COURT FILE AND PARTIES

COURT FILE NO.: 09-CV-375539
Heard: December 9, 2013

SUPERIOR COURT OF JUSTICE - ONTARIO

RE:

Agostino Settecase v. Agata Settecase

BEFORE: Master Joan Haberman

COUNSEL:
Noseworthy, D. for the plaintiff
Drudi, M. for the defendant

REASONS

Master Haberman:

[1] The plaintiff (hereinafter referred to as Agostino) seeks various types of relief in this motion. All aspects of the motion, however, revolve around his central assertion that the defendant, his mother Agata Settecase (hereinafter referred to as Agata), lacked testamentary capacity in 2008 when she redrafted her will. The current will leaves Agostino with a bequest of $10,000, whereas the previous version conveyed half of Agata’s estate to him. In view of Agata’s real estate holdings, the difference, from Agostino’s perspective, is substantial.

[2] What makes this case unusual is the fact that Agata, at 94 years of age, is still very much alive and, while there is some evidence before the court to suggest that she currently suffers from Alzheimer’s decease, no evidence has been tendered to support the claim that Agata lacked the necessary capacity during the relevant time frame.

[3] It is in that context that I must decide if Agostino is entitled to the order he seeks, which is as follows:

1. Leave to deliver a fresh as amended statement of claim, which adds a defendant and several new causes of action, despite the expiry of the applicable limitation period;

2. Requiring Agata to undergo a capacity examination by a capacity assessor to determine her mental condition;

3. Leave to examine Agata’s lawyer, Romeo D’Ambrosia, regarding his preparation of the 2008 will;

4. Releasing D’Ambrosia from his duty of confidentiality or solicitor-client privilege in relation to the subject matter of the examination;

5. Declaring that the deemed undertaking rule does not apply to the evidence or the information obtained from these proceedings; and

6. An extension of the deadline by which this action must be set down for trial.

[4] With respect to item 1, one of the additional claims sought to be added is a claim for tortious interference with a right of inheritance, a novel claim in Ontario. The remainder of the substantive relief sought (items 2-5) involves a request for leave to conduct an invasive medical examination of Agata (who has not put her own state of health or mind in issue), as well as an examination of her lawyer to investigate the circumstances surrounding the execution of the 2008 will.

[5] Presumably, the request to have the deemed undertaking of confidentiality dispensed with reflects a desire to be able to add D’Ambrosia to these proceedings, as well, if and when it is determined that Agata really did lack testamentary capacity at the relevant time.

[6] In effect, Agostino seeks to amend his claim in order to plead this tort, so that he can then rely on the fresh claim as the basis for seeking the relief which would provide him with the evidence he hopes exists to substantiate the claim and to add yet another party to it.

[7] For the reasons that follow, items 1-5 of this motion are dismissed. With respect to item 6, I have extended the deadline for setting the action down for trial, as per what follows.

THE SETTECASE FAMILY

[8] As this action involves the interplay among several members of the family, both living and deceased, it is important to start with an understanding of who the players are.

[9] Agata and her late husband, Salvatore, had two sons – Agostino and Vito. Vito, the younger son, passed away in April, 2011.

[10] Vito left a son, Adam. Agostino also has a son, Fabio, who has been named by Agata as a third party in this action. Thus, Adam and Fabio are Agata’s grandsons and Adam is Agostino’s nephew.

THE ACTION AS IT CURRENTLY STANDS

[11] The action was commenced by Notice of Action, issued in March 2009, almost 5 years ago. Agostino sums up his claim as one for breach of contract and unjust enrichment relating to the discharge of a mortgage on 30 Clearview Heights, Toronto on April 1, 2006. He claims, as well, for “other services” he says he provided to his mother.

[12] With respect to the property, Agostino claims that he discharged the mortgage on property in which his mother, Agata, held a one-third interest, stating that she contributed nothing towards the discharge and that she failed to pay her 1/3 share of the costs incurred to obtain it.

[13] The statement of claim that followed was focused, consisting of only 9 paragraphs contained within 2 ½ pages. Damages of $250,000 were sought for breach of contract and unjust enrichment along with interest.

[14] Agostino claims that since its acquisition, he carried out all administrative and maintenance tasks associated with the property without payment from Agata, though he asserts that he had an agreement with his mother that she would pay him for this work. He claims he performed accounting services, bookkeeping, and general maintenance. Agostino claims his work was worth approximately $5000 per year, and that it took place over the course of 10 years.

[15] Agostino also claims that when the mortgage in favour of Scotia Bank came due on April 1, 2006, he used his own funds to clear the debt of $542,642.39, but that he was never reimbursed by Agata for her share, notwithstanding his demands. Agostino claims that this amounted to a breach of their agreement. In the alternative, he claims his mother was unjustly enriched.

[16] Although this is not clearly articulated in the pleading, it appears that Agostino seeks his mother’s 1/3 share of the mortgage discharge on Clearview (1/3 of $542,642 = $180,880) and associated costs, plus $50,000 for 10 years of administrative and maintenance fees associated with the property. The claim therefore focuses on one property only and involves claims of breach of contract, or in the alternative, unjust enrichment.

