Buccilli et al. v. Pillitteri et al., (2014) 318 O.A.C. 365 (CA)

• Judge: Rouleau, J.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 25, 2014
• Jurisdiction: Ontario
• Citations: (2014), 318 O.A.C. 365 (CA);2014 ONCA 337

Buccilli v. Pillitteri (2014), 318 O.A.C. 365 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. MY.011

Patricia Buccilli and Drapery Interiors Etc. Inc. (plaintiffs/respondents) v. Pasquale Pillitteri also known as Pat Pilliteri, Christina Pilliteri, Patron Contracting Limited also known as CDC Contracting, Birchland Homes Inc. and Vendrain Inc. (defendants/appellants)

(M43697; C56408; 2014 ONCA 337)

Indexed As: Buccilli et al. v. Pillitteri et al.

Ontario Court of Appeal

Rouleau, J.A.

April 29, 2014.

Summary:

Three brothers (Enzo, Ron and Pat Pillitteri) were each one-third shareholders in two companies (CDC Contracting and Birchland Homes Inc.). Enzo died and his wife inherited his estate and thus became a one-third shareholder in the companies. Patricia entered into a transfer agreement with Pat's wife (Christina) transferring to her, in trust, Enzo's one third interest in the companies, as well as his interest and ownership rights in various real estate holdings. That one-third interest was subsequently transferred, half to Ron and half to Pat. Ron's interest in CDC was transferred to a company owned and controlled by him. Patricia sued Christina, Pat, CDC and Birchland, seeking to have the transfer agreement set aside. In accordance with a bifurcation order, a trial on liability proceeded first, to be followed if necessary by a trial on damages.

The Ontario Superior Court, in a decision reported at [2012] O.T.C. Uned. 6624, allowed the action and set aside the transfer agreement. The defendants appealed and obtained a stay of the judgment pending the appeal. Ron moved for leave to intervene in the appeal. Patricia cross-moved for judgment based on an alleged settlement of the proposed motion for leave to intervene.

The Ontario Court of Appeal, per Rouleau, J.A., granted the motion for leave to intervene and dismissed the cross-motion.

Practice - Topic 680.2

Parties - Adding or substituting parties - Intervenors - Delay or prejudice - Three brothers (Enzo, Ron and Pat Pillitteri) were each one-third shareholders in two companies (the companies) - Enzo's wife inherited Enzo's estate and thus became a one-third shareholder in the companies - Patricia entered into a transfer agreement with Pat's wife (Christina) transferring to her, in trust, Enzo's one third interest in the companies - That interest was subsequently transferred, half to Pat and half to Ron - Ron transferred his interest in one of the two companies to a company owned and controlled by him - Patricia obtained judgment against Christina, Pat and the companies (the defendants), setting aside the transfer agreement - The defendants appealed - Ron and his company (collectively Ron) moved for leave to intervene - Patricia opposed the motion, asserting that Ron had waited too long to bring the motion - The Ontario Court of Appeal, per Rouleau, J.A., stated that it was troubled by the lateness of the motion - Patricia should not have had to argue the motion one week before the scheduled hearing of the appeal and be left with only a few days to consider Ron's factum and be in a position to respond in court - However, Ron's position on the appeal would not take her totally by surprise as it overlapped considerably with the defendants' position - The appeals might well proceed as scheduled - Little prejudice would accrue to Patricia if she requested a short adjournment - In the circumstances, the delay did not warrant dismissal of the motion - See paragraphs 32 to 34.

Practice - Topic 682

Parties - Adding or substituting parties - Intervenors - Interest in subject matter - Three brothers (Enzo, Ron and Pat Pillitteri) were each one-third shareholders in two companies (the companies) - Enzo's wife inherited Enzo's estate and thus became a one-third shareholder in the companies - Patricia entered into a transfer agreement with Pat's wife (Christina) transferring to her, in trust, Enzo's one third interest in the companies - That interest was subsequently transferred, half to Ron and half to Pat - Ron transferred his interest in one of the two companies to a company owned and controlled by him - Patricia obtained judgment against Christina, Pat and the companies (the defendants), setting aside the transfer agreement - The defendants appealed - Ron and his company (collectively Ron) moved for leave to intervene under rule 13.01(1) - Patricia opposed the motion, asserting that Ron's rights and interests were not "automatically" affected by the impugned liability judgment for two reasons - First, Ron would have the opportunity to defend his interest when the trial on damages occurred - Second, she had agreed to advise the court at the hearing of the appeal and the trial judge at any future trial on damages, that insofar as the judgment on liability could be interpreted as affecting Ron's interests, she supported its "scaling back" to obviate any impact on Ron - The Ontario Court of Appeal, per Rouleau, J.A., in granting leave to intervene, held that Ron had met the requirements of rule 13.01(1) - Rule 13.01(1) only required that a person "may be adversely affected" or that "there exists between the [proposed intervenor] and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding." - The defendants had clearly raised the issue of the judgment's impact on Ron and had not agreed to support Patricia's position on the issue - It was not for the court to speculate on the outcome of the appeal and Patricia could not ensure any specific outcome at the appeal or in the damages trial - See paragraphs 29 to 31.

