COURT FILE NO.: CV-15-1888-00A1
DATE: 2021 03 22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SONIA PREIANO and GIANLUCA PREIANO
Tyler McLean, for the Plaintiffs
Plaintiffs
- and -
GIUSEPPE CIRILLO, THE ESTATE OF GIUSEPPE CIRILLO and ANTONIA CIRILLO
Defendants
FRANK FINELLI, FS REALTY CORPORATION O/A ROYAL LEPAGE REALTY CENTRE, BROKERAGE and ELENA CIRILLO
Third Parties
Grace Cirillo, in person, on behalf of the Defendants
Joseph Juda on behalf of the Third Parties, Frank Finelli and FS Realty Centre Corporation o/a Royal LePage Realty Centre, Brokerage
Elena Cirillo, third party, on her own behalf
HEARD: March 16, 2021
REASONS FOR DECISION
on Summary Judgment Motion
P.A. DALEY J.
INTRODUCTION:
[1] The defendants, as represented by Grace Cirillo, as estate trustee for the estate of Giuseppe Cirillo and as litigation guardian for Antonia Cirillo brings a motion for summary judgment arising from a failed real estate transaction.
[2] The plaintiffs, in responding to the defendants' summary judgment motion, also seek summary judgment granting them specific performance or damages from the defendants because of the alleged breach of the agreement of purchase and sale related to the failed transaction.
[3] The defendants instituted a Third Party proceeding against the listing real estate agent and brokerage and as well as against the daughter of the defendant property owners.
[4] In the Third-Party action, the defendants have asserted a variety of claims and causes of action against the real estate agent, brokerage, and the defendants' daughter, including in negligence and breach of fiduciary duty.
[5] The defendants' summary judgment motion and the plaintiffs' responding claim for summary judgment essentially amounted to a "trial in multiple boxes".
[6] Upon the return of the motion before the court, and after hearing submissions from all parties, I advised the parties that I had concluded that this was not an appropriate case for a summary judgment and as such the defendants' motion and the plaintiffs' reply request for summary judgment were both being dismissed with detailed reasons to follow.
[7] In this endorsement I will provide my reasons for dismissing the motion and as well details as to how this action will proceed forward.
LEGAL FRAMEWORK & ANALYSIS:
[8] The guiding principles with respect to summary judgments were established in the decision of Hryniak v. Mauldin, 2014 SCC 7 and the analytical approach to be used by a motion judge was recently summarized by the Court of Appeal in its decision in Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98 by Roberts JA at paras 24 and 25:
[24] This determination required the motion judge to follow the analytical approach set out in Hryniak, at para. 66, which is summarized as follows:
First, the motion judge should have determined if there was a genuine issue requiring a trial based only on the evidence before her, without using the enhanced fact-finding powers under r. 20.04(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
Second, if there appeared to be a genuine issue requiring a trial, the motion judge should have determined if the need for a trial could be avoided by using the enhanced powers under r. 20.04(2.1) – which allowed her to weigh evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence – and under r. 20.04(2.2) to order that oral evidence be presented by one or more parties.
[25] While summary judgment is an important tool for enhancing access to justice and achieving proportionate, timely, and cost-effective adjudication, there is no imperative on the court to use it in every case: Trotter Estate, 2014 ONCA 841, 122 O.R. (3d) 625, at para. 49; Lesenko v. Guerette, 2017 ONCA 522, 416 D.L.R. (4th) 349, at para. 30. As affirmed by the Supreme Court in Hryniak, at para. 28, the overarching goal remains to have “a fair process that results in a just adjudication of disputes.”
[9] In the decision of Vandenberg v. Wilken, 2019 ONCA 262 the Court of Appeal considered a factual situation very similar to the one before the court in this matter.
[10] This case involved a failed commercial farm real estate transaction where the vendors refused to close because of allegations of unconscionability, non est factum, collusion and conspiracy involving the purchasers and the third-party real estate agents. Very similar allegations are being made in the present action.
[11] The motion judge at first instance granted partial summary judgment finding that there was a valid agreement of purchase and sale and that the purchasers had breached that agreement but denied the remedy of specific performance and ordered that the action proceed to trial as an assessment of damages.
[12] In Vandenberg, the defendants had brought a third-party action against the real estate agents. As noted by the Court of Appeal the motion judge made a number of adverse findings of credibility against the appellants regarding their interaction with the real estate agents.
[13] On appeal, the court determined that the motion judge "erred in granting partial summary judgment to the respondents in the main action when there are genuine issues of fact and credibility requiring a trial, and a real risk of inconsistent findings being made in the trial of the counterclaim and third-party claim." See para. 8.
[14] The court further noted that consideration must be given to the ramifications of granting partial summary judgment in the court's earlier decision in Butera v. Chown, Cairns LLP, 2017 ONCA 783 at paras 28 and 34 where the court stated that a motion for partial summary judgment should be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost-effective manner.
