ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: CV-15-1888-00

Date: 2015 11 18

Corrected: 2015 11 18

B E T W E E N:

SONIA PREIANO and GIANLUCA PREIANO

Vusumzi Msi, for the Plaintiffs

Plaintiffs

• and -

GIUSIPPE CIRILLO the ESTATE OF GIUSIPPE CIRILLO and ANTONIA CIRILLO

Ethan Rogers, for the Defendant Antonia Cirillo

Defendants

• and -

FRANK FINELLI and FS REALTY CENTRE CORPORATION o/a ROYAL LEPAGE REALTY CENTRE, BROKERAGE and ELENA CIRILLO

Third Parties

Heard: November 17 and 18, 2015

CORRECTED ENDORSEMENT

Corrected Endorsement: The original endorsement has been corrected to show Vusumzi Msi as counsel for the plaintiffs; Ethan Rogers as counsel for Antonia Cirillo; and in para. 12 the text corrected to “as disclosing no reasonable cause of action”.

Justice Price

NATURE OF PROCEEDING

1The plaintiffs and the defendant Ms. Cirillo, through their respective counsel, are before the court for the resumption of Ms. Cirillo’s motion for a determination of a question of law under Rule 21, and of the plaintiffs’ motion for leave to amend, and of the plaintiffs’ motion for an order continuing the action against Mr. Cirillo’s estate and to appoint a representative of the estate for the purpose of this action.

ANALYSIS AND LAW

a) Motion for order continuing the action against Mr. Cirillo’s Estate

2Mr. Rogers has informed the court that:

i) There is a Will for the estate of Mr. Cirillo, who died on January 24, 2014.

ii) The Will names Mr. Cirillo’s wife, the co-defendant, Antonia Cirillo, as executrix.

iii) No steps have been taken in connection with the estate as there are no assets in the estate other than the residential property that is the subject of this action, and that because that property was held in joint tenancy, it should pass by survivorship to Ms. Cirillo.

3Mr. Rogers further advises the Court, in response to the Court’s question as to whether Ms. Cirillo wishes to be the representative of her husband’s estate for the purpose of this litigation, that he is unable to contact Ms. Cirillo, as she is 76 years of age and sick in bed, and that Ms. Cirillo’s daughter, Elena, informs Mr. Rogers that it would not be appropriate for Ms. Cirillo to be the representative of the estate for the purpose of this action, having regard to her age, the state of her health, and her imperfect command of English.

4Mr. Rogers has further advised the court that his client does not oppose the plaintiffs’ motion for an order to continue the action against the estate of Ms. Cirillo.

5Rule 10.02 provides:

10.02 Where it appears to a judge that the estate of a deceased person has an interest in a matter in question in the proceeding and there is no executor or administrator of the estate, the judge may order that the proceeding continue in the absence of a person representing the estate of the deceased person or may by order appoint a person to represent the estate for the purposes of the proceeding, and an order in the proceeding binds the estate of the deceased person, subject to rule 10.03, as if the executor or administrator of the estate of that person had been a party to the proceeding.¹

6O’Marra J. noted in Salzman v. Salzman, in 2012:

The case law supports the proposition that a will need not be probated for an executor to qualify as an executor under Rule 10.02. In Carmichael v. Carmichael Estate (2000), 2000 22320 (ON SC), 46 O.R. (3d) 630, Justice Haley noted at para. 24, “Rule 10.02 which appoints a representative to bind an estate where there is no executor or administrator contains no suggestion that an executor to be acknowledged as an executor for the purpose of that rule must be one who has obtained probate.” See also Hanton v. White, [1956] O.W.N. 775 on Rule 91, the old version of Rule 10.02.²

7Leitch J. noted in Godkin Estate v. MTM Financial Services, in 1999, that Rule 10.02 applies only where there is no personal representative, and that otherwise Rule 11.02 governs.³ Rule 11.02 provides:

11.02 (1) Where a transfer or transmission of the interest or liability of a party takes place while a proceeding is pending, any interested person may, on filing an affidavit verifying the transfer or transmission of interest or liability, obtain on requisition from the registrar an order to continue (Form 11A), without notice to any other party. R.R.O. 1990, Reg. 194, r. 11.02 (1).

(2) An order to continue shall be served forthwith on every other party. R.R.O. 1990, Reg. 194, r. 11.02 (2).

