



COURT OF APPEAL FOR ONTARIO

CITATION: Home Trust Company v. Fierro Estate, 2015 ONCA 106

DATE: 20150213

DOCKET: C59156

MacFarland, Hourigan and Benotto JJ.A.

BETWEEN

Home Trust Company

Plaintiff

(Respondent)

and

Estate
    of the Late Victoria Maria Fierro, Deceased

and Remo
    Fierro in his capacity as Estate Trustee of the

Estate
    of Victoria Maria Fierro

Defendants

(Appellant)

Rose & Rose and
    Stewart Title Guaranty Company

Third Party

Gregory Gryguc, for the appellant Fierro

Rachel Migicovsky, for Rose and Rose

Amanda Jackson, for responding party Home Trust

Heard and released orally:  January 29, 2015

On appeal from the judgment of Justice Anne Mullins of
    the Superior Court of Justice, dated June 30, 2014.

ENDORSEMENT

[1]

Remo Fierro appeals the order of the motion judge granting summary
    judgment on a mortgage action against the estate of Victoria Fierro, (the Estate).

[2]

Victoria Fierro mortgaged a residential property in Vaughan on July 8,
    2009. The respondent is the mortgagee. Ms. Fierro died in July 2011. The
    mortgage went into default in October 2011 and has subsequently matured.

[3]

The procedural history of this matter is as follows.

[4]

In March 2012, the respondent commenced an action for payment and
    possession under the mortgage against Mr. Fierro in his capacity as estate
    trustee of the Estate and against Anna and Frank Fierro as estate trustees.

[5]

In May 2012, the title of proceedings was amended to delete Anna and
    Frank Fierro and the action continued against the Estate and Remo Fierro, in
    his capacity as estate trustee.

[6]

In June 2013, the defendants filed what purported to be a counterclaim
    wherein they took the position that the mortgage should be set aside pursuant
    to ss. 21 and 23(3) of the
Family Law Act
, R.S.O. 1990, c. F.3 (the 
FLA
)
    because Ms. Fierro was a spouse and the mortgaged property was a
    matrimonial home. They also commenced a third party action against the law firm
    Rose & Rose and Stewart Title Guaranty Company, alleging that, Rose &
    Rose, who were the lawyers acting for both parties on the mortgage, were
    negligent
inter alia
in not making inquiries to determine Ms. Fierros
    marital status.

[7]

In July 2013, Mr. Fierro brought an application to remove himself as
    estate trustee. He also commenced an action in his own name against Rose &
    Rose alleging negligence and breach of fiduciary duty.

[8]

In September 2013, Enio Zeppieri swore an affidavit that his law firm
    represented the Estate but that Mr. Fierro and the Estate had become adverse in
    interest and his firm was no longer able to represent both parties. He further
    deposed that the children of Remo and Victoria Fierro would not consent to be
    appointed to as trustees or litigation guardians of the Estate and that the Public
    Guardian and Trustee would also not consent to being the estate trustee.

[9]

In December 2013, the respondents motion for summary judgment was
    heard.  On March 5, 2014, the motion judge released an endorsement wherein she
    found that Mr. Fierro has no claim to the mortgaged property under the
FLA
.
    The motion judge further found that ss. 21 and 23(3) of the
FLA
should
    not be applied to set aside the mortgage because Mr. Fierro had not met his
    evidentiary onus to establish that the respondent had actual or constructive
    notice that Ms. Fierro was a spouse and that the mortgaged property was a
    matrimonial home.

[10]

The
    motion judge went on to reserve her decision on the motion for summary judgment
    until the issue of the Estates representation was addressed.

[11]

On
    June 30, 2014, the motion judge granted an order that the action continue in
    the absence of a person representing the Estate and granted summary judgment
    against the Estate.

[12]

Mr.
    Fierro now appeals the order of June 30, 2014, asserting that the motion judge
    erred in not finding that ss. 21 and 23(3) of the
FLA
should be
    applied to set aside the mortgage.

[13]

The
    respondent, in its factum, submits that given that Mr. Fierro is no longer an
    estate trustee, he has no capacity to appeal. In any event, the respondent
    submits that the motion judge was correct in finding that Mr. Fierro has no
    claim to the mortgaged property and that the mortgage should not be set aside
    pursuant to the
FLA
.

[14]

We
    agree with the submission of the respondent. Mr. Fierro has no status to bring
    this appeal. He is no longer a trustee of the Estate.  He was not sued in his
    personal capacity and is therefore not a party. It is also not clear to us how
    Mr. Zeppieris firm, who were counsel for the Estate, can act for Mr.
    Fierro given his evidence that Mr. Fierro and the Estate had become adverse in
    interest.

[15]

In
    any event, there is no merit to the appeal. The motion judge correctly found
    that Mr. Fierro had not met his onus of establishing that the respondent had
    actual or constructive notice that Ms. Fierro was a spouse and the mortgaged
    property was a matrimonial home.

[16]

The
    appeal is dismissed.

[17]

Costs
    to the respondent Home Trust fixed in the sum of $7,500 and to the third
    parties in the sum of $2,500. Both figures are inclusive of disbursements and
    HST.

J. MacFarland J.A.

C.W. Hourigan J.A.

M.L. Benotto J.A.


