CITATION: Filippelli Estate, 2017 ONSC 4923

COURT FILE NO.: 01-1853/17

DATE: 20170818

SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF THE ESTATE OF IDA FILIPPELLI, deceased

RE: CARLO FILIPPELLI and ROSETTA BRUNDIA, Estate Trustees for the Estate of Ida Filippelli, Applicants

AND:

ROBERTO FILIPPELLI, Respondent

BEFORE: SPIES J.

COUNSEL: Mario Middonti, for the Applicants

Larry Perlman, Agent for Roberto Filippelli[^1]

Roberto Filippelli, Respondent, In Person

HEARD: August 16, 2017

ENDORSEMENT

[1] The Applicants are the Estate Trustees for the Estate of their mother. Ida Filippelli (Ida). The Respondent, Roberto Filippelli (Mr. Filippelli), is their brother. He was deemed to have renounced his appointment to be a Trustee of the Estate when he failed to comply with the terms of an order made by Justice Conway dated April 22, 2017. To serve this order on Mr. Filippelli, the Estate Trustees were required to obtain an order for substituted service, even though Mr. Filippelli lives at a house at 83 Goldsboro Road (Goldsboro) and does not work.

[2] Ida passed away ten months ago on October 22, 2016. At the time Mr. Filippelli was living with his mother at Goldsboro. He had been living with her in this home since around August 2015. There is no dispute that Goldsboro is an asset of Ida’s Estate and that her last will and testament executed on September 8, 2015 (the Will) provides that Goldsboro be transferred in equal shares to the Applicants. The Will also provides that 90% of any residue of the Estate is to be transferred to the Applicants in equal shares and the remaining 10% of any residue is to be transferred to Mr. Filippelli.

[3] The evidence is that this Will was prepared following the sale in August 2015 of another property Ida owned on Duncanwoods Drive, Toronto. Following the sale of this property Ida changed her previous will to remove a clause which gifted the Duncanwoods property to Mr. Filippelli (he had been living in this property). Carlo Filippelli believes this was because Ida provided Mr. Filippelli access to her bank account where the proceeds of sale ($476,637) were deposited on August 31, 2015. The balance in this account at the time of Ida’s death in October 2016 was only $729.

[4] Mr. Filippelli states that all withdrawals from this account were with the knowledge of his mother and that she was the only one with access to the account. Mr. Carlo Filippelli deposed that it was Mr. Filippelli who depleted the account. It is not necessary for me to determine if Mr. Filippelli exerted undue influence on his mother to the extent funds were withdrawn from this account. What is clear is that aside from Goldsboro there is virtually no cash left in the Estate and apart from Goldsboro and Ida’s personal belongings, no assets.

[5] What is also clear on the evidence is that Ida’s Will provides that Goldsboro be transferred to the Applicants and in the ten months since her death, Mr. Filippelli has remained in possession of that property without making any payments to the Estate, despite repeated requests by the Applicants and their counsel to have him vacate the home.

[6] The first issue is whether or not there is any reason why I should not grant the relief sought by the Applicants for an order requiring Mr. Filippelli to vacate Goldsboro. Mr. Filippelli takes the position that he is a tenant, that his mother was the landlord and that the Applicants cannot ask for an order evicting him from Goldsboro without complying with the Residential Tenancies Act, 2006, SO 2006, c 17 (RTA). In support of his position he has simply stated in his affidavit that after his mother died Goldsboro “required maintenance and the payment of ongoing house expenses” and that “[a]s tenant I paid all house bills (specifically electricity, gas, water/waste, Internet, cell phone and automobile insurance)” [emphasis added] and that he did regular maintenance on the property. In Mr. Filippelli’s factum, which is of course not evidence, he states that the landlord/tenant relationship with his mother began when he moved into Goldsboro, that it has continued since her death and that he paid his mother “rent” in the amount of $650 per month which “covered mainly utility bills and other minor costs”.

