Court of Appeal for Ontario
Date: 20211109 Docket: C69054
MacPherson, Simmons and Nordheimer JJ.A.
BETWEEN
Marco DeLuca and Rhondaroo Holdings Ltd. Plaintiffs (Respondents)
and
Sergio Grillone, 2390215 Ontario Inc., 1894931 Ontario Limited, Ravdeep Chera, Chera Law Office, Kurt Love, Avison Young (Canada) Inc. and John Doe Corporation Defendants (Appellants)
AND BETWEEN
Sergio Grillone, 2390215 Ontario Inc., 1894931 Ontario Limited Plaintiffs by Counterclaim (Appellants)
and
Marco DeLuca, Omega Process Servers Inc., Rhondaroo Holdings Ltd., Emilio Bisceglia, Bisceglia & Associates Professional Corporation, John Cirillo and John Cirillo Professional Corporation, Canadian Imperial Bank of Commerce and Daniel Dignard Defendants by Counterclaim (Respondents)
Counsel: Sergio Grillone, in person and for the appellant 2390215 Ontario Inc. R. Leigh Youd and Adam J. Wygodny, for the respondents Marco DeLuca and Rhondaroo Holdings Ltd. Randy Schliemann, for The Bank of Nova Scotia
Heard: November 5, 2021 by video conference
On appeal from the order of Justice Markus Koehnen of the Superior Court of Justice, dated August 12, 2020.
Reasons for Decision
[1] The appellants appeal from the decision of a motion judge enforcing the terms of the settlement. At the conclusion of the appeal hearing, we dismissed the appeal for reasons to follow. These are our reasons.
[2] The main issue on appeal is whether the motion judge erred in holding that an e-mail from counsel for the respondents confirmed that the parties had settled the proceeding on terms that would allow the motion judge to direct certain share purchase monies to be paid into court.
[3] The e-mail read in part as follows:
Your Honour in connection with tomorrow's attendance before you … the purchasing and selling parties have agreed to the price to be paid for the shares of 239 in 189. The parties will agree to an order that:
- Subject to any contrary direction by His Honour the agreed price … shall be paid by Rhonderoo to 239 within 10 business days of Friday, July 17.
[4] The appellants submit here, as they did in the court below, that the words "[s]ubject to any contrary direction by His Honour" meant there would be no settlement if the court determined the monies should not be paid directly to 239.
[5] We do not accept that submission. It is clear from the record that Mr. Grillone, for the appellants, authorized counsel for the respondents to forward the above-noted e-mail. The motion judge held that the words “[s]ubject to any contrary direction by His Honour” meant it was open to him, as the motion judge, to direct, as he did, that the purchase monies be paid into court for the benefit of Mr. Grillone's creditors.
[6] In our view, the interpretation the motion judge placed on the e-mail was open to him based on the record before him. We see no basis on which to intervene.
[7] The appellants sought to introduce fresh evidence on appeal. Their application is dismissed. The first piece of evidence related to something that occurred after the settlement was made and was irrelevant to the question whether there was a settlement. The second piece of evidence related to a matter that was fully dealt with by the terms of the settlement. The proposed evidence does not meet the test for introduction of fresh evidence.
[8] The appeal is therefore dismissed. Costs of the appeal and the motion for an extension are to the respondents on a partial indemnity scale fixed in the amount of $10,500 inclusive of disbursements and applicable taxes. No order as to costs of the Bank of Nova Scotia.
“J.C. MacPherson J.A.”
“Janet Simmons J.A.”
“I.V.B. Nordheimer J.A.”