Zuccarini v. Zuccarini, 2025 ONSC 1042

COURT FILE NO.: CV-20-84343 DATE: 2025/02/18 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: DORES ZUCCARINI (GIAMBERARDINO), DINE ZUCCARINI and GIOVANNI (“JOHN”) ZUCCARINI Plaintiffs – and – ANTHONY ZUCCARINI, DOMENICA ZUCCARINI, THE ESTATE OF LANDINO ZUCCARINI, PRETORIA CO. LTD. and HOLLINGTON CO. LTD. Defendants Kathleen McDormand and Megan Jennings, for the plaintiffs Raymond H. Gouin and Pierre Champagne, for the defendants HEARD: December 13, 2023, January 10 and 12, July 3-4, and September 16, 2024 (In person) RULING ON MOTIONS Corthorn J. Introduction [ 1 ] Five members of the Zuccarini family are embroiled in litigation regarding the estate of the late family patriarch, Landino Zuccarini (“the Estate”) and the management of the defendant corporations. The plaintiffs and the defendant, Anthony Zuccarini, are siblings; they are the children of the late Landino Zuccarini and his widow, the defendant, Domenica Zuccarini. [ 2 ] The plaintiffs allege that, prior to his death, Landino was subject to undue influence by Anthony. The plaintiffs also allege that Domenica was historically, and continues to be, subject to undue influence by Anthony. Last, the plaintiffs question Domenica’s capacity to make decisions regarding the management of her property. [ 3 ] The plaintiffs assert that Anthony’s alleged undue influence is relevant to their challenge to the validity of a will executed by Landino in January 2019 (“the Will”). Domenica executed a will at the same time; its terms mirror those of the Will. [1] [ 4 ] The 2019 Wills provide that if one of the Zuccarini parents predeceases the other, the residue of the deceased parent’s estate goes to the surviving parent. In the 2019 Wills, each of the testators names Anthony as the sole, alternate residuary beneficiary of the subject estate. The plaintiffs assert that the 2019 Wills represent a marked departure from their parents’ historical stated intention to distribute the parents’ collective estate amongst the four children. [ 5 ] The plaintiffs also make a claim for an oppression remedy regarding the management of the defendant corporations. The plaintiffs and Anthony hold preferred and common shares in the defendant corporations; Domenica holds common shares only. [ 6 ] The plaintiffs assert that Anthony’s undue influence over the parents is relevant to the oppression remedy claim. Prior to his death, Landino was a director of the defendant corporations. Domenica was also a director of the defendant corporations prior to Landino’s death; she remains a director of the defendant corporations. [ 7 ] The plaintiffs allege that, in their respective capacities as directors of the defendant corporations, Landino and Domenica breached their fiduciary obligations to the shareholders. The plaintiffs allege that Landino and Domenica did so by using corporate funds, to benefit Anthony to the detriment of the other shareholders. The plaintiffs assert that the parents’ conduct in that regard is the result of Anthony’s exertion of undue influence over the parents. [ 8 ] All the defendants are represented by the same lawyers of record: Raymond H. Gouin, a sole practitioner, and Gowling WLG (Canada) LLP (“Gowlings”). [ 9 ] On their motion, the plaintiffs seek two forms of relief. First, the plaintiffs ask the court to remove the defendants’ lawyers of record and require that the defendants be separately represented. The plaintiffs ask the court to find that there is a conflict of interest between the defendants, such that they require separate and independent counsel. The plaintiffs’ position is that the removal order is required to protect public confidence in the administration of justice. [ 10 ] Second, the plaintiffs seek leave to amend their statement of claim. The proposed amendments include the addition of, • requests for declaratory and other relief related to powers of attorney for property executed by Landino and Domenica in 2019, in which they each appoint Anthony as their respective attorney for property; • requests for declaratory and other relief regarding Domenica’s alleged lack of capacity to manage her property, manage and direct the defendant corporations, and carry out other functions; • requests for declaratory relief related to transfers of property and funds to Anthony; and • substantive paragraphs in support of the proposed additional relief. [ 11 ] In response, the defendants’ position is that the plaintiffs’ motion reflects the plaintiffs’ scorched-earth approach to the litigation. Regarding the request for a removal order, the defendants submit that the plaintiffs’ motion is a veiled attempt to substantially interfere with the defendants’ respective rights to retain counsel of their choice. [ 12 ] The defendants oppose the plaintiffs’ request for leave to amend the statement of claim. The defendants submit that the proposed amendments include more than the pleading of a different factual basis in support of existing relief. The defendants’ position is that (a) the proposed amendments include requests for additional relief, and (b) some of the proposed amendments constitute new claims, for which the applicable limitation period has expired. [ 13 ] The defendants ask the court to dismiss the plaintiffs’ motion in its entirety. [ 14 ] The defendants also respond with a notice of motion for an order striking an affidavit upon which the plaintiffs rely—the affidavit of Dr. Blum sworn on June 20, 2022 (“the motion to strike” and “the Blum affidavit”, respectively). The Blum affidavit is the first of two affidavits from Dr. Blum upon which the plaintiffs rely in support of their submissions regarding Anthony’s alleged undue influence over Domenica. The defendants’ position is that the Blum affidavit constitutes advocacy and does not meet the test for admission as expert evidence. [ 15 ] The plaintiffs ask the court to dismiss the motion to strike on the grounds that it was never properly constituted and that it was, or should be deemed to be, abandoned. On the substantive issue, the plaintiffs submit that Dr. Blum’s evidence meets the test for admission at the threshold stage of the evidentiary analysis. The Issues [ 16 ] The following issues are determined on the motion:

1. Did the defendants abandon or are they deemed to have abandoned the motion to strike the Blum affidavit?
2. If the answer to Issue No. 1 is “no”, is the Blum affidavit struck in whole or in part?
3. Is an order removing the defendants’ lawyers of record required to protect public confidence in the administration of justice?
4. Are the plaintiffs entitled to leave to amend the statement of claim? Issue No. 1 - Did the defendants abandon or are they deemed to have abandoned their motion to strike the Blum affidavit? [ 17 ] The defendants request an order striking the Blum affidavit from the plaintiffs’ motion record. That affidavit is the first of two affidavits from Dr. Blum upon which the plaintiffs rely. [ 18 ] The second affidavit from Dr. Blum forms part of the record delivered by the plaintiffs in reply to the defendants’ responding record. This second affidavit is not a subject of the motion to strike. [ 19 ] The second affidavit from Dr. Blum is based on a report he prepared in response to a report prepared by one of the expert witnesses retained on behalf of the defendants. The latter report is an exhibit to an affidavit from that exhibit and included in the defendants’ responding record. a) The Positions of the Parties ▪ The Plaintiffs [ 20 ] The plaintiffs submit that the motion to strike was never properly constituted and should be dismissed as abandoned. The plaintiffs highlight that the defendants’ notice of motion is found at Tab 29 (of 29 tabs) in the defendants’ four-volume responding record (“the responding record”). [ 21 ] The plaintiffs submit that the defendants failed to take any of the steps required to set the motion to strike down for a hearing. For example, the defendants did not (a) serve their notice of motion as a discrete document; (b) serve a motion record related exclusively to the motion to strike; or (c) pay a filing fee for the motion to strike. [ 22 ] The plaintiffs describe the defendants’ conduct regarding the motion to strike as “laying in the weeds”. The plaintiffs submit that the defendants did not utilize the opportunities available to them to ensure that the plaintiffs and the court were aware that the defendants intended to proceed with the motion to strike (i.e., regardless of the procedural deficiencies in setting the motion to strike down for a hearing). [ 23 ] Last, the plaintiffs rely on the prejudice they would suffer if the Blum affidavit were struck at this stage of the proceeding—as opposed to the practical consequences for the parties, and for the court, if the evidentiary issue had been determined prior to the hearing of the plaintiffs’ motion. ▪ The Defendants [ 24 ] The defendants’ position is that their pursuit of the motion to strike should have come as no surprise to the plaintiffs. The responding record was served in the summer of 2022. For approximately 1.5 years prior to the hearing of the plaintiffs’ motion, the plaintiffs were aware of the existence of the defendants’ notice of motion. [ 25 ] The defendants submit that the motion to strike the Blum affidavit is analogous to a motion at trial to disqualify an expert witness or to strike an expert’s report; for either scenario, the evidentiary issue is determined as part of a “larger process”. The defendants’ position is that it was not necessary, prior to the hearing of the plaintiffs’ motion, for the defendants to both pursue the motion to strike and obtain a determination on the evidentiary issue. b) The Agreed Upon Process [ 26 ] The parties did not want the hearing of the plaintiffs’ motion delayed because of the dispute as to whether the defendants abandoned or should be deemed to have abandoned the motion to strike. The parties agreed to proceed as follows: a) The plaintiffs’ motion, for an order removing the defendants’ counsel of record would be heard first, with submissions based on the entirety of the record before the court (i.e., including both affidavits from Dr. Blum); and b) Immediately following the hearing of the plaintiffs’ motion, the parties would, in a single day (i.e., September 16, 2024), make submissions first on the issue of abandonment and then, on the substantive issues on the motion to strike. [ 27 ] The parties agreed that proceeding in the manner described above is efficient and cost-effective: see Zuccarini v. Zuccarini (July 8, 2024), Ottawa, CV-28-84343 (Ont. S.C.). [ 28 ] If the court determines that the motion to strike was abandoned or is deemed to be abandoned, then it is not necessary to determine the issues on the motion to strike. If the court determines that the motion to strike was not abandoned and is not deemed to be abandoned, then the court will determine the motion to strike. If any portion of the Blum affidavit is struck, the court will, when determining the plaintiffs’ motion, disregard the evidence and submissions, from all parties, related to that evidence. [ 29 ] I turn to Rule 37 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 (“the Rules ”) and the procedure on motions. c) The Law [ 30 ] Rule 37 governs the procedure on motions; it covers many topics, including abandoned motions (r. 37.09); the material for use on motions (r. 37.10); and confirmation of a motion (r. 37.10.1). Each of rr. 37.09, 37.10, and 37.10.1 is relevant to the outcome of Issue No. 1. [ 31 ] For the reasons set out below, I find that the defendants are deemed to have abandoned the motion to strike. d) Analysis ▪ The Defendants Failed to Comply with Rule 37 [ 32 ] I start with the ways in which the defendants failed to comply with r. 37.10, regarding material for use on motions. As the moving parties on the motion to strike, the defendants failed to file a motion record: see r. 37.10(1). The defendants were required to file a motion record that includes a table of contents, followed by their notice of motion, and thereafter by the supporting affidavits and other documents upon which the defendants intended to rely in support of the motion to strike: see r. 37.10(2). [ 33 ] The defendants filed a single, four-volume record in their capacity as responding parties on the plaintiffs’ motion (i.e., the responding record). The responding record is titled “Respondents Domenica and Anthony Zuccarini’s Motion Record (For a Motion Scheduled to be Heard on November 16, 2022)”. [2] The responding record consists of 28 affidavits at Tabs 1-28. The notice of motion for the motion to strike is at the final tab in the responding record—Tab 29. [ 34 ] First, the title on the cover page of the responding record is somewhat misleading because the defendants are not “Respondents” in the proceeding; the defendants are the “Responding Parties” on the plaintiffs’ motion. In the title of their responding record, the defendants refer to “a” motion, singular; they do not refer to more than one motion (including, for example, the motion to strike). As of the date on which the defendants served the responding record, only the plaintiffs’ motion was set for the November 16, 2022 hearing date listed in the title of the responding record. [ 35 ] Based on the title of the responding record, I draw an inference and find that the defendants intended that record to be their responding parties’ motion record pursuant to r. 37.10(3); the defendants did not intend the responding record to be their moving parties’ record, for the motion to strike, required pursuant to r. 37.10(2). [ 36 ] Second, based on the contents of their notice of motion, the defendants were required, in their capacity as the moving parties, to serve a motion record, consisting of their notice of motion and the two items listed therein as the documents upon which the defendants intend to rely: (a) the Blum affidavit; and (b) the July 29, 2022 affidavit of Justin Tremblay. Mr. Tremblay is a lawyer with Gowlings. His affidavit is found at Tab 24 of the responding record. The Blum affidavit is not found in the responding record; it is found only in the plaintiffs’ motion record. I find that the defendants did not comply with r. 37.10(3). [ 37 ] Third, prior to the commencement of the hearing of the plaintiffs’ motion, the defendants did not take any steps to bring their notice of motion and the motion to strike to the attention of the court’s administrative staff or any judicial officer. For example, the defendants did not file a moving parties’ motion record, together with the requisite filing fee, and request a return date for the motion to strike. As another example, the defendants did not address the motion to strike when participating in any case conference regarding the logistics for and scheduling of the plaintiffs’ motion. [ 38 ] Neither the plaintiffs nor the court were given the opportunity to consider the impact that the motion to strike, if pursued, would have on the judicial resources required for that motion; the time required to hear that motion; the time required before a decision would be released on that motion; and scheduling a return date for the plaintiffs’ motion. [ 39 ] When the responding record was served in 2022, the plaintiffs were represented by counsel other than the counsel by whom they are now represented. Regardless of the change in the plaintiffs’ representation, between the date on which the defendants served the responding record and the hearing of the plaintiffs’ motion, it was not incumbent on the plaintiffs to follow up with the defendants regarding the motion to strike. It was the defendants’ responsibility to take the steps necessary to secure a hearing date for the motion to strike. [ 40 ] Fourth, a single motion confirmation form was filed on December 8, 2023—approximately one week prior to the date on which the hearing of the plaintiffs’ motion was scheduled to commence. Plaintiffs’ counsel filed the confirmation form. [ 41 ] The confirmation form lists 12 items to which the presiding judge will be referred. Four of those 12 items are records. Items 1 to 3 are the plaintiffs’ motion record, the responding record, and the plaintiffs’ reply record, respectively. Item 6 is a record filed by the defendants and titled, “Supplementary Respondents’ Motion Record (for a motion to be heard on December 13, 2023)” [3] (“the defendants’ supplementary record”). The balance of the materials listed in the confirmation form are facta, books of authorities, and compendia. [ 42 ] Nothing in the defendants’ supplementary record suggests that it relates in any way to the motion to strike. The defendants’ supplementary record includes an affidavit from each of Anthony and Domenica; both affidavits were sworn in October 2022. The other documents in the defendants’ supplementary record are transcripts from cross-examinations conducted of each of the three plaintiffs in October 2022, and transcripts of two recordings. One of the recordings was made in September 2019 and the other was made in December 2020. [ 43 ] In the introductory paragraph of the confirmation form, plaintiffs’ counsel states that she has “conferred or attempted to confer with the other parties and confirm that the Motion to be heard on December 13, 2023 will proceed on the following basis”. Only one motion is mentioned. In a later paragraph in the confirmation form, plaintiffs’ counsel provides an estimate of “the time required for the Motion”—a half day for the moving party and a full day for the responding parties. Again, only one motion is mentioned. [ 44 ] I find that (a) the confirmation form filed by plaintiffs’ counsel relates exclusively to the plaintiffs’ motion, and (b) the defendants failed to file a confirmation form related to the motion to strike. Rule 37.10.1(4) stipulates that, “If no confirmation form is given under subrule (1), the motion shall not be heard and is deemed to have been abandoned, unless the court orders otherwise.” Rule 37.10.1(4) alone is sufficient to support a finding that the defendants are deemed to have abandoned the motion to strike. [ 45 ] Rule 37.09(2) also supports a finding that the defendants are deemed to have abandoned the motion to strike. That subrule stipulates that, “A party who serves a notice of motion and does not file it or appear at the hearing shall be deemed to have abandoned the motion unless the court orders otherwise.” [ 46 ] The defendants’ position is that they filed their notice of motion, even if it was part of the responding record. The defendants assert that they filed the notice of motion, together with an affidavit of service (as required by r. 37.08(1)), by filing the affidavit of service related to the responding record. [ 47 ] Based on Rule 37, read it in its entirety, I find that the steps taken by the defendants are not sufficient to comply with r. 37.08(1). The defendants were required to file the notice of motion as a discrete document, with an affidavit of service regarding service of the notice of motion. ▪ Prejudice to the Plaintiffs [ 48 ] I also consider the prejudice to the plaintiffs if the defendants are permitted to proceed with the motion to strike. [ 49 ] On December 16, 2023, prior to plaintiffs’ counsel beginning their submissions on the plaintiffs motion, defendants’ counsel did not raise the motion to strike as a preliminary matter; nor did defendants’ counsel inform plaintiffs’ counsel or the court that they intended to make submissions on a motion to strike as part of their responding submissions on the plaintiffs’ motion. As of day one of the hearing of the plaintiffs’ motion, neither the court nor plaintiffs’ counsel had any indication that the defendants’ position was that they were entitled, at the hearing stage, to pursue the motion to strike. [ 50 ] It is not surprising, then, that plaintiffs’ counsel made submissions in which they relied on the Blum affidavit. The plaintiffs submit that they rely “extensively” on Dr. Blum’s evidence. [ 51 ] To permit the defendants to proceed with the motion to strike as part of their responding submissions would result in prejudice to the plaintiffs that cannot be compensated for by an adjournment or costs. Adjourning the plaintiffs’ motion, at the conclusion of the submissions of plaintiffs’ counsel, for the court to hear the motion to strike, would have resulted in significant delay of the completion of the plaintiffs’ motion. [ 52 ] Such an adjournment might also result in the plaintiffs being deprived of the opportunity to obtain another report from Dr. Blum and prepare another affidavit in his name (i.e., to replace the original affidavit if it were struck in whole or in part). Had the defendants pursued the motion to strike in a timely manner, the plaintiffs would not have been prejudiced in the preparation and delivery of materials in support of their motion. [ 53 ] Not only do the plaintiffs rely on the Blum affidavit that is the subject of the motion to strike; they rely on a second affidavit sworn by Dr. Blum. The latter affidavit is based on a second report prepared by Dr. Blum, specifically as part of the plaintiffs’ reply to the contents of the responding record. [ 54 ] To permit the defendants to proceed with their motion to strike, as part of their responding submissions, would wreak havoc on the logistics for and timing of the completion of the hearing of the plaintiffs’ motion. The time for the defendants to bring their motion to strike was possibly at the commencement of the hearing of the plaintiffs’ motion and likely well before that point in the proceeding. ▪ Expert Evidence on a Motion Versus at Trial [ 55 ] Last, I reject the defendants’ submission that a motion to strike the contents of an affidavit from an expert filed in support of a motion is analogous to the determination, at trial, of an expert witness’ qualifications to give opinion evidence or as to the scope of the expert witness’ evidence. The procedural and substantive requirements on a motion to strike part or all of an affidavit from an expert witness differ from the procedural and substantive requirements relevant to expert evidence at trial. e) Conclusion – Issue No. 1 [ 56 ] To find other than that the defendants are deemed to have abandoned the motion to strike would be to render the requirements of Rule 37 meaningless. [ 57 ] In Modern Glass & Mirror Ltd. v. Chicanda Ltd. (1999), 46 C.L.R. (2d) 316 (Ont. Gen. Div.) , at para. 13 , Quinn J. discusses r. 37.09(2) and says that it “does not provide a closed list of the ways in which deemed abandonment may take place.” As an example of a means by which a party may be deemed to abandon their motion, Quinn J. identifies when a moving party appears at the hearing and does not argue a part of his or her motion. Justice Quinn concludes, “that part could rightly be deemed to be abandoned.” [ 58 ] In the matter before this court, based on the defendants’ conduct regarding the motion to strike, including the conduct that falls within the scope of rr. 37.09(2) and 37.10.1(4), I find that the defendants are deemed to have abandoned the motion to strike. As a result of that conduct and the prejudice to the plaintiffs, which arises from that conduct, the defendants are not entitled to an order, pursuant to r. 37.09(2), relieving them of the consequences of the deemed abandonment of the motion to strike. [ 59 ] The answer to the question posed as Issue No. 1 is “yes”. Issue No. 2 - If the answer to Issue No. 1 is “no”, is the Blum affidavit struck in whole or in part? [ 60 ] In light of the answer to Issue No. 1, it is not necessary to decide Issue No. 2. Issue No. 3 - Is an order removing the defendants’ lawyers of record required to protect public confidence in the administration of justice? a) The Positions of the Parties ▪ The Plaintiffs [ 61 ] The plaintiffs’ position is that the outcome of the balancing exercise, described in para. 64, below, when applied on the motion before this court, weighs in favour of granting the removal order and requiring that the defendants be separately represented. The plaintiffs request that there be complete disassociation from the file of the defendants’ counsel of record to date—meaning that the defendants’ counsel be prohibited from continuing to represent any one of the defendants. ▪ The Defendants [ 62 ] The defendants’ position is that the plaintiffs’ allegations of conflict of interest are based on one or both of speculation and circumstances that are inconsequential to the issues to be determined in the proceeding. The defendants submit that a thorough consideration of the facts in this matter supports a conclusion that there is no real and substantial risk of a conflict of interest warranting the removal of the defendants’ counsel. [ 63 ] The defendants submit that Domenica has, in any event, waived any conflicts of interest. In reply, the plaintiffs submit that, in the circumstances of this case, the evidence does not support a conclusion that the requirements for a fully-informed waiver are met. b) The Law [ 64 ] On a motion for the removal of an opposing party’s counsel of record, the court is required to balance two competing principles. The two principles are described, as follows, in para. 8 of the decision in Dempster v. Dempster , 2008 CarswellOnt 408 (S.C.) (“ Dempster No. 1 ”): “The first is that a party should be entitled to be represented by counsel of his choice. That fundamental principle of our justice system should only be overridden where the administration of justice or just as importantly, the public’s perception thereof, would be damaged by that counsel remaining on the record.” [ 65 ] A removal motion is determined on an objective standard—that of a reasonably informed member of the public. The personal feelings of the litigant who may be required to retain new counsel are but one of the elements in the application of that objective standard: Everingham v. Ontario (1992), 1992 7681 (ON SC) , 8 O.R. (3d) 121 (Gen. Div.) , at p. 126 . [ 66 ] In MacDonald Estate v. Martin , 1990 32 (SCC) , [1990] 3 S.C.R. 1235 , at p. 1265, Cory J. (concurring) says that “the integrity of the judicial system is of such fundamental importance to our country and, indeed, to all free and democratic societies that it must be the predominant consideration in any balancing” of the factors considered on a removal motion. c) The Alleged Conflicts of Interest [ 67 ] In their factum, the plaintiffs include a chart in which they summarize what they submit are seven actual, potential, or perceived conflicts of interest as between the defendants. In the same chart, the plaintiffs also summarize the alleged conflicts for defendants’ counsel in representing all the defendants. [ 68 ] Rather than reproduce the chart, I summarize below the seven alleged actual, potential, or perceived conflicts of interest between the defendants:
5. Domenica and Anthony