[17] It is important to note that there is no mention in this pleading of Agata’s current or previous will; of any other family-held properties; of laundry machine income or of any claims sounding in tort. The action, as it stands, is straightforward. Examinations for discovery would involve looking at the circumstances surrounding the administration of one property, only, as well as the acquisition and discharge of the mortgage in issue, and the trial would likely take only a few days.

DEFENCE and COUNTERCLAIM TO THE CURRENT PLEADING

[18] In her defence, Agata provides background regarding the acquisition of the Clearview Heights property. She states that it was purchased by her and her late husband in 1976. At that time, they took title in their names, as well as the names their two sons. In 1998, Vito conveyed his interest to his nephew, Agostino’s son, Fabio, for $398,000.

[19] At the time of the transfer to Fabio, Agata was led to believe that Agostino paid Vito for the transfer of Vito’s share to Fabio. It was later learned how Agostino and Fabio funded the acquisition. Agata alleges that Agostino increased the mortgage on the Clearview property from $211,000 to $750,000. Some of those funds were used by Agostino to pay for the purchase of Vito’s share on behalf of Fabio. It is also alleged that Agostino and Fabio then took the remainder of the funds advanced - over $300,000 - for their personal use. Agata claims that Fabio never paid for his share of the property acquired from Vito and that Agata never saw any of the money advanced with respect to the new mortgage. Fabio was 19 years of age at the time of these events.

[20] Agostino had been administering the Clearview property, along with all of Agata’s financial interests, since 1998. He took this on because of her advancing age. He filed her tax returns and made payments towards her utility bills and other household expenses. In 2003, he began giving her an amount for her personal expenses. During that time, Agata claims she was led to believe that these monies were derived from the profits generated from the Clearview property and that she was receiving her full share of the profits from that venture. Agata denies that there was ever any discussion with Agostino as to his being compensated for helping her.

[21] Agata claims that in 2005, she became aware that Agostino had taken funds from her personal bank account and that he used some of the money for his own benefit without her consent or knowledge. With Vito’s help, she went through all of her personal and business accounts pertaining to Clearview. At that time she discovered that:

o Clearview had been remortgaged;

o Fabio’s purchase of Vito’s 1/3 share of the property had been funded by the mortgage loan taken out by Agostino against the property;

o Agostino and Fabio had been using proceeds from the rents collected from Clearview to pay for Fabio’s share;

o Agostino had not properly accounted for the proceeds he had been collecting from the 25 rental units at Clearview and had taken some of these funds for himself, having paid Agata either nothing or substantially less than she was entitled to for a number of years; and

o Agostino had been withdrawing funds from Agata’s personal accounts since at least 1998 without her consent or knowledge, for his personal use.

[22] Once all of this was discovered, Agata states that Vito, acting on her behalf, approached Agostino, seeking full disclosure of the financial affairs of Clearview and the various accounts administered by him on her behalf. Agata states that Agostino provided no information and refused to release her records, all of which were in his possession. His sole act in response was to return $50,000 of the monies he had wrongfully withdrawn from her accounts, which she states has been accounted for in her counterclaim.

[23] As a result of the foregoing, Agata claims full reimbursement of misappropriated funds from her bank account, totalling in excess of $227,000, as well as full disclosure with respect to the mortgage loan advanced against Clearview without her knowledge.

[24] Agata also seeks disclosure and relief with respect to an increase in the mortgage on her property at 58 Cork. She states that the mortgage was originally for $170,000 and of that, only $10,052.87 remained as of April 2009. Monthly payments were fixed at $1,232.45 at that time. Payments were regularly made by Agostino until Agata sought disclosure. Thereafter, he refused to make these payments or any payments towards any of her bills. He also refused to hand over any of the profits generated from Clearview, the source of revenue she used to meet her daily needs.

[25] Agata caused a new power of attorney to be prepared in 2008, replacing Agostino with Vito so that Vito could more effectively pursue disclosure from Agostino.

[26] By way of counterclaim, Agata seeks:

o a full accounting;

o disgorgement of profits from Agata’s various bank accounts and the Clearview property;

o a tracing order regarding funds from the increased mortgage against Clearview;

o a tracing order regarding funds from the Cork mortgage and requiring Agostino to retire that mortgage;

o an order appointing Vito to manage Clearview, with power to collect rents, enter leases and do whatever else was required in that context;

o punitive damages of $350,000, as well as

o various alternative forms of relief.

[27] In essence, this pleading expands on the matters in issue set out by Agostino, but only insofar as explaining that Agostino never paid for either his or his son’s share of the Clearview property; that Agostino and Fabio used the funds advanced under the new mortgage for their own purposes so she was not obliged to contribute towards its discharge; and to make it clear that there was no agreement in place that Agostino would be paid for the work that he performed with respect to that property.

[28] Agata also sets out the facts to suggest that Agostino’s action of borrowing against Clearview without her knowledge was not an isolated act, as he appears to have done the same thing with respect to the Cork property.

