1814219 Ontario Inc. v. 2225955 Ontario Ltd., 2026 ONSC 637

1814219 Ontario Inc. v. 2225955 Ontario Ltd., 2026 ONSC 637

NEWMARKET COURT FILE NOs.: CV-17-129690/CV-17-131195/CV-17-132117/CV-18-134759

DATE: 20260205

ONTARIO

SUPERIOR COURT OF JUSTICE

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CV-17-129690

BETWEEN:

1814219 ONTARIO INC. c.o.b. as UM CONSTRUCTION, Plaintiff

AND:

2225955 ONTARIO LTD., DAYTONA AUTO CENTRE LTD., DAYTONA AUTO SALES INC. and ROYAL BANK OF CANADA, Defendants

RE : CV-17-131195

AND BETWEEN:

2225955 ONTARIO LTD., Plaintiff

AND:

UMBERTO MAUTI, FRANK MURDOCCA a.k.a. FRANCESCO MURDOCCA, GIUSEPPE VILLANO, 1814219 ONTARIO INC. c.o.b. as UM CONSTRUCTION, MURDOCCA CORPORATION, and WALDORF CONSTRUCTION INC., Defendants

RE : CV-17-132117

AND BETWEEN:

GIUSEPPE VILLANO, Plaintiff

AND:

2225955 ONTARIO LTD., ROYAL BANK OF CANADA, Defendants

RE : CV-18-134759

AND BETWEEN:

251485 ONTARIO LTD., and 2225955 ONTARIO LTD., Plaintiffs

AND:

GIUSEPPE VILLANO, Defendant

COUNSEL APPEARING:

Maria Ruberto and Neeta Sandhu for 1814219 ONTARIO INC. cob UM CONSTRUCTION, and UMBERTO MAUTI

William Gilmore for 2225955 ONTARIO LTD., DAYTONA AUTO CENTRE LTD, DAYTONA AUTO SALES INC. and 251485 ONTARIO LTD

Emilio Bisceglia and Hana Tariq for GIUSEPPE VILLANO

Paul Feldman for F. MURDOCCA, MURDOCA CORP. and WALDORF CONSTUCTION INC.

HEARD: January 28, 2026

RULING

VALLEE, J.:

Nature of the motion

1The trial of these four actions was heard between November 2022 and May 2023. The trial decision is 1814219 Ontario Inc. v. 2225955 Ontario Ltd. 2023 ONSC 4672. The matter concerned the construction of a commercial building. One of many issues was the amount of soil that was excavated and trucking of that soil off site. 2225955 Ontario Ltd (222) maintained that no trucking occurred or if it did, it was not authorized. I found that all of the excavated soil had to be trucked off site. The principal of 222, John Duca, approved the trucking; and 222 paid for it.

2222 brings this motion pursuant to r. 59.06(2)(a)¹ requesting that the decision be set aside on the ground of fraud or of facts arising or discovered after it was made.

3RSJ Edwards made an order, peremptory, that this motion would proceed before me in the week of January 19, 2026. It was scheduled to proceed on January 21, 2026; however, 222 appeared without counsel. No order had been made that a person who is not a lawyer could represent the corporation. Accordingly, I adjourned the motion to January 28, 2026. My endorsement stated that 222 was to retain counsel to argue the motion.

4On January 28, 2026, William Gilmore attended for 222. He requested an adjournment. I denied the request. Regarding 222’s position on this motion, I have relied on 222’s written materials, specifically the affidavit of John Duca sworn June 9, 2025, served by December 9, 2026 in accordance with RSJ Edward’s timetable.

Rule 59.06(2)(a)

5Rule 59.06(02)(a) states: a party who seeks to have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made may make a motion in the proceeding for the relief claimed.

The applicable legal test to set aside a judgment

6In International Corona Resources Ltd. v. LAC Minerals Ltd.,(1988), 66 O.R. (2d) 610 the court set out a test consisting of nine parts to be considered on a motion to set aside a judgment based on an allegation fraud:

1. The fraud alleged must be proved on a reasonable balance of probability;

2. The fraud must be material, going to the foundation of the case

3. The evidence of fraud must not have been known at the time of trial by the party seeking to rely on it;

4. The unsuccessful trial party is exposed to a test of due or reasonable diligence;

5. The tests are more stringent if the fraud is of a non-party and the successful party at trial is not connected with the fraud alleged;

6. The due diligence test is objective. The questions are what the party knew, and what the party ought to have known;

7. Delay will defeat a motion to set aside a trial judgment under rule 59.06;

8. Relief under rule 59.06 is discretionary. The conduct of the moving party is relevant; and

9. the party asserting that a judgment was procured by fraud must show that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment.

