



COURT OF APPEAL FOR ONTARIO

CITATION:  Piccolo v. Mariotti, 2013 ONCA 710

DATE: 20131122

DOCKET: C56578

Cronk, Pepall and Strathy JJ.A.

BETWEEN

Sam Piccolo and Susan Piccolo

Plaintiffs (Appellants)

and

Anthony Mariotti
and Anthony Piccolo

Defendants (
Respondent
)

Sam Piccolo and Susan Piccolo, acting in person

Alex Szalkai, Q.C., for the respondent

Heard: November 15, 2013

On appeal from the order of Justice Thomas J. Carey of
    the Superior Court of Justice, dated December 27, 2012.

ENDORSEMENT

[1]

The appellants appeal from an order made on a motion for summary
    judgment, dismissing their action against the respondent Anthony Mariotti, Sam
    Piccolos former lawyer.

[2]

In 1967, Sam Piccolo and his brother hired the respondent to incorporate
    their business. A dispute about their ownership interests resulted in an
    oppression application being brought in 1985 by Sam Piccolo, who claimed that
    he had a two-thirds interest in the business. In the context of that dispute,
    the respondent swore an affidavit, stating that he had no recollection of the brothers
    partnership being anything other than equal. He attached certain unexecuted
    documents relating to the parties ownership interests. On a reference to a master
    in 1986, it was determined that Sam Piccolo had only a fifty percent interest
    in the business.

[3]

In 1992, Sam Piccolo commenced an action against the respondent,
    claiming, among other things, that he had failed to execute documents that
    purportedly gave Sam Piccolo a two-thirds interest in the corporation. That
    action was dismissed in 1996 as time-barred. In October 1997, this court
    dismissed Sam Piccolos appeal.

[4]

In this action, commenced in 2011, Sam Piccolo again alleges negligence,
    as well as perjury and obstruction of justice, by the respondent in connection
    with his evidence in the oppression proceedings.

[5]

The motion judge held that there was no basis for Susan Piccolos claim
    because there was no evidence that she ever had a solicitor-client relationship
    with the respondent. There was no pleading that she had any standing to assert
    any such claim. We agree with the motion judges conclusion.

[6]

The motion judge found that Sam Piccolos claim for negligence was an
    attempt to re-litigate the claim in the earlier litigation and dismissed it as
    an abuse of process. Again, we agree.

[7]

In answer to the assertion that the claims for perjury and obstruction
    of justice were time-barred, the appellants wife swore that in the course of
    recent home renovations they had found shocking new evidence  a document,
    allegedly executed by the respondent, confirming Sam Piccolos majority
    interest in the company. She claimed that in 2009 they had come across a box
    containing this document in the course of clearing out some cupboards that had
    been used for storage for forty years.

[8]

The motion judge found that even if this document was valid, it did not
    support the claims for obstruction of justice and perjury. In any event, the
    document had been in the appellants possession for 40 years, it was clearly
    discoverable, and the claims were barred by the
Limitations Act, 2002
,
    S.O. 2002, c. 24, Sched. B. He also found that the claims were frivolous,
    vexatious and lacking in merit.

[9]

The claim against the respondent for negligence was
res judicata
.
    Even assuming that conclusion could be set aside on the basis of fresh evidence
    or perjury, the alleged fresh evidence was clearly within the control of the
    appellant and was discoverable at the time the original claim was made.

[10]

The
    discoverability principle equally applies to the claims for perjury and
    obstruction of justice. As well, as the motion judge noted, the document allegedly
    discovered by the appellants did not support the claim that the respondent
    committed perjury.  We agree with the motion judges conclusions that the
    claims were both time-barred and frivolous and vexatious.

[11]

We
    would add that the motion judge proceeded on the assumption that the newly
    discovered document was genuine. However, in his costs order he observed that
    the document appeared to be an amateurish patch up from another document and a
    forgery.

[12]

Before
    this court, the appellant argues that the motion judge exhibited bias. There is
    no support whatsoever for this allegation on the record before us.

[13]

The
    motion judge granted the respondent costs on a full indemnity basis, fixed at
    $13,175. He found that the allegations of dishonest conduct were not substantiated
    and were, at best, brought without consideration for the damaging consequences
    to the respondents reputation and, at worst, out of spite and malice. The
    appellant appeals the costs award, asserting that it is based on erroneous
    findings and that the time spent was excessive.

[14]

We
    disagree. The motion judges finding of reprehensible conduct was supported by
    the record and justified the costs awarded:
Davies v. Clarington
    (Municipality)
, 2009 ONCA 722, 100 O.R. (3d) 66. Those costs were very
    modest and reasonable, in our view. The award of costs is discretionary and
    this court cannot intervene unless the motion judge erred in principle or the
    costs order is plainly wrong:
Hamilton v. Open Window Bakery
, 2004 SCC
    9, [2004] 1 S.C.R. 303, at para. 27. Neither circumstance applies here.

[15]

The
    respondent claims costs of $7,500 for this proceeding on a substantial
    indemnity basis. For the reasons given by the motion judge, substantial
    indemnity costs are appropriate. The amount claimed is reasonable.

[16]

We
    therefore dismiss the appeal, with costs to the respondent fixed at $7,500,
    all-inclusive.

E.A. Cronk J.A.

S.E. Pepall J.A.

G.R. Strathy J.A.


