COURT OF APPEAL FOR ONTARIO

CITATION: Home Trust Company v. Fierro Estate, 2015 ONCA 106

DATE: 20150213

DOCKET: C59156

MacFarland, Hourigan and Benotto JJ.A.

BETWEEN

Home Trust Company

Plaintiff

(Respondent)

and

Estate of the Late Victoria Maria Fierro, Deceased

and Remo Fierro in his capacity as Estate Trustee of the

Estate of Victoria Maria Fierro

Defendants

(Appellant)

Rose & Rose and Stewart Title Guaranty Company

Third Party

Gregory Gryguc, for the appellant Fierro

Rachel Migicovsky, for Rose and Rose

Amanda Jackson, for responding party Home Trust

Heard and released orally: January 29, 2015

On appeal from the judgment of Justice Anne Mullins of the Superior Court of Justice, dated June 30, 2014.

ENDORSEMENT

[1] Remo Fierro appeals the order of the motion judge granting summary judgment on a mortgage action against the estate of Victoria Fierro, (the “Estate”).

[2] Victoria Fierro mortgaged a residential property in Vaughan on July 8, 2009. The respondent is the mortgagee. Ms. Fierro died in July 2011. The mortgage went into default in October 2011 and has subsequently matured.

[3] The procedural history of this matter is as follows.

[4] In March 2012, the respondent commenced an action for payment and possession under the mortgage against Mr. Fierro in his capacity as estate trustee of the Estate and against Anna and Frank Fierro as estate trustees.

[5] In May 2012, the title of proceedings was amended to delete Anna and Frank Fierro and the action continued against the Estate and Remo Fierro, in his capacity as estate trustee.

[6] In June 2013, the defendants filed what purported to be a counterclaim wherein they took the position that the mortgage should be set aside pursuant to ss. 21 and 23(3) of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”) because Ms. Fierro was a spouse and the mortgaged property was a matrimonial home. They also commenced a third party action against the law firm Rose & Rose and Stewart Title Guaranty Company, alleging that, Rose & Rose, who were the lawyers acting for both parties on the mortgage, were negligent inter alia in not making inquiries to determine Ms. Fierro’s marital status.

[7] In July 2013, Mr. Fierro brought an application to remove himself as estate trustee. He also commenced an action in his own name against Rose & Rose alleging negligence and breach of fiduciary duty.

[8] In September 2013, Enio Zeppieri swore an affidavit that his law firm represented the Estate but that Mr. Fierro and the Estate had become adverse in interest and his firm was no longer able to represent both parties. He further deposed that the children of Remo and Victoria Fierro would not consent to be appointed to as trustees or litigation guardians of the Estate and that the Public Guardian and Trustee would also not consent to being the estate trustee.

[9] In December 2013, the respondent’s motion for summary judgment was heard. On March 5, 2014, the motion judge released an endorsement wherein she found that Mr. Fierro has no claim to the mortgaged property under the FLA. The motion judge further found that ss. 21 and 23(3) of the FLA should not be applied to set aside the mortgage because Mr. Fierro had not met his evidentiary onus to establish that the respondent had actual or constructive notice that Ms. Fierro was a spouse and that the mortgaged property was a matrimonial home.

[10] The motion judge went on to reserve her decision on the motion for summary judgment until the issue of the Estate’s representation was addressed.

[11] On June 30, 2014, the motion judge granted an order that the action continue in the absence of a person representing the Estate and granted summary judgment against the Estate.

[12] Mr. Fierro now appeals the order of June 30, 2014, asserting that the motion judge erred in not finding that ss. 21 and 23(3) of the FLA should be applied to set aside the mortgage.

[13] The respondent, in its factum, submits that given that Mr. Fierro is no longer an estate trustee, he has no capacity to appeal. In any event, the respondent submits that the motion judge was correct in finding that Mr. Fierro has no claim to the mortgaged property and that the mortgage should not be set aside pursuant to the FLA.

[14] We agree with the submission of the respondent. Mr. Fierro has no status to bring this appeal. He is no longer a trustee of the Estate. He was not sued in his personal capacity and is therefore not a party. It is also not clear to us how Mr. Zeppieri’s firm, who were counsel for the Estate, can act for Mr. Fierro given his evidence that Mr. Fierro and the Estate had become adverse in interest.

[15] In any event, there is no merit to the appeal. The motion judge correctly found that Mr. Fierro had not met his onus of establishing that the respondent had actual or constructive notice that Ms. Fierro was a spouse and the mortgaged property was a matrimonial home.

[16] The appeal is dismissed.

[17] Costs to the respondent Home Trust fixed in the sum of $7,500 and to the third parties in the sum of $2,500. Both figures are inclusive of disbursements and HST.

“J. MacFarland J.A.”

“C.W. Hourigan J.A.”

“M.L. Benotto J.A.”