



COURT OF APPEAL FOR ONTARIO

CITATION: DeLuca v. Grillone, 2021 ONCA 798

DATE: 20211109

DOCKET: C69054

MacPherson, Simmons and Nordheimer JJ.A.

BETWEEN

Marco
    DeLuca and Rhondaroo Holdings Ltd.

Plaintiffs
    (Respondents)

and

Sergio Grillone
,
2390215 Ontario
    Inc.
,

1894931 Ontario
    Limited, Ravdeep Chera,

Chera Law Office,
    Kurt Love, Avison

Young
    (Canada) Inc. and John Doe Corporation

Defendants
    (
Appellants
)

AND BETWEEN

Sergio Grillone
,
2390215 Ontario
    Inc.
,

1894931
    Ontario Limited

Plaintiffs
    by Counterclaim (
Appellants
)

and

Marco DeLuca
, Omega Process Servers Inc.,

Rhondaroo Holdings Ltd.
, Emilio Bisceglia,

Bisceglia &
    Associates Professional Corporation,

John Cirillo and John
    Cirillo Professional Corporation,

Canadian
    Imperial Bank of Commerce and Daniel Dignard

Defendants
    by Counterclaim (
Respondents
)

Sergio Grillone, in person and for the appellant 2390215
    Ontario Inc.

R. Leigh Youd and Adam J. Wygodny, for the respondents
    Marco DeLuca and Rhondaroo Holdings Ltd.

Randy Schliemann, for The Bank of Nova Scotia

Heard: November 5, 2021 by video conference

On appeal from the order of Justice Markus Koehnen of the Superior
    Court of Justice, dated August 12, 2020.

REASONS FOR DECISION

[1]

The appellants appeal from the
    decision of a motion judge enforcing the terms of the settlement. At the
    conclusion of the appeal hearing, we dismissed the appeal for reasons to
    follow. These are our reasons.

[2]

The main issue on appeal is
    whether the motion judge erred in holding that an e-mail from counsel for the
    respondents confirmed that the parties had settled the proceeding on terms that
    would allow the motion judge to direct certain share purchase monies to be paid
    into court.

[3]

The e-mail read in part as
    follows:

Your Honour in connection with tomorrow's attendance before you
     the purchasing and selling parties have agreed to the price to be paid for
    the shares of 239 in 189. The parties will agree to an order that:

1. Subject to any contrary direction by His Honour the
    agreed price  shall be paid by Rhonderoo to 239 within 10 business days of
    Friday, July 17.

[4]

The appellants submit here, as
    they did in the court below, that the words "[s]ubject to any contrary
    direction by His Honour" meant there would be no settlement if the court
    determined the monies should not be paid directly to 239.

[5]

We do not accept that submission.
    It is clear from the record that Mr. Grillone, for the appellants,
    authorized counsel for the respondents to forward the above-noted e-mail. The
    motion judge held that the words [s]ubject to any contrary direction by His Honour
    meant it was open to him, as the motion judge, to direct, as he did, that the
    purchase monies be paid into court for the benefit of Mr. Grillone's creditors.

[6]

In our view, the interpretation
    the motion judge placed on the e-mail was open to him based on the record
    before him. We see no basis on which to intervene.

[7]

The appellants sought to introduce
    fresh evidence on appeal. Their application is dismissed. The first piece of
    evidence related to something that occurred after the settlement was made and
    was irrelevant to the question whether there was a settlement. The second piece
    of evidence related to a matter that was fully dealt with by the terms of the
    settlement. The proposed evidence does not meet the test for introduction of
    fresh evidence.

[8]

The appeal is therefore dismissed.
    Costs of the appeal and the motion for an extension are to the respondents on a
    partial indemnity scale fixed in the amount of $10,500 inclusive of
    disbursements and applicable taxes. No order as to costs of the Bank of Nova
    Scotia.

J.C. MacPherson J.A.

Janet Simmons J.A.

I.V.B. Nordheimer
    J.A.


