use in order to assess such damages, being conceptual, personal and functional.[156]

[381]     In the matter of Cinar, the Supreme Court describes these approaches as follows, and this with a view to creating a personalized evaluation:

[382]     Defendants plead that moral damages, being non-pecuniary in nature, are limited to $100,000, pursuant to the Andrews trilogy. 

[383]     However, that limit does not apply to claims which are unrelated to bodily injury.  Accordingly, that limit does not apply in the present case. The Supreme Court in Hinse[157] states the principle as follows:

[384]     Given the foregoing, what is the appropriate amount to be awarded as moral damages in the present matter?

[385]     The “personal” approach must take into account the pain and inconvenience resulting from the conduct of the Remaining Defendants and their violation of Mrs. Piela’s numerous Charter rights.  Through fraud, deception and misrepresentation, she lost her civil rights and was forcibly removed from her home to a residence where she was isolated from friends and acquaintances, while losing control over all of her assets.

[386]     The preponderance of proof demonstrates that Mrs. Piela was very distressed by the events. She told everyone about it, often.

[387]     Her repeated statements to the effect that all her money had been stolen, she had been kidnapped and, further, would commit suicide if forced to remain at Snowdon Residence are, in the Court’s view, neither the superficial ramblings of an elderly person, nor an exaggeration.

[388]     One must keep in mind that this elderly woman had been forced into a Nazi concentration camp in her youth.  To find herself once again, in her advanced age, years after the death of her husband, physically forced into a place where she did not want to be, with no right to communicate with anyone on the outside, cannot and should not be underestimated.  The debtor must take the victim as he finds her.

[389]     Moreover, Mrs. Piela had to go through Court proceedings to have herself declared capable and have the balance of her money returned. She also seemed to have been traumatized by the experience of testifying from the hospital by videoconference in criminal proceedings, and this shortly before her death.

[390]     The Remaining Defendants’ argument that she had been cleaned up and given warm meals at Snowdon Residence is simply self-serving and ignores the unlawful, traumatic events which were unlawfully imposed on Mrs. Piela against her will.

[391]     The “conceptual” approach focuses on a more objective appreciation of the situation.

[392]     Much of the Quebec doctrine focuses on the problems related to financial abuse and exploitation, the latter being covered by Article 48 of the Quebec Charter[159], the first paragraph of which reads as follows:

[393]     Although the use of the word exploitation (“exploitation” in French), can include financial abuse, the Court is of the view that it would be inappropriate to limit exploitation to confiscating the money of others.  It includes that to be sure, but the concept is much larger.

[394]     The exploitation of an aged person should be considered as a form of abusive conduct which gives rise to some form of benefit for the exploiting party.  In the Court’s view, the term exploitation should not be interpreted restrictively. Article 48 of the Charter refers to “any form” of exploitation, suggesting that there exists many different types of exploitation.

[395]     As well, Article 53 stipulates that in the case of doubt, it should be resolved in keeping with the intent of the Charter.

[396]     Accordingly, it is not necessary for Plaintiff to establish that all the Remaining Defendants actually stole money. The use of someone else’s money against their will, contrary to their interests or without consent would be sufficient. So too, assisting a co-author of a Charter violation to misuse another’s money can also constitute exploitation within the meaning of Article 48.

[397]     In June 2010, the Quebec Government adopted a Plan d’action gouvernemental pour contrer la maltraitance envers les personnes aînées, which adopted the following definition of elderly mistreatment, being the same as to one adopted by the World Health Organisation in its Toronto Declaration:[160]

[398]     In the present matter, the Court is of the view that the Remaining Defendants exploited and abusively mistreated Mrs. Piela.  Given her age and physical restrictions, she was vulnerable. Obodzinski and Trcziakowski as people in the entourage of an elderly person with no family anywhere in the country exploited her, even pretending to be family. Doing so was a manner of seeking a greater level of trust and credibility in the eyes of others.

[399]     As for Kerner and Gelber, with the authority, powers and respect associated with their professional status, they abused the confidence accorded to them by society, including the Courts. The fact that the author of the violation is a professional has been considered a factor to be considered in determining punitive damages.[161]

[400]     The relationship between the author and the victim, particularly in situations involving the relative vulnerability of the victim, are of particular importance, there being a direct causal connection between the abuse of a vulnerable person, including the elderly, and the violation of one’s right to dignity, honour and reputation.[162]

[401]     Also, in the present case there clearly was financial abuse.

