COURT FILE NO.: CV-13-479453
DATE: 20140730
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Fred Disera (plaintiff) v. Joseph Bernardi and Ida Bernardi (defendants)
BEFORE: K.L. Campbell J.
COUNSEL: Richard E. Anka, Q.C., for the plaintiff, Fred Disera
Craig Losell, for the defendant, Ida Bernardi
Patrick T. Summers, for the defendant, Joseph Bernardi
HEARD: July 17, 2014
REASONS FOR DECISION
A. Overview
[1] The plaintiff, Fred Disera, has commenced an action against the two defendants, Joseph Bernardi and Ida Bernardi (both personally and in her capacity as the executrix of the estate of Anna Disera). The plaintiff claims that the defendants owe him a debt of $142,307.21. The plaintiff asserts that he loaned this sum of money to Joseph Bernardi over a period of years, on the understanding that it would be repaid when he received his inheritance out of the estate of Anna Disera. The plaintiff contends that Ida Bernardi guaranteed repayment of the loan from the estate. The estate of Anna Disera has now been settled and yet the loan has not been repaid. The defendants have both brought a summary judgment motions asking that the action be dismissed. They both claim that this outstanding debt was settled and released when the estate of Anna Disera was finally settled after years of protracted litigation.
B. The Factual Background
[2] Fred Disera and Ida Bernardi are siblings. Joseph Bernardi is Ida Bernardi’s son. Fred Disera is Joseph Bernardi’s uncle. Joseph Bernardi is Fred Disera’s nephew.
[3] Unfortunately, Fred Disera and Ida Bernardi have been, together with other family members, engaged in litigation for many years. They have been fighting about money from the estates of their deceased parents.
[4] The trouble began when Raffaele Disera, the patriarch of the Disera clan, died in May of 1989 and left the vast majority of his very substantial estate, comprised primarily of real estate, and valued at approximately $28.5 million, to his son Fred Disera and his three children. The matriarch of the clan, Anna Disera, was left a residence and a comparatively modest annual stipend of $25,000 a year. The other children of Raffaele Disera, including Ida Bernardi, received nothing.
[5] Anna Disera was unhappy about the way she was treated in her late husband’s will. In the result, the executors of the estate of Raffaele Disera, including Fred Disera, magnanimously agreed that the estate of Anna Disera would be given a 50% interest in a piece of real estate valued at approximately $24 million.
[6] Anna Disera died in February of 1992, approximately three years after her husband. The other Disera children, including Ida Bernardi, were treated more equitably in the will left by Anna Disera. More particularly, Ida Bernardi was entitled to a 30% share of her estate. In addition, financial provision was made in the will for her grandchildren, including Joseph Bernardi, who was entitled to a 5% share of her estate (approximately $500,000).
[7] For a wide variety of reasons, the estates of Raffaele and Anna Disera were not easily managed. Rather, between 2002 and 2012, the two estates were locked in litigation over their administration. Finally, on December 20, 2012, after a decade of protracted and costly litigation, the estates of Raffaele and Anna Disera were finally settled. On that date, Lauwers J., as he then was, approved minutes of settlement reached by the parties, and dismissed all of the outstanding actions in relation to those estates. This court order required, amongst other things, that $9,184,673.05 be paid to the estate of Anna Disera. The parties, including Fred Disera, all executed mutual releases in furtherance of their all-inclusive settlement of disputes.
[8] Less than six months later, on May 1, 2013, Fred Disera commenced this action against the defendants, Joseph and Ida Bernardi. Initially, he claimed that they owed him the sum of $148,307.01. The plaintiff now agrees, however, that the total size of the debt owing is actually $6,000 less that the amount originally claimed. Accordingly, he now seeks $142,307.21 in this action.
[9] In this action, Fred Disera alleges that, between February of 1995 and July of 1999, when his nephew, Joseph Bernardi, was having financial difficulties, he agreed to loan his nephew the necessary funds to see him through his troubled time, on the understanding that he would eventually be repaid out of his nephew’s inheritance, which was anticipated upon the death of his grandmother, Anna Disera. The plaintiff contends that his nephew agreed to this interest-free repayment plan.
[10] In this action the plaintiff also contends that, after he had already loaned his nephew approximately $53,000, his sister agreed that, as the executrix of their mother’s estate, she would ensure that the plaintiff was repaid from the inheritance that would otherwise have been owed to Joseph Bernardi. After receiving this trusted verbal assurance from his sister, the plaintiff continued to periodically loan his nephew money.
