Court File and Parties

CITATION: Scalamogna v. Di Toro, 2015 ONSC 874

DIVISIONAL COURT FILE NO.: 508/14

COURT FILE NO.: CV-13-493578

DATE: 20150209

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: TERESA SCALAMOGNA and LILIANA SIGGILLINO, Plaintiffs (Responding Parties)

AND:

ROSANNA DI TORO, EGIDIO DI TORO, 1416134 ONTARIO LIMITED, 2377544 ONTARIO INC., DANIELA DI TORO, ROBERT DI TORO and MAURIZIO OCCHIUTO Defendants (Moving Parties)

BEFORE: Lederer J.

COUNSEL: Mark Ellis, for the Plaintiffs/(Responding Parties)

Clifford J. Cole & Matthew Karabus, for Rosanna Di Toro, Egidio Di Toro, 1416134 Ontario Limited, 2377544 Ontario Inc., Daniela Di Toro and Robert Di Toro, Defendants/(Moving Parties)

HEARD at Toronto: In Writing

ENDORSEMENT

[1] This is a motion for leave to appeal the order of Mr. Justice Firestone refusing to dismiss the action on the basis that the Statement of Claim disclosed no reasonable cause of action (r. 21.01(1)(b) of the Rules of Civil Procedure).

[2] The plaintiffs are two of three sisters. The defendant, Rosanna Di Toro, is the third. Their parents purchased and preserved a farm in the Town of Caledon. They wished it to be left to their daughters as their inheritance. The father of the three sisters is dead. His interest in the farm passed to his wife, who is alive. The property was transferred. Two of the defendants are numbered companies (1416134 Ontario Limited and 2377544 Ontario Limited, hereinafter respectively, "1416" and "2377"). The first, 1416, is identified as one of two parties (the other is the husband of Rosanna Di Toro), who use the property "as a company premises for the carrying-on of the contractor business" (Statement of Claim, para. 8). It appears that the farm was first transferred from the mother to 1416 and then transferred to 2377, a company owned by the defendants other than Maurizio Occhiuto. It is referred to as the "succession owner" (Statement of Claim, para. 1(d)).

[3] The fundamental premise of the prospective appeal is that the plaintiffs can have no claim because they had no interest in the land. The land was owned by the mother and transferred to a company owned by Rosanna Di Toro and other of the defendants. The plaintiffs were mere devisees (beneficiaries) under the will of their mother. They had no legal interest in the property at the time the transfer was made. As a result, there cannot be a fiduciary duty owed by the defendants to the plaintiffs. There can be no such duty in respect of an unrecognized interest under a will of a person who is still alive. Moreover, there cannot have been an inter vivos gift of the land to the three sisters, a possibility raised by the trial judge, because it was not pleaded.

[4] The problem with this approach (and the factum of the moving parties) is that it fails to tell the whole story. In 2007, the mother of the sisters indicated a wish that the property be passed down to the sisters, at that time, while she was still alive. This was the catalyst for the transfer. The Statement of Claim says (and the factum filed on behalf of the responding parties relies on the fact) that, at the time of the transfer, the two plaintiffs each received $250,000 from Rosanna Di Toro for their respective interests in the farm. It is only when these facts are brought to bear that the claims made by the plaintiffs for an interest in the property, damages, loss and mistreatment at the hand of the third sister come into focus.

[5] There is a point where parties hide within a technical position and lose sight of the obvious. If the two sisters had no interest in the property, what did the defendant, Rosanna Di Toro buy when she paid each of them $250,000? Given the position of the defendants, they were paid for something they did not own. The better view is the one espoused by the motion judge. The transfer centred on the apparent desire of the mother that the property was to be passed to her daughters prior to her death. It is reasonable to project that, at some point in the course of the transfer, the property passed to the daughters. The motion judge raised the possibility of an inter vivos gift. The Statement of Claim refers to a constructive trust. One way or the other, it is not plain and obvious that the plaintiffs did not either hold an interest in the property or were improperly denied one. This being so, the actions of Rosanna Di Toro, as outlined in the Statement of Claim, if proven, may support a claim for breach of fiduciary duty. In playing the role she did, remembering that the plaintiffs relied on her experience as a real estate professional, it may be that she acquired the duties of loyalty and the plaintiffs the primacy of interest ascribed to a fiduciary relationship.

[6] In making this motion, the moving parties rely on r. 66.02(4)(b) of the Rules of Civil Procedure. In the circumstances, I have no doubt as to the correctness of the decision of the motion judge. To the contrary, it would be surprising, if given the facts alleged, the law offered no remedy to the two plaintiffs. Whether the claims that the defendant sister misrepresented the value of the property to her two sisters or breached a fiduciary duty she owed to them is properly left to a judge to decide through whatever means are appropriate. It could be a summary judgment motion but is more likely a trial.

[7] The motion is dismissed.

[8] No submissions were made as to costs. Given the convention that costs follow the event and that this was a motion was made in writing, it should not be difficult for the parties to agree. If they are unable to, I will consider written submissions to be received from both sides no later than 10 days after the release of this endorsement. Such submissions are to be no longer than 3 pages, double-spaced, exclusive of any Bill of Costs or Costs Outline and caselaw that may be referred to.

LEDERER J.

Date: 20150209