



COURT OF APPEAL FOR ONTARIO

CITATION: Buccilli v. Pillitteri, 2014 ONCA 432

DATE: 20140529

DOCKET: C56408

Laskin, Rouleau and Lauwers JJ.A.

BETWEEN

Patricia Buccilli and
    Drapery Interiors Etc. Inc.

Plaintiffs (Respondents)

and

Pasquale Pillitteri, also known as Pat
    Pilliterri, Christina Pillitteri, Patron Contracting Limited, also known as CDC
    Contracting, Birchland Homes Inc. and Vendrain Inc.

Defendants (Appellants)

AND BETWEEN

Pasquale Pillitteri, also known as Pat
    Pilliterri, Christina Pillitteri, Patron Contracting Limited, also known as CDC
    Contracting, Birchland Homes Inc. and Vendrain Inc.

Plaintiffs by Counterclaim (Appellants)

and

Patricia Buccilli,
    Drapery Interiors Etc. Inc. Antonio (Tony) Decicco and Westplex Centre Inc.

Defendants to Counterclaim (Respondents)

Gavin Tighe and Anna Husa, for the appellants

Terrence OSullivan and Daniel Naymark, for Ron Ventura

M.R. Kestenberg and T. Slahta, for the respondents

Heard: May 2, 2014

On appeal from the judgment of Justice Frank J.C.
    Newbould of the Superior Court of Justice, dated November 23, 2012.

ENDORSEMENT

[1]

Patricia Bucillis late husband, Enzo Ventura, her brother-in-law Pat
    Pillitteri, and Ron Ventura ran a family business.  They were equal
    shareholders in a construction company, CDC Contracting, and also owned several
    real estate investments.

[2]

After her husband died, Patricia, as his sole heir, inherited his
    one-third interest in the family business.  In June 2001 she transferred her
    interest to her sister-in-law Christina Pillitteri in trust by a written
    Transfer Agreement.  Later Christina transferred Patricias one-third interest
    to her husband Pat and Ron in equal shares.

[3]

Patricia sued to set aside the Transfer Agreement and ancillary relief
    necessary to reinstate her to the legal and financial position she would now
    occupy had the transfer not been effected.  On the consent of the parties the
    issues of liability and damages were bifurcated.

[4]

The central issue at the liability trial was the validity of the
    Transfer Agreement.  The trial judge ordered that the Transfer Agreement be set
    aside on four grounds:

·

undue influence

·

breach of fiduciary duty

·

misrepresentation

·

unconscionability

[5]

The Pillitteris appeal. They advance two main grounds of appeal: (1) the
    trial judge exceeded his jurisdiction by granting remedies not authorized by
    the bifurcation order; and (2) the trial judges key findings of fact are
    tainted by palpable and overriding error.  On either ground the Pillitteris
    submit that the judgment must be set aside.

[6]

Ron Ventura was granted intervener status as a party on the appeal.  He
    is not a party to the litigation and did not testify at trial.  He submits that
    though he was neither a party to the proceedings nor given notice of it, the
    trial judges judgment affects his status as a shareholder in the family
    business.  He too asks that the judgment be set aside.

(1)

Did the trial judge
    exceed his jurisdiction?

[7]

Pepall J. issued a consent order that liability and damages be
    bifurcated.  In her order she specified the claims in the statement of claim
    that were to be determined at the liability stage of the proceedings.

[8]

The Pillitteris contend that the trial judges judgment went beyond Pepall
    J.s bifurcation order.  A comparison of the judgment, the statement of claim
    and the bifurcation order shows otherwise.  Paragraph 2 of the judgment  the
    paragraph challenged on appeal  orders declaratory relief in the terms of
    paragraph 1(i) of the statement of claim.  The bifurcation order leaves the
    claim in paragraph 1(i) of the statement of claim to be resolved at the
    liability phase of the trial.

[9]

Accordingly, we do not give effect to this ground of appeal.

(2)

Did the trial judge
    commit palpable and overriding errors?

[10]

The
    trial judge gave thorough reasons for his decision.  He made numerous findings
    of fact and credibility.  In his extensive section on the credibility and
    reliability of the witnesses, the trial judge found that much of the evidence
    of Christina and Pat Pillitteri was neither credible nor reliable.  He
    preferred and accepted most of the evidence of Patricia Buccilli.

[11]

The
    Pillitteris, however, argue that some of the trial judges key findings of fact
    are irretrievably tainted by palpable and overriding error.  They give two
    examples: the trial judges findings on the evidence of the lawyer John
    Cirillo; and the trial judges findings concerning a letter from Les Witlin a
    solicitor, written nearly six years after the Transfer Agreement was signed.

[12]

We
    do not accept this argument.  On our review of the record the trial judges
    findings of fact concerning Mr. Cirillo are well supported by the evidence.

[13]

Witlins
    letter, which stated that Patricia had signed over all of her interest to the
    Pillitteris, was not tendered for the truth of its contents.  Moreover, neither
    Patricia nor Witlin was cross-examined on it.  The trial judge was therefore
    correct not to give the letter any weight.

[14]

Accordingly,
    we do not give effect to this ground of appeal.

[15]

We
    add that to us the trial judges order setting aside the Transfer Agreement is
    unassailable for the reasons set out at paragraph 18 of Mr. Kestenbergs
    factum:

·

Patricia Buccilli had neither received nor reviewed CDCs
    financial statements,

·

Patricia Buccilli had neither received nor reviewed Birchlands
    financial statements,

·

Patricia Buccilli had neither received nor reviewed the financial
    statements of Westplex Centre Inc. Joint Venture,

·

There was no discussion among Patricia Buccilli, Pat Pillitteri
    and Christina Pillitteri about the value of the shares of CDC or Birchland,

·

There was no discussion among Patricia Buccilli, Pat Pillitteri
    and Christina Pillitteri about the value of the real estate joint ventures that
    recorded Vendrain as a participant,

·

Patricia Buccilli had not consulted a lawyer prior to the alleged
    agreement in August 2000, and

·

Patricia Buccilli had not received independent business advice
    from anyone prior to the alleged August 2000 agreement

(3)

The position of Ron
    Ventura

[16]

The
    transfer of one-half of Patricias one-third interest to Ron Ventura took place
    after Patricia had begun this litigation.  She did not sue Ron Ventura and made
    no claim against him.  We agree with Mr. Kestenberg that the judgment under
    appeal does not affect Rons interest.  At the damages phase Ron can take the
    position that he was a
bona fide
purchaser for value and that whatever
    remedies are ordered, they cannot affect his 50 per cent interest in the
    business.

[17]

For
    these brief reasons the appeal is dismissed.  The parties may make written
    submissions on the costs of the appeal within 20 days of the release of these
    reasons.

John Laskin J.A.

Paul Rouleau J.A.

P. Lauwers J.A.


