



COURT OF APPEAL FOR ONTARIO

CITATION: Hordo v.
    Bacchiocchi, 2014 ONCA 584

DATE: 20140814

DOCKET: C55508

Doherty, Laskin and Epstein JJ.A.

BETWEEN

Diana Hordo

Respondent

and

James Bacchiocchi, Maria Bacchiocchi, Lynda
    Ciaschini, the Estate of Giulio Bacchiocchi

Appellants

Marco Drudi, for the appellants

Robert Besunder, for the respondent

Heard:  August 13, 2014

On appeal from the judgment of Justice Elizabeth M.
    Stewart of the Superior Court of Justice, dated July 6, 2012.

APPEAL BOOK ENDORSEMENT

The Fresh Evidence

[1]

The moving party has not established that any of the proposed fresh
    evidence (the moving partys affidavit and attachments) meets any of the
    criteria for the admission of fresh evidence on appeal.  Most of the documents
    were available at trial (e.g. transcripts of discoveries) and others have no
    bearing on any of the issues raised on appeal (e.g. various unsubstantiated
    allegations made against persons who were not parties to the appeal).

The Appeal

[2]

The finding by the motion judge that Ms. Hordo was entitled to 20 per
    cent of the net proceeds of the sale of the Alton property was, in our view,
    based on a finding that there was an agreement between her and her parents to
    share in the proceeds of the sale.  The trial judge relied on a document
    referred to as a Declaration of Trust in coming to her conclusion.  The
    appellant submits that this constitutes a finding of liability on a basis not
    pleaded.  We disagree.  The Declaration was evidence of the existence of the
    agreement pleaded and properly treated as such by the trial judge.

[3]

We agree with the trial judges treatment of the various issues related
    to the calculation of the net proceeds of the sale and reject the submissions
    made by the appellant in this court.  Those submissions tracked the arguments
    at trial.

[4]

We would not interfere with the costs award.  Ms. Hordo was successful
    on one significant claim.  We would not interfere with the trial judges
    determination that Ms. Hordo was entitled to costs on a partial indemnity
    basis.  Nor would we interfere with the quantum.

[5]

The appeal is dismissed.

The Cross-Appeal

[6]

Counsel for Ms. Hordo advised that given our determination that the
    fresh evidence was not admissible, he would not pursue the cross-appeal.

[7]

The cross-appeal is dismissed.

[8]

No costs to any party on the appeal or cross-appeal.