[11] When the estate of Anna Disera was finally settled, and the plaintiff was not repaid this debt, either by Ida Bernardi or Joseph Bernardi, the plaintiff started this action.
C. Analysis
1. Introduction
[12] As I have indicated, the two defendants have brought summary judgment motions, pursuant to rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, arguing that the action against them should be dismissed or stayed. The defendants contend that the mutual release executed by the plaintiff, in furtherance of the settlement of the long-outstanding litigation in connection with the estates of Raffaele and Anna Disera, legally prevents the plaintiff from now advancing this new claim in relation to this old debt.
[13] I accept this argument in relation to Ida Bernardi, but not in relation to Joseph Bernardi. Accordingly, for the following reasons: (1) the summary judgment motion brought by the defendant Ida Bernardi is granted and the action brought by the plaintiff against her (both personally and in her capacity of executrix of the estate of Anna Disera) is dismissed; and (2) the summary judgment motion brought by the defendant Joseph Bernardi is dismissed. In my view, there remains a genuine issue to be decided in the action between Fred Disera and Joseph Bernardi. See: Hryniak v. Mauldin, 2014 SCC 7.
2. The Plaintiff’s Loan to His Nephew - $142,307.21
[14] The evidence on this motion establishes with clarity that, between February of 1995 and July of 1999, the plaintiff loaned his nephew, Joseph Bernardi, money on nearly a monthly basis. Over that period of close to 4½ years, the plaintiff lent his nephew a total of $142,307.21. This money was loaned to Mr. Bernardi on the understanding that he would eventually repay this debt from his anticipated inheritance from his grandmother’s estate. Indeed, in his written argument on this motion, counsel for Mr. Bernardi conceded that “[f]or the purposes of the motion for summary judgment against the plaintiff only, Joe Bernardi does not deny that funds were given to him as pleaded in [Fred] Disera’s Statement of Claim, or that [Fred] Disera personally provided those funds to him.”
3. Ida Bernardi – Executrix and Guarantor of the Loan
[15] In his statement of claim, the plaintiff contends that, in order to “secure the loan” to his nephew, he spoke to Ida Bernardi. As I have indicated, Ida Bernardi is Joseph Bernardi’s mother. She was also the executrix of the estate of Anna Disera. According to the plaintiff, he contacted Ida Bernardi “to ensure that she would deduct the amount borrowed by Joseph from Joseph’s inheritance” under the Anna Disera estate. The plaintiff contends that “Ida promised and agreed that once the litigation between the two estates was concluded and settled, the loan would be deducted and paid out of Joseph’s inheritance” under the estate of Anna Disera. It was only upon this condition that the plaintiff continued to regularly advance monies to his nephew.
[16] Ida Bernardi denies ever providing any such agreement or guarantee to the plaintiff. However, there is some evidence in support of this claim by the plaintiff.
[17] On February 2, 1996, after he had already advanced approximately $53,000 to his nephew, the plaintiff wrote to his nephew about the ever-increasing loan, and expressed the position that he wanted some promise from Ida Bernardi that the loan would be repaid. A number of suggested options were raised as means by which the loan might be secured. Significantly, at the bottom of the second page of this two-page letter is the following handwritten note, apparently made by the plaintiff, dated February 12, 1996: “Talked to Ida in Florida on repayment weeks later, agreed on terms, to be deducted when final payments to the ADE [Anna Disera Estate] is made.”[^1] If true, this note suggests that Ida Bernardi orally agreed that the plaintiff’s loan to her son would be repaid by being deducted from his share of the Anna Disera estate when the final payments were made from the estate. This is confirmed in the affidavit of Fred Disera, in which he laments his failure to appropriately document the details of his security for the loan, but asserts that he had his sister’s trusted “word” that “the loan would be repaid out of Joseph’s share of the ADE estate when distributed.”
4. The Loan Was a Controversial Topic During the Estate Negotiations
[18] During the course of the settlement discussions that took place between the parties during the protracted estate litigation, the subject of the plaintiff’s outstanding loan to his nephew (and its repayment) emerged as a point of controversy. The loan was not a point of legal contention in the litigation itself, as it was not mentioned in any of the pleadings in the actions that were then pending. However, it was a subject of controversy and discussion between the parties.
