Court File and Parties

COURT FILE NO.: CV-16-546460 DATE: 20210301 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Bari Stern Zittell Plaintiff AND: Vince Turano and Turano’s Home Improvement Ltd. Defendants

BEFORE: Mr. Justice Chalmers

COUNSEL: I. Latimer, for the Plaintiff/Moving Party A. Lucca, Estate Trustee of the Estate of Giulia Turano

HEARD: February 24, 2021, by videoconference

Endorsement

Overview

[1] The Defendants, Vince Turano and Turano’s Home Improvement Ltd. were retained by the Plaintiff, Bari Stern Zittell (“Zittell”) to undertake renovations at the Plaintiff’s residence. Two actions were commenced against each other arising out of the renovations. The actions were referred to Master Wiebe for trial. Zittell was successful. Pursuant to the amended report of Master Wiebe dated March 22, 2019, Mr. Turano was ordered to pay Zittell the sum of $40,614.47, plus costs of $52,000. The post-judgment interest rate is 3% per annum commencing from March 22, 2018. Mr. Turano brought a motion to oppose the confirmation of the amended report and for leave to appeal the costs award. On September 10, 2018, Justice O’Marra dismissed the motion and ordered Mr. Turano to pay costs of the motion fixed in the amount of $17,756.61. Justice O’Marra’s Order bears post-judgment interest at the rate of 3% per annum from November 23, 2018. On June 7, 2019, Zittell issued a Notice of Garnishment for the sum of $114,777.45 naming Zittell as creditor and Mr. Turano as debtor.

[2] Mr. Turano is one of seven beneficiaries under the last Will and Testament of his mother, Giulia Turano. Giulia Turano died on April 10, 2019. At the time of her death she had seven children, including Vince Turano. The Estate Trustees were her children, Angela Lucca and Angelo Turano. Paragraph 3(c) of the Will provides that all seven children share equally in the Estate. At the time of her death, Giulia Turano was the registered owner of the house located at 1008 Caledonia Road, Toronto. On May 24, 2019, the Estate listed the property for sale. The Estate sold the property for $872,000. The net sale proceeds after paying the commissions and legal fees were approximately $800,000. This amount was deposited into the account for the Estate with the TD Bank on August 8, 2019. Zittell argues that the amount to which Vince Turano is entitled is at least $114,285.71 (1/7 of $800,000).

[3] On June 20, 2019, counsel for Zittell mailed a letter with the garnishment and blank garnishee statement to Angela Lucca, Angelo Turano, Vince Turano, and their siblings, Luigi Turano and Maria Turano. The garnishment provides that the Estate is to pay to Zittell all debts payable by the Estate to Vince Turano failing which an order may be made against the Estate. The letter provides that the Estate is to complete the garnishee’s statement if it disputes the amounts owing to Vince Turano. On the same day, a letter was sent to Mr. Graci, the lawyer who acted for the Estate on the sale of the property to advise him that Zittel is an execution creditor of Vince Turano. On June 25, 2019, Mr. Graci asked counsel to provide a statement of the amount owing by Vince Turano. On August 8, 2019, counsel for Zittell advised that the amount owing is $134,190.05, inclusive of post-judgment interest. Mr. Graci later stated that he was not retained by the Estate with respect to the garnishment.

[4] On August 9, 2019, counsel for Zittell wrote to Angela Lucca and Angelo Turano to warn them of the consequences of not complying with the garnishment. The letter was served on Ms. Lucca and Mr. Turano by process server. Counsel stated that if the Trustees do not remit a garnishee statement or otherwise respond to the letter within seven days, a proceeding may be commenced against the Estate. No response was received. A second letter was sent on August 22, 2019. On August 22, 2019, lawyer, Bill Braverman advised counsel that he had been retained to respond to the garnishment. He did not provide the garnishee statement. On November 19, 2019, Mr. Braverman advised that he was no longer acting for the Estate.

[5] Given the position of the Estate, Zittell brought this motion seeking an order directing the garnishee to pay to Zittell the amount to which Vince Turano is entitled from the Estate. The motion was addressed in Civil Practice Court on September 22, 2020. Counsel for Zittell and Angela Lucca were in court. On the consent of the parties, Myers, J., set the following timetable:

a) Plaintiff to serve the motion record by September 28, 2020;

b) The Estate is to serve its responding motion record by October 30, 2020;

c) Cross-examination completed by November 13, 2020;

d) Plaintiff to serve its factum by November 27, 2020;

e) Estate to serve its responding factum by December 4, 2020; and

f) Hearing on December 14, 2020.

[6] On September 28, 2020, counsel for Zittell served the motion record on the Estate and provided the timetable to Ms. Lucca. On October 28, 2020, two days before the responding record was due, counsel for Zittell received a fax from Giuseppe Grasso who stated that he was assisting Ms. Lucca. Mr. Grasso stated that Ms. Lucca was unable to provide responding materials because of her medical condition. The Estate requested an adjournment. The request was initially refused. On November 5, 2020, Ms. Lucca produced a note from her family physician dated October 26, 2020 which provided that she was unable to attend the hearing which was incorrectly stated to be on November 14, 2020. In light of the note, counsel for Zittell arranged another attendance before CPC to fix a new date and timetable for the motion. Counsel sought Ms. Lucca’s availability to attend CPC. She did not respond. Counsel scheduled the hearing for November 24, 2020. Counsel provided Ms. Lucca with the Zoom link and advised her to attend the hearing.

