COURT FILES NO.: CV-22-00677887-00ES and CV-22-00680609-00ES
DATE: 20221028
ONTARIO
SUPERIOR COURT OF JUSTICE – ONTARIO
(ESTATES LIST)
IN THE ESTATE OF JOSEPH POSOCCO, deceased
AND:
IN THE MATTER OF THE PROPERTY OF JOSEPH POSOCCO
BETWEEN: VANESSA BITTANTE
Applicant
AND:
YVETTE DUBAJIC, in her capacity as Attorney for Property of JOSEPH POSOCCO, her capacity as Estate Trustee of the Estate of JOSEPH POSOCCO, and in her personal capacity, STEFAN DUBAJIC and THE CHILDREN’S LAWYER on behalf of ALEX DUBAJIC, a minor
Respondents
BEFORE: Justice Sanfilippo
COUNSEL: Joseph Figliomeni and Angela Kwok, for Yvette Dubajic
Gerard C. Borean and Gillian Gondosch, for Vanessa Bittante and Isabelle Posocco
HEARD
(By videoconference): October 12, 2022
ENDORSEMENT
Overview
[1] Yvette Dubajic is the Applicant in this Application brought to Pass Accounts and is a Respondent in a related Application brought by her niece, Vanessa Bittante, to remove her as estate trustee for their late father’s estate and for an accounting. Yvette Dubajic brought this motion for an Order to add her sister, Isabelle Posocco, as a Respondent to these Applications. On the basis of the reasons that follow, I order that Isabelle Posocco be added to these Applications.
Background
[2] Joseph Posocco died in Italy on July 22, 2021, having been predeceased by his spouse, Maria Posocco, who died on August 24, 2016. They had two daughters, Isabelle Posocco and Yvette Dubajic. I will refer to Mr. and Mrs. Posocco’s daughters and their grandchildren by their first names, respectfully, for clarity in following these reasons.
[3] Mr. Posocco had property in Canada, and real estate in Italy. On May 1, 2003, Mr. Posocco had executed a Continuing Power of Attorney for Property naming Yvette as his attorney for property (the “Father’s Power of Attorney”). The evidence showed that after Mrs. Posocco’s passing, Isabelle commenced legal proceedings in Italy to be appointed her father’s guardian (the “Italian Guardianship Proceeding”). The parties have produced orders rendered by the Italian Court that show that the Guardianship of Mr. Posocco was granted to Isabelle by the Italian Court, in Treviso, Italy, on December 2, 2016, but later revoked by Justice Gastaldo of the Tribunale di Treviso on May 22, 2017.
[4] Yvette deposed that Mr. Posocco left a Last Will and Testament, executed in Woodbridge, Ontario on November 1, 2011 (the “Father’s Will”) that named Yvette as Estate Trustee. Yvette deposed that, according to her Father’s Will, the three grandchildren are entitled to one-third of the residue of Mr. Posocco’s Estate. The grandchildren are Isabelle’s adult child, Vanessa Bittante, and Yvette’s adult child Stefan Dubajic and her minor child, Alex Dubajic.
[5] Yvette deposed that in November 2021, Isabelle commenced legal proceedings in Italy regarding the Estate of Mr. Posocco (the “2021 Italian Estate Litigation”). On November 8, 2021, Ontario lawyers for Isabelle wrote to Yvette to demand a complete accounting of her financial management of the affairs of Mr. Posocco, and indeed Mrs. Posocco, for the period from 2003 to 2021.
The Litigation
[6] On March 4, 2022, Yvette commenced a Notice of Application to Pass Accounts, in court file number CV-22-00677887-00ES (the “Passing of Accounts Application”). Two months later, on May 3, 2022, Isabelle’s daughter, Vanessa commenced an Application for an Order for the passing of accounts and for an Order removing Yvette as Estate Trustee for Mr. Posocco’s Estate, in court file number CV-22-00680609-00ES (the “Accounting and Removal Application”).
[7] On August 4, 2022, Justice Dietrich ordered, on the consent of the parties, that the Passing of Accounts Application and the Accounting and Removal Application be consolidated and heard one after the other, as determined by the Application Judge (collectively, the “Consolidated Applications”). Justice Dietrich also implemented a timetable for the motion by Yvette to seek an Order to join Isabelle as a Respondent to the Consolidated Applications.
This Motion
[8] Yvette submitted that Isabelle is a necessary or proper party to both Applications, relying on Rules 5.03, 9.01, 26 and 75.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Isabelle and Vanessa opposed Isabelle’s joinder to these Consolidated Applications on their submission that Isabelle’s presence is not necessary to enable the court to adjudicate effectively and completely on the issues in the Applications.