[29] Although the counterclaim adds the issue of the Cork property mortgage, the claim is still a relatively focused one, which would not give rise to the need for a long trial slot (in excess of two weeks in duration).

THIRD PARTY ACTION

[30] Agata commenced a third party action against her grandson, Fabio, on essentially the same basis as her claim against his father, as she is not aware of who actually did what as between the two of them and believes they may have acted in concert. She claims that Fabio either knew or should have known what his father was doing and asserts that he has been unjustly enriched as a result of Agostino’s actions.

[31] That is the current state of the action. The issues are relatively straightforward and, for the most part, most of them should be easy to resolve after the accounts have been carefully reviewed. Despite that, the action has languished for almost 5 years.

THE PROPOSED PLEADING

TIMING

[32] Agata first became concerned in 2005 and that is when she and Vito began asking Agostino about the status of the Clearview mortgage and her personal funds. Despite these concerns, Agata did not act precipitously, and only revoked Agostino’s power of attorney, giving it to Vito, instead, in 2008. She apparently did not change her 2003 will until 2008, either.

[33] Vito passed away in April 2011. Adam was then given Agata’s power of attorney.

[34] Agostino changed counsel in April 2012, having done little to move this action forward, and, thereafter, he began trying to amend his pleading. The motion first appeared on my list on December 12, 2012. At that time, the plaintiff had scheduled only 1.5 hours for what was a motion in which he sought 12 different types of relief. There were also service issues that had to be resolved. I therefore adjourned the matter back to myself as a long motion. It ought to have been clear to Agostino’s counsel that this is what was going to occur and that the motion would not be heard on its merits that day.

[35] When I spoke with counsel on December 18, 2012 regarding scheduling issues, I was advised that the notice of motion was being substantially revised. We also dealt with various issues revolving around service of Agata, who is not formally represented by a litigation guardian in this action.

[36] Further attempts to demonstrate that Agata had been properly served fell flat. As a result, it was only in October 2013 that the matter was ready for scheduling.

AGATA’S APPLICATION

[37] In the interim, Agata had commenced her own application in November 2012, before the first return date of this motion, in which she sought:

• the sale of Clearview;

• the appointment of a receiver to manage the sale;

• an order requiring Agostino and Fabio to account for all revenue and expenses, including all rents and laundry revenues associated with the Clearview property, from 1998 to the present; and

• division of the proceeds of sale of the property among the registered owners.

[38] The application came before Greer J. on October 8, 2013. At that time, she made the following comments when summarizing the evidence before her:

1. Fabio, Agostino and Agata each have a 1/3 interest in the Clearview property;

2. Agata is concerned that that Agostino and Fabio have been running and controlling the property without properly accounting for rents and monies from the laundry machines;

3. Further, Agostino remains the sole signatory on banking documents with respect to these monies and he recently hired a management company without consulting Agata;

4. Agostino gives his mother $1500 per month from the net proceeds of rents received, but he has not given her any of the laundry money or accounted for it;

[39] Agostino moved to stay the application pending the resolution of his action. In the alternative, he sought a consolidation of the two proceedings or an order that they be tried one after the other. Greer J. heard that motion and dismissed it on October 9, 2013.

[40] In that decision, Greer J. notes that Agostino commenced his action in 2009 and then did nothing until the registrar served a notice of dismissal. Thereafter, Agostino sought to amend his pleading in the 2009 action, but only after Agata had initiated this application.

[41] In the end, Greer J. agreed with Agata’s submissions, to the effect that the aim of the stay motion was an attempt to keep the application from being heard on its merits. Her Honour concluded that the application should proceed, as there was no risk of inconsistent decisions as between it and the 2009 action. She was also of the view that it was important for a 93-year old woman (Agata has since turned 94) living in a retirement home and receiving $1500 per month, without any form of accounting and having received no financial statements, to obtain some certainty. The motion was therefore dismissed.

[42] Greer J. then dealt with the application on its merits, concluding that the Clearview property should be sold. She found as fact that Agata has never received a proper accounting of her interest in the income from that property, and that there was no oppression, malice or vexatious intent on her part in seeking the sale of the property. That is a finding of fact that would impact on this action.

WHAT AGOSTINO SEEKS TO ADD

[43] Agostino does not simply seek to amend his pleading. Instead, he seeks leave to deliver a Fresh as Amended Statement of Claim, to which he wishes to add his nephew, Adam Settecase, as a defendant. The proposed claim runs for 14 pages and adds two entirely new claims, one which sounds in tort, the other involving a constructive trust. New facts are alleged in support of each of these and the claim now extends well beyond Clearview and even the Cork property brought into the litigation in Agata’s defence.

[44] The first new claim is for tortious interference with Agostino’s inheritance rights, which would effectively become the centrepiece of the proposed pleading if the motion was granted. This claim is advanced against Vito’s estate, against Adam as the administrator of that estate and against Adam, personally.

