Baron v. Mamak, 2018 ONSC 2169 (CanLII), http://canlii.ca/t/hrcpr
This solicitor’s negligence claim, Baron v. Mamak, arose from the predatory marriage case of Juzumas v. Baron (which we have previously written about in depth here), but this claim was brought not by the victim, as you might expect; but by the perpetrator.
By way of brief background, a younger woman met an elderly gentleman, Mr. Juzumas, when she began providing him with housekeeping services. Mr. Juzumas was born in Lithuania and spoke very little English. He had no family in Canada. The housekeeper, was also born in Lithuania, and she had been married several times before. The two married, on the understanding that the housekeeper would look after Mr. Juzumas and take care of the house until his death, as he did not want to live in a nursing home. The housekeeper, did not hold up her end of the bargain and preyed on the elderly man for financial gain, including by taking steps to have title to his house transferred into the name of her son.
Eventually, through the assistance of a neighbour, the older man was able to bring a claim to have his home transferred back into his name and obtained a divorce, but not before suffering emotionally, physically, and financially from the actions of the housekeeper. Justice Lang, who presided over the original action, also dismissed claims brought by the housekeeper and her son against Mr. Juzumas (i.e. quantum meruit claim) with costs.
Subsequently, the housekeeper and her son brought this solicitor’s negligence claim seeking damages from the lawyer who prepared the transfer of the house and various other documents.
The Lawyer’s Involvement:
The day before their marriage, the housekeeper and Mr. Juzumas attended at a lawyer’s office and prepared a Will naming the housekeeper as the sole executor and beneficiary of Mr. Juzumas’ estate. The lawyer did not meet with Mr. Juzumas separately. He did not arrange for an interpreter. There was no discussion with Mr. Juzumas as to the value of the house or whether a marriage contract might be appropriate.
Later Mr. Juzumas went to a different lawyer and executed a new Will, leaving most of his estate to his niece in Lithuania. He left a bequest of $10,000.00 to the housekeeper.
When the housekeeper became aware of this new Will she consulted with the original lawyer, and decided that Mr. Juzumas’ house, which formed a significant part of his estate, would be transferred to the housekeeper’s son, subject to a life interest to Mr. Juzumas.
The housekeeper, her son, and Mr. Juzumas then had a brief meeting at the lawyer’s office. The lawyer did not explain what a “life tenancy” to Mr. Juzumas; there was no discussion about the value of the property being transferred during the meeting; and there was no interpreter present. There was a suggestion that the housekeeper had drugged Mr. Juzumas prior to the meeting.
After receiving the lawyer’s confirmation letter in the mail confirming the transfer of the house, Mr. Juzumas contacted the lawyer on three separate occasions asking to reverse the transfer. The lawyer consistently advised him that the transfer could not be undone because it was “in the computer”.
With the assistance of his neighbour, Mr. Juzumas consulted another lawyer and ultimately brought an action to reverse the transfer.
Madam Justice Lang, in the original action, made the following comments regarding the transfer:
At the time he executed the transfer, the then 91-year-old Kazys was in failing health. He was vulnerable and in fear of being abandoned to a nursing home. He signed the transfer under the domination, control, and intimidation of his significantly younger wife/housekeeper Galina, as well as under the influence of her son, Yevgeni. The transfer in my view resulted from their undue influence of a vulnerable elder. Kazys did not have the benefit of legal advice or any understanding of the irrevocable nature of the document he signed. In addition, the inequality of the bargaining power and the unfairness of the transaction render it unconscionable. The transaction must be set aside.
Solicitor’s Negligence Analysis:
The defendant lawyer conceded that his actions fell below the standard of care.
Justice Gray noted that under the circumstances, the lawyer was clearly not in a position to represent both the housekeeper and her son on the one hand, and Mr. Juzumas on the other. He was obliged to obtain separate representation for Mr. Juzumas. Furthermore, Justice Gray stated that it clearly would have been prudent to ensure that Mr. Juzumas understood what was going on given his limited language skills.
However, despite the lawyer’s failure to meet the requisite standard of care, Justice Gray concluded that it was impossible to find that the breach of care caused any of the damages claimed by the plaintiffs, the housekeeper and her son.
As clearly found by Justice Lang, the transfer of the property from Mr. Juzumas to the son was the product of a scheme perpetrated by the plaintiffs on an elderly and unwell man. It was the product of their undue influence. Even if the defendant lawyer had fulfilled his duty of securing separate representation for Mr. Juzumas, that would have simply prevented the transaction from occurring.
Justice Gray dismissed the plaintiffs’ claim.
This case provides helpful guidance on the best practices when dealing with more vulnerable clients and the steps required when assisting clients with estate planning. Had this claim not been brought by the perpetrators of what was previously determined by the Court to be a clear case of undue influence, the results may have been different.
 2018 ONSC 2169 (CanLII)
 2012 ONSC 7220 (CanLII)