Court File and Parties
COURT FILE NO.: CV-23-705550-00ES DATE: 20231017 ONTARIO SUPERIOR COURT OF JUSTICE
RE: NINA MOSCONE MARRESE, Applicant -and- ANNA MOSCONE, LAURA MOSCONE, and VINCENT MOSCONE, Respondents
BEFORE: FL Myers J.
COUNSEL: Joseph Figliomeni and Quinn Giordano, for the applicant Paul J. Daffern and Zoran Samac, for the respondents
HEARD: October 17, 2023
Endorsement
Background and Adjournment
[1] The applicant asks for directions in an application to set aside her mother’s will for incapacity and undue influence. The applicant also contests a transfer of the mother’s condominium to her sibling respondents and their mother jointly shortly before the mother died. Unless that transaction is set aside, the condominium passed to the siblings outside the mother’s will and estate.
[2] I am adjourning the motion on consent. So, I am not making any findings for the return of the motion itself. But the applicant initially intended that the motion to go ahead today. I have her full evidence. Based on the evidence before me, I decline to impose any terms of adjournment as sought by the applicant.
[3] The motion for directions, if it is to proceed, will be heard on January 11, 2024 for a full day. Cross-examinations are to be held by no later than 4:00 p.m. on December 15, 2023. The applicant’s factum is due two weeks before the motion. The respondent’s factum is due one week before the motion.
[4] The applicant occupies the position of the classic jilted adult child. Before her parents passed away, she engaged in expensive litigation with her siblings and parents’ businesses. They litigated numerous issues in arbitration proceedings before The Hon. Robert Blair.
[5] The parents’ wills both make provision for the costs of litigation incurred by the family and/or its businesses to be deducted from the applicant’s share of inheritance through a hotchpot device. There is also a “no contest” provision in the mother’s will which, if valid, may preclude the applicant from sharing in the estate in any event just because she brought this application.
Timing and Process Issues
The Applicant says she is Bringing an “Urgent” Motion
[6] The applicant prepared her Notice of Application on July 27, 2023 within days of her mother’s death. The court issued the application on August 27, 2023.
[7] On September 6, 2023, counsel for the applicant advised counsel for the respondents that the applicant intended to bring this motion as an urgent motion in Toronto.
[8] On the same day, the respondents served a probate application to seek to recognize them as estate trustees under the mother’s will. They brought the probate proceeding in Newmarket being the region in which the deceased mother resided.
[9] Despite saying that she intended to bring an urgent motion, the applicant did not deliver her affidavit for five weeks. As time passed, the respondents’ counsel made three requests for the material for the supposedly urgent motion. During that time, the applicant objected to probate being granted to the respondents in Newmarket. [1]
[10] At about 6:00 p.m. on the Friday evening before the Truth and Reconciliation Day long weekend, Sept. 29, 2023, the applicant’s counsel advised the respondents’ counsel that they had scheduled a motion returnable October 17, 2023 i.e., today. The respondents’ counsel learned of the motion date on returning to the office on Tuesday, October 3, 2023.
[11] That same day the applicant swore and served her affidavit. The applicant effectively left the respondents with 10 business days in which to respond to the 375-page motion record.
The Request for an Adjournment for Cross-Examination
[12] To their credit, the respondents have delivered a full responding affidavit. They did not deliver a factum as they sought an adjournment to allow their counsel to cross-examine the applicant.
[13] This morning, counsel or the applicant delivered a new affidavit that exhibits his own letter to counsel opposite dated October 11, 2023. The letter is marked “WITHOUT PREJUDICE”. It plainly deals with negotiation of terms of an adjournment and would seem to be privileged as claimed. However, in the last paragraph, counsel wrote:
If your clients are not prepared to accept the terms of our Draft Order, we will rely on this offer to adjourn to seek our substantial indemnity costs of having to attend the October 17, 2023, hearing.
[14] It seems apparent then that the applicant intended this letter to be a “with prejudice” offer despite its marking to the contrary.
