ONTARIO
SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
BETWEEN:
Bertha Aiello, Floriri Village Investments Inc. and the Bleta Family Trust
Plaintiffs
– and –
Leroy Bleta, Niazi Holdings Incorporated and Korce Group Ltd.
Defendants
Elaine S. Peritz and Sean Graham, for the Plaintiffs
David M. Lobl and Kira Domratchev, for the Defendants
HEARD: November 29, 30, December 1-3, 6-10, 14-15, 2021. Oral argument heard April 4, 2022.
C. Gilmore, J.
INTRODUCTION
1This case relates to a dispute between siblings, the Plaintiff Bertha Aiello (“Ms. Aiello”) and her brother the Defendant, Leroy Bleta (“Mr. Bleta”) (the “siblings”). Ms. Aiello and Mr. Bleta have another sibling namely Marline Bleta (sometimes referred to herein as “Marline Mlot”). Marline Bleta gave evidence at the trial but is not a party to this proceeding. The core dispute in this proceeding relates to ownership of three corporations left to the siblings by their father, the late Karafil Bleta upon his death in 2008.
2The trial was completed on December 15, 2021. Written submissions were completed on March 18, 2022, and final oral argument heard on March 30, 2022.
3By order of Justice McEwen, the within trial was limited to determining the issues set out in paragraphs 1(a) and (b) of the Amended Statement of Claim as follows:
1 (a) a declaration that Ms. Aiello purchase the interest of Mr. Bleta in Floriri Village Investments Inc. in exchange for the transfer to Mr. Bleta of Ms. Aiello's interest in the Bleta Family Trust including the corporate assets held by the Bleta Family Trust, which are Niazi Holdings Incorporated and Korce Group Ltd. plus an equalization payment; and
1 (b) a declaration that Ms. Aiello is entitled to sole beneficial ownership of Floriri Village Investments Inc. on the basis of unjust enrichment and proprietary estoppel and corresponding orders to realize her entitlement.
4Ms. Aiello’s claim for ownership of the common shares in Floriri Village Investments Inc. (“Floriri”) is based on the 2014 Resignation and Renunciation (the “Renunciation”) she signed which gave up her interest in the Bleta Family Trust (the “BFT”). Ms. Aiello claims that she signed the Renunciation on the understanding that she and her brother agreed to divide their interests such that she would retain ownership of Floriri and Mr. Bleta would retain ownership of the Defendant corporations Niazi Holdings Incorporated (“Niazi”) and Korce Group Ltd. (“Korce”) (Floriri, Niazi and Korce are sometimes referred to as the “Companies” in this judgment). The BFT owns Niazi’s common shares and through it, 90% of Korce.
5According to Ms. Aiello, steps taken towards finalizing the division of the business interests broke down when a determination was made that Ms. Aiello owed her brother an equalization payment of approximately $1.5M for his shares in Floriri. Ms. Aiello refused to pay the equalization payment until Niazi and Korce satisfied their outstanding liabilities to Floriri which exceeded the equalization payment.
6As a result of this disagreement, no actual share transfers took place. However, according to Ms. Aiello, the parties conducted themselves thereafter as if they were the sole owners and shareholders of the respective corporations. As the Floriri properties have increased in value significantly since 2014, Ms. Aiello wants to enforce what she understood to be the agreement between her and her brother along with any equalization payment owed based on 2014 values. Ms. Aiello does not claim all of the shares in Floriri as Mr. Bleta suggests. Rather, her position is that Mr. Bleta released his interest in his 16 common shares of Floriri in exchange for him retaining all of the shares of the BFT.
7Mr. Bleta does not agree. His position is that the parties agreed to divide the management of the companies pending an agreement to divide ownership. As the salient provisions of that oral agreement have never been incorporated into a written agreement, there is no enforceable agreement between the parties. Ms. Aiello’s reliance on arguments based on unjust enrichment or proprietary estoppel must fail as those claims were not sufficiently pleaded and in any event are out of time having been made by way of an amendment to the Statement of Claim four years after the original Claim was issued.
8At the commencement of trial, Mr. Bleta brought a motion to amend his pleadings. He sought to withdraw an admission in his defence that Ms. Aiello had resigned as a Trustee of the BFT in 2014 and has never been reinstated. The motion was dismissed on the grounds that the amendments sought went beyond mere clarification, were brought too late and would alter the case to be met by Ms. Aeillo.
9There are other related proceedings which are not being litigated at this time. Those include claims by the parties against each other for mismanagement, theft and accounting, a claim by Ms. Aiello for repayment to Floriri of intercorporate loans owed by Korce and Niazi, and Ms. Aiello’s professional negligence claim against her brother whom she claims acted for her as her lawyer while in a conflict of interest. It is hoped that the result of this trial will assist the parties in resolving the remaining outstanding claims.
10As will be seen from the evidence introduced at trial, there can be no doubt that the parties conducted themselves as if an agreement to divide both ownership and management was finalized in 2014. The parties’ conduct makes it clear that the intention was that Ms. Aiello was to own Floriri and Mr. Bleta was to own Korce and Niazi. Mr. Bleta’s attempt to resile from this is a thinly disguised effort to take advantage of the hard work his sister has put into developing and increasing the value of Floriri while she understood she was the sole owner and shareholder. Notwithstanding the animosity between the parties and their ongoing and significant complaints about the other’s conduct and character, they will be held to the consequences of their conduct being Mr. Bleta’s promise that Ms. Aiello owned Floriri outright and Ms. Aiello’s reliance on that promise for the reasons set out below.
BACKGROUND
11The siblings’ parents, both deceased, were Karafil Bleta (“Mr. Bleta Sr.” or the “Deceased”) and Muazes Bleta (“Mrs. Bleta Sr.). Mr. Bleta Sr. died on January 18, 2008, and Mrs. Bleta Sr. died on October 2, 2020. Mr. Bleta Sr. came to Canada from Albania in 1954. While working at Canada Packers, he managed to build up a significant Toronto real estate portfolio by leveraging his purchases and doing much of the management and repairs on his own. His story is one of hard work and significant success. Niazi was named after the deceased’s brother, Korce after the region in Albania where he was born, and Floriri means “gold” in Albanian.
12Floriri was incorporated in 1982 and owns properties at 2303-2307 Lakeshore Boulevard West, Toronto (the “Lakeshore property”), 2251-2257 Jane Street, and 28 and 32 Heathrow Drive, Toronto (the “Jane/Heathrow property”). The Lakeshore property has three residential buildings with a total of 38 apartments. The Jane/Heathrow property has six low rise residential buildings with a total of 66 units.
13Niazi was incorporated in 1989. As of February 28, 2019, Niazi owns properties located at 4 Kinsdale Boulevard, Etobicoke, 2233 Jane Street, North York, 2647 Keele Street, North York, 331-341 High Park Avenue, Toronto, and 62 Sun Row Drive, Etobicoke. Between December 2014 and February 28, 2019, Niazi disposed of the following properties: 869 Runnymede Road for $700,000 in July 2015, 436-438 Pacific Avenue for $2,051,000 in July 2018, and 8 Castleton Avenue for $2,805,000 in February 2019. The property at 62 Sun Row Drive in Etobicoke was acquired by Niazi in August 2015 for $790,000 and is used as the business office for Niazi and Korce.
14Korce was incorporated in June 1996. 10% of Korce’s shares are owned by the parties’ cousin Gezim Bleta. Korce owns one 63-unit apartment building located at 29 Church Street, Toronto.
15Since her early 20’s, Ms. Aiello worked in her father’s business as a property manager. Upon her father’s death, she became more integrally involved in managing the properties. She is currently the sole director of Floriri and continues to manage the Floriri properties with her son John Karl Aiello (“John Karl”).
16Mr. Bleta is a lawyer called to the Bar of Ontario in 1990. Mr. Bleta was also very involved in his father’s business but more as a legal and corporate advisor. After his father’s death, Mr. Bleta took over his father’s role in the business and made all financial, legal and corporate decisions with the support of his sister until their disagreement in 2014.
17On the date of Mr. Bleta Sr.’s death, Ms. Aiello and Mr. Bleta each owned 50% of the common shares of Floriri. The Deceased's estate (the "Estate") was the sole beneficial preferred shareholder of Floriri, which shares carry a nominal aggregate redemption value of $670.00 but provide voting control of Floriri. The preferred shares were transferred from the Estate to Mr. Bleta and Ms. Aiello in equal shares on February 11, 2021, pursuant to the terms of the Deceased's Will.
18Ms. Aiello and Mr. Bleta were co-trustees and equal vested beneficiaries of the BFT. Whether Ms. Aiello resigned as co-trustee and renounced as an equal beneficiary permanently or temporarily is an issue for this trial. The Trust is an inter vivos trust established by the Deceased pursuant to a Deed of Trust dated December 7, 1989.
19The BFT owns all of the common shares of Niazi. The Estate was the sole beneficial preferred shareholder of all 1,998,015 Class A preference shares of Niazi. These Class A preference shares carry an aggregate redemption value of $1,998,105 and provide voting control of the entity. The Class A preference shares were transferred by the Estate to Mr. Bleta and Ms. Aiello in equal shares on February 18, 2021, pursuant to the terms of the Deceased's will. Niazi owns 90% of the common shares of Korce. The remaining 10% of Korce's common shares are owned by Gezim Bleta.
20Pursuant to the Last Will and Testament of the Deceased (the “Will”), dated September 25, 2002, the Estate was to be held in trust for the benefit of Mrs. Bleta Sr. ("Muazes" and "Muazes' Trust") and on the 10th day following her death, the amount remaining in Muazes' Trust, now residue, was to be divided as follows:
a. Specific bequests are made to Ms. Aiello and Mr. Bleta;
b. The preference shares owned by the Deceased in Floriri and Niazi to be divided equally between Mr. Bleta and Ms. Aiello;
c. Each of Ms. Aiello and Mr. Bleta are to receive 42.5% of the residue; and
d. Ms. Mlot is to receive 15% of the residue.
21There has been litigation in relation to the Estate which included an Application commenced by Marline in 2009 for a passing of accounts. The litigation partly settled in 2012, which resulted in three court Orders: (1) the Judgment of Justice Penny dated June 26, 2012, approving the settlement with Marline and dealing with various guardianship issues related to the parties’ mother; (2) the Judgment of Justice Penny dated June 26, 2012, on the Passing of Accounts of the BFT; and (3) the Judgment of Justice Penny dated June 26, 2012, on the Passing of Accounts of the Estate of Mr. Bleta Sr. A further Passing of Accounts and other issues remain outstanding in relation to the Estate which are not the subject of this trial.
22After Mr. Bleta Sr.’s death, Mr. Bleta incorporated KB Investments Ltd. (“KB”) to own and manage all of the Estate’s assets and liabilities including the entire real estate portfolio.
23Apart from the litigation in relation to their father’s estate, there was litigation between the parties related to Mr. Bleta’s role in the purchase of Ms. Aiello’s home on Royal York Road, Ms. Aiello’s Application to have both her and Mr. Bleta removed as co-guardians of their mother’s property, and Ms. Aiello’s Application to remove Mr. Bleta as an attorney for property for their mother. There is also an extensive litigation history in relation to the Companies which is worth outlining to put matters in context:
December 29, 2016
Statement of Claim in the within Action
March 3, 2017
Statement of Defence and Counterclaim in the within Action
August 17, 2017
Negligence Action commenced by Ms. Aiello against Mr. Bleta
January 23, 2018
Motion for Summary Judgment on claim 1(a) filed by Ms. Aiello
February 7, 2018
Mr. Bleta commences an Application for appointment of a Receiver (in abeyance)
February 21, 2018
Order of Justice Pattillo setting timetable for summary judgment motion
May 17, 2018
Justice Hainey converts the motion for partial summary judgment to trial of an issue in the within Action.
September 18, 2018
Ms. Aiello commences an Action to enforce repayment of loans owed to Floriri by Niazi and Korce
September 3, 2019
Ms. Aiello brings a motion for summary judgment in the Loans Action
October 21, 2019
Loans Action transferred to the Commercial List
November 18, 2019
Summary judgment motion scheduled before Justice Conway
August 10, 2020
Justice Conway orders the Loans Action, the Negligence Action and the within Action to be tried together.
August 27, 2020
Justice Conway schedules a trial for the combined actions for 3 weeks commencing September 14, 2021.
September 14, 2021
Justice McEwen orders a trial of only the Floriri Action.
24As can be seen from the above chart, the parties have been battling in the court system for years. It is hoped that the determination of the ownership issue in relation to the Companies will either resolve or significantly reduce the issues in the other outstanding matters.
The Central Dispute
25Up to the point of their father’s death, the siblings had a good relationship and trusted one another. Ms. Aiello did most of the property management, including the collection and depositing of rent, showing apartments to prospective tenants, cleaning and painting apartments and marketing apartments for rent. Mr. Bleta provided legal advice and was involved in the accounting, investing and refinancing aspects of the family business. Mr. Bleta Sr. made all of the decisions in relation to the Companies until his death. After Mr. Bleta Sr.’s death, Mr. Bleta took on the decision-making role. Ms. Aiello trusted her brother and took instructions from him just as she had from her father.
26Marline testified that she does not speak to her brother. She resurrected her relationship with her sister in the summer/fall of 2014 while dealing with issues related to their mother’s care. She described the relationship between her sister and brother as a close one and that her sister always trusted her brother until the rift between them occurred in 2014.
27Mr. Bleta’s evidence was that prior to their dispute, he had a very good relationship with his sister. He put great trust in her as after their father’s death much of the property management fell solely on her shoulders. While Mr. Bleta always made himself available to his sister on issues related to the business management, he had his law practice to run and did not have the time to deal with day-to-day matters. He trusted her to collect rents, deal with superintendents and liaise with employees and contractors.
28The breakdown in the siblings’ relationship began in 2013. Mr. Bleta started to complain about Ms. Aiello’s alleged mismanagement of the Lakeshore properties. Ms. Aiello resented her brother’s interference and did not appreciate her brother referring to the tenants in those buildings as “animals” and “gypsies.” Ms. Aiello was also upset that her brother had sold properties belonging to her father’s Estate without her consent.
29Mr. Bleta was concerned that the management of the Lakeshore property was out of control because his sister had rented to tenants without consulting him and allowing him to do credit checks. There was graffiti on the walls and garbage in the hallways. Mr. Bleta was concerned that the state of buildings would result in problems with their mortgage lenders and insurers. He no longer thought that his sister was a good property manager. He blamed her for what he testified was a 25% vacancy rate throughout the Companies’ buildings in 2014.
30In March 2014, Mr. Bleta accused his sister of stealing cash rents and laundry coin money from the Lakeshore property. This led to a rift between the siblings which has never been repaired. Mr. Bleta’s trust in his sister was severely fractured. Ms. Aiello was resentful of what she characterized as unfounded and serious allegations. The rift has resulted in extensive litigation, extreme animosity and siblings who, sadly, no longer have any relationship.
The 2014 Resignation and Renunciation
31It became clear quite quickly after the allegations made by Mr. Bleta about his sister that they could no longer work together. Mr. Bleta’s evidence was that dealing with rent collection was his first priority given his mistrust of his sister. He proposed that she either collect the rent with another person or that it be done by the superintendents. He also proposed that management of the Companies be separated.
