



COURT OF APPEAL FOR ONTARIO

CITATION: The Guarantee Company of North America v. Ciro
    Excavating & Grading Ltd., 2016 ONCA 125

DATE: 20160212

DOCKET: C60882

Hoy A.C.J.O., Pardu and Roberts JJ.A.

BETWEEN

The Guarantee Company of North America

Plaintiff (Respondent)

and

Ciro Excavating & Grading Ltd., V.B. Trucking
    and Contracting Inc., Soil Logistics Environmental Inc.,
Stella
    Barillari
and The Estate of Ciro Barillari

Defendants (
Appellant
)

Daniel Chitiz and Alastair McNish, for the appellant

Richard Yehia, for the respondent

Heard: February 4, 2016

On appeal from the order of Justice Kenneth G. Hood of
    the Superior Court of Justice, dated July 10, 2015.

ENDORSEMENT

[1]

The appellant, Stella Barillari, appeals the motion judges order
    granting summary judgment to the respondent in the amount of $1,170,312.47 payable
    under an indemnity agreement and dismissing the appellants cross-motion for
    summary judgement dismissing the respondents action against her. Her appeal is
    founded largely on the refusal of Cosimo Leopizzi, who swore an affidavit
    attesting to the appellants execution of the indemnity agreement, to answer numerous
    questions when cross-examined. Mr. Leopizzi asserted that the questions
    exceeded the permissible limits of that examination.

[2]

For the reasons that follow, we dismiss her appeal.

A.

The motion judges decision

[3]

The motion judge noted that the parties agreed that the motion judge was
    entitled, on the evidence filed, to grant summary judgment, that he did not
    need to use any of the fact-finding tools available under r. 20 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, and that the evidence at trial
    would be no different or better than what was before him.

[4]

The motion judge concluded that the appellant had signed the indemnity agreement.
    While the appellant had asked him to draw an adverse inference about Mr.
    Leopizzis credibility from Mr. Leopizzis refusal to answer certain questions,
    the motion judge declined to do so. He stated that if the refusals were so
    important, the appellant should have brought a refusals motion, but that she
    did not do so. He also stated that she had not brought any evidence to support
    her claim that Mr. Leopizzi was a crook and generally untrustworthy, or that
    he had doctored documents and forged her signature. The motion judge drew an
    adverse inference from the appellants failure to provide evidence  such as
    from a handwriting expert  to support her forgery allegation. He also found
    that the appellant had signed documents that her late husband asked her to sign
    without knowing what they were, and that she had done the same with Mr.
    Leopizzi.

[5]

The motion judge concluded that the appellant could not rely on the
    defence of
non est factum
, which is available to someone who, as a
    result of misrepresentation, has signed a document mistaken as to its nature
    and who has not been careless in doing so. He found that she had not shown that
    Mr. Leopizzi had misrepresented the indemnity agreement, nor had she ever taken
    steps to inform herself about what she was signing. He concluded that she was
    careless to the point of indifference and could not avoid being bound by the
    indemnity agreement.

[6]

He therefore granted the respondent summary judgment in the amount of
    $1,170,312.47 payable under the indemnity agreement (the appellant did not
    dispute that the respondent had paid this amount) and dismissed the appellants
    cross-motion for summary judgment.

B.

Arguments on appeal

[7]

The appellant submits that the motion judge erred:

1.

in finding that the appellant did not attempt to bring a refusals motion;

2.

in refusing to draw an adverse inference as to Mr. Leopizzis credibility
    as a result of these refusals;

3.

in failing to direct a hearing with oral evidence if he were not
    prepared to draw an adverse inference as to Mr. Leopizzis credibility from the
    refusals; and

4.

in concluding that the appellants defence of
non est factum
could not succeed.

C.