[45] Agostino also seeks to add a claim against Agata in constructive trust regarding sums he claims he is owed in the form of proceeds from laundry machines from several properties over a lengthy period of time

[46] The claim for breach of contract or unjust enrichment is increased times three to $750,000. In the alternative, Agostino claims the value of half of Agata’s estate. His claim for his work at Clearview remains at $50,000. That is the only aspect of the action as it currently stands that remains as is, though Agostino now seeks a declaration that those funds are being held on his behalf under constructive trust.

[47] In the end, Agostino believes he is entitled to half of Agata’s estate, and he is prepared to seek it from her or from his nephew, Adam, however he can get it.

[48] In the proposed claim, Agostino describes himself as a teacher and he states that, until 2008, he held the power of attorney for his mother’s personal care and property. In 2008, his younger brother, Vito, took over the power of attorney. He states that he, Agata and Vito had ownership interests in the Clearview property, that Vito passed away in April 2011 and Agata now resides at Villa Columbo. On Vito’s death, the power of attorney was passed to Vitos’s son, Adam, who is a law student.

[49] On page 3 of the proposed pleading, following these introductory statements, a heading appears in bold: Tortious Interference with Inheritance Right. There are no further bold headings thereafter, such that it appears that this tort is really what the new pleading is primarily about. This is quite a shift from the action as it currently stands.

[50] Agostino tried to address the limitations issue up front, although his assertions to that effect deal only with the tort and the defendant that he seeks to add. He begins this section of his pleading by stating that, until December 2011, he was unaware that Agata had changed her will in October 2008 to limit his inheritance to a $10,000 bequest instead of half of the estate as was the case under her previous will.

[51] Agostino claims the 2008 will is invalid and he sets out 4 reasons for this, as follows:

a. Agata is illiterate and her verbal English skills are rudimentary. As the jurat of the will does not state that the will was read over to her or that it was translated verbatim, she could not have had knowledge or approved of its contents;

b. In any event, her capacity was severely limited in 2008;

c. Vito was upset with Agostino over the sale of properties in 1998 and he procured the 2008 will through tortious means; and

d. Suspicious circumstances surround the making of the 2008 will.

[52] In the alternative, Agostino claims that if the will is valid, it runs contrary to an agreement he had with his mother, to the effect that she would divide the estate equally between her two sons if Agostino performed certain duties for her. He then claims that breach of this agreement was unlikely to have happened without the intentional interference of Vito given the historic long-term testamentary plan of Agata.

[53] It appears that this allegedly historic long-term plan was only reduced to writing in 2003, as that is the date of the version of the will on which Agostino rests his claim.

Particulars

[54] The proposed claim is largely devoid of particulars. While asserting that his mother’s capacity was “severely limited” by 2008, Agostino fails to indicate how or why he arrived at this conclusion. There is no reference to Agata suffering from any particular malady at that time; no list of symptoms that he observed; no indication of a medical diagnosis. Not one even one incident is described that demonstrates why Agostino formed the view that his mother has had a severely limited capacity since 2008. This is important, in the context of evidence from her doctor that indicates that Agata only entered the nursing home in 2011.

[55] Similarly, there is a bald assertion to the effect that Vito was upset with Vito over the sale of the properties, so that motivated him to use tortious means to persuade his mother to change her will. Elsewhere, Agostino claims that Vito was forced to sell the properties due to his divorce and that he resented Agostino for this, but the two concepts – Vito’s having to sell property due to his divorce and resentment directed towards his brother- are not tied together.

[56] How or why having to sell property as a result of his matrimonial situation would lead Vito to harbour ill will towards Agostino remains a mystery, as no particulars are pleaded and no clarification provided. In that Vito is now deceased, this is not a case where a plaintiff can assert that the defendant has knowledge of what he did and why he did it. In view of the extreme nature of the assertions that Agostino makes against his brother, one would expect to see something more in the way of motivation pleaded.

[57] If Agostino had a real theory to explain Vito’s alleged motivation, it ought to have been in this pleading. Greer J. has already found as fact that Agostino never provided his mother with a real accounting regarding their jointly owned property at Clearview, a property that he managed on her behalf, in the context of a bank account over which only he had signing authority. It is certainly plausible that these issues, as well as what she raises in her defence and counterclaim in this action, are at the root of Agata’s change of heart and that none of it has anything to do with Vito. In any event, the findings made by Greer J. raise the bar for the level of particularity required from Agostino regarding Vito’s alleged motivation for inducing their mother to change her will.

[58] Finally, Vito claims that suspicious circumstances surrounded the making of the 2008 will, yet he fails to state what they entailed.

[59] In terms of why Vito’s conduct was tortious, the allegations remain vague and imprecise. It is alleged that he made false representations regarding Agostino’s management of Agata’s funds but he does not explain what he believes Vito said.

[60] Taking the proposed pleading on its face, one could easily conclude that much of what is pleaded is there to be used for the purpose of establishing relevance at examinations for discovery. Agostino does not appear to have much in the way of material facts at hand, but if he were permitted to a mend the claim as proposed, he could launch a major factual expedition in order to try to make his case.