32In August 2014, Ms. Aiello retained Mr. Stuart English (“Mr. English”) to advise her with respect to her rights as a shareholder, officer and director of the Companies and to negotiate on her behalf with respect to her brother’s proposed separation of the management of the Companies. Mr. English prepared a “term sheet” which he forwarded to Mr. Bleta on August 26, 2014. While Mr. Bleta was appreciative of Mr. English’s efforts to open up negotiations, he became frustrated that the term sheet did not deal with his priority issue which was rent collection. By way of email to Mr. English on September 2, 2014 (Exhibit 5) Mr. Bleta requested that the rent collection issue be dealt with immediately and that Ms. Aiello confirm which properties she wanted to manage.
33Initially, Mr. Bleta proposed simply dividing the management of the properties and not the ownership. Ms. Aiello did not agree. According to Ms. Aiello, the parties agreed that they would divide ownership and equalize the value of the assets. In an email to Mr. English from Mr. Bleta dated September 14, 2014, Mr. Bleta proposed a butterfly transaction which would require valuations of the portfolios. If that did not work, he suggested a listing of the properties for sale.
34Ms. Aiello did not agree to a sale. While her evidence was that she understood only that a butterfly transaction related to income tax consequences, she was agreeable to having the properties valued and equalized. Mr. Bleta conceded at trial that he really did not know much about butterfly transactions either, other than it was a tax planning mechanism to defer capital gains.
35Mr. Bleta’s priority was getting to an agreement to separate the collection of rents. He did not want his sister to collect the rents for all the properties anymore as he no longer trusted her. Therefore, he wanted a division of management with a longer-term intention of taking the necessary steps to transfer the shares of the Companies to reflect the new management arrangement. Until that happened, their agreement was a temporary one with documentation still outstanding.
36Mr. Bleta proposed a “separation” whereby one of them would take the Floriri properties and the other the properties held by the BFT (Korce and Niazi). Mr. Bleta agreed to let his sister choose which portfolio she wanted, and Ms. Aiello chose the Floriri properties.
37Once the parties had the basis for their agreement to divide ownership, Ms. Aiello terminated her retainer with Mr. English in mid September 2014. Her evidence was that she no longer needed him as she felt that she and her brother could put their differences behind them and move forward with the separation of their business interests. She added as well that she could no longer afford to pay Mr. English as Mr. Bleta would not consent to her paying her legal fees from Floriri bank accounts.
38Ms. Aiello’s evidence was that Mr. Bleta acted as her lawyer once Mr. English’s retainer ended in mid-September 2014 and she asserts there was a relationship of trust between them. Her brother had acted as her lawyer on many transactions related to the Companies prior to 2014 and in other personal matters such as the purchase of her home.
39Ms. Aiello’s evidence was that her brother told her she no longer needed Mr. English as the two of them could work out the terms of their agreement to separate their business interests. Ms. Aiello relied on and trusted her brother and denies that he ever told her to obtain independent legal advice before signing the Renunciation. Her evidence was that she trusted her brother and traditionally signed any documents he put in front of her. Mr. English was not involved in the drafting or review of the Renunciation.
40Mr. Bleta’s evidence was that his sister terminated her retainer with Mr. English despite Mr. Bleta recommending that she obtain independent legal advice. She signed the Renunciation fully understanding its implications and that further documents were required to complete the transfer of ownership. He and his sister were not in any form of a trust relationship. The conflict between them was too significant for that.
41Ms. Aiello told the Court she signed the “Resignation of Trustee and Renunciation” on October 1, 2014 (the “Renunciation” as already referred to above). This document was referred to throughout the trial and is reproduced below for convenience.
RESIGNATION OF TRUSTEE and RENUNCIATION
TO: NIAZI HOLDNGS INCORPORATED
AND TO: The Directors of NIAZI HOLDINGS INCORPORATED
AND TO: The Shareholders of NIAZI HOLDINGS INCORPORATED
AND TO: LEROY A. BLETA
I, BERTHA AIELLO, hereby tender my resignation as Trustee of the BLETA FAMILY TRUST, to take effect immediately.
I further agree that I am not entitled to any further benefit. involvement, or accounting and that my interest in the trust is extinguished.
DATED at Toronto this 1st day of October, 2014.
“Bertha Aiello”
BERTHA AIELLO
42The parties have two very different views with respect to the meaning of the Renunciation. Those views form the core issue in this trial. Ms. Aiello thought she was signing a document which would divide ownership of the Companies. Mr. Bleta insisted that the Renunciation was only signed to address a temporary division of management so that matters such as rent collection could be dealt with separately.
43Ms. Aiello agreed in her evidence in chief that the signature on the Renunciation is hers. She signed the document but did not read it carefully or at all. Her evidence was that this document meant that she became the owner of Floriri and that her brother became the owner of Korce and Niazi because that is what her brother told her. Ms. Aiello conceded that the Renunciation makes no reference to Floriri, however, she relied on the representations of her brother that signing the Renunciation meant that she owned Floriri. She told the Court that she would not have given her brother an $11M asset for free; that would not make sense.
44Marline gave evidence that during a discussion she had with her sister in the summer or fall of 2014, Ms. Aiello told her she and Mr. Bleta had agreed to divide ownership of Floriri and the BFT. From that point on, her sister acted as an owner of Floriri and was very proud of the hard work that she and John Karl had put into improving the buildings. She was intent on continuing with her father’s legacy and keeping the real estate portfolio intact.
45Gabrielle Brunnhuber (“Gabrielle”) also gave evidence for the Plaintiff as a fact witness at trial. Gabrielle has been a real estate agent for 30 years and is a long-time friend of the Bleta family. She took no position on the issues in this trial and did not support one side or the other.
46Gabrielle testified that in September 2014, she received multiple phone calls from Ms. Aiello who advised that she was being pressured by her brother to choose Floriri or the other properties in order to effect a division of the Companies. Ms. Aeillo wanted Gabrielle’s advice as to which properties she should choose. Gabrielle suggested she choose Floriri given the potential of the Lakeshore waterfront properties. That is what Ms. Aiello ultimately chose.
47Gabrielle told the Court that Ms. Aiello was very pleased with her choice and she and her son John Karl worked tirelessly to improve the properties. Gabrielle agreed that she had never seen any documents related to the “division” of the Companies nor been involved in any joint discussions with Mr. Bleta and Ms. Aiello about the arrangement.
48Mr. Bleta denied that he ever told his sister that she had become the sole owner of Floriri upon signing the Renunciation. His evidence was that he made it clear to her that they were only separating the management of the Companies. He prepared the Renunciation but incorrectly dated it. In fact, according to Mr. Bleta, the Renunciation was signed at the same time as the corporate resolutions on December 12, 2014, at the location of the Companies’ office on Judge Road. Nothing between him and sister had been resolved as of October 1, 2014, so the Renunciation could not have been signed at that time.
49Mr. Bleta denied he was acting as his sister’s lawyer at this point. He testified that in September 2014, Mr. English was his sister’s lawyer, and he would not have presented her with documents for signing without Mr. English’s involvement. In fact, Mr. English had expressed concern when he found out that Mr. Bleta and Ms. Aiello had gone to the accountant’s office for an appointment in relation to a year-end review. He did not want Mr. Bleta communicating with his client without his knowledge or involvement.
50In his Defence to Counterclaim dated October 7, 2015, in litigation between Floriri and Custom Sound Inc. (the “Custom Sound litigation”), a company owned by Mr. Bleta’s brother in-law, the defence sets out at paragraph 5 that: “At all material times, [Leroy] Bleta was Floriri’s legal advisor, sole director and officer, until December 1, 2014.” Mr. Bleta reiterated that he could not have been counsel for his sister as they were “at war” and she no longer trusted him.
51In cross-examination, Ms. Aiello was directed to a Notice of Motion in relation to a motion she brought against her brother in this litigation in March 2017. One of the grounds of the motion was that Ms. Aiello did not recall seeing or signing the Renunciation. In response, she explained that she never received a copy of the Renunciation at the time of signing it but understood it to mean that her interest in the BFT was extinguished and that she owned Floriri. She has acted on that understanding for the past seven years.
52In the March 2017 motion referenced above, Ms. Aiello sought an injunction against her brother enjoining him from selling or encumbering any assets of the Companies, interfering with Floriri’s bank account, removing him as Trustee of the BFT and declaring that Ms. Aiello was a Trustee of the BFT, among other relief. In her affidavit in support of that motion sworn March 9, 2017, Ms. Aiello deposed that she was:
a. A 50% beneficiary and co-trustee of the BFT;
b. That Mr. Bleta had prevented her from exercising her role as trustee and beneficiary of the Trust and usurped full control over the BFT;
c. That she was a 50% owner of Floriri as was her brother;
d. That her brother tried to pressure her into signing a Share Transfer Agreement but she refused.
e. That the real estate assets of the Companies had never formally been divided but that she had been managing the Floriri assets and her brother had been managing the Korce and Niazi assets.
f. That she did not recall seeing or signing the Renunciation, that her brother did not explain it to her and abused her trust in him to now claim that she was no longer a trustee of the BFT.
53Ms. Aiello was asked why she took this position on the motion when her position at trial is that she resigned all of her interest in the BFT in exchange for a 100% interest in Floriri. Ms. Aiello told the Court that this was because she was protecting her interest in the BFT as she knew that the Court had to rule on the issue of who owned the Companies and the status of the Renunciation document. She was concerned that Mr. Bleta had taken the position that he still owned a 50% interest in Floriri but that she had resigned her interest in the BFT. She viewed this as her brother claiming a 150% interest in the business assets. He was not entitled to this either as a result of her father’s Will or the Renunciation.
54Ms. Aiello referenced an email from her brother to her former counsel, Mr. Wyndham, in April 2016, in which her brother stated: “The only entity being divided is Floriri. Bertha already signed off on the Family Trust and she has no shares in Niazi or Korce…. All related party debt may or may not be paid on closing.”
55Ms. Aiello was very concerned that Mr. Bleta thought he could retain 100% of the BFT, retain a 50% share in Floriri and not pay the intercorporate debt owed to Floriri. This led Ms. Aiello to explain away any inconsistencies in her evidence about her interest in the BFT as being only to “protect her interest in the BFT” in the event that the Court found that the Renunciation was either temporary or vitiated.
56Ms. Aiello was also directed to a document entitled “Requisition to Call Meeting of Shareholders” dated December 16, 2016. The requisition was directed to the shareholders of Niazi. It was signed by Ms. Aiello as a Trustee of the BFT. Ms. Aiello was asked how she could purport to call a shareholder’s meeting of Niazi in 2016 if she relied on the Renunciation as final and binding. Her answer was that she was protecting her interests as the remaining shares of Floriri had not yet been transferred to her.
57Ms. Aiello reminded the Court that after she delivered her affidavit to Mr. Bleta dated March 9, 2017, Mr. Bleta’s conduct towards her did not change. That is, he did not start treating her as a trustee of the BFT, consult with her on decisions about the BFT, account to her or pay her any distributions from the BFT. He continued to conduct himself as the sole trustee and beneficiary as per the Renunciation. It was only after he filed his defence pleading in this case that Ms. Aiello found out that Mr. Bleta was taking the position that the Renunciation was temporary. He had never referred to their agreement as temporary before that date.
58In May 2017, Mr. Bleta’s lawyer sent a letter to Ms. Aiello’s counsel regarding the need for a “time of division” of the BFT. This request was based on a review of all documents by Mr. Bleta’s lawyer and opinion letters from a trusts lawyer, namely Mr. Timothy Youdan. Mr. Lobl, Mr. Bleta’s lawyer, requested that Ms. Aiello sign a resolution to fix the time of division. As he stated, there was “no particular magic” in the date but, by law, the date could not be a retroactive one.
59In the Resolution of the Trustees of the BFT, Ms. Aiello and Mr. Bleta are identified as the “current trustees of the BFT.” The Resolutions also recite that the parties’ sibling, Marline Bleta, was a former beneficiary of the trust whose interest was extinguished pursuant to Minutes of Settlement dated June 26, 2012. Ms. Aiello signed the Resolutions and the Notice of Distribution Date on May 17, 2017.
60Ms. Aiello was asked why she did this in the face of the Renunciation. Her position was that she was told to sign the Resolutions because of an error that was made in 2012 that had to be rectified. She did not view these documents as formally reinstating her position as trustee or changing her position in this litigation. She has taken the position that she remains a trustee of the BFT only for the purposes of protecting her position in this litigation in the event that the Renunciation is found to be void or not effective.
61Ms. Aiello was also directed to paragraph 34 of her affidavit in support of the March 2017 motion in which she stated that the Renunciation may not be effective because it was part of a division of assets which never took place, or it requires court approval. When she was questioned about why she would take this position when she had previously relied on the Renunciation as valid, Ms. Aiello repeated her evidence that this position was advanced only to protect her interests in the event she was found to retain an interest in the BFT and that her brother still retained a 50% shareholding interest in Floriri. She was simply replying to an affidavit sworn by her brother in February 2017. She had to keep all options open as her brother’s position was changing all the time. She is relying on this Court to determine whether she still retains an interest in the BFT.
62Ms. Aiello was also directed to an email from her previous counsel Mr. Wyndham to Mr. Bleta and copied to Ms. Aiello dated April 19, 2016. In that email, Mr. Wyndham states:
Please note that if Bertha signed the family trust to you, it was done without consideration and therefore void. If this was done without Bertha having the benefit of independent legal representation, it would only be further evidence of the serious conflict of interest wherein you acted as her lawyer for your personal benefit.
63Ms. Aiello was asked why her lawyer at the time was taking the position that the Renunciation was void. She responded that her position has always been that the ownership of the Companies was divided in 2014 and that only the determination of the equalization payment remained outstanding.
64Mr. Bleta’s evidence was that the Renunciation was temporary pending a formal share transfer and equalization payment. No transfer of ownership could take place without that. Mr. Bleta conceded that there is nothing in the Renunciation that refers to it as “temporary.” He also agreed that he could not recall referring to the Renunciation as temporary until his defence to this claim was drafted. He further agreed that there is nothing in the Deed of Trust for the BFT that provides for the temporary removal of a trustee.
65At paragraph 28 of the Statement of Defence to Counterclaim in the Custom Sound litigation, Mr. Bleta says as follows:
Aiello finally agreed to resolve the breakdown in Aiello and Bleta's relationship in September, 2014 by dividing and equalizing their corporations equally. Following extensive property valuations by an agreed valuator Aiello chose to acquire sole ownership of Bleta's shares in Floriri which includes the Properties, leaving Bleta to acquire sole ownership of Aiello's shares in the other family companies owned by them. At no time or times did Aiello resile from her stated intention to acquire sole ownership of Floriri.
66Mr. Bleta denied that this paragraph could be interpreted to mean that he and his sister had come to a final agreement in September 2014. He described the paragraph as dealing with “intention more than anything else.”
67In his affidavit sworn in that proceeding dated January 11, 2016, Mr. Bleta deposed as follows:
Regrettably, for numerous reasons the differences between Ms. Aiello and I grew over time, and over the better part of a year we came to our own agreement as of December 1, 2014 that she would become the sole shareholder of Floriri and I would become the sole owner of our father's other companies. I know she chose Floriri because of its future value as a waterfront condominium project. I gave her the choice. She knows as well as I that Floriri remains the most valuable of the family companies because of Lakeshore.