[402]     One should keep in mind that on an objective bases, the bankers testified that it was unusual to see mandatories remove so quickly all existing funds from the mandator’s accounts, as was done in the present matter.

[403]     Gelber argued that Obodzinski never really intended to remove the funds and that it was only done because the banks had allowed Mrs. Piela to remove $5,000 on January 6, 2014[163], being after they had told the banks that they had obtained a court order.

[404]     But as at that date, Gelber and Obodzinski had not yet provided RBC[164] and Scotia Bank[165], with originals of the Mandate and Court Order, as required by both banks.  Moreover, as mentioned above, Obodzinski did not raise that issue of Piela’s withdrawal of funds in her discussion with Scotia Bank, on January 10, 2014[166].

[405]     As well, the letters with the banks, to which Gelber refers so as to allegedly confirm the intent to keep the funds in Mrs. Piela’s accounts[167], do not state what he pretends they do.  The letters only state that Obodzinski will manage the funds then held at the banks, without saying where she intended to manage those funds in the future.  Gelber’s interpretation, in the Court’s view, is not grounded in an honest reading of his own wording.

[406]     In addition to the foregoing, the nature of subjective consequences suffered by Mrs. Piela appear to reflect those recognized objectively by others.

[407]     In this regard, in Mrs. Beaulieu’s doctrinal article described above[168], it is stated that the consequences of abusive mistreatment are both multiple and variable[169], including a high level of stress, as well as physical and psychosocial effects, including feelings of insecurity and fear, isolation, loss of mobility, emotional distress and symptoms of depression.[170]  Those consequences, according to the proof, were indeed suffered by Mrs. Piela.

[408]     As regards the third approach, being “functional”, given that Mrs. Piela has deceased since the institution of proceedings, it is difficult to calculate measures which would have provided her solace.

[409]     The mistreatment and exploitation of the elderly inevitably involves the risk that the exploited person may lose her capacity or even die before having the opportunity to benefit from the solace which would result from a payment of moral damages.[171]  In the Court’s view, the functional approach will likely play a less important role in the evaluation of damages in cases of elder abuse than it might in other cases.

[410]     As for the comparative analysis of moral damages directed by the Supreme Court, it is difficult to accomplish that in the present matter, as no relevant cases have been identified for such purposes.

[411]     That said, the amount to be awarded should not be so excessive and disproportionate as to defeat the purposes of an award in moral damages.  However, it should not be so limited as to constitute a licence to abuse the elderly.

[412]     Taking the appropriate factors and the proof into consideration, the Court is of the view that an award in the total amount of $200,000 in moral damages is appropriate in the present circumstances.

[413]     Should the Court award these moral damages solidarily against the Remaining Defendants, as requested by Plaintiff?  Defendants plead it should not.

[414]     In this regard, Article 1480 C.C.Q. reads as follows:

[415]     In the Court’s view, the Remaining Defendants have jointly participated in the wrongful acts which constitute the violation of Mrs. Piela’s Charter rights and the resulting moral damages. And even of one attempts to separate the faults, the reality is that each fault may have caused the injury.  In the present matter, the proof does not permit a reasonable determination as to which of their faults legally or factually caused the actual damages. Such a determination is impossible within the meaning of Art. 1480 C.C.Q.

[416]     For example, without Obodzinski falsifying a Mandate, there would be no eventual damage. Without Trcziakowski breaking into Mrs. Piela’s apartment, and without her RAMQ card, the Court may well not have homologated the Mandate.  And without Obodzinski and Kerner, with the assistance of Trcziakowski, creating a false scenario in order to obtain the required medical and psychosocial report, the falsified Mandate would have no practical meaning.  And without legal proceedings having moved forward by Gelber on an ex parte basis, in a manner which misled the Court and prevented a loyal judicial debate, all the rest would have no meaning.  To succeed in their joint endeavour, all the Remaining Defendants had to work together in a joint effort.

[417]     This is not, in the Court’s view, a case of successive separate faults which can be attached to precise distinct damages.

[418]     Plaintiff can therefore proceed to execute the present judgment for the entire amount of moral damages against all, some or any one of them.

[419]     As between themselves, and in accordance with Article 328 C.C.P., the Court, in view of the gravity of their respective faults, determines their shares as being 33% for Obodzinski, 25% each for Kerner and Gelber, and 17% for Trcziakowski.