[61] That approach should not be condoned by the court. In cases where the lack of particularity is this pronounced, the court should dismiss the motion, rather than provide the moving party with leave to try it all again.

[62] I note further that the will on which Agostino bases his claim was drafted only 5 years earlier than the 2008 version that he challenges, yet he makes no claim that Agata was of sound mind when she executed the earlier will. There is therefore no certainty that the 2003 will would be accepted as a valid expression of Agata’s final wishes.

[63] What is clear is that Agata had already found fault with Agostino’s handling of her affairs in 2005 and there is no assertion that her judgment was affected at that time. Having already lost faith in him, she apparently allowed him to remain as her power of attorney for another three years, only shifting over to Vito and changing her will in 2008.

[64] These acts are consistent with Agata’s concerns about Agostino’s management of her properties and her funds. These concerns have already been found by Greer J. to have been legitimate, in the absence of an accounting from Agostino.

Historical context

[65] The pleading takes a sharp turn to provide what Agostino claims is historical context. Agata and her late husband, Salvatore, gave a gift of $80,000 to Vito and Agostino to purchase Clearview, retaining a 1/3 interest for herself. Vito and Agostino also bought other properties together thereafter, which Agostino managed.

[66] This assertion is effectively an admission that Agostino contributed nothing towards the purchase of Clearview, as the funds he used to acquire it were gifted to him by his parents. As the Clearview profits were used by him to contribute towards his share of the purchase of three other properties (according to Agostino, the brothers pooled their profits from Clearview and bought 741 Lawrence Ave. W. in 1979; 1809 Lawrence Ave. W. in 1987 and 292 Finch Ave. W. in 1988), Agostino certainly had a lot to be grateful for, in terms of his parents helping him to accumulate wealth. This part of the story appears to have gotten lost.

[67] In 1998, Vito and his wife divorced. At that time, Vito sold his shares in all three properties to Agostino and his 1/3 interest in Clearview to Agostino’s son, Fabio. Agostino claims that Vito resented the loss of his share and that he blamed Agostino for this. Yet again, this is simply a blanket assertion devoid of particulars as to why Vito would blame him.

[68] Agostino also claims that Vito “misdescribed” the sale of the properties (to whom?) and that his lies and deceitful representations about Agostino’s management of the properties led Agata to change her power of attorney, placing Vito, and then Adam in that role, in place of Agostino. Agostino asserts that, but for Vito’s dishonesty, Agata would never have changed her will even if she had the capacity to do so in 2008 – which he denies was the case.

[69] Agostino estimates half of the estate to be worth $750,000, on the basis of the fair market value of the properties at 58 Cork (Agata’s residential home, which he says has been sold by Adam) and her 1/3 share of Clearview. He also claims that Adam made an improvident sale when he sold the Cork property for $687,000 as he believes the fair market value was actually $800,000 so his calculations are based on the higher figure. He does not say on what he bases his valuation.

[70] Agostino then claims that Vito’s conduct was tortious as he made false representations as to his management of Agata’s funds, aimed at discrediting Agostino so that Agata would disinherit him. He claims that Vito lied by telling Agata that Agostino had stolen her money and had diverted her profits by paying them to himself.

[71] This resulted in what Agostino claims was a change to a 40-year testamentary plan although Agata’s previous will was only executed in 2003.

[72] Agostino claims that all of the work he put into the properties was the result of his having been told by both of his parents that he would inherit half of their estate and that but for these representations, which he relied on, he would not have undertaken any of this.

[73] Notwithstanding the findings of Greer J. regarding Agostino’s lack of proper accounting with respect to Clearview, he maintains that Agata has always had her share as well as his of the Clearview laundry money, as well as the laundry money for Finch and two Lawrence Avenue properties, such that she has been unjustly enriched in the amount of $155,333.33.

[74] If that is, in fact, the case, it is unclear why Agostino has not provided Agata with the information and accounting she has been seeking for years, particularly when his failure to do so meant the property would have to be sold.

[75] Despite his assertion that Agata has not had testamentary capacity as least as far back as 2008, I note that among the many forms of relief sought by Agostino, he fails to seek to have her represented by a litigation guardian in this action.

[76] When the motion was first before me for scheduling, I expressed concern about Agata not having been served, but was told by Agostino’s counsel that Vito has been served as her litigation guardian. Vito had passed away before we spoke, yet nothing had been done to regularize service, nor was the pleading ever amended to reflect the fact that Agata was represented in the action by a litigation guardian. That remains the state of affairs to this day.

EVIDENCE

AGOSTINO

[77] When relying on discoverability as a basis for extending the starting point of a limitation period, a party must show that they were not aware and could not have been aware, using reasonable diligence, of the true state of affairs within the limitation period.

[78] However, despite the myriad of orders that Agostino seeks, and though he appears to be relying on discoverability with respect to his efforts to add a new party as well as a claim for tortious interference with his inheritance rights after the expiry of the applicable limitations period, he has filed no affidavit in support of his motion.

