



COURT OF APPEAL FOR ONTARIO

CITATION: Iaboni Estate v. Iaboni, 2018 ONCA 48

DATE: 20180123

DOCKET: C63817

Strathy C.J.O. and Hourigan and Miller JJ.A.

BETWEEN

The Bank of Nova Scotia Trust Company, in its
    capacity as Estate Trustee, in the Estate of Linda Iaboni

Applicant

and

Carlo Iaboni
,
    Ferdinando Iaboni, Norma Moretto

Respondent (
Appellant
)

and

Carlo Iaboni,
Ferdinando
    Iaboni, Norma Moretto

Respondents (
Respondents
)

Alfred S. Schorr, for the appellant

Emilio Bisceglia and Hana Tariq, for the respondents

Heard: January 15, 2018

On appeal from the order of Justice Anne Mullins of the Superior
    Court of Justice, dated April 27, 2017.

REASONS FOR DECISION

[1]

This appeal arises from a long-running dispute between the appellant,
    Carlo Iaboni, and his two siblings, the respondents Ferdinando Iaboni and Norma
    Moretto. The subject of the dispute is the administration of the estates of
    their parents, the late Umberto and Lidia Iaboni. Carlo appeals an order
    striking out his notice of objection to a passing of accounts for the estate of
    Lidia. For the reasons set out below, the appeal is dismissed.

[2]

The background is this. After Umberto became incapable of managing his
    affairs, his wife Lidia managed his property pursuant to a power of attorney he
    had given her. After Lidia herself became incapable, the three children managed
    the property of both Umberto and Lidia pursuant to a power of attorney. In
    2008, Carlo resigned as attorney and the respondents continued to manage the property
    of their parents. When Umberto died in 2010, he left his estate to Lidia. After
    Lidia died in 2012, there was a dispute among the siblings over the
    administration of her estate and the Bank of Nova Scotia Trust Company (BNS)
    was appointed as estate trustee on March 6, 2013.

[3]

Prior to his mothers death, and prior to the appointment of BNS, Carlo
    had objected to the respondents management of their parents property and brought
    an action against the respondents in December 2010 alleging misappropriation of
    funds, seeking an accounting of transactions since he resigned as trustee for
    property in 2008, and seeking reinstatement as a trustee for property.

[4]

In October, 2011, there was a settlement between the three siblings,
    whereby they agreed to exchange an accounting of their mothers assets. The
    respondents provided an accounting, the appellant did not. The appellant took
    no steps to pursue the action and it was dismissed administratively for delay
    on May 15, 2013 and has never been reinstated.

[5]

In late 2015, BNS brought an application to pass accounts in the estate
    of Lidia. Carlo filed a notice of objection, on substantially the same grounds
    as founded his earlier action.

[6]

The respondents brought a motion to strike the notice of objection, on
    the grounds that the objection is without merit, is statute-barred, and
    constitutes an abuse of process. That motion was heard before Quinlan J. on
    June 30, 2016 together with a motion for directions brought by BNS, seeking direction
    on whether it was obligated to pursue the appellants allegations that the
    respondents had misappropriated assets of the estates.

[7]

The appellant did not appear at the hearing before Quinlan J. The motion
    to strike the notice of objection was granted, as well as the motion for
    passing of accounts. Those orders were later set aside on consent, however, and
    the motions to strike and to pass accounts were reheard before Mullins J. with
    the participation of Carlo.

[8]

At the hearing of the motion, Carlo consented to the passing of accounts
    from the time of the appointment of BNS, but not before. Mullins J. struck the
    notice of objection on three bases: (1) it was without merit, (2) it was an
    abuse of process for attempting to relitigate the subject matter of the
    appellants dismissed action; and (3) was time barred under the
Limitations
    Act
.

[9]

Carlo appeals the order of Mullins J., striking out the notice of
    objection.

[10]

We
    are not persuaded that the motions judge made any error. The appellant
    consented to the passing of accounts from the time of the appointment of BNS,
    and has not appealed that aspect of the order. Even if the appellant were able
    to identify errors with respect to the abuse of process and
Limitations Act
claims, the motions judges findings of fact on the merits are fatal to the
    appeal. She made findings that the appellant had not substantiated his
    suspicions with respect to the discharge of mortgage, the share certificate, or
    general dissipation of funds. She also found the evidence of the respondent
    Norma to be credible and reliable. Those findings are entitled to deference and
    are dispositive of the appeal.

Disposition

[11]

The
    appeal is dismissed. The respondents are entitled to costs of the appeal in the
    amount of $7,500, inclusive of disbursements and HST.

G.R. Strathy C.J.O.

C.W. Hourigan J.A.

B.W. Miller J.A.