[420]     This breakdown acknowledges the pivotal role of Obodzinski, offset by the somewhat lesser role of Trcziakowski, At the same time, it ensures the Gelber and Kerner do not, as between the four of them, absorb a greater combined portion than the other two. 

[421]     In addition to the foregoing, Plaintiff seeks a solidary award of $2,000,000 in punitive damages against the Remaining Defendants.

[422]     Punitive damages may be claimed by successions[172], being a transferable right which had belonged to the deceased.  They may also be claimed even if no compensatory damages are claimed or awarded, being a claim which is autonomous in nature.[173]

[423]     The right to claim punitive damages, an exceptional right under Quebec law, is envisaged at the second paragraph of Article 49 of the Charter, which reads as follows:

[424]     The notion of “unlawful and intentional interference” has been modified somewhat by the courts over the years.

[425]     In 2015, the Supreme Court of Canada in the matter of Hinse v. Canada (Attorney General)[174] confirmed a prior explanation of what that notion means:

[426]     In other words, what need be intentional is the consequence of the interference, which should not however be confused with the concepts of “gross fault”[175] or “intentional fault”. Such intent exists when one knows the extremely probable consequences of their interference.

[427]     The Remaining Defendants plead, as mentioned above, that they only intended to be of assistance to Mrs. Piela, not to do her harm.  They claim they needed to act to protect her from the financial abuse by Fr. Kutash, as well as for her own health and security.

[428]     Firstly, notwithstanding a serious investment of time and effort during the Hearing, the Remaining Defendants did not establish that Fr. Kutash ever actually used a Power of Attorney from Mrs. Piela or that one was actually deposited on record with either of her banks; discussed perhaps, but not more.

[429]     The proof does establish that a Power of Attorney was made in favour of Fr. Kutash.  Only a portion of the notarized document was filed.[176]  Plaintiff’s objection to its production is dismissed, since even notes in bank records indicate that a Power of Attorney seemed to have existed.  But it is not the mere existence of a Power of Attorney that is indicative of financial abuse, it requires the abusive use thereof.  There is no proof in that regard in the present matter.

[430]     As for any amounts which may have been paid out by Mrs. Piela or withdrawn in her presence, the proof fails to establish that any seriously large amounts were given to or taken by Fr. Kutash personally or by those allegedly working with him.  As Gelber ultimately acknowledged, it is not known if the priest received any excessive amounts of money.

[431]     The fact that Mrs. Piela went out on a cold winter day in early 2014 with Fr. Kutash to withdraw money from the bank would appear to speak against his using a Power of Attorney.

[432]     That is not to say that Fr. Kutash impressed the Court with his transparency as a witness.  He did not.  But the Court, based on the preponderance of proof, is unable to conclude that the conduct of the Remaining Defendants was justified in any way by the conduct of others, including Fr. Kutash. 

[433]     To put it more bluntly, even if Fr. Kutash or anyone else had been financially mistreating or abusing Mrs. Piela, that would not justify the unlawful conduct of the Remaining Defendants. Mistreatment or abuse by one does not justify it by another.

[434]     Ultimately, Mrs. Piela was entitled to use her money as she saw fit. If she had wanted to give it away, she would have been entitled to do so. One can wonder who would have benefitted further from her money before and after her death had she not escaped from the residence, but that is not an issue which the Court need decide.

[435]     Secondly, and contrary to what they argue, the Remaining Defendants have not demonstrated that Mrs. Piela’s physical conditions were sufficient to justify their conduct.  As mentioned above, their conduct demonstrated that these were not their priority… the money was.

[436]     There is no proof that they attempted to seriously find options to taking control of both her and her assets.  The Court already made comments above in this regard, and there is no need to repeat them.

[437]     Kerner argues that she is the one who first reached out to the police.  But she was not acting as a whistle-blower.  The proof would indicate that she was seeking police assistance to move Mrs. Piela without having to go through public court proceedings.  The Court does not consider Kerner’s conduct to be honorable or proof of good intentions. 

[438]     In the Court’s view, the Remaining Defendants intended to cause the obvious consequences of their wrongful conduct and, as well, clearly had full knowledge of at least the extremely probable consequences of what their conduct would cause.  There was intentional interference with Mrs. Piela’s Charter rights, thereby giving rise to punitive damages.

[439]     What amount of punitive damages would be appropriate in the circumstances?

