SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-14-512088
DATE: 20150710
RE: THE GUARANTEE COMPANY OF NORTH AMERICA, Plaintiff
AND:
CIRO EXCAVATING & GRADING LTD., V.B. TRUCKING AND CONTRACTING INC., SOIL LOGISTICS ENVIRONMENTAL INC., STELLA BARILLARI and THE ESTATE OF CIRO BARILLARI, Defendants
BEFORE: K. HOOD J.
COUNSEL: Richard Yehia, for the Plaintiff
Daniel Chitiz and Alastair J. McNish, for the Defendants
HEARD: June 19, 2015
ENDORSEMENT
[1] The plaintiff has in its possession an indemnity agreement apparently executed on September 2, 2005 by the defendant Stella Barillari (Stella). Under the agreement Stella agrees to indemnify the plaintiff for any payment made by it under any bonds issued by it on behalf of Ciro Excavating & Grading Ltd., V.B. Trucking and Contracting Inc., and Soil Logistics Environmental Inc. These companies also agreed to indemnify the plaintiff also apparently under the signature of Stella on September 2, 2005, as president of each company.
[2] In 2011 and 2012 the plaintiff issued three bonds on behalf of Ciro Excavating for approximately $1.3 million in total. In 2014 the plaintiff, in response to three lien claims against Ciro Excavating, paid out a total of $1,170,312.47. Stella takes no issue that this amount was in fact paid out.
[3] The plaintiff has sued the three companies and Stella, along with the estate of her late husband, Ciro Barillari (Ciro), for its losses under the lien bonds and for breach of trust.
[4] The plaintiff’s motion is for summary judgment against Stella for the amount of the payments made for the lien claims, based on the indemnity agreement. Stella asks not only that this motion be dismissed but also for summary judgment on her own cross-motion, asking that the plaintiff’s claim on the indemnity agreement be dismissed. Both the plaintiff and Stella argue that I am entitled, on the evidence filed, to grant summary judgment. The parties agree that I do not need to use any of the new fact-finding tools under r. 20 of the Rules of Civil Procedure in order to decide either motion. The parties also agree that the evidence at trial would be no different or better than what is now before me.
[5] There are two issues to determine:
i) whether Stella signed the indemnity agreement, and
ii) if she did, whether she can make out a defence of non est factum so that she is not bound by it.
[6] I am satisfied on the evidence before me, which, as I have said, both parties acknowledge is all the evidence there ever will be (whether on this motion or at trial), that she did sign the agreement. I am also satisfied on the evidence before me that she has not made out a defence of non est factum and she is therefore bound by the terms of the agreement.
Did Stella Sign?
[7] Guarantee has an indemnity agreement in its possession with what appears to be Stella’s signature on it, in both her personal capacity and on behalf of the three company defendants of which she is president.
[8] Guarantee has an affidavit from the subscribing witness, Cosimo Leopizzi, Stella’s son-in-law, and the then vice-president of Ciro Excavating. The affidavit states that he was present and that he witnessed Stella signing the agreement. His signature is on the agreement as the witness to Stella’s signature.
[9] On his cross-examination he confirmed that he handed Stella the original document (Q81 – 83 & 91). He also confirmed that he had a specific recollection of sitting with Stella and witnessing her signature (Q93). Finally, he confirmed his signature on the document as the witness (Q85).
[10] On cross-examination, Cosimo was asked numerous questions which, Stella argues, go to his credibility. Many of these questions were refused by counsel for the plaintiff. Numerous questions were refused by Cosimo’s personal counsel who was also present at the cross-examination. The grounds given for the refusals included relevance, litigation privilege and solicitor-client privilege. There were no refusals when he was asked specific questions about Stella signing the agreement and his presence as a witness. Nor was there a refusal when the suggestion was put to him that he had forged Stella’s signature. He denied this suggestion (Q77).
[11] Stella asks that I draw an adverse inference about Cosimo’s overall credibility from these refusals, and thereby conclude that he did not witness her signature, that he forged her signature, and that accordingly there is no evidence that Stella actually signed the agreement.
[12] I am not prepared to do so. Based upon refusals made by counsel, I cannot leap to the conclusion that Cosimo cannot be believed. If the refusals were so important, Stella should have brought a motion. She did not do so. Stella also argues that Cosimo is a bad person and is generally untrustworthy, based on recent events of which there was no evidence proferred. For example, Stella argues that the plaintiff settled with the various lien claimants and made payments under the lien bonds because it came to the realization that Cosimo was a “crook” and he had doctored various documents. Argument is not evidence. There was absolutely no evidence before the court to support these claims. In bringing her own summary judgment motion to dismiss, Stella claimed that no further evidence was necessary or available. Without any evidence of Cosimo being a “crook”, Stella asserts that he is just that. Nor does she have evidence to show that he has doctored any documents. Nonetheless, she wants me to conclude that he must have doctored the agreement at issue and perhaps even forged Stella’s signature.
[13] Stella’s whole argument regarding Cosimo proceeds from one speculative statement to the next and ultimately concludes that Stella did not sign the agreement. There is no evidence for the starting point, nor is there any evidence for the various leaps the court is then asked to make to get to the end point. Stella’s own “evidence” in her affidavit about Cosimo is mere speculation, or at best hearsay which I am not prepared to accept.
