Fasciani v. Banca Commerciale Italiana of Canada et al., (1996) 1 O.T.C. 40 (GDM)

• Court: Ontario Court of Justice General Division (Canada)
• Case Date: April 16, 1996
• Jurisdiction: Ontario
• Citations: (1996), 1 O.T.C. 40 (GDM)

Fasciani v. Banca Commerciale (1996), 1 O.T.C. 40 (GDM)

MLB headnote and full text

Elisa Fasciani (plaintiff) v. Banca Commerciale Italiana of Canada and Tanzola, Sorbara, McClellan & Handler (defendants)

(76265/91Q)

Indexed As: Fasciani v. Banca Commerciale Italiana of Canada et al.

Ontario Court of Justice

General Division

Peppiatt, Master

April 16, 1996.

Summary:

Fasciani was the directing mind of a number of corporations. The corporations borrowed money from a bank. As security, Fasciani's wife executed a guarantee and granted a mortgage on the matrimonial home. The corporations defaulted and were insolvent. Fasciani became a bankrupt. The bank sued Fasciani's wife to enforce the guarantee and the mortgage. Fasciani's wife claimed that she did not understand what she was being told when she executed the documents. Fasciani's wife sued the bank and her solicitors to either have the mortgage and guarantee declared unenforceable, or to have the solicitors indemnify her for any loss. The bank and the solicitors applied by motion for directions in regard to (1) Fasciani's wife's refusal to answer certain questions on discovery, (2) the production of documents by nonparties including Fasciani, (3) the possibility of discovery of Fasciani and (4) for leave to add Fasciani as a third party or for an order adding Fasciani as a defendant.

A Master of the Ontario Court (General Division) (1) ordered the wife to reattend discovery to answer her undertakings as well as certain questions, (2) ordered Fasciani to produce certain documents, (3) declined to order that Fasciani be examined for discovery and (4) declined to grant leave to add Fasciani as a third party or to add him as a defendant to the action.

Bankruptcy - Topic 6786

Practice - Stay of proceedings - Proceeding for the recovery of a claim against the bankrupt - See paragraphs 7 and 8.

Practice - Topic 668

Parties - Adding or substituting parties - Adding or substituting defendants - For purposes of discovery - See paragraph 17.

Practice - Topic 673

Parties - Adding or substituting parties - Adding or substituting defendants - Circumstances when denied - See paragraph 17.

Practice - Topic 1120

Parties - Third party procedure - When available - General - See paragraph 16.

Practice - Topic 1121

Parties - Third party procedure - When available - Claim for contribution or indemnity - See paragraph 16.

Practice - Topic 4181

Discovery - Examination - General - Objections to questions - Review of - By judge - See paragraphs 6, 14 and 15.

Practice - Topic 4230

Discovery - Examination - Persons who may be examined - Nonparties - See paragraphs 7, 8 and 19 to 24.

Practice - Topic 4550

Discovery - Production and inspection of documents - General - See paragraphs 7 to 14.

Practice - Topic 4604

Discovery - Production of documents by nonparties - When ordered - See paragraphs 7 to 14.

Cases Noticed:

Dalewood Investments Ltd. et al. v. Canada Trust Co. et al. (1986), 9 C.P.C.(2d) 129 (Ont. H.C.), not folld. [para. 22].

Famous Players Development Corp. et al. v. Central Capital Corp. et al. (1991), 53 O.A.C. 185; 6 O.R.(3d) 765 (Div. Ct.), appld. [para. 23].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 30.10 [para. 9]; rule 31.10 [para. 8].

Counsel:

M. Kirwan for the defendant, moving party, Banca Commerciale Italiana of Canada;

G. Tighe, for the defendants, moving parties, Tanzola, Sorbara, McClellan & Handler;

R. Headrick, for the plaintiff, responding party, Elisa Fasciani;

G. Hiscock, for the nonparty responding party, Mantuccio Fasciani.

These motions were heard before Peppiatt, Master of the Ontario Court (General Division), who released the following decision on April 16, 1996.