Court File and Parties
Court File No.: CV-12-468763
Date: 20131009
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AGATA SETTECASE by her Litigation
Guardian, Adam Settecase
Applicant
(Responding Party on the Motion)
– and –
AGOSTINO SETTECASE and
FABIO SETTECASE
Respondents
(Moving Parties on the Motion)
Marco Drudi, Counsel for the Applicant
Charles B. Wagner and David Noseworthy, Counsel for the Respondents
HEARD: OCTOBER 9, 2013
Endorsement
ENDOrSEMENT: GREER J.:
[1] The Respondents, Agostino Settecase and Fabio Settecase move, within this Application, (“Agostino” and “Fabio”), for an Order that this Application be stayed, or in the alternative that they be heard at the same time or that their Action #09-CV-375539 be consolidated within this Application.
[2] The 2009 Action 09-CV-375539 was commenced by Agostino, as Plaintiff, against his Mother, Agata Settecase (“Agata”) on March 31, 2009. In that Action, Agostino makes the following claim:
…for breach of contract and/or unjust enrichment relating to the discharge of a mortgage on property municipally known as 30 Clearview Heights, Toronto, Ontario and other services provided by Agostino Settecase.
In the Pleading, Agostino also says that the mortgage (no registration number and no information who was the mortgagor and who was the mortgagee) was discharged on April 1, 2006, in which he “held a one-third interest”.
[3] In connection with this Action, Agata filed a Statement of Defence and Counterclaim on June 8, 2009. Fabio was added as a Third Party on June 9, 2009.
[4] The property at 30 Clearview Heights, Toronto, (“the property”) is an apartment building complex with 25 rental units. The registered owners of the property now are Agata, the Mother, who is 93 years of age, her son, Agostino, (who, counsel tell me is in his 60’s) and his son Fabio, who is 34 years of age. Fabio is said to have purchased his interest in the property from his uncle, Vito Settecase (“Vito”), who is now deceased. The ownership, I am told, is a tenancy-in-common, with each of Agata, Agostino and Fabio having a one-third interest.
[5] Agostino runs the apartment complex, collects the rent, collects the laundry money, and pays the bills. No proper Financial Statements have ever been prepared for the operation of the complex.
Position of Agostino and Fabio
[6] Agostino and Fabio in 2013, wish to now serve and file a Fresh as Amended Statement of Claim (not yet approved nor issued and entered). They have set out, in their Factum, a chronology of the events since 1976, when Agata and her late husband, Salvatore purchased the property. Agostino says that the Application has been brought on by Agata, through her attorney, Adam Settecase, her grandson and son of the late Vito, who died on April 11, 2011. It is “against the backdrop of a family dispute that has been going on for some years.” Agostino says he does not believe that the Application is in Agata’s best interests. He sets out in some detail why he thinks that.
[7] The Application, in short, asks for an Order for partition and sale of the property. Agostino and Fabio do not want a sale of the property and wish to have the two pieces of litigation dealt with at the same time, in the manner the Court sees fit.
[8] Agostino says that the historical context of the 2 proceedings is nearly identical. He says all of the witnesses in the 2 proceedings will be the same. Counsel, are now identical in the two proceedings. Agostino says having the two proceedings at the same time will not be overly complex with: “numerous questions of fact and law in common.”
The position of Agata by her attorney
[9] Agata opposes having the Application stayed, or if it is not stayed, opposes having the 2 proceedings heard at the same time or consolidated together. The Action was commenced in 2009 and a Notice of Dismissal was sent by the Registrar. A Status Hearing got it back on track but Agata says that essentially for 3 years nothing happened in the Action. She says Agostino only moved to amend his Pleadings after she commenced her Application on November 28, 2012. Her Application is to have the property sold and an accounting done by Agostino of his management of the property and his Application of the rental and laundry monies he received. She is not asking for a Trial, yet she says Agostino and Fabio are asking for a Mareva type injunction, in the order of a stay, to prevent Agata from exercising her rights as one of the co-owners of the property.
[10] The Application was to be heard in Court on June 18, 2013 and the Motion was dated June 10, 2013, one week before the original date on which the Application would be heard.