[19] The issue arose in the estate litigation, it appears, because the position consistently advanced by the estate of Raffaele Disera was that the funds advanced by the plaintiff in his loan to his nephew were “disbursements” that had to be deducted from the amount owed to the estate of Anna Disera. This is clear from the fact that, in the periodic summaries provided by the estate of Raffaele Disera outlining the amounts due to the estate of Anna Disera, the amounts that were advanced by the plaintiff to his nephew were always inserted as annual “disbursements” to be credited to the estate of Raffaele Disera (i.e. amounts deducted from the funds that were otherwise owed to the estate of Anna Disera). These accounting summaries prepared for the estate of Raffaele Disera on May 20, 2004, May 20, 2007 and March 30, 2011, all showed these same annual “disbursements” to Joseph Bernardi, totaling $134,528.26.[^2]
[20] The plaintiff was the principal executor of the estate of Raffaele Disera, and was the executor who was primarily responsible for the accounting and litigation regarding the estate of Raffaele Disera. Accordingly, it is perhaps not surprising that these accounting summaries reflected the plaintiff’s position that the monies he loaned to his nephew had to be repaid from the estate of Anna Disera. Nor is it surprising that the plaintiff’s position regarding the loan continued to be reflected in the position of the estate of Raffaele Disera as the settlement discussions in the estate litigation progressed.
[21] Significantly, when Lauwers J., in his trial management role over the estate litigation, required the parties to file statements outlining the remaining areas of disagreement between them, this outstanding debt that Joseph Bernardi owed to Fred Disera was listed as one of eight points of ongoing dispute. More particularly:
• In the “statement of remaining issues in dispute” filed by the estate of Raffaele Disera in November of 2011, this debt was described as totaling $134,528.26. This was the same total reflected in all of the earlier accounting summaries. Further, it was mentioned that Ida Bernardi was “attempting to resile from her agreement” to guarantee the loan that the plaintiff had made to her son.
• In the “case management memorandum” filed by the estate of Anna Disera in November of 2011, over which Ida Bernardi was an executor, this debt of $134,528.26 was described as a personal loan that Fred Disera made to Joseph Bernardi that had nothing to do with the estate of Anna Disera. More specifically, this document indicated that: “[t]he estate of Raffaele Disera should seek repayment from Joseph Bernardi not the estate of Anna Disera.”
5. The Final All-Inclusive Settlement of the Estate Litigation
[22] Ultimately, on May 25, 2012, the parties reached what the plaintiff has described as an “all-inclusive settlement” of the estate litigation, by executing minutes of settlement.
[23] The plaintiff provided a lengthy affidavit in support of the motion seeking court approval of the minutes of settlement agreed upon by the parties. In this affidavit, the plaintiff carefully summarized aspects of the decade of litigation involving the estates of Raffaele and Anna Disera. In particular, the plaintiff outlined the issues that continued to divide the two estates and the risks of a trial. Indeed, the plaintiff attached, as an exhibit to his affidavit, a copy of the “statement of remaining issues” filed by the estate of Raffaele Disera in November of 2011, which specifically mentioned the debt of $134,528.26 owed by Joseph Bernardi and which was allegedly guaranteed by Ida Bernardi.
[24] In his supporting affidavit, the plaintiff also discussed the “enormous” financial cost of the 10 years of litigation involving the estates of Raffaele and Anna Disera, outlined the enormous “emotional toll” that the litigation has wrought on the parties, and how it had “splintered [his] family” and “estranged” some of its members. Indeed, the plaintiff expressed the view that “No good can come from endless litigation.” In his affidavit, the plaintiff also expressed the hope that the court would approve the “hard fought settlement reached between two estates in the context of multifaceted family litigation,” and not second-guess the “expertise of the estate trustees” who had the benefit of legal and accounting advice, as well as the assistance of a mediator, “in hammering out an all-inclusive settlement regarding a 20 year old estate.”
[25] Before the hearing of the motion seeking court approval of the settlement, one remaining piece of outstanding estate litigation, brought by another member of the Disera family, was also settled. Eventually, on November 7, 2012 new minutes of settlement were executed which amended and incorporated the minutes of settlement dated May 25, 2012. With that step, the parties finally reached a true “all-inclusive” settlement of the two estates. These minutes of settlement were signed by Fred Disera, both in his personal capacity and on behalf of the estate of Raffaele Disera, and by Ida Bernardi, both in her personal capacity and on behalf of the estate of Anna Disera. Joseph Bernardi was not a named party in any of the estate litigation and did not sign either of the minutes of settlement.
