Court of Appeal for Ontario

Citation: Dibiase v. Spensieri Estate, 2014 ONCA 913 Date: 2014-12-19 Docket: C58739

Before: Sharpe, van Rensburg and Pardu JJ.A.

Between:

Anna Dibiase Plaintiff (Appellant)

and

Estate of Michael Spensieri, deceased, by its Litigation Administrator Maria Spensieri, Maria Spensieri personally, and Michele Dibiase Defendant (Respondent)

Counsel: Richard Anka, for the appellant Mauro Marchioni and Adam Justin Marchioni, for the respondent

Heard and released orally: December 17, 2014

On appeal from the judgment of Justice C.A. Gilmore of the Superior Court of Justice, dated April 3, 2014.

Endorsement

[1] We do not agree that the motion judge erred in granting summary judgment dismissing the claim.

[2] The statement of claim asserts a claim to reverse the 1988 conveyance on grounds of fraud. The statement of claim before the motion judge and before this court does not attack the 1996 quit claim conveyance executed by the appellant for the same parcel of land.

[3] We see no basis to interfere with the motion judge’s finding, at paras. 41 and 42, based on the appellant’s discovery evidence, that when she executed the 1996 quit claim, her intention was to make the title reflect the true ownership as she understood it. Given that admission and finding, the claim to set aside the 1988 conveyance has no prospect of success.

[4] Any other claim for damages is barred by the two-year limitation period. Fraudulent concealment could not toll or extend the limitation period after the appellant discovered the fraud in May 2004. Nor does the fact that the appellant only obtained the corroborating evidence of a hand-writing expert in 2007, mean that her claim would only be discovered at that time. See Lawless v. Anderson 2011 ONCA 102.

[5] Accordingly, the appeal is dismissed.

[6] The respondent is entitled to his costs of the appeal fixed at $15,000 inclusive of disbursements and applicable taxes.

"Robert J. Sharpe J.A."

"K. van Rensburg J.A."

"G. Pardu J.A."