



COURT OF APPEAL FOR ONTARIO

CITATION: Ticchiarelli v. Ticchiarelli, 2017 ONCA 1

DATE: 20170104

DOCKET: C61820

Simmons, LaForme and Pardu JJ.A.

BETWEEN

Rinaldo Ticchiarelli

Plaintiff (Appellant)

and

Nazzareno Ticchiarelli,
882897 Ontario Ltd., the estate of Ermoli
    Piccioni, deceased, and John Doe as Litigation Guardian of the Estate of Danny
    Piccioni, deceased

Defendants (
Respondents
)

William J. Burden, for the appellant

Jasmine T. Akbarali, for the respondents, Nazzareno Ticchiarelli,
    882897 Ontario Ltd., the Estate of Ermoli Piccioni, deceased, and John Doe as
    litigation guardian of the Estate of Danny Piccioni, deceased

Heard: September 26, 2016

Appeal from the decision of Justice Richard A. Lococo J.
    of the Superior Court of Justice, dated February 5, 2016.

H.S. LaForme J.A.:

INTRODUCTION

[1]

Rinaldo Ticchiarelli appeals from the decision of the motion judge to
    dismiss his action against the respondents because his inordinate and
    inexcusable delay had prejudiced the respondents. The motion judge relied both
    on Rule 24.01 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194,
    and the Superior Courts inherent jurisdiction.

[2]

Given the deferential standard of review that applies when this court
    considers a motion judges dismissal of an action for delay, my conclusion is
    that this is not a case where this court should interfere. My reasons are set
    out below.

BACKGROUND

[3]

This action involves a dispute over the ownership of shares of 897
    Corporation, a company with an equity interest in a property development in
    Windsor, Ontario. On February 19, 2004, the appellant commenced the action
    against the respondents; his brother Nazzareno, his uncle Ermoli Piccioni and
    the estate of his cousin Danny Piccioni, as well as a related corporation
    (882897 Ontario Ltd.  897 Corp.). Ermoli Piccioni died in 2006 and an Order
    to Continue from 2010 continued the action against his estate.

[4]

The appellant asserts that Nazzareno, in reliance on
    misrepresentations by Danny and Ermoli Piccioni, misused a power of attorney
    that the appellant had granted to Nazzareno and deprived the appellant of
    repayment of his $225,000 shareholder loan to 897 Corp., $25,000 owed to him
    for common shares that Nazzareno sold to Danny Piccioni, and the appellants
    share of profits pursuant to a Profit Sharing Agreement that Nazzareno
    purported to execute on the appellants
behalf.
The respondents acknowledge some indebtedness, and
    promise to pay it when it becomes due; they deny the allegations of conspiracy,
    misrepresentation, undue influence and unconscionability.

[5]

The issues in the action centred on the
    signing of two agreeme
nts in June 1996 and the intention of the parties
    when those agreements were signed. However, the appellant did not commence the
    action until February 2004, more than seven and a half years after the relevant
    events. Meanwhile, Danny Piccioni had died during the previous year.

[6]

According to the motion judge, the action began with reasonable
    dispatch, but, after the appellant filed his Affidavit of Documents, the
    action became dormant for over five years. The appellant allowed four years to
    pass between when his first lawyer ceased to represent him and the time when he
    retained a new one, in 2009.

[7]

This second lawyer took action by proposing a settlement in May 2010 and
    by cross-examining Danny and Ermoli Piccionis estate trustees on November 4,
    2010. However, no progress occurred between November 2010 and July 2014.

[8]

In September 2014, the appellant made an offer to settle, but, by 2015,
    the negotiations failed. During 2015, the parties agreed to mediation, but, on
    June 8, two days before the mediation date, counsel for the Estate of Ermoli
    Piccioni cancelled the mediation. Shortly after, all the defendants except for
    Nazzareno Ticchiarelli moved to dismiss the action for delay.

[9]

During the time since the motion judges decision, one of the proposed
    witnesses, Angeladea Piccioni, has died.

ISSUES

[10]

There are only two issues on this appeal: (i) whether the motion judge
    erred in dismissing the action because of delay; and (ii) the admissibility of
    fresh evidence.

[11]

There was no real opposition to the admission of the new evidence that
    one proposed witness for the trial of this action, Angeladea (Angela)
    Piccioni, has died during the time since the motion judges ruling. The
    relevance of the evidence and its admissibility are obvious and ought to be
    admitted on appeal. Consequently, the analysis that follows will be on the
    motion judges dismissal of the action for delay.

ANALYSIS

(1)

The Test for Dismissing an Action
    for Delay

[12]

The parties agree that the motion judge correctly outlined the test.
    That is, an order dismissing an action for delay will be justified where the
    delay is inordinate, inexcusable, and prejudicial to the defendants in that it
    gives rise to a substantial risk that a fair trial of the issues will not be
    possible:
Langenecker v. Sauvé
, 2011 ONCA 803, 286 O.A.C. 268, at
    paras. 4-7. The court may derive its jurisdiction to dismiss an action for
    delay either from r. 24.01 of the
Rules of Civil Procedure,
or through
    its inherent jurisdiction to prevent an abuse of its own process.