[79] At the very least, it was critical for Agostino to file some evidence indicating when he first learned of the new will and how he acquired that knowledge, as well as setting out what investigations were conducted within the limitation period with respect to his ongoing status as a beneficiary under his mother’s will.

[80] This was particularly important in the factual context of this case, where:

a. Agata had been challenging Agostino’s management of her properties since 2005 and, as time passed, she began to seek an accounting from him. Eventually, she removed Agostino as her power of attorney in 2008, thereby demonstrating her lack of confidence in his judgment, abilities or credibility as the administrator of her moneys;

b. It was Vito who replaced Agostino as their mother’s power of attorney in 2008 and who pressed him for answers regarding the accounts. Agostino claims that he was of the view at that time that Vito lied to their mother and that his actions were motivated by resentment and malice. He believed that Vito had their mother’s ear; and

c. Agostino sued his mother in 2009. She counterclaimed and added his son, Fabio as a third party to the action. The family was clearly not a harmonious one at this point. It would have been surprising if Agata had allowed the status quo to remain, in terms of her will, after being sued by her son.

[81] In the context of that factual matrix, it should not have come as a surprise to Agostino that his mother had changed her will to reduce his inheritance. Certainly, in the context of this litigation, it seems from Agata’ counterclaim that she may be of the view that Agostino has already helped himself to his inheritance prematurely. In view of the foregoing, and as Agostino was apparently aware of the contents of the 2005 will, it would have been appropriate for him to have made discrete inquiries regarding his anticipated inheritance within the statutory limitation period. There is no evidence, however, that he did so.

[82] It is also curious that Agostino only seeks to make these allegations now that Vito is dead. He can now be confident that there would no longer be a witness to refute his allegations about Vito’s role in all of this.

[83] The only evidence filed on behalf of Agostino comes through the affidavit of Liliana Ferreria, a lawyer at the firm that acts for him in this litigation. She effectively provides no factual information, but only sets out the steps that were followed and appends the various pleadings as exhibits. There is therefore no evidence from Agostino as to when he and how became aware of the 2008 will on which he bases his proposed pleading and whether he used reasonable diligence to acquire this information earlier.

ADAM SETTECASE

[84] Adam, the proposed third party, has delivered two affidavits in response to the motion. In the first, sworn on February 13, 2013, he explains that he has Agata’s power of attorney and that his grandmother was 92 at the time he swore the affidavit.

[85] He states further:

I have been advised she has developed dementia and/or Alzheimer’s decease.

[86] This document was provided to me when I was attempting to schedule this motion and was concerned about whether Agata had been properly served. I was repeatedly told that Agata was never personally served. It was my view at that time that the affidavit was not adequate as it failed to set out by whom Adam had been so advised so it was not clear that his being served in her place was adequate.

[87] Adam therefore supplemented his evidence by a supplementary affidavit dated August 13, 2013. This time, he advises that he had requested a letter from Dr. Meda, Agata’s physician and a doctor at the Villa Columbo Nursing Home where she resides. Adam adds that he was appointed her litigation guardian by power of attorney on April 30, 2011.

[88] Dr. Meda’s report is attached. It is dated July 16, 2013 and says every little. The relevant portion reads as follows:

This letter serves to confirm that the above mentioned is alive and resides at Villa Colombo Homes for the Aged since March 17, 2011. Mrs. Settecase has a diagnosis of Alzheimer’s decease.

[89] There is no indication in the letter as to when that diagnosis was made but it appears that Agata only entered into an assisted living arrangement in March 2011. There is, therefore, no indication that she was not of sound mind at the time she executed her 2008 will. Presumably, that is why her counsel seeks to have her submit to a capacity assessment and why he seeks to examine her estates counsel as a witness. Effectively, Agostino is trying to generate the evidence on which to base his case, but only after having amended his pleading to assert that his mother lacked capacity in 2008 to make a new will.

[90] That is the sum total of the evidence tendered with respect to this motion.

THE LAW, ANALYSIS and CONCLUSIONS

LEAVE TO DELIVER FRESH AS AMENDED STATEMENT of CLAIM

General comments regarding the limitation period

[91] While the court is required to amend a pleading if requested pursuant to Rule 26.01, that rule is subject to certain exceptions. One is contained within the Rule itself and comes into play if the amendments sought causes prejudice that cannot be compensates for by costs or an adjournment.

[92] The other exception that arises in this case is one derived from case law and involves the question of whether some or all of the amendments proposed are not tenable at law. As the court stated in Turner v. York University, 2011 ONSC 6151:

It makes no sense to allow an amendment that does not disclose a cause of action and lacks a legal foundation. Further, the defendant should not be faced with having to bring a motion to strike such a pleading.

[93] This is general statement has become trite law.

[94] In this case, Agostino seeks to add a new claim that sounds in tort, a claim for tortious interference with his rights of inheritance with respect to Agata’s estate. The new will that forms the basis of this claim was executed in 2008, so the action giving rise to the alleged tort had to have preceded it.

[95] In that the alleged tort involves misrepresentations by Vito with a view to inducing their mother to change her will, this is not an estates claim that would be subject to special provisions under the Trustee Act. The standard two-year limitation period applies here and that time period elapsed before the action was started.

