Court of Appeal for Ontario
Before: Juriansz, Lauwers and Huscroft JJ.A.
Between
Rosina Edda Servello
Plaintiff
(Respondent)
and
Antonio Servello
Defendant
(Appellant)
AND BETWEEN
Antonio Servello
Plaintiff by Counterclaim
(Appellant)
and
Rosina Edda Servello
Defendant to the Counterclaim
(Respondent)
Counsel:
Kenneth Peacocke and Michelle Kropp, for the appellant/Moving Party/Antonio Servello
Gavin MacKenzie for the respondent, Rosina Servello
James Butson, for the Home Equity Bank
Heard: June 3, 2015
On appeal from the judgment of Justice Edward J. Koke of the Superior Court of Justice, dated September 2, 2014.
ENDORSEMENT
1The appellant appeals from the judgment of Koke J. setting aside the transfer of the home property of the respondent mother to the appellant son, restoring the respondent as owner of the property, and dismissing the appellant’s counterclaim for various equitable remedies. The appellant also brings a motion seeking to set aside or vary an order made by Pardu J.A. quashing his motion for an order vacating a reverse mortgage placed on the property by the respondent.
2The appellant argues that the evidence of misrepresentation was insufficient to permit a conclusion of non est factum and that the trial judge erred in concluding that the respondent was subject to undue influence.
3We disagree. In our view, the trial judge correctly concluded that the defence of non est factum was made out. That was sufficient to void the transfer (as well as a second deed entered subsequent to the transfer, establishing a joint tenancy between the appellant and respondent, and a third deed the appellant made to sever the joint tenancy, which was redundant), but the trial judge also found that the respondent’s signature on the transfer was obtained as a result of undue influence. This conclusion is supported by the evidence. The appellant lived in the respondent’s home; the respondent was recently widowed; her first language was Italian and she had limited comprehension and reading ability in English; and she did not receive independent legal advice.
The Counterclaim
4Concerning the appellant’s counterclaim, the trial judge found that the appellant contributed money and labour (approximately $68,000) to the purchase of land and construction of a workshop addition on the understanding that the property would eventually be transferred to him. However, the trial judge concluded that the counterclaim failed because the appellant did not “come to court with clean hands” and because it was premature in any event.
5The trial judge catalogued a list of wrongs committed by the appellant and highlighted his refusal to transfer the property back to the respondent, which he considered egregious. The trial judge found that the only reason the appellant refused to transfer the property back to his mother was because the appellant perceived it provided him with leverage in his quest to secure an interest in the workshop property.
6The trial judge also concluded that the appellant’s claim was premature in that it had not crystallized when the counterclaim began. Although he found that there was an understanding between the parties that the appellant would eventually be transferred an interest in the workshop property, the trial judge found that the date of the transfer had never been set and there was no guarantee that severance of the workshop property would be permitted in any event.
7We see no error in the trial judge’s analysis. Moreover, the trial judge had no evidence that the property increased in value as a result of the workshop addition in any event.
8Accordingly, the appeal is dismissed. The appellant shall have until July 31, 2015, to vacate the workshop premises and remove his equipment along with any other property.
Costs
9The respondent appealed the costs order at trial. The trial judge awarded costs of over $56,000 (inclusive) on a partial indemnity basis for a four-day trial. The respondent made no submissions on the matter but the appellant argued that the costs order was excessive in the circumstances and sought leave to appeal the costs order in the event his appeal is dismissed. We see no error in principle and would not interfere with the trial judge’s costs order.
The motion to vacate a reverse mortgage
10Finally, the appellant sought to review the order of Pardu J.A. dismissing a motion to vacate a reverse mortgage that had been placed on the property. The motion was brought on the basis that the reverse mortgage was in breach of an undertaking given to LaForme J.A. that the property would not be transferred pending the appeal (LaForme J.A. stayed the order requiring the appellant to vacate the property pending the appeal). Justice Pardu ordered that the appellant had to bring a separate action to vacate the mortgage.
11We are satisfied that this panel has jurisdiction to review the order of Pardu J.A. as well as the possible breach of the undertaking given to LaForme J.A.. However, given the outcome of the appeal, the appellant has no proprietary interest in the property so the motion is dismissed as redundant.
Conclusion
12The appeal and the motion are dismissed. The appellant shall pay the respondent costs of $20,000 for the appeal and motions. The appellant shall pay Home Equity $2,000 for the motion. Both amounts are inclusive of taxes and disbursements.
“R.G. Juriansz J.A.”
“P. Lauwers J.A.”
“Grant Huscroft J.A.”