The first step in the transition was changing our director and officer statuses. It had taken a long time to reach a verbal understanding between her and I, as well as obtain mutually agreed appraisals of all of our father's corporate properties and investments to ensure that our father's corporate assets and liabilities were equalized between us.
68It was suggested to Mr. Bleta that these paragraphs made it clear that he and his sister had come to a final agreement in December 2014. He disagreed. His evidence was that none of the terms of a final agreement had been signed or implemented.
69Mr. Bleta was asked why the Renunciation said that his sister was not entitled to any further benefit, involvement or accounting from the Trust and that her interest in it was extinguished. Mr. Bleta told the Court that he drafted the Renunciation from a precedent and that that clause should not have been included. It was simply intended to alert his sister that in the future she would not have an interest in the Trust. The Renunciation was intended to be the start of the process with the next step being the Voting Trust Agreement. Mr. Bleta agreed that while he was aware that paragraph 2 of the Renunciation had been inserted in error, he never told his sister this. Ms. Aiello was free to take the Renunciation and the corporate resolutions to her own lawyer if she had wanted to.
70Mr. Bleta was shown an email he wrote to Mr. Graham on October 13, 2015, in which he wrote the following:
Family Trust
- The family trust was resolved when she [Ms. Aiello] was made sole director and officer of Floriri in December, 2014, and signed off her interest in the Family trust for which I became sole director and officer and trustee of the Family Trust. Your client has no interest in the trust. I assume that she informed you that she chose to take the more lucrative Floriri company shares although she has stalled for 10 months to date in executing the agreement itself.
71Mr. Bleta was asked why he wrote this when his position was that the second paragraph of the Renunciation was inserted by mistake. His evidence was that this email had to be taken in context. He was concerned that no progress was being made on a deal to finalize the division of the Companies. His sister’s lawyers were raising new issues which meant that the entire process was unravelling. He just wanted to “push off” Mr. Graham and narrow the issues so that litigation would not be necessary. Mr. Bleta agreed that, other than by way of productions in the course of this litigation, he has not provided any form of reporting or accounting to Ms. Aiello with respect to the BFT since the Renunciation was signed.
72During his cross-examination, Mr. Bleta testified that he had never relied on the Renunciation to say that his sister did not have an interest in the BFT. If he put anything in writing that was contrary to that position, it was only for negotiating purposes. He conceded that in writing this in his October 2015 email to Mr. Graham, both Mr. Graham and his sister were likely to rely on that statement. He also agreed that there was nothing in that statement that referred to the Renunciation as being temporary.
73Mr. Bleta’s evidence was that the Renunciation was not actually signed until December 12, 2014. It was signed at the same time as Ms. Aiello signed the corporate resolutions appointing her as the sole director of Floriri and confirming Mr. Bleta as the sole director of Niazi, and the TD Bank resolutions giving Ms. Aiello sole signing authority for Floriri and Mr. Bleta sole signing authority for Niazi and Korce.
74Mr. Bleta testified that in an email to Cliff Ford on December 11, 2014, he told Mr. Ford that “We are switching over to the sole management effective Friday. Bertha will confirm her choice.” Mr. Bleta’s evidence was that he then met with his sister at the Companies’ offices at Judge Road on December 12, 2014, and she told him that she had decided that she wanted the Floriri portfolio of properties. This conversation was not put to Ms. Aiello in cross-examination.
75After that meeting, Mr. Bleta notified TD Bank and the process to separate the Companies was undertaken. Mr. Bleta prepared the corporate resolutions and the Renunciation, and his sister signed them on December 12, 2014. Mr. Bleta’s evidence was that it would be complicated to divide the shares and he suspected his sister was aware of that. One of the complicating factors was the potential tax consequences of the asset transfers. Mr. Bleta was anxious to undertake the butterfly transaction process as soon as possible.
76As Ms. Aiello denied that she signed the Renunciation on December 12, 2014, Mr. Bleta offered up by way of corroboration, a diary entry he had made on December 12, 2014, related to the wife of his second cousin, Zhiani Bleta. She worked in the family business and this entry reminded him that he called her after his sister signed the Renunciation on December 12th. He told her he wanted her to take over as the property manager for Korce and Niazi and that he was raising her pay to $15 per hour. The next day, he and Zhiani Bleta toured all of the Korce and Niazi properties and met with the superintendents. Mr. Bleta told the superintendents that they were not to take any further instructions from Ms. Aiello but only from him through Zhiani Bleta.
77Mr. Bleta’s evidence was that it was impossible for the Renunciation to have been signed on October 1, 2014, as there had been no discussions between him and his sister. His only communication had been with Mr. English and that communication ended when Mr. English’s retainer ended sometime in late September 2014. He and his sister were enemies at this point. They could not communicate face to face.
78It was suggested to Ms. Aiello that no agreement on division of ownership had actually been reached by that date because it would not make sense for Ms. Aiello to come to an agreement with her brother without knowing the value of the real estate portfolio. Ms. Aeillo disagreed. Her evidence was that there would be an equalization payment to make things fair and she had already finalized everything with her brother in September 2014. If she owed her brother money, she was sure that a payment arrangement could be worked out. She never expected to be in litigation with him for seven years over this.
79In an effort to determine what equalization would be owed by one party to the other, the parties agreed to consult with Mr. Danny Iannuzziello (“Mr. Iannuzziello”). Mr. Iannuzziello was Mr. Bleta Sr.’s long time and trusted real estate broker who specialized in multi-unit residential buildings. He agreed to provide an opinion of value on all of the assets in the various portfolios so that the parties could move to the next step. Mr. Bleta, Ms. Aiello and Mr. Iannuzziello met on September 27, 2014, to discuss the valuations and set up appointments for Mr. Iannuzziello to inspect the buildings.
80A further meeting was set for Monday, December 8, 2014, with the parties and Mr. Iannuzziello to discuss the completed valuations. Mr. Iannuzziello had valued the Floriri properties at $20M and the Niazi and Korce properties at $21M. In an email to Mr. Iannuzziello dated December 5, 2014, Mr. Bleta spoke of moving to a “split in the companies.” He clarified to the Court that he was only talking about management as that was a necessary step before any final division could take place. He testified he was very frustrated with his sister and wanted the management issues dealt with before another rental period went by. He was anxious to get a final agreement on his assumption of the management of Niazi and Korce and his sister assuming the management of Floriri.
81Mr. Bleta was disappointed with the valuation of the Lakeshore properties which he had always viewed as the “jewel” of his father’s portfolio. His view was that Mr Iannuzziello’s valuation was low as it did not include the development potential of the property. Mr. Bleta considered the valuations as part of “baby steps” to be taken as part of a process. First, management issues and a rent collection process needed to be established, and then a final division could take place at a later date.
82Ms. Aiello was directed to an email from Mr. Bleta to Cliff Ford (who worked with Mr. Iannuzziello at Skyview Realty) dated December 11, 2014, in which he said “[w]e are switching over the sole management effective Friday. Bertha will confirm her choice.” It was suggested to Ms. Aiello that this email meant that no agreement of any kind had been reached by December 11, 2014. Ms. Aiello testified she knew nothing of this email and was not copied on it. It may represent her brother’s position, but her position remained that a final agreement was reached in September 2014.
83Ms. Aiello did not dispute that the TD banking resolutions were signed on December 15, 2014, giving her brother sole signing authority on the Niazi and Korce accounts, and her sole signing authority in the Floriri accounts. She also agreed that on December 12, 2014, she and her brother signed corporate resolutions naming her as the sole director of Floriri and her brother the sole director of Korce and Niazi. Each of them signed the resolutions as Estate Trustee. The Korce and Niazi resolutions were signed by Ms. Aiello as a Trustee of the BFT.
84Ms. Aiello was asked why she signed as Trustee of the BFT when she had resigned as Trustee on October 1, 2014. Her response was that she really did not know what she was signing and thought that these documents gave her ownership of Floriri. Both Ms. Aiello and Mr. Bleta have remained as the sole director of their respective portfolios and have sole signing authority of their bank accounts to this day, and both have continued with their exclusive management of those portfolios.
85Mr. Bleta was asked why it was necessary to have banking and corporate resolutions and file change notices with the Ministry of Government Services regarding the appointment of new officers and directors if his sole priority was rent collection at this point. He responded that separate management required separate control and signing those documents gave each of them control over their respective portfolios.
86Ms. Aiello was directed to an affidavit she swore in on November 23, 2017, in support of a motion she brought to compel her brother to produce certain accounting records. In paragraph 11 of that affidavit, she deposed as follows:
- In December 2014, Leroy and I agreed to divide up the real estate assets between us with an equalization payment. I assumed full ownership of the Floriri properties and Leroy assumed full ownership of the properties owned by Niazi and Korce.
87Ms. Aiello did not view this affidavit evidence as inconsistent with her position. Her trial evidence was that she and brother reached an agreement in September 2014 to divide ownership of the Companies, but that agreement was not effective until the various resolutions and banking documents were signed in December 2014. She assumed after she signed the corporate resolutions and the banking documents that nothing more was needed other than a cheque for equalization. Her brother never told her she would have to sign more documents.
88In another affidavit sworn on January 22, 201,8 by Ms. Aiello in support of a motion for partial summary judgment in this proceeding, she deposed at paragraph 31, as follows:
- At the meeting in Danny's office, Leroy agreed to divide the ownership of the properties based on the Valuations (Leroy called our agreement, the "Shareholder Agreement"). I assumed full ownership and control of the Floriri properties and Leroy assumed full ownership and control of the properties owned by Niazi and Korce.
89Once again, Ms. Aiello denied that this statement could be interpreted to mean that the agreement was reached in December 2014. She insisted the agreement was reached in September 2014 and the Renunciation signed on October 1, 2014.
90Ms. Aiello’s son John Karl gave evidence at the trial. John Karl is 34 years old and has worked with his mother managing the Floriri properties since September 2014. He recalled that his mother and uncle were “at war” after his uncle accused his mother of stealing rents. He recalled a telephone call between his mother and uncle in September 2014 in which he overheard his uncle’s conversation with his mother agreeing to divide ownership of the Companies. The evidence of the phone call was not cross-examined on at trial.
The Voting Trust Agreement
91In December 2014, Ms. Aiello was given a Voting Trust Agreement (the “VTA”) by her brother (Exhibit 31). Mr. Bleta testified that he gave her the VTA at the same time his sister signed the corporate resolutions and the Renunciation on December 12, 2014. Mr. Bleta’s intention was that the VTA and the Share Transfer Agreement (“STA”) would be effective as of December 1, 2014. Mr. Bleta drafted the VTA himself but agreed that it was never signed. He hoped that his sister would take the VTA to a lawyer to obtain legal advice on it, as he conceded it was a complicated document. As the parties had already come to an oral agreement on rent collection, Mr. Bleta was asked why the VTA was necessary. His view was that it was necessary for certainty and security.
92Mr. Bleta requested that the Companies’ long-time accountant, Mr. Raymond Gic (“Mr. Gic”), prepare an accounting of the adjustments of the intercorporate loans by way of email in March 2015, as the Companies’ year ends were not until February 28, 2015. He was aware that this accounting would likely not be able to be completed until after August 2015 as the Companies’ tax returns were not due until the end of August 2015. Mr. Bleta was aware, therefore, that the numbers used to calculate the equalization payment in the VTA were not accurate. He still wanted his sister to sign the VTA because it contained a clause that the calculations in the VTA had to be confirmed by Mr. Gic. He referred to it in his email of March 10, 2015, to Mr. Gic as the agreement that he and his sister were using to equalize the value of the Companies.
93Mr. Bleta was asked why, when he sent his sister the STA on January 30, 2016, he referred to her having “refused” to sign the VTA. He testified that he did want his sister to sign the VTA.
94Paragraph 4 of the VTA makes reference to the Voting Trust Shares being held until the STA was executed. The VTA then sets out the assets and liabilities of each of the Corporations (similar to the accounting in the STA) and requires an equalization payment from Ms. Aiello to Mr. Bleta of $1.6M. Ms. Aiello’s evidence was that the VTA was never signed because her brother told her not to sign it as the numbers in it were incorrect. That proved to be true as the STA accounting required an equalization payment of only $1.1M.
95Ms. Aiello’s evidence was that she did not really understand the meaning of the VTA nor the reference to the requirement that the STA be signed to complete the transfer of ownership of shares. Her understanding was that after signing the Renunciation on October 1, 2014, and the further documents in December 2014, only the payment of the equalization amount remained. Her brother never told her she would be required to sign a STA. She did not sign the VTA simply because her brother told her not to.
The Floriri Refinancing in 2015
96In August 2015, Floriri’s mortgage with TD Bank was due for renewal. Ms. Aiello contacted TD Bank in February 2015 to start the process. TD representatives advised Ms. Aiello that Mr. Bleta would need to guarantee the mortgage as he had done in the past. Ms. Aiello informed TD that she owned 100% of the shares of Floriri, had sole signing authority and therefore Mr. Bleta’s guarantee was not required.
97TD did not agree and required proof of the share transfer of Mr. Bleta’s shares to Ms. Aiello. In July and August 2015, Mr. Bleta wrote to TD and advised that he had no intention of guaranteeing the mortgage as he was not operating Floriri and had not been since December 2014. TD was not satisfied with either Mr. Bleta’s responses or those of Ms. Aiello. Ms. Aiello’s evidence was that this put her in a difficult position as she had to seek more expensive financing elsewhere.
98It became clear to Ms. Aiello after the TD mortgage renewal problem that she was not the owner of 100% of the shares of Floriri. She was shocked and upset. She had understood that the Renunciation meant that she was sole owner of all of the shares. She felt betrayed and cheated by her brother who had clearly lied to her.
99Ms. Aiello was able to obtain financing through People’s Trust. She paid out the TD mortgage and borrowed additional money to make much needed improvements to the buildings in the Floriri portfolio. This included replacement of windows and doors, 31 new garage doors, new intercoms, new walkways and new cement stairs amongst other improvements.
100Ms. Aiello testified that she and her son worked very hard on these improvements and did as much of the work as they could on their own. John Karl’s evidence was that he and his mother have worked hard to turn the Jane/Heathrow and Lakeshore properties around. With their dedication and financial investment, they have attracted high quality tenants and increased the value of the buildings.
101John Karl described the Lakeshore buildings as “a dump” before he and his mother took over ownership and made improvements. When his mother first renewed the Lakeshore mortgage in 2016, the Lakeshore property was valued at $11M. The most recent valuation was $30M. The Jane/Heathrow buildings have tripled in value from $4M to over $12M since he and his mother began managing those buildings.
The Proposed Share Transfer Agreement and the Equalization Issues
102On January 30, 2016, Mr. Bleta sent his sister the draft STA to effect the equalization of the value of the companies. While the STA is referred to as a “draft” in these reasons, it should be made clear that Mr. Bleta never referred to the STA as a draft when it was proposed to his sister. The STA confirmed that each of the siblings owned equal shares in Floriri, Korce, Niazi and the BFT, but that each had exercised sole control, management and voting rights over Floriri, Korce, Niazi and the BFT respectively since December 1, 2014.
103Paragraphs 22 and 23 contained the formula for the equalization payment. This portion of the STA was referred to extensively in the evidence and is reproduced below.
