Court File and Parties

Court File No.: CV-23-00704918-00ES Motion Heard: 2025-08-27 Superior Court of Justice – Ontario

Re: Giancarlo Pizzi, Applicant

And: The Estate of Nadia Nouini also known as Nadia Nouini Pizzi, by her Executrices and Trustees Sara Souad Nouini and Nour Bargach also known as Nour Bragach, Sara Souad Nouini, Nour Bargach also known as Nour Bragach, and Sean Amine Nouini, Respondents

Before: Associate Justice Jolley

Counsel:

• Emilio Bisceglia, counsel for the moving party applicant
• Arieh Bloom and Jessica Karjanmaa, counsel for the responding party respondents Sara Souad Nouini and Nour Bargach
• Daniel Milton, counsel for the responding party respondent Sean Amine Nouini

Heard: 27 August 2025

Reasons for Decision

[1] The applicant is the husband of the deceased Nadia Nouini. He seeks to challenge a will made by Nadia and the various transfers made by her or under her power of attorney in favour of her sister, the respondent Sara Nouini, her niece, the respondent Nour Bargach and her son, the respondent Sean Nouini.

[2] On this motion, the applicant seeks an order that the respondents answer numerous refusals and provide better answers to a number of undertakings given on their respective cross examinations.

[3] It was obvious from the number of questions in issue that the motion could not be argued in the 119 minutes booked by the applicant. While this was likely evident to the applicant when booked the motion, he chose to obtain whatever time he could and try to fit all he could into it, as there is a hearing of the issues set for 29 January 2026.

[4] I advised counsel at the outset that matters not argued would be dismissed. With that direction, the applicant withdrew that part of his motion dealing with the sufficiency of the answers to undertakings. That left 22 refusals. It became apparent during argument that it was not possible to argue that many refusals during the motion. The applicant then narrowed his argument to what he termed the "major grouping" that dealt with communications among the parties.

[5] The respondents object to the questions for three reasons. First, they argue that a refusals motion is the wrong forum and that requests for productions in estates matters are properly dealt with by requesting amendments to the order for directions. Second, they argue that the requests are overly broad and irrelevant and are not saved by the applicant narrowing his request through a recently amended motion record. Third, they argue that they have already answered any part of the questions that could be considered relevant.

A. Procedural History

[6] This application already has a robust history. The application was commenced in August 2023. On 24 October 2023, Myers, J. made an order setting out the issues to be first tried and made productions orders related to those issues. Paragraph 3 of the order required the parties to make financial records disclosure of various types of documents either in their possession or in the possession of any financial advisor, corporation, bank, trust company, insurance company, or accountant, covering the period 1 January 2020 to 23 August 2023. Paragraph 4 of the order required production of all medical records and files relating to the deceased from 1 January 2020 to her death on 19 April 2023. Paragraph 5 ordered the production of all lawyers' records, notes and files relating to the deceased estate planning, wills, powers of attorney, and transfers of specific properties. Each paragraph concluded with the provision that "this order is without prejudice to any party's ability to return for further productions in the event such productions become necessary."

[7] Sanfilippo, J. made a further order on 21 May 2024 adding an additional property to the list of impugned transfers, and setting a schedule for delivery of affidavits, examinations of non-parties and cross-examinations. This order also allowed the parties to bring a further motion for directions, if necessary. He ordered the applicant to amend his application to add these additional claims of undue influence and lack of capacity and to seek an order setting aside the transfer of the additional property, and that was done in October 2024.

B. Jurisdiction

[8] The respondents argue that the process for productions is different in estates matters. The appropriate route for additional productions is not a refusals motion, but a case conference or motion in the estates court for an amendment to the existing orders for directions, as had been done earlier in this proceeding. As the parties in estates matters provide sworn affidavits, the questioning is not a free-range examination for discovery but is a cross examination on the affidavits and on the documents the court has already ordered produced through its orders for directions. This process, the respondents argue, is confirmed by the content of the earlier orders for directions which specifically direct the parties to "return for further productions in the event such productions become necessary". Not having asked at those case conferences for additional productions such as these emails and texts, or sought a case conference for the additional productions before cross examining the respondents, the respondents argue that the applicant is attempting to do through an improper route what he failed to do at the case conferences.

[9] The applicant did attend a case conference before Myers, J. on 15 July 2025 and sought a timetable for the respondents' answers to undertakings and for a refusals motion. The respondents raised these same objections before Myers, J. that they raised before me. Despite his concerns about (a) timing, (b) effectiveness and (c) the need for the application judge to deal with this issue in any event, His Honour refused the respondents' request to bar the applicant from bringing this motion. Specifically, Myers, J. held that "while I do not bar a refusals motion, it seems likely to me that this type of argument will need to be presented to the application judge as well unless Mr. Bisceglia is able to convince his colleagues opposite to respond to a finite number of questions with proportionate production. I agree with Mr. Bloom that it is very late in the day to be seeking very broad production by undertaking instead of listing the material sought in the directions orders made a long time ago."

[10] I find this jurisdictional objection has already been determined by Myers, J. While it may have been more appropriate and cost effective for the applicant to seek these productions through a further order for directions, I do not find that he cannot bring this motion. If the route was not appropriate, it may be considered in costs.

C. The Communications Refusals

[11] The applicant determined to proceed on refusals 1, 2, 3, 6, 7, 8, 9, 10, 11, 12, 15, 16 and 20 as one grouping.

