



COURT OF APPEAL FOR ONTARIO

CITATION: Lagani v. Lagani
    Estate, 2013 ONCA 159

DATE: 20130315

DOCKET: C55560

Sharpe, Epstein and Pepall JJ.A.

In the Estate of Maria Lagani, deceased

Antonio Lagani

Applicant (
Appellant
)

and

Nicola Lagani and
    Immacolata Montesano in their capacity as named Estate Trustees for the Estate
    of Maria Lagani, deceased and in their personal capacity
, Franco Lagani
    and Rosa Amatiello

Respondents
    (Respondents in Appeal)

Paul Trudelle, for the appellant

Romeo DAmbrosio, for the respondents Nicola Lagani and
    Immacolata Montesano

Heard and released orally: March 13, 2013

On appeal from the judgment of Justice John P. L.
    McDermot of the Superior Court of Justice, dated May 4, 2012, with reasons
    reported at 2012 ONSC 2614.

ENDORSEMENT

[1]

The appellant raises several grounds of appeal from a summary judgment
    granted in this estates matter.

1. The availability of summary judgment

[2]

We do not agree that the motion judge erred as to the availability of
    summary judgment. The motion judge was aware that there were some contested
    factual issues and he relied on the parties agreement that the matter should
    proceed by way of summary judgment.

[3]

The appellant says that he only agreed to summary judgment if the matter
    could be resolved on points of law and that the trial judge erred in proceeding
    on the basis of the parties agreement as though it contemplated that the
    motion judge could assess credibility and make findings of fact.

[4]

In our view, the appellants position before the motion judge was
    ambiguous and we can readily understand why the motion judge thought there was
    an agreement that he should deal with the case under Rule 20.

[5]

However, and in any event, we are satisfied that on this record it was
    open to the motion judge under Rule 20 to make any factual findings that were
    required to reject the appellants legal arguments attacking the agreement at
    issue and to decide the case in favour of the respondents. To the extent his
    judgment does rest on findings of credibility, we note that on many points the
    evidence of the appellant was highly problematic. This is demonstrated by
    counsels withdrawal at the hearing of the appellants sworn evidence that he
    did not have the whole agreement before him when he signed it in the face of
    forensic evidence establishing that he did.

[6]

In these circumstances, the motion judge did not err in granting summary
    judgment.

2. Independent legal advice

[7]

We do not agree that the provision in the agreement as to independent
    legal advice should be interpreted as a condition entitling the appellant to
    back away from the agreement after he signed it. That provision was there to
    alert the appellant of the opportunity to obtain independent legal advice. He chose
    not to rely on it. The appellant is a sophisticated businessman, not a
    vulnerable party, and the motion judge did not err in ruling that the appellant
    cannot rely on this provision given that he proceeded  to execute the agreement
    without obtaining legal advice despite the opportunity to do so.

3. Misrepresentation

[8]

There is no evidence that any party to this agreement misrepresented to
    the appellant the contents of the relevant will before he signed the agreement.
    There is also evidence that all the siblings, including the appellant, were
    fully aware of the testators wishes with respect to the house. The recitals in
    the agreement and the effect of the agreement are consistent with and
    facilitate those wishes. In our view, the motion judge did not err in rejecting
    this argument.

4. Corroboration

[9]

While the motion judge did refer to s. 13 of the
Evidence Act
,
    R.S.O. 1990, c. E.23, and state that the appellants evidence was not corroborated,
    his findings do not rest on this point and are fully supportable quite apart
    from any lack of corroboration.

5. Statute of Frauds

[10]

Although
    not raised in oral argument, we are of the view that the
Statute of Frauds
,
    R.S.O. 1990, c. S.19, does not apply to assist the appellant.

Disposition

[11]

For
    these reasons, the appeal is dismissed.

[12]

The
    respondents are entitled to their costs of the appeal fixed at $7,500 inclusive
    of disbursements and applicable taxes. That award is to be set off against any
    entitlement the appellant may have to the residue of the estate and, as well, is
    payable by the appellant personally.

Robert J. Sharpe J.A.

G.J.
    Epstein J.A.

S.E. Pepall J.A.