[13]

The motion judge found that the delay of over 11 years was inordinate,
    which the appellant had conceded. He rejected the appellant's arguments that
    the delay had been excused. And, he concluded that the appellant had not
    rebutted the inference of prejudice from the delay. Indeed, the respondents, in
    his view, suffered actual prejudice. The motion judge dismissed the action for
    delay, noting that he could do so on the basis of r. 24.01 or on the basis of
    the court's inherent jurisdiction.

[14]

The motion judges order dismissing this action for delay is a
    discretionary order. It is entitled to deference from this court and will
    not be interfered with unless the motion judge exercised his or her discretion
    unreasonably or acted on a wrong principle:
Ali v. Fruci
, 2014 ONCA 596,
    122 O.R. (3d) 517, at para. 10.

(2)

Application of the Test

(a)

Inordinate delay?

[15]

The motion judge correctly observed that "the inordinance of the
    delay is measured simply by reference to the length of time from the
    commencement of the proceeding to the motion to dismiss":
Langenecker
,
    at para. 8. He also noted the appellants concession that the 11 year delay in
    this case was inordinate and agreed that it was. While the appellant seems to
    resile from that concession on appeal, there is no reason that I can find to
    disagree with the appellants concession on the motion or the reasonableness of
    the motion judges agreement with that concession.

(b)

Inexcusable delay?

[16]

Whether the delay is inexcusable requires an examination of the reasons
    for it and whether they present an adequate explanation. Such an
    examination would look for explanations that are reasonable and cogent or
    sensible and persuasive. The court will consider not only the explanations
    offered for individual parts of the delay, but also the overall delay and the
    effect of the explanations considered as a whole. Through this examination, the
    delay could then be excused, at least to the extent that an order dismissing
    the action would be inappropriate:
Langenecker
, at paras. 9-10.

[17]

The appellant argues that the motion judge erred in finding that the
    delay was inexcusable because the respondents "excused" two lengthy
    periods of delay by engaging in certain procedural steps and in settlement
    negotiations. He also argues that the respondents bore responsibility for the
    delay and he says that he offered reasonable explanations for the delay. I
    would reject these arguments.

[18]

The motion judge focused on two periods of inactivity: (i) September
    2004 to October 2009; and (ii) November 2010 to June 2014. He then, reasonably
    in my view, rejected the appellants submissions that the respondents excused
    both periods of inactivity by their conduct.

[19]

Specifically, the appellant argues that during the period of November
    2009 to November 2010, the respondents, among other things, served affidavit
    materials and attended cross-examinations. And, during the period of June 2014
    to June 2015, the respondents cooperated in the scheduling of a motion, engaged
    in settlement discussions, and agreed to mediate the dispute. In each of these
    instances, he says that the respondents conduct excused any delays.

[20]

With respect to the first period of delay  September 2004 to October
    2009  the motion judge considered the procedural steps that were undertaken.
    He agreed that such steps were relevant, but not dispositive. Rather, his
    approach, which was correct, was to include these steps in an assessment of the
    delay when considering the delay in its global context.

[21]

As for the submissions related to the second period  June 2014 to June
    2015  and the respondents role in scheduling a motion and engaging in
    settlement discussions, the motion judges conclusion is again reasonable and
    not tainted by error. There are two reasons why I reach this conclusion.

[22]

First, the procedural steps that the appellant relies upon as excusing
    the second portion of his delay were limited to addressing the date for the
    appellants 2009 motion that he sought to bring back on. This procedural
    activity prompted the respondents to bring a cross-motion to dismiss the
    appellants action for delay. This is not the kind of cooperative step that
    excuses a plaintiff's delay.

[23]

Second, whether settlement discussions excuse the delay depends on the
    circumstances, and assessing a motion seeking dismissal for delay is not simply
    a mechanical process. Here, the motion judge relied on the public policy
    favouring the timely resolution of disputes, which finds expression in the
    without prejudice nature of settlement negotiations, to reject the
    proposition that the settlement discussions in 2014 excused any part of the
    delay. His approach does not amount to an error in law and his decision, in the
    context of this case, was entirely reasonable.

[24]

Whether the respondents excused the delay at any point is, in my view,
    a fact-sensitive matter, and the motion judges interpretation of the relevant
    facts was reasonable. The appellants explanations were simply not sensible
    and persuasive.

[25]

The motion judge found the appellants explanations no more persuasive
    from a global perspective on the total delay. Again, there is nothing
    unreasonable about this conclusion.

[26]

The appellants explanation for the delay from 2004 - 2009 is extremely
    weak. His excuse is that he always has understood that this dispute is a
    family dispute, which could and should be resolved among family members. Yet,
    he next asserts that he always intended to pursue the lawsuit. Similarly, his
    explanation for the delay from 2010 - 2014 is incoherent. On the one hand, he
    believed that the respondents would honour their duty to return his investment.
    On the other hand, he claims that he always intended to pursue the lawsuit.

