Zuccarini v. Zuccarini, 2025 ONSC 3925

Court File No.: CV-20-84343
Date: 2025-07-02
Court: Superior Court of Justice - Ontario

Parties:
Dores Zuccarini (Giamberardino), Dino Zuccarini and Giovanni (“John”) Zuccarini, Plaintiffs
-and-
Anthony Zuccarini, Domenica Zuccarini, The Estate of Landino Zuccarini, Pretorial Co. Ltd. and Hollington Co. Ltd., Defendants

Before: Sylvia Corthorn
Counsel:

• Kathleen McDormand, for the Plaintiffs
• Miriam Vale-Peters, for the Defendant, Anthony Zuccarini
• Sheldon McRae, for the Defendant, Domenica Zuccarini
• No one appearing for the Defendant Estate and Defendant Corporations

Heard: 2025-06-30 (By video conference)

Case Conference Endorsement

Background

[1] The plaintiffs were successful on a motion for an order removing the lawyers of record for the defendants: Zuccarini v. Zuccarini, 2025 ONSC 1042 (“the removal motion” and “the Ruling”, respectively). The relief granted on the removal motion, and the defendants’ related motion to strike, is summarized at para. 150 of the Ruling, as follows:

• The defendants’ motion to strike the Blum affidavit is deemed to be abandoned;
• The plaintiffs’ motion for an order removing the defendants’ counsel as their lawyers of record is granted;
• The defendants’ counsel shall be prohibited from representing any one of the defendants;
• The plaintiffs are granted leave to amend the statement of claim in accordance with Version Two (of a draft amended statement of claim), subject to the terms set out in paras. 141(a) to (d) of the Ruling; and
• The proceeding is stayed, subject to the exceptions set out in para. 148 of the Ruling, pending proper constitution of the claims against the Estate of Landino Zuccarini (“the Estate”) and a further order of the court lifting the stay.

[2] This case conference was scheduled because the parties are unable to settle the terms of the order to be issued and entered. There is urgency to settling the terms of the order. The plaintiffs’ motion for an order (a) lifting the stay of proceeding, and (b) appointing a litigation administrator for the defendant Estate is scheduled to be heard on July 11, 2025.

[3] A cross-motion by Anthony Zuccarini and Domenica Zuccarini is also scheduled to be heard on that date. On their cross-motion, the moving parties seek an order pursuant to r. 10.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 permitting the action to proceed without anyone appointed in a representative capacity for the Estate.

[4] The plaintiffs and the individual defendants wish to have the terms of the order settled and for the order to be issued and entered prior to July 11, 2025.

The Disputed Terms

[5] The parties agree upon all but two terms of a draft order on the removal motion and the defendants’ motion to strike one of the supporting affidavits upon which the plaintiffs relied. At issue is the term proposed by the plaintiffs pursuant to the court’s ruling that the defendants require separate representation: Ruling, at para. 104. Also at issue is a term proposed by the plaintiffs, prescribing a deadline by which the defendants are required to retain new counsel. The Ruling does not address such a deadline.

a) The Defendants Require Separate Representation

[6] In the Ruling, the court concludes that “Each of the defendants is required to be separately represented in the proceeding” and “It is also necessary for the Estate to be separately represented” (at paras. 104 and 106, respectively).

i) The Terms Proposed by the Parties

[7] The plaintiffs propose that the contents of paras. 104 and 106 of the Ruling be reflected in the order as follows:
“THIS COURT ORDERS that each of the Defendants must be separately and independently represented.”

[8] Anthony and Domenica propose that the subject paragraph reflect not only the contents of paras. 104 and 106 of the Ruling, but that it also provide “clarity” as to what the parties anticipate will be determined on the cross-motion to be heard on July 11, 2025. Anthony and Domenica propose that the subject paragraph read as follows:

THIS COURT ORDERS that, subject to an individual’s right to self-representation, each Defendant, other than the Estate of Landino Zuccarini (“Estate”), must be separately and independently represented. With respect to the Estate, the parties will appear before this Court on a separate motion (currently scheduled for July 11, 2025) to determine the following issues: 1) Whether an Order under Rule 10.02 is appropriate in the circumstances: 2) In the alternative, who should be appointed as the Litigation Administrator of the Estate? and 3) How the Litigation Administrator’s costs should be paid?

[9] Anthony and Domenica also wish for it to be clear to the judge presiding on the motion and cross-motion to be heard on July 11, 2025 that, in the Ruling, the court did not finally resolve the issue of the mechanism for representation of the Estate. I pause to note that I shall not be the judge presiding on the motion and cross-motion.

[10] Last, if necessary, Anthony and Domenica submit that it is open to the court to re-consider the outcome of the removal motion as it relates to the Estate.

ii) Analysis

[11] For the reasons that follow, the subject paragraph in the order shall read as follows:
“THIS COURT ORDERS that each of the defendants shall be separately represented.”
The simplicity of that term reflects the simplicity of the conclusions set out in the Ruling and eliminates any extraneous language proposed by the plaintiffs or by Anthony and Domenica.

[12] The terms of an order are to reflect the court’s decision and nothing more while addressing matters that may, as between the parties, require enforcement. It is inappropriate to include narrative regarding matters that were not determined in the court’s decision and which are, in any event, unenforceable.

[13] In paras. 143-147 of the Ruling, the court addresses (a) the manner in which the Estate is named as a defendant in the proceeding, (b) the requirement to stay the proceeding, subject to the exceptions set out in para. 148, and (c) the appointment of a litigation administrator for the Estate. Regarding (c), at para. 147, the court says, “A litigation administrator must be appointed for the Estate.”

[14] In summary, at paras. 143-148, the court addresses the requirement for the proceeding to be properly constituted as against the Estate.

[15] Nothing in this endorsement is intended to, in any way, tie the hands of the judge presiding on the motion and cross-motion scheduled for July 11, 2025. The potential for an order to be made pursuant to r. 10.02 was not before the court on the removal motion. It will be up to the presiding judge to determine what is required for the proceeding to be properly constituted against the Estate.

b) The Ruling Does Not Include a Deadline

[16] The plaintiffs propose that the following paragraph is included in the order to be issued and entered:
“THIS COURT ORDERS that each of the Defendants are hereby required to retain new separate and independent counsel within thirty (30) days of the issuance of this Order.”
Of particular concern to the plaintiffs is that, as of the end of June 2025, neither of the defendant corporations has retained new counsel.

[17] There is no basis for inclusion of the paragraph, set out immediately above, or any variation of it, in the order to be issued and entered pursuant to the Ruling:

• The Ruling does not include a deadline by which the defendants are each required to retain separate counsel; and
• The Ruling is on the plaintiffs’ motion for the removal of the defendants’ lawyers of record; it is not on a motion, pursuant to r. 15.04 by the lawyers of record for the defendants to be removed. As a result, the contents of the order are not prescribed by rr. 15.04(5) and (8).

[18] If the defendant corporations fail to retain counsel or fail to obtain leave for someone other than a lawyer to represent them (for the latter, see r. 15.01(2)), then it is open to the plaintiffs and to the other defendants to seek relief arising from the defendant corporations’ respective failure in that regard.

Costs

[19] The parties agree that costs of the appearance on June 30, 2025 shall be determined as part of the costs of the removal motion and the motion to strike. A two-day hearing for submissions as to costs is scheduled for early 2026.

Released: July 2, 2025

Sylvia Corthorn