[96] There is ample case law that suggests that the expiry of limitation periods are grounds for finding an proposed amendment to be untenable at law.

[97] In the draft pleading, Agostino claims the new will only came to his attention in 2011, such that bringing his motion to amend his pleading in 2012 was not beyond the relevant limitation period. He makes no such assertion regarding the remainder of his new claims, which involve allegations of constructive trust with respect to properties that are not even hinted at in the first action and he has also filed no evidence to support his assertion regarding when the new will came to his attention.

[98] Further, the proposed pleading seeks to add a party to the action. This request is governed by Rule 5.04(2) and unlike ordinary amendments, is not mandatory but rather, at the discretion of the court.

[99] Finally, I have already noted, the proposed pleading is lacking in particularity. It is so devoid of detail that it appears that Agostino is simply throwing out allegations and hoping he can make some of them stick, after examining Agata’s estate lawyer, obtaining a capacity examination of her and conducting broad and lengthy examinations for discovery.

Claim for tortious interference with inheritance rights

a. Is this new form of relief tenable at law?

[100] Agostino’s materials are difficult to follow. Although his claim for interference with his right of inheritance are referred to in his pleading as a tort – which would be an accurate description - in the factum, this portion of the proposed amendments is referred to as being part of the claim for breach of contract and unjust enrichment. That is not the case.

[101] As is often the case is motions, success or failure turns on the evidence that has or has not been filed. In this case, there is an obvious limitations defence to the proposed pleading.

[102] While a proposed amendment is deemed to be capable of being proven for the purpose of the motion, that does not extend to facts required to support discoverability as a way of circumventing a limitations defence. There must be actual sworn evidence (or evidence that has been affirmed) asserted in affidavit form regarding the facts relied on to support discoverability. Simply asserting it in a pleading or a factum is not adequate.

[103] In that there is no evidence to refute the expiry of the applicable limitation period, this claim does not appear to be tenable at law. On that ground alone this claim should fail. In motions of this kind, a moving party must put their evidence with respect to discoverability before the motions court. He cannot simply assume the matter will be left for trial. In this case, Agostino has given the court no reason to defer the issue by simply ignoring it.

[104] This case is distinguishable from Frohlick v, Pinkerton Canada Ltd.,[2008] 289 D.R.R. (4th) 639, where it was held that where there is factual dispute, the amendment should be allowed, subject to the defendant being able to raise a limitations defence. In the absence of any evidence at all from Agostino on this point here, there are no facts before the court on the issue, and hence, it cannot be said that there is a factual dispute.

[105] I do feel compelled to refer to but not decide other grounds that have been raised on this motion in the context of whether or not this claim is tenable at law. One involves the status of the issue in the U.S. Although there is some American case law which appears to recognize this tort in limited circumstances, the law in Canada has not gone this far.

[106] In the American cases, the thrust of the argument appears to be that once it has been shown that a testator lacked testamentary capacity at the time a new will was executed, the situation becomes frozen in time. Thus, it has been said that a party who expected to benefit under a previous will should not be required to wait until the testator’s death to pursue a claim against someone who they claim interfered with their inheritance expectation by manipulating a vulnerable testator.

[107] In view of my other findings I am not required to decide this issue but I point out that as a result of the other problems with this aspect of the proposed claim that I raise in these Reasons, this is certainly not the case for introduction of such a novel approach in Ontario. In view of Agata’s advanced age – 94 – there is nothing to be gained by dealing with Agostino’s inheritance at this time, in this way.

b. Prejudice

[108] I am also concerned about potential prejudice on these facts. While Agata has led not evidence with respect to this aspect of the Rule, she is already 94 years of age and Greer J., in related proceedings, has found that she has not been provided with an accounting or with any financial statements, at least in so far as the Clearview property, in order to be able to assess what is her due. She has a counterclaim in this action and has added Fabio as a third party. This litigation should be wrapped up during her lifetime if at all possible.

[109] As it stands, the action is a very focused one, involving limited issues. The proposed amendments would unduly expand the factual and legal complexity of this litigation. In view of both Agata’s age and the age of this action, Agostino should not be permitted to derail this proceeding by converting into something very different. I share Agata’s counsel’s concern that this is yet another attempt to delay the trial, rendered even less palatable to Agostino now as a result of Greer J’s Reasons.

[110] At this stage, Agostino suddenly wants to add what is effectively a new and completely different form of relief, not related to any facts that have been pleaded to-date. This will necessarily delay the action for years. I am of the view that, on these facts, I can take judicial notice of the fact that prejudice in the form of delay, will have a significant negative impact on this litigation if the amendments sought are permitted.

[111] There is also obvious prejudice in that Agostino claims that his late brother Vito interfered with his right of inheritance by making untrue representations regarding his handling of his mother’s accounts. This claim was only raised after Vito’s death and the only assertion supporting it is that Vito “resented” him after being forced to sell his interests in certain properties to him because of his divorce. No particulars at all are provided to explain this very unusual statement and Vito is not alive to refute any aspect of it.