[26] As I have already indicated, on December 20, 2012, Lauwers J. signed an order effectively approving the settlement that had been reached by the parties.
6. The Mutual Release Signed by the Plaintiff
[27] The minutes of settlement indicated that the parties agreed to execute and exchange “comprehensive mutual releases,” in an attached form, to release, amongst others, the estate of Anna Disera and the trustees of her estate, which included Ida Bernardi. On December 28, 2012, the plaintiff executed this mutual release.
[28] This mutual release was drafted so as to provide very broad protection against potential future claims. By its terms, this document released the parties from “all actions, causes of actions, [and] claims” including any “debts, duties, contracts, accounts” or other liabilities “which the Parties ever had, now have or hereinafter can, shall or may have for or by reason of any cause,” including any such claim arising from or relating to the administration of either estate, and “the facts that gave rise to the claims, or claims that could have been reasonably raised. This document also indicated that, without limiting the generality of the broad terms of this mutual release, the intent of the document was to “conclude all issues” arising from the estate litigation and to “release the Parties from any claims whatsoever and howsoever arising” from those matters. The document further indicated that it was intended to cover “not only all known injuries, losses and damages” but also “injuries, loses and damages not now known or anticipated, but which may later develop or be discovered.”
7. The Generally Applicable Legal Principles
[29] The mutual release signed by the parties as part of their all-inclusive settlement of the prolonged estate litigation is a valid contract. Accordingly, like any other contract, the parties are bound by the terms to which they have agreed. A valid mutual release typically releases the other parties to the agreement from any subsequent claims related to the claims that have been released in exchange for valuable consideration. Such releases are executed by the parties when litigation claims are settled in order to give the parties peace from potential liability from the claims and to avoid any further proceedings that might flow from the claims released. Such releases operate as a legal bar to the pursuit of any subsequent claim that purports to raise an issue that has already been extinguished by the release. See: Browne v. McNeilly, [2001] O.J. No. 970 (S.C.J.), at paras. 9, 13; Sinclair-Cockburn Insurance Brokers Ltd. v. Richards (2002), 2002 45031 (ON CA), 61 O.R. (3d) 105, [2002] O.J. No. 3288 (C.A.), at paras. 14-16; Marjadsingh v. Walia, 2012 ONSC 6659, [2012] O.J. No. 5788, at paras. 16-18.
8. The Plaintiff’s Claims Against Ida Bernardi Were Expressly Released
[30] In my view, applying these general contract principles to the circumstances of the present case leads me to conclude that the plaintiff has clearly and unequivocally released Ida Bernardi from any potential claim he may have had against her in connection with the loans that he made to her son.
[31] The plaintiff has consistently maintained, for many years, that his sister had orally promised to ensure that his loan to her son was to be repaid to the plaintiff out of her son’s share of the estate of Anna Disera. This was not a personal guarantee on the part of Ida Bernardi, but an undertaking on her part as to how the estate of Anna Disera would be administered when it finally came to the distribution of funds to her son. Mrs. Bernardi was, of course, in a position to make such a promise as she was an executrix of her mother’s estate. The plaintiff’s consistency in this allegation is seen in the following:
• In the handwritten notes on the letter the plaintiff sent to his nephew in February of 1996, the plaintiff apparently wrote that his sister had agreed that the repayment of the loan was “to be deducted when final payments to the ADE [Anna Disera Estate] is made.”
• In discussing this oral agreement in his affidavit, the plaintiff asserted that he took his sister at her word that his loan to her son “would be repaid out of Joseph’s share of the ADE estate when distributed.”
• In all of the accounting summaries that were prepared for the estate of Raffaele Disera between May of 2004 and March 30, 2011, the plaintiff’s loans to Joseph Bernardi were described as annual “disbursements” that were to be deducted from the amount owed the estate of Anna Disera.
• In his statement of claim, the plaintiff alleged that Ida Bernardi orally “promised and agreed that once the litigation between the two estates was concluded and settled, [his] loan [to Joseph Bernardi] would be deducted and paid out of Joseph’s inheritance” under the estate of Anna Disera.