[12] Refusals 1, 2, 3, 9, 10, 11, 12, 15 and 16 – as asked – seek all Sara's emails and texts with various parties, all Nadia's phone records, all Nour's texts and WhatsApp messages with various parties, all parties' emails to or from each other, all Nour's emails with Nadia, and all of the respondents' communications with Nadia and with the applicant. These requests were not limited by date or topic.

[13] Through an amended notice of motion and chart delivered just prior to the motion date, the applicant attempted to narrow his request by time at least, for productions for the period 1 January 2020 to 23 August 2023.

[14] I find that questions 1, 2, 3, 9, 10, 11, 12, 15 and 16 are not relevant. They are framed so widely that they cannot help but be overly broad (see Xie v Gross 2022 ONSC 5359 at paragraph 25-27). The applicant did not ask for a limited time period of production during the cross examination. While he was prepared to seek production for a more limited time period before me, it was on the basis that he could satisfy me that the entire timeframe was relevant and he was now only seeking a portion of his otherwise legitimate request. Even if I were to treat the request as limited to the new time period 1 January 2020 to 23 August 2023, it is not limited to the issues in the application or those set out in the orders for directions. I have not been directed to any specific place in the respondents' affidavits where issues related to the communications were raised nor was it argued that they relate to the credibility of the deponents' evidence.

[15] I note that the respondents have not maintained a blanket refusal to provide all communications. As concerns the omnibus request for all emails between Sara and either Nadia, Giancarlo, Sean, Nour, Mina, and/or Sam (Q439), which they did refuse, the respondents did undertake in answers to various other questions to look for and produce emails relating to the Giancarlo/Nadia matrimonial home (Q459), relating to their joint property and joint assets (Q442, 444-447) and relating to the will or issues set out in the list of triable issues (see Q477) and they did produce documents where found (I note the email of 29 May 2023 titled mortgage title change, by way of example).

[16] Questions 6, 7, 8 are limited in time and topic. Refusal 6 (Q808) seeks communications concerning transactions in the joint Sara/Nadia account in December 2022. Refusal 7 (Q811) seeks all communication regarding the transfers of the assets in the asset chart attached to Sara's affidavit and any other family members who received gifts in April 2022. Refusal 8 (Q187) seeks a record of all Nour's phone records with Ms. Janssen.

[17] These requests fail, not because they are not relevant, but because they have been answered. Concerning refusal 6 for all communications among the parties regarding the transactions in the Sara/Nadia joint account in December 2022, Sara agreed to produce the communications referenced, when asked on three other questions. She agreed at Q812 to produce the documents she could find on those transactions and answered that she was unable to find any such communications. She agreed at Q442 to produce all emails between herself, Nour and Sean from 2022 to the date of Nadia's death regarding assets belonging to Nadia and the applicant and, in answer to that undertaking, she did produce an email dated 19 November 2022 to Nadia from The Gardener entitled the Gardener Estimate for 64 Doonaree Drive, the matrimonial home. Lastly, at Q521, she agreed to look for and produce any electronic communications relating to a $380,000 loan. In answer to that undertaking, she advised that she did not find any such communications.

[18] The information requested in refusal 7 regarding the transfers listed in an asset chart was provided in the respondents' answer to Q812 where Sara agreed to produce any communications she had with Nadia, Nour, Sean or Giancarlo regarding the transfers. She advised in answer to that undertaking that she had found no documents.

[19] Question 187 for production Nour's phone records and other communication with the lawyer Ms. Janssen, (Refusal 8) was refused on the basis that the question had already been undertaken – see U/Ts at questions 158, 183, 274, 488, 780 and 527. For Q158, 183, 274 and 780, the respondents advised that no communications were found and for Q488 and 527, they produced an email from Nouini to Nour re registered transfers to sever the joint tenancies for Adelaide and Doonaree dated 20 October 2020. Where Nour did refuse, it was on the basis that she had also retained Ms. Janssen for matters outside the issues in this application and was not waiving privilege over those unrelated matters.

[20] Refusal 20 (Q287) was conditional on Nour concluding that she found it onerous to produce her phone records for 12 April 2023. Nour did not conclude that it was onerous. She advised that the phone log could not be accessed but she did locate and produce a text between her and Sara dated 12 April 2023 relating to Sara's meeting with the lawyer, Ms. Janssen, and concerning Sara's discussion with the applicant where he "agreed".

[21] As I advised at the outset, the unargued refusals in the chart attached to the motion, in addition to those set out above, are also dismissed.

D. Costs

[22] Sara and Nour seek substantial indemnity costs on the basis that the motion should not have been brought in this forum. I did not accept their jurisdictional argument, so do not award substantial indemnity costs. However, they were successful on the motion and are entitled to partial indemnity costs. They seek $13,380 in partial indemnity costs before HST. Their materials were very thorough, thoughtfully organized, helpfully hyperlinked directly to questions and undertakings and answers and were prepared under some time constraints. I find their request to be reasonable and order the applicant to pay the all-inclusive amount of $15,119.40 to the respondents Sara and Nour.

[23] Sean seeks full indemnity costs on the basis that the applicant withdrew the only two refusals that concerned him. His full costs to respond to the motion are $10,993.77.

[24] Sean did answer the two refused questions concerning transfers to him in any event. I appreciate that he also had to respond to the Communications refusals as the production requests were directed at all of the respondents. I order the applicant to pay Sean his partial indemnity costs in the all-inclusive amount of $6,500.

[25] In light of the issues, the completeness of the responses delivered by the respondents, and the outcome, I find these sums to be fair and reasonable amounts for the applicant to have expected to pay if he were unsuccessful on the motion.

Associate Justice Jolley

Date: 2 September 2025