[7] There is evidence of four payments of $650 into Ida’s bank account on January 3, 2016, April 28, 2016, July 5, 2016 and July 29, 2016 in the period that I have a bank account statement for Ida in evidence, being July 2015 to October 2016. There is no way of determining who those funds were from and given they were only made for four of the 16 months that I have records for this hardly supports Mr. Filippelli’s position. Mr. Filippelli provided no evidence that there was an oral or written tenancy agreement. Furthermore, as Mr. Filippelli is an interested party, s. 13 of the Evidence Act R.S.O. 1990 c. E.23 applies and his sworn evidence requires corroboration by some other material evidence. There is none.

[8] Even if I were to accept Mr. Filippelli’s position that he was paying $650 to his mother on occasion, when he could afford to do so, some payments towards the expenses of maintaining the house, would be expected as he was living with his mother and is completely consistent with a mother and son sharing the cost of living expenses.

[9] Mr. Filippelli also argued that he was in a landlord/tenant relationship with the Applicants. He relies on the evidence that they have acted as landlords by giving him 24 hours’ written notice to enter the home which is the notice required by the RTA and that they identified themselves as landlords in an inventory list. I do not have a copy of the 24 hours’ written notice. The fact Mr. Filippelli has remained in the property after Ida’s death and forced the Applicants to provide notice like that set out in the RTA does not make him a tenant. It is clear that he demanded that the Applicants provide this written notice in order to gain access to Goldsboro and so he left them with no choice but to agree to his demands. It is significant that the inventory list refers to Mr. Filippelli simply as the “Occupant”.

[10] I agree with Mr. Middonti that it would be a dangerous precedent if a son or daughter could simply assert that s/he was a tenant and that his/her deceased parent was the landlord and thereby thwart the testator’s intentions in a case like this, and require the Estate Trustee to take proceedings under the RTA. In this case there is very little if any money left in the Estate and Mr. Filippelli made it clear in his submissions to me that he is essentially judgment proof. He would have every incentive to prolong the proceedings, as he already has. In fact the uncontradicted evidence of Carlo Filippelli is that Mr. Filippelli told him that “I’m going to take this house too”.

[11] For these reasons I do not accept that Mr. Filippelli was paying any amount of money as rent to his mother or that he was in a landlord/tenancy arrangement with her or the Estate. Mr. Filippelli has fallen far short of meeting his onus of satisfying me that there was a landlord/tenant relationship between him and his mother or the Estate.

[12] My conclusion is corroborated by the fact that when Ida made the change to her Will she knew that her son, Mr. Filippelli, was living with her or was going to be living with her and that he was apparently being supported first by Ontario Works and then the Ontario Disability Support Program (ODSP). I say “apparently” because the fact Mr. Filippelli was on social support is not in evidence but he did state this in his factum and in Court. Even if Mr. Filippelli went on social assistance after Ida changed her Will, she would have been aware of his financial circumstances well before her death. The fact that she did not provide in her Will that Mr. Filippelli be permitted to remain in Goldsboro for any period of time is a complete answer to his defence on this application.

[13] The remaining question is how much additional time, if any, I should, in my discretion, give Mr. Filippelli to vacate Goldsboro. Clearly he should vacate as soon as possible so the house can be readied for sale. Based on the evidence before me I am satisfied that Goldsboro is in a state of disrepair and will not be attractive to prospective purchasers as is.

[14] Based on the evidence before me, and based on submissions made by Mr. Filippelli and on his behalf, I am satisfied that he will not voluntarily vacate Goldsboro until he has found other subsidized housing, which will take a considerable period of time-he is unable to estimate but it will be some time after November 2017. Mr. Filippelli has refused to comply with all demands from the Estate Trustees that he do so including the last demand from their counsel by letter dated March 9, 2017 which gave him notice to vacate by March 31, 2017, failing which this application would be brought. I also find that he would not cooperate in getting the house ready for sale and would likely not allow real estate agents or prospective purchasers to enter the property.

[15] For these reasons the Applicants are entitled to an order that Mr. Filippelli provide vacant possession of the Goldsboro property and that if he does not vacate voluntarily that the Toronto Police Service be authorized to forcibly remove him from the property. In my view, given it has already been ten months since Ida died, Mr. Filippelli should be required to vacate Goldsboro by September 15, 2017.