[27]

Finally, the motion judge rejected the argument that at least some of
    the delay falls at the feet of the respondents. As this court noted in
Wallace
    v Crates Marine Sales Ltd.
, 2014 ONCA 671, 245 A.C.W.S. (3d) 72, at para.
    18, the plaintiff is responsible for moving the action along. In our case the
    motion judge reasonably found that the appellant failed to meet this
    responsibility.

(c)

Prejudice to fair trial rights?

[28]

Here the test is whether the delay has been prejudicial to the
    defendants in that it creates a substantial risk that a fair trial of the
    issues will not be possible. The motion judge correctly stated this principle
    and the related rule that inordinate delay generates a presumption of
    prejudice. He then directed himself to the comments of this court in
Langenecker
,

at para. 11: Memories fade and fail, witnesses can become unavailable,
    and documents can be lost. The longer the delay, the stronger the inference of
    prejudice to the defence case flowing from that delay.

[29]

The motion judge noted that there is an evidentiary burden on the
    plaintiff to demonstrate that the defendants have not been prejudiced and, by
    way of example, referred to key witnesses being available or documents having
    been preserved. The motion judge also noted that in addition to relying on the
    inference of prejudice arising from the inordinate delay, it was open to the
    defendants to lead evidence of actual prejudice.

[30]

The appellant argues that the motion judge erred by mechanically
    applying the presumption of prejudice rather than considering whether there was
    in fact any prejudice based on all the circumstances.  In particular, he relies
    on
MDM Plastics Limited v. Vincor International Inc.,
2015 ONCA 28,
    124 O.R. (3d) 420, at para. 37, to say that the motion judge erred by placing
    an evidentiary burden on the appellant to lead affirmative evidence to prove
    that the documents that were required for trial had been preserved. I would
    reject this argument.

[31]

First, I would note that
MDM Plastics
dealt with an appeal from
    a motion to set aside an order of the registrar dismissing the plaintiff's
    action for delay pursuant to r. 48.14(4). The test is somewhat different but,
    nevertheless, requires the court to consider whether there is prejudice to the
    defendant in setting aside the dismissal. In that context, this court, in
MDM
    Plastics,
at para. 32 said there was no general proposition that the
    plaintiff must lead affirmative evidence to rebut a presumption of prejudice.
    Rather, it said that in evaluating the strength of the presumption of
    prejudice, the [court] must consider all of the circumstances, including the
    defendant's conduct in the litigation.

[32]

Second, I agree with the respondents; evidence of their actions may
    rebut the presumption of prejudice, but this hardly means that the presumption
    of prejudice does not exist. Indeed it does, and the burden to displace it lies
    on the plaintiff. This conclusion is consistent with the decision in
Ali
,
    at para. 16 where this court accepted that there was some presumed prejudice
    and that the plaintiff had not rebutted it. Also I note that in
Wallace,
at para. 17,

this court referred to the "appellants' attempted
    rebuttal of the presumption of prejudice" as part of its reasoning. In
    sum, the trial judge, in my view, did not misdirect himself as to the burden.

[33]

The prejudice in this case was properly assessed by the motion judge in
    the context of the allegations made in the appellants statement of claim. His
    claim makes allegations of conspiracy, misrepresentation, unconscionability and
    undue influence. Allegations such as these succeed or fail largely on the
viva
    voce
evidence offered at trial. As the respondents say, and as the motion
    judge observed, the state of the witnesses was a key element for the motion
    judge in assessing prejudice.

[34]

The reasonableness of the motion judges conclusion that both presumed
    and actual prejudice existed such they created a substantial risk that a fair
    trial of the issues would not be possible is apparent when two important
    realities are noted.

[35]

First, even without the fresh evidence, the appellant has failed to
    rebut the presumption of prejudice from his inordinate and inexcusable delay.
    The delay of 11 years from the initiation of proceedings until the motion to
    dismiss mandates a heavy onus of rebuttal. Yet the appellant fails to explain
    when he first became aware of the impugned transactions. He merely states that
    he learned of them long after they were executed, but there was a delay of
    approximately eight years between their execution and his statement of claim.

[36]

Second, it seems obvious, given the appellants allegations of
    conspiracy, misrepresentation, unconscionability and undue influence, that
    actual prejudice exists. The
viva voce
evidence that would be
    essential to the trial is dramatically impacted because of the passage of so
    much time. Beyond the fact that several important witnesses have died, the
    passing of time probably would make the testimony of surviving witnesses less
    reliable.

[37]

The appellant himself, in his affidavit from 2009, confesses, The
    passage of time in conjunction with the passing away of key family members is
    resulting in the loss of key witnesses in this proceeding who had knowledge of
    the original reasons for the transfer of my shares and the transfer of Nazs
    shares to Danny Piccioni.

[38]

In these circumstances, the motion judge's finding that the presumption
    of prejudice was not rebutted is completely reasonable. Indeed, actual
    prejudice was made out as a result of the death of key witnesses. The motion
    judges further conclusion that the prejudice creates a substantial risk that a
    fair trial of the issues will not be possible is also