Analysis

(1)

The refusals motion that was not brought

[8]

These motions for summary judgment were scheduled in April 2015. The
    examination of Mr. Leopizzi took place on June 2, 2015. The appellant appeared
    before a motion scheduling judge on June 9, 2015 to ask for an adjournment of
    the summary judgment motions so that she could bring a refusals motion. The
    scheduling judge refused the adjournment, indicating that an urgent refusals
    motion could be brought if the appellant considered it important. In the course
    of a motion-management attendance, counsel for the appellant reserved the right
    to call oral evidence on the motions, but made no attempt to do so on the
    hearing of the motions. Nor did the appellant renew her request for an
    adjournment at the hearing of the motions.

[9]

The motions were heard on June 19, 2015. Before this court, the
    appellant alleges that her ability to pursue a refusals motion was stymied by
    the respondent, who said it was not available to attend on such a motion. The
    respondent has a different view of the facts. It submits that while it was
    unavailable for an urgent motion on the Monday before the summary judgment
    motions, it offered to attend on either the Tuesday or the Wednesday, and that
    the appellant abandoned pursuit of such a motion.

[10]

We
    are not persuaded that the motion judges statement that, if the refusals were
    so important, the appellant should have brought a refusals motion, but did not
    do so, amounts to a palpable and overriding error. There was no evidence before
    the motion judge as to these competing versions of the non-pursuit of the
    refusals motion and no fresh evidence before this court. And, in any event, in
    the circumstances the refusals were of no consequence. Even if a few of the numerous
    questions refused should have been answered by Mr. Leopizzi, there was no
    evidence to support the appellants allegation that she did not sign the indemnity
    agreement.

[11]

The
    appellants evidence changed on the issue of whether her signature to the
    indemnity agreement was forged. At first she said it was possible Mr. Leopizzi
    forged her signature. Then she said she signed whatever he put in front of her.
    Next, she said she could not say she did not sign the indemnity agreement, she
    just could not remember. And, finally, she said that Mr. Leopizzi had no reason
    to forge her signature because she always signed what he presented to her. Notably,
    the appellant refused to submit samples of her signature so that a forensic
    comparison could be made with the disputed indemnity agreement. In the face of
    this evidence, and in the absence of any evidence of forgery, the motion judge
    did not err in concluding that the appellant had signed the indemnity
    agreement.

(2)

Failure to draw an adverse inference from refusals

[12]

The
    motion judge analyzed Mr. Leopizzis refusals and noted that there were no
    refusals when he was asked specific questions about [the appellant] signing the
    [indemnity] agreement and his presence as a witness. The motion judge did not
    find that the refusals were material. In light of all of the evidence before
    him, this was not an unreasonable conclusion.

(3)

Failure to order oral evidence

[13]

The
    appellants position that oral evidence was required if the motion judge did
    not draw an adverse inference as to Mr. Leopizzis credibility from his refusals,
    but was not required if the motion judge drew the inference sought by the
    appellant is untenable. A party to a motion for summary judgment cannot say
    oral evidence is not necessary if it is successful, but is required if the
    judge is leaning against it. Here, there is no indication that the appellant
    stated unequivocally that oral evidence was required on the hearing of the
    motion. She made no efforts to have Mr. Leopizzi present on the motion.

(4)

Non est factum

[14]

The
    motion judge accurately set out the test for
non est factum
from
Marvco
    Color Research Ltd. v. Harris
, [1982], 2 S.C.R. 774, and
Bulut v.
    Carter
, 2014 ONCA 424: the defence of
non est factum
is
    available to someone who, as a result of misrepresentation, has signed a
    document mistaken as to its nature and character and who has not been careless
    in doing so. There was no evidence of any misrepresentation. As the motion
    judge observed:

Stellas own evidence established that she never read any
    documents presented to her; she never asked for a translation of any document;
    she took no steps to inform herself of what she was signing; she did not ask
    questions about the document; she never asked to speak to a lawyer or friend
    about the document; and she never took time to think about what she was
    signing.

[15]

The
    absence of a misrepresentation and the appellants carelessness are fatal to
    her
non est factum
defence.

D.

Disposition

[16]

This
    appeal is dismissed. The respondent shall be entitled to its costs of the
    appeal, fixed in the amount of $16,000, inclusive of HST and disbursements.

Alexandra
    Hoy A.C.J.O.

G.
    Pardu J.A.

L.B.
    Roberts J.A.


