Court File and Parties

COURT FILE NO.: CV-15-4447-0000-ES DATE: 2016 04 29

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Concetta Baca, Gina De Vincentis and Luciano Gualtiero Ricci v. Augusta Tiberi, Bruno Tiberi and Ida Caporale

BEFORE: Fragomeni, J.

COUNSEL: Jon David Giacomelli and Manjit Singh, for the Applicants Dorota Irena Hagel, for the Respondents

HEARD: February 26, 2016 and March 24, 2016

E N D O R S E M E N T

[1] Order to issue as follows:

1. that the application shall proceed by way of a trial on the following terms: (i) the Applicants, Concetta Baca, Gina de Vincentis, and Luciano Ricci shall be the Plaintiffs in the action and the Respondents, Augusta Tiberi, Bruno Tiberi and Ida Caporale shall be the Defendants; (ii) the Plaintiffs shall serve and file a Statement of Claim in Form 75.7 within 30 days of the date of this order; (iii) the Defendants shall serve and file their Statement of Defence within 30 days after service on them of the Statement of Claim; (iv) the parties shall exchange Affidavit of Documents within 30 days of the close of pleadings; (v) Examinations for Discovery shall be completed on or before August 30, 2016; (vi) all undertakings and answers to unanswered questions at the examinations shall be provided by September 30, 2016; (vii) this matter is set for trial for the blitz sittings in January 2017; (viii) the Respondent, Augusta Tiberi shall within 30 days, pay into court the sum of $400,000; (ix) the Respondent, Augusta Tiberi shall not take any further steps as Estate Trustee without the written consent of the Applicants or a court order; (x) any party may seek directions from this court as they consider appropriate or necessary.

2. The parties shall file written submissions on costs relating to the two attendances before me within 20 days.

3. The long motion hearing date of June 6, 2016 is hereby vacated.

Reasons

[2] I am satisfied on the evidentiary record before me that a trial is required for a proper adjudication of the merits of the issues and it is in the interests of justice that the Application be converted into an action.

[3] The relief requested by the Applicants in their cross-motion before me is serious and far reaching. Although counsel for the Applicants did not articulate the relief he was seeking from the court as relief emanating from a contempt motion, in reality that is exactly what he was asking the court to do.

[4] The Draft Order filed by the Applicants asks this court to make the following orders:

1. That the Respondent Augusta Tiberi is in breach of the Honourable Justice Price’s Court order of December 15, 2015.
2. That the Respondent Augusta Tiberi shall personally pay sanctions in the amount of $10,000.00 to the Applicants as penalty for breaching the Honourable Justice Price’s Court Order of December 15, 2015.
3. That within 14 days, the Respondent Augusta Tiberi obtain and produce, via sworn Affidavit, all financial records as listed in paragraphs 9 and 10 of the Affidavit of Nanda Singh, sworn on February 19, 2016, and found at Tab 2 of the Applicants’ Responding Motion Record and Cross-Motion Record.
4. That the Respondent Augusta Tiberi shall personally pay sanctions in the amount of $25,000.00 to the Applicants as penalty for breaching this Court Order, if it is breached.
5. That the Respondent Augusta Tiberi shall forthwith pay into Court the sum of $400,000.00 plus interest at a rate of 3 percent per annum, in accordance with the Courts of Justice Act, commencing from February 23, 2015, pending the resolution of this herein matter.
6. That the Respondent Augusta Tiberi shall not take any steps as Estate Trustee without the written consent of the Applicants.

[5] In a lengthy Affidavit filed by Augusta Tiberi sworn March 21, 2016, Ms. Tiberi responds to the allegations made by the Applicants that she is in breach of Justice Price’s order. This Affidavit was prepared and filed at my request as the previous Affidavit filed by Ms. Tiberi did not specifically address the allegations made by the Applicants relating to the breach of Justice Price’s order.