7The test is conjunctive: all requirements must be met.

Applicable Test for Fraud

8The test for civil fraud was set out by the Supreme Court of Canada in Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, [2014] 1 S.C.R. 126, at para. 21. It contains four elements:

(1) a false representation made by the defendant;

(2) some level of knowledge of the falsehood of the representation on the part of the defendant (whether through knowledge or recklessness);

(3) the false representation caused the plaintiff to act; and

(4) the plaintiff’s actions resulted in a loss.

9This test is also conjunctive.

222’s position

10In its Notice of Motion, 222 states:

1. After the judgment, the Plaintiff discovered that the Defendants had falsely claimed to have delivered excavation materials to [an] authorized landfill.

2. The invoice submitted at trial listed a delivery address that have [sic] now been confirmed by the actual homeowner of the lands to have received no such deliveries, nor was he authorized in law to accept such deliveries.

3. The defendants knew they were submitting evidence of invoices that were fraudulent and contrary to their representations to the court.

4. The fact that the invoices had a residential address materially undermines the Defendant’s claim and would likely have changed the result of the trial.

11In his affidavit, Mr. Duca states,

8. According to the evidence at trial, UM (1814219 Ontario Inc.) purchased 50 dump tickets on June 15, 2015 from GTAFILL (GTA). Each dump ticket provided UM with access to a designated dump site that GTA had chosen.

9. The dump tickets associated with the June 5, 2015 ticket no. 65 did not have a corresponding dump site location noted. There is no evidence in the trial record of the location of a dump site associated with the dump tickets for June 5, 2015.

10. Um [sic] Construction then purchased an additional 50 dump tickets on July 29, 2015. The ticket no. 134 specified a dump site location a municipal addresses: 7559 Mill Lane, 7636 8th Line Barrie, Hwy 89/10th Line Barrie.

11. 7559 Mill Lane is a residential property and not a dump site.

Evidence at trial

12The term “ticket” was used to mean two different things. Tickets 65 and 134 referred to by 222 above are actually receipts for dump tickets that UM purchased which it then gave to dump truck drivers when the trucks were loaded with soil to be transported to a dump site. Copies of these pre-paid dump tickets and invoices for them from GTA were marked as Exhibits 8 and 9 at trial.

13222’s trial counsel did not cross-examine any witness on GTA’s invoices or dump tickets. 222 did not call Peter Platis, the principal of GTA as a witness at trial.

14“Ticket no. 65” referred to by Mr. Duca is a sales receipt dated June 15, 2015 from GTA to UM for 50 tickets. It does not specify a dump location.

15“Ticket no. 134” referred to by Mr. Duca is a sales receipt dated July 20, 2015 from GTA to UM for 50 tickets. It states “7559 Mill Lane”.

16Wendy’s Trucking Inc. (Wendy’s) was one of the subtrades that removed excavated soil offsite. Its principal, Wendy Singh, filed an affidavit, marked as Exhibit 139 at trial. Wendy’s trucking tickets were separately marked as Exhibit 4 at trial. She also produced and testified to a chart showing ticket numbers, trucking dates and the dump locations among other things. The chart shows that on June 16, 2015, truck 147 and truck 007 each took 3 loads of soil to 7636 8th line (Barrie).

17In her trial affidavit, Ms. Singh confirmed that “all material removed by Wendy’s Trucking on July 30, 2015, was taken to 7559 Mill Lane/Gore Road North.

18Ms. Singh testified at trial and was cross-examined by 222’s trial counsel. She was not cross-examined on the delivery of soil to 7559 Mill Lane/Gore Rd. North nor to 7636 8th line (Barrie).

19The principal of GTA was not called as a witness at trial. GTA’s phone number, address and email are shown on its invoices.

Analysis

20The first element of the test to set aside the judgment is that the fraud alleged must be proved on a reasonable balance of probability.

21There is no evidence that any of the defendants to this motion made a false representation to 222 about dump sites. Mr. Duca asserts that 7559 Mill Lane is or was a residential address but he does not state the county or city for the address. He seems to suggest that soil could not have been dumped at 7559 Mill Lane, location unknown, and in fact it was not dumped there.

227559 Mill Lane could be a residential address somewhere; however, Mr. Villano provided 2015 Google Earth images of 7559 Mill Lane, Caledon taken on April 19, 2015, May 23, 2015, June 20, 2015, July 3, 2015, July 21, 2015 and December 11, 2015. They show mounds of dirt on the property during the period when the commercial building was under construction. This was not a residential property.

