Court File and Parties

Court File No.: CV-24-00714665-0000 Date: 2025-10-27 Ontario Superior Court of Justice

Re: John Papanicolaou and Christine Papanicolaou, Plaintiffs - AND – Maurizio Privitera, MGP Construction Group, Nadia Zannella and Jennifer Pannozzo, Defendants

Before: L. Brownstone J.

Counsel: Shane Greaves, for the Plaintiffs Maurizio Privitera and Jennifer Pannozzo appearing in person

Heard: October 8, 2025

Endorsement

[1] The plaintiffs sued the defendants for damages arising out of a failed renovation project. The defendants were noted in default on March 26, 2024. The claim against Nadia Zannella is stayed under s. 69.3(1) of the Bankruptcy and Insolvency Act R.S.C. 1985, c. B-3. The remaining defendants move to set aside the noting in default.

Procedural History

[2] The claim was issued in February 2024. The defendants were served on February 24, 2024, by leaving a copy of the claim with the defendant Maurizio Privitera. He is the sole proprietor of MPG Construction Group. The address at which he was served was a home belonging to the defendant Zannella, who is the mother of the defendant Pannozzo. Mr. Privitera was the guarantor of a mortgage on the home. There is some evidence in the record that the parties lived together, at least during the time of the renovation project that is the subject matter of the dispute. The process server's affidavit states that Ms. Pannozzo appeared to be a member of the same household as Mr. Privitera. The process server also mailed a copy of the claim to Ms. Pannozzo.

[3] The defendants were noted in default on March 26, 2024. They were served with materials seeking default judgment on May 3, 2024, by courier to the property at which they were served with the claim.

[4] On May 21, 2024, Papageorgiou J. set a timetable for the in-writing hearing of the motion for default judgment. Papageorgiou J. required the materials and her endorsement to be served by June 3, 2024. Her endorsement provided that if the defendants wished to seek to respond to the motion for default judgment, they needed to notify counsel for the plaintiff by July 1, 2024.

[5] In accordance with Papageorgiou J.'s order, Mr. Privitera was served personally with the materials for a second time on May 30, 2024. Ms. Pannozzo was not able to be served personally, despite four efforts having been made, so on June 3, 2024, she was served by courier, and on June 5, 2024, she was provided the documents by email. The email address used for Ms. Pannozzo was the same address used between her and the plaintiffs during the renovation project, which is the same email address Ms. Pannozzo later used to communicate with the court.

[6] On July 5, 2024, four days after the court-ordered deadline, Mr. Privitera advised that he wished to respond to the motion for default judgment. He wrote:

Please be advised that I will be filing an appeal to the judgement today. I intend to respond to the motion for default judgement. I was to reply by July 1, 2024, however I was going through personal family matters. Please accept this as my intentions (sic) to respond.

Please advise the case conference and notify the motions coordinator that the motion date should be vacated.

Regards,

Maurizio Privitera, MGP Construction

[7] Justice Centa was to hear the default motion in writing the week of July 8, 2024. Because of Mr. Privitera's response, Centa J. converted the motion to a case conference which he scheduled for July 23, 2024. He directed Mr. Privitera to make sure that each defendant received a copy of his endorsement. Justice Centa also endorsed:

I direct that each and every defendant shall attend the case conference or have a fully retained lawyer attend as their representative at the case conference. If any defendant does not appear at the case conference, I may grant default judgment against them at that time. (emphasis in original)

[8] Justice Centa also provided a mechanism whereby the defendants could advise whether they were unable to attend on the scheduled date and time. The conference was convened on July 25, 2024. Mr. Privitera attended. Ms. Pannozzo did not.

[9] Justice Centa's endorsement from that date included the following:

Notwithstanding this direction [his direction that each and every defendant attend the conference], Ms. Pannozzo and Ms. Zannella did not attend. This is not acceptable and cannot be repeated. Directions of the court are not optional. If they do not follow further directions, their rights may be significantly affected including that judgment may be granted against them.

Mr. Privitera advised that all of the defendants were in the progress of retaining counsel. This process must be completed forthwith. No later than next Wednesday, [July 31, 2024], counsel for the defendants must contact Mr. Greaves to discuss next steps in this proceeding. We will convene a case conference in September on a mutually convenient date.

[10] The defendants did not retain counsel by July 31, 2024. Counsel for the plaintiffs sought an attendance before Centa J. In response to the email seeking an attendance before Centa J., Ms. Pannozzo stated, among other things:

I do want Mr. Greaves to be aware that I will be advising counsel to pursue his clients for slander and defamation for the false accusations and allegations set forth in this matter including possible charges through Toronto Police against his clients for fabrication of such lies and false accusations including section 134(1) of the criminal code of Canada.

[11] Similarly, Mr. Privitera's response contained the following statements:

We would be seeking extensive damages from your clients including but not limited to filing criminal charges against your clients….

Despite the fact that I will have council (sic) retained, I would like to personally have a conversation with you prior to her reaching out to you, and prior to filing charges against your clients.

just as your clients are eager ... I too am very eager to get the ball rolling here. Your clients need to answer to the false allegations and the pending criminal charges not to mention much more ...

