Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Gaetano Guadagnino, Applicant
AND:
Anna Maria Ricci, Respondent
BEFORE: Conlan J.
COUNSEL: Steve Fehrle, for the Applicant
Lubomir Poliacik, for the Respondent
HEARD: December 13, 2022
Endorsement
Introduction and Background
1Disclosure requests must be considered in the context of the pleadings.
2The Applicant started this case by Application issued on 28 June 2021. His pleading is unusually simple and concise. He advances constructive and/or resulting trust claims against two properties, a home and a cottage, that he was once an owner of but then were transferred into the Respondent’s name, alone, for nominal consideration.
3The Respondent delivered an Answer. In it, she pleaded three main things. First, that the Applicant is not entitled to any interest in the properties claimed. Second, that the Applicant’s claims are barred by the applicable limitation period and the doctrine of laches. Third, in the alternative, if the Applicant succeeds in his trust claim(s), then there shall be a “setoff for the financial and other contributions made by [her] to [his] business…” (clause 85).
4The Respondent moves for 28 items of disclosure, though not all are contested. The motion was heard today, by Zoom, as a short matter.
Business Valuation Request
5The most contentious item is the Respondent’s request for an order that the Applicant be required to obtain “a comprehensive valuation of his businesses and the income he derives from them”, to be done by a “Chartered Business Valuator”.
6That relief is denied. It is not relevant to any of the claims advanced by either side.
7The Applicant’s trust claims are not based on an alleged unjust enrichment of the Respondent pertaining to his business but rather are based on the very simple allegation that she got them for, effectively, free when they were put into her name alone. Consequently, with respect, I disagree with Mr. Poliacik that the value of the business and any change thereto are relevant to the Applicant’s ability to establish unjust enrichment.
8Similarly, the Respondent’s alternative setoff claim has nothing to do with the value of the business. That claim depends on her showing that she made financial and other contributions to the business. She should have that evidence. That evidence is independent of how much the business was/is worth. It is her claim to prove.
Other Disclosure Items
9Having dealt with and dismissed with number 28 in the prayer for relief in the Notice of Motion, that leaves numbers 1 through 27.
10Numbers 8-12 and 15 have been satisfied already.
11Number 1 is granted – the Applicant shall, forthwith, to the best of his knowledge and recollection, provide an explanation of the said branch-to-branch transfers. That explanation shall be by way of an affidavit.
12Number 2 is granted – the Applicant shall, forthwith, provide a copy of the source document or, if it cannot be located, depose in an affidavit his efforts to obtain the same.
13Numbers 3 and 4 have been agreed on.
14Number 5 has been agreed on, but it is ordered further that the Applicant shall, for any document that is not available, depose in an affidavit the name of the agent, the name of the lawyer, and his efforts made to obtain the document.
15Number 6 is denied. The Respondent’s counsel is free to question the Applicant out of court about his business and its alleged cash payments/receipts. Whether the questioning leads to further disclosure requirements cannot be determined at this time.
16Number 7 is granted – the Applicant shall, forthwith, depose in an affidavit his efforts to obtain the complete lease document and, further, he shall, forthwith, depose in an affidavit what utility bills are paid by the landlord and attach thereto copies of utility bills for a one-moth period during the last six months.
17Number 13 is denied. The Respondent’s counsel is free to question the Applicant out of court about his business e-transfers. Whether the questioning leads to further disclosure requirements cannot be determined at this time.
18Number 14 has been agreed on.
19Number 16 has been agreed on.
20Number 17 is granted – the Applicant shall, forthwith, depose in an affidavit all particulars that he can recall regarding the purchase of the Mercedes-Benz.
21Numbers 18 and 19 are agreed on, but it is ordered further that, for any document that is not available, the Applicant shall depose in an affidavit his efforts to obtain the same.
22Number 20 is denied. That is what questioning is for.
23Number 21 is denied. It has been answered. That the Respondent may think that the answer makes no sense or is false is not an issue of disclosure.
24Number 22 is granted.
25Numbers 23-26 are agreed on to some extent, but it is ordered further that, for any document that is not available, the Applicant shall depose in an affidavit his efforts to obtain the same.
26Number 27 is moot as the issue has been dealt with above.
27For clarity, any item agreed on shall be incorporated into the Court Order that emanates from this Endorsement; not simply those contested matters that were decided herein.
28For ease of reference, the prayer for relief in the Notice of Motion, with the Applicant’s responses thereto, is at CaseLines, Master A84-A87. It has not been attached to the within Endorsement because it contains too many private details.
Costs
29If either side wishes to pursue costs, that will be done in writing. The party seeking costs shall file within 30 calendar days of today; the other shall respond within 15 calendar days of receipt of the submissions to be responded to. No reply is permitted by either side. Each submission shall be limited to two pages in length, excluding attachments.
30Finally, counsel for the Respondent shall take out the formal Order without delay.
Conlan J.
Date: December 13, 2022