[32] Further, this consistent assertion by the plaintiff, which he has made both in his personal capacity and as an executor of the estate of Raffaele Disera, was clearly an issue of dispute in the estate litigation at the time it was finally settled. The subject of the $134,528.26 in loans or “disbursements” to Joseph Bernardi was one of the items listed by both estates in their respective statements of the “remaining issues in dispute.”
[33] However, on at least one occasion, the suggestion has been made that Ida Bernardi was personally responsible for the plaintiff’s loan to her son. More particularly, in the “statement of remaining issues in dispute” prepared by the estate of Raffaele Disera in November of 2011, the allegation was that Ida Bernardi had “agreed that if the loan was not repaid, the RD [Raffaele Disera] Estate could take it from her share of the amount ultimately owing to AD [Anna Disera] Estate. In other words, if Joseph Bernardi did not repay the loan to the plaintiff, it was the responsibility of Ida Bernardi to repay the loan out of her own share of estate of Anna Disera. It was also suggested in this “statement of remaining issues in dispute” that Ida Bernardi was “now attempting to resile from her agreement.” While this allegation was also connected to the administration of the estate of Anna Disera, this allegation was that Ida Bernardi was personally responsible for repayment of the plaintiff’s loan to her son.
[34] In the result, I am driven to conclude that when the estate litigation was finally settled, and the mutual releases were exchanged by the parties, the plaintiff’s debt claim against Ida Bernardi – whether based upon her failure to repay her son’s loan personally or through the estate of Anna Disera – was wholly released. The release signed by the plaintiff expressly released the other parties, including Mrs. Bernardi, from all claims, including any “debts” which the other parties ever had, including any claim relating to the administration of the estate of Anna Disera, and the facts that gave rise to the claims, or claims that could have been reasonably raised. More particularly, the release signed by the plaintiff expressly indicated that it was intended to “conclude all issues” arising from the estate litigation and to “release the Parties from any claims whatsoever and howsoever arising” from those matters. This broadly drafted release was certainly designed to resolve all matters raised in the estate litigation, and any and all other known disputes and issues in contemplation of the parties at the time of the settlement and the execution of the mutual releases. See: London & South Western Railway Co. (Directors etc.) v. Blackmore (1870), L.R. 4 H.L. 610, at p. 623; Phillips v. R.D. Realty Limited (1995), 1995 7114 (ON SC), 25 O.R. (3d) 351, [1995] O.J. No. 2746, affirmed: (1996), 1996 10251 (ON CA), 30 O.R. (3d) 158 (C.A.); Rinaldo v. Rosenfeld, [1999] O.J. No. 4665 (S.C.J.), at paras. 79-85.
[35] If the plaintiff, in the circumstances of the present case, had wanted to preserve his legal right to pursue his claim against Ida Bernardi in connection with his loan to her son, the plaintiff should have sought to expressly preserve that claim by causing some exception clause to be drafted and inserted within the otherwise broad and expansive terms of the release he executed. See: Keats v. Arditti, 2000 46930 (NB KB), [2000] N.B.J. No. 498 (Q.B.), at para. 104; 1493321 Ontario Ltd. v. Braemar International College Inc. (2009) CarswellOnt 3505 (S.C.J.), at para. 23, affirmed: 2009 ONCA 488; Arcand v. Abiwyn Co-Operative Inc., [2010] F.C.J. No. 630, at para. 40. Fred Disera was represented by counsel at the time, and was provided with legal advice in negotiating the release that he ultimately executed in this matter. Parties cannot be permitted to “play fast and loose with settlements” they have made, and broad releases they have executed, with the assistance of legal advice, and in full knowledge of all of the relevant facts. See: Hoyer v. Toronto Transportation Commission, [1952] O.W.N. 261 (H.C.J.); Taske Technology Inc. v. PrairieFrye Software Inc., 2004 66295 (ON SC), [2004] O.J. No. 6019 (S.C.J.), at paras. 17-18.
9. Genuine Issue Remains Concerning the Plaintiff’s Claim Against Joseph Bernardi
[36] In my view, applying these same general contract principles to the circumstances of the present case leads me to also conclude that there remains a genuine issue as to whether the plaintiff has relinquished and released his debt claim against the other defendant, Joseph Bernardi.