23Even if there was a false representation which caused 222 to act, 222 has not shown that it has suffered a loss. The fact that 222 produced no evidence from the “actual homeowner of the lands” is significant. There is no evidence that anyone contacted 222 complaining that a load of soil was dumped on property without permission. There is no evidence that anyone contacted Mr. Duca and insisted that he pay to have the alleged load of soil removed.

24222 has not proven fraud even on a reasonable balance of probability. 222 has not satisfied the first element of the test to set aside a judgment. Furthermore, 222 has not shown that there has been a new discovery of something material, such as fresh facts, which would provide a reason for setting aside the judgment. UM Construction provided an affidavit of documents in 2018. Wendy’s trucking tickets and GTA’s invoices and dump tickets were produced. 222 had access to these trucking tickets and invoices four years prior to the trial. It had the opportunity at trial to cross-examine on these tickets/receipts. It has now had access to these trucking tickets and invoices for eight years.

25The remaining elements of the test to set aside the judgment assume that fraud has been proven. Since it has not been proven, there is no basis for considering them.

Conclusion

26222’s motion is dismissed.

Costs

27Rule 57.01 sets out factors that the court may take into account in exercising its discretion in awarding costs under s. 131 of the Courts of Justice Act (R.S.O. 1990, c. C43). The subsection (f) factor is “whether any step in the proceeding was improper, vexatious or unnecessary”. Similar to its position at trial, 222 has alleged fraud but has failed to prove it. 222 was well aware of the test for fraud because it was set out in the judgment. This motion had no merit whatsoever.² Unfounded claims of fraud justify a costs award on a substantial or full indemnity basis. (see Lewis v. Cantertrot Investments Ltd., (2010), 2010 ONSC 5679 para 76)

28222 has again alleged fraud but has not proven it. In these exceptional circumstances, I find that an award of full indemnity costs in favour of Mr. Villano, UM and Murdocca is appropriate. The parties attended at two case conferences before RSJ Edwards to triage the matter and set a timetable for the proceedings. They attended on two dates for the motion. The first had to be adjourned because 222 had not retained counsel.

29Mr. Villano assumed the main defence of this motion. Counsel prepared a detailed responding motion record. 222 served a “reply” motion record even though this was not contemplated in RSJ Edward’s timetable and was served one day before examinations were to be completed. It contained a further affidavit of Mr. Duca as well as one from another person, Mr. Montalbano. Counsel scheduled a cross-examination of Mr. Montalbano and prepared for it; however, the witness did not attend. In his affidavit, Mr. Duca stated that a private criminal prosecution had been commenced against the defendants. Counsel investigated this. It proved to be unsubstantiated. Counsel was required to address the “reply” motion in case I were inclined to consider it. I did not because it did not comply with RSJ Edward’s timetable order. In addition, counsel communicated with Mr. Duca concerning the fact that 222 had not retained counsel to represent it, the issue that delayed hearing this motion on its first return date.

30Counsel prepared a factum and a compendium. He attended to cross-examine Mr. Montalbano. He attended court on January 21, 2026, the first return date, and on January 28, 2026, the adjournment date, and made primary submissions. Taking all of this into account, I find that $39,437 all inclusive is an appropriate amount to award Mr. Villano on a full indemnity basis. 222 shall pay this amount within 15 days.

31Regarding Murdocca, counsel attended on all of the dates set out above. He provided a helpful compendium and made submissions on a procedural issue. I find that $7,942.77 is an appropriate amount to award Murdocca on a full indemnity basis. 222 shall pay this amount within 15 days.

32Regarding UM, counsel stated that it agreed with and relied upon the positions taken by Mr. Villano and Murdocca. Counsel communicated with Mr. Duca, reviewed all of the materials filed, conferred with counsel for Mr. Villano and Murdocca regarding strategy, prepared for the cross-examination and attended it, carried out legal research and attended court on the same dates as set out above. I find that $6,843.43 all inclusive is an appropriate amount to award UM on a full indemnity basis. 222 shall pay this amount within 15 days.

33In accordance with RSJ Edward’s order dated December 5, 2025, the matter shall return to him within 7 days of the release date of this decision.

Footnotes

1. 1Rules of Civil Procedure O. Reg. 575/07, s. 6 (1)
2. 2Mr. Villano stated that the purpose of it was to delay execution of the judgment.