COURT OF APPEAL FOR ONTARIO
Sharpe, Epstein and Pepall JJ.A.
In the Estate of Maria Lagani, deceased
Antonio Lagani
Applicant (Appellant)
and
Nicola Lagani and Immacolata Montesano in their capacity as named Estate Trustees for the Estate of Maria Lagani, deceased and in their personal capacity, Franco Lagani and Rosa Amatiello
Respondents (Respondents in Appeal)
Paul Trudelle, for the appellant
Romeo D’Ambrosio, for the respondents Nicola Lagani and Immacolata Montesano
Heard and released orally: March 13, 2013
On appeal from the judgment of Justice John P. L. McDermot of the Superior Court of Justice, dated May 4, 2012, with reasons reported at 2012 ONSC 2614.
ENDORSEMENT
1The appellant raises several grounds of appeal from a summary judgment granted in this estates matter.
1. The availability of summary judgment
2We do not agree that the motion judge erred as to the availability of summary judgment. The motion judge was aware that there were some contested factual issues and he relied on the parties’ agreement that the matter should proceed by way of summary judgment.
3The appellant says that he only agreed to summary judgment if the matter could be resolved on points of law and that the trial judge erred in proceeding on the basis of the parties’ agreement as though it contemplated that the motion judge could assess credibility and make findings of fact.
4In our view, the appellant’s position before the motion judge was ambiguous and we can readily understand why the motion judge thought there was an agreement that he should deal with the case under Rule 20.
5However, and in any event, we are satisfied that on this record it was open to the motion judge under Rule 20 to make any factual findings that were required to reject the appellant’s legal arguments attacking the agreement at issue and to decide the case in favour of the respondents. To the extent his judgment does rest on findings of credibility, we note that on many points the evidence of the appellant was highly problematic. This is demonstrated by counsel’s withdrawal at the hearing of the appellant’s sworn evidence that he did not have the whole agreement before him when he signed it in the face of forensic evidence establishing that he did.
6In these circumstances, the motion judge did not err in granting summary judgment.
2. Independent legal advice
7We do not agree that the provision in the agreement as to independent legal advice should be interpreted as a condition entitling the appellant to back away from the agreement after he signed it. That provision was there to alert the appellant of the opportunity to obtain independent legal advice. He chose not to rely on it. The appellant is a sophisticated businessman, not a vulnerable party, and the motion judge did not err in ruling that the appellant cannot rely on this provision given that he proceeded to execute the agreement without obtaining legal advice despite the opportunity to do so.
3. Misrepresentation
8There is no evidence that any party to this agreement misrepresented to the appellant the contents of the relevant will before he signed the agreement. There is also evidence that all the siblings, including the appellant, were fully aware of the testator’s wishes with respect to the house. The recitals in the agreement and the effect of the agreement are consistent with and facilitate those wishes. In our view, the motion judge did not err in rejecting this argument.
4. Corroboration
9While the motion judge did refer to s. 13 of the Evidence Act, R.S.O. 1990, c. E.23, and state that the appellant’s evidence was not corroborated, his findings do not rest on this point and are fully supportable quite apart from any lack of corroboration.
5. Statute of Frauds
10Although not raised in oral argument, we are of the view that the Statute of Frauds, R.S.O. 1990, c. S.19, does not apply to assist the appellant.
Disposition
11For these reasons, the appeal is dismissed.
12The respondents are entitled to their costs of the appeal fixed at $7,500 inclusive of disbursements and applicable taxes. That award is to be set off against any entitlement the appellant may have to the residue of the estate and, as well, is payable by the appellant personally.
“Robert J. Sharpe J.A.”
“G.J. Epstein J.A.”
“S.E. Pepall J.A.”