[37] As the above analysis reveals, the discussion of the plaintiff’s claim regarding the loan he made to Joseph Bernardi, in the context of the ongoing negotiations in the estate litigation, was about whether Ida Bernardi, by means of her position as executrix of the Anne Disera estate, was liable to account for the “disbursements” that were made to Joseph Bernardi. As I have indicated, Ida Bernardi denied having any obligations in this regard (either personally or as the Executrix). The estate of Anne Disera advanced a similar position, namely, that it was not in any way responsible for the repayment of the loan made to Joseph Bernardi. But there was never any suggestion, by any of the parties in the estate litigation, that Joseph Bernardi did not himself owe the plaintiff the debt claimed regarding the loan, or that the plaintiff was not at liberty to seek the repayment of those loaned funds from Joseph Bernardi. Indeed, quite the opposite. The plaintiff was effectively encouraged to seek repayment directly from Joseph Bernardi. More particularly, in the Case Management Memorandum prepared by the estate of Anne Disera in November of 2011, the following position was advanced concerning this loan:
The loans made by Fred Disera or the Estate of Raffael Disera to Joseph Bernardi were personal loans made without the approval or consent of the Anna Disera Trustees. The Estate of Raffaele Disera should seek repayment from Joseph Bernardi not the Estate of Anna Disera.
[emphasis added]
[38] No doubt there are circumstances where a non-party may indirectly obtain the benefits of a mutual release executed by the parties of a settlement. But, in order for such benefits to be extended to non-parties, one of the legal pre-conditions that must be established is that it was the intention of the parties that the benefits of the contract be unconditionally extended to the non-party who seeks to rely upon the contract. See: London Drugs Ltd. v. Kuehne & Nagal International Ltd., 1992 41 (SCC), [1992] 3 S.C.R. 299; Fraser River Pile & Dredge Ltd. v. Can-Drive Services Ltd., 1999 654 (SCC), [1999] 3 S.C.R. 108, at paras. 32-33; Radvar v. Canada (Attorney General), [2005] O.J. No. 5239, at paras. 52-57; Marble v. Saskatchewan, 2003 SKQB 282, 236 Sask.R. 14, at paras. 38-43; Orlandello v. Nova Scotia, 2005 NSCA 98, 234 N.S.R. (2d) 247, at paras. 30-32.
[39] Accordingly, the question is whether the parties to the mutual release intended, by their execution of the mutual release, to extinguish the debt that Joseph Bernardi owed to Fred Disera. Considering all of the evidence filed on the summary judgment motion, and particularly in light of the provisions of the mutual release signed by the parties, I am unable to conclude that Joseph Bernardi has established that it was the intention of the parties, including Fred Disera, that the benefits of the mutual release were to be extended to Mr. Bernardi as a bar to the plaintiff’s claim for repayment of his loan. In reaching this conclusion, there are a number of important considerations:
• The plaintiff, through his efforts as an executor of the estate of Raffaele Disera, continued to assert, at all times, that the money that was loaned to Mr. Bernardi was a debt that had to be repaid.
• The estate of Anna Disera, and indirectly Ida Bernardi who was an executrix of that estate, did not deny the existence of the “personal loan” that had been made to Joseph Bernardi, but asserted only that any claim for repayment of this loan had to be made directly to Joseph Bernardi (not the estate of Anna Disera).
• Joseph Bernardi was not a party to the ongoing estate litigation, and his repayment of his personal loan to the plaintiff was not the subject of direct discussion between the parties in their settlement discussions in connection with the estate litigation.
• The terms of the mutual release are limited to the defined “Parties” to the agreement. More particularly, the mutual release states that “the Parties do hereby mutually release, remise and forever discharge each other” from all claims “which the Parties ever had, now have, or hereinafter can, shall or may have” arising from or relating to the administration of the estates of Raffaele or Anna Disera. The mutual release also states that the intent of the release is to “release the Parties from any claims whatsoever” arising from these matters. Joseph Bernardi was not a party to the mutual release.
• To the extent that Joseph Bernardi might be viewed as a party to the mutual release by virtue of the fact that the term “Parties” was expressed to include “beneficiaries,” and he was a beneficiary of the estate of Anna Disera, his personal debt to the plaintiff is still beyond the scope of the mutual release, as this debt was not arising from or relating to the administration of the estate of Anna Disera, nor could that personal debt have been reasonably raised in the estate litigation.
[40] This is not a case like Zelsman v. Meridian Credit Union, 2011 ONSC 1680, at paras. 41-44, relied upon by counsel for Mr. Bernardi, where the clear terms of the release addressed the interests of a non-party, and expressly released the named non-party from any and all future claims.