[15] The main term sought by the applicant as a condition of agreeing to an adjournment was that the respondents would not deal with the mother’s condominium in the interim. Counsel for the applicant wrote:
We repeat our request that your clients refrain from taking any steps to list, sell, encumber, or in any way deal with Mrs. Moscone's condominium property on Woodbridge Avenue. We have made this request multiple times in the two and one half months since Mrs. Moscone passed. Your clients have yet to provide any assurance whatsoever that they will cooperate and preserve the property. On the contrary, they remain committed to the flawed notion that the property does not form part of the Estate. Our position on this matter, which is clearly supported by authority from the Supreme Court of Canada, has been made clear in our multiple emails, letters, and in the Factum that we delivered last week.
[16] I ignore the unpleasant tone as I am not privy to the privileged letter from the respondents’ counsel to which this letter responds.
[17] But here is the problem. The applicant does not want to keep the property that she demands be frozen. She wants title to be returned to the mother’s estate so that the proceeds of realization of the property can be split under the will or a prior will.
[18] Mr. Figliomeni confirmed at the hearing that the applicant does not propose to live in the mother’s property. It is currently sitting vacant. That is, no matter who owns it, the property is currently just a cost-centre.
[19] Mr. Figliomeni confirmed in court that despite his written demand to the contrary, the applicant would be content to allow the property to be sold provided there was an order tying up the proceeds of sale pending the outcome of the application.
[20] The balance of convenience usually supports an order holding in trust proceeds of contested property in estates litigation. Doing so provides security for the applicant that she will get paid if she succeeds at the end of the day. In fact, such orders frequently are made on consent.
[21] What the applicant might properly seek here is a preservation of her share of any proceeds to which she might become entitled. To become entitled however, she needs to defeat the transfer from the mother to her siblings, then defeat the “no contest” clause in the mother’s will, then defeat the “hotchpot” in the will, or defeat the will itself.
[22] An applicant might also reasonably seek visibility into any terms of sale to ensure that the respondents engage in an arm’s length value-maximizing realization effort.
[23] Here, all the parties have the same economic interest in maximizing value on the sale of the mother’s property. But transparency is rather easily provided simply by requiring that a copy of any agreement of purchase and sale proposed by the respondents be disclosed to the applicant some time before closing to allow the applicant time to run to court if she has any concerns with the proposed sale.
[24] But the applicant does not seek to freeze just her putative share of the proceeds of sale. She wants the full proceeds held. She also does not ask for any terms about transparency of a sale process. Moreover, she presents no evidence as to why she needs security if her siblings are held personally jointly and severally liable for any judgment that she obtains in the litigation. The respondents are apparently people of some means. The amounts in issue are not particularly large.
The Applicant’s Unilateral Scheduling and Demands
[25] It is important to note as well that the applicant’s counsel scheduled this hearing unilaterally with no true urgency. The fact that it took from September 6, 2023 to October 17, 2023 to get here makes that clear enough. The court is available within hours, or a day or two at most, for true urgency.
[26] In scheduling this hearing, a month ago, counsel for the applicant did not ask counsel for the respondents whether a hearing today was convenient for them. The did not propose or discuss a schedule for the delivery of material, cross-examinations, and any other necessary steps.
[27] It is obvious to an experienced eye that the motion would require a complete response and cross-examinations. The applicant’s evidence is virtually all based on her subjective observations and assumptions. The motion turns on the applicant’s credibility and reliability to overcome objective documentation. [2] Giving two weeks’ notice after taking five weeks to prepare the applicant’s material was not reasonable.
[28] Counsel for the applicant owed a duty to their client and to the court, at minimum, to cooperate with the responding parties’ counsel in scheduling. The duty is made plain in the Rules of Professional Conduct and The Advocates’ Society’s Principles of Civility. Like the courts, lawyers are duty-bound to provide a fair and efficient hearing to all. That includes cooperating on scheduling and process matters to ensure that all parties (plural) receive a fair hearing. [3]
[29] Counsel were not only required to canvass dates with their colleagues before delivering the motion record, but they were also required to consent to the request for an adjournment absent substantive prejudice to the applicant. [4] Conditions tailored to address actual prejudice that may be caused by an adjournment are, of course, proper. As discussed above, there is no prejudice to the applicant if the mother’s condominium is sold. In fact, that is the only way she will recover the money that she hopes to obtain in this litigation.
