CITATION: Zeppieri & Associates v. Cascio, 2015 ONSC 5986
DIVISIONAL COURT FILE NO.: 122/15 DATE: 20150928
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MOLLOY, KRUZICK AND LOCOCO JJ.
BETWEEN:
ZEPPIERI & ASSOCIATES Solicitors (Respondent)
– and –
MICHELE CASCIO Client (Appellant)
Gregory Gryguc, for the Solicitors (Respondent)
Daniel S. Freudman, for the Client (Appellant)
HEARD at Toronto: September 28, 2015
MOLLOY J. (ORALLY)
[1] The appellant, Michele Cascio, appeals from the order of D. L. Corbett J. dated June 10, 2014, dismissing his motion to set aside a Certificate of Assessment and to declare Minutes of Settlement void.
[2] The appellant argues that:
(1) his counsel was not given the appropriate time to properly make his argument before the motion judge;
(2) the motion judge erred in holding that the motion was out of time; and
(3) the motion judge erred in rejecting the argument that the Settlement Agreement should be set aside on the grounds that the appellant did not understand the terms of the agreement and did not have the opportunity to obtain independent legal advice before signing it.
[3] With respect to the first ground of appeal, we do not need to decide whether the appellant had a fair hearing before the motion judge. We have heard his argument on setting aside the Settlement Agreement de novo based on the motion record that was before the motion judge. Likewise, we do not need to resolve the applicable time period for the appeal, whether it is seven days after the Certificate of Assessment (possibly under Rule 62.01) or whether there was no valid Certificate of Assessment such that, in essence, this was an application to set aside the Settlement Agreement rather than to set aside an assessment. On the view we take of the merits, the timing of the motion is irrelevant.
[4] At the heart of this appeal is Mr. Cascio’s request to set aside the Settlement Agreement and Release, which he signed on June 10, 2013. Essentially, Mr. Cascio’s counsel asserts that Mr. Cascio was not given the opportunity to get legal advice, did not obtain legal advice and did not understand the terms of the Agreement.
[5] The fundamental problem with Mr. Cascio’s position is that he has filed no affidavit of his own. He did file an affidavit sworn by his friend who was present at the time of the negotiations and witnessed the Agreement. The motion judge found that, “The claim of non est factum is not supported by the record.” We agree. It was Mr. Cascio who was the party to the agreement. In order to establish non est factum, it would be necessary for Mr. Cascio himself to attest that he personally did not understand its terms. It is common ground between the parties that Mr. Cascio did not seek an adjournment for the purpose of consulting a lawyer or getting advice. There is no evidence of any pressure applied to him to sign the agreement right then and there.
[6] In the document he signed, he agreed that he had the opportunity to obtain legal advice and was signing the agreement “freely without compulsion or duress.” Mr. Cascio has presented no evidence as to this being an untrue statement or as to why he signed an agreement containing such a statement if it were not true. The absence of such evidence is fatal to his non est factum argument. Independent legal advice is not a legal requirement. There mere fact that such advice was not obtained does not undermine the enforceability of the agreement.
[7] Accordingly, based on the record before the motion judge, we are of the view that the Minutes of Settlement and Release are binding and enforceable. The appeal is therefore dismissed.
COSTS
[8] I have endorsed the Appeal Book, “This appeal is dismissed for oral reasons delivered today. Costs fixed at $2,000 payable by the appellant to the respondent forthwith.”
___________________________ MOLLOY J.
KRUZICK J.
LOCOCO J.
Date of Reasons for Judgment: September 28, 2015
Date of Release: September 30, 2015
CITATION: Zeppieri & Associates v. Cascio, 2015 ONSC 5986
DIVISIONAL COURT FILE NO.: 122/15 DATE: 20150928
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MOLLOY, KRUZICK AND LOCOCO JJ.
BETWEEN:
ZEPPIERI & ASSOCIATES
Solicitors
(Respondent)
– and –
MICHELE CASCIO
Client
(Appellant)
ORAL REASONS FOR JUDGMENT
MOLLOY J.
Date of Reasons for Judgment: September 28, 2015
Date of Release: September 30, 2015