[9] The analysis of whether Yvette has established the basis for an Order that Isabelle be joined as a party to the Consolidated Applications has common elements, but also differences. I will address, first, the relief sought to join Isabelle to the Application to Pass Accounts, and then the Accounting and Removal Application.
Analysis: The Application to Pass Accounts
[10] The Notice of Application to Pass Accounts issued by Yvette is procedurally deficient. On an Application to Pass Accounts, Rule 74.18(3) requires that: “the applicant shall serve the notice of application and a copy of the draft judgment on each person who has a contingent or vested interest in the estate by require mail.” Form 74.44, which sets out the required form for a Notice of Application to Pass Accounts, requires that the Applicant list the “name and address of each person with a financial interest in the estate”. Yvette did not do so.
[11] I raise this deficiency in the Notice of Application to Pass Accounts because, on the position taken by Yvette in this motion, had she properly issued the Notice of Application to Pass Accounts with all parties that she considers having a financial interest in the estate, she could have listed Isabelle as a matter of right, rendering unnecessary this motion to join Isabelle as a Respondent to the Application to Pass Accounts.
[12] Isabelle is by her own conduct and admission, a person with a financial interest in the Estate of Mr. Posocco. By letter dated November 8, 2021, the lawyer for both Isabelle and Vanessa wrote to Yvette, referencing the “Estate of Joseph Posocco”, and demanded that Yvette deliver, in her capacity as Estate Trustee of Mr. Posocco’s Will, a notarized copy of the Will and “a full and complete accounting of your financial management of the financial affairs of Joseph Posocco and Maria Posocco from 2003 to present.”
[13] I do not accept Isabelle’s submission that she has no interest in the passing of accounts of her late father’s estate. Having demanded from Yvette the very accounting that Yvette now seeks to provide through the Application to Pass Accounts, Isabelle is an interested party in the estate. As an interested party in the passing of accounts, Isabelle should have been listed in the Notice of Application to Pass Accounts, along with Vanessa, Stefan, and Alex. I am satisfied that this now be done by way of the relief sought on this motion.
Analysis: The Accounting and Removal Application
[14] Having found that Isabelle is an interested party in the Application to Pass Accounts, Isabelle has a role in the Consolidated Applications. I will now turn to whether Yvette has established a basis for Isabelle to be joined as a party to the Accounting and Removal Application.
[15] Rule 5.03 provides, in pertinent part, as follows:
5.03 (1) Every person whose presence is necessary to enable the court to adjudicate effectively and completely on the issues in a proceeding shall be joined as a party to the proceeding.
(4) The court may order that any person who ought to have been joined as a party or whose presence as a party is necessary to enable the court to adjudicate effectively and completely on the issues in the proceeding shall be added as a party.
(5) A person who is required to be joined as a party under subrule (1), (2) or (3) and who does not consent to be joined as a plaintiff or applicant shall be made a defendant or respondent.
[16] The parties did not dispute the legal principles applicable to the determination of when it is necessary or proper to join a party to a legal proceeding, both relying on Ontario Federation of Anglers and Hunters v. Ontario (Minister of Natural Resources and Forestry), 2015 ONSC 7969, 128 O.R. (3d) 501, aff’d 2017 ONSC 441 (Div. Ct.) and York Region Condominium Corporation No. 890 v. Market Village Markham Inc., 2020 ONSC 3993, 20 R.P.R. (6th) 210, at paras. 374-378. These decisions make clear that to determine whether a person is a “necessary party”, the court must assess whether the rights of that person would be affected by the outcome: whether they are “likely to be affected or prejudiced by the order being sought”: Ontario Federation, at paras. 9-11.The purpose of joining “necessary parties” under Rule 5.03 is to ensure that all parties whose rights would be affected by an adjudication are before the court to avoid a multiplicity of proceedings and a risk of inconsistent results. This builds on the finding in School of Dance (Ottawa) Pre-Professional Programme Inc. v. Crichton Cultural Community Centre, [2006] O.J. No. 5224 (Ont. S.C.), at para. 9, that the determination of whether a party is a “necessary party” to a proceeding depends on “whether they are likely to be effected or prejudiced by a court order that will dispose of the rights of the parties to this proceeding”.
[17] In defining the requirements for a “necessary party”, the court in Ontario Federation referred to Amon v. Raphael Tuck & Sons Ltd., [1956] 1 All ER 273 (Eng. Q.B.) (Devlin J.), at p. 286-287, wherein Lord Devlin explained that the “only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party.”
