NEWMARKET COURT FILE NO.: FC-17-54359 and CV-22-3267-00 DATE: 20240328 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Rae Marie Ierullo Applicant – AND – Vito Ierullo Respondent
Martha McCarthy and Joy Casey, Counsel for the Applicant Jaret Moldaver, Counsel for the Respondent
– AND –
Mulberry Hills Realty Inc. Added Respondent Vito Ierullo Plaintiff Rae Marie Ierullo and Forever Thyme Sanctuary Defendants Aeden Erica MacLean Defendant
Christopher Gibson, Counsel for the Added Respondent in FC-17-54359 and CV-22-3267-00 Sean Zeitz, and Trung Nguyen, Counsel for the Plaintiff Vito Ierullo in CV-22-3267-00 Joy Casey, Counsel for the Defendants Rae Marie Ierullo and Forever Thyme Sanctuary in CV-22-3267-00 Gwendolyn Adrian, Counsel for the Defendant Aeden Erica MacLean in CV-22-3267-00
IN WRITING: March 28, 2024
RULING ON MOTION TO DISQUALIFY WITNESS
D.A. Jarvis, J:
1This voir dire ruling involves a witness whom Mr. Ierullo proposes to call and to whom Ms. Adragone objects being allowed to testify. Gabrielle St. George (Ms. St. George) is Ms. Adragone’s estranged sister. In accordance with court directions, Ms. St. George has provided an affidavit sworn on March 6, 2024, during a mid-trial break, setting out her proposed evidence.
2Mr. Ierullo claims that Ms. St. George’s evidence is admissible and can be grouped broadly into three categories: a Loan Assignment (the “Loan Assignment”) involving an aggregate $500,000 loan to her by her sister and Mr. Ierullo, and its later assignment to Ms. Adragone in 2011; the transfer of Ms. Adragone’s family home (“Taylor Mills”) in which her late mother resided until early 2021 to Ms. Adragone’s son and his sale of it later in 2021; and, forgery and fraudulent documents allegations to support unproven, exaggerated or fake debts claimed by Ms. Adragone. Mr. Ierullo claims that Ms. St. George’s evidence is relevant to the property issues in the matrimonial and civil litigation between the parties and should also be admitted as similar fact evidence. Ms. Adragone submits that her sister’s evidence is actuated by ill-will toward her, that she has no direct knowledge of many of the events described (particularly involving Taylor Mills) and that her proposed evidence is almost entirely hearsay because they comprise discussions between Ms. St. George and her mother (Olive George, now deceased) and a lawyer (Mr. Catalano, also deceased) who represented her in her own matrimonial proceedings over a decade ago (2011) and which allegations, implicitly if not directly, involve one of Ms. Adragone’s trial lawyers (Casey).
3Mr. Ierullo identified the paragraphs in Ms. St. George’s affidavit which he submits are relevant or comprise similar facts.
Loan Assignment
4The unchallenged evidence in this case is that Ms. Adragone and Mr. Ierullo advanced $500,000 in three tranches between July 28 to December 8, 2003, to Ms. St. George and her former spouse. Ms. St. George and her former spouse signed a document for $140,000 acknowledging their indebtedness to Ms. Adragone and Mr. Ierullo (the first tranche was for $140,000) but it was only countersigned by Ms. Adragone, not by Mr. Ierullo. One of the terms of the document provided that “Should any further money be loaned…the terms of this agreement will stand.” Further advances were made on August 14, 2003 ($10,000) and December 8, 2003 ($140,000). Ms. St. George clearly identified all three advances as loans.
5In 2009 just before Ms. St. George was scheduled to meet with Mr. Catalano in her family law case she and Ms. Adragone added to the bottom of the 2003 loan document “Additional $360,000 to bring investment to $500,000, all terms shall stand.” These added words are undated. Ms. St. George described this document in bold letters as the 2009 Fake Loan Amendment. In a Net Family Property Statement prepared by Mr. Catalano the $500,000 loan is noted: Ms. St. George proposed that she assume the full debt. Exhibits to Ms. St. George’s affidavit contain emails between Ms. St. George, Mr. Catalano and Ms. Casey about trial strategy.
6There is no evidence independent of Ms. St. George what impact if any the loan had in the proceedings between her and her spouse (he claimed that the $360,000 was a gift) although it appears that Ms. St. George benefitted from her litigation strategy.
7By letter dated January 24, 2011, Ms. Casey advised Ms. St. George and her spouse that Mr. Ierullo had assigned his interest with respect to the $500,000 loan to Ms. Adragone. Mr. Ierullo has already testified that he does not recognize the signature as his.
Taylor Mills
8Olive George resided in the Taylor Mills residence until she was moved to a retirement home in January 2021. In early April 2021 she was diagnosed with Alzheimers but had been demonstrating signs of dementia before that date. She died in March 2023.
