



COURT OF APPEAL FOR ONTARIO

CITATION: Nicoletti v. Nicoletti, 2015 ONCA
    163

DATE: 20150312

DOCKET: C59276

Lauwers, Hourigan and Pardu JJ.A.

BETWEEN

Bruna Nicoletti

Respondent/Appellant

and

Giovanna Nicoletti

Applicant/Respondent

and

Vittoria Nicoletti by
    her litigation guardian,

The Public Guardian and
    Trustee and Pietro Nicoletti

Respondents/Respondents

No one present for the appellant

Tony N. Nguyen, for Giovanna Nicoletti

Donald Kim, for the Public Guardian and Vittoria
    Nicoletti

Heard:  March 5, 2015

On appeal from the order of Justice Michael A. Penny of
    the Superior Court of Justice, dated July 31, 2014.

ENDORSEMENT

[1]

The appellant did not appear for the argument of this appeal. Her appeal
    is therefore dismissed as abandoned, with costs fixed in the amount of $15,000
    all-inclusive payable to the respondents, and $1,250 payable to the Public
    Guardian and Trustee.

[2]

The appellant sought an adjournment of the argument of this appeal by
    e-mail correspondence. Her request was refused for the reasons that follow.

[3]

This appeal was originally scheduled to be heard on February 26, 2015,
    but Ms. Nicoletti did not appear.  According to Laskin J.A.s endorsement, she
    sent an email requesting an adjournment on the basis that she had a dental
    problem which was causing her pain. Counsel for the respondents, Giovanna
    Nicoletti and the Public Guardian and Trustee, opposed the adjournment.

[4]

Justice Laskin noted that this was the third time the appellant had
    requested an adjournment.  His endorsement adjourned the matter to March 5,
    2015, peremptory to the appellant, with costs payable to the respondents. A
    copy of the endorsement was sent to the appellant.

[5]

On February 27, 2015, the appellant requested another adjournment. At
    the presidents request, the appellant provided a medical note from a dentist,
    a Dr. Guido. The dental note provided no information on the appellants current
    pain levels and when she might be able to argue the appeal. The president requested
    an explanation as to the relationship between Dr. Guido and the appellant,
    whose married name is Guido, but got no answer. (At the hearing counsel advised
    that Dr. Guido was a cousin of the appellants spouse.)

[6]

The appellants request for an adjournment was sent to counsel for the
    other parties.  They opposed the adjournment on the basis that the endorsement
    of Laskin J.A. provided that the hearing date was peremptory, and that
    there was prejudice.  Counsel for Giovanna Nicoletti stated in correspondence:

My client, Giovanna Nicoletti, who has been caring for her
    elderly mother, Vittoria Nicoletti, for the past five years is carrying
    significant costs as a result of the constant delays from the adjournment
    request by the appellant. The respondent is now close to 90 years old with
    declining health and any further delay will simply put further stress and
    financial burden on my client.  This not only puts immense stress on my client
    but it also impacts her husband and family.

We note that as a result of the appeal, my client has not been
    reimbursed $54,800 for expenses which she incurred on behalf of her mother and
    approved in her passing of accounts application.

It is the appellant who has brought this appeal, which the
    respondent submits is without merit, yet she has not acted reasonably to move
    this appeal with reasonable diligence. This is now her fourth adjournment
    request.

[7]

Based on the exchange of correspondence, on March 4, 2015, court staff
    advised the appellant that the president of the panel had denied the
    adjournment request, but invited the appellant to review her adjournment
    request before the full panel.  In the morning on March 5, 2015, the appellant
    advised court staff that she would not appear at the appeal.

[8]

The panel heard submissions from counsel for the respondents and for the
    PGT, which enlarged on the submissions in the correspondence. The record
    throughout is replete with the appellants desire to delay the final disposition
    of this matter. Penny J. observed that this litigation has dragged on quite
    unnecessarily for a long time. He noted that a last minute motion was brought
    by the appellant in an effort to delay and complicate matters and to add to
    the already significant costs in controversy in this litigation. As a result
    of the stay of the order under appeal, the respondent Giovanna Nicoletti has
    been obliged to absorb the costs of caring for her mother, Vittoria Nicoletti.

[9]

The appeal itself is nothing more than an effort to re-litigate the
    issues heard by Penny J., particularly relating to credibility findings, which
    are subject to a high standard of review of palpable and overriding error. No
    such error is evident from the written material filed by the appellant.

[10]

Based
    on the conduct of the appellant and the material considered by the court,
    including the submissions received on the adjournment, which have been placed
    in the record of the court, the court exercised its discretion to refuse the
    requested adjournment.

P.
    Lauwers J.A.

C.W.
    Hourigan J.A.

G.
    Pardu J.A.