[14] Stella alleges in her affidavit at paragraph 25 that she is certain she never signed a document like the agreement. She then says “it is possible Cosimo could have forged my signature on the document”. (emphasis added) She doesn’t go so far as to say that he did forge her signature, yet she wants the court to make adverse findings as to credibility without any evidence in support. Then she says at paragraph 26 that if it is proven to be her signature, then Cosimo must have misled her because she never would have signed it if she knew what it was.
[15] However, Stella has provided no evidence that her signature was forged. It is not incumbent upon the plaintiff to prove a negative – that it wasn’t forged. It is incumbent upon Stella to provide evidence, perhaps from a handwriting expert, to support such an allegation. I draw an adverse inference from her failure to do, as was done in National Bank of Greece (Canada) v. Efstatheu, [2002] O.J. No. 5158 (ONSC) at paragraph 21 and in Spallacci v. Falco (1998), 81 A.C.W.S. (3d) 246 (Ont.C.J.(Gen.Div.)) at paragraph 21. She has an obligation on a summary judgment motion to put her best foot forward.
[16] Moreover when cross-examined, her certainty that she would never have signed a document like the agreement wavers and her suggestion that Cosimo may have forged her signature changes:
when Ciro was alive she would sign documents a couple of times a year on behalf of the company when he asked her to do so, she could not remember what type of documents they were (Q14 – 18)
when Ciro asked her to sign she never asked questions about the documents and he never explained them (Q23 – 25)
when Cosimo asked her to sign documents it was the same (Q45 – 48)
she couldn’t say she didn’t sign the agreement, she just couldn’t remember (Q79 – 80, 84 – 88)
Cosimo had no reason to forge her signature because she always signed what was presented to her (Q101 – 107)
[17] For the reasons set out above I am satisfied, on a balance of probabilities, that Stella signed the indemnity agreement.
Non est factum
[18] Stella’s next arguments, if the court finds that she did sign the agreement, are: (1) “neither Cosimo, nor anyone else, explained to me that I was asked to sign a document that affected me personally” and ”I never would have signed such a document if that had been explained to me” (paragraph 23 of her affidavit); and (2) “Cosimo must have misled me about what I was signing, and hid the terms of the agreement from me because he knew I would not sign if I understood what it was” (paragraph 26 of her affidavit).
[19] As stated by the Court in Bulut v. Carter, 2014 ONCA 424 at para. 18:
Non est factum is available to someone who, as a result of misrepresentation, has signed a document mistaken as to its nature and character and who has not been careless in doing so.
[20] Stella is unable to show that she signed the agreement because of a misrepresentation by the plaintiff or Cosimo. In her affidavit evidence she states that she must have been misled by Cosimo, which is not the same thing. When cross-examined she acknowledges that she signed whatever was placed before her without question. She also acknowledges that she could not remember this document or the circumstances surrounding it. If she cannot remember it, then on what basis can she say that Cosimo misrepresented it? The onus is on her to prove a misrepresentation and she has not done so.
[21] Stella’s own evidence established that she never read any documents presented to her; she never asked for a translation of any document; she took no steps to inform herself of what she was signing; she did not ask questions about the document; she never asked to speak to a lawyer or a friend about the document; and she never took time to think about what she was signing. All of this evidence supports the plaintiff’s argument that this agreement was no different from the rest and that no misrepresentation was made in relation to it.
[22] The evidence just summarized also shows that Stella was careless in signing all documents, including this agreement, when they were presented to her. She made no inquiries and asked no questions. She was more than careless; she was indifferent.
[23] Stella argues that the circumstances of each case must be considered and the circumstances which may have contributed to the carelessness to decide whether non est factum should or should not apply.
[24] She argues that her circumstances in September, 2005 should excuse her from her carelessness. However, other than the death of her husband in June 2005, three months before she signed the documents in question, there was nothing different in her circumstances. She had signed whatever her husband Ciro had presented without question. She now signed whatever her son-in-law Cosimo presented without question.
[25] Stella signed what she understood to be necessary company documents. She was a shareholder and officer of the company. In 2005 she was the president. The company was her primary source of income both before and after Ciro’s death. Arguably, she obtained the benefit of the agreement which allowed the named companies to carry on their business. The plaintiff issued lien bonds in reliance on the agreement.
[26] I find there are no circumstances that excuse Stella from her carelessness.
[27] Accordingly, I grant judgment to the plaintiff against the defendant Stella Barillari in the amount of $1,170,312.47 in respect of payments made by the plaintiff with respect to the lien bonds. These amounts were in evidence and Stella takes no issue with this amount.
[28] I am not prepared to grant judgment for the $66,171.00 claimed in respect of fees and expenses incurred by the plaintiff. There is no evidence in support of this number from the plaintiff. The action is proceeding against the other defendants and is continuing against Stella on the breach of trust allegations. The plaintiff is free to pursue this claim for fees and expenses with the rest of its claim.
[29] The cross-motion by Stella is dismissed.
[30] I have Bills of Costs from both the plaintiff and Stella. The amounts sought are similar. If the parties are unable to agree on costs, they may make brief submissions in writing of no more than three pages beginning with the plaintiff’s submissions within 20 days of the release of this endorsement followed by Stella’s submissions within a further 20 days thereafter.
K. HOOD J.
Date: July 10, 2015