[7] The matter came before me on November 24, 2020. Counsel for Zittell was in attendance, but Ms. Lucca failed to attend. I scheduled the motion for February 24, 2021 and established the following timetable:

a) Estate to serve responding materials by January 11, 2021;

b) Plaintiff to serve a Reply by January 18, 2021;

c) Cross-examinations completed by January 26, 2021;

d) Plaintiff to serve its Factum by February 12, 2021;

e) Estate to serve its Factum by February 19, 2021; and

f) Hearing on February 24, 2021.

[8] Following CPC, counsel sent an e-mail to Ms. Lucca to advise her of the hearing date and timetable. On January 11, 2021, Ms. Lucca wrote to counsel to advise that the Estate was opposing the motion. No responding materials were delivered. Zittell served its factum on February 12, 2021. On February 21, 2021, Ms. Lucca wrote to counsel and stated that because of her medical condition she would not be able to attend the motion. She provided a note from Dr. Forrester dated January 20, 2021 which stated that she was re-assessed by telephone and there was no improvement in her condition. On February 22, 2021, counsel advised that he will oppose any adjournment request. Counsel provided the Zoom link for the motion to Ms. Lucca.

Analysis

Adjournment of the Motion

[9] Ms. Lucca attended the motion today. She requests an adjournment. She states that she is suffering from anxiety and depression and as a result is unable to provide responding materials. She relied on the medical notes dated November 5, 2020 and January 20, 2021 which state that she is unable to attend the hearing. Counsel for Zittell argues that they have gone out of their way to have the Estate respond to the Motion. Ms. Lucca attended the CPC hearing on September 22, 2021 at which time the timetable was established on consent. As a courtesy, Zittell agreed to adjourn the first hearing and scheduled a second CPC attendance for November 24, 2020. Ms. Lucca failed to attend the CPC. She did not request an adjournment until two days before the hearing.

[10] I am sympathetic to Ms. Lucca. Depression and anxiety have been particularly significant issues during the pandemic. At some point however the motion must proceed. Although anxiety and depression may make it difficult for her to attend the hearing, she could have retained a lawyer. Alternatively, the other Estate Trustee, Angelo Turano could have attended the motion. Although English is not Mr. Turano’s first language, he could have attended with a translator.

[11] I am satisfied that Ms. Lucca had sufficient opportunity to participate in the scheduling of the motion. She chose not to participate. She has known since November 24, 2020 of the new date for the motion but did not provide the note from Dr. Forester or request an adjournment until February 21, 2021; just two full days before the hearing. Waiting until the last minute to request an adjournment is contrary to the directive in the Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region that provides that no adjournments of scheduled motions will be granted within two days of the scheduled hearing date except in extenuating and exceptional circumstances: Royal Bank of Canada v. Puzzolanti, 2018 ONCA 917, at para. 7.

[12] There are no exceptional circumstances which justify an adjournment in this case. It is not contrary to the interests of justice to proceed with the motion, and the adjournment request is denied.

Garnishment Order

[13] Zittell is a creditor pursuant to the amended report of Master Wiebe dated March 22, 2018, and the cost order of Justice O’Marra dated November 23, 2018. The total amount owing at the time of the Notice of Garnishment on June 7, 2019 was $114,777.45. Pursuant to R. 60.08(11), the garnishee is liable to pay to the sheriff any debt of the garnishee to the debtor up to the amount shown in the Notice of Garnishment, less $10. Based on the Will of Giulia Turano, Vince Turano is entitled to a 1/7th interest in the Estate. Following the sale of Giulia Turano’s home, the sum of $800,000 was deposited into the Estate bank account with TD Bank. A 1/7th interest in this amount is $114,285.71.

[14] If the garnishee wishes to dispute the garnishment, it is required to file with the court a garnishee’s statement: R. 60.08(15). No garnishee’s statement was served in this case. Where the garnishee does not pay the amount set out in the Notice of Garnishment and does not deliver a garnishee’s statement, the creditor is entitled to an order against the garnishee for payment of the amount the court finds is payable to the debtor by the garnishee, or the amount set out in the Notice of Garnishment, whichever is less: R. 60.08(17).

[15] Here, the Estate has not paid to the Sheriff the amount of the garnishment and did not serve a garnishee statement. Although the Estate did not file any material on the motion, I permitted Ms. Lucca to provide her explanation for why the garnishment was not paid. She states that she loaned Vince Turano the sum of $80,000 pursuant to a Loan Agreement dated October 25, 2016. She also loaned Vince Turano the sum of $15,000 in July 2018. The loans were not secured. Ms. Lucca states that there was an oral agreement between her, Vince Turano and Giulia Turano that if the loans were not repaid before Giulia Turano’s death the amount owing to Vince Turano out of Giulia Turano’s estate would be paid to Angela Lucca to pay off the loans. Ms. Lucca states that no payments were made by Vince Turano and the full amount of the loans was outstanding at the time of Giulia Turano’s death. Angela Lucca did not bring an action against Vince Turano and did not obtain a judgment against him.