• In her capacity as a director of the defendant corporations, Domenica has a potential crossclaim against Anthony, based on undue influence, for the return of corporate property. Domenica also has a potential crossclaim against Anthony, based on undue influence, for the return of personal property (i.e., the family home and money).

2. Domenica and the defendant corporations

• The plaintiffs allege that Domenica, in her capacity as a director of the defendant corporations, distributed corporate funds to Anthony and, by doing so, oppressed the rights of the other three preferred shareholders (i.e., the plaintiffs). The defendant corporations could bring a crossclaim against Domenica, based on failure to fulfil her fiduciary obligations, for the return of the corporate funds distributed to Anthony.

3. Domenica and the Estate

• The plaintiffs allege that Landino, in his capacity as a director of the defendant corporations, improperly distributed corporate funds. If, following receipt of independent legal advice, the defendant corporations decide to pursue the crossclaim described in item 2, above, then Domenica would, in turn, have a crossclaim against the Estate.

4. Anthony and Domenica

• A major part of the theory of the plaintiffs’ case is that Anthony unduly influenced both Landino and Domenica and that he continues to unduly influence Domenica. The plaintiffs allege that Domenica was, at a minimum, vulnerable to Anthony and that she may even have lacked capacity at the relevant times.

5. Anthony and the defendant corporations

• Anthony is a shareholder in the defendant corporations. He does not hold any other role in relation to either of the defendant corporations. The plaintiffs allege that the evidence supports a finding that it is Anthony, not Domenica, who is providing instructions to counsel on behalf of the defendant corporations. If the defendant corporations received independent legal advice, they would be in a position to decide whether to pursue a claim against Anthony for the return of corporate funds distributed to him.

6. Anthony and the Estate

• Anthony is named in the Will as the estate trustee of the Estate. The plaintiffs filed an objection to Anthony’s appointment to that role. Anthony is not in a position to administer the Estate. The plaintiffs allege that, as a result of Anthony’s undue influence, and at a time when Landino was vulnerable, and potentially lacked capacity, Landino made gifts to Anthony. The Estate could make a claim against Anthony for the return of those gifts.

7. The defendant corporations and the Estate

• The plaintiffs allege that Landino, in his capacity as a director of the defendant corporations, distributed corporate funds to Anthony and, by doing so, oppressed the rights of the other three preferred shareholders (i.e., the plaintiffs). The defendant corporations could bring a crossclaim against the Estate, based on Landino’s alleged failure to fulfil his fiduciary obligations, for the return of the corporate funds distributed to Anthony. [ 69 ] The plaintiffs submit that, for the following five reasons, the defendants’ counsel are in conflict with their clients:

1. The defendants’ counsel have not recommended to their clients that they each obtain independent legal advice (i.e., in the face of allegations of undue influence, conflicts of interest between the defendants, and the vulnerability or lack of capacity of Domenica and Landino).
2. The defendants’ counsel have not informed the defendants of their potential diverging interests.
3. Mr. Gouin does not have a signed retainer from any of the defendants.
4. The defendants’ counsel (a) were not provided with the minute books for the defendant corporations, and (b) did not confirm that they are receiving instructions from the directing mind of each of the defendant corporations.
5. The defendants’ counsel do not have a written waiver of conflict of interest signed by each of the defendants. [ 70 ] The record before the court on the plaintiffs’ motion is in the thousands of pages. The submissions on the plaintiffs’ motion consumed five days of court time. In the context of a ruling on a removal motion, it is not possible to review, or even summarize, all of the evidence. It is not necessary for the court to make findings of fact on the many issues reviewed and to ultimately be determined by the trial judge. [ 71 ] In the analysis section below, the circumstances of the case are considered from the perspective of a reasonably informed member of the public. d) Analysis [ 72 ] The circumstances in the matter before this court are similar to those in Dempster No. 1 and Dempster v. Dempster Estate (2008), 45 E.T.R. (3d) 139 (Ont. S.C.) ( “Dempster No. 2 ”). A son was concerned that his 92-year-old father was subject to the influence and control of a grandson (the son’s nephew). [ 73 ] A distinguishing feature between the matter before this court and Dempster [4] is that, in Dempster , there was no allegation that the elderly family member (i.e., Domenica) was incapable. As summarized at para. 12 of Dempster No. 1 , the concerns raised by the son were that the grandson “has apparent control of both the physical wellbeing and financial affairs of his grandfather.” [ 74 ] In Dempster No. 1 , T.M. Wood J. summarized why the grandson and the grandfather could not be represented by the same counsel and why the lawyer representing them both had to cease representing either family member:
6. While all of these events may be entirely innocent and fully in accordance with [the grandfather’s] wishes, they are also entirely consistent with the all too familiar scenario of an old and vulnerable individual being manipulated by a caregiver upon whom he has become dependent.
7. No reasonable informed member of the public looking objectively at this factual situation would conclude that a court could discover the truth while [the grandfather] and [the grandson] continued to be represented by the same counsel. Nor could that observer conclude that while counsel who had represented both remained acting for one, the other could be uninfluenced.
8. It is essential that separate counsel represent [the grandfather] and [the grandson]. It is also essential that their present counsel cease to represent either defendant. An order will go to that effect. [ 75 ] Subsequent to the removal order being made, the grandfather died. A motion was made for an order reinstating, as counsel for both the grandfather’s estate and the grandson, the lawyer who was the subject of the earlier removal order (“Mr. Daly”). The moving parties submitted that, with the grandfather deceased, there would no longer be a concern for conflict of interest (i.e., between the grandfather’s estate and the grandson); nor could there be any need to protect the grandfather from possible undue influence: Dempster No. 2 , at para. 8. [ 76 ] Justice M.P. Eberhard refused to reinstate Mr. Daly as counsel for either the grandfather’s estate or the grandson. At para. 14 of Dempster No. 2 , M.P. Eberhard J. reiterates the two possibilities identified in para. 13 of Dempster No. 1 (and quoted in para. 74, above): innocent conduct versus an individual manipulated by a caregiver upon whom the former had become dependent. [ 77 ] In refusing the request to reinstate counsel, M.P. Eberhard J. did not rely on any suggested impropriety. To the contrary, at para. 19, M.P. Eberhard J. expressed confidence that Mr. Daly, “having taken instruction from [the grandfather, he] would properly perceive his role as part of a continuing duty of loyalty to advocate those instructions.” [ 78 ] Critical to the outcome in Dempster No. 2 was the conclusion expressed by M.P. Eberhard J., at para. 19, regarding the significance of Mr. Daly’s prior role as counsel for both the grandfather and the grandson: However, I find that in taking instructions from [the grandfather] and [the grandson] based on a premise that [the grandfather] was acting free of undue influence, [Mr. Daly] has become enmeshed in the disputed fact. The information he received from [the grandson] and [the grandfather] as well as the duty he owes [the grandson] as distinct from that owed to [the grandfather] and his Estate cannot be disentangled. Neither could he be expected to assess, in the detached manner required, what may be relevant to the dispute about his (and others’) involvement with the two clients and what might attract privilege as between them. The death of [the grandfather] does not free lawyer Daly of the potential for conflict of interest. I do not intend to diminish the effect of Wood J.’s order removing him as counsel of record for either [the grandson] or [the grandfather]. [ 79 ] The paragraph quoted immediately above can, in its constituent parts, be applied to the matter before this court. [ 80 ] I start with the topic of undue influence. In the proceeding before this court, the issues to be determined at trial will require the trial judge to make findings of fact as to whether either of Landino or Domenica was unduly influenced by Anthony. The trial judge will likely hear evidence from the parties, lay witnesses familiar with the elder Zuccarinis, and health professionals involved in the care of one or both of them. [ 81 ] The trial judge will likely also be asked to qualify expert witnesses to provide opinion evidence on the topic of undue influence, including whether Landino or Domenica were subject to undue influence from Anthony. The record before the court on the plaintiffs’ motion includes affidavits from physicians who prepared reports and expressed opinions on the topic of undue influence. [ 82 ] It is nothing short of perplexing that, in the circumstances of the matter before this court, any counsel would take instructions from Anthony, the Estate, and Domenica—doing so on a premise that the elder Zuccarinis were acting, and that Domenica continues to act, free of undue influence from Anthony. The defendants’ counsel fail to recognize the significance of the allegations of undue influence may have on the outcome in the proceeding. The defendants’ counsel have “become enmeshed in the disputed fact” (i.e., the existence or not of undue influence): see Dempster No. 2 , at para. 19. The information that the defendants’ counsel receive from Anthony and from Domenica, as well as the duty counsel owe to one individual distinct from the duty owed to the other, cannot be disentangled. [ 83 ] In their factum, the defendants make minimal mention of undue influence. Instead, the defendants focus on evidence of Domenica’s capacity over time and on the approach defendants’ counsel have taken and continue to take to potential or actual conflicts of interest between the defendants. [ 84 ] The trial judge will be required to make findings of fact about Domenica’s capacity, or lack thereof, over time is a matter. I refer to that issue solely to identify that the defendants’ counsel approach Domenica’s capacity in the same way they approach undue influence—on the basis of a premise, namely that Domenica has, at all times, had the requisite capacity to make decisions. The problems which arise for defendants’ counsel because of their reliance on that premise are analogous to the problems which arise from the premise upon which they rely regarding undue influence (see para. 82, above). [ 85 ] The approach taken by defendants’ counsel to actual or potential conflicts of interest between Anthony and Domenica is relevant to the outcome of the plaintiffs’ motion. Evidence as to that approach is found in Domenica’s affidavit sworn on July 27, 2022 and in the transcript from cross-examination of Domenica on that affidavit. The approach is summarized at paragraphs 33-40 of the defendants’ factum. The contents of those paragraphs, prepared by defendants’ counsel, are sufficiently telling that I repeat them in their entirety (except for footnotes identifying the source paragraph in Domenica’s July 2022 affidavit):
9. Following the action commenced by the Plaintiffs, on or around October 7, 2020, Domenica met with lawyer Raymond H. Gouin to determine if he could represent both her and her son Anthony in the Action.
10. During this meeting, Mr. Gouin explained the implications of a joint retainer and indicated to both Domenica and Anthony that no information received in connection with this matter from Domenica or Anthony could be treated as confidential; and that if a conflict developed that could not be resolved, that Mr. Gouin could not continue to act for both Domenica and Anthony and may have to withdraw completely.
11. After reviewing the material, Mr. Gouin concluded that he could represent both Domenica and Anthony and asked for Domenica and Anthony to consent for him to act on a joint basis.
12. After further reviewing the material, Mr. Gouin recommended that Anthony, Domenica and the Defendant corporations also retain the services of Gowling WLG (Canada) LLP to assist him in this Action.
13. On or about October 7, 2020, Domenica met with Pierre Champagne of Gowling WLG and with Mr. Gouin to speak about this matter.
14. During this meeting, Mr. Champagne further explained the implications of the lawyer/client relationship in the context of a joint retainer and indicated to Domenica and Anthony that if any conflict or disputes were to exist between the two (2) clients, that the firm may not be able to represent either of them in the Action. A written retainer was entered into.
15. During this meeting Mr. Champagne also asked for Domenica and Anthony to make him aware at any time during the litigation if their interests were no longer aligned.
16. Domenica and Anthony acknowledge that they understood the implications of the joint retainer and indicated that they would make him an Mr. Gouin aware if any issues arose during the mandate. [ 86 ] The extent to which defendants’ counsel delegated, and continue to delegate, to their clients, the responsibility of identifying existing or potential conflicts is beyond troubling. The delegation of that responsibility is also addressed at paragraphs 53-55 of the defendants’ factum. Once again, the contents of those paragraphs, drafted by defendants’ counsel, are sufficiently telling to justify inclusion of the relevant paragraphs in their entirety in this ruling:
17. Over the course of this litigation, neither Anthony nor Domenica have come across or indicated any conflict that would warrant either of them to be independently represented based on the information that was presented to them by Mr. Champagne and Mr. Gouin.
18. In Domenica’s cross-examination, Domenica also confirmed that no conflict existed throughout the litigation to date:
19. Q. I want to make sure that I understand what you’ve suggested. Are you saying that Mr. Gouin and Mr. Champagne have told you that if there’s a conflict between yourself and Anthony, that they would continue to act for you? A. Oh no, no, not that. No, if it’s a conflict, no. But we have no conflict, so that’s easy.