[440]     The starting point for this analysis is to identify the objective of awarding punitive damages.  They are not intended to compensate but rather to punish.  Through the words of Justice Le Bel in the matter of de Montigny v. Brossard (Succession)[177], the Supreme Court of Canada describes the objective of punitive damages, also referred to as exemplary damages, in the following manner:

[441]     The Supreme Court went on to confirm, in that same decision, that punitive damages serve three functions, namely punishment, deterrence and denunciation.[178]  Those functions are further described as follows[179]:

[442]     Moreover, the following circumstances are to be considered in the assessment of such damages, as stipulated at the second paragraph of the same article:

[443]     The Remaining Defendants argue that they have all received various forms of punishment for the respective roles.  This is partially correct.

[444]     One need keep in mind, however, that the punishment objective envisaged by the Charter is separate from other forms of punishment. Although the retributive function mentioned above by the Supreme Court of Canada in de Montigny is a factor which the Court can take into consideration, these other forms of punishment should not be considered as a means of escaping an appropriate punitive damage award under the Charter.

[445]     On January 9, 2018, following a guilty plea, Obodzinski was convicted of obstruction of justice, various forgery-related offences, mischief and unlawful presence in a dwelling house with intent to commit an indictable offence.

[446]     As a result, she was imposed a conditional sentence of imprisonment for two years less a day, subject to conditions, to be served in the community, followed by a 3‑year probation order.

[447]     She was later held to have breached her conditional sentence order without a reasonable excuse.[180]  As a result she was ordered to serve, in custody, six months of imprisonment.[181]  She has been freed pending her appeal therefrom.[182]

[448]     As mentioned above, Trcziakowski pleaded guilty to mischief and unlawful presence in a dwelling house with intent to commit an indictable offence[183] in relation to one break-in.  He received a conditional discharge.

[449]     In addition to the criminal charges relating to the break-in, to which she pleaded guilty and received a conditional discharge, Kerner was prosecuted by her professional order regarding both Mrs. Piela and another elderly woman, which was in a completely separate case.  She was temporarily radiated for a total period of seven years to run concurrently, with the result being an effective radiation during three years.

[450]     Gelber was not charged criminally but was prosecuted by the Bar.  He was temporarily radiated for a total period of 22 months, with a portion to run concurrently, such that it has resulted in an effective radiation during 18 months.

[451]     Without questioning any of these prior decisions made in relation to the Remaining Defendants, the Court is of the view that the punishments imposed on them to date carry only a small amount of weight in the context of the present case.

[452]     None of the Defendants have spent any jail time.  Although Obodzinski was ordered to do so, it was only as a result of her failure to respect her sentence conditions and that is currently before the Court of Appeal, such that even that jail time has been suspended.

[453]     As regards Kerner, although she received a temporary radiation from her professional order for an effective duration of three (3) years, which appears rather serious, the Court should also consider that the decision was rendered in relation to two (2) different cases, only one of which involved Mrs. Piela.[184]

[454]     The other case involved another elderly woman, the mother of an acquaintance of her husband, Gelber, who had also been involved in her case.  Accordingly, only a portion of the temporary radiation relates to Kerner’s conduct in relation to Mrs. Piela.

[455]     The Remaining Defendants also reminded the Court that they have been named on numerous occasions, with harsh criticism, in media coverage, which it seems they have.[185]  That may also form part of the retributive function mentioned above, but once again, although it can be taken into consideration, it cannot replace a punitive damages award under the Charter.

[456]     In addition to the foregoing, Obodzinski argues that the Court should consider the fact that all of Mrs. Piela’s money was returned to her, as if that is to her and to Gelber’s credit.  She also argues that Mtre. Dogaru had a duty of care to Mrs. Piela which he failed to satisfy; she was vulnerable and he, as her lawyer, failed to improve her physical condition.

[457]     These are audacious arguments which underscore Obodzinski’s lack of understanding as to the seriousness of both her conduct and the violations of Mrs. Piela’s rights.  In fact, she is intent on placing the blame on Mtre. Dogaru and Fr. Kutash.  So too are the other Remaining Defendants.

[458]     As regards the fact that money was eventually returned to Mrs. Piela, this was only done pursuant to Court Orders. Such return does not constitute an act made through kindness or remorse. To the contrary.  As mentioned above, Obodzinski even falsified bank statements to the Public Curator so as to camouflage the fact that she was not returning all of the funds taken from Mrs. Piela on the bases of a falsified Mandate.

