Court File and Parties

Court File No.: CV-22-89338 Date: 2025-09-10 Superior Court of Justice – Ontario

Re: Rita Issa, Applicant And: Antonietta Aiello, Gisella Aiello, Francesco Aiello and Luigi Aiello, Respondents

Before: Justice R. Ryan Bell

Counsel: Michael Rappaport, for the Applicant Matthew Jarrett, for the Respondent Antonietta Aiello[1]

Heard: In writing

Costs Endorsement

[1] In this application for directions, Rita Issa sought a declaration setting aside Luisa Aiello's July 8, 2016 will and other associated relief. Rita alleged the 2016 Will was invalid because Luisa, Rita's mother, lacked testamentary capacity, was subject to undue influence, and did not approve or have knowledge of the contents of the will. Rita also maintained the 2016 Will was not duly executed in accordance with the requirements of the Succession Law Reform Act, R.S.O. 1990, c. S.26.

[2] In Reasons for Judgment released July 9, 2025, I dismissed Rita's application with costs to Rita's sister, the respondent Antonietta Aiello: Issa v. Aiello, 2025 ONSC 4055. I found the 2016 Will was duly executed and there was no evidence to support any of Rita's allegations: Issa, at paras. 19-27, 33-35, 36-42, 43-44.

[3] Antonietta seeks her costs of the application on a substantial indemnity basis in the amount of $70,000, apparently rounded up from the substantial indemnity costs of $68,683.91 reflected in her Bill of Costs. Rita did not provide any submissions as to costs.

[4] I conclude this is a case for substantial indemnity costs for two reasons. First, Antonietta made several offers to settle the application. In her Rule 49 offer to settle made February 17, 2023, Antonietta offered to settle the application and Rita's action on the basis that both would be withdrawn, Antonietta would be paid costs in the amount of $10,000, and Rita would renounce any claim to Luisa's estate. In her June 27, 2024 offer, Antonietta proposed that the application be abandoned, with Antonietta's costs to be assessed or payable in the fixed amount of $20,000. In the result, Antonietta was the successful party – the application was dismissed, with costs to Antonietta.

[5] Second, Rita made unfounded allegations of fraud and undue influence. She provided nothing to support her assertion that Antonietta financially exploited Luisa: Issa, at paras. 39-40. There was no evidence to support her claim that Antonietta defrauded Luisa's estate by registering a reverse mortgage on the Palsen Street property: Issa, at paras. 41-42. And Rita baldly asserted that Mr. Chiarello's July 8, 2016 affidavit was fabricated, but she did not even bother to cross-examine him: Issa, at para. 44.

[6] Alleging fraud and undue influence with no relevant evidence constitutes reprehensible litigation behaviour: Fanelli v. Fanelli-Bruno, 2023 ONSC 6501, at para. 48, citing Young v. Young. Rita engaged in reprehensible litigation behaviour and costs on the substantial indemnity scale are appropriate.

[7] As to the quantum of costs, there is no basis to "round up" the costs claimed. I find the hourly rates of Antonietta's counsel are reasonable having regard to their years of experience. There appears to have been some overlap in certain tasks performed by senior and more junior counsel. Otherwise, I find the time incurred by counsel was reasonable, particularly having regard to the serious and scandalous allegations made by Rita. This matter involved numerous court attendances, including case conferences and scheduled hearing dates. Some of the delays resulted from Rita's litigation conduct: for example, the hearing did not proceed in December 2023 as scheduled due to Rita's late delivery of the affidavit of Ross Talarico. The materials filed were voluminous. Antonietta conducted cross-examinations. Facta were prepared and reviewed.

[8] The costs claimed by Antonietta include costs associated with an attendance before Rees J. on May 11, 2023. At that time, Justice Rees stayed Rita's claim and ordered that cross-examinations on the application take place. Justice Rees fixed Antonietta's costs at $2,000, without prejudice to the parties making submissions to the application judge as to whether costs should be awarded in respect of the May 11, 2023 attendance. Antonietta is entitled to her costs associated with the May 11, 2023 attendance before Rees J., but only in the previously fixed amount of $2,000.

[9] Having regard to all the above, I award Antonietta substantial indemnity costs in the amount of $55,000, all inclusive. This amount is to be paid by Rita within 60 days.

Justice R. Ryan Bell

Date: September 10, 2025

Footnote

[1] Antonietta Aiello's name is misspelled in the title of proceedings.