20. Q Sorry, did you have something else you wanted to say? A. We have no conflict; no problem whatsoever.
21. Ultimately, neither the facts nor the adversarial position of the parties have changed since the outset of this litigation such as would warrant a finding that any of the above alleged scenarios brought forward by the Plaintiffs would be substantiated. [ 87 ] The conclusory statement made in paragraph 55, quoted immediately above, says it all about the extent to which defendants’ counsel rely on as yet unsubstantiated premises. In continuing to act for Anthony and Domenica (to say nothing of the Estate and the defendant corporations), the defendants’ counsel are enmeshed in more than one of the disputed facts. [ 88 ] The trial judge may determine that all the events upon which the plaintiffs’ claims are based are entirely innocent, in accordance with Landino’s wishes, in accordance with Domenica’s wishes, and absent of any conflict of interest. At this stage of the proceeding, however, the events upon which the plaintiffs rely in support of their claims are “entirely consistent with the all too familiar scenario of [two] old and vulnerable individual[s] being manipulated by a caregiver [i.e., their son] upon whom [they have] become dependent”: see Dempster No. 1 , at para. 13. [ 89 ] No reasonably informed member of the public looking objectively at the events upon which the plaintiffs rely in support of their claims would conclude that this court can discover the truth with Anthony and Domenica (again, to say nothing of the Estate and the defendant corporations) represented by the same counsel. To permit defendants’ counsel to represent the defendants—or even one of them—would result in damage to the public’s perception of the administration of justice. [ 90 ] The multitude of events on which the plaintiffs rely in support of their claims are too numerous to mention. I provide the following examples of events that would cause concern for a reasonably informed member of the public looking objectively at the bases for the plaintiffs’ claims: • The 2017 sale by the defendant, Pretoria Co. Ltd., of an apartment building for $6,700,000, following which (a) the proceeds of sale were deposited to a bank account held jointly by Landino, Domenica, and Anthony, (b) Anthony received a payment of $500,000 from the proceeds, and (c) the plaintiffs who, like Anthony, are shareholders in Pretoria Co. Ltd., received no payment; • A lawyer consulted by the elder Zuccarinis in 2017 refused to accept a retainer to prepare wills for them because the lawyer was concerned about Anthony’s potential undue influence over his parents; • The 2018 sale by 709223 Ontario Ltd. (“709”) of an apartment building for $1,950,000, following which the proceeds of sale were divided and paid equally to each of the plaintiffs and Anthony (i.e., 25 per cent share of the proceeds per child). 709 was incorporated by the plaintiffs, each of whom was a director and shareholder of the numbered company. None of Anthony, Landino, and Domenica was a shareholder or director of 709. • In their pleading, the defendants ask the court to order the plaintiffs to repay to the defendant corporation their respective 25 per cent shares of the proceeds of sale. No claim is advanced against Anthony for the return of his 25 per cent share of the proceeds. Domenica’s evidence on cross-examination is that “if he take the money, I don’t’ mind” and that Anthony “deserve[s] to keep the money”; • The execution of the 2019 Wills, in which Anthony is named as the sole estate trustee and the sole alternate residuary beneficiary by each of the elder Zuccarinis. The contents of the 2019 Wills are contrasted with prior wills in which the elder Zuccarinis provided for their collective estates to ultimately be distributed to their children equally; • On the same day that the 2019 Wills were executed, the elder Zuccarinis each executed new powers of attorney for property and for personal care. The new documents identified Anthony as the sole attorney for each parent in each capacity. In the pre-existing documents at least one other of the siblings was identified as an attorney in some capacity; • The elder Zuccarinis’ decision to transfer title of the family home from their names as joint tenants to their names and Anthony’s name, collectively, as joint tenants and at a cost of $2.00 to Anthony; • Following Landino’s death, Domenica’s decision to transfer title to the family home from her and Anthony, as joint tenants, to Anthony as sole owner and at a cost of $1.00 to Anthony; and • Over time, the caregiver services for Landino or Domenica were terminated, with Anthony, who resides in the family home, replacing the professional caregivers. [ 91 ] I return to para. 19 of Dempster No. 2 and consider the practical implications of the defendants’ counsel continuing to act for all the defendants in this proceeding. One of the practical implications identified by M.P. Eberhard J. is the inability of defendants’ counsel to assess, “in the detached manner required, what may be relevant to the dispute about his (and others’) involvement with the [numerous] clients and what might attract privilege as between them.” [ 92 ] A second practical implication, also identified in para. 19 of Dempster No. 2 , is that the death of the elder family member (in the matter before this court, Landino), does not free defendants’ counsel from the potential for conflict of interest. If anything, Landino’s death adds to the potential for conflict of interest because Anthony is named as the sole estate trustee of the Estate. Anthony’s application for appointment in that capacity is opposed; at present, there is no one named in a representative capacity for the Estate in this litigation. How the defendants’ counsel are obtaining instructions on behalf of the Estate is unclear to the court. [ 93 ] The practical implications arising from defendants’ counsel continuing to act for all defendants extend beyond those identified in Dempster No. 2 . The practical implications extend to the defendant corporations, the capacity in which the parties are respectively involved in those corporations (as shareholders and, for the elder Zuccarinis, as directors), the oppression remedy claim, and the consideration of fiduciary obligations owed by directors. [ 94 ] The defendants’ counsel are enmeshed in many disputed issues because of their representation of the Estate, Domenica, Anthony, and the corporate defendants. The defendants’ counsel cannot possibly disentangle themselves from the obligations owed to the corporate entities and to the individuals in their respective personal capacities and corporate capacities. [ 95 ] The subject of a representative for the Estate for the purpose of this action is addressed in a later section of this ruling. e) Waiver of Conflict [ 96 ] Given my findings regarding the nature and extent of the conflicts of interest between the defendants, I only briefly address the defendants’ position on waiver. [ 97 ] First, it is important to remember that to determine the issues in dispute between the parties, the trial judge will be required to consider Domenica’s conduct personally and in her capacity as a director of the defendant corporations. There is no evidence before the court to suggest that Domenica signed a waiver. If such a waiver existed, it would have to address not only the potential for conflict of interest between Domenica, personally, and Anthony, but between (a) Domenica personally and all other defendants, and (b) Domenica, in her capacity as a director of the defendant corporations, and (i) the Estate, and (ii) Anthony. [ 98 ] I question whether it would be possible to draft a waiver to sufficiently address the totality of the potential (and real) conflicts for Domenica in this proceeding. [ 99 ] Second, the plaintiffs’ concerns about Domenica’s capacity and vulnerability to undue influence by Anthony go beyond mere speculation. Numerous experts’ reports have been exchanged by the parties on the issue of undue influence. It would be unreasonable for the court, at this stage of the proceeding, to make a finding regarding Domenica’s capacity to waive a conflict (whether in writing or otherwise) and whether the waiver, if found to have been made, was made freely and without undue influence from Anthony. [ 100 ] Third, the defendants ask the court to find that Domenica has waived any conflict; yet the defendants do not rely on either a written waiver executed by Domenica or even, at a minimum, a certificate of independent legal advice. Whether or not Domenica has waived conflict is yet another example of the defendants’ counsel “becom[ing] enmeshed in the disputed fact”: see Dempster No. 2 , at para. 19. [ 101 ] In summary, based on the existing record, and in the circumstances of this proceeding, I decline to find that Domenica has waived any real or potential conflicts of interest. f) Conclusion – The Defendants’ Lawyers are Removed as Lawyers of Record [ 102 ] In their factum, the defendants emphasize that a removal order is the last resort. The defendants ask the court to consider whether there is even a “trace of a conflict of interest between Anthony, Domenica and/or any of the Defendants”. The defendants highlight that unless it is abundantly clear that a conflict of interest exists, then the court must consider a remedy short of removal of counsel to “cure the problem”: see Celanese Canada Inc. v. Murray Demolition Corp. , 2006 SCC 36 , [2006] 2 S.C.R. 189, at para. 56 . [ 103 ] The defendants suggest, for example, that the court make an order requiring each defendant to obtain independent legal advice; based on that advice, each party would then determine whether they require separate representation from the other defendants. That solution is neither practical nor would it “cure the problem”. If only one of the defendants chose to be represented by separate counsel, it would be incumbent upon the defendants’ counsel to cease to act for all of the other defendants. [ 104 ] For the reasons given, it is abundantly clear that conflicts of interest exist between the defendants and that nothing short of a removal order would “cure the problem”. Each of the defendants is required to be separately represented in the proceeding. The order made at the conclusion of this ruling requires that there be complete disassociation from the file of the defendants’ counsel of record to date. [ 105 ] The evidence before this court suggests that the two defendant corporations are no longer in operation and may have no assets. The status of those corporations may have practical implications when it comes to retaining counsel. It will be up to the directing mind(s) of those corporations and the lawyers whom they seek to retain to address those implications. [ 106 ] It is also necessary for the Estate to be separately represented. It will be up to the individual identified to represent the Estate for the purpose of this proceeding to retain counsel to represent the Estate. If the parties are unable to resolve the issue of the amendment to the title of proceeding related to representation of the Estate, one of the parties must bring a motion for the requisite relief. [ 107 ] I turn next to the plaintiffs’ request for leave to amend the statement of claim. Issue No. 4 - Are the plaintiffs entitled to leave to amend the statement of claim? a) The Proposed Amendments to the Statement of Claim [ 108 ] The statement of claim was issued in September 2020. Pleadings closed in early 2021. [ 109 ] At a case conference conducted on May 30, 2022, the plaintiffs first gave notice of their intention to seek leave to amend the statement of claim. I