[18] As stated in York Region Condominium Corporation No. 890, at para. 377, there are two primary purposes in ensuring that all parties likely to be affected or prejudiced by a Judgment are before the court. First, it is important that the party have an opportunity to be heard, allowing for a single, comprehensive adjudication that gives rise to res judicata and thereby forecloses further proceedings on the same issue. Second, the judgment can be more efficiently enforced when all parties of interest are joined and thereby bound in the result.
[19] Here, there is another requirement that arises from Rule 9.01, which provides that “a proceeding may be brought by or against an executor of trustee as representing an estate or trust and its beneficiaries without joining the beneficiaries as parties” except in the listed situations set out in Rule 9.01(2). One of the circumstances in which it is necessary to join the beneficiaries is where the proceeding is brought, like here, to “remove or replace an executor, administrator or trustee”: Rule 9.01(2)(c).
[20] The Accounting and Removal Application, in paragraph 1(d), seeks the removal of Yvette as estate trustee: “An Order removing Yvette as Estate Trustee of the Estate of Joseph Posocco, and appointing a replacement Estate Trustee.” The evidence on this motion showed that there is the possibility that Isabelle may assert rights in her father’s estate as a beneficiary. In her affidavit sworn September 14, 2022, Vanessa deposed that she was advised by Niccolo Manildo, Isabelle’s lawyer in Italy, and did verily believe, that “Isabelle and Yvette are beneficiaries of Joseph’s assets in Italy and Canada.” Vanessa deposed that her mother, Isabelle, is aware of the litigation in Ontario, but refused to answer the question of whether Isabelle is taking the position that she is a beneficiary of the estate.
[21] Accordingly, on the basis of Rule 9.01(2)(c), I find that Isabelle must be joined to the Accounting and Removal Application. Had I not so concluded, I would have found that Isabelle shall be joined to the Accounting and Removal Application on the basis of Rule 9.01(4), which provides that the Court may order that any “beneficiary, creditor or other interested party be made a party to a proceeding by or against an executor, administrator or trustee.” Even if Isabelle is not a beneficiary of her father’s estate, she is an “interested party”.
[22] Isabelle is an interested party in her father’s estate, both through the accounting and her interest as a possible beneficiary of her late father’s assets. Isabelle is a necessary party as her rights in these regards may be affected by the Consolidated Applications. Further, she is a necessary party, whose joinder is necessary to ensure that all parties whose rights would be affected by an adjudication are before the Court to avoid a multiplicity of proceedings and a risk of inconsistent results, consonant with Rule 5.03.
[23] And there is another reason. Rule 1.04 provides that the Rules shall be interpreted “to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” Isabelle is represented on this motion by the same lawyer as represents her daughter in the Consolidated Applications. I see no benefit to these proceedings for Isabelle to remain removed from the legal process that has been advanced in Ontario to determine issues pertaining to her father’s estate when she has taken steps to assert an interest in that estate.
[24] On the basis of these Rules and applicable legal principles, Isabelle shall be added as a party to the Accounting and Removal Application. Isabelle may elect to be added as an Applicant, considering her position on this motion, or shall be added as a Respondent.
The Alternative Relief Claimed
[25] Having found that Isabelle shall be joined as a party to the Consolidated Applications, it is not necessary to determine the moving party’s alternative relief, claimed in para. (b) of her Notice of Motion, that an order be made that Isabelle is bound by any determinations and court orders made in the Consolidated Applications. This is declaratory relief that is, in my view, within the jurisdiction of the Application Judge, to be determined after the full hearing of the Applications. The lawyers for the moving party did not identify any case law that supported this claim for relief. Had I found it necessary to determine this alternative claim for relief, I would have declined to grant the relief sought and would have left it for determination by the Application Judge.
Disposition
[26] On the basis of these reasons, I order that Isabelle be added as an interested party in the Application to Pass Accounts. I also order that Isabelle be added as a party to the Application for Accounting and Removal.
Costs
[27] On the issue of costs, the lawyers for Yvette, Isabelle and Vanessa agreed that the successful party on this motion would pay the unsuccessful party costs, fixed in the amount of $5,000, all inclusive of fees, disbursements, and applicable taxes.
[28] As Yvette Dubajic was successful in this motion, the responding parties Isabelle Posocco and Vanessa Bittante shall, within thirty days, pay the moving party, Yvette Dubajic, costs of this motion, fixed in the amount of $5,000.00, all inclusive.
Justice Sanfilippo
Date: October 28, 2022