9Ms. St. George alleges that the transfer of Taylor Mills to Ms. Adragone’s son was orchestrated by Ms. Adragone and that based on discussions with her mother over an unspecified period of years Ms. Adragone exerted “undue influence and/or duress” on their mother. [1] Ms. St. George was never involved with any of the transactions involving Taylor Mills. Based on her “beliefs” about her sister Ms. St. George states that Ms. Adragone fraudulently obtained ownership of Taylor Mills and that it should be transferred back to their mother’s estate. There is no evidence that Ms. St. George ever consulted a lawyer about this or, if she did, whether any action was taken whether by her late mother or by Ms. St. George at any time, although she intimated to Ms. Casey in 2015 that was her intention.
10Ms. St. George indicated that the relationship between her sister and her ended in June 2011.
11Mr. Ierullo points to paragraphs 29 to 43 of Ms. St. George’s affidavit as being relevant to the issues in this case. Almost without exception, all those paragraphs are hearsay.
Forgery/fraudulent documents
12Mr. Ierullo alleges that Ms. Adragone forged signatures or has engaged in presenting falsified or fraudulent documents to favourably impact her net family property exposure in these proceedings and that Ms. St. George’s evidence is relevant and should be admitted on a similar fact basis.
13For “relevance”, Mr. Ierullo points to paragraphs 15-17 and 27-28 of Ms. St. George’s affidavit. The former deal with the Loan Agreement and the latter with negotiations between Ms. St. George and Ms. Casey (then acting for Ms. Adragone) with respect to money’s advanced over the years to Ms. St. George with whose repayment she agreed but which she now contends the actual amount owed was inflated. The emails appended to her affidavit are inconsistent with her affidavit evidence. There is no evidence that Ms. St. George moved to challenge her sister’s claims after she agreed to settle them.
14Mr. Ierullo points to paragraphs 10 and 11 of Ms. St. George’s affidavit as comprising similar fact evidence. These paragraphs contain statements about what Olive George told her and her “belief” that Ms. Adragone forged her mother’s signature on a “fake assignment”. Ms. St. George is not qualified to express an opinion about handwriting. The signatures on the two documents referenced in her affidavit are dissimilar. Ms. St. George’s evidence is not required confirm that. Paragraphs 18 to 26 deal with Ms. St. George’s trial strategies in her family law litigation. In my view, the excerpted references are selective and in no way can be considered without appropriate context, namely, the entirety of Ms. St. George’s family law litigation strategies and their outcome.
Discussion
15When the issue of Ms. St. George’s testimony was raised shortly after the trial in these proceedings began this court expressed concern about this case devolving into an examination of the family law litigation between Ms. St. George and her former spouse and estate issues involving the late Olive George. In so many respects Mr. Ierullo’s proposal to call Ms. St. George is predicated on a theory of relevance based on hearsay, wrapped in conjecture and delivered with clear animus. And in so many respects proposing this witness is not too different from serial efforts by Mr. Ierullo to amend his pleadings to add causes of action or refine his claims in the family law component of these proceedings or, in the case of his recently added civil claim, to remedy what Mr. Nguyen described were pleadings “cobbled together with imperfect information.” The family case started in 2017 and the civil action shortly before the family case was scheduled to proceed to trial. The principal reason why the family and civil matters are being heard together is because so many of the issues and the persons involved are the same.
16In the second of several Case Management Rulings in these proceedings I alluded to litigants not having unlimited access to trial judges. [2] My words then warrant repetition.
4In Greco-Wang v. Wang, 2014 ONSC 5366 (a Trial Management Conference ruling) Kiteley J. observed that “members of the public who are users of the civil courts are not entitled to unlimited access to trial judges. The duration of the trial must be proportionate to the issues at stake and the judicial resources available”. This court has already scheduled at least 14 days of trial (the estimate is 19 days such that, if not concluded by the end of September, the balance of the trial will need to be adjourned to the November 2023 trial sittings). The parties may have unlimited funds to litigate but this court does not have unlimited resources (already much of the proposed evidence is being presented by affidavit and the filing of expert reports).
17The trial is scheduled to continue on April 2, 2024. Expanding the scope of this case to selectively include (and that is what would be involved) an examination of Ms. St. George’s family law litigation and her complaints about her sister’s treatment of her and their mother and the mother’s estate are not this case. The court would be obliged to dive down a rabbit hole of Ms. St. George’s family case and her complaints of ill-treatment by Ms. Adragone about her and her mother and would inevitably draw Ms. Casey into the fray. Considerable trial latitude and judicial resources have already been given to the parties. There is nothing in Ms. St. George’s proposed evidence that adds to the fair determination of the family and civil issues in this case.
18Ms. St. George will not be permitted to testify.
The Honourable Justice D.A. Jarvis Date: March 28, 2024
Footnotes
1Title to the property was transferred into the joint names of Ms. George and Ms. Adragone’s son in 2016.
22023 ONSC 3675.