[12] Mr. Privitera and Ms. Pannozzo requested the case conference take place after September 16, 2024. It was convened on September 17, 2024. Still, they had no counsel. They advised they would have counsel retained in a matter of days. The case conference was adjourned to September 23, 2024. Counsel for the defendants attended on September 23 but had not discussed the matter with opposing counsel. Justice Centa adjourned the conference to October 3, 2024, to allow such a discussion to take place. On October 3, 2025, Centa J. established a schedule for the motion to set aside the noting in default, which he scheduled for May 6, 2025. He stated:

This timetable is peremptory and must be followed. I am not seized of this matter and, having assisted the parties to try and resolve this matter, I should not hear the motion on the merits.

[13] In December 2024, the defendants started a claim against the plaintiff in relation to the renovation project, seeking damages for breach of contract, bad faith, aggravated damages, and damages for defamation. The plaintiffs defended the claim in early January 2025. No further steps have been taken to move that litigation forward.

[14] In April 2025, counsel for the defendants served a motion record seeking to be removed as lawyers of record. The defendant's counsel had filed materials and a factum on the motion to set aside the noting in default on his clients' behalf. The motion to set aside the noting in default was not heard on May 6, 2025, through no fault of any of the parties. On May 9, 2025, the defendants filed a notice of intent to act in person.

[15] The motion was rescheduled to October 8, 2025, before me. Mr. Privitera and Ms. Pannozzo appeared on the motion.

The Test to Set Aside Noting in Default

[16] The court will consider various factors when determining whether a noting of default should be set aside. A non-exhaustive list includes: (a) The parties' behaviour; (b) The length of the defendant's delay; (c) The reasons for the delay; (d) The complexity and value of the claim; (e) Whether setting aside the noting of default would prejudice a party relying on it; (f) The balance of prejudice as between the parties; and (g) Whether the defendant has an arguable defence on the merits: Franchetti v. Huggins, 2022 ONCA 111 at para. 9.

[17] These considerations reflect the tension between the competing policies of deciding matters on their merits, and requiring actions to be determined in a timely way in accordance with the rules, which maintains public confidence in the administration of justice: Brown v. Dhaliwal, 2023 ONSC 947 at para. 15.

(a) The Parties' Behaviour

[18] The defendants' behaviour does not reflect a good-faith intention to engage in the civil litigation process. The defendants:

a. failed to defend the action;

b. responded after the deadline in Papageorgiou J's endorsement to advise they wished to defend the motion (by a few days for Mr. Privitera and his corporation, by more than a month for Ms. Pannozzo);

c. In the case of Ms. Pannozzo, did not attend the case conference before Centa J. despite being ordered to do so;

d. Did not retain counsel in accordance with the timeline ordered by Centa J.;

e. When plaintiffs' counsel pointed out this breach and sought an attendance before Centa J., the defendants responded with threats to sue and press criminal charges against the plaintiffs;

f. In their motion materials prepared by their counsel for the May motion dates, more than fourteen months after Mr. Privitera had been personally served with the claim, the defendants sought 60 days from the date of an order setting aside the noting in default until they would be required to file a statement of defence;

g. No draft defence has ever been prepared or provided to the plaintiffs or the court, despite the fact that the claim was served over 19 months before I heard this motion;

h. The parties' relationship with counsel, which was a subject of orders of Centa J. and the cause of some delay, has been terminated.

(b) The Length of the Delay

[19] The defendants waited until after the deadline imposed by Papageorgiou J. to assert their wish to defend. They are not responsible for the delay after October 3, 2024, as these delays were occasioned by waiting for court dates. The length of their delay is 7.5 months.

(c) The Reasons for the Delay

[20] Mr. Privitera cites "personal and financial difficulties" that made it difficult for him to retain legal counsel promptly in explaining his failure to respond to the litigation. He provided a police report that evidenced a February 2024 disagreement about leasing and purchasing a property and provided evidence of a November 2024 Landlord Tenant Board hearing. He submits he was going through difficult personal issues at the time.

[21] In a reply affidavit, Mr. Privitera swears he did not tell Ms. Pannozzo about the claim when he was served because he forgot. He says he moved as quickly as he could.

[22] Ms. Pannozzo swears that she was only advised of the action when Mr. Privitera told her about it "on or around the fall of 2024". She deposed that her mother was going through a divorce in 2024, and she and her mother experienced abuse from her father. Because her father was stalking them, they moved often and did not reside in one place for very long. She also deposed she was not regularly checking her emails in 2024. She swore: "… I did not access my email at all during the year until I found out about the case, at which point I logged back into the email account, reviewed the documents and took action immediately."

[23] Mr. Privitera was ordered to advise Ms. Pannozzo of the case conference in July 2024. Ms. Pannozzo sent an email to the court on August 1, 2024, responding to an email sent by Mr. Greaves that same day. The defendants produced a document indicating Ms. Pannozzo was enrolled in a design program at Yorkville University and has been so enrolled since April 2023. They argued that she was busy with her studies and not checking or paying attention to her emails from her other account.