- Net worth of Floriri
Niazi and Korce Bertha and LeRoy agree that the value of the principal assets and debts of Niazi, Korce and Floriri as at December 1, 2014 are as follows:
FLORIRI Value Assets
2303, 2305 2307 Lakeshore Boulevard West $13,680,000.00
and 28-32 Heathrow Drive,
2251-2257 Jane Street, Toronto $6,435,000.00
Sub-Total: $20,115,000.00
GICs $1,557,442.46
Intercorporate account assets $1,994,863.97
Total Assets $23,667,306.43
Debts
Mortgages/Loans
Heathrow $ 2,036,842.22
Lakeshore $658,000.00
$2,694,842.22
Intercorporate account liabilities $665,061.91
Total Debts $3,359,904.13
Floriri Total Value $20,307,402.30
NIAZI Value Assets
4 Kinsdale Boulevard, Toronto $4,410,000.00
2233 Jane Street, Toronto $3,510,000.00
2647 Keele Street, Toronto $3,465,000.00
8 Castleton Avenue, Toronto $1,615,000.00
331-341 High Park Avenue, Toronto $784,000.00
436-438 Pacific Avenue, Toronto $692,000.00
869 Runnymede Road, Toronto $600,000.00
Sub-Total: $15,076,000.00
GICs $1,464,201.40
Intercorporate account assets $3,076,233.54
Total Assets $19,616,434.94
Debts
Mortgages/Loans
High Park $41,369.93
Keele $772,472.00
Kinsdale $788,673.11 $1,602,515.04
Intercorporate account liabilities $3,234,162.05
Total Debts $4,836,677.19
Niazi Total Value $14,779,757.75
KORCE Value Assets
29 Church Street, Toronto $5,985,000.00
GICs $419,964.84
Intercorporate account assets $1,350,000.00
Total Assets $7,754,964.84
Debts
Mortgages/Loans
Church $1,000,000.00
$900,000,00
$1,900,000.00
Intercorporate account liabilities $2,209,433.86
Total Debts $4,109,433.86
Less: exclude 10% shares of Gezim Bleta
[$7,754,964.84-$4,109,433.86 = $3,645,530.98 × 10% = $364,553.10
Korce Total Value $3,280,977.88
23.Bertha and LeRoy agree that the net value difference of the principal assets and debts of Niazi, Korce and Floriri are as follows, and that the net value equalization calculation are as follows:
Floriri: $20,307,402.30
Niazi: $14,779,757.75
Korce: $3,280,977.88 $18,060,735.63
Equalization difference: $2,246,666.67
Equalization debt due LeRoy from Bertha: $1,123,333.34
forthwith payable without interest until December 1, 2016, at which time the full balance shall become payable forthwith together with interest from that date at the prime lending rate for residential mortgage loans of TD Canada Trust, calculated semi-annually.
- Accordingly, in addition to the transfer of shares Bertha shall make or cause to be made to LeRoy the equalization payment referred to above of $ 1,123,333.34.
104Ms. Aiello did not disagree with the amount of the equalization payment. However, she required that the $3M in outstanding liabilities owed to Floriri by Niazi and Korce be paid. She added that the loans owed to Floriri have no terms or interest. She has been seeking repayment of those loans for the last seven years. Mr. Bleta refused to commit to any repayment of the loans. This has led to a stand-off and the within litigation.
105To assist her with negotiating the STA, Ms. Aiello hired a new lawyer, Mr. Wyndham. She was referred to an email from Mr. Wyndham to Mr. Bleta on April 11, 2016, in which Mr. Wyndham sets out the conditions of the share transfer including the release of all intercompany loan amounts. Ms. Aiello testified that she understood and agreed with the conditions in Mr. Wyndham’s email. She also agreed with Mr. Wyndham’s statement in his April 18, 2016 email to Mr. Bleta which described the proposed agreement as “one-sided” given that Mr. Bleta was asking his sister to pay him an equalization payment without dealing with the intercompany loans and the GIC. In 2019, Crowe Soberman confirmed that Niazi owes Floriri $1.688M. This amount is not disputed by Mr. Bleta. He simply does not want to pay it.
106Mr. Bleta was pleased that his sister had hired a lawyer to advise her with respect to the STA. However, he was disappointed that Mr. Wyndham wanted a valuation of all assets and liabilities of the Companies. Mr. Bleta only wanted to deal with physical assets. He did not, for example, want to deal with Mr. Wyndham’s request that he transfer a Jeep vehicle to his sister.
107As for the intercorporate loans, Korce had a line of credit secured by GICs held by Floriri. Mr. Bleta’s view was that since the Lakeshore properties were so valuable, the intercorporate debt would be calculated but forgiven. The Companies needed the money they had in order to continue operating. Korce and Niazi did not have the ability to pay out the loans owed to Floriri. Further, Mr. Bleta was not prepared to deal with any intercorporate accounting between the Companies and KB as that would be much too complicated. The STA was intended to deal with an equalization between the siblings, it was not about equalizing the companies according to Mr. Bleta. His sister would be receiving the “biggest prize” by way of the Lakeshore property so there had to be a balancing which meant forgiveness of Korce and Niazi’s debt owed to Floriri.
108Ms. Aiello was asked about the provision in the STA that refers to effecting the ownership division by way of a butterfly transaction. Her evidence was that she did not know anything about butterfly transactions, only ownership. Ms. Aiello was directed to her cross-examination in relation to her motion for partial summary judgment in 2018. That motion was dismissed, and the issues converted into the trial of an action (this trial). In her evidence on cross-examination on the affidavit in support of the motion for summary judgment, Ms. Aiello deposed that she always wanted the butterfly transaction to proceed and understood that the reference to butterfly related to the tax treatment of the share transfer. She told the Court that she was relying on her brother’s legal advice. If he thought a butterfly transaction was the right approach, she was open to that even though she was not sure of exactly how it worked.
109Ms. Aiello was directed to other emails from Mr. Wyndham to Mr. Bleta on April 18, 2016, April 20, 2016 and August 12, 2016 (she was copied) (the “Wyndham emails”). Mr. Wyndham, in discussing the STA with Mr. Bleta, makes reference to the entities “being divided,” that any intangible assets should be divided “equally through the butterfly,” and that once the audit results were available, he would work with Mr. Bleta to “finalize the agreements.” It was suggested to Ms. Aiello that there were other examples of emails in which Mr. Wyndham is confirming that there was no binding agreement between Ms. Aiello and her brother. Ms. Aiello disagreed. She insisted that Mr. Wyndham was dealing only with determining the equalization payment and that the agreement had already been finalized.
110Mr. Bleta’s evidence was that the butterfly was an essential term of the proposed agreement. Without it, the tax consequences of dividing the Companies would be too onerous. In his view, without that essential term, there could be no agreement on a division of ownership. I do not agree. The reference to a butterfly agreement in paragraph 21 mentions the completion of a butterfly agreement at a future date. The proposed terms of the STA were not predicated on the completion of the butterfly transaction.
111Mr. Bleta was referred to the Wyndham emails from April 2016 as well. In Mr. Bleta’s April 20, 2016 email to Mr. Wyndham, he stated: “The only entity being divided is Floriri. Bertha already signed off on the Family Trust and she has no shares in Niazi or Korce.” Mr. Bleta was asked about this statement as it was inconsistent with his evidence that the second paragraph of the Renunciation was inserted in error.
112Mr. Bleta’s evidence was that he was very frustrated with his sister at this point. Mr. Wyndham was suggesting an entirely new process which included due diligence and other steps that would lengthen the process. Mr. Bleta had provided Mr. Wyndham with the VTA and STA, and those documents contained the framework of the agreement. Mr. Bleta did not want to start going backwards by having to provide disclosure and go through a due diligence process including a full audit. Mr. Wyndham refused to provide his comments on the STA without those documents. That is not what he and his sister agreed to. Mr. Bleta confirmed that the negotiations between him and Mr. Wyndham in relation to the STA confirmed that there was no agreement between him and his sister at this point. They could not even agree on the most basic terms of the STA. Mr. Wyndham wanted more information and said the Renunciation was void. There was certainly no meeting of minds at this point. The December 2014 negotiations led the parties to a valuation date, not a closing date.
113Mr. Bleta wanted Mr. Wyndham to focus on preparing the documents for the butterfly transaction which Mr. Wyndham had said he could prepare in short order. Mr. Bleta conceded that Mr. English had told him as far back as September 2014 that the proposed butterfly transaction might not work and if it did, it would involve dividing up the portfolio of real estate differently than Mr. Bleta retaining ownership of Korce and Niazi and Ms. Aiello retaining ownership of Floriri.
114Ms. Aiello never signed the STA. Her understanding was that the Renunciation was sufficient to divide ownership plus whatever equalization payment was owed. She now understands that the shares must be transferred in order for a division of ownership to be complete. She does not object to that as long as the proper equalization payment is made.
The Sale of Niazi Properties
115Mr. Bleta sold a property located at 869 Runnymede Road to his cousins by way of a private sale on July 10, 2015, for $700,000. This property was owned by Niazi. Mr. Bleta did not advise his sister that he intended to sell it, nor did he account for or share any of the sale proceeds with her. Mr. Bleta’s daughter, Erica Bleta, signed the transfer on behalf of Niazi. Mr. Bleta made his daughter a signing officer of Niazi after December 2014.
116Ms. Aiello was shocked that the property sold at such a low price. Ms. Aiello wrote to her brother in February 2016 after she found out about the sale and demanded her share. When asked why she would do this when she considered herself the sole owner of Floriri and had resigned her interest in the BFT, she told the Court that her brother could not have it both ways. He could not tell her lawyer (Mr. Graham by this time) and TD Bank that he still had a shareholding interest in Floriri and then say that Ms. Aiello no longer had an interest in the BFT.
117Mr. Bleta’s evidence was that the Runnymede Road property was sold because the Company management office location on Judge Road was being sold and Niazi and Korce needed a new office. He planned to use the proceeds from the Runnymede Road property to buy the new office. As all the proceeds would be used for the purchase, there was nothing to distribute and therefore no accounting to his sister was needed. After the sale of the Runnymede Road property, Niazi purchased a property at 62 Sun Row Drive (the “Sun Row Drive property”) in Etobicoke for $790,000. All of the proceeds from the Runnymede Road property were used for that purchase. The Sun Row Drive property continues to be the management office for Niazi and Korce.
118Mr. Bleta also sold Niazi properties located at 435-438 Pacific Avenue on July 8, 2018, for $2,051,000 and 8 Castleton Avenue on February 1, 2019, for $2,805,000. The transfers were signed by Mr. Bleta’s wife, Mary Tersigni, on behalf of Niazi. Mr. Bleta appointed his wife a signing officer of Niazi after December 2014.
119Ms. Aiello testified that the Pacific and Castleton sales were done without her knowledge and consent, and she did not receive any proceeds or dividends from these sales. Ms. Aiello agreed that she was not involved in decision making in relation to BFT after 2014. Her concern was that if her brother was taking the position that their agreement to divide the Companies had never been finalized then why was he acting unilaterally on those sales?
120Mr. Bleta’s evidence was that pursuant to the May 11, 2018 Order of Justice Patillo, he and his sister each received $350,000 from the Pacific Avenue sale proceeds. Mr. Bleta’s evidence was that $350,000 was not paid to him but declared as a capital dividend of Niazi. The Niazi financial statements for the year ending February 28, 2019, showed that a dividend of $700,000 had been paid. Mr. Bleta said the financial statements were not accurate. There was no $700,000 dividend ever paid to him. The rest of the sale proceeds were reinvested into Niazi and Korce as were the sale proceeds from 8 Castleton.
121Ms. Aiello was directed to a letter to her brother’s former counsel, Mr. Kotnala, dated February 8, 2017, from Ms. Peritz. Ms. Peritz stated the following on behalf of her client regarding the sale of the Pacific Avenue properties:
Our client has informed us that your clients have listed the above-named properties for sale. These properties are owned by Niazi Holdings Incorporated. The Bleta Family Trust is the shareholder of Niazi Holdings Incorporated. Bertha Aiello is a trustee and beneficiary of the Trust.
Your clients have no right or entitlement to sell these properties without Ms. Aiello's consent, which she has not provided. What is more, Ms. Aiello advises that the sale price is below market value.
122Ms. Aiello was asked again why she was asserting that she was a Trustee of the BFT and requiring consent for the sale of the Pacific Avenue properties while at the same time relying on the Renunciation as final and valid. Her response was the same one given by her many times during this trial. She took these apparently contradictory positions to protect her interests during litigation in the event the Court found that she still had an interest in the BFT.
Other Litigation and Disputes between the Siblings
123Ms. Aiello testified that the animus from her brother towards her continued after 2014. In July 2016, he sued Floriri in Small Claims Court for two unpaid legal bills; one related to the sale of a property on Eglinton Avenue East when Mr. Bleta Sr. was still alive and the other regarding the sale of 12 Castleton in October 2014. Ms. Aiello was not aware of these invoices and the claim was dismissed at the trial level and again on appeal.
124In 2014, Floriri was sued by Custom Sound and Vision Inc. (“Custom Sound”) for the supply and installation of security cameras in Floriri buildings. Custom Sound is owned by Mr. Bleta’s brother-in-law. Ms. Aiello’s position was that the cameras never worked and that she was overcharged. However, she was unsuccessful in that lawsuit and Floriri paid Custom Sound over $76,000.
125In May 2015, Ms. Aiello filed a complaint with the Law Society of Ontario about her brother in relation to his alleged conflict of interest in acting for her in the fall of 2014. Ms. Aiello was not represented by counsel at that time. In response, Mr. Bleta threatened (indirectly) to report his sister’s alleged stealing and fraud to the police. He agreed that it was not appropriate to threaten criminal charges to gain leverage in a civil proceeding. He told the Court he was very emotional about his sister’s complaint to the Law Society and has never actually made any report about his sister to the police. Mr. Bleta further agreed that it was inappropriate and that he had used improper language to refer to some of his sister’s actions as criminal offences in his October 16, 2015 email to Mr. Graham or to suggest he would call the police on his sister’s lawyers. Ms. Aiello has commenced a claim for damages for professional negligence against her brother. That claim is currently stayed pending the release of this judgment.
126In August 2015, the parties had a dispute about Ms. Aiello removing furniture from the Judge Road property. The closing date was looming and the building on the property had to be emptied. Mr. Bleta did not agree that Ms. Aiello could remove certain items. He contacted the police and told them that she was not permitted to enter the Judge Road property as it was owned by KB, and he was the sole officer and director of KB. All of KB’s assets were estate assets. Mr. Bleta agreed that as his sister is a co-Estate Trustee of his father’s estate, she had as much right to enter the Judge Road property as he did.
127In 2018, Ms. Aiello commenced an action against Niazi and Korce for release of the GIC and repayment of loans owed to Floriri. That action is also stayed pending the results of this proceeding.
128Mrs. Bleta Sr. had been declared incapable of managing her property or personal care in June 2010. Ms. Aiello and Mr. Bleta had been appointed joint guardians of property for their mother. This arrangement did not work well. Mrs. Bleta Sr. lived with Ms. Aiello, and she had been receiving $1,000 per month towards her mother’s expenses from the Companies since 2012. Ms. Aiello objected when her brother attempted to move her mother to a new location and replace her as a caregiver. Mr. Bleta also stopped paying the $1,000 per month to Ms. Aiello for their mother’s expenses.
