Court of Appeal for Ontario

Date: 2018-01-23 Docket: C63817

Judges: Strathy C.J.O., Hourigan and Miller JJ.A.

Between

The Bank of Nova Scotia Trust Company, in its capacity as Estate Trustee, in the Estate of Linda Iaboni

Applicant

and

Carlo Iaboni, Ferdinando Iaboni, Norma Moretto

Respondent (Appellant)

and

Carlo Iaboni, Ferdinando Iaboni, Norma Moretto

Respondents (Respondents)

Counsel

Alfred S. Schorr, for the appellant

Emilio Bisceglia and Hana Tariq, for the respondents

Heard: January 15, 2018

On appeal from: the order of Justice Anne Mullins of the Superior Court of Justice, dated April 27, 2017.

Reasons for Decision

[1] This appeal arises from a long-running dispute between the appellant, Carlo Iaboni, and his two siblings, the respondents Ferdinando Iaboni and Norma Moretto. The subject of the dispute is the administration of the estates of their parents, the late Umberto and Lidia Iaboni. Carlo appeals an order striking out his notice of objection to a passing of accounts for the estate of Lidia. For the reasons set out below, the appeal is dismissed.

[2] The background is this. After Umberto became incapable of managing his affairs, his wife Lidia managed his property pursuant to a power of attorney he had given her. After Lidia herself became incapable, the three children managed the property of both Umberto and Lidia pursuant to a power of attorney. In 2008, Carlo resigned as attorney and the respondents continued to manage the property of their parents. When Umberto died in 2010, he left his estate to Lidia. After Lidia died in 2012, there was a dispute among the siblings over the administration of her estate and the Bank of Nova Scotia Trust Company ("BNS") was appointed as estate trustee on March 6, 2013.

[3] Prior to his mother's death, and prior to the appointment of BNS, Carlo had objected to the respondents' management of their parents' property and brought an action against the respondents in December 2010 alleging misappropriation of funds, seeking an accounting of transactions since he resigned as trustee for property in 2008, and seeking reinstatement as a trustee for property.

[4] In October 2011, there was a settlement between the three siblings, whereby they agreed to exchange an accounting of their mother's assets. The respondents provided an accounting, the appellant did not. The appellant took no steps to pursue the action and it was dismissed administratively for delay on May 15, 2013 and has never been reinstated.

[5] In late 2015, BNS brought an application to pass accounts in the estate of Lidia. Carlo filed a notice of objection, on substantially the same grounds as founded his earlier action.

[6] The respondents brought a motion to strike the notice of objection, on the grounds that the objection is without merit, is statute-barred, and constitutes an abuse of process. That motion was heard before Quinlan J. on June 30, 2016 together with a motion for directions brought by BNS, seeking direction on whether it was obligated to pursue the appellant's allegations that the respondents had misappropriated assets of the estates.

[7] The appellant did not appear at the hearing before Quinlan J. The motion to strike the notice of objection was granted, as well as the motion for passing of accounts. Those orders were later set aside on consent, however, and the motions to strike and to pass accounts were reheard before Mullins J. with the participation of Carlo.

[8] At the hearing of the motion, Carlo consented to the passing of accounts from the time of the appointment of BNS, but not before. Mullins J. struck the notice of objection on three bases: (1) it was without merit, (2) it was an abuse of process for attempting to relitigate the subject matter of the appellant's dismissed action; and (3) was time barred under the Limitations Act.

[9] Carlo appeals the order of Mullins J., striking out the notice of objection.

[10] We are not persuaded that the motions judge made any error. The appellant consented to the passing of accounts from the time of the appointment of BNS, and has not appealed that aspect of the order. Even if the appellant were able to identify errors with respect to the abuse of process and Limitations Act claims, the motions judge's findings of fact on the merits are fatal to the appeal. She made findings that the appellant had not substantiated his suspicions with respect to the discharge of mortgage, the share certificate, or general dissipation of funds. She also found the evidence of the respondent Norma to be credible and reliable. Those findings are entitled to deference and are dispositive of the appeal.

Disposition

[11] The appeal is dismissed. The respondents are entitled to costs of the appeal in the amount of $7,500, inclusive of disbursements and HST.

"G.R. Strathy C.J.O."

"C.W. Hourigan J.A."

"B.W. Miller J.A."