[15] Applying these principles to the present case, I have concluded that there are multiple issues in dispute in the main and third-party action which are intertwined to the extent that findings of fact, if they could reasonably be made on the highly conflicting and untested evidentiary record, would necessarily have a direct impact on the third party proceeding, which is not before the court on the defendants' summary judgment motion. For the reasons expressed by the court in both Vandenberg and Butera, I have therefore concluded that this is not a proper case for embarking upon the consideration of a summary judgment motion by the defendants or by the plaintiffs.
[16] I have reached this conclusion based on several aspects of the claim and the defences advanced given the conflicting and untested affidavit evidence, including allegations of illegal conduct on the part of the real estate agent; allegation of duress whereby one of the defendant vendors was allegedly forced to sign the agreement of purchase and sale by the real estate agent and the third-party Elena Cirillo; alleged legal incapacity to enter into a contract on the part of one of the defendant vendors; failure by the plaintiff purchasers to pay the deposit as required by the agreement purchase and sale; failure on the part of the purchasers to tender at the time of the scheduled closing; and alleged forgery in the execution of documentation.
[17] Having applied the analytical approach required, I have concluded that there are several genuine issues requiring a trial given the record before the court and I have further concluded that given the numerous issues and credibility findings that are necessary to properly consider the issues at stake, I have further concluded that the need for a trial cannot be avoided by using the enhanced powers under rule 20.04 (2.1).
[18] With the very substantial and conflicting evidentiary record submitted by these parties, I have not been able to reach an appreciation of the evidence necessary to make any dispositive findings. As directed by the court in Hryniak at para 74 – 79, for the purpose of salvaging this failed summary judgment motion and as provided for in Rule 20.05 (1) and (2), I have determined that I will remain seized of this case through to the completion of the trial.
[19] The main action is currently scheduled to proceed at the January 2022 sittings of the court at Brampton. The third-party action has not yet been set down for trial.
[20] Upon advising the parties of my decision that a summary judgment would not be granted to either party, I invited counsel and the parties to engage in discussions as to narrowing the issues at stake, identifying the real issues that need to be determined by the court and further what facts could possibly be agreed upon. Unfortunately, no progress was made based on the submissions received.
[21] It was urged on behalf of the plaintiffs that this matter proceed as a summary trial whereby evidence in chief would be provided by affidavits followed by cross-examination during the trial. Consideration will be given to this as a possible mode of trial, however as I advised the parties, I will continue to deal with this matter in terms of trial management, as the trial judge so as to ensure that the trial can proceed in the most economical fashion possible and at the same time allow all parties to fully present their respective cases to the court.
[22] The defendants' summary judgment motion sought additional relief as against the third-party real estate agents, including a variety of productions. This aspect of the defendants' motion was not addressed at this hearing and will be considered further during trial management meetings with counsel and these parties. That aspect of the motion was adjourned sine die.
[23] Although the main action in this case has proceeded through a pretrial conference and has now been scheduled for trial as indicated, no examinations for discovery had ever been conducted.
[24] Grace Cirillo, on behalf of the defendants indicated that she now wished to conduct examinations for discovery of the plaintiffs. No examinations for discovery have yet been conducted in the third-party action and the defendants have yet to indicate if they wish to proceed with such examinations.
[25] I will, with the agreement of the parties and counsel, continue to case manage and trial manage these actions and as well sit as the trial judge, however in the event a contentious motion is brought, which will require findings of credibility, consideration will be given to whether that motion should property be heard by another judge.
[26] A case management/trial management conference will be scheduled before me in respect of both the main and third-party action. My administrative assistant will provide a selection of dates for the scheduling of the conference.
[27] Given the variety and number of issues raised by both the plaintiffs and the defendants, each side shall provide a concise statement of the issues they say are required to be determined by the court at trial, both in terms of the claims being advanced and the defences raised. Further, any specific trial management issues that must be addressed should be identified and the type of orders being sought particularized. Similarly, the defendants and third parties shall do likewise in respect of the third-party action. The statements of the parties shall be no longer than three pages.
[28] At the case/trial management conference, the conduct of any examinations for discovery will be considered and if appropriate scheduled and, if the submissions allow, the specific questions to be considered by the court at trial will be established and the nature and scope of the evidence to be offered in respect of each question will be particularized.
[29] As to the issue of costs on today's attendance, that will be addressed at the conclusion of the trial.
Daley, J.
Released: March 22, 2021
COURT FILE NO.: CV-15-1888-00A1
DATE: 2021 03 22
ONTARIO
SUPERIOR COURT OF JUSTICE
SONIA PREIANO and GIANLUCA PREIANO
Plaintiffs
- and -
GIUSEPPE CIRILLO, THE ESTATE OF GIUSEPPE CIRILLO and ANTONIA CIRILLO
Defendants
- and -
FRANK FINELLI, FS REALTY CORPORATION O/A ROYAL LEPAGE REALTY CENTRE, BROKERAGE and ELENA CIRILLO
Third Parties
REASONS FOR DECISION On Summary Judgment Motion
Daley, J.
Released: March 22, 2021