CITATION: Sidlofsky v. Gironda, 2016 ONSC 2146
DIVISIONAL COURT FILE NO.: 592/15 DATE: 20160324
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
WAGNER SIDLOFSKY LLP Plaintiff (Appellant)
– and –
JOHN GIRONDA Defendant (Respondent)
COUNSEL: Gregory M. Sidlofsky, for the Plaintiff (Appellant) In Person Christopher M. B. Graham, for the Defendants (Respondents) Frank Gironda and Salvatore Gironda
HEARD at Toronto: March 24, 2016
C. HORKINS J. (ORALLY)
[1] This is an appeal from the decision of Master Haberman dated November 4, 2015. She dismissed the motion of the plaintiff law firm seeking to add Frank Gironda and Salvatore Gironda, brothers of the existing defendant, as defendants to the pleading, and also to amend the pleading.
[2] The standard of review for an appeal of a Master’s decision is well known.
[3] On questions of law, the standard is correctness. On questions of fact, the standard is palpable and overriding error.
[4] On this motion, Rule 5.03(1) and Rule 26 were engaged. Rule 5.03(1) deals with adding necessary parties. It states:
5.03(1) Every person whose presence is necessary to enable the court to adjudicate effectively and completely on the issues in a proceeding shall be joined as a party to the proceeding.
[5] Rule 26.01 states:
On a motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs by an adjournment.
[6] Essentially, the plaintiff law firm states that the Master erred in law in her determination that the brothers were not necessary parties under Rule 5.03(1). It is readily apparent from the Master’s reasons that she viewed the proposed pleading and the plaintiff’s approach to adding the two brothers, as confusing. She correctly noted that while the language in Rule 5.04(1) is mandatory for adding parties, (assuming they are necessary), an amendment to a pleading under Rule 26.01 is discretionary. One cannot add parties when the proposed pleading as drafted fails to raise a tenable claim.
[7] The Master clearly struggled with understanding this pleading and in my view her concerns were justified. At the heart of her decision was a pleading that did not articulate the legal basis for a claim against the proposed defendants, Frank and Salvatore Gironda. To demonstrate this, I wish to review the following portions of the pleadings.
[8] I start with the prayer for relief and the proposed amended pleading.
[9] In paragraph 1(a), the plaintiff law firm is seeking damages against John Gironda. In paragraph 1(b), the plaintiff seeks a declaration that the legal fees, which are the damages that they seek against John Gironda, be found to be owing to the law firm.
[10] In paragraph 1(c), the plaintiff law firm seeks a declaration that the same fees be payable out of the estate of Caterina Gironda, who is the mother of the three brothers.
[11] There is no claim made in paragraph 1 against Frank and Salvatore. In the body of the claim, it is alleged in paragraph 7 that on June 1, 2011, John and his brothers, Frank and Salvatore retained the services of the plaintiff law firm, “As detailed below, John was the contact person on the file and was responsible for paying the plaintiff’s legal fees.”
[12] The claim goes on to describe that the firm acted for the three brothers in estate litigation that involved the mother and their fourth brother who has since died. That litigation came to an end, and in paragraph 15, the plaintiff pleads:
John refuses to pay the plaintiff’s fees left outstanding. John has committed anticipatory breach of his agreement with WSLLP as he has communicated both orally and in writing that, contrary to his obligations under the agreement with the plaintiff, he will not pay.
[13] In paragraph 16, the pleading states:
As detailed below, the plaintiff, John, Frank and Salvatore agreed that upon Caterina’s demise, the funds from the inheritance or settlement were to be paid directly to the plaintiff for all outstanding fees. In other words, the plaintiff could look to Caterina’s estate for payment of its fees. John’s conduct amounts to a total rejection of his obligations under the agreement with the plaintiff to pay the legal fees, as described below, and there is no justification for such conduct (i.e. John’s refusal to pay). Accordingly, the plaintiff is being deprived of payment of its legal fees, to which it is entitled under the agreement.
[14] Finally, in paragraph 17 of the amended pleading, it states:
Frank and Salvatore have an interest in the outcome of the within proceeding because if John does not pay the legal fees outstanding prior to Caterina’s demise, Frank’s and Salvatore’s residuary interest in her estate will be impacted given the terms of the agreement set out above.
[15] These are the relevant portions in the proposed Amended Statement of Claim that seek to describe the basis for adding Frank and Salvatore as defendants to this litigation.
[16] It is important to note that nowhere in this pleading is it alleged that Frank and/or Salvatore are responsible for the fees. To the contrary, it is repeatedly alleged in this pleading that John is responsible.
[17] The pleading must be tenable at law and this one is not.
[18] An analysis of the proposed pleading, as I have just completed, supports in my view, the Master’s decision that the pleading as drafted does not raise a tenable issue.
[19] For these reasons, the Master’s decision was correct in law. This appeal is dismissed.
Costs
[20] I have endorsed the Appeal Book, “Appeal from the order of Master Haberman is dismissed. Oral reasons given today. Costs to the respondents, Frank and Salvatore Gironda fixed at $2,500 inclusive of fees, HST and disbursements. No costs to John Gironda.”
___________________________ C. HORKINS J.
Date of Reasons for Judgment: March 24, 2016
Date of Release: April 12, 2016
CITATION: Sidlofsky v. Gironda, 2016 ONSC 2146
DIVISIONAL COURT FILE NO.: 592/15 DATE: 20160324
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
WAGNER SIDLOFSKY LLP Plaintiff (Appellant)
– and –
JOHN GIRONDA Defendant (Respondent)
ORAL REASONS FOR JUDGMENT
C. HORKINS J.
Date of Reasons for Judgment: March 24, 2016
Date of Release: April 12, 2016