[459]     This is of serious concern, and the Court need consider it further in the context of deterrence, both on a subjective and objective basis.

[460]     Punitive damages in part are intended to deter a wrongdoer from repeating his unlawful and intentional conduct and, as well, to deter others from acting in a similar manner.

[461]     None of the Remaining Defendants have indicated that they would not repeat their conduct.  There was no remorse shown by them.  Simply saying that you made a few mistakes, without saying which mistakes or providing further explanation, does not constitute remorse or a sincere undertaking to never repeat the unlawful violations. They all still appear to believe that everything they did was totally justified in order to protect Mrs. Piela. That obstinate and unjustified attitude requires from the Court a strong message of “subjective” deterrence, one that is to be delivered in the form of punitive damages.

[462]     In the specific case of Obodzinski, she also filed a minimum of 15 complaints with the Syndic of the Barreau du Québec against Mtre. Dogaru alleging, amongst other things, that he had enabled Mrs. Piela to perjure herself on a continuous bases, has been obstructing justice and has knowingly and deliberately been misleading the Court.[186]  No disciplinary charges were ever brought against Mrs. Piela’s lawyer.

[463]     Moreover, and as mentioned at the outset, as recently as the end of 2018, Obodzinski communicated with both the R.C.M.P. and UPAC alleging “major fraud” by Mtre. Dogaru and Viacheslav Goriunov.[187]  There is no proof that anything has come from such complaints. Moreover, as regards Goriunov, the Court found him to be a credible witness.

[464]     Obodzinski, as previously mentioned, also filed complaints with the Minister of Public Security, the Barreau du Québec and the Sûreté du Québec regarding alleged criminal conduct by Lt. Detectives Julie Desrochers and Stéphane Dumont in relation to Mrs. Piela.  No charges resulted from any related investigation.[188]

[465]     None of the Remaining Defendants appear to understand the seriousness of their unlawful conduct, and they refuse to acknowledge that it should never have occurred and must never recur.

[466]     The following words of Cory J., as cited above in de Montigny, are so very relevant to the present case: denunciation is “the means by which the judge or the jury expresses its outrage at the egregious conduct of the defendant”.  As well, again as cited above, “outrage is expressed through an award of a substantial or symbolic amount of money”.

[467]     Outrage: such an appropriate word in relation to the present matter.  Accordingly, a substantial amount of money as punitive damages would be justified given the egregious conduct and grave fault of the Remaining Defendants.

[468]     It would also be justified as an objective deterrent so as to prevent others from acting in a similar manner.

[469]     This is particularly so in present societal circumstances, where such a large number of the so-called “baby-boomer” generation are becoming elderly and will, with time, become more reliant on third parties for their basic needs. As well, diagnoses of various forms of dementia appear to be significantly on the rise, rendering the victims thereof even more susceptible to exploitation by others.  The courts, and society in general, need to be vigilant to the abuse of the elderly and the vulnerable.

[470]     A strong message of “objective” deterrence is also warranted.

[471]     However, although Courts have discretion in awarding punitive damages under the Quebec Charter, they still need to take certain factors into account, as mentioned above. The Court does not have absolute discretion. As the Supreme Court of Canada stated in the matter of Cinar[189], punitive damages must be “awarded with restraint”.

[472]     Accordingly, the courts are challenged to identify the proper balance between expressing outrage and exhibiting restraint.

[473]     In Cinar, the Supreme Court referred to Article 1621 C.C.Q. in support of the principle that punitive damages, even in Charter cases, are not to exceed what is sufficient to fulfill their “preventative purpose”.

[474]     Accordingly, in setting the amount, a factor to be considered is the patrimonial situation of the debtor.  It is useful for the purposes of assessing the debtor’s ability to pay the punitive damages and, as well, in determining whether the amount is sufficient to fulfill the punitive, preventive and dissuasive function.

[475]     Gelber and Kerner argue that the claimant alone has the burden of proof to establish their ability to pay as debtors. The Court disagrees. The award of punitive damages is not a compensatory award. It is not meant to put the creditor in the same position she would have been absent the debtor’s fault. It is meant to punish.

[476]      The Court considers that the debtor has a serious and active role to play in establishing his patrimonial circumstances.  Given the importance of the objective dissuasive function, the creditor should not be expected to carry the burden alone on behalf of society. Wrongdoers should not escape appropriate punishment due to a given claimant’s incapacity to make complete proof. That would not be in the best interest of justice or of society. As stated by the Supreme Court of Canada in the matter of Time Inc.[190], the lack of evidence in this regard “ in no way means that they are immune from a possible award of damages”.

