Court File and Parties
COURT FILE NO.: CV-19-00621960-000 DATE: May 28, 2020 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
ANTHONY FALASCA and ARYLE DEVELOPMENTS INC. Robert A. Klotz, Counsel for the plaintiffs Plaintiffs
- and -
PAUL MAZZA, GREENFIELD CREEK INC., GOLDCOURT DEVELOPMENTS INC., MM GREEN DEVELOPMENT (STONEY CREEK) INC., MM GREEN DEVELOPMENT (BURLINGTON) INC., MAGED HUSSEIN SHIREEN, ANTHONY VOLPINI, LINDA ACETI, BRIE MAZZA aka BRIE MAZZA VOLPINI aka BRIE VOLPINI, NATASHA MAZZA aka TASHA MAZZA aka TASHA MAZZA-KELTON, JAMES W. OLIVER, JOHN A. CLEWORTH, MARY ANN LEY and TURKSTRA MAZZA ASSOCIATES Defendants Howard W. Reininger, Counsel for the defendants, Paul Mazza, Greenfield Creek Inc., Goldcourt Developments Inc., Anthony Volpini, Linda Aceti, Brie Mazza aka Brie Mazza Volpini aka Brie Volpini, Natasha Mazza aka Tasha Mazza aka Tasha Mazza-Kelton and Mary Ann Ley HEARD: In writing
Endorsement
The Honourable Mr. Justice H. S. Arrell
INTRODUCTION:
[ 1 ] This motion has been ordered to be done in writing due to the suspension of in-court hearings of the Superior Court caused by COVID-19. The parties agree it is an appropriate motion that can be done in writing.
[ 2 ] The defendants Anthony Volpini, Linda Aceti and Mary Ann Ley seek an order striking the claims of the plaintiffs in their amended statement of claim as against them for disclosing no cause of action. The plaintiffs request that the motion be dismissed.
[ 3 ] The defendants bring this motion under Rule 21 of the Rules of Civil Procedure.
FACTS:
[ 4 ] The statement of claim alleges fraud and other various tortious breaches against Mazza and various torts against the other defendants as a result of the purchase and sale of a piece of property in Hamilton.
[ 5 ] The defendant Mazza is a lawyer in Hamilton.
[ 6 ] The defendant Volpini is Mazza’s son-in-law; the defendant Aceti is Mazza’s wife and a real estate agent; the defendant Ley is an accountant or bookkeeper in Mazza’s law firm.
[ 7 ] The allegations against Ley are found at paragraph 18 and 38(k) of the amended statement of claim. The claim admits she was at all material times an employee or client of Mazza’s law firm and she operated at Mazza’s behest and as his agent. It is also alleged that Mazza provided a form of accounting to Falasca prepared by Ley and the law firm that purported to treat the sham transaction as a bona fide sale. There are no other allegations against Ley where she is specifically named, although at paragraph 38(o) there is a general allegation against Mazza’s family and staff.
[ 8 ] The plaintiffs advise in their factum that they are not opposed to the claim being struck as against the defendant Ley and I so order.
A) ACETI:
[ 9 ] The claim alleges damages for breach of fiduciary duty, negligence, oppression and improvident sale against Aceti and others, along with aggravated and punitive damages. Aceti was the wife of Mazza.
[ 10 ] Aceti was the listing agent for the property alleged to be the improvident sale. She earned a commission of $25,000.00 on the alleged sale.
[ 11 ] The plaintiffs allege Aceti was either aware of the impropriety of the fraudulent sale, or willfully blind to it.
B) VOLPINI:
[ 12 ] The claim alleges damages for breach of fiduciary duty, negligence, oppression and improvident sale against Volpini and others, along with aggravated and punitive damages. Volpini is Mazza’s son-in-law.
[ 13 ] It is pleaded that Mazza acquired control of MM Green which was involved in the fraudulent sale of the property in question and it is alleged that 4 days prior to the closing of the sale, Mazza installed Volpini as a director of MM Green to do his bidding and he acted as Mazza’s agent on the sale. It is further pleaded the sale was a sham to conceal the fraud being perpetrated on the plaintiffs.
[ 14 ] It is pleaded that Volpini was aware of the scheme and participated in it knowingly or was willfully blind to it. As a result, he breached his duties of good faith and honesty as a director of MM Green; and further was part of this shame being perpetrated on the plaintiffs by Mazza.
POSITION OF THE PARTIES:
[ 15 ] The defendants argue that the plaintiffs have simply made bald conclusory statements of fact and allegations of legal conclusions without the support of any material facts. They rely on Das v. George Weston Limited, 2018 ONCA 1057, para 74 that such pleadings should be struck. Further, it is argued, the plaintiffs have no status as complainants under s. 248 of the Ontario Business Corporations Act and therefore no cause of action can exist under that statute, and as such the pleadings against these two defendants must be struck.