[30] In his October 11, 2023 letter, the applicant’s counsel did invite discussion of dates for a timetable for the motion. The dates he had initially proposed in his draft order apparently conflicted with dates already set in the probate application. While this might have been an opening for a discussion, the next paragraph of the letter contained the applicant’s threat to seek punitive cost if the respondents did not agree to freeze the condominium and agree to the dates contained in the applicant’s draft order. Counsel for the respondents were well advised to refrain from further discussion in face of that tactical stance and threat.
[31] The way in which the applicant’s counsel positioned and brought this motion lacked proper civility and bordered on abusive. Counsel should have called their professional colleagues and agreed on a schedule. The claim of urgency followed by five weeks of silence, the unilateral selection of a date, the conditioning of an adjournment on an overreaching and ultimately unnecessary demand, coupled with a heavy-handed “with-prejudice offer” and a threat of punitive costs was all uncalled for and inappropriate.
Outcome
[32] I do not rule out agreements between the parties on some of these issues to preserve their rights fairly once counsel start talking. But there is no basis before me to make the orders as sought today. Moreover, I decline to impose something that I craft before counsel have communicated, cooperated, and brought some common sense to bear on the procedural and scheduling issues. I have little doubt that once minded to exercise the “3-C’s”, counsel will be well able to decide appropriate steps to move this matter forward efficiently, affordably, and proportionately.
[33] In my view, the applicant should not have put the respondents to the trouble and cost of attending the hearing to seek an adjournment to which they were entitled virtually as of right. The applicant’s counsel ought to have approached the respondents’ counsel to discuss scheduling cooperatively. The applicant shall pay the respondents’ costs thrown away by the appearance today of $1,000 all-inclusive. Payment shall be made on or before November 30, 2023. The applicant sought $3,700 in costs thrown away by contrast.
FL Myers J. Date: October 17, 2023
[1] Why this motion for directions was not brought in the probate proceeding is difficult to understand especially given the potential triggering of the “no contest” clause. Whether the two applications ought to be joined and heard in one region is an issue that should be resolved sooner rather than later.
[2] I will refrain for commenting on the merits for the most part. But the applicant has much work to do to overcome contemporaneous medical reports, capacity assessments, and her own text messages (that she failed to disclose). Moreover, if she intends to suggest that Mr. Howard Black participated in a forgery of her father’s will, she will need much more than the molehill of hinted evidence in her current material to surmount the inference to the contrary. Whether she will have any objective evidence to answer the respondents’ evidence remains to be seen. Perhaps cross-examinations will be important. Perhaps not. That is for the judge to decide in January. I say this only to explain why I say that the need for cross-examinations on the motion was and is obvious.
[3] Rules of Professional Conduct, Rule 5.1-1, Commentary 1 – “In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client's case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law. The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer's duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties' right to a fair hearing in which justice can be done…”
The Advocates’ Society Principles of Civility and Professionalism for Advocates:
- Advocates should promote the efficient and effective operation of the judicial system. They should not seek adjournments without proper reason and, when appropriate, should cooperate with opposing counsel in achieving the most expeditious and least costly resolution of proceedings.
[4] The Advocates’ Society Principles of Civility and Professionalism for Advocates:
Advocates should consult opposing counsel regarding scheduling matters and make a genuine effort to avoid conflicts
Advocates should agree to reasonable requests for scheduling changes, such as extensions of time and adjournments, provided the client’s legitimate interests will not be materially and adversely affected.
Best Practices Applicable to Motions: Always consult on scheduling: Unless moving ex parte, advocates should always consult with opposing counsel about their availability for a motion and, when appropriate, a timetable for the hearing of the motion (i.e. delivering materials, conducting examinations and cross-examinations, and delivery of facta). Before contacting opposing counsel, advocates should check with the court as to when motions are being heard.