[477]     Accordingly, in the Court’s view, it involves at least a shared burden. In cases where the debtor considers that she is unable to pay the debt, she need demonstrate that to the court.

[478]     As regards the amount of an award, the Court need be attentive not only to awarding too large an amount, but also to awarding an inappropriately low amount of punitive damages simply as a result of weak evidence on behalf of the victim. This is especially important in cases, such as this one, where there is a need for a strong subjective and objective deterrent. Too low an amount can have the effect of trivializing the violation and neutralizing the deterrent.[191] 

[479]     The Supreme Court of Canada, in the matter of Whitten[192], expressed the importance of avoiding too low a quantum of punitive damages in the following manner:

[480]     In the present matter, the Remaining Defendants voluntarily chose not to disclose detailed information concerning their patrimony but rather opted to strategically limit their input to general and vague commentary. It is not that there is an absence of proof but rather that the probative value thereof is wanting, particularly given the absence of sufficient detail and their own credibility issues generally.

[481]     Their strategy is not favourable to them. The probative value of their input, being individuals who falsified documents, created fictitious circumstances and misled or contributed to misleading the Court, is to say the least minimal.

[482]     Accordingly, the absence of credible and reliable information is not to be assessed in their favour; quite the contrary.

[483]     That said, the proof demonstrates the following:

[484]     The preponderance of proof would indicate that as a result of media coverage, criminal proceedings and professional suspensions, the Remaining Defendants do not have the revenues they had previously. This relates to their financial capacity to pay an award.

[485]     That said, it has often been recognized in the case law that the calculation of the punitive damages is not simply a mathematical exercise.

[486]     The Court has not been provided by the parties with similar cases for comparative purposes.  That said, one should also consider that there is only one claimant, Mrs. Piela’s Succession, and multiple Defendants who are individuals, not corporations, and who are neither poor, nor excessively wealthy.

[487]     Again in Cinar[198], the Supreme Court also confirmed that, as at that time, in 2013, punitive damage awards in Quebec generally varied between $5,000 and $250,000. That said, such larger amounts, and those greater, have normally been awarded against corporations and rarely against individual defendants, unless quite wealthy.

[488]     In setting the amount of punitive damages, the Court is taking into consideration the gravity of the Charter violations, the need for a serious message of deterrence, the other forms of reparation to which Defendants have been exposed, including the award of moral damages, and the proof as a whole.

[489]     Given that Obodzinski, in view of the proof, seems to require a stronger message of deterrence, the amount of the condemnation will be slightly higher for her than for others.  As well, in view of the fact that Trcziakowski appears to have less assets and opportunity to acquire same, his amount will be slightly less.

[490]     Accordingly, the punitive damages to be awarded are as follows:

[491]     Given that punitive damages are not meant to be compensatory, but rather punitive, the award thereof is personal to each debtor.  It does not involve solidarity, and should not be awarded as such[199].  This approach also reflects the usefulness of considering each debtor’s patrimonial position, as well as the statutory requirement to consider each debtor’s intention to interfere with the creditor’s fundamental rights.

[492]     In addition to the foregoing damages, Plaintiff seeks to be reimbursed Mrs. Piela’s extrajudicial expenses in Court file 500-14-043906-130, being the file in which she sought to retract the judgment declaring her incapable and rendering null the Mandate in favour of Obodzinski.  It is in that file that the Langlois Judgment was rendered.[200]

[493]     Of all the amounts billed by Mtre. Dogaru in that file, the Public Curator had paid $52,028.24, using Mrs. Piela’s money.[201]  Accordingly, it is as if she herself had made the payment, which enables her Succession to claim same.  The remaining amounts appear to have been payable by Mrs. Piela, and then her Succession.  In this regard, an additional amount of $61,268.97 $ was billed to Mrs. Piela in March and April 2016[202] in relation to the same Court file.

[494]     Of that latter amount, only $41,000 appears to have been paid.  Mtre. Dogaru presented a calculation of the applicable extrajudicial fees,[203] and that exhibit refers to an amount payable of $41,000, not $61,268.97.  Accordingly, the Court will use the $41,000 amount as expressed in the said exhibit.