[16] Ms. Lucca had no reasonable explanation for why she did not serve a garnishee’s statement to set out the particulars of the dispute. She states that she has no legal training and did not know how to respond. She says she did not have money to retain a lawyer. I find this excuse to be unacceptable. She received her share of the proceeds of the Estate. She did not distribute Vince Turano’s share. She had sufficient funds to retain a lawyer to respond to the Notice of Garnishment.

[17] It is my view that Zittell is entitled to the order sought. Zittell is a judgment creditor of Vince Turano. At the time of the Notice of Garnishment, the amount owing was $114,775.45. Zittell has also established that on August 8, 2019 a debt of at least $114,285.71 (1/7 of $800,000) became payable to Vince Turano by the Estate. The Estate was served with the Notice of Garnishment. The Estate did not pay any amounts to the Sheriff and did not deliver a garnishee statement to explain why it did not owe the money to Vince Turano. Pursuant to R. 60.08.(17), Zittell is entitled to an order against the Estate for the amount that is payable to Vince Turano.

[18] The Estate failed to file any evidence on the motion to dispute the garnishment. I find that even if the Estate had filed evidence that Angela Lucca had loaned money to Vince Turano in 2016 and 2018, this is not a valid reason to not pay the amount of the garnishment to the Sheriff. When a Notice of Garnishment is received and no garnishee’s statement is delivered, it is the responsibility of the garnishee to pay the amount of the debt to the Sheriff. Pursuant to the Creditor’s Relief Act, R.S.O. 1990, c. C.45, the Sheriff is to collect the money recovered from the Notice of Garnishment and then distribute the money among the creditor who obtained the garnishment, the execution creditors who filed executions, and creditors who have obtained certificates from the registrar of the court: T.I. Group Inc., v. Wolf Advertising Ltd., at para. 18. It is up to the Sheriff to determine how the garnished funds are to be distributed, not for the garnishee to take the position that her rights are in priority to a judgment creditor.

[19] The Estate failed to pay the amount of the garnishment and failed to deliver a garnishee statement. In those circumstances, the remedy is clear; the creditor is entitled to an order against the garnishee in the amount payable by the garnishee to the debtor or the amount set out in the notice whichever is less. I am satisfied that the amount payable by the Estate to Vince Turano is 1/7th of the proceeds of the sale of the property. The amount of $800,000 was deposited into the TD Bank account on August 8, 2019. Vince Turano’s share of this amount is $114,285.71. This is just $489.74 less than the amount set out in the Notice of Garnishment.

[20] I find that Zittell is entitled to judgment against the Estate in the amount of $114,285.71.

Amending the Title of Proceedings

[21] Zittell seeks an order amending the title of proceeding in the garnishment to change the name of the garnishee from “The Estate of Giulia Turano” to “Angela Turano Lucca and Angelo Turano the Estate Trustees of the Estate of Giulia Turano”. Zittell states that at the time the garnishment was issued the identity of the estate trustees was not known. Pursuant to R. 9.03(2), the court may order the proceeding continued against the proper executor of the estate. I grant the relief sought and order that the title of proceeding is amended to name the executors of the Estate.

Costs of the Motion

[22] Zittell was successful on the motion and is presumptively entitled to costs. Zittell argues that the motion was unnecessary. The Estate failed to pay the amount of the garnishment and failed to file a garnishee statement. The Estate failed to provide any evidence to support its position that Zittell is not entitled to judgment. Zittell is seeking payment of its partial indemnity costs in the amount of $25,693.08 inclusive of counsel fee, disbursements and HST. Ms. Lucca argues that the costs claimed by Zittell are simply too high.

[23] I am of the view that the Estate’s conduct resulted in unnecessary costs. No evidence was provided by the Estate to justify its refusal to comply with the garnishment. It was necessary for Zittell to proceed with two attendances at CPC and eventually at this hearing to obtain the order. The Estate ought to have known that if it required Zittell to proceed to the motion that it would be exposed to costs.

[24] I order costs of the motion payable by the Estate to Zittell, fixed in the amount of $20,000, inclusive of counsel fee, disbursements and HST.

Disposition

[25] I grant the following order:

a) The title of proceeding in the Notice of Garnishment is amended to change the name of the garnishee from “The Estate of Giulia Turano” to “Angela Turano Lucca and Angelo Turano the Estate Trustees of the Estate of Giulia Turano”;

b) I declare that there is a debt payable to Vince Turano by the Estate, in the amount of $114,285.71;

c) I direct the Estate Trustees and the beneficiaries to forthwith pay the sum of $114,285.71, plus interest to Zittell; and

d) I order costs payable by the Estate to Zittell fixed in the amount of $20,000, inclusive of counsel fee, disbursements and HST.

[26] This order bears post-judgment interest at the rate of 3% per annum.

[27] If the parties are unable to agree on the amount of interest to be paid on the sum of $114,285.71, the parties may schedule a case conference before me.

DATE: MARCH 1, 2021