[6] In their cross-motion dated February 19, 2016, the Applicants allege that Ms. Tiberi misappropriated funds of the estate. In their Notice of Objection to the Accounts of the Estate Trustee, Augusta Tiberi, the Applicants set out the following at paragraphs 3(b) (i) to (xiii):

3(b) The Capital Disbursements ledger is incorrect and/or incomplete: (i) Multitudes of “withdrawal” are listed (which could not have been made by our father due to his age and health at the time), yet no information is provided by Augusta Tiberi (whom actually made the withdrawals as the co-account holder) as to the purpose of the withdrawals and/or the ultimate dispositions of the listed withdrawals; (ii) Disbursements are listed as paid to Scotia (Bank) credit facilities, yet despite written requests for production of documentation regarding the Scotia (Bank) credit facilities, the Respondent August Tiberi has failed, refused and/or neglected to do so, in breach of a Court Order requiring the same; (iii) The Respondent Augusta Tiberi has failed to account for the amounts she misappropriated from our father’s assets to pay for her and her own family’s share of the utilities; (iv) The Respondent Augusta Tiberi has failed to account for the amounts she misappropriate from our father’s assets to pay for her and her own family’s share of the rent; (v) The Respondent Augusta Tiberi has failed to account for the amounts she misappropriated from our father’s assets to pay for her and her own family’s share of the mortgage payments; (vi) The Respondent Augusta Tiberi has failed to account for the amounts she misappropriated from our father’s assets to pay for her and her own family’s share of the home insurance; (vii) The Respondent Augusta Tiberi has failed to account for the amounts she misappropriated from our father’s assets to pay for her and her own family’s share of the taxes; (viii) The Respondent Augusta Tiberi has failed to account for the amounts she misappropriated from our father’s assets to pay for her sons’ company (Don Berry Construction) share of the utilities; (ix) The Respondent Augusta Tiberi has failed to account for the amounts she misappropriated from our father’s assets to pay for her sons’ company (Don Berry Construction) share of the rent; (x) The Respondent Augusta Tiberi has failed to account for the amounts she misappropriated from our father’s assets to pay for her sons’ company (Don Berry Construction) share of the home insurance; (xi) The Respondent Augusta Tiberi has failed to account for the amounts she misappropriated from our father’s assets to pay for her sons’ company (Don Berry Construction) share of the taxes; (xii) The Respondent Augusta Tiberi has failed to account for the amounts she misappropriated from our father’s assets to pay for her and her own family’s share of the groceries; (xiii) The Respondent Augusta Tiberi has failed to account for the amounts she misappropriated from our father’s assets to pay for her and/or her own family’s personal benefit: (1) Sears (department store); (2) Winners (department store); (3) Tonye Salon (beauty salon); (4) Banana Republic (clothing retailer); (5) European Jewelry Boutique (jewelry store); (6) Hold Renfrew (clothing retailer); (7) Brown’s Shoes (shoe store); (8) Trade Secrets (cosmetics store); (9) Wal-Mart (department store); (10) Esprit (accessories retailer); (11) Silvana Family Clothing Department (clothing store); (12) Mexx Dixie (clothing store); (13) Zellers (department store); (14) Toys R Us (toy store); (15) Sally Beauty Supply (cosmetics store); (16) Global Pet Foods (pet store); (17) Williams Sonoma (retail store); (18) Canadian Tire (retail store); (19) Home Sense (retail store); (20) Jones New York (upscale clothing store); (21) Style Sense (retail store); (22) Sherway/Petite (clothing store); (23) Emilian Jewellery (jewellery store); and (24) Macy’s (department store).

[7] These allegations are serious and will involve findings of fact, which in my view cannot be determined on Affidavit evidence. This matter requires a trial such that the trial judge can properly hear the testimony of the witnesses, assess credibility and make findings of fact to determine the very serious allegations raised by the Applicants.

[8] The issues to be determined will be set out in the Plaintiffs Statement of Claim and the Defendants’ Statement of Defence. Affidavit of Documents and comprehensive Examinations for Discovery will be important to lay the evidentiary foundation necessary for the trial judge to determine the issues.

[9] I recognize and I am cognizant of the fact that the parties have expended a great deal of time and energy in preparing their Application Records and Responding Records, however, I am satisfied having reviewed that material that credibility issues are in play. The motions before me relate to issues that are more properly left to the trial judge. The Applicants seek an order that a finding be made of breaches of Justice Price’s order with significant monetary penalties and/or damages to be levied against Ms. Tiberi. Ms. Tiberi responds to these allegations and raises issues of proportionality and how the disclosure requests being made by the Applicants are unduly extensive and not proportionate to the issues that require resolution on the passing of accounts.

