COURT OF APPEAL FOR ONTARIO

CITATION: Piccolo v. Mariotti, 2013 ONCA 710

DATE: 20131122

DOCKET: C56578

Cronk, Pepall and Strathy JJ.A.

BETWEEN

Sam Piccolo and Susan Piccolo

Plaintiffs (Appellants)

and

Anthony Mariotti and Anthony Piccolo

Defendants (Respondent)

Sam Piccolo and Susan Piccolo, acting in person

Alex Szalkai, Q.C., for the respondent

Heard: November 15, 2013

On appeal from the order of Justice Thomas J. Carey of the Superior Court of Justice, dated December 27, 2012.

ENDORSEMENT

[1] The appellants appeal from an order made on a motion for summary judgment, dismissing their action against the respondent Anthony Mariotti, Sam Piccolo’s former lawyer.

[2] In 1967, Sam Piccolo and his brother hired the respondent to incorporate their business. A dispute about their ownership interests resulted in an oppression application being brought in 1985 by Sam Piccolo, who claimed that he had a two-thirds interest in the business. In the context of that dispute, the respondent swore an affidavit, stating that he had no recollection of the brothers’ partnership being anything other than equal. He attached certain unexecuted documents relating to the parties’ ownership interests. On a reference to a master in 1986, it was determined that Sam Piccolo had only a fifty percent interest in the business.

[3] In 1992, Sam Piccolo commenced an action against the respondent, claiming, among other things, that he had failed to execute documents that purportedly gave Sam Piccolo a two-thirds interest in the corporation. That action was dismissed in 1996 as time-barred. In October 1997, this court dismissed Sam Piccolo’s appeal.

[4] In this action, commenced in 2011, Sam Piccolo again alleges negligence, as well as perjury and obstruction of justice, by the respondent in connection with his evidence in the oppression proceedings.

[5] The motion judge held that there was no basis for Susan Piccolo’s claim because there was no evidence that she ever had a solicitor-client relationship with the respondent. There was no pleading that she had any standing to assert any such claim. We agree with the motion judge’s conclusion.

[6] The motion judge found that Sam Piccolo’s claim for negligence was an attempt to re-litigate the claim in the earlier litigation and dismissed it as an abuse of process. Again, we agree.

[7] In answer to the assertion that the claims for perjury and obstruction of justice were time-barred, the appellant’s wife swore that in the course of recent home renovations they had found “shocking” new evidence – a document, allegedly executed by the respondent, confirming Sam Piccolo’s majority interest in the company. She claimed that in 2009 they had come across a box containing this document in the course of “clearing out some cupboards that had been used for storage” for forty years.

[8] The motion judge found that even if this document was valid, it did not support the claims for obstruction of justice and perjury. In any event, the document had been in the appellant’s possession for 40 years, it was clearly discoverable, and the claims were barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. He also found that the claims were frivolous, vexatious and lacking in merit.

[9] The claim against the respondent for negligence was res judicata. Even assuming that conclusion could be set aside on the basis of fresh evidence or perjury, the alleged fresh evidence was clearly within the control of the appellant and was discoverable at the time the original claim was made.

[10] The discoverability principle equally applies to the claims for perjury and obstruction of justice. As well, as the motion judge noted, the document allegedly discovered by the appellants did not support the claim that the respondent committed perjury. We agree with the motion judge’s conclusions that the claims were both time-barred and frivolous and vexatious.

[11] We would add that the motion judge proceeded on the assumption that the newly discovered document was genuine. However, in his costs order he observed that the document appeared to be “an amateurish patch up from another document and a forgery.”

[12] Before this court, the appellant argues that the motion judge exhibited bias. There is no support whatsoever for this allegation on the record before us.

[13] The motion judge granted the respondent costs on a full indemnity basis, fixed at $13,175. He found that the allegations of dishonest conduct were not substantiated and were, at best, brought without consideration for the damaging consequences to the respondent’s reputation and, at worst, out of spite and malice. The appellant appeals the costs award, asserting that it is based on erroneous findings and that the time spent was excessive.

[14] We disagree. The motion judge’s finding of reprehensible conduct was supported by the record and justified the costs awarded: Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66. Those costs were very modest and reasonable, in our view. The award of costs is discretionary and this court cannot intervene unless the motion judge erred in principle or the costs order is plainly wrong: Hamilton v. Open Window Bakery, 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27. Neither circumstance applies here.

[15] The respondent claims costs of $7,500 for this proceeding on a substantial indemnity basis. For the reasons given by the motion judge, substantial indemnity costs are appropriate. The amount claimed is reasonable.

[16] We therefore dismiss the appeal, with costs to the respondent fixed at $7,500, all-inclusive.

“E.A. Cronk J.A.”

“S.E. Pepall J.A.”

“G.R. Strathy J.A.”