[112] If the claim were permitted to proceed, there is a risk that Agata’s last will could be overturned in the absence of evidence to contradict Agostino, who can now say whatever he pleases as his brother is not alive to challenge him.

[113] On the basis of all of the foregoing, I am not prepared to grant leave to file this or any other new pleading adding to the claim as it stands. This matter should move forward to trial quickly.

Addition of Adam as a party

[114] The proposed claim against Adam is, for the most part, based on his role as executor of Vito’s estate. Vito passed away in April 2011, more than two years ago. There is no evidence that there is anything left of the estate to be distributed and Agostino has not examined Adam as a witness to the motion to ascertain that fact.

[115] In any event, I see this is a completely new and different action, quite separate from what Agostino has already raised in his current pleading.

[116] I rely on my earlier comments regarding prejudice. I note, as well, my earlier comments regarding the lack of evidence filed by Agostino to establish a basis for him to rely on discoverability as a response to a limitations defence. My Reasons in that regard apply equally to this aspect of what has been proposed. If it is too late to add this claim, there is no point in adding Adam to the claim. I am not about to allow the addition of Adam to derail the current action at this late date.

Addition of claims arising from laundry machines and other properties and reliance on constructive trust

[117] Again, Agostino is seeking to import a large swath of additional factual context and hence complexity to this litigation, which is now almost 5 years old. There is no discoverability defence raised here to explain why these issues were not pursued from the outset.

[118] I therefore find that they are untenable at law, in view of the availability of a limitation defence to bar these new claims, which are not based on facts already pleaded.

[119] The defence theory of this motion is that it has been brought to delay this action so that it does not come to trial before Agata’s death. If that occurs, Agostino could avoid having to account. Their view is that when Agostino’s application was dismissed, it thwarted his attempt to delay the action, so this is yet another ploy to achieve the same ends.

[120] In view of how this motion was presented (no evidence) and argued, I see some merit in the defendant’s theory and I share their concerns.

[121] On the basis of the foregoing I am not prepared to grant leave to Agostino to deliver a Fresh as Amended Statement of Claim in this action.

ITEMS 2-5 OF THE NOTICE OF MOTION

[122] The only evidence at all filed with respect to Agata’s capacity was filed by Adam, in the form of a doctor’s note which simply says that Agata suffers (present tense) from Alzheimer’s decease. He does not say when she was diagnosed or indicate the current nature of her symptoms but he adds that she only moved into the nursing home in 2011.

[123] Agostino has filed no evidence, though he has asserted in his factum that his mother suffers from both Alzheimer’s decease and schizophrenia. It is odd that her own physician does not mention the latter. In any event, Agata’s current diagnosis is not an indicator of whether or not she had testamentary capacity in 2008, almost 6 years ago.

[124] Agostino has filed no anecdotal evidence with respect to how his mother was coping with day to day living at that time; if she had home care on a regular basis; if he found her forgetful and if so, in what manner. He has also filed no expert evidence indicating that a capacity assessment performed now would be of any value in assessing what Agata’s capacity was in 2008.

[125] In that Agostino has filed no evidence at all to support any of these requests, all of which would involve the exercise of judicial discretions, he has left me in a position where I am unable to consider them.

[126] The motion is therefore dismissed as regards these items.

EXTENSION OF TIME

[127] On June 11, 2011, a Status Notice: Action not on a Trial List was issued by the court with respect to this action. In the ordinary course, this action ought to have been dismissed more than two years ago as it has not been set down for trial nor has Agostino sought a Status Hearing.

[128] This motion, however, initially launched in August 2012, and pursuant to which an extension was sought, served to buy Agostino time as, generally, the registrar will not issue a Rule 48.14 dismissal order if there is a motion pending. .

[129] I note, however, that Agostino has filed absolutely no evidence at all to support the request for an extension. There is no indication as to what was done or why nothing was done after receipt of Agata’s statement of defence and counterclaim, which were delivered in June 2009.

[130] The only reference to this aspect of the relief claimed is in Agostino’s factum. Assertions of a factual nature in a factum cannot replace evidence as they are unsworn. There is therefore no evidence before this court explaining the delay.

[131] There is also no support for the assertion at paragraphs 12 and 14 of the factum, to the effect that the status notice located in the court file was not signed and that Agostino (there is no mention of his former counsel) was not served with it. Unless information of that nature comes before the court in sworn form, it cannot be considered as factual background on which a court can grant relief.

[132] Rather than taking Agostino by surprise, I am prepared to grant an extension of one year, only at this time, which should give the parties time to complete documentary production, examinations for discovery and mediation before setting the action down for trial, all on the basis as it stands. Any further extension will have to be sought on motion with a proper evidentiary record in view of the age of action.

[133] Accordingly, this action shall be set down for trial no later than one year from today, failing which it will be dismissed with costs.

[134] If the parties are unable to agree as to costs, I can be spoken to within the next 30 days.

Master Joan Haberman

Released: January 17, 2014