Court File and Parties

COURT FILE NO.: CV-24-00713566-00ES (formerly CV- 21-00658863-0000) DATE: 20240202

ONTARIO SUPERIOR COURT OF JUSTICE (Estates List)

IN THE MATTER OF THE Estate of DOMENICO MASSA, deceased

BETWEEN:

VICTORIA FRANZOI, in her capacity as the executor of the estate of Domenico Massa, deceased Plaintiff

AND:

TERESA MASSA, in her personal capacity and in her capacity as estate trustee of the Estate of Francesco Massa Defendant

BEFORE: Justice A.A. Sanfilippo

COUNSEL: Mario Middonti, for the Plaintiff Domenic Saverino, for the Defendant

HEARD: January 25, 2024

Endorsement

[1] Domenico Massa was born on December 9, 1937, and married Giuseppina Massa. They had three children: Victoria Franzoi, Guiseppina Pandolfi and Francesco Massa. Domenico [1] and his spouse separated in early 2002. The parties submitted that after spending time residing with other siblings, Domenico moved in with Francesco and his wife Teresa Massa in or about June 2002.

[2] On March 27, 2004, Domenico entered into an Agreement of Purchase and Sale to purchase a pre-construction residential condominium known municipally as 325-2737 Keele Street, Toronto, Ontario, consisting of a studio apartment of approximately 405 square feet together with a parking space and a storage locker (the “Condominium”). On the closing of the purchase of the Condominium on September 12, 2006, title was taken by Domenico, Francesco, and Teresa as joint tenants. Domenico moved into the Condominium and resided there as his home.

[3] Francesco died on January 6, 2019.

[4] On March 15, 2021, Domenico initiated an Application in court file number CV-21-00658863-0000 (the “2021 Application”) against Teresa, both in her personal capacity and as estate trustee of the estate of her late husband, Francesco, for the following relief:

(a) A declaration that Domenico is the sole legal and beneficial owner of the Condominium. (b) A declaration removing Francesco or his Estate from title to the Condominium. (c) A declaration that Teresa holds title to the Condominium in resulting trust for Domenico, including through a purchase money resulting trust. (d) A declaration that Francesco and/or Teresa unduly influenced Domenico to add them as joint owners on the title to the Condominium.

[5] The 2021 Application was brought before me on January 25, 2024 for determination. However, the record showed that 2021 Application had been converted to an Action and was not ready for adjudication. The trial of this Action shall proceed on April 23, 2024 and continue for as many as three days until completed.

Procedural History

[6] Timetables were established for the development of the 2021 Application by the Order of Justice Vella on May 11, 2021; the Order of Justice Dunphy on January 20, 2022; and the Order of Justice Centa on June 22, 2022. Justice Centa ordered that the 2021 Application be heard for two hours on December 12, 2022.

[7] By Order of Justice Vella issued on December 12, 2022, the 2021 Application was converted to an action, to proceed by way of a three-day summary trial process consistent with the simplified procedure set out in Rule 76.12 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The summary trial was scheduled to be heard on March 14, 2023, in accordance with an Order issued by Justice Vella on January 5, 2023 that provided as follows (the “January 2023 Order”):

(a) The 2021 Application was converted to an Action, to be adjudicated as a summary trial for three days. (b) Domenico was constituted the Plaintiff and Teresa the Defendant, with corresponding amendment to the title of proceedings. (c) Leave was granted to Domenico to deliver a Statement of Claim, and leave was granted to Teresa to deliver a Statement of Defence.

[8] At a Pre-Trial Conference converted to a Case Conference on February 24, 2023, Justice Papageorgiou adjourned the trial date of March 14, 2023 because Domenico had sustained serious health challenges. Justice Papageorgiou ordered that this Action be traversed to the Estates List.

[9] Domenico died in August 2023.

