COURT OF APPEAL FOR ONTARIO
Doherty, Laskin and Epstein JJ.A.
BETWEEN
Diana Hordo
Respondent
and
James Bacchiocchi, Maria Bacchiocchi, Lynda Ciaschini, the Estate of Giulio Bacchiocchi
Appellants
Marco Drudi, for the appellants
Robert Besunder, for the respondent
Heard: August 13, 2014
On appeal from the judgment of Justice Elizabeth M. Stewart of the Superior Court of Justice, dated July 6, 2012.
APPEAL BOOK ENDORSEMENT
The Fresh Evidence
1The moving party has not established that any of the proposed fresh evidence (the moving party’s affidavit and attachments) meets any of the criteria for the admission of fresh evidence on appeal. Most of the documents were available at trial (e.g. transcripts of discoveries) and others have no bearing on any of the issues raised on appeal (e.g. various unsubstantiated allegations made against persons who were not parties to the appeal).
The Appeal
2The finding by the motion judge that Ms. Hordo was entitled to 20 per cent of the net proceeds of the sale of the Alton property was, in our view, based on a finding that there was an agreement between her and her parents to share in the proceeds of the sale. The trial judge relied on a document referred to as a Declaration of Trust in coming to her conclusion. The appellant submits that this constitutes a finding of liability on a basis not pleaded. We disagree. The Declaration was evidence of the existence of the agreement pleaded and properly treated as such by the trial judge.
3We agree with the trial judge’s treatment of the various issues related to the calculation of the “net proceeds” of the sale and reject the submissions made by the appellant in this court. Those submissions tracked the arguments at trial.
4We would not interfere with the costs award. Ms. Hordo was successful on one significant claim. We would not interfere with the trial judge’s determination that Ms. Hordo was entitled to costs on a partial indemnity basis. Nor would we interfere with the quantum.
5The appeal is dismissed.
The Cross-Appeal
6Counsel for Ms. Hordo advised that given our determination that the fresh evidence was not admissible, he would not pursue the cross-appeal.
7The cross-appeal is dismissed.
8No costs to any party on the appeal or cross-appeal.