[16] Although I appreciate that Mr. Filippelli alleges he will suffer a hardship as a result of this order, the provisions of his mother’s Will are clear and binding. He has had ten months of possession of the property beyond her date of death. In that time, as Mr. Middonti submitted, there have been record home sales and record high prices and the market appears to now have softened. The Applicants did not provide evidence of this point but this general information not considered controversial and is well known in the public domain. This means that the delay in obtaining vacant possession to Goldsboro may mean that the Applicants will not be able to sell the property for as much as they could have this past spring. In any event they have been forced to pay ongoing expenses such as property taxes and insurance to maintain the property.

[17] The Applicants also request an order that Mr. Filippelli compensate them for the net rent owed from October 22, 2016, being the date that Ida passed away, until the date he vacates the property. They obtained a comparative market analysis from Frank De Franco, a broker from Homelife Superstars Real Estate Ltd. Mr. De Franco opines that after comparing the subject property to similar properties leased in the same general area, that as of July 16, 2017, Goldsboro could have been leased for $2,200 per month with the tenant being responsible to pay all utilities. He does not say what the rent would have been in the period October 2016 to July 2017. Mr. De Franco adds in his report that the tenant would be responsible for “maintenance to the property” but I do not understand that to include insurance of the building or property taxes. Mr. De Franco also predicts that it would take 3 ½ weeks to get the property ready for sale.

[18] Mr. Filippelli states in his factum that Mr. De Franco is a cousin and that although he has helped Mr. Filippelli in the past, Mr. Filippelli believes that he has communicated his “confidences” to the Applicants and that he is in a conflict of interest. None of this was in Mr. Filippelli’s affidavit and so there is no evidence of this assertion. There is therefore no basis to ignore or strike the uncontradicted information from Mr. De Franco as requested by Mr. Filippelli.

[19] It is on the basis of Mr. De Franco’s opinion that occupation rent in the amount of $22,200 is requested by the Applicants for the ten months that Mr. Filippelli has been in possession of the home. The Applicants also seek the cost of pest control services which were they were required to retain to remove rodents from the interior of Goldsboro in the amount of $282.50. They also request reimbursement of property taxes and insurance paid by the Applicants but as I explained to Mr. Middonti, that would normally be payable by the landlord if rent were being paid.

[20] I agree with the views of Justice Daley in Bergmann v. McMahon, 2010 ONSC 993, at paras. 37-39, that occupation rent is akin to a claim for unjust enrichment. Mr. Filippelli was clearly enriched by being able to occupy Goldsboro and the Applicants were deprived of both the occupancy of and the use of the property as well as rental income that could have been generated from it. There was no juristic reason for the enrichment received by Mr. Filippelli. I note that Daley J. at para. 7 also found that the property taxes represented a liability of the estate.

[21] Furthermore, as stated by Justice Low in Broos v. Broos, 2009 CanLII 68463 (Ont. S.C.) (at paras. 5 and 15), in a similar fact situation, where she found there was no justification for the respondent’s continued occupation of the estate property, she ordered that he vacate the property within 30 days. She found that by not paying compensation to the estate the respondent had denied the estate the opportunity to realize rental income and that he had benefited to the detriment of the beneficiaries. It does not appear that Low J. was asked to order occupation rent.

[22] In the circumstances, as we are talking about rent going back to October 2016, I order that the occupation rent payable be $2,000 per month for a total of $20,000 for the period October 2016 to September 2017 inclusive. I also order that Mr. Filippelli pay the pest control services cost in the amount of $282.50 as clearly that was required because of the way in which he was maintaining (or I should say not maintaining) the property. The report from the City states that Goldsboro was not being kept free of rodents on the main floor cupboards and in the laundry room in the basement. This corroborates the evidence of the Applicants that Mr. Filippelli is not keeping the property clean.

[23] As ancillary relief the Applicants ask that Mr. Filippelli return to the Estate all keys for the subject property and that he leave all personal property belonging to the Estate at Goldsboro when he provides vacant possession. That relief will also be granted.