[11] Agata says there will be no inconsistent findings if the proceedings move ahead separately. There is no Trial date in the offing and the two proceedings are different, as structured. She says this Motion is without merit and is designed to delay the adjudication of the Application. She says when the property was transferred into her name and those of Agostino and Fabio on April 8, 1998, there was no Trust Agreement, no Partnership Agreement and no Co-Ownership Agreement with respect to the property. She has had no say in what is a tenants-in-common ownership or how the rental and laundry monies are used and expenses are paid. Given Agata’s concerns, she brought on her Application.
[12] Agata, objects to the method and timing of Agostino’s Motion. She says Agostino only filed one Affidavit and that was sworn March 25, 2013. No Affidavit was served and filed specifically on Agostino’s Motion to stay, consolidate or be heard together.
Analysis
[13] Agostino’s Motion is dismissed for the reasons which follow.
[14] There are always some facts in common where the same family members are involved in both proceedings. There will not, however, be witnesses in the Application, given its nature. It moves under Affidavit evidence only. The Pleadings are not the same in both proceedings. Agostino’s Action is based on what took place in a 2006 mortgage registration on title to the property. It also includes a Will challenge of Agata’s Will dated October 8, 2008, while Agata is still alive in 2013.
[15] Agata’s Application is forward looking, in asking for a sale of the property. The Pleadings are distinctly different from one another.
[16] Rule 6.01(1) of the Rules of Civil Procedure governs what may take place where 2 or more proceedings are pending in the Court. In my view, the two before me have no question of law in common. While some of the facts are common about how the property was acquired, this is not a reason to stay, consolidate or merge the two. Even if the conditions of Rule 6.01(1) were all met, I would not consolidate them, given the very different nature of the proceedings. The Court has the discretion to refuse consolidation even if all factors have been met. See: Coulls v. Pinto, 2007 CarswellOnt 7050, (S.C.J.) at para. 26. (Master Glustein)
[17] I agree with Agata that the aim of the Motion, as evidenced by its arrival at the 13th hour, is one of delay. It also is a means of attempting to not have the Application heard on its merits.
[18] The Court looks at many factors in reaching a conclusion on such Motions. The relief sought on the 2 proceedings is totally different, although an accounting would come out if a Receiver were appointed, which is part of the relief sought by Agata. I see no way a Court would make inconsistent findings in these two proceedings. The Application was heard by me before I heard this Motion and my reasons are pending in it. It has been brought on and heard in 2013 and will be determined quickly, while the Action of Agostino will continue to languish with all Pleadings to be redone if the Fresh as Amended Statement of Claim goes forward. They are at very different stages.
[19] In Marchant (Litigation Guardian of) v. R.B.C. Dominion Securities 2013 CarswellOnt 4323, 2013 ONSC 2042, Mr. Justice Goldstein, following Coulls, supra, accepted as correct the test set out by Master Glustein. In para. 11, Mr. Justice Goldstein quotes paras. 18, 19 and 20 of Coulls, noting that the Court must consider whether the balance of convenience favours such an Order, in that it could save pre-trial procedures, reduce trial days, and what is the potential for a party to be seriously inconvenienced by being required to attend a trial.
[20] In my view the balance of convenience overwhelming favours Agata. She is 93 years of age, living in a retirement home, receiving approximately $1,500 per month from the net rents of the complex, with no explanation how it calculated, and no financial statements to review each year. Agata needs some certainty. She would likely, not be able to be a witness in an Action commenced in 2009 and now looking to be substantially amended in its pleadings some 5 years later.
[21] The Motion is dismissed for the reasons I have set out herein.
[22] Agata, being the successful party is entitled to her Costs. If the parties cannot otherwise agree on Costs, they shall send me their Written Submissions on Costs no longer than 3 pages in length plus dockets plus a Bill of Costs within 30 days of this Order. Agata shall serve her Bill of Costs first on Agostino and Fabio, who shall have 10 days within which to respond, and Agata 5 days thereafter to reply, if necessary. They shall be sent to me at Judges’ Administration, 1st Floor, Court House, 361 University Avenue.
Greer J.
Released: October 9, 2013
TYPED VERSION OF
HAND-WRITTEN ENDORSEMENT
COURT FILE NO.: CV-12-468763
DATE: 20131009
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AGATA SETTECASE
Applicant
(Responding Party on the Motion)
– and –
AGOSTINO SETTECASE and
FABIO SETTECASE
Respondents
(Moving Parties on the Motion)
ENDORSEMENT
Greer J.
Released: October 9, 2013
TYPED VERSION OF
HAND-WRITTEN ENDORSEMENT