COURT OF APPEAL FOR ONTARIO
CITATION: The Guarantee Company of North America v. Ciro Excavating & Grading Ltd., 2016 ONCA 125
DATE: 20160212
DOCKET: C60882
Hoy A.C.J.O., Pardu and Roberts JJ.A.
BETWEEN
The Guarantee Company of North America
Plaintiff (Respondent)
and
Ciro Excavating & Grading Ltd., V.B. Trucking and Contracting Inc., Soil Logistics Environmental Inc., Stella Barillari and The Estate of Ciro Barillari
Defendants (Appellant)
Daniel Chitiz and Alastair McNish, for the appellant
Richard Yehia, for the respondent
Heard: February 4, 2016
On appeal from the order of Justice Kenneth G. Hood of the Superior Court of Justice, dated July 10, 2015.
ENDORSEMENT
[1] The appellant, Stella Barillari, appeals the motion judge’s order granting summary judgment to the respondent in the amount of $1,170,312.47 payable under an indemnity agreement and dismissing the appellant’s cross-motion for summary judgement dismissing the respondent’s action against her. Her appeal is founded largely on the refusal of Cosimo Leopizzi, who swore an affidavit attesting to the appellant’s execution of the indemnity agreement, to answer numerous questions when cross-examined. Mr. Leopizzi asserted that the questions exceeded the permissible limits of that examination.
[2] For the reasons that follow, we dismiss her appeal.
A. The motion judge’s decision
[3] The motion judge noted that the parties agreed that the motion judge was entitled, on the evidence filed, to grant summary judgment, that he did not need to use any of the fact-finding tools available under r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and that the evidence at trial would be no different or better than what was before him.
[4] The motion judge concluded that the appellant had signed the indemnity agreement. While the appellant had asked him to draw an adverse inference about Mr. Leopizzi’s credibility from Mr. Leopizzi’s refusal to answer certain questions, the motion judge declined to do so. He stated that if the refusals were so important, the appellant should have brought a refusals motion, but that she did not do so. He also stated that she had not brought any evidence to support her claim that Mr. Leopizzi was a “crook” and generally untrustworthy, or that he had doctored documents and forged her signature. The motion judge drew an adverse inference from the appellant’s failure to provide evidence – such as from a handwriting expert – to support her forgery allegation. He also found that the appellant had signed documents that her late husband asked her to sign without knowing what they were, and that she had done the same with Mr. Leopizzi.
[5] The motion judge concluded that the appellant could not rely on the defence of non est factum, which is available to someone who, as a result of misrepresentation, has signed a document mistaken as to its nature and who has not been careless in doing so. He found that she had not shown that Mr. Leopizzi had misrepresented the indemnity agreement, nor had she ever taken steps to inform herself about what she was signing. He concluded that she was careless to the point of indifference and could not avoid being bound by the indemnity agreement.
[6] He therefore granted the respondent summary judgment in the amount of $1,170,312.47 payable under the indemnity agreement (the appellant did not dispute that the respondent had paid this amount) and dismissed the appellant’s cross-motion for summary judgment.
B. Arguments on appeal
[7] The appellant submits that the motion judge erred:
in finding that the appellant did not attempt to bring a refusals motion;
in refusing to draw an adverse inference as to Mr. Leopizzi’s credibility as a result of these refusals;
in failing to direct a hearing with oral evidence if he were not prepared to draw an adverse inference as to Mr. Leopizzi’s credibility from the refusals; and
in concluding that the appellant’s defence of non est factum could not succeed.
C. Analysis
(1) The refusals motion that was not brought
[8] These motions for summary judgment were scheduled in April 2015. The examination of Mr. Leopizzi took place on June 2, 2015. The appellant appeared before a motion scheduling judge on June 9, 2015 to ask for an adjournment of the summary judgment motions so that she could bring a refusals motion. The scheduling judge refused the adjournment, indicating that an urgent refusals motion could be brought if the appellant considered it important. In the course of a motion-management attendance, counsel for the appellant reserved the right to call oral evidence on the motions, but made no attempt to do so on the hearing of the motions. Nor did the appellant renew her request for an adjournment at the hearing of the motions.
[9] The motions were heard on June 19, 2015. Before this court, the appellant alleges that her ability to pursue a refusals motion was stymied by the respondent, who said it was not available to attend on such a motion. The respondent has a different view of the facts. It submits that while it was unavailable for an urgent motion on the Monday before the summary judgment motions, it offered to attend on either the Tuesday or the Wednesday, and that the appellant abandoned pursuit of such a motion.
[10] We are not persuaded that the motion judge’s statement that, if the refusals were so important, the appellant should have brought a refusals motion, but did not do so, amounts to a palpable and overriding error. There was no evidence before the motion judge as to these competing versions of the non-pursuit of the refusals motion and no fresh evidence before this court. And, in any event, in the circumstances the refusals were of no consequence. Even if a few of the numerous questions refused should have been answered by Mr. Leopizzi, there was no evidence to support the appellant’s allegation that she did not sign the indemnity agreement.
[11] The appellant’s evidence changed on the issue of whether her signature to the indemnity agreement was forged. At first she said it was possible Mr. Leopizzi forged her signature. Then she said she signed whatever he put in front of her. Next, she said she could not say she did not sign the indemnity agreement, she just could not remember. And, finally, she said that Mr. Leopizzi had no reason to forge her signature because she always signed what he presented to her. Notably, the appellant refused to submit samples of her signature so that a forensic comparison could be made with the disputed indemnity agreement. In the face of this evidence, and in the absence of any evidence of forgery, the motion judge did not err in concluding that the appellant had signed the indemnity agreement.
(2) Failure to draw an adverse inference from refusals
[12] The motion judge analyzed Mr. Leopizzi’s refusals and noted that “there were no refusals when he was asked specific questions about [the appellant] signing the [indemnity] agreement and his presence as a witness.” The motion judge did not find that the refusals were material. In light of all of the evidence before him, this was not an unreasonable conclusion.
(3) Failure to order oral evidence
[13] The appellant’s position that oral evidence was required if the motion judge did not draw an adverse inference as to Mr. Leopizzi’s credibility from his refusals, but was not required if the motion judge drew the inference sought by the appellant is untenable. A party to a motion for summary judgment cannot say oral evidence is not necessary if it is successful, but is required if the judge is leaning against it. Here, there is no indication that the appellant stated unequivocally that oral evidence was required on the hearing of the motion. She made no efforts to have Mr. Leopizzi present on the motion.
(4) Non est factum
[14] The motion judge accurately set out the test for non est factum from Marvco Color Research Ltd. v. Harris, 1982 CanLII 63 (SCC), [1982], 2 S.C.R. 774, and Bulut v. Carter, 2014 ONCA 424: “the defence of non est factum is available to someone who, as a result of misrepresentation, has signed a document mistaken as to its nature and character and who has not been careless in doing so.” There was no evidence of any misrepresentation. As the motion judge observed:
Stella’s own evidence established that she never read any documents presented to her; she never asked for a translation of any document; she took no steps to inform herself of what she was signing; she did not ask questions about the document; she never asked to speak to a lawyer or friend about the document; and she never took time to think about what she was signing.
[15] The absence of a misrepresentation and the appellant’s carelessness are fatal to her non est factum defence.
D. Disposition
[16] This appeal is dismissed. The respondent shall be entitled to its costs of the appeal, fixed in the amount of $16,000, inclusive of HST and disbursements.
“Alexandra Hoy A.C.J.O.”
“G. Pardu J.A.”
“L.B. Roberts J.A.”