[10] On October 13, 2023, Justice Myers ordered, on the consent of the parties and on the parties’ submission that all required material was already filed, that this matter be determined on an oral hearing. The hearing was scheduled for January 25, 2024. On November 20, 2023, Justice Myers ordered, on the consent of the parties, that this Action be continued by Domenico’s Estate Trustee and that the title of proceedings be amended accordingly.

The Hearing

[11] On January 25, 2024, the parties appeared for a one-day hearing. There were several reasons why this matter was not ready to be heard.

[12] First, the evidentiary record was incomplete. The Defendant stated that she learned, only two days before the hearing, that Domenico severed the joint tenancy prior to his death, so that the property was held by the joint owners as tenants in common at the time of Domenico’s death. The Plaintiff had not notified the Defendant of this development. Furthermore, the evidentiary record did not contain any evidence of Domenico’s death, or any evidence of the testamentary documents affecting the transmission of his interest in the Condominium upon his death.

[13] Second, although the 2021 Application had been converted to an Action, the parties brought the matter for hearing as an Application. No party served a Notice of Motion under Rule 20 or 21 for summary determination. No trial record had been delivered for determination of this proceeding as an Action. The parties had not carried out any of the steps ordered by the January 2023 Order. The parties continued to use the title of proceedings in the 2021 Application rather than the title of proceedings of the Action as continued.

[14] Third, although the parties filed factums for use at the hearing, the argument in their factums did not take into consideration the effect of the severance by Domenico of the joint tenancy and the effect of Domenico’s death. The factums were prepared in November 2022, before Domenico’s death.

Disposition

[15] This Action is adjourned to a three-day hearing commencing on April 23, 2024 and continuing on 24 and 25, 2024, until completed, and shall be developed for adjudication in accordance with the process established by the January 2023 Order, which I will update to meet the parties’ current trial requirements.

[16] I order:

(a) The lawyer for the Plaintiff shall forthwith establish an Orders and Endorsements folder on CaseLines and shall file a complete set of all Orders and Endorsements rendered in this Action. (b) The Plaintiff shall deliver [2] her Statement of Claim by February 8, 2024. (c) The Defendant shall deliver her Statement of Defence by February 16, 2024. (d) The Plaintiff shall deliver any Reply by February 23, 2024. (e) The Plaintiff shall deliver her Trial Record, compliant with Rule 48.03 of the Rules of Civil Procedure, by February 28, 2024. (f) The parties shall, by February 28, 2024, complete the preparation of a Brief of Affidavits containing all affidavit evidence proposed to be admitted as direct testimony in the summary trial. (g) The parties shall, by February 28, 2024, complete the preparation of a Brief of Transcripts containing all examination and cross-examination transcripts proposed to be admitted in the summary trial. (h) The lawyers for the parties together with the parties shall, on March 6, 2024 at 4:00 p.m., attend a Trial Management Conference by video conference for one hour before me schedule permitting, for the purpose of completing the Trial Management Report to Trial Judge under Rule 50.08 of the Rules of Civil Procedure, including establishing the process for the summary trial. (i) The lawyers for the parties, together with the parties, shall, on March 15, 2024 at 10:00 a.m., in person for one-half day, attend a Judicial Mediation before another Judge. This Judicial Mediation shall take the place of the settlement component of a Pre-Trial Conference. (j) The trial of this Action shall commence on April 23, 2024 in person with use of electronic documents on CaseLines, and shall continue on April 24 and 25, 2024, until completed.

[17] The trial date in this Action, and the timetable established for the development of this Action for trial, may be altered only by further order of this court.

[18] This endorsement and the orders and directions contained in it shall have the immediate effect of a court order without the necessity of the issuance and entry of a formal order, although any party may take out a formal order by following the procedures under Rule 59 of the Rules of Civil Procedure.

Released: February 2, 2024 Justice A.A. Sanfilippo

Footnotes

[1] For brevity and clarity, I will respectfully refer to the parties by their first names. [2] Rule 1.03: “‘deliver’ means serve and file with proof of service…”