Court File and Parties
Court File No.: CV-20-84343 Date: 2025-09-25 Superior Court of Justice – Ontario
Re: Dores Zuccarini (Giamberardino), Dino Zuccarini and Giovanni ("John") Zuccarini, Plaintiffs
And: Anthony Zuccarini, Domenica Zuccarini, The Estate of Landino Zuccarini, Pretoria Co. Ltd. and Hollington Co. Ltd., Defendants
Before: The Honourable Mr. Justice Marc Smith
Counsel:
- Kathleen McDormand and Meagan Jennings, Counsel for the Plaintiffs
- JP Zubec, Counsel for the Defendant, Domenica Zuccarini
- Miriam Vale Peters, Counsel for the Defendant, Anthony Zuccarini
Heard: July 11, 2025
Reasons for Decision
M. SMITH J
Overview
[1] This estate dispute has been before the Court since 2020, and the parties have not advanced the litigation in any significant manner.
[2] On February 18, 2025, Corthorn J. released a decision on several motions (Zuccarini v. Zuccarini, 2025 ONSC 1042), including, amongst other things, a motion to remove the Defendants' counsel as their lawyers of record. The factual background of this case was summarized by Corthorn J. at paragraphs 1 to 7:
1 Five members of the Zuccarini family are embroiled in litigation regarding the estate of the late family patriarch, Landino Zuccarini ("the Estate") and the management of the defendant corporations. The plaintiffs and the defendant, Anthony Zuccarini, are siblings; they are the children of the late Landino Zuccarini and his widow, the defendant, Domenica Zuccarini.
2 The plaintiffs allege that, prior to his death, Landino was subject to undue influence by Anthony. The plaintiffs also allege that Domenica was historically, and continues to be, subject to undue influence by Anthony. Last, the plaintiffs question Domenica's capacity to make decisions regarding the management of her property.
3 The plaintiffs assert that Anthony's alleged undue influence is relevant to their challenge to the validity of a will executed by Landino in January 2019 ("the Will"). Domenica executed a will at the same time; its terms mirror those of the Will.
4 The 2019 Wills provide that if one of the Zuccarini parents predeceases the other, the residue of the deceased parent's estate goes to the surviving parent. In the 2019 Wills, each of the testators names Anthony as the sole, alternate residuary beneficiary of the subject estate. The plaintiffs assert that the 2019 Wills represent a marked departure from their parents' historical stated intention to distribute the parents' collective estate amongst the four children.
5 The plaintiffs also make a claim for an oppression remedy regarding the management of the defendant corporations. The plaintiffs and Anthony hold preferred and common shares in the defendant corporations; Domenica holds common shares only.
6 The plaintiffs assert that Anthony's undue influence over the parents is relevant to the oppression remedy claim. Prior to his death, Landino was a director of the defendant corporations. Domenica was also a director of the defendant corporations prior to Landino's death; she remains a director of the defendant corporations.
7 The plaintiffs allege that, in their respective capacities as directors of the defendant corporations, Landino and Domenica breached their fiduciary obligations to the shareholders. The plaintiffs allege that Landino and Domenica did so by using corporate funds, to benefit Anthony to the detriment of the other shareholders. The plaintiffs assert that the parents' conduct in that regard is the result of Anthony's exertion of undue influence over the parents.
[3] Landino passed away on January 6, 2020. Anthony was named as the estate trustee in the 2019 Wills. The plaintiffs objected to his appointment. Corthorn J. said that Anthony could not represent the Estate because of the conflicts between the Estate and the defendants. Corthorn J. stayed the proceeding pursuant to r. 9.03(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules"), pending the proper constitution of the claims against the Estate.
[4] The plaintiffs bring a motion seeking the following: (i) lift the stay of proceedings, (ii) appoint a lawyer to act as the litigation administrator for the Estate; (iii) the litigation administrator to be paid by Domenica and Anthony; and (iv) amend the title of proceedings.