8In Bruno v. Calcaterra, in 2011, I exercised my discretion under Rule 2.03 to dispense with compliance with Rule 11.02 requiring the filing of an affidavit and filing of a requisition, and made an order to continue the action against the estate.⁴ Justice O’Marra did the same in Salzman v. Salzman, in 2012.⁵ The same course is appropriate in the present case, where there is no dispute that Mr. Cirillo died on January 24, 2014, and that the defendant Ms. Cirillo is the personal representative of his estate. Accordingly, an order will be made continuing the present action against the estate of Giuseppe Cirillo (the name that is on the Will, and that is correct, according to Mr. Rogers).

9As in Ontario Human Rights Commission v. Donald B. Clark, in 2003, it would have been preferable for Ms. Cirillo to apply for a certificate of appointment of Ms. Cirillo as estate trustee with a will.⁶ She has chosen not to do so. Nevertheless, the action will continue against the estate and Ms. Cirillo will be bound as estate trustee.

b) Priority of defendant’s motion for determination of a question of law pursuant to Rule 21 and plaintiffs’ motion to amend

10With regard to the plaintiffs’ motion for leave to amend the Statement of Claim, Dawson J. held in Raghaven v. Bell Canada, in 2011, at para. 26, that where a motion to strike (or, in the present case, for a determination of a question of law under Rule 21) was served before a cross-motion to counsel, the motion under Rule 21 should proceed first on the basis that a moving party’s rights are not normally open to being prejudiced by anything after service of the notice of motion [citation for this principle set out by Justice Dawson at para. 26].⁷

11The priority given to the Rule 21 motion in the order of determination does not prevent the motion to amend being heard with, or immediately following, the Rule 21 motion. This occurred in Raghaven v. Bell Canada, where Justice Dawson refused leave to amend on the ground that no amendment could have cured the defect in that case. However, Justice Dawson noted at para. 49:

I recognize that the authorities demonstrate that a case will rarely be decided at the pleadings stage without allowing a plaintiff to answer: A.G.F. Canadian Equity Fund v. Transamerica Commercial Finance Corp. Canada (1993), 14 O.R. (30) 161 (Ont. Gen. Div.) at p. 172-3.

12In the latter case, Justice Borins granted leave to amend after the motion judge had dismissed the first action as disclosing no reasonable cause of action. Justice Borins held that the dismissal of an action where a material averment has been omitted from the statement of claim does not constitute a bar to another action arising out of the same circumstances and based on a statement of claim that contains the averment which had been omitted from the first action.

13In the present action, the parties agree that the motion scheduled to be heard on January 13, 2016, need not be determined prior to the Rule 21 motion and motion to amend. Three hours have been set aside for the motion on January 13, 2016 and, in my view, it is appropriate that the motion, being the Defendants’ Rule 21 motion, the plaintiffs’ motion to amend, and the plaintiffs’ motion to transfer the C.P.L., and the defendants’ motion to discharge the C.P.L. be argued together or one following the other on that date.

CONCLUSION AND ORDER

14Based on the foregoing, it is ordered that:

1. The present action shall continue as Sonia Preiano and Gianluca Preiano (plaintiffs) v. Antonia Cirillo and the Estate of Giuseppe Cirillo (defendants) and Frank Finelli and FS Realty Corporation o/a Royal LePage Realty Centre Brokerage and Elena Cirillo (Third Parties).

2. The defendant, Antonia Cirillo’s motion under Rule 21, and the plaintiffs’ motion for leave to amend, and the plaintiffs’ motion to transfer the C.P.L. and the defendant Antonia Cirillo’s motion to discharge the C.P.L. are adjourned to January 13, 2016 at 10:00 a.m., to be argued together, or one following the other, for an estimated three hours.

3. The costs of the motion to continue, and on the appearance on November 17 and 18, 2015 on the Rule 21 motion and the motion for leave to amend are reserved to the judge presiding on January 13, 2016.

4. If any procedural steps are required before January 13, 2016, any of the parties may move for direction, which may be by a motion to be heard by me between 9:00 a.m. and 10:00 a.m. on a date when I am presiding, to be arranged in advance with my judicial secretary (but need not be heard by me and, in any event, shall not delay the hearing of the motions on January 13, 2016.)

Footnotes

1. 1Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 10.02
2. 2Salzman v. Salzman, 2012 ONSC 1733, para. 28
3. 3Godkin Estate v. MTM Financial Services, 1999 14810 (ON SC)
4. 4Bruno v. Calcaterra, 2011 ONSC 1673
5. 5Salzman v. Salzman, 2012 ONSC 1733
6. 6Ontario Human Rights Commission v. Donald B. Clark, 2003 HRTO 27
7. 7Raghaven v. Bell Canada, 2011 ONSC 7486, affirmed by 2012 ONCA 370