129Ms. Aiello commenced an application to remove both her and her brother as Attorneys for property. A Guardian of Property (Mr. Doug Lewis) was appointed in 2018 and Ms. Aiello received $103,000 by way of compensation for expenses she had paid personally for her mother until the new guardian was appointed. John Karl testified that his uncle’s withholding of expense money for their grandmother made things very difficult for his mother financially as she had to cover all of his grandmother’s expenses until the litigation was settled in 2018.
130Mr. Bleta had been appointed his mother’s primary Attorney for Personal Care on December 18, 2009, and Ms. Aiello was named as the alternate. Ms. Aiello did not believe that her brother was acting in her mother’s best interests by attempting to remove her from her home. She commenced an Application to have her brother removed as Power of Attorney (“POA”) for Personal Care. The Application was heard in December 2019. The parties’ sibling Marline supported her sister’s Application.
131The Court found that Mr. Bleta was not acting in good faith by failing to foster regular contact between Mrs. Bleta Sr. and supportive family members and friends, and that Mr. Bleta blamed Ms. Aiello for his inability to carry out his duties as POA for Personal Care. The Court found that Mr. Bleta’s further argument that Ms. Aiello would cloister their mother from the rest of the family was unfounded. Mr. Bleta was removed, and Ms. Aiello named as Attorney for Personal Care. She remained in that position until the death of her mother in 2020.
132Ms. Aeillo testified that as result of this litigation, she found out information about her brother which greatly concerned her. Ms. Aiello’s understanding was that KB was incorporated to manage the Estate’s assets, not own them. She is now aware that she signed both a statutory declaration and a Declaration of Trust by KB in 2012 which states that KB would both own and manage all the Estate’s assets. Ms. Aiello’s evidence was that her brother often gave her documents to sign before their disputes began. She trusted him and signed the documents he gave her, sometimes without reading them.
133KB’s accounts had traditionally been at TD. In September 2015, Mr. Bleta opened a new account at CIBC. He did not inform Ms. Aiello of this. After two years, she was finally added to the account when lawyers became involved. Ms. Aiello was also not aware until this litigation that her brother was the sole officer and director of KB. She was very upset when he sold 15 properties from the KB portfolio after her father’s death without consulting her as the co-trustee and a beneficiary of the Estate. There is ongoing Estate litigation which has not yet been resolved.
134Prior to 2016, Ms. Aiello had been using an email account controlled through KB, namely bbleta@bellnet.ca. In August 2016, her brother cancelled that email account without notice to her. She has been unable to retrieve those emails as all access to the account was denied to Ms. Aiello by Bell and her authority on the account was removed.
135Ms. Aiello owns a home at 1307 Royal York Road (the “Royal York property”) which she purchased in September 2012. Her brother did the legal work on the purchase. Despite requests, Ms. Aiello did not receive a copy of the purchase report until 2014. When she received the report, she discovered to her dismay that Mr. Bleta had added himself on title as a 50% joint owner of the home without her knowledge or consent.
136Mr. Bleta was shown his letter to TD Bank, dated September 28, 2012, when he acted for the bank in relation to the mortgage required for the purchase of the Royal York property. The letter clearly indicates that Ms. Aiello was to be sole purchaser/mortgagor of the Royal York property. Ms. Aiello commenced litigation against her brother and in August 2018, Justice Dow ordered that Mr. Bleta be removed from title and pay costs to Ms. Aiello of $10,000.
The Expert Evidence
The Plaintiff’s Experts
1) Mr. Wayne Crawford
137Mr. Wayne Crawford (“Mr. Crawford”) testified as an expert review appraiser and gave his opinion on the value of the Floriri properties located on Lakeshore Boulevard West and at Jane/Hawthorne.
138Mr. Crawford has impressive qualifications. He has been in the appraisal business since 1978. He joined Appraisal Group Inc. in 1981, and ultimately became President of that business. He started out doing residential appraisals and expanded his experience into income producing, industrial and commercial properties over time. Mr. Crawford served as Chair of the Toronto Chapter of the Appraisal Institute of Canada for 18 years and was named as a Fellow of that Institute given his years of service. He has extensive experience appraising multi-unit buildings. His qualifications were not contested by the Defendants.
139Mr. Crawford prepared an appraisal report, dated May 27, 2021, in relation to the buildings located at 2303 to 2307 Lakeshore Boulevard West, Toronto. He valued them at $29,450,000 as of May 4, 2021. These properties are owned by Floriri and are comprised of three residential apartment buildings with 38 units in each building. Mr. Crawford prepared the report in consultation with his colleague, Mr. Hrach Shehirian (“Mr. Shehirian”), who also has an AACI designation. Mr. Shehirian did all of the onsite inspections.
140The report describes the buildings as being in “very good to excellent condition overall.” 84% of the total units have been renovated, with 60 units being fully renovated and 36 with partial renovations. 11 units were undergoing renovations at the time of inspection.
141Mr. Crawford testified that he reviewed all of Mr. Shehirian’s work and they discussed the methodology used and data gathered in detail. This is especially important for a report prepared for litigation purposes.
142Mr. Crawford told the Court that he used the direct comparison approach and a variation of the income approach in valuing the property as opposed to only the direct comparison approach. The report sets out that this is best for the type and class of real estate being appraised.
143To assist with income approach, Mr. Crawford sought income and expense information from Ms. Aiello. All information requested was provided. The report assumes that the reported rents on the rent roll did not exceed the maximum legal rents.
144Mr. Crawford also provided an appraisal report with respect to the properties at 2251, 2253, 2255, 2257 Jane Street and 28 and 32 Heathrow Drive in Toronto. Those properties were appraised at $15,200,000,00 as of September 27, 2021. These are six three-level walk-up buildings with a total of 66 units owned by Floriri. The report notes that prior to 2015, the buildings had fallen into disrepair, but costly repairs and maintenance have resulted in the buildings being described as being “in very good condition overall.”
145The same approach and assumptions were used to value these properties as was used to value the Lakeshore property.
146On cross examination, Mr. Crawford was asked if, in order to understand the effect of an investment on value, one would have to do an appraisal before the renovations and after. He did not agree. His view was that going back in time to assess real estate values for properties such as this is problematic given different interest rates, the effect of COVID-19, and any changes in supply and demand in the marketplace. He also agreed that how a building is managed can affect value if tenants feel they are respected, and their concerns addressed. If that occurs, they are more likely to be accepting of future rent increases and pay ongoing rent.
2) Mr. Edward Tobis
147Mr. Edward Tobis (“Mr. Tobis”) is a Chartered Professional Accountant (“CPA”) and a Chartered Business Valuator (“CBV”). He is a Director at Secretariat International, a boutique business advisory and consulting firm. He specializes in the preparation of business valuation and economic damages reports for commercial litigation and international trade and investment disputes. His work experience is global and extensive and includes preparing experts’ reports for litigation in relation to multi residential real estate assets. Many of the litigation reports he has done were for small to mid-size businesses in the GTA with shareholder disputes similar to the one in this case. Mr. Tobis was of the view that, given his experience and education, he could appropriately assess the Companies and conduct the required financial analysis.
148Mr. Tobis’ qualifications to give expert evidence were not contested. Mr. Tobis gave the required expert’s undertaking and understood his obligations in relation to that undertaking.
149Mr. Tobis was qualified to provide an expert opinion on the change in financial performance and position of Floriri, Niazi and Korce and their underlying real estate assets from December 2014 to date. Mr. Tobis prepared two reports. Mr. Tobis summarized his task as completing a comparative analysis of the three real estate holding companies between two specific dates. He notes that the real estate assets he was comparing were approximately the same age and located in the west region of Toronto. All were in a state of relative disrepair at the start date of the report in 2014.
150Mr. Tobis’ first report is dated August 16, 2021 (the “first report”). The second report is dated November 21, 2021 and is Mr. Tobis’ reply to the report of the Defendant’s expert Ernst & Young dated October 29, 2021 (the “reply report”). The reply report responds to certain criticisms of the first report by Ernst & Young and updates information in the first report based on additional information received by Mr. Tobis after August 16, 2021.
151Mr. Tobis relied on appraisals for the Lakeshore property dated July 7, 2017 and May 4, 2021 and appraisals for the Jane/Heathrow property from October 23, 2015, July 25, 2017, July 24, 2020 and September 27, 2021. He also relied on financial statements, shareholder registers and resolutions, tax returns, trial balances, general ledgers, rent logs and property tax bills provided by the parties in relation to the Companies. He was provided copies of the pleadings, the Renunciation, transcripts of Mr. Bleta’s examination on July 23-25, 2021 and certain affidavits of the parties. He also relied on documents provided by the accounting firm for some of the Companies, Crowe Soberman, and independent market research. Certain documents had been requested from Niazi and Korce but were not provided by the time the reports were prepared. Mr. Tobis added that it would have been helpful to have appraisals for the Niazi and Korce properties, but none had been prepared. Mr. Tobis then gave a brief review of his understanding of the dispute between the parties and the properties owned by each of the Companies. He was also aware that Niazi had sold three properties and purchased one property since 2014.
152To prepare his analysis, Mr. Tobis reviewed the Companies’ Financial Statements, trial balances, general ledgers, the appraisals of the Floriri properties, shareholders’ resolutions and registers, and memos and documents from Crowe Soberman, Pleadings, and other legal documents provided by counsel. By way of market research, Mr. Tobis reviewed various reports published by the Toronto Regional Real Estate Board (“TRREB”). Mr. Tobis testified that it would have been helpful to have appraisals of the Niazi and Korce properties at or near the start and end dates, but none were provided to him.
153Mr. Tobis examined four sources of information in doing his overall analysis; real estate appraisals (there were none provided for Niazi or Korce), changes in rental income and relevant expenditures, return on capital expenditures, and payments to non-arms length individuals, and discretionary and personal expenses.
154After completing his analysis, Mr. Tobis concluded that “Flori[ri]’s rental revenue increased at rates that significantly exceeded the growth rates of Niazi, Korce and comparable units in the Toronto real estate market”: at para. 139. Mr. Tobis further concluded that Floriri has been able to increase its rental revenue while incurring a similar amount of capital expenditure to Niazi and Korce. Overall, the Companies incurred similar levels of wages and benefits and management fees fell within market rates.
155Dealing with each area in turn, Mr. Tobis first undertook an appraisal analysis of both the Lakeshore and Jane/Heathrow properties. He considered net operating income (“NOI”) and capitalization rates. Capitalization rates (the “cap rate”) were calculated by dividing the NOI by property value as a percentage ratio to illustrate the potential return on those real estate investments. Overall, NOI went up and the cap rate went down for the Floriri properties, resulting in increased value through to September 2021. Specifically, the NOI for the Lakeshore property doubled between the July 2017 and the May 2021 appraisal. Mr. Tobis conceded that, given the Toronto real estate market, even if management did nothing to the buildings, they would have gone up in value due to cap rates coming down. However, the increased NOI accentuates the increase in value and NOI is impacted by management decisions.
156Mr. Tobis used the compounded annual growth rate (“CAGR”) to determine that rental revenue increased by 9.3% and NOI increased by 15.2% for the Lakeshore properties between the 2017 and the 2021 appraisals. Mr. Tobis described the use of CAGR as a way to compare business entities to one another and is a commonly used metric in the investment, financing and accounting industry.
157Mr. Tobis testified that the trend for the Jane/Heathrow property was similar to the Lakeshore property. The value of the Jane/Heathrow property more than doubled between August 2015 and September 2021. Using a CAGR analysis, Mr. Tobis concluded that rental revenue increased by 5.6% and NOI increased by 12.6% for the Jane/Heathrow property between the appraisal dates of 2015 and 2021.
158Mr. Tobis was asked in cross-examination about whether he had done an analysis to determine what proportion of Floriri’s increase in value was due to market factors versus management decisions. Mr. Tobis had not done such an analysis, but his view was that one was not needed. As stated by Mr. Crawford in his evidence, a large increase in NOI is an indication of managerial decisions but a decreased cap rate would not be as correlative.
159Mr. Tobis then analyzed the income statements of Floriri to determine income and expenses up to 2021. He determined that the net operating margin (stated as a percentage) increased from 7% in 2015 to a high of 52% in 2019 and 2020 and dropped to 38% in 2021. The higher the operating margin, the healthier the business financially. Mr. Tobis noted that Floriri’s vacancy levels had decreased from a high of 27% in 2014 to a low of 2% in 2018 rising again to 11% in 2020. This contributed to an increase in net operating margin notwithstanding the ongoing renovation of units.
160During the same period, Niazi’s net operating profit margin was 1% in 2015, rising to a high of 35% in 2021. Its operating margin in 2019 was a negative 24% due to extensive repairs and maintenance required for Niazi’s holdings. The margins were much lower than those of Floriri. Mr. Tobis noted that the repairs and maintenance in 2019 may have been provoked by Niazi’s failing scores on RentSafeTO. RentSafeTO is a website that is publicly available. The City of Toronto undertakes audits of Toronto rental buildings and provides them with a score. The scores are then posted on the RentSafeTO website. The audits include safety issues, building quality, etc.
161During 2015 to 2021, Korce’s net operating margin was 4% in 2015, rising to 20% in 2021. Korce had significant repairs and maintenance in 2016 leading to a negative 11% in net operating margin in that year. Korce’s net operating margin was quite a bit lower than Floriri for the same period.
162Mr. Tobis’ reply report indicated that with the additional information he received about Korce for 2021, he opined that its rental revenue and NOI improved over 2020.
163With respect to capital expenditures, Mr. Tobis reported that Floriri incurred $643,000 in capital expenditures between 2015 and 2021. During the same period, Niazi incurred over $2M in capital expenditures and Korce incurred $1.2M in capital expenditures. Mr. Tobis concluded that after the parties agreed to divide the assets, Floriri was able to increase its NOI beyond the amount of its capital investment thereby indicating a positive return on investment. However, for Niazi and Korce, their capital expenditures were larger than their incremental rent revenue, indicating a negative return on investment. In Niazi’s case, the cumulative capital expenditures were four to five times the incremental rental revenue and NOI over the time period.
164As for management fees and discretionary and personal expenses incurred by Companies, Mr. Tobis found that while the management fees of Floriri (made up of the fees paid to Ms. Aiello and John Karl) exceeded the management fees taken by Mr. Bleta, the wages and benefits paid by Mr. Bleta (to relatives) exceeded the wages and benefits paid by Floriri to third party employees. In the end, the numbers were not far apart, and Mr. Tobis opined that none were outside market rates.
165Using TRREB data and market comparisons, as well as the comparisons above, Mr. Tobis concluded that Floriri outperformed the market, and Niazi and Korce underperformed the market. His overall conclusion is set out below:
Since the Parties separated the management of the Companies by December 2014, Floriri's rental revenue has increased at rates that significantly exceeded the growth rates generated by Niazi, Korce, and comparable units in the Toronto real estate market. Floriri has increased its rental revenue while incurring a comparable amount of capital expenditures to Niazi and Korce. Floriri has also generated a higher net operating income CAGR than Niazi and Korce over the relevant time period.
The Defendant’s Experts
1)The Ernst & Young Reply Report
166Mr. Andrew Cochran (“Mr. Cochran”) and Mr. Steve LeFaivre (“Mr. LeFaivre”) from Ernst & Young (“EY”) were engaged by Mr. Bleta to respond to Mr. Tobis’ report. Mr. LeFaivre gave evidence on the reply report at trial. Mr. Cochran did not give evidence but co-signed the report.
