ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: Lo Faso and Ferracuti, 2015 ONSC 3141
COURT FILE NO.: CV-09-1262-00
DATE: 2015 05 15
B E T W E E N:
GAETANO LO FASO
John Lo Faso, for the Plaintiff
- and -
ANTHONY FERRACUTI, ANTHONY FERRACUTI INVESTMENTS LIMITED, DALLAS INVESTMENTS LIMITED, CRAVIT & FERRACUTI INTERIOR DESIGN INC., 518391 ONTARIO INC., DRUMLIN DEVELOPMENTS LIMITED, DAVID FERRACUTI INVESTMENTS LTD., HEATHER FERRACUTI, GERALD BOREAN, PARENTE BOREAN, and MAURO (aka Maurizio) MARCHIONI
Colby Linthwaite, for the Defendant David Ferracuti, 518391 Ontario Inc., Drumlin Developments Limited, David Ferracuti Investments Ltd., and Heather Ferracuti
HEARD: February 27 and April 15, 2015
RULING
Lemon J.
The Issue
[1] Mr. Lo Faso has moved for partial summary judgment of his claim. He seeks an order to cross-examine on affidavits filed by the Ferracuti defendants in response to that motion. Those defendants say that he is not entitled to do so.
Background
[2] This action was commenced in 2009. It relates to Mr. Lo Faso’s claim against the deceased, Anthony Ferracuti, for monies owed. That amount is now something more than $400,000 inclusive of interest. In brief, Mr. Lo Faso then also claims a fraudulent conveyance of assets to Mrs. Ferracuti. The defendants deny that claim for a variety of reasons. The details of the issues and history are set out in my ruling of April 2, 2012. Those details are not necessary for the resolution of this issue.
[3] With his claim, Mr. Lo Faso brought a motion, originally returnable May 8, 2009, for a certificate of pending litigation. In response, the Ferracuti defendants brought a motion seeking partial summary judgment to dismiss Mr. Lo Faso’s claim to an interest in the property.
[4] Prior to the hearing of those motions, Heather Ferracuti was cross- examined on four dates. David Ferracuti was cross-examined twice. The now deceased Anthony Ferracuti was cross-examined once. There were several attendances and motions to deal with productions. Heather Ferracuti and David Ferracuti made it clear that they had no knowledge of the issues or actions taken by Anthony Ferracuti. After several motions relating to production of documents, they confirmed that they had no other relevant documents.
[5] The motions were finally heard in October 2011. They were argued on the basis that there was no other evidence available for me to consider by either party.
[6] In April, 2012, I granted the defendants’ motion to partially dismiss the claim. Mr. Lo Faso appealed my decision and the Court of Appeal set aside my judgment. It said that the action should be tried.
[7] Mr. Lo Faso has now brought his own motion for partial summary judgment. In response, the Ferracuti defendants have served a responding motion record with notice that they will only be relying upon the motion records, transcripts and undertakings from the earlier motion.
[8] Mr. Lo Faso’s counsel then served notices to cross-examine David and Heather Ferracuti on those materials. Counsel for the defendants submits that Mr. Lo Faso is not entitled to cross-examine twice on the same affidavit. They assert that Mr. Lo Faso has already cross-examined on these materials in relation to the motions heard in October of 2011.
Positions of the Parties
[9] Mr. Lo Faso says that his new motion raises new issues different from the first motion and that he is entitled to cross-examine on the material filed in response. The defendants say that the issues are the same and that Mr. Lo Faso is attempting to obtain two cross-examinations on the same affidavits. Both rely on various paragraphs of Hryniak v Mauldin, 2014 SCC 7 to support their view that their position is proportional to the issues at stake.
Analysis
[10] Mr. Lo Faso confirms that he will need approximately four hours to complete the cross-examination of both of the Ferracutis. He undertakes that it will take him no more than one day to cross-examine both.
[11] In his present motion, Mr. Lo Faso seeks an order that various documents be produced to him relating to the management of the property in issue. That may or may not be ordered at the hearing of the motion. He is not entitled, however, to production of the documents before the motion is actually heard.
[12] Further, I do not foresee any necessity for undertakings or further productions arising out of the cross-examinations. All of the defendants’ documents have already been produced in the process of the earlier motion.
[13] While Mr. Lo Faso was unrepresented on the first motion, he is now represented by his brother on this motion. Mr. Lo Faso, the plaintiff, is a lawyer. From my experience with both brothers, they seem equally competent to represent the plaintiff’s interests. It seems unlikely that any overlapping issues will not have been fully canvassed in the first cross-examinations.
[14] I have serious doubts about the utility of this cross-examination. It appears to me that the significant issues between the parties in this motion have not changed from the last motion. The defendants have made it clear that their “best foot forward” is everything they filed at the first motion in October of 2011; I see no real benefit to Mr. Lo Faso for further cross-examinations.
[15] However, Mr. Lo Faso submits that there will be a difference in questioning as a result of the appeal decision and the framing of this new motion. I cannot make that determination on this record. Accordingly, I ought not dismiss cross-examination outright.
[16] Mr. Lo Faso has undertaken to carry out a focussed cross-examination for a limited period of time. While he does not wish to be curtailed by the court in how he asks his questions, his agreed upon timing will result in an efficient exercise of his right to cross-examine.
[17] If Mr. Lo Faso is correct that his cross-examination will produce new and relevant information for the judge deciding this new motion, he should not be prevented from doing so. If he is incorrect, this wasted time and cost can be dealt with by the motions judge when dealing with costs.
[18] As the case supervision judge, I believe that a focussed cross-examination, without further motions for undertakings, will produce a fair and just process to permit the motions judge to find the facts necessary to resolve the dispute. At this point, a painstaking procedure of extensive cross-examinations and disputed undertakings is of no benefit to either party.
Result
[19] Accordingly, Mr. Lo Faso shall be allowed to cross-examine Heather Ferracuti and David Ferracuti on the materials filed on the motion for summary judgment. Each cross-examination shall be no more than three hours.
[20] If undertakings are requested and agreed upon, those undertakings shall be provided within 30 days. If undertakings are requested and refused, written submissions may be made to me and I will make my determination of that record. Those combined submissions will be made within 30 days of the refusal. Alternatively, Mr. Lo Faso shall be free to argue an adverse inference from the Ferracutis’ failure to produce relevant records.
Costs
[21] As set out above, the result of the summary judgment motion will disclose who wasted time and money on this motion. Accordingly, costs of this motion are left to the motions judge.
Lemon J.
Released: May 15, 2015
CITATION: Lo Faso and Ferracuti, 2015 ONSC 3141
COURT FILE NO.: CV-09-1262-00
DATE: 2015 05 15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GAETANO LO FASO
- and –
ANTHONY FERRACUTI, ANTHONY FERRACUTI INVESTMENTS LIMITED, DALLAS INVESTMENTS LIMITED, CRAVIT & FERRACUTI INTERIOR DESIGN INC., 518391 ONTARIO INC., DRUMLIN DEVELOPMENTS LIMITED, DAVID FERRACUTI INVESTMENTS LTD., HEATHER FERRACUTI, GERALD BOREAN, PARENTE BOREAN, and MAURO (aka Maurizio) MARCHIONI
RULING
Lemon J.
Released: May 15, 2015