Practice - Topic 685

Parties - Adding or substituting parties - Intervenors - On appeal - [See Practice - Topic 680.2 and Practice - Topic 682 ].

Practice - Topic 686

Parties - Adding or substituting parties - Intervenors - Where applicant may be adversely affected - [See Practice - Topic 682 ].

Practice - Topic 7029.3

Party and party costs - Entitlement to - Successful party - Exceptions - Delay or prolonging proceeding - Three brothers (Enzo, Ron and Pat Pillitteri) were each one-third shareholders in two companies (the companies) - Enzo's wife inherited Enzo's estate and thus became a one-third shareholder in the companies - Patricia entered into a transfer agreement with Pat's wife (Christina) transferring to her, in trust, Enzo's one third interest in the companies - That interest was subsequently transferred, half to Ron and half to Pat - Ron transferred his interest in one of the two companies to a company owned and controlled by him - Patricia obtained judgment against Christina, Pat, and the companies (the defendants), setting aside the transfer agreement - The defendants appealed - Ron and his company (collectively Ron) moved for leave to intervene - Patricia cross-moved under rule 49.09 for judgment based on an alleged settlement of the proposed motion to intervene - The Ontario Court of Appeal, per Rouleau, J.A., granted Ron's motion and dismissed the cross-motion - The court declined to award Ron costs as he had delayed in bringing the motion and, although the court had ruled that there was no binding rule 49 settlement, Patricia had not acted unreasonably in maintaining that she had resolved matters with Ron - See paragraph 36.

Practice - Topic 9852

Settlements - What constitutes a settlement - Three brothers (Enzo, Ron and Pat Pillitteri) were each one-third shareholders in two companies (the companies) - Enzo's wife inherited Enzo's estate and thus became a one-third shareholder in the companies - Patricia entered into a transfer agreement with Pat's wife (Christina) transferring to her, in trust, Enzo's one third interest in the companies - That interest was subsequently transferred, half to Ron and half to Pat - Ron transferred his interest in one of the two companies to a company owned and controlled by him - Patricia obtained judgment against Christina, Pat, and the companies (the defendants), setting aside the transfer agreement - The defendants appealed - Ron and his company (collectively Ron) moved for leave to intervene - Patricia cross-moved under rule 49.09 for judgment based on an alleged settlement of the proposed motion - Patricia relied on an exchange of letters in which Ron allegedly agreed not to intervene on the condition that, to the extent that the impugned judgment was interpreted as transferring his shares, it would be "scaled back" on consent so that it did not have that effect - The Ontario Court of Appeal, per Rouleau, J.A., held that a valid rule 49 settlement did not exist as Ron was not a party to the litigation - Further, when the exchange of letters occurred there was no pending motion - Even if a valid rule 49 settlement existed, the court would not have enforced it - It was unclear that Patricia could, by herself, ensure that the result that she and Ron agreed upon could be obtained without the defendants' consent or the court's agreement - There was also confusion as to what "scaling back" meant - See paragraphs 21 to 28.

Practice - Topic 9854

Settlements - Enforceability - General - [See Practice - Topic 9852 ].

Practice - Topic 9856

Settlements - Judgments based on - [See Practice - Topic 9852 ].

Cases Noticed:

Scanlon v. Standish (2002), 155 O.A.C. 96; 57 O.R.(3d) 767 (C.A.), refd to. [para. 24].

Lana International Ltd. et al. v. Menasco Aerospace Ltd. et al. (2000), 136 O.A.C. 71; 50 O.R.(3d) 97 (C.A.), refd to. [para. 24].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 49.02 [para. 23].

Counsel:

Anna Husa, for the appellants;

M.R. Kestenberg, for the respondents and moving parties on cross-motion to enforce a settlement;

Terrence O'Sullivan, for the proposed intervenors, Retano (Ron) Ventura and 1796248 Ontario Inc.

This motion and cross-motion were heard in Chambers, on April 25, 2014, by Rouleau, J.A., of the Ontario Court of Appeal, who delivered the following judgment on April 29, 2014.