refer to the draft amended statement of claim proposed at that time as “Version One”. Subsequent to May 2022, the plaintiffs provided the defendants with a revised draft amended statement of claim (“Version Two”). [ 110 ] Both Version One and Version Two are before the court on the plaintiffs’ motion for leave to amend the statement of claim. The plaintiffs request leave to amend their pleading in accordance with Version Two. If the court does not grant the plaintiffs leave to make an amendment proposed only in Version Two, then the plaintiffs request leave to amend their pleading in accordance with the subject amendment as it appears in Version One. [ 111 ] The plaintiffs propose two types of amendments to their pleading. First, the plaintiffs propose to expand paragraph 2 by including in it additional forms of relief they wish to pursue as against Anthony and Domenica. The relief claimed against Anthony and Domenica is distinct from the relief the plaintiffs seek in the context of the oppression remedy claim (set out in paragraph 1 of the statement of claim). [ 112 ] Second, the plaintiffs seek leave to amend substantive paragraphs in the body of their pleading. [ 113 ] The text of the proposed amendments to paragraph 2 of the statement of claim is set out below. Text that appears in both versions is in Times New Roman font; grey shading is used to identify the text of the proposed amendments that appear only in Version Two: (d) A declaration that the power of attorney granted to Anthony Zuccarini from Domenica Zuccarini in 2019 was procured through undue influence by Anthony Zuccarini and/or was granted at a time that Domenica was incapable ; (e) A declaration that the power of attorney granted to Anthony Zuccarini and Domenica Zuccarini from Landino Zuccarini in 2019 was procured through undue influence by Anthony Zuccarini and/or was granted at a time that Landino Zuccarini was incapable; (f) An Order that the powers of attorney executed by Domenica Zuccarini naming Anthony Zuccarini as her attorney for property and/or personal care are void[;] (g) An Order declaring Domenica Zuccarini incapable of: (i) managing her property; (ii) managing and directing corporations; (iii) managing her personal care; (iv) granting or revoking a power of attorney for property; (v) granting or revoking a power of attorney for personal care; (vi) making a will; and (vii) instruction counsel. (h) [5] A declaration that the transfers bearing instrument numbers OC2079182 and OC2371988 for the property known municipally as 2961 Old Montreal Road, Cumberland ON and described legally as […] were signed through undue influence by Anthony Zuccarini and/or at a time when Domenica Zuccarini and/or Landino Zuccarini were incapable ; (i) A declaration that the funds previously held in the corporate account of Pretoria Co. Ltd. were transferred into accounts and/or investment certificates owned by Domenica Zuccarini, Landino Zuccarini and Anthony Zuccarini as joint owners through undue influence and/or at a time when Domenica Zuccarini and/or Landino Zuccarini were incapable ; (j) A declaration that the $500,000 transfer from Pretoria Co. Ltd. to Anthony Zuccarini dated May 6, 2017 was procured through undue influence by Anthony Zuccarini and/or at a time when Landino Zuccarini may have been incapable . [ 114 ] The defendants oppose the amendments proposed to paragraph 2 of the pleading—the additional relief requested. [ 115 ] The defendants consent to the following proposed amendments to the substantive paragraphs, as they appear in Version Two: • In paragraph 24, a change in the year identified in the second last sentence; • The addition of new paragraphs 52 and 53, with all paragraphs thereafter re-numbered; • The addition of sub-paragraphs (h) and (i) to what is now paragraph 54; • The addition of a new paragraph 55, with further re-numbering of subsequent paragraphs; • The addition of sub-paragraphs (e)(i)-(vii) to what is now paragraph 108; and • The revision of the particulars of the lawyers of record for the plaintiffs (from counsel as of the date the statement of claim was issued to present counsel). [ 116 ] I move on to the parties’ respective positions regarding proposed paragraphs 2(d)-(j), set out above. b) The Positions of the Parties ▪ The Plaintiffs [ 117 ] The plaintiffs rely on the mandatory language of r. 26.01 of the Rules of Civil Procedure . The plaintiffs’ position is that, if they are granted leave to amend their pleading as set out in Version Two, the defendants will not suffer any prejudice for which they cannot be compensated in an adjournment or costs. [ 118 ] The plaintiffs highlight the timing of their motion; the action has not yet proceeded to the documentary discovery stage or to examinations for discovery. [ 119 ] At para. 69 of their factum, the plaintiffs submit that the proposed “amendments expand on issues relating to Domenica’s capacity and the undue influence perpetrated by Anthony, which has become further discoverable throughout the action.” Although the plaintiffs address the concept of discoverability in their factum, in neither version of the proposed amended statement of claim do the plaintiffs address discoverability within the meaning of s. 5 of the Limitations Act , 2002 , S.O. 2002, c. 24, Sched. B. [ 120 ] In their oral submissions, the plaintiffs rely on item “(h)” in the list of relief set out in their notice of motion: “such further and other relief as to this Honourable Court may [s]eem just.” The plaintiffs ask the court to grant them leave to add to Version Two the paragraph or paragraphs required to address discoverability. [ 121 ] The plaintiffs submit that the defendants will not be prejudiced regarding any potential limitation defences (whether based on discoverability or otherwise) if leave to amend is granted without prejudice to the defendants to rely on the limitation defences available to them. [ 122 ] The plaintiffs address the distinction between the additional declaratory relief proposed (which the defendants do not oppose) and consequential relief, if any, proposed (which the defendants oppose). The plaintiffs submit that leave to amend could be granted without prejudice to the defendants to (a) distinguish between declaratory and consequential relief, and (b) address that distinction as part of the defence at trial. ▪ The Defendants [ 123 ] The defendants’ position is that they should not be put to the expense of defending claims that have no chance of success—whether the lack of any chance of success arises because of the expiration of a limitation period or the distinction between declaratory and consequential relief. [ 124 ] The plaintiffs assert that the proposed amendments to paragraph 2 are nothing more than particulars of additional relief claimed. The defendants’ position is that at least some of the proposed amendments involve an expansion of the factual matrix to obtain the additional forms of relief. The defendants submit that the expanded factual matrix includes claims that are barred by reason of the expiration of a limitation period. [ 125 ] Regarding the potential expiration of a limitation period, the defendants highlight that Version Two was provided to them on May 5, 2023. For the amendments that appear in Version Two alone, that date should be relied on for the purpose of any limitation period defence. The clock for those claims did not stop running in June 2022, when the plaintiffs produced Version One. c) Analysis ▪ The Proposed Amendments [ 126 ] For the purpose of the motion for leave to amend in the context of this proceeding, and at this stage of the proceeding, I read r. 26.01 together with r. 1.04 and r. 2.01. In determining whether the plaintiffs are granted leave to amend the statement of claim, • I construe the Rules of Civil Procedure liberally, “to secure the just, most expeditious and least expensive determination” of the motion ( r. 1.04(1) ); • I find that the plaintiffs’ claims are complex, involve a multiplicity of issues, will require extensive evidence at trial, relate to large sums of money, and are important for the purpose of family dynamics. Proportionality requires that the parties be given a reasonable opportunity to advance their claims and to put forth all reasonable defences to the claims (r. 1.04.1)); and • I find that a just determination of the real matters in dispute requires that the real matters in dispute be justly determined at trial and not in the context of a pleadings motion (r. 2.01(1)(a)). The plaintiffs’ allegation that one of the defendants (Domenica) is vulnerable to another defendant (Anthony) is significant to the outcome of the request for leave to amend the statement of claim. It is important that the defendants are separately represented from this point forward—allowing the parties to complete the documentary and oral discovery process without concern that conflicts of interest create an impediment to that process. [ 127 ] I also keep in mind that this is a pleadings motion. It would be an unreasonable use of the court’s resources for the court, on a pleadings motion, to wade into limitation period issues based on materials that number in the thousands of pages. [ 128 ] For the court to attempt to distinguish between declaratory and consequential relief on the basis of a paper record creates the risk of inconsistent findings of fact between the motion judge and the trial judge. At trial, the presiding judge will have the opportunity to hear from the witnesses and assess their respective credibility and reliability. The trial judge may also benefit from documents made available through the documentary discovery process and cross-examination based on transcripts from examinations for discovery. [ 129 ] The defendants will not be prejudiced in terms of any limitation defences available to them. First, leave is granted to the plaintiffs to amend their statement of claim in accordance with Version Two, without prejudice to the defendants raising potential limitation period defences. Second, if, at a later stage of the proceeding, the defendants are confident in one or more limitation defences, it remains open to the defendants to bring a motion for summary judgment. Such a motion, if pursued, would be focussed on limitation defences—with the evidence narrowed to the specific issues and in written and oral submissions focussed on those issues. [ 130 ] I agree with the defendants that it is necessary to identify two dates on which the clock stopped running for the purpose of limitation period defences. For the proposed amendments that appear in both Version One and Version Two, the clock stopped running in 2022. For the proposed amendments that appear only in Version Two, the clock stopped running in 2023. If the parties are unable to agree upon the precise dates in 2022 and 2023, the parties shall arrange to make additional submissions to the court. ▪ The Request for Leave to Address Discoverability [ 131 ] Last, I address the plaintiffs’ request, made for the first time during oral submissions, for leave to amend Version Two to include substantive text addressing discoverability within the meaning of s. 5 of the Limitations Act . [ 132 ] I start by highlighting that the plaintiffs do not address the concept of discoverability in either Version One or Version Two. In their notice of motion, the plaintiffs list 29 substantive grounds which they rely upon in support of the relief they request. The plaintiffs do not address discoverability in the grounds in support of their motion. [ 133 ] In only one of the 29 itemized grounds do the plaintiffs even deal with the request for leave to amend their pleading. At item 29, the plaintiffs say, “The Plaintiffs are entitled to amend the Statement of Claim as