[24] Finally, the Applicants request costs on a partial indemnity basis from Mr. Filippelli or costs from the Estate on a solicitor client basis for both this application and the costs of the motions they brought before Justices Conway and Hainey.

[25] Mr. Middonti submitted a Costs Outline claiming just over $6,000 in fees, on a partial indemnity basis, and disbursements. Mr. Middonti advised me that this includes the costs spent in obtaining the orders of Conway J. and Hainey J. Mr. Filippelli’s only submission was that he has no money to pay costs. He does have a 10% interest in the residue of his mother’s estate although I understand from him that there is not much in the way of residue left in the Estate.

[26] I have reviewed the Costs Outline. The orders of Conway J. and Hainey J. do not include an order for costs. In my view I therefore have no jurisdiction to order that Mr. Filippelli pay costs for those matters. However in my view all of the fees and disbursements paid by the Applicants for those proceedings should be recoverable from the Estate as the Applicants were acting on behalf of the Estate as Estate Trustees.

[27] Although I do not have the breakdown, given what was involved in preparing for and arguing the application before me, I find that a reasonable amount for costs for this application, on a partial indemnity basis, is $5,000 all-inclusive. In my view Mr. Filippelli took an unreasonable position on this motion and so he should be personally responsible to pay this costs order, if necessary, from his 10% entitlement to the residue of the Estate.

[28] In any event in my view the total legal fees and disbursements paid by the Applicants for this application can be paid to the Applicants from the Estate on a substantial indemnity basis as this application was brought by them as Estate Trustees on behalf of the Estate.

[29] Finally I should state that in his factum Mr. Filippelli asked for certain relief even though he did not bring a cross-application. None of the relief requested has any merit in any event. It is too late for Mr. Filippelli to become an Estate Trustee as he did not comply with or appeal the order of Conway J. His request that the application be dismissed because he was unable to retain counsel or that I order the Estate to fund his legal costs are also without merit. Similarly there is no basis upon which Mr. Filippelli could claim that the Estate provide him with financial support.

[30] For these reasons an Order will go as follows:

a) that the Respondent, Roberto Filippelli, provide vacant possession of the property municipally known as 83 Goldsboro Road, Toronto, Ontario (hereinafter referred to as the "Subject Property"), by September 18, 2017;

b) that if the Respondent, Roberto Filippelli, refuses to vacate the Subject Property, on or before September 18, 2017, then the Toronto Police Service and/or the Sheriff for the City of Toronto, shall be authorized to forcibly remove the Respondent, Roberto Filippelli, from the Subject Property;

c) that the Respondent, Roberto Filippelli, pay to the Estate of the deceased, Ida Filippelli, the amount of $20,000.00, on account of the net rent owed by the Respondent, Roberto Filippelli, for his occupation of the Subject Property from October 22, 2016 until September 18, 2017;

d) that the Respondent, Roberto Filippelli, pay to the Estate of the deceased, Ida Filippelli, the amount of $282.50, on account of an expense incurred by the Estate to maintain the Subject Property;

e) that the Respondent, Roberto Filippelli, return to the Estate of the deceased, Ida Filippelli, all keys for the Subject Property on the date that he vacates the Subject Property;

f) that the Respondent, Roberto Filippelli, leave all personal property belonging to the Estate of the deceased, Ida Filippelli, at the Subject Property when he provides vacant possession of same; and

g) that the Respondent, Roberto Filippelli, pay the Applicants their costs of the within application, on a partial indemnity basis in the amount of $5,000 all inclusive.

[31] To avoid any difficulty in having the form of my Order approved I have altered the draft provided by Mr. Middonti to accord with my decision and a copy of the Order I have signed is attached as Appendix A to this decision.