[5] Domenica and Anthony oppose the Plaintiffs' motion for the appointment of the litigation administrator. They bring a cross-motion and seek Court's permission to allow this action to continue without a litigation administrator pursuant to r. 10.02 of the Rules. Alternatively, they ask that Domenica be appointed as the litigation administrator of the Estate.
Legal Principles
[6] Rule 1.04(1) of the Rules governs the interpretation of the Rules and stipulates that the Rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
[7] Rule 9.03(6) of the Rules provide that no further step in a proceeding shall be taken until it is properly constituted.
[8] Rules 9.03(2) and 9.03(3) of the Rules provide that an action shall not be treated as a nullity, as the court may order that the proceeding against an estate may be continued against the proper executor or administrator of the deceased, or against a litigation administrator of the estate, and the title of proceedings shall be amended accordingly.
[9] Rule 10.02 of the Rules provides that the court may order that the proceeding continue in the absence of a person representing the estate of the deceased person or may by order appoint a person to represent the estate for the purposes of the proceeding, and an order in the proceeding binds the estate of the deceased person, subject to r. 10.03 of the Rules, as if the executor or administrator of the estate of that person had been a party to the proceeding.
Issues
[10] The issues to be determined are:
i. Should a litigation administrator be appointed?
ii. In the affirmative, who should be appointed the litigation administrator?
iii. Who should pay the costs of the litigation administrator?
Analysis
Issue #1 - Should a litigation administrator be appointed?
[11] The plaintiffs argue that Corthorn J. ordered that a litigation administrator must be appointed for the Estate and accordingly, the doctrine of res judicata applies. While it is true that Corthorn J. did mention at paragraph 147 of her February 18, 2025 decision, that a litigation administrator must be appointed, I do not believe that it was "ordered". Furthermore, in a subsequent Case Conference Endorsement dated July 2, 2025 (Zuccarini v. Zuccarini, 2025 ONSC 3925), Corthorn J. wrote at paragraph 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."
[12] I am therefore of the view that the matter is not res judicata and I will decide whether the appointment of a litigation administrator is required for the proceeding to be properly constituted against the Estate.
[13] The short answer is yes.
[14] A litigation administrator is necessary for the reasons set out in the text that follow.
[15] First, there are potential litigation administrators who are willing to take on this role (Counsel Jillian Roloff at the rate of $265 per hour and Counsel Antoine Merizzi at the rate of $430 per hour). Both counsels have signed consents to be appointed as the litigation administrator for the Estate.
[16] Second, this case is highly litigious. Clearly, there is no cooperation between the parties. Hostilities and lack of communication are prevalent. This proceeding has been ongoing for five years without any significant movement. The Estate has an interest in this litigation because there is a dispute as to the current and past assets of the Estate. Without a neutral representative, it is likely that the Estate will be prejudiced.
[17] Third, the Estate is an active party in this litigation. The Estate has purportedly served a statement of defence and counterclaim. As such, the Estate will need to defend, pursue the counterclaim, supply production, and tender evidence. Without a representative, the Estate is unable to fully participate in the proceedings, and again, the Estate would be prejudiced.
[18] Fourth, it is unknown if we are dealing with a modest or impecunious estate. There are many unanswered questions to be investigated, including without limitation the following:
i. Prior to his death, Landino held shares in Pretoria Co. Ltd. and Hollington Co. Ltd. It is alleged that these shares were transferred from the Estate to Domenica, contrary to the interests of the holders of the preferred shares. It is noted that these transfers were authorized by Anthony and Domenica.
ii. Pretoria Co. Ltd. owned an apartment building that was sold. It is alleged that part of the sales proceeds of this building, which may amount to approximately $3,000,000, was deposited into a joint bank account held by Anthony and Domenica.
iii. Anthony and Domenica produced records from the Toronto Dominion Bank and Scotiabank, showing deposits and transfers in the approximate sums of $4,000,000. It is alleged that corporate GICs were transferred to the personal accounts of Anthony and Domenica.