Re: Order of Justice Price

[10] Justice Price’s order of December 15, 2015 sets out the following in part:

3. that the Respondent Augusta Tiberi shall serve on all parties, within 30 days of this Order, copies of all financial records of the deceased Giustino Ricci from December 13, 2000 to the date of his death.
4. that the Respondent Augusta Tiberi shall serve on all parties, within 30 days of this Order, copies of all financial records of the estate of the deceased Giustino Ricci from the date of his death to the date this order.
5. that the Respondents hold title to the property located at 1038 Roosevelt Road, Mississauga, Ontario in trust on behalf of the residual beneficiaries of the estate of the deceased Giustino Ricci.
6. that the Respondents hold $400,000.00, plus interest from the date of the mortgage, in trust on behalf of the residual beneficiaries of the estate of the deceased Giustino Ricci.

[11] Ms. Tiberi addresses paragraphs 7 & 8 of Justice Price’s order in her March 21, 2016 Affidavit at paragraphs 97 to 103 as follows:

97. Nevertheless, it is undisputed and I have always maintained it that the Applicants have equitable interested in the property for the total of 3/5 (or 60%) of the value of the property, not reduced by any encumbrances and subject to accounting, and that I hold the interests of the Applicants, in trust for them as beneficiaries of my father’s estate. The remaining 2/5 (or 40%) represent the interests of my sister Ida and me.
98. Similarly, the Applicants, hold equitable interests in a portion of the amount of $400,000 of mortgage amount taken by me being part of the equity in 1038 Roosevelt house, to portion of which the Applicants would be entitled, in equity, as a result of distribution of my father’s estate, subject to accounting. It is therefore greatly misleading that through her affidavit Mr. Singh keeps referring to the amount of $400,000 as being an amount that belongs to the Applicants, that they are concerned where “their $400,000” is. The Applicants are not the only beneficiaries of the estate. They are only entitled to a share of the estate, each of them to the same extent as my sister Ida and I.
99. With respect to paragraph 21, it is difficult to accurately respond without further clarifications about the context as to how and when Ms. Singh was “informed by […] the Applicants” that they are concerned about the safety of their inheritance. There is no reason for the Applicants to be concerned about the security of their inheritance.
100. Pursuant to the order of Justice Price, the house on 1038 Roosevelt Rd was appraised for $825,000. Based on this appraisal and assuming the most extreme outcome of this proceedings where I do not receive any credit for reimbursement of any of my expenses, not even funeral costs, the Applicants would be entitled to the total distribution amount of $474,800 being three times equal share of $165,000 less $20,200 already received by my sister Gina. This means that in addition to $425,000 already secured by the equity in the house the Applicants would require only $50,000 to fully secure their entire inheritance under this extreme scenario.
101. If the value of the Roosevelt house is in fact lower, the share to which the Applicant would be entitled would also be smaller.
102. I propose to deposit the amount of $50,000 into Court to fully secure the value of the Applicant’s inheritance, if this helps to alleviate the concerns and move the proceeding forward.
103. In alternative, it helps to alleviate concerns and move the proceedings forward, I propose to deposit into Court the amount of $220,000 representing 3/5ths of the amount of the mortgage on 1038 Roosevelt property, pending the determination of this proceedings.

[12] The order of Justice Price relating to the $400,000 is clear that the Respondents are to hold $400,000 plus interest in trust on behalf of the residual beneficiaries of the estate of the deceased Guistino Ricci. Ms. Tiberi does not set out in her Affidavit that the funds are being held in trust or where the funds are. Whether the explanation she provides in her Affidavit would result in a finding that she has in fact deliberately breached the order of Justice Price is an issue for the trial judge to determine.

[13] At this time, however, I am satisfied that it would be reasonable and appropriate to order that the funds be paid into court pending the trial.

[14] In the initial motion brought by the Respondents, they sought extensive relief relating to Ms. Tiberi’s role as attorney for property of Giustino Ricci. The motion also requested fair and reasonable compensation for personal care of Mr. Ricci in the amount of $63,300.50. Ms. Tiberi and Mr. Tiberi also requested compensation, in unjust enrichment, from the estate of Mr. Ricci in the sum of $268,000.

[15] The claims of the Respondents are significant. The allegations made by the Applicants are serious. There is simply too much contentious evidence for a fair and proper determination of these issues without a trial.

[16] I am also satisfied that pending the trial of this matter the order I have made will provide the framework for moving this matter to trial in a timely and efficient manner and addresses the concerns raised by the Applicants and the position taken by Ms. Tiberi in relation to these concerns.

Fragomeni, J. DATE: April 29, 2016