167Mr. LeFaivre is the Vice-President of the transaction real estate team at EY. He is the most experienced AACI for EY across Canada. He oversees the valuation work on all of EY’s audit work, which amounts to approximately $50M per year. Mr. LeFaivre made certain criticisms of Mr. Tobis’ report. Mr. LeFaivre has a degree in business and accounting plus a post graduate certificate in property valuation. He has had his AACI designation since 2011. Mr. LeFaivre has worked in the real estate appraisal business since 2006, and has experience with multifamily assets, shopping centres, industrial buildings and a variety of type of real estate holdings with much of his work focussed on the GTA. Mr. LeFaivre understood his duty as an expert and his qualifications were not contested. He was permitted to give expert testimony on real estate appraisals and review and comment on the conclusions and methodology in Mr. Tobis’ reports.
168Mr. LeFaivre’s first comment was that Mr. Tobis used his background as a business valuator to analyze financial statements and then made conclusions about the financial performance of real estate over a certain period of time. Mr. Tobis’ methodology lacked recognition that value in real estate is complex and is derived from a number of things including income characteristics, physical components of the asset and external factors such as market liquidity, investor demand and tenant demand.
169Mr. LeFaivre also criticized Mr. Tobis’ reliance on the use of CAGR as a metric because it puts too much emphasis on the base year and end year which assumes a constant average growth rate and ignores fluctuations in rental revenue. Mr. Tobis disagreed. His view was that CAGR is a useful metric because it measures the relative performance of real estate over several years. When assessing performance over a five to six-year period, it is appropriate to compare the first and final years.
170Mr. LeFaivre noted as well that Mr. Tobis measured Floriri’s rental performance based on rental growth over a base year of 2015. He opined that this was not a proper measurement of rental performance because it did not take into account the fact that buildings with low vacancy rates are ones which tend to have rent controlled units for which rent cannot be increased at the same rate as non rent controlled units.
171Mr. Tobis did not agree with this analysis. His opinion was that the stabilized revenue approach taken by EY did not take into account location, poor management, marketing, or investment into the building. He further opined that such an approach may reward a manager who does not overcome adverse conditions that existed at the beginning of the period.
172The EY report was also critical of Mr. Tobis’ use of TRREB data, stating that TRREB’s market data is skewed towards high rise condominiums and is therefore not a good comparison to use for older, low-rise apartment buildings. EY preferred the use of primary data sources such as actual rental transactions in comparable buildings.
173Mr. Tobis did not agree with this statement. He noted that 92% of apartment buildings in the Toronto West region (to which he had limited his data) were constructed prior to 1979. As well, since 2014, 65% of the apartment buildings in the Toronto West region had fewer than 200 units, and 40% had fewer than 50 units. Therefore, Mr. Tobis’ view was that the use of TRREB data was a relevant comparator as the Toronto West region contains properties which share characteristics with the Companies’ properties.
174Mr. LeFaivre’s report indicates that Mr. Tobis failed to analyze repair and maintenance expenses to ensure they had not been incorrectly classified as capital expenditures. If so, this would result in a skewed perception of management performance. Mr. Tobis responded that all the financial statements he reviewed were prepared by Chartered Professional Accountants. Further, he mentioned that any incorrect classification of repairs and maintenance could result in a CRA audit or penalties. There was no evidence that the Financial Statements provided should not be relied on.
175The EY report suggests that Mr. Tobis failed to reflect the long-term nature of “rental revenue uplift” arising from capital investment or the negative impact on rental revenue of renovation disruptions. Mr. Tobis defended his methodology and confirmed that his analysis properly compared the effect of capital expenditures on rental revenue and NOI from the date of division of management to 2021.
176Finally, the EY report insisted that Mr. Tobis’ failure to any analysis of the impact of Niazi’s property acquisitions and dispositions ignored a key metric in assessing the effectiveness of management and the value added for those assets. Mr. Tobis’ response was that dispositions and acquisitions were not a suitable metric to evaluate a change in financial performance. All of the properties disposed of were purchased by Mr. Bleta Sr. during a time when he was still involved in management. Therefore, the returns on disposition of those properties are not a proper indicator of Mr. Bleta’s management performance.
177Mr. Tobis testified that none of the criticisms or opinions in the EY report caused him to change his view on the change in relative performance of the Companies since 2014.
Mr. Paul Gibney
178Mr. Gibney is a tax expert called by the defence with respect to whether the butterfly transaction references in the STA could have been effected. While Ms. Aiello did not quibble with Mr. Gibney’s qualifications, there was an objection to him giving evidence on the grounds of relevance. There is no mention of tax deferral or a butterfly transaction in the Defendant’s pleadings.
179I permitted Mr. Gibney to give evidence based on his letter dated February 26, 2019, as his evidence was brief. I ruled that Mr. Lobl, on behalf of Mr. Bleta, could make argument as to the relevance of Mr. Gibney’s testimony in his written argument.
180Mr. Gibney is a partner at Thorsteinssons in Toronto. He has been a lawyer since 1991 and is recognized as a leading Canadian tax expert. Mr. Gibney explained that a butterfly transaction is not a single transaction but, rather, a number of complicated transactions. His opinion was that, whether or not the parties agreed in the STA to proceed with a butterfly transaction, given the corporate structure of the Companies, it could not be effected on a tax deferred basis.
The Parties’ Positions
Ms. Aiello
181Ms. Aiello’s position is that the totality of the evidence supports findings that:
a) In the fall of 2014, Ms. Aiello and Mr. Bleta agreed to divide ownership, not just temporary management, of the Companies;
b) Ms. Aiello has been the beneficial owner of Floriri and Mr. Bleta the sole trustee and beneficiary of the BFT, since the end of 2014;
c) Ms. Aiello and Mr. Bleta agreed on all essential terms of the 2014 Agreement;
d) Ms. Aiello and Mr. Bleta were in a trust relationship and Mr. Bleta owed fiduciary duties to Ms. Aiello when they agreed;
e) Ms. Aiello relied on Mr. Bleta in legal and financial matters and Mr. Bleta was aware of his sister’s trust and confidence and resulting vulnerability;
f) Mr. Bleta drafted the legal documents to implement the 2014 Agreement;
g) Ms. Aiello released all her interest in the BFT absolutely and finally when she signed legal documents her brother drafted, putting Mr. Bleta in absolute control of BFT and its assets;
h) Ms. Aiello relied on Mr. Bleta’s promise that she owned Floriri to increase Floriri’s value compared with Niazi’s and Korce’s values. She invested time and resources in Floriri based on Mr. Bleta’s assurances and promises. Mr. Tobis’ report highlights the disparity between Floriri and Niazi and Korce, which provides uncontroverted evidence of Ms. Aiello’s detrimental reliance on Ms. Bleta’s promise.
i) Ms. Aiello and Mr. Bleta cannot revert back to co-ownership and co-trusteeship – their conflict is intractable, and these transactions cannot be unwound in any case.
j) Ms. Aiello never requested a dissolution of the Temporary Arrangement suggested by Mr. Bleta because she was not aware it existed. The arrangement was a permanent one evidenced by Mr. Bleta selling 8 Castleton and 869 Runnymede Road and purchasing 62 Sun Row Drive without Ms. Aiello’s consent
k) If Mr. Bleta is successful, he will be unjustly enriched by Ms. Aiello’s financial and personal efforts to improve Floriri. She will suffer a corresponding deprivation as she alleges that Mr. Bleta mismanaged Niazi and Korce and thereby reduced their value.
l) Ms. Aiello relied on her brother’s promise to transfer his common shares in Floriri to her. In reliance on that promise, Ms. Aiello signed the Renunciation.
The Respondent
a) Ms. Aiello is not entitled to equitable relief as she was not a vulnerable party, having been represented by counsel, namely Mr. English, Mr. Wyndham, Mr. Graham and Ms. Peritz. Further, she gave evidence that she has managed two large apartment complexes and transformed them into well rated rental units in Toronto. She is not as unsophisticated as she would have the Court believe.
b) Mr. Bleta could not and was not acting in the capacity of either a lawyer or a fiduciary for his sister. They were “at war” in her words and did not trust one another. That situation has been the status quo since 2013.
c) Ms. Aiello cannot rely on promissory estoppel. Mr. Bleta could not have promised his sister that she “owned” Floriri because he still owned 50% of the shares in Floriri. Ms. Aiello’s evidence with respect to this relief is completely unreliable as she says she renounced her rights to the BFT when she signed the Renunciation, while in subsequent litigation took the position that she remained a Trustee of the BFT and required an accounting and share of any sale proceeds of BFT property.
d) Any improvements made by Ms. Aiello over the years to Floriri do not give rise to a claim in equity. She was simply discharging her duties as an Officer and Director of Floriri, nothing more.
e) Ms. Aiello’s claims are statute-barred as amendments to her Claim were not sought until December 2020.
f) There was no contract between the parties as there was no offer and acceptance, no agreement on essential terms including repayment of the intercorporate loans, the amount of the equalization payment and tax consideration, no consideration and no meeting of the minds. At no time were the parties’ ad idem.
g) Floriri has not been profitable between 2015 and 2019 due to Ms. Aiello’s mismanagement of Floriri and as a result of overcompensating herself.
h) Ms. Aiello has not demonstrated that Mr. Bleta would receive any material benefit as a result of her stewardship of Floriri from December 2014.
182Mr. Bleta’s position is that in the fall of 2014, he and his sister entered into a “Temporary Arrangement”, the terms of which were generally as follows:
(a) Ms. Aiello would manage the Floriri Properties and Mr. Bleta would manage the Niazi Properties and Korce Property;
(b) On a temporary basis Ms. Aiello resigned as a trustee of the BFT. Ms. Aiello was appointed to the Board of Directors for Floriri and Mr. Bleta remained on the Board of Directors for Niazi and Korce:
(c) Ms. Aiello would be the sole officer of Floriri and Mr. Bleta would remain the sole officer and director of Niazi and Korce;
(d) Mr. Bleta and Ms. Aiello would be permitted to take a modest salary from the net funds generated by the companies and related properties they managed, net of expenses and monies required to perform general maintenance and upkeep;
(e) Mr. Bleta and Ms. Aiello would provide each other with full disclosure with respect to the properties they were managing;
(f) Mr. Bleta and Ms. Aiello would consult with each other prior to any decisions or actions that were material or outside of the ordinary course of business;
(e) Mr. Bleta and Ms. Aiello would be accountable to each other for any mismanagement of the properties and companies under their temporary control; and,
(h) The Temporary Arrangement would govern Mr. Bleta and Ms. Aiello while they negotiated the terms of a final agreement that would see the properties divided between them or liquidated with the proceeds shared equally, subject in both of the aforementioned cases to an equalization payment and accounting.
183Mr. Bleta submits that it was an implied or express term of the Temporary Arrangement that either party, on notice to the other, could dissolve the Temporary Arrangement and request that the business revert back to the way it was prior to the Temporary Arrangement.
The Issues
184The main legal issue in this case is whether or not the dealing between the parties led to a binding agreement such that Ms. Aiello can purchase her brother’s interest in Floriri in exchange for an equalization payment.
185There are several sub-issues under the main issue including the following:
a. Were the parties in a fiduciary relationship?
b. How should the Renunciation be interpreted?
c. Were the parties’ intentions to divide ownership or just management?
d. Did the parties agree that the Renunciation was just an agreement to agree to future binding agreements?
e. Does the parties’ conduct favour an interpretation that the parties were bound by the Renunciation and a division of ownership as of October 1, 2014? If so, how should this agreement be effected?
f. If e) above is true, is Ms. Aiello entitled to a declaration that she will purchase her brother’s interest in Floriri in exchange for her interest in the BFT and an equalization payment?
g. Does the doctrine of proprietary estoppel require Mr. Bleta to transfer his shares in Floriri to his sister?
Were the Parties in Fiduciary Relationship?
186As set out in Waxman v. Waxman, 2004 39040 (ON CA), [2004] O.J. No. 1765 (C.A.), in order to establish a fiduciary relationship, the badges of such a relationship must be present: at para. 720. It is not sufficient to simply say that one relies on or trusts another for the duty to arise. This Court must determine if 1) Mr. Bleta had some scope to exercise some discretion or power; 2) whether he could exercise that power unilaterally to affect his sister’s legal or practical interests; and 3) whether Ms. Aiello was vulnerable to the exercise of that power or discretion.
187Based on the evidence in this case, it is not difficult to find that such a relationship existed between these siblings. The evidence in support of this may be summarized as follows:
a. Both conceded that they trusted the other.
b. Ms. Aiello took unquestioning direction from her father during his lifetime and that same direction from her brother upon her father’s death.
c. Ms. Aiello’s trust in her brother was implicit and broad. He was her superior in the family business and her lawyer. While Ms. Aiello’s evidence was that her brother acted as her lawyer with respect to the Renunciation and the other negotiations in the fall of 2014, I do not make a finding as to whether or not he acted as her lawyer at that time. However, it is clear he had acted as her lawyer in the past on everything from house purchases to corporate issues with the Companies. I accept her evidence that she blindly signed whatever documents her brother put in front of her because he was her brother, they had always been close, she trusted him, he had always acted as her lawyer, and she had no reason to believe that signing the documents would not be in her best interests.
d. It is clear that Mr. Bleta was aware that his sister was vulnerable. Indeed, she had no idea until several years later that he had put himself on title as a 50% owner of her home without her knowledge. Mr. Bleta never made those circumstances clear until Ms. Aiello demanded a copy of the purchase report. Ms. Aiello was then forced to take Mr. Bleta to Court to “undo” what she had blindly allowed Mr. Bleta to do.
e. Mr. Bleta knew that his sister was vulnerable and that at the time of signing the Renunciation, she did not have counsel (whether it was signed in October or December 2014). His evidence was that he encouraged her to obtain independent legal advice but with what? She had to terminate Mr. English’s retainer because Mr. Bleta would not allow her to access company funds to pay a lawyer. I find that he exercised control over his sister in all aspects including financial, business and emotional control.
188Mr. Bleta submits that there could never have been a fiduciary relationship between him and his sister at the relevant times because he had accused her of theft and fraud, an allegation from which he has never resiled. This informed his state of mind throughout his negotiations with and attitude towards his sister since alleged discovery of the wrongdoing in early 2014.
189While it is true that Mr. Bleta has never withdrawn this allegation, it is hard to discern just how much it informed his actions. If one accepts Mr. Bleta’s argument, then why would he have only divided management, thereby allowing his sister to continue collecting rents for Floriri and apparently continuing with her wrongdoing? If ownership was not divided as Ms. Aiello contends, Mr. Bleta would have continued to be responsible for his sister’s wrongdoing as a 50% owner of the Floriri common shares. With respect, his position does not make sense. The more sensible view is that Mr. Bleta wanted to completely disconnect from his sister so that he would no longer be responsible for her management decisions and alleged wrongdoing.
190I find that Mr. Bleta took advantage of his sister’s vulnerability and attempted to exercise control by acting in an intimidating manner towards her. At one point during the course of this litigation, he wrote to her:
You belong in a worse place than jail. You have stolen from me and my children, humiliated my father's name, and kept my mother from me and my family; but now you will lose everything and go straight to hell.
What Weight Should be Given to the Renunciation and the Parties’ Conduct Thereafter?
191It is clear from the evidence at trial that Mr. Bleta treated the Renunciation as permanent and final when it suited him and temporary when it did not. For example, in an email to Mr. Wyndham in April 2016, which was referenced a number of times at trial, Mr. Bleta said that his sister “already signed off on the Family Trust.” In an email to Mr. Graham dated October 13, 2015, Mr. Bleta stated “your client has no interest in the trust.”