[19] The evidence with respect to the monetary amounts in dispute have not yet been discovered. A representative of the Estate is required to assist in the production of the records, such as Landino's individual bank statements, financial records, and records showing Landino's instructions to financial institutions and professionals, to name a few.
[20] Fifth, it is premature to conclude that the Estate has limited or no assets. Full disclosure does not appear to have been completed, and a representative of the Estate is required to gather the information.
Issue #2 – In the affirmative, who should be appointed as the litigation administrator?
[21] Domenica and Anthony propose that Domenica be named as the litigation administrator. I disagree.
[22] Domenica cannot represent the Estate for the same reasons given by Corthorn J. as to why Anthony cannot represent the Estate. There are too many real, serious and potential conflicts between the Estate and the parties. Domenica is an adverse party in these proceedings and to permit her to become litigation administrator would be contrary to r. 1.04(1) of the Rules, namely undermining fairness in the process.
[23] Given the circumstances of this case, the litigation administrator must be a neutral third party, and not in an adversarial position with the Estate.
[24] Counsel Roloff or Merizzi are both neutral and qualified to take on the role of litigation administrator. However, given the allegations made that we are dealing with a modest estate, appointing counsel with the lowest hourly rate is the most prudent course of action.
[25] Counsel Roloff is therefore appointed as the litigation administrator of the Estate.
Issue #3 - Who should pay the costs of the litigation administrator?
[26] The plaintiffs request that Domenica and Anthony be jointly and severally responsible for the payment of the litigation administrator's fees because: (i) they are the individuals in possession of the Estate assets; and (ii) they are the people who transferred assets (including the corporate shares) out of the Estate and into their hands.
[27] At this juncture, I am not prepared to put the cart before the horse and presume that Domenica and Anthony have improperly diverted Estate and/or corporate assets into their hands, therefore making it their responsibility to pay the fees of the litigation administrator.
[28] The Estate is the proper payor of the litigation administrator's fees.
[29] However, if it is determined that the Estate is impecunious as alleged, then I am of the view that the corporate defendants, Pretoria Co. Ltd. and Hollington Co. Ltd., should be jointly and severally responsible for payment of the litigation administrator's fees. Given that the crux of the action relates to the assets of these two family held corporations, I find that it is reasonable that these two corporate entities pay the fees of the litigation administrator. I recognize these two corporate entities were not represented at this motion, but in exercising my inherent jurisdiction to order such a payment, I believe that this fairest way to proceed so that justice can be done in these proceedings.
[30] Now, if it is determined that Pretoria Co. Ltd. and Hollington Co. Ltd. are also impecunious, then the parties shall need to make an appointment before me to explore alternatives for the payment of the litigation administrator's fees.
[31] Payment of the litigation administrator's fees by the Estate, Pretoria Co. Ltd. and/or Hollington Co. Ltd. shall be subject to adjustment by the judge hearing the final adjudication of this matter.
Disposition
[32] For the foregoing reasons, I make the following orders:
i. The stay of proceedings is lifted.
ii. Jillian Roloff shall be appointed to act as the litigation administrator for the Estate.
iii. The title of proceedings shall be amended to reflect the appointment of Jillian Roloff.
iv. The litigation administrator's fees shall be paid by the Estate, Pretoria Co. Ltd. and/or Hollington Co. Ltd.
v. If it is determined that the Estate, Pretoria Co. Ltd. and/or Hollington Co. Ltd. are impecunious, an appointment shall be made before me to explore alternatives for the payment of the litigation administrator's fees.
[33] The costs of this motion will be decided upon once the issue of the payment of the litigation administrator's fees has been finalized.
[34] I remain seized on the sole issue of the payment of the litigation administrator's fees.
[35] On a final note, I strongly urge counsel and the parties to take a collaborative approach to this litigation, with a view of working together towards the final resolution of this matter. This type of approach benefits all parties involved. Otherwise, if the parties choose to remain on this current path, tension and animosity will continue to rise, numerous court appearances will be required, litigation costs will skyrocket, and the parties will likely not receive a final decision to their dispute for many years to come.
M. Smith J
Released: September 25, 2025