[32] To ensure no future difficulty in the service of documents on Mr. Filippelli, the terms of the order of Hainey J. for substituted service will continue in place until Mr. Filippelli vacates Goldsboro. Accordingly I order that a copy of my Endorsement and the Order that I have signed and a copy of the issued and entered Order which Mr. Middonti will obtain and any other necessary communications with Mr. Filippelli can be served on him by sending the documents by prepaid regular letter mail to 83 Goldsboro Road, Toronto, Ontario, M9L 1A6. Service of any documents mailed to Mr. Filippelli in this manner is considered good and sufficient service of the document in question, effective five days after the mailing of the said documents.

[33] When I release this decision to Mr. Middonti I will also send it by email to Mr. Pearlman and by mail to Mr. Filippelli. Service of my endorsement and the signed order shall be effective five days after August 18^th, namely August 23, 2017.

SPIES J.

Date: August 18, 2017

Appendix A

Court File No. 01-1853/17

ONTARIO

SUPERIOR COURT OF JUSTICE

THE HONOURABLE ) FRIDAY, THE 18TH

MADAM JUSTICE SPIES ) DAY OF AUGUST, 2017.

IN THE MATTER OF THE ESTATE OF IDA FILIPPELLI, deceased.

B E T W E E N:

CARLO FILIPPELLI and ROSETTA BRUNDIA,

Estate Trustees for the Estate of Ida Filippelli

Applicants

• and –

ROBERTO FILIPPELLI

Respondent

JUDGMENT

THIS APPLICATION was heard this day without a Jury at 330 University Avenue, Toronto, Ontario, in the presence of the lawyer for the Applicants, and the Respondent, Roberto Filippelli, appearing in person,

ON READING THE NOTICE OF APPLICATION AND HEARING THE EVIDENCE FILED BY THE PARTIES, and on hearing the submissions of the lawyer for the Applicants, as well as the submissions of the Respondent, Roberto Filippelli.

1. THIS COURT ORDERS that the Respondent, Roberto Filippelli, provide vacant possession of a property municipally known as 83 Goldsboro Road, Toronto, Ontario (hereinafter referred to as the “Subject Property”), by September 18, 2017.

2. THIS COURT ORDERS that if the Respondent, Roberto Filippelli, refuses to vacate the Subject Property, on or before September 18, 2017, then the Toronto Police Service and/or the Sheriff for the City of Toronto, shall be authorized to forcibly remove the Respondent, Roberto Filippelli, from the Subject Property.

3. THIS COURT ORDERS that the Respondent, Roberto Filippelli, pay to the Estate of the deceased, Ida Filippelli, the amount of $20,000.00, on account of the net rent owed by the Respondent, Roberto Filippelli, for his occupation of the Subject Property from October 22, 2016 until September 18, 2017.

4. THIS COURT ORDERS that the Respondent, Roberto Filippelli, pay to the Estate of the deceased, Ida Filippelli, the amount of $282.50, on account of an expense incurred by the Estate to maintain the Subject Property.

5. THIS COURT ORDERS that the Respondent, Roberto Filippelli, return to the Estate of the deceased, Ida Filippelli, all keys for the Subject Property on the date that he vacates the Subject Property.

6. THIS COURT ORDERS that the Respondent, Roberto Filippelli, leave all personal property belonging to the Estate of the deceased, Ida Filippelli, at the Subject Property when he provides vacant possession of same.

7. THIS COURT ORDERS that the Respondent, Roberto Filippelli, pay the Applicants their costs of the within application, on a partial indemnity basis in the amount of $5,000 al inclusive.

THIS JUDGMENT BEARS INTEREST at the rate of 2.0 per cent per year commencing on August 18, 2017.

[^1]: Mr. Filippelli asked that I permit his friend, Larry Perlman to make submissions on his behalf. Mr. Pearlman is not a lawyer and has no legal training. Although I appreciate that Rule 15.01(3) provides that he may only be represented by a lawyer, given his inability to obtain Legal Aid, in the circumstances I permitted this although I made it clear to Mr. Filippelli that he needed to advise me if he had anything to add beyond what Mr. Perlman had said. He did answer a couple of questions that I had and told me that he did not have anything to add. Mr. Filippelli is still considered to be a self-represented party in these proceedings as Mr. Pearlman can do no more than help him as a friend.