there would be no prejudice to the Defendants.” The grounds upon which the plaintiffs rely include, at item 30, r. 26.01 . The plaintiffs do not rely on s. 5 of the Limitations Act . [ 134 ] As noted above, at paragraph 69 of their factum, the plaintiffs describe the proposed amendments as expanding “on issues relating to Domenica’s capacity and the undue influence perpetrated by Anthony, which has become further discoverable throughout the action.” That allusion to discoverability is not sufficient to support leave being granted to the plaintiffs to amend their pleading, with particulars as yet unspecified, to address discoverability. [ 135 ] It would be entirely unfair to the defendants to proceed as the plaintiffs suggest on this issue. To proceed as the plaintiffs suggest would result in the defendants being denied the right to make fulsome response to the motion and fulsome oral submissions on the issue. [ 136 ] If the plaintiffs wish to do so, they may bring a further motion for leave to amend their pleading (Version Two, with additional paragraphs addressing discoverability). If the plaintiffs decide to bring such a motion, it will be incumbent on them to provide the requisite evidence in support of the proposed amendments. [ 137 ] If the plaintiffs pursue a further motion for leave to amend, the defendants will have the opportunity to respond to the factual issues related to discoverability for the purpose of any limitation period defences, including with cross-examination of individuals whose affidavits are filed in support of the motion. [ 138 ] It will also be also open to the plaintiffs to consider whether to consider the specific limitation defences plead by the defendants and whether, in reply, to address discoverability. In that regard, I refer to the decision of the Court of Appeal for Ontario in Collins v. Cortez , 2014 ONCA 685 . At para. 10, the Court of Appeal for Ontario says the following as to when a plaintiff, relying on the discoverability principle, may plead the relevant facts material to discoverability: In the normal course, if a limitations defence is raised, as here, in a statement of defence, and the plaintiff relies on the discoverability principle, the material facts relevant to discoverability should be pleaded in reply. I disagree with the conclusion of the motion judge that the appellant was required to plead the facts relevant to discoverability in her statement of claim. The expiry of a limitation period is a defence to an action that must be pleaded in a statement of defence: see Beardsley v. Ontario , 2001 8621 (ON CA) , [2001] O.J. No. 4574 (C.A.), at para. 21 and S.(W.E.) v. P.(M.M.) (2000), 2000 16831 (ON CA) , 50 O.R. (3d) 70 (C.A.), at paras. 37-38 . As such, discoverability, which is relevant to the limitations defence, need not be anticipated by a plaintiff and addressed in her statement of claim: see Huang v. Mai , 2014 ONSC 1156 , 119 O.R. (3d) 117, at para 27 and Metropolitan Toronto Condominium Corp. No. 1352 v. Newport Beach Development Inc. , 2012 ONCA 850 , [2012] O.J. No. 5682, at para. 116 . [ 139 ] See also Canadian Real Estate Association v. American Home Assurance Company , 2015 ONCA 389 , at para. 1 ; and Lee v. Chang , 2024 ONSC 580 , at para. 150 . [ 140 ] Based on the materials before the court, the plaintiffs are not entitled to leave to amend their pleading in an unspecified manner to address discoverability. Based on the decision in Collins , the plaintiffs are not required to plead discoverability in their amended statement of claim; they are entitled to address discoverability in their reply. d) Conclusion – Leave to Amend the Statement of Claim [ 141 ] The plaintiffs are granted leave to amend their statement of claim, in accordance with the draft amended statement of claim described in this ruling as “Version Two”, subject to the following terms: a) Leave is granted without prejudice to any limitation defences available to the defendants; b) Leave is granted without prejudice to the defendants pleading and relying on the distinction between declaratory relief and consequential relief; and c) For the purpose of any limitation defences, i) the limitation clock for amendments proposed in both Version One and Version Two stopped running on a date in 2022 to be agreed upon by the parties; and ii) the limitation clock for amendments proposed only in Version Two stopped running on a date in 2023 to be agreed upon by the parties; and d) In the event the parties are unable to agree upon the date in 2022 and the date in 2023, referred to in paras. (c)(i) and (c)(ii), above, then the parties shall make arrangements to appear before me (by videoconference) and make submissions regarding the specific dates in those years. [ 142 ] The final topic that I address is the status of the proceeding in light of the fact that there is no representative named for the Estate. The Estate of Landino Zuccarini, as a Defendant [ 143 ] Rule 9 of the Rules of Civil Procedure addresses proceedings by or against an estate or a trust. Anthony has applied for a certificate appointing him as the estate trustee of the Estate. The plaintiffs oppose that application. The court is not aware of any steps being taken, other than Anthony’s application, for the appointment of a representative of the Estate—generally, or for the purpose of this proceeding. [ 144 ] Pursuant to r. 9.03(2), the fact that the Estate is named without reference to a personal representative does not render the proceeding a nullity. In addition, the court has the discretion to order that the proceeding be continued against “the proper executor or administrator of the deceased or against a litigation administrator appointed for the purpose of the proceeding”. If such an order is made, then the title of proceeding must be amended accordingly. [ 145 ] It is important that a representative of the Estate for the purpose of this proceeding be identified as soon as possible. Pursuant to r. 9.03(6), because of the manner in which the Estate is named the title of proceeding, “No further step in [the proceeding] shall be taken until it is properly constituted and, unless it is properly constituted within a reasonable time, the court may dismiss the proceeding or make such other order as is just.” [ 146 ] At the conclusion of the hearing of the plaintiffs’ motion, the parties provided the court with a consent and draft order for an order amending the title of proceeding to identify Anthony as the personal representative of the Estate. The fact that the parties consent to such relief does not require the court to sign the order. [ 147 ] It would not be reasonable to sign the proposed order. In light of the real and potential conflicts identified as between the Estate and the other defendants, including Anthony, it is not possible to have Anthony represent the Estate in this proceeding. A litigation administrator must be appointed for the Estate. [ 148 ] Pursuant to r. 9.03(6), the action is stayed save and except for the parties being granted leave to take the following steps: a) Have the order pursuant to this ruling issued and entered; b) Have the statement of claim amended in accordance with Version Two; c) Make further submissions, if required, to address the dates on which Version One and Version Two were produced in 2022 and 2023, respectively; and d) Address costs of the plaintiffs’ motion. [ 149 ] Prior to bringing the motion for removal of the defendants’ lawyers of record and leave to amend their statement of claim, the plaintiffs served a motion record for a motion in which they seek injunctive relief. That motion was adjourned, pending the outcome of the matters now before the court. If the plaintiffs intend to pursue the motion for injunctive relief, they will not be able to do so until such time as the proceeding is properly constituted as against the Estate and the stay of proceeding is lifted. Disposition [ 150 ] For the reasons set out above, • The defendants’ motion to strike the Blum affidavit is deemed to be abandoned; • The plaintiffs’ motion for an order removing the defendants’ counsel as their lawyers of record is granted; • The defendants counsel shall be prohibited from representing any one of the defendants; • The plaintiffs are granted leave to amend the statement of claim in accordance with Version Two, subject to the terms set out in paras. 141(a) to (d), above; and • The proceeding is stayed, subject to the exceptions set out in para. 148, above, pending proper constitution of the claims against the Estate and a further order of the court lifting the stay. [ 151 ] I conclude this ruling by turning to the issue of costs of the plaintiffs’ motion. Costs [ 152 ] The parties did not file costs outlines. If the parties are unable to resolve the issue of costs, written submissions shall be made in accordance with the following requirements and timetable: a) The parties’ submissions shall be limited to a maximum of ten pages (excluding any bill of costs). The plaintiffs’ reply submissions shall be limited to a maximum of five pages; b) Written submissions shall comply with the document standards prescribed by r. 4 of the Rules ; c) Copies of any case law or other authorities shall be provided with the submissions and shall comply with r. 4 of the Rules with respect to font size; d) Submissions, including copies of case law or other authorities, shall be filed with the court electronically in accordance with the most recent notice to the profession in that regard; e) For the purpose of costs submissions, “deliver” is defined as serving, filing, and uploading to Case Center; and f) The submissions shall be delivered in accordance with the following schedule: i) The plaintiffs shall deliver their submissions no later than 4:00 p.m. on the thirtieth day following the release of this ruling; ii) The defendants shall deliver their responding submissions no later than 4:00 p.m. on the fiftieth day following the release of this ruling; and iii) The plaintiffs shall deliver their reply submissions no later than 4:00 p.m. on the sixtieth day following the release of this ruling. [ 153 ] If the plaintiffs’ costs submissions are not delivered within the timeframe specified in para. 152(f)(i), above, there shall be no order as to costs of the motion. ________________________________________ Madam Justice Sylvia Corthorn Released: February 18, 2025 COURT FILE NO.: CV-20-84343 DATE: 2025/02/18 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: DORES ZUCCARINI (GIAMBERARDINO), DINE ZUCCARINI and GIOVANNI (“JOHN”) ZUCCARINI Plaintiffs – and – ANTHONY ZUCCARINI, DOMENICA ZUCCARINI, THE ESTATE OF LANDINO ZUCCARINI, PRETORIA CO. LTD. and HOLLINGTON CO. LTD. Defendants Ruling ON MOTIONS Madam Justice Sylvia Corthorn Released: February 18, 2025 [1] The two wills executed in 2019 are collectively referred to herein as “the 2019 Wills”. [2] The title of the defendants’ record, as it appears on the cover to the record, is in all uppercase letters and bold font. The change in the format of the text is solely for ease of reading in this ruling. [3] The first four words in the title of the record are in all uppercase letters and bold font as the title appears on the cover page of the defendants’ supplementary record. The bracketed portion of the title appears as it does on the cover page save and except that it too is in bold font on the cover page. [4] Dempster No. 1 and Dempster No. 2 are collectively referred to as “ Dempster ”. [5] This sub-paragraph is sub-paragraph “(e)” in Version One. With the insertion of additional proposed sub-paragraphs in Version Two, what was sub-paragraph (e) becomes sub-paragraph (h). Similarly, sub-paragraphs (f) and (g) in Version One become sub-paragraphs (i) and (j) in Version Two.