192However, in his Statement of Defence in this action, Mr. Bleta pleaded that his sister resigned as a trustee of the BFT on “temporary basis and has not yet been reinstated.” Mr. Bleta’s evidence was that the temporary arrangement would end when the judgment in this matter was released. This was apparently news to Ms. Aiello.
193In attempting to explain away his contradictory positions, Mr. Bleta told the Court that when he told Mr. Wyndham and Mr. Graham that his sister was no longer a Trustee of the BFT, that was purely for negotiating purposes. When it was suggested to him that it was very likely that both his sister and her lawyer relied on those statements, he agreed that was true. He told the Court that it was necessary to understand the “context” of his statements because he was frustrated by his sister’s inaction to move the actual division forward.
194There were also problems with the Renunciation document itself. Mr. Bleta testified that the date was wrong (it was not signed on October 1, 2014, it was signed on December 12, 2014). Further, paragraph 2 in the Renunciation should not have been included. It was part of a precedent he was working from and neglected to edit. He agreed that nowhere in the Renunciation did it say that it was intended to be a temporary arrangement, nor does it state that the Renunciation relates only to management and not ownership. There is also the fact that neither the Trustee Act, R.S.O. 1990, c. T.23, nor the BFT permits the temporary resignation of a trustee.
195Certainly Mr. Bleta acted as if his sister’s resignation was permanent. He sold the Niazi properties on Runnymede Road, Pacific Avenue and Castleton Avenue without any consultation or accounting to his sister. He managed the Niazi and Korce properties after the fall of 2014 without consulting with his sister. Indeed, he gave authority to his daughter and his wife as signing officers for Niazi to sign sale documents for the properties. Further, he refused to assist his sister with re-financing Floriri’s mortgage with TD Bank when it became due in August 2015. He told the bank that he would no longer guarantee the Floriri mortgage and that he had not been operating Floriri since December 2014. It is hard to view this as a “temporary” arrangement when Mr. Bleta’s actions were those of an owner who had withdrawn from Floriri and was acting unilaterally in relation to the BFT. After December 2014, he never treated his sister as either trustee or beneficiary of the BFT.
New para? Mr. Bleta and Ms. Aiello were joint trustees of the BFT and were therefore bound to act unanimously. In McConnell v. McConnell, 2015 ONSC 2243, the Court, at para. 138, cites D.W.M. Waters, Law of Trusts in Canada, 2nd ed (Toronto: Carswell, 2012), at p. 902, which states: “Trustees have to act unanimously, and, if they are unable to agree on the exercise of their powers, it is clear that the trust and beneficiaries are going to suffer.”
196Mr. Bleta did nothing of the sort after the Renunciation was signed. All of his actions were consistent with the Renunciation being permanent and final. The opposite is true as well. Mr. Bleta did not interfere with his sister’s management and control of the Floriri properties. He was aware that she had refinanced the mortgage, made large-scale improvements, hired her son and taken over all management and administrative duties. He did not oppose or object to such significant steps. Neither of them provided any form of accounting to the other nor did they disclose financial information to the other. They acted independently and unilaterally. Mr. Bleta now wishes to rewrite this history and somehow characterize it as temporary.
197Mr. Bleta insisted that the Renunciation was temporary because the STA needed to be signed to finalize the division of ownership. Ms. Aiello testified, and I accept, that this was never made clear to her. She assumed that the valuations done as of November 30, 2014, and Mr. Gic’s assessment of the intercorporate debits and credits, were intended to facilitate the determination of an equalization payment.
198Mr. Bleta then told his sister that a VTA and an STA were required including the requirement that the division of ownership be done by way of a butterfly transaction. It is clear from listening to the evidence of Mr. Bleta and Ms. Aiello that the only person who really understands what a butterfly transaction is, is Mr. Gibney. Respectfully, Mr. Bleta had no understanding of what a butterfly transaction meant other than it could save or defer some tax. Based on Mr. Gibney’s expert evidence, a butterfly transaction is not realistic as it would not permit the “clean” division of ownership contemplated by the parties.
199It cannot be ignored that Ms. Aiello’s position in relation to the Renunciation was fluid as well. She has taken the position that when she signed documents or stated in court documents that she remained a Trustee of the BFT, it was only to protect her rights in the event that the Court found the Resignation to be void.
200While at first this position appears to be contradictory, in the end it makes sense. Ms. Aiello became aware that if the Renunciation was vitiated because she did not have legal advice, her duties as a Trustee of the BFT would have continued from 2014 to the date of this trial. Her requests for an accounting from her brother and her objection to the sale of property without her consent or knowledge stem from this same concern.
201However, at trial, Ms. Aiello never wavered from her position that at the time she signed the Renunciation she believed it was a final separation of the Companies, with only the equalization payment to be worked out and paid.
202Ms. Aiello’s evidence was that it would not make sense for her to have given her brother the BFT properties “for free.” Equitable principles presume that no gift was intended (see Pecore v. Pecore, 2007 SCC 17). As she said many times at trial, her brother cannot have it both ways. He cannot assume unilateral control over the BFT without completing his end of the bargain which was to transfer his shares in Floriri to his sister. Her reasonable expectation was that the Renunciation was a binding and enforceable agreement with only the calculation of the equalization payment outstanding. Both parties conducted themselves in a manner consistent with them viewing themselves as bound.
203Mr. Bleta was quick to point out that in an affidavit sworn by his sister on March 9, 2017, she stated at paragraph 32:
I do not recall ever seeing or signing the Resignation. I believe Leroy prepared it at the same time he thought we would divide the real estate assets and I would relinquish my interest in the Trust. Certainly Leroy never explained the Resignation to me.
204Certainly Ms. Aiello took contradictory positions in this litigation, as did Mr. Bleta. Mr. Bleta, after years of relying on the Renunciation as proof that his sister had no interest in Niazi or Korce, suddenly decided that the Renunciation was “temporary” and that his sister had not permanently resigned as a trustee of the BFT. This suited his position in the litigation much better than trying to explain why he had his sister sign a permanent resignation while at the same time attempting to argue that he only wanted to separate the management of the Companies. Both parties’ credibility in this trial was at times in question. However, it is this Court’s view that it is their conduct from September 2014 forward, in relation to the Companies, which informs the result in this case.
205In Jans v. Jans (Estate), 2016 SKQB 275, the Court dealt with how far it would go in striving to find an agreement between parties where uncertainty is in issue. In that case, there was an alleged oral agreement which was that two of the brothers (Bryce and Jay) would work at the Jans Ranch without compensation for an indeterminate period of time, that the other brother (Russell) would manage the Jans Ranch as if it were his own, and then at another indeterminate point in the future, Russell would transfer ownership of the Jans Ranch to his brothers equally. Bryce’s position was that he had fulfilled his obligations under the agreement, and he was therefore a beneficial owner of half of the Jans Ranch. He pleaded that there had been an oral contract and relied on promissory estoppel.
206The Court set out the importance of ensuring there was a meeting of the minds between the parties as well as certainty with respect to the parties, the property and the price. Citing 101090442 Saskatchewan Ltd. v. Harle, 2014 SKCA 6, 433 Sask. R. 62, at para. 51, the Court in Jans said, at para. 187, as follows (my emphasis):
Rigid application of the doctrine of certainty, therefore, could produce much mischief, especially in cases where the parties detrimentally rely on the assumption that a valid and enforceable agreement has been created. Accordingly, courts will attempt to fill gaps and find meaning in agreements in circumstances where it appears the binding agreement was intended by the parties.
The law of certainty of terms, then, reflects this tension between a requirement that the parties reach a complete and intelligible agreement and a reluctance to defeat the expectations of the parties that an enforceable agreement has been created.... As we shall see, the leading modern authorities tend to place particular emphasis on the need to give effect, where possible, to the expectations of the parties that they have entered into a valid and enforceable agreement.
207Mr. Bleta’s counsel argues there was no meeting of the minds as to a transfer of ownership in the fall of 2014, and that the various emails from Mr. Bleta at that time make this clear. Mr. Bleta was focused on dividing management so that he could deal with the rent issue. The banking and corporate resolutions were signed in early December 2014 to ensure that the parties could act as independent managers. Mr. Bleta submits that an oral contract could not possibly have been formed in the fall of 2014 as he had no intention of dividing ownership.
208I disagree. Turning to the required principles in Jans, the parties certainly understood what properties were in question. As for the price, the parties went to the time, trouble and expense of obtaining valuations of the holdings of the three corporations with the intention that an equalization payment be calculated as of December 1, 2014. There is also no question as to the parties involved. Finally, Ms. Aiello signed the Renunciation based on what I find to be Mr. Bleta’s assurance that this document was needed for a division of ownership.
209If only management was to be divided, why bother with the Renunciation? Mr. Bleta’s protestations that the Renunciation had the wrong date, was intended to be “temporary” and contained mistakes were all arguments which arose later when it suited him. I once again reference Mr. Bleta’s email to Mr. Wyndham, dated April 19, 2016, in which Mr. Bleta insists that the Renunciation signed by his sister meant that “she has no shares in Niazi or Korce” and that she could not “disregard a Shareholders’ Agreement that has already been acted upon by both parties since December 2014…”
210I find that the fact that the actual transfer of shares was never completed due to a dispute about the amount of the equalization payment does not mean the contract was not complete given that the essential elements of the contract were present.
211In Cdn. Northern Shield v. 2421593 Canadian Inc., 2018 ONSC 3627, the Court held that the standard to be applied with respect to whether the parties intended to contract and whether the essential terms can be determined with a reasonable degree of certainty is the perspective of a reasonable, objective bystander in the light of all the material facts: at para. 74. Specifically, the Court said, at para. 88:
“[E]ssential terms are in part defined by the nature of the transaction and the context in which the agreement is made. They are also defined by the parties’ interests.”
212In Prolink Broker Network Inc. v. Jaitley, 2013 ONSC 4497, the Court considered an alleged oral agreement that the Plaintiff had a 25% interest in Mr. Jaitley’s insurance brokerage. The Defendants argued there was no contract because there was no meeting of the minds and no agreement on all of the essential terms of the agreement. The Court disagreed and held that the parties agreed on the essential terms of the agreement, acted as if it was valid and the fact that they did not agree on the wording of the formal documents did not affect the enforceability of the agreements: at para. 35. In that case, only a letter of intent was signed. Importantly, the Court made the following observation, at para. 42:
42Were I to accept the position of the Defendants, it would mean that a party to a business arrangement could begin operating as if a contractual document were valid, but keep its options open in case it did not like the arrangement further down the road in the event that the other party, through inadvertence or otherwise, did not obtain the formality of a signature.
213It is this Court’s view that a reasonable objective bystander would conclude that the parties intended to contract and that the terms of the contract can be ascertained with certainty; that is, that the parties intended that Ms. Aiello would own all of the shares in Floriri and Mr. Bleta would own all the shares in the BFT. As in Prolink, there was no evidence that the parties intended or agreed that their agreement would not be binding until a formal written contract was signed. Further, like the Prolink case, Mr. Bleta acted as if the parties had divided ownership but later decided that he no longer liked the arrangement and now seeks to label it “temporary” and turn back the clock seven years.
214The parties’ conduct is integral in coming to a conclusion about intent. In this case, the conduct of both parties following the signing of the Renunciation was consistent with a binding agreement dividing ownership. Only the equalization payment remained outstanding. The parties then took agreed upon steps (valuations and accounting) to determine what was owed.
215Mr. Bleta insists that the parties’ conduct is of minimal importance because they had not signed essential documents necessary to finalize the division of ownership. I do not agree. One signed document such as the Renunciation in this case, can be sufficient so long as the parties’ intentions can be ascertained as to any further terms of the agreement. In Prolink, the only document signed was a letter of intent. The Defendant argued that the letter of intent was not binding because the parties never signed a further written document. The Court found that “the fact that a formal written document has been prepared but not signed does not alter the binding character of the agreement”: at para. 41.
216In Ruparell v. J. H. Cochrane Investments Inc., et al., 2020 ONSC 7466, aff’d 2021 ONCA 880,) the Court enforced an oral agreement to buy shares in a Volkswagen dealership based on discussions, a term sheet and a voice mail message from the defendant stating, “we have a deal.” The Court rejected the defendant’s arguments that a complex series of further documents was required to finalize the deal. The Court based its decision on the parties’ actions and conduct following the negotiations, which the Court found were consistent with an agreement on the essential terms of the deal: at para. 54.
217It is not just the fact of the conduct in this case, but that it continued for seven years and included unimpeded management and control over all aspects of the parties’ respective holdings. Neither accounted to the other for any of their actions or decisions in relation to their respective holdings after 2014. The Court in Fedel v. Tan (2008), 2008 46697 (ON SC), 93 O.R. (3d) 274 (S.C.), aff’d 2010 ONCA 473, 101 O.R. (3d) 481, upheld an oral agreement that Fedel was entitled to 40% of the shares in Tan’s company. The Court relied on repeated promises by Mr. Tan that Mr. Fedel had an equity interest in the subject company. Mr. Fedel relied on the promise and made significant contributions to the business: at para. 217.
218In the case at bar, the parties’ conduct made it clear that they were acting on the assumption that Mr. Bleta owned Niazi and Korce, and Ms. Aiello owned Floriri. Ms. Aiello made significant contributions to Floriri through her management and work on renovations to improve Floriri’s ratings on the RentalTO website. Her evidence was that she would not have taken such unilateral action had she not viewed the Renunciation as confirmatory of her ownership of Floriri. While both parties have “flip flopped” with respect to whether Ms. Aiello was or was not still a Trustee of the BFT after she signed the Renunciation, their conduct is what permits the Court to enforce the parties’ expectations that an enforceable agreement was created.
219Mr. Bleta submits that he does not disagree with the case law cited by his sister’s counsel regarding contractual formation generally. However, he parts with the case law with respect to the essential element of finding that there was an intention to form a legally binding agreement.
220In support of this argument, Mr. Bleta points specifically to the parties’ conduct in the fall of 2014. He starts with Mr. English’s email of September 26, 2014, which he says confirms that the parties had not come to an agreement on anything. Shortly thereafter, Mr. Iannuzziello was retained to do the valuations. In an email to Mr. Iannuzziello, dated December 5, 2014, Mr. Bleta specifically says:
We need an agreement that each of us will have sole exclusive management of Floriri on the one hand, and Niazi with Korce on the other, until the legal transfers are completed.
221Mr. Bleta argues that this email demonstrates that there was no understanding that Ms. Aiello had transferred any interest in anything at this point. In a further email from Mr. Bleta to Mr. Ford (who worked with Mr. Iannuzziello) on December 11, 2014, Mr. Bleta confirmed a meeting with Mr. Ford to provide him with the cheques for the valuations and that he and his sister would be “switching over to the sole management effective Friday.” Mr. Bleta submits that whatever view his sister may have had of the situation at that time, he certainly did not believe there had been any change in ownership. There was therefore no meeting of the minds on that essential term of their alleged agreement.
