Long Running Estate Trial
In a case he called “Ontario’s long running estate trial legal drama,” a Superior Court judge has declared a plaintiff who launched dozens of lawsuits in an estate dispute a vexatious litigant.
The property at 140 Dunvegan Rd. in Toronto is at the heart of the long-running legal battle over the estate of Edward Assaf. Photo: Laura Pedersen
William Assaf has been fighting for a bigger share of his father’s estate since Edward Assaf died in 1971. According to a recent ruling, his battles were “motivated by a belief that a terrible injustice had been done by his father to his mother, who he felt had been abused in life and cruelly treated in the will.”
There have been more than 30 lawsuits and over 100 different court orders in the matter, according to the March 6 ruling by Justice Edward Morgan. Assaf has brought motions against the administrator of his father’s will, the current owners of the elder Assaf’s estate, and a lawyer involved in the case. Courts in several instances have ruled his motions were meritless.
In the absence of action to control future claims, Assaf “will remain a Pirandellian character in search of an author, re-enacting past struggles in a dramatic loop he cannot seem to escape,” wrote Morgan in Burton v. Assaf.
Judges who presided over previous motions in the same matter described the Assaf litigants using similar language. Former Superior Court justice David Cromarty said the litigants were “figures in a classical tragedy, bent upon destroying that which surrounds them, especially their monetary inheritance.” That was back in 1980 in Assaf v. Koury that dealt with an application by Vivian Assaf against her late husband’s estate.
Attempting to bring the legal saga to a close, Morgan said the court has to play the role of gatekeeper to protect the publicly funded justice system. “William Assaf has persistently attempted to re-litigate issues already determined by the court,” wrote Morgan. “He has brought claims and appeals that no reasonable person could expect to win. What’s more, he has initiated actions, motions, and appeals that contain no legally recognizable claim and that do little more than oppress and harass his opponents with repetitions of prior claims.”
The Assaf family’s litigation is “long and painful,” Morgan said, adding the matter is “so extensive that it would be counter-productive to attempt to trace it all.”
The case relates to the will Assaf’s father left upon his death that favoured his daughter, Barbara Laroq, while leaving only small annual payments to Assaf and his mother Vivian. Assaf produced a different will and “claimed to have found [it] among his father’s possessions,” wrote Morgan.
“The found will was held to be a forgery.”
Assaf was convicted of uttering a forgery and sentenced to four years in jail, a number later reduced to 2-1/2 years. The executor of his father’s estate, Robert Bosada, was also found to have forged a document at one point. The judge who presided over that case admonished Bosada but said his actions had no bearing on the ownership of the property.
“In any case, the continued litigation of issues respecting the property and the damages claims in the action would certainly amount to an abuse of process,” wrote Morgan, whose alphabetical list of the claims to the property extends to the letter Y.
Assaf “has attempted to appeal virtually every ruling, often simply for the sake of filing an appeal and then having it dismissed for failure to perfect,” wrote Morgan, adding Assaf has also consistently failed to pay costs awarded against him.
In addition to their own family members, Assaf and his mother brought claims against the purchasers of the property in question. The owners of the home in Toronto’s Forest Hill, Mary Matthews and James Archer-Shee, have, “doubtless to their lasting regret, stumbled into the Assaf family maelstrom,” wrote Morgan.
Although Matthews and Archer-Shee are the rightful owners of 140 Dunvegan Rd., Assaf and his mother have challenged their ownership since their 1998 purchase, Morgan added.
Assaf also sued Bernard Burton, the lawyer who once represented Bosada.
“In about 2003 or 2004, somewhere in that area, we had been in court about 135 times,” says Burton.
“Imagine this, including appeals to the Court of Appeal,” he adds.
While family law matters often lead to heated disputes, estates litigation “in some ways can be even worse,” says Toronto lawyer Garry Wise.
“Sibling rivalries go back to the beginning of time; they’re hugely entrenched,” he says.
“When parents make choices in the way they construct their wills and plan for their estates that leave one child or more than one child feeling out of the favoured circle, it’s just a prescription for this stuff to go on and on and on.”
There’s a cautionary tale for lawyers in cases like this one, says Wise. When they help clients draft a will, they should warn them about what could happen if they exclude someone or favour one child over others, he notes.
“The vast majority of their estate could get swallowed up by litigation if they don’t act in a way that is perceived as even-handed.”
There are no administrative controls in the justice system that stop persistent litigants from suing repeatedly, says litigation lawyer James Morton.
“In Ontario, pretty well anyone is allowed to sue anyone for anything. The controls on that are costs and in an extreme case an order, as in this decision, for declaring someone a vexatious litigant. There is nothing administrative to stop me from suing again and again and again for the same relief against the same people.”
Although courts have discretion to use the vexatious litigant label on their own accord, it’s unusual for them to make such an order unless there’s an application asking for it, says Morton.
“The court upon seeing an abusive process could make an order to ensure that things proceed in an orderly fashion without useless motions, but it would be very, very, very unusual for the court to take such a dramatic step without anyone asking,” he adds. “The role of a judge or judicial officer is not to litigate for people; it is to decide questions they’re asked.”
At a time when courts are seeing greater numbers of self-represented litigants, Wise says this case is a caricature of what he calls a broader problem of loose gatekeeping in Ontario’s courtrooms.
“I think there’s a question that’s bound to be asked sooner rather than later about our court system as a whole, which is: How much longer will our country be able to afford to maintain a robust court system to all to deal with what are essentially personal and private disputes?” he asks.
As a fundamental tenet of democracy, tinkering with the court system isn’t easy, says Wise. But “at a certain point, we are going to have to as a society draw lines,” he adds.
For his part, Morgan noted the vexatious litigant declaration “does not deprive a person of access to justice; rather, it provides extra scrutiny by the court, and impresses potential claims with a form of orderliness without prejudicing their merits.”
Still, Morton calls the vexatious litigant declaration an effective deterrent. “In my experience, when you have a vexatious litigant, it is extremely rare that they would bring an application or a claim that the judge will permit to go forward,” he says.
But Burton says an appeal of the recent decision wouldn’t come as a surprise.
“Judging by the past, of course he will appeal,” he says.
“However, this is the first step, I hope, on the way to some sort of finality.”
He adds: “We are prepared, when we get the order, to send a copy of it around to every court registrar in Ontario just to make sure he doesn’t walk in and, you know, not tell them and put something down.”
Assaf’s agent, Daniel Barna, says the pair disagree with the notion that Bosada’s forged documents didn’t have any bearing on the ownership of the property.
“What we were hoping Justice Morgan would do was recognize that the only way previous orders had been obtained was through lying to the courts,” he tells Law Times.
The true owner of the property, Barna maintains, is Savarin Ltd., a Bay Street nightclub once owned by Assaf’s father. Assaf is now the owner of the company.
“The judges have chosen to believe Bosada, found to be a forger and a perjurer,” he says. Assaf will appeal the vexatious litigant declaration, he adds.
Asked about the costs still unpaid by Assaf, Barna says: “Well, of course these guys have siphoned all the money out of the estate.”