CITATION: Miotto v. Bionda, 2011 ONSC 6195
DIVISIONAL COURT FILE NO.: 296/11
DATE: 20111018
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ELIO MIOTTO, DAVID MIOTTO, 1411187 ONTARIO INC. and 1530495 ONTARIO INC.
Plaintiffs
– and –
JORDAN BIONDA, a.k.a. JORDI BIONDA, a.k.a. JORDY BIONDA, MARCIE MACKESY, a.k.a. MARCIA MACKESY, JOEL BIONDA a.k.a. JOEY BIONDA,WENDY LYNN CAMERON, JOCELYN ANITA KNOX, KEVIN ALEXANDER KNOX, JASON BIONDA, PRIMA VERDE INC., PRIVATE STRUCTURES CORP., SHOREGATE INVESTMENTS INC., THE GREEN ENVELOPE CORPORATION, SAVVY MANAGEMENT INCORPORATED, 1453991 ONTARIO INC., and CONCENTRA FINANCIAL SERVICES ASSOCIATION
Defendants
Leora Wise, for the Plaintiffs
Richard J. Worsfold, for the Defendant, Marcie Mackesy
HEARD at Toronto: October 18, 2011
PARDU J. (orally)
[1] The plaintiffs move for leave to appeal from a decision refusing summary judgment or partial summary judgment in their favour. They submit that:
(i) the reasons of the motion judge were inadequate;
(ii) the judge ought to have exercised his discretion to:
(a) order the defendant, Mackesy to transfer fifty percent of the shares in a Panama Corporation to the individual plaintiffs, who claim they are entitled to all of the shares;
(b) require Mackesy to execute all documents to allow the plaintiffs to control the company and effect the sale of the land owned by the Corporation in the Bahamas;
(c) in the alternative, an interlocutory order to transfer the shares to the plaintiffs so that they could sell the Bahamian land.
[2] Rule 20.04 (2.1) provides:
In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[3] As Perell J. noted in Healey v. Lakeridge Health Corp. at paras. 30 and 31:
Put into practical terms, these insights mean that having regard to the new powers to weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence, the moving party must provide a level of proof that demonstrates that a trial is unnecessary to truly, fairly, and justly resolve the issues.
In this regard, it is important to precisely identify the issues to be resolved because the nature of the particular issues to be resolved both qualitatively and quantitatively will be relevant to determining whether a trial is necessary.
[4] Here, Elio Miotto signed documents giving up the individual plaintiffs’ rights to fifty percent of the shares, which they now claim. He did not file an affidavit explaining the evidence in support of his assertion that he did so under duress. The only evidence was the assertion by David Miotto that Elio Miotto told him he felt compelled to sign the documents on February 9, 2006. Similar documents were executed on February 21 and April 21, 2006, confirming entitlement to only fifty percent of the shares.
[5] The motion judge did not err in concluding that a trial was required to make the findings necessary to resolve the issue of whether the plaintiffs were entitled to one hundred percent, as opposed to fifty percent of the shares. This issue is the foundation of the plaintiffs’ claim. His reasons make the basis of his decision clear.
[6] In any event, I am not satisfied that this issue raises questions which transcend the immediate interest of the parties. No questions of general or public importance are raised which require resolution on appeal.
[7] The motion judge also exercised his discretion reasonably in concluding that a trial was required to establish whether the Corporations now dissolved, who actually advanced the funds for the shares, assign their entitlement to the shares to the individual plaintiffs.
[8] While some changes are apparently reflected on the accounts of the Corporations, the assignments were said to be oral and there was no evidence, particularizing any corporate action to effect these assignments.
[9] Finally, the grant of a mandatory order or injunctive remedy is always discretionary and it was open to the motion judge to consider whether any order made might be enforceable as far as Bahamian and Panamanian authorities were concerned.
COSTS
[10] For reasons delivered orally, motion for leave to appeal dismissed. Costs should follow the result. Costs to respondent on this motion fixed at $5,085.00, payable in 30 days.
PARDU J.
Date of Reasons for Judgment: October 18, 2011
Date of Release: October 25, 2011
CITATION: Miotto v. Bionda, 2011 ONSC 6195
DIVISIONAL COURT FILE NO.: 296/11
DATE: 20111018
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ELIO MIOTTO, DAVID MIOTTO, 1411187 ONTARIO INC. and 1530495 ONTARIO INC.
Plaintiffs
– and –
JORDAN BIONDA, a.k.a. JORDI BIONDA, a.k.a. JORDY BIONDA, MARCIE MACKESY, a.k.a. MARCIA MACKESY, JOEL BIONDA a.k.a. JOEY BIONDA,WENDY LYNN CAMERON, JOCELYN ANITA KNOX, KEVIN ALEXANDER KNOX, JASON BIONDA, PRIMA VERDE INC., PRIVATE STRUCTURES CORP., SHOREGATE INVESTMENTS INC., THE GREEN ENVELOPE CORPORATION, SAVVY MANAGEMENT INCORPORATED, 1453991 ONTARIO INC., and CONCENTRA FINANCIAL SERVICES ASSOCIATION
Defendants
ORAL REASONS FOR JUDGMENT
PARDU J.
Date of Reasons for Judgment: October 18, 2011
Date of Release: October 25, 2011