[495]     Accordingly, the total amount of extrajudicial fees and expenses being claimed in relation to the Mandate proceedings is $93,028.24, all such amounts being incurred prior to the institution of the present claim.

[496]     In addition, and by demand made essentially on an oral basis, Plaintiff also seeks payment of extrajudicial fees in the present file, and this in the amount of $70,423.19.[204]

[497]     In the present file, Plaintiff has failed to establish that Defendants acted abusively in their defence.  They were entitled to contest the claim, especially given the amounts claimed. Moreover, without providing details, they argued that they had sought to settle but that Plaintiff was unreasonable. Little was said in response thereto. That is not favourable to Plaintiff’s claim in extrajudicial fees.

[498]     However, as regards Mrs. Piela’s proceedings to have herself declared capable and to set aside the Mandate, she should never have been obliged to do so.  The initial proceedings by Obodzinski in this regard were part of her violation of Mrs. Piela’s fundamental rights. That is in part what the punitive damages are meant to punish.

[499]     But that is not what was abusive in the context of the claim for extrajudicial expenses, as the victim was not involved in the initial proceedings. It was Obodzinski’s contestation of Mrs. Piela’s proceedings to have herself declared competent that were clearly abusive within the context of Article 51 and following C.C.P.

[500]     The argument of Obodzinski to the effect that she had renounced to the Mandate on February 27, 2015[205], and accordingly, she should not be responsible for any continued proceedings by Mrs. Piela, carries no weight whatsoever.  She actively contested Mrs. Piela’s proceeding regarding the Mandate and then inscribed the Langlois Judgment in appeal.

[501]     Pursuant to Article 54 C.P.C., the Court is empowered to order Obodzinski to pay the professional fees and disbursements incurred by Mrs. Piela. 

[502]     In the Court’s view, and in keeping with the principles enunciated in Viel v. Entreprises immobilières du terroir ltée[206] and in Hinse v. Canada (Attorney General)[207], the Court considers it appropriate to order Obodzinski to pay the amount of $93,028.24 in extrajudicial fees and costs.

[503]     Interest and the additional indemnity provided by law on the compensatory and moral damages are to be calculated as of the date of filing of the initial originating demand, being November 24, 2016.

[504]     The punitive damages will bear interest and the additional indemnity provided by law as of the date of the present judgment.

[505]     As for the award of extrajudicial fees and expenses, these shall also bear interest and the additional indemnity provided by law, also to be calculated as of November 24, 2016, being the date they were first claimed.

[506]     The Court has taken into consideration the current situation created by the Covid‑19 health crisis, which has resulted in appeal delays being suspended.  However, in the event that any of the judgment debtors in the present matter were to appeal successfully, there would be no injustice resulting from an award with interest and the additional indemnity starting as of the date hereof or beforehand.  Moreover, a judgment debtor is always entitled to pay the judgment debt even prior to the expiry of the delay to appeal.

[507]     Succession seeks to have all condemnations against Remaining Defendants declared executory notwithstanding appeal.

[508]     In the Court’s view, such provisional execution is not appropriate in the present circumstances.  Mrs. Piela has already passed away, and no proof has been made demonstrating that payment of the amounts in issue are such that they need be paid notwithstanding appeal.

[509]     Moreover, given the present medical crisis in relation to Covid-19, during which the delay to appeal has been suspended, the Court is of the view that this represents an additional reason not to impose provisional execution in the present matter.

[510]     Kerner and Gelber seek an order to have Obodzinski and Trcziakowski reimburse them for any condemnations made against them in the principal action.

[511]     The warranty action is based primarily on the alleged fact that Obodzinski misled them into believing that she was Mrs. Piela’s niece and that the latter’s Mandate in favour of Obodzinski was validly created.

[512]     Firstly, Kerner and Gelber have failed to raise one factual element or legal bases that would give rise to any liability by Trcziakowski towards them.

[513]     Secondly, as indicated above, the Court already raised doubts as to Gelber’s position regarding the relationship between Obodzinski and Mrs. Piela.  His reliance on Obodzinski in this regard is not credible.  Nor is Kerner’s.

[514]     Moreover, they have both failed to establish that their conduct, fault and liability result from liability on the part of Obodzinski.

[515]     Even had they been misled by Obodzinski regarding those two factual elements, that in no way would have justified their own egregious and negligent conduct towards Mrs. Piela.  They are the authors of their own fault at law.

[516]     For these reasons, their warranty action will be dismissed.