[41] Nor is this a case where there is any realistic concern over potential “double recovery” on the part of the plaintiff. While the plaintiff sought to have his outstanding loan to Joseph Bernardi paid by Ida Bernardi from the estate of Anna Disera, that claim was unequivocally rebuffed with the suggestion that the repayment of this personal loan to Joseph Bernardi should be sought directly from Joseph Bernardi. In my view, contrary to the submissions of counsel for Mr. Bernardi, the only risk of any kind of potential “double recovery” in the circumstances of this case appears to be in relation to Joseph Bernardi. The evidence on this motion seems clear that the plaintiff advanced Mr. Bernardi a total of $142,307.21, on the express expectation that this loan would be repaid out of the inheritance that Joseph Bernardi received from the estate of Anna Disera. However, while the estate of Anna Disera has now been settled, Joseph Bernardi has not yet taken any steps to begin to repay the plaintiff for his loan. If this debt was now extinguished by means of the execution of the mutual release by the plaintiff, this would result in Joseph Bernardi receiving a “windfall” gain of $142,307.21. He would have received both the loan from the plaintiff, and his anticipated inheritance (from which he was to repay the loan) – but he be under no legal obligation to repay the loan. Based upon the evidence on this motion, it may be confidently expressed that it was certainly not the subjective intention of Fred Disera, in executing the mutual release, to extinguish his nephew’s debt. Nor is such an intention reflected in the specific terms of the mutual release.
[42] In summary, I am not satisfied, based on the evidence adduced on the summary judgment motion, that the plaintiff’s claim, that Mr. Bernardi owes him a debt of $142,307.21, has been extinguished by the mutual release. That is a genuine issue that remains outstanding between the parties.
D. Conclusion
[43] In the result, the summary judgment motion by the defendant Ida Bernardi is granted, and the plaintiff’s pending action against her is dismissed in its entirety. However, as there remains a genuine issue to be litigated concerning the plaintiff’s claim against the defendant Joseph Bernardi, the summary judgment motion by Joseph Bernardi is dismissed. An order shall issue accordingly.
E. Post-Script Regarding Request to Adduce Further Evidence
[44] Following the hearing of the summary judgment motions, correspondence was sent to me in relation to a request by counsel for the plaintiff to introduce further evidence on one particular factual issue. Counsel for the plaintiff apparently construed one of my comments during the course of the argument of the motions as an invitation to gather and provide further evidence on this issue. Counsel for the defendants are both opposed to the plaintiff now being granted leave to introduce further evidence on the motions.
[45] For two reasons I decline leave to permit the plaintiff to now lead further evidence on this particular factual issue. First, my comment during the argument of the motions was not an invitation to counsel for the plaintiff to gather and submit further evidence on the motion. Rather, it was simply an observation on the probative value of the evidence then being relied upon by counsel for the plaintiff. Second, and more importantly, the particular factual issue to which the further evidence is said to relate, is of no consequence to my analysis of the important issues that have led me to the conclusions I have already reached.
F. Costs Submissions
[46] If the parties cannot agree on the issue of costs, they may serve and file their respective costs outlines, bills of costs and written submissions in accordance with the following timetable.
[47] Counsel for Ida Bernardi has until August 13, 2014 to file his costs outline, bill of costs and written submissions. Counsel for Fred Disera has until August 20, 2014 to file his costs outline, and written submissions. Counsel for Joseph Bernardi has until August 27, 2014 to file his costs outline and written submissions. These submissions shall be no longer than five pages each, excluding the costs outlines, bills of costs and copies of any authorities that the parties may wish to provide.
[48] To the extent that any reply submissions may be necessary, such reply submissions shall be no longer than two pages, and shall be filed by September 3, 2014.
Kenneth L. Campbell J.
Released: July 30, 2014
[^1]: Oddly, on another copy of this same two page letter, apparently produced by the plaintiff during the course of the estate litigation sometime after October 2, 2007, these handwritten notes are absent. It is difficult to understand why, if those important notes were written on the letter by the plaintiff in February of 1996, that they would not be on the copy of the letter the plaintiff produced after October 2, 2007.
[^2]: This amount of $134,528.26 is, of course, different than the now claimed amount of $142,307.21, but the parties are all agreed that both of these amounts are in relation to the same on-going loan made by the plaintiff to his nephew.