(d) The Complexity and Value of the Claim

[24] The claim is not particularly complex. It is a contract dispute between the plaintiff homeowners and the defendant contractors (Mr. Privitera and MGP Construction Group) and designer (Ms. Pannozzo), brought under the simplified procedure rules.

(e) Whether Setting Aside the Noting of Default Would Prejudice a Party Relying on It

[25] The plaintiffs would suffer prejudice in two ways from setting aside the noting in default. First, there would be necessary delay to the proceedings. Even if a strict timetable were imposed, the matter would not be reached for hearing for at least another year. Such delay has been held to be significant prejudice: Shirzad v. Hussain et al., 2024 ONSC 5172 at para. 72.

[26] Second, the plaintiff Christine Papanicolaou has provided evidence from her physician that she suffers from an autoimmune disorder that is exacerbated by stress and anxiety, and that a timely resolution to this matter is crucial to her care. She provided sworn evidence, not challenged, that the "symptoms worsened significantly due to the Defendants' actions during the Project and their delays (and threats of criminal prosecution) after the litigation was commenced."

(f) The Balance of Prejudice as Between the Parties

[27] There is clearly prejudice to the defendants if they are not permitted to defend the claim. Default judgment will follow, assuming the materials provided by the plaintiffs establish liability and damages. I will discuss the balancing of the prejudice to the various parties below.

(g) Whether the Defendant Has an Arguable Defence on the Merits

[28] Where there has not been significant delay, courts will rarely require a defendant to show a defence on the merits. However, here, the defendants have had 19 months to reveal their defence. The most that can be gleaned from the materials in respect of Mr. Privitera and MGP Consulting Group is the defendants' complaint that the plaintiffs frequently changed designs on the project, defaulted on their payment schedule, and breached the contract by terminating it.

[29] Nowhere do these defendants deny or rebut the claims set out in the statement of claim and extensive affidavit materials, which include the following: the plaintiffs paid $130,000 in deposit monies, there were extensive delays on the demolition, the defendants were completely absent from the project for extensive periods, the defendants breached the schedule set out in the contract, subcontractors refused to perform or continue work for the defendants because they were not being paid, the defendants demanded more funds without accounting for how the initial funds had been spent, and, when work was performed, the defendants performed it deficiently and it had to be redone.

[30] Ms. Pannozzo's materials indicate she was a subcontractor to MGP Consulting Group and that she provided extensive design services for the project.

Conclusion

[31] The factors set out above are not exhaustive. Nor are they watertight compartments. I acknowledge there is a strong desire to have cases decided on their merits.

[32] However, I find apt in this case the statements of Sheard J. in Shirzad and the Court of Appeal for Ontario in Franchetti that the desire to determine matters on their merits may not carry the day where the prejudice is of the defendants' own making.

[33] Here, Mr. Privitera and MGP Consulting Group have engaged in a pattern of behaviour that ignores court documents and court orders. When they have responded, they have responded with aggression and threats.

[34] They have yet to produce a substantive defence to the claim, some 19 months after receiving it. They blame the plaintiffs for increasing costs by opposing this motion, rather than taking responsibility for their own actions.

[35] There is real prejudice to the plaintiffs that outweighs the prejudice to the defendants. They have lost 19 months of litigation time. This has had an adverse impact on Christine's health.

[36] I have no confidence, based on the defendants' Mr. Privitera and MGP Consulting Group's behaviour to date, that they would comply with further court-ordered timetables. They have shown repeated disregard for such orders thus far, and a cavalier disregard for the court's processes.

[37] Further, even if they were to comply with a court-ordered timetable, the matter would not be reached for trial for over a year.

[38] I reach a different conclusion with respect to Ms. Pannozzo. The affidavit evidence from both her and Mr. Privitera states that he did not provide her with or advise her about the statement of claim when he was served with it. Ms. Pannozzo explained in her affidavit that she and her mother were avoiding her abusive father at the time, and she was not living at the property. She then clearly depended on Mr. Privitera to take the lead in defending the claim when she did become aware of it. While her actions are not fault-free, they are plausible in a way that those of Mr. Privitera are not. As well, she has provided some insight into her substantive defence, stating that she was a consultant to Mr. Privitera and provided a hundred hours of consulting services.

[39] Balancing all of these factors, I conclude that the noting in default against Mr. Privitera and MGP Consulting Group should not be set aside. The plaintiffs may file their default judgment materials to be heard in writing during the week of December 1, 2025.

[40] The noting in default against Ms. Pannozzo is set aside. Ms. Pannozzo shall have 20 days to serve and file a statement of defence. If she does not serve and file her statement of defence within 20 days, the plaintiffs may move for default judgment against her together with the motion against Mr. Privitera and MGP Consulting Group during the week of December 1, 2025.

[41] Costs of this motion shall be dealt with by the judge determining the motion in default.

L. Brownstone J.

Date: October 27, 2025