[ 16 ] The plaintiffs urge the court to dismiss the motion to strike the claims against Aceti and Volpini. They argue that the case is complex and that all material facts currently known have been set out which more than justifies a cause of action against these two defendants. The court must assume these facts as stated, will be proven. The claim is not patently ridiculous or incapable of proof and must be read generously by the court. The onus is on the moving party to show that the claim has no possibility of success and they have failed to do so.
ANALYSIS:
[ 17 ] Under Rule 21 of the Rules of Civil Procedure, the test to be applied on a motion to strike a claim is that a claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no cause of action. Gyamfuaa v. Leblanc (2016) 134 OR (3d) 247 at para 6.
[ 18 ] However, while the material facts that are pleaded in the Statement of Claim are assumed to be true for the purposes of a motion to strike, bald conclusory statements of fact and allegations of legal conclusions unsupported by material facts are not. Das v. George Weston Limited 2018 ONCA 1057 at para 74.
[ 19 ] Only if the action is certain to fail because it contains a radical defect should it be struck.
[ 20 ] The court must accept the facts alleged as proven unless they are patently ridiculous or incapable of proof.
[ 21 ] The court must read the statement of claim generously, with allowance for inadequacies due to drafting deficiencies. Lysko v. Braley (2006), 79 O.R. (3d) 721 (CA) at para 3.
[ 22 ] The moving party must show that the claim has no possibility of succeeding at trial.
[ 23 ] The threshold for sustaining a pleading on a Rule 21 motion is not high. 1309489 Ontario Inc. v. BMO Bank of Montreal (2011), 2011 ONSC 5505, 107 O.R. (3d) 384 (S.C.J.) at paras 11-12.
[ 24 ] As Lauwers, J. (as he then was) stated in 2011, the cases favoured a broad, factually oriented approach to the meaning of “cause of action” under Rule 21. He felt the court should interpret this phrase as meaning the factual matrix, being the factual cause of the plaintiff’s complaint, as opposed to a more technical interpretation. He stated that the defendant is entitled to have notice of the factual matrix out of which the claim for relief arises. 1309489 Ontario Inc. v. BMO Bank of Montreal at paras. 16-26.
[ 25 ] I conclude that I must assume that the allegations pleaded can be proved. That being the case I further conclude that they amply indicate a cause of action. The pleadings are focused and specific in their allegations and provide adequate notice of the factual matrix out of which the claim for damages arises. I disagree with the defendants that the allegations in the claim are bald, conclusory statements of fact, and allegations of legal conclusions unsupported by material facts. As stated, I conclude that the factual matrix has been set out.
[ 26 ] Pleadings are to be concise and not contain evidence but must contain the factual matrix so that a defendant knows the case that must be met. That has been done in this claim in my view. Complex cases involving many moving parts and parties must balance sufficient material facts to also meet the requirement of being concise without pleading evidence. Rule 25.06(1) of the Rules of Civil Procedure.
[ 27 ] I conclude that the pleadings show a cause of action against Aceti and Volpini and their motion to strike the claim against them is dismissed.
[ 28 ] The claim against Ley is struck.
[ 29 ] The defendants have 30 days from the date of release of this decision to file and serve their statement of defence.
[ 30 ] I expect the parties to agree on costs however if they are unable to, the plaintiff may file written submissions with my office of no more than 3 pages, double spaced, in addition to any relevant offers and draft bill of costs no later than June 19, 2020. The defendant may reply with no more than 3 pages, double spaced, along with their draft bill of costs by June 30, 2020.
Arrell, J.
Released: May 28, 2020
COURT FILE NO.: CV-19-00621960-000 DATE: May 28, 2020 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ANTHONY FALASCA and ARYLE DEVELOPMENTS INC. - and - PAUL MAZZA, GREENFIELD CREEK INC., GOLDCOURT DEVELOPMENTS INC., MM GREEN DEVELOPMENT (STONEY CREEK) INC., MM GREEN DEVELOPMENT (BURLINGTON) INC., MAGED HUSSEIN SHIREEN, ANTHONY VOLPINI, LINDA ACETI, BRIE MAZZA aka BRIE MAZZA VOLPINI aka BRIE VOLPINI, NATASHA MAZZA aka TASHA MAZZA aka TASHA MAZZA-KELTON, JAMES W. OLIVER, JOHN A. CLEWORTH, MARY ANN LEY and TURKSTRA MAZZA ASSOCIATES JUDGMENT HSA
Released: May 28, 2020