222Following his meeting with Mr. Ford on December 11, 2014, he and his sister signed the necessary Shareholders’ Resolutions on December 12, 2014, to permit Ms. Aiello to be elected a Director of Floriri and Mr. Bleta to be elected a Director of Niazi and Korce. He points out that these resolutions do not change the shareholding structure of the Companies in any way. On December 12, 2014, Mr. Bleta also emailed TD Bank and provided instructions for a change in corporate signing officers such that Ms. Aiello would become the sole signing officer for Floriri and he would be the sole signing officer for Niazi and Korce. The banking resolutions were signed by them on December 15, 2014. Again, this did not change the shareholding structure in any way. Further, given the timing of events as outlined above and confirmed by corresponding emails, it would not make sense for the Renunciation to have been signed on October 1, 2014. This was before the valuations were completed or any of the corporate or banking resolutions were signed. The more likely scenario is what was put forward by Mr. Bleta, that the Renunciation was signed in December 2014 at or around the same time as the abovementioned documents.
223Mr. Bleta does not disagree that the Trust Deed and the Trustee Act do not provide for the temporary resignation of a Trustee. However, he points out that it is quite possible for a Trustee to be reinstated after resigning.
224The tangible results of the parties’ conduct also cannot be ignored. I accept Mr. Tobis’ evidence that Floriri outperformed the market, and Niazi and Korce underperformed the market in terms of rental revenue. While it is true that part of the increase in value of the Floriri properties must be attributable to rising market conditions, Mr. Tobis reasonably accounts for this in his conclusions.
225Notwithstanding Mr. LeFaivre’s criticisms of Mr. Tobis’ report, it was clear that Ms. Aiello’s efforts with respect to investment, renovation and management of the Floriri properties have paid off. Mr. Bleta now apparently intends to benefit from Ms. Aiello’s extensive efforts, while his own properties have been managed in a way that has not resulted in the same increase in revenue as those properties managed by Ms. Aiello.
226Ms. Aiello was vulnerable and trusted her brother as a business partner and as her lawyer on many previous transactions. While I do not make any findings about whether or not Mr. Bleta was acting as Ms. Aiello’s counsel on the Renunciation, I have already found they were in a fiduciary relationship. This impacted Ms. Aiello’s interpretation of what the Renunciation meant.
227The fact that future documents were not signed to effect the share transfers does not mean the Renunciation was not binding. In Lagani v. Lagani, 2012 ONSC 2614, the Court wrestled with an agreement to sell a certain property. One of the parties claimed he signed a blank signing page which was not attached to anything. On another occasion he said he did not sign the agreement at all. His further position was that the agreement lacked the signatures of essential parties and was therefore not binding on him. The Court held that there was a binding agreement which was signed by the necessary parties. In coming to that conclusion, the Court held, at para. 61, that:
It is well understood that, once the essential terms of an agreement have been arrived at subject to documents to implement the agreement, that agreement will generally be enforceable at law. That is notwithstanding the fact that the parties may not subsequently agree on the actual formal documents to be executed at a later date.
228Mr. Bleta wanted his sister to have a lawyer for independent legal advice but actually made that impossible. For example, Ms. Aiello was forced to terminate Mr. English’s retainer (right before her brother asked to sign the Renunciation) because she could not afford his fees on her management salary. Mr. Bleta refused to allow her to take money out of the Companies for Mr. English’s fees. Mr. Bleta agreed that his sister trusted him and that he would not have acted as her lawyer over so many years had this not been the case.
229Mr. Bleta did not contradict any of the evidence given by his sister’s non-party witnesses. Where there were contradictions in his evidence, he attempted to backtrack, stating that he was only intending to alert his sister or her lawyers and that there was a “context” to his contradictions. He described the contradictions in his evidence as being part of a “process” to get to equalization. Examples of this are set out below:
a. In Mr. Bleta’s Defence to Counterclaim in October 2015 in other proceedings involving the Companies, Mr. Bleta refers to he and his sister agreeing to resolve the differences in their relationship by dividing and equalizing their respective interests in the Companies in September 2014. At trial he insisted that the Renunciation and banking documents were not signed until December 2014. However, this evidence is consistent with that of Ms. Aiello which was that the agreement was formulated in September and signed on October 1, 2014.
b. Remarkably, Mr. Bleta insisted that the second paragraph of the Renunciation had no meaning and was included only because he forgot to remove it from the precedent document he was working from. His evidence was that if the Court found that the second paragraph did have meaning, his view was that it was simply a way of “alerting” his sister to the fact that she would no longer have an interest in the Trust.
c. Mr. Bleta agreed that his initial intent in negotiating with his sister starting in August 2014 was to ensure orderly rent collection. He agreed that having her extinguish her rights in the BFT was not necessary to achieve this, yet he was quick to remind Mr. Graham and Mr. Wyndham in emails that his sister had given up all of her rights to the BFT.
d. At trial, Mr. Bleta insisted that the terms of the Renunciation were temporary while acknowledging that he never told his sister this and no reference to this was contained in the Renunciation.
e. While insisting that the Renunciation was temporary, Mr. Bleta proceeded to sell properties owned by Niazi and give his daughter and wife signing authority for Niazi.
f. While insisting the Renunciation was temporary, Mr. Bleta refused to cooperate with the refinancing of Floriri in 2015, telling TD Bank he was no longer involved with Floriri.
g. Mr. Bleta was frustrated that his sister would not sign the STA but took the position that the debts owed to Floriri “may or may not be paid.”
h. Mr. Bleta was pleased that his sister hired Mr. Wyndham to assist in negotiating the STA but did not want to equalize the assets, his evidence was that he only wanted “an equalization between the siblings.” This does not make sense.
i. Mr. Bleta said he wanted his sister to sign the VTA but agreed that the numbers in the VTA were not accurate.
230Mr. Bleta was not forthright with his sister about the status of the loans owed to Floriri. While he did not disagree that they were outstanding, he thought they should be “forgiven” because Floriri had more value than the BFT companies. He insisted that his sister pay him an equalization payment knowing that the loans owed to Floriri from the BFT companies far exceeded the amount of the equalization payment. He then proclaimed his frustration with his sister for failing to cooperate or sign the various agreements he presented to her. Further, I accept Ms. Aiello’s evidence that Mr. Bleta told her not to sign the VTA because the numbers in it were wrong. That fact is not denied by Mr. Bleta.
231Mr. Bleta attempts to characterize his sister as resistant and stubborn and failing to keep her end of their bargain by refusing to sign subsequent documents are thinly disguised efforts to shield him from criticism of his own behaviour. I find that Ms. Aiello’s actions following the signing of the Renunciation were entirely understandable as follows:
a. Ms. Aiello cooperated with the valuations and accounting exercise in the fall of 2014 on the understanding that only an equalization payment had to be made in order to finalize matters between the parties.
b. Ms. Aiello was never told she would have to sign a VTA, a STA or participate in a butterfly transaction.
c. Ms. Aiello did not sign the VTA because the numbers in it were inaccurate and she was told not to.
d. Ms. Aiello did not sign the STA because she insisted the loan issues be worked out first. When it became clear that Mr. Bleta’s position was that the loans “may or may not be paid,” there would be no logical reason for Ms. Aiello to sign the STA.
232Mr. Bleta was not acting in good faith. I find that he was attempting to take advantage of what was already a one-sided situation. His sister had already given up all of her rights to the BFT which he did not view as temporary until it was to his advantage to do so. He used the fact of the Renunciation as a means to attempt to force his sister to forgive the loans owed to Floriri before he would transfer the shares to her. He then protested that his sister was not cooperating with him to complete the transaction they had agreed upon. As per McLaughlin v. Canadian Service Management Inc., 2018 ONSC 1937, at para. 49, “[t]he law precludes a vendor from taking advantage where he was responsible for the later performance of the other party”.
233Ms. Aiello has the burden of proving that an agreement was reached between her and her brother. I find that she has met that burden.
Do the Doctrines of Proprietary or Promissory Estoppel Apply?
234The leading case on proprietary estoppel is from the recent Supreme Court of Canada case of Cowper-Smith v. Morgan, 2017 SCC 61, [2017] 2 S.C.R. 754.The Supreme Court of Canada confirms, at para. 15, that an equity arises when:
(1) A representation or assurance is made to the claimant, on the basis of which the claimant expects that she will enjoy some right or benefit over property;
(2) The claimant relies on that expectation by doing or refraining from doing something, and her reliance is reasonable in all the circumstances; and
(3) The claimant suffers a detriment as a result of this reasonable reliance, such that it would be unfair or unjust for the party responsible for the representation or assurance to go back on his word.
235Where proprietary estoppel is proven, equity will make the representation or assurance binding. While most of the Canadian cases dealing with proprietary estoppel deal with interests in land, cases in the B.C. and England have allowed proprietary estoppel claims in relation to commercial assets, chattels and intellectual property: see Cowper-Smith, at para. 21.
236Ms. Aiello has clearly relied on her brother’s promise that in relinquishing her rights in the BFT, she would receive ownership of Floriri. If Mr. Bleta is now entitled to a 50% interest in Floriri, Ms. Aiello would be in an inferior position, as the value of Floriri’s properties have skyrocketed due to both market conditions and Ms. Aiello’s personal efforts. There were no recent or even dated appraisals of the Niazi or Korce properties. However, relying on the RentalTO feedback, it would appear they are in worse condition both from a physical and management condition than the Floriri properties. The gap in value between the BFT properties and Floriri has done nothing but widen in the last seven years. To return the parties to their original positions could only benefit Mr. Bleta.
237The within case cries out for equitable intervention given Ms. Aiello’s reliance on her brother’s promise and her efforts to improve Floriri while under the impression she owned it. Mr. Bleta claims that it is not clear what promise he made to his sister. I disagree. In requiring his sister to sign the Renunciation, the banking resolutions, the shareholders’ resolutions and participating in the valuation of the properties, he pursued his promise to divide the Companies based on his sister’s choice. Once she chose Floriri, the parties conducted themselves as if such a promise had been made and both acted as owners thereafter. In short, the promise made was a simple one, if Ms. Aiello gave her brother her interest in the BFT, he would give her his interest in Floriri. If there was no agreement, Ms. Aiello has then relied upon Mr. Bleta’s promise to her detriment. She should have been reasonably permitted to rely on the Renunciation (a document prepared by a person with whom I have already found she had a fiduciary relationship), both at the time and now.
238As for the claim for unjust enrichment, similar principles would apply. In Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 31-35, the Supreme Court set out the legal framework for unjust enrichment claims. At para. 32, the Court, citing Pettkus v. Becker, 1980 22 (SCC), [1980] 2 S.C.R. 834, and Peel (Regional Municipality) v. Canada, [1992] 3. S.C.R. 762, states: “It permits recovery whenever the plaintiff can establish three elements: an enrichment of or benefit to the defendant, a corresponding deprivation of the plaintiff, and the absence of a juristic reason for the enrichment.”
239Ms. Aiello, if not granted the relief sought, would be deprived of the full ownership of Floriri. She would suffer a deprivation given her investment of both time and money into the subject property, an investment which I have already found was a profitable one. There is no juristic reason for Mr. Bleta to retain ownership of the common shares of Floriri when an agreement to divide ownership took place in 2014. As for the issue of the preference shares, there was no relief sought in relation to those shares. Such relief can be dealt with in a separate proceeding or forum if required.
240If I am wrong that such equitable remedies exist, I rely on my previous findings with respect to the parties’ intention to contract and the conduct which proved that intention. If the remedy does exist, it must protect Ms. Aiello’s reliance on the Renunciation and her conduct following October 1, 2014. This would require Mr. Bleta to transfer 50% of Floriri’s shares to Ms. Aiello and an equalization payment to be calculated after the Loans Action has been tried.
Is the Claim Statute Barred?
241Mr. Bleta argues that his sister’s equitable claims are statute barred as her Statement of Claim was not amended until December 2020, more than four years after the original Claim was issued. Ms. Aiello referred to the “alleged promise” made to her by her brother in her cross-examination in April 2018 but took no steps to making her equitable claims until more than two years later.
242There is no evidence that Ms. Aiello received any new information that led to the amendments to the original Claim. Further, Ms. Aiello’s amendments were granted on May 13, 2021, subject to Mr. Bleta’s ability to assert a limitations defence.
243I do not find that Ms. Aiello’s equitable claims are statute barred. Ms. Aiello first discovered that she had no documents to prove sole ownership of Floriri when she went to refinance with TD in early 2015. After that, she learned, through Mr. Wyndham’s correspondence with Mr. Bleta, that Mr. Bleta had no intention of providing her with his common shares in Floriri or paying out the loans owed to Floriri. Ms. Aeillo then brought her claim in December 2016. That claim sought unjust enrichment and equitable compensation.
244Ms. Aiello amended her Claim when certain information concerning Niazi and Korce came to her attention such as 8 Castleton being sold without her consent and the 2019 Crowe Soberman’s report that Korce had insufficient funds to pay its debts. This was important evidence for Ms. Aiello’s claim with respect to detrimental reliance.
Other Issues Raised by the Respondent
245Mr. Bleta submits that his sister’s failure to call Mr. Iannuzziello as a witness calls for an adverse inference as he was to mediate the dispute between the parties at the relevant time. No such adverse inference will be drawn. It was equally open to Mr. Bleta to call Mr. Iannuzziello to support his position if he wished.
246Similarly, no adverse inference should be drawn against Ms. Aiello because she failed to call her former counsel Mr. Wyndham and Mr. English who represented her interests in 2014 and 2016 and at times took positions that were opposite to the position taken by Ms. Aiello at trial. There is no doubt that certainly Mr. Wyndham sent emails in which he stated, for example, that the Renunciation was void. However, I have accepted Ms. Aiello’s evidence with respect to her view of the import of the Renunciation and her explanations as to why her own counsel took different positions in the past. These inconsistencies were put to Ms. Aeillo at trial and dealt with in this judgment.
Is Ms. Aiello Entitled to a Declaration that she is Entitled to Purchase Mr. Bleta’s Shares in Floriri?
247Given my findings above, I see no reason why Ms. Aiello would not be entitled to a declaration under s.97 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
ORDERS AND COSTS
248It is hereby declared that Ms. Aiello is the beneficial owner of Mr. Bleta’s share in Floriri.
249The Loans Action, being Action CV-21-00655166-00CL, shall proceed on an expedited basis. A case conference is to be arranged before me to determine the most efficient manner of hearing that matter. The case conference is to take place after my decision on costs in this matter has been released.
250Upon completion of the Loans Action, Ms. Aiello may seek an Order for specific performance that Mr. Bleta transfer his common shares in Floriri to her, with an equalization payment, in accordance with the accounting as at December 1, 2014.
251The parties shall provide written submissions on costs of no more than 5 pages exclusive of any Offer to Settle or Bill of Costs. All case law references, or other document references shall be hyperlinked. Mr. Graham shall provide his costs submissions 7 days after release of this judgment, Mr. Lobl 7 days after that and any reply by Mr. Graham 7 days after Mr. Lobl’s responding submissions. If no costs submissions are received within 35 days of the date of this judgment, costs shall be deemed to be settled. Costs submissions are to be sent electronically to my assistant.
C. Gilmore, J.
Released: May 13, 2022
COURT FILE NO.: CV-16-11658-00CL
DATE: 20220513
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Bertha Aiello, Floriri Village Investments Inc. and the Bleta Family Trust
Plaintiffs
– and –
Leroy Bleta, Niazi Holdings Incorporated and Korce Group Ltd.
Defendants
REASONS FOR JUDGMENT
C. Gilmore, J.
Released: May 13, 2022