COURT OF APPEAL FOR ONTARIO
CITATION: Buccilli v. Pillitteri, 2014 ONCA 432
DATE: 20140529
DOCKET: C56408
Laskin, Rouleau and Lauwers JJ.A.
BETWEEN
Patricia Buccilli and Drapery Interiors Etc. Inc.
Plaintiffs (Respondents)
and
Pasquale Pillitteri, also known as Pat Pilliterri, Christina Pillitteri, Patron Contracting Limited, also known as CDC Contracting, Birchland Homes Inc. and Vendrain Inc.
Defendants (Appellants)
AND BETWEEN
Pasquale Pillitteri, also known as Pat Pilliterri, Christina Pillitteri, Patron Contracting Limited, also known as CDC Contracting, Birchland Homes Inc. and Vendrain Inc.
Plaintiffs by Counterclaim (Appellants)
and
Patricia Buccilli, Drapery Interiors Etc. Inc. Antonio (“Tony”) Decicco and Westplex Centre Inc.
Defendants to Counterclaim (Respondents)
Gavin Tighe and Anna Husa, for the appellants
Terrence O’Sullivan and Daniel Naymark, for Ron Ventura
M.R. Kestenberg and T. Slahta, for the respondents
Heard: May 2, 2014
On appeal from the judgment of Justice Frank J.C. Newbould of the Superior Court of Justice, dated November 23, 2012.
ENDORSEMENT
[1] Patricia Bucilli’s late husband, Enzo Ventura, her brother-in-law Pat Pillitteri, and Ron Ventura ran a family business. They were equal shareholders in a construction company, CDC Contracting, and also owned several real estate investments.
[2] After her husband died, Patricia, as his sole heir, inherited his one-third interest in the family business. In June 2001 she transferred her interest to her sister-in-law Christina Pillitteri in trust by a written Transfer Agreement. Later Christina transferred Patricia’s one-third interest to her husband Pat and Ron in equal shares.
[3] Patricia sued to set aside the Transfer Agreement and ancillary relief necessary to reinstate her to the legal and financial position she would now occupy had the transfer not been effected. On the consent of the parties the issues of liability and damages were bifurcated.
[4] The central issue at the liability trial was the validity of the Transfer Agreement. The trial judge ordered that the Transfer Agreement be set aside on four grounds:
• undue influence
• breach of fiduciary duty
• misrepresentation
• unconscionability
[5] The Pillitteris appeal. They advance two main grounds of appeal: (1) the trial judge exceeded his jurisdiction by granting remedies not authorized by the bifurcation order; and (2) the trial judge’s key findings of fact are tainted by palpable and overriding error. On either ground the Pillitteris submit that the judgment must be set aside.
[6] Ron Ventura was granted intervener status as a party on the appeal. He is not a party to the litigation and did not testify at trial. He submits that though he was neither a party to the proceedings nor given notice of it, the trial judge’s judgment affects his status as a shareholder in the family business. He too asks that the judgment be set aside.
(1) Did the trial judge exceed his jurisdiction?
[7] Pepall J. issued a consent order that liability and damages be bifurcated. In her order she specified the claims in the statement of claim that were to be determined at the liability stage of the proceedings.
[8] The Pillitteris contend that the trial judge’s judgment went beyond Pepall J.’s bifurcation order. A comparison of the judgment, the statement of claim and the bifurcation order shows otherwise. Paragraph 2 of the judgment – the paragraph challenged on appeal – orders declaratory relief in the terms of paragraph 1(i) of the statement of claim. The bifurcation order leaves the claim in paragraph 1(i) of the statement of claim to be resolved at the liability phase of the trial.
[9] Accordingly, we do not give effect to this ground of appeal.
(2) Did the trial judge commit palpable and overriding errors?
[10] The trial judge gave thorough reasons for his decision. He made numerous findings of fact and credibility. In his extensive section on the credibility and reliability of the witnesses, the trial judge found that much of the evidence of Christina and Pat Pillitteri was neither credible nor reliable. He preferred and accepted most of the evidence of Patricia Buccilli.
[11] The Pillitteris, however, argue that some of the trial judge’s key findings of fact are irretrievably tainted by palpable and overriding error. They give two examples: the trial judge’s findings on the evidence of the lawyer John Cirillo; and the trial judge’s findings concerning a letter from Les Witlin a solicitor, written nearly six years after the Transfer Agreement was signed.
[12] We do not accept this argument. On our review of the record the trial judge’s findings of fact concerning Mr. Cirillo are well supported by the evidence.
[13] Witlin’s letter, which stated that Patricia had signed over all of her interest to the Pillitteris, was not tendered for the truth of its contents. Moreover, neither Patricia nor Witlin was cross-examined on it. The trial judge was therefore correct not to give the letter any weight.
[14] Accordingly, we do not give effect to this ground of appeal.
[15] We add that to us the trial judge’s order setting aside the Transfer Agreement is unassailable for the reasons set out at paragraph 18 of Mr. Kestenberg’s factum:
• Patricia Buccilli had neither received nor reviewed CDC’s financial statements,
• Patricia Buccilli had neither received nor reviewed Birchland’s financial statements,
• Patricia Buccilli had neither received nor reviewed the financial statements of Westplex Centre Inc. Joint Venture,
• There was no discussion among Patricia Buccilli, Pat Pillitteri and Christina Pillitteri about the value of the shares of CDC or Birchland,
• There was no discussion among Patricia Buccilli, Pat Pillitteri and Christina Pillitteri about the value of the real estate joint ventures that recorded Vendrain as a participant,
• Patricia Buccilli had not consulted a lawyer prior to the alleged agreement in August 2000, and
• Patricia Buccilli had not received independent business advice from anyone prior to the alleged August 2000 agreement
(3) The position of Ron Ventura
[16] The transfer of one-half of Patricia’s one-third interest to Ron Ventura took place after Patricia had begun this litigation. She did not sue Ron Ventura and made no claim against him. We agree with Mr. Kestenberg that the judgment under appeal does not affect Ron’s interest. At the damages phase Ron can take the position that he was a bona fide purchaser for value and that whatever remedies are ordered, they cannot affect his 50 per cent interest in the business.
[17] For these brief reasons the appeal is dismissed. The parties may make written submissions on the costs of the appeal within 20 days of the release of these reasons.
“John Laskin J.A.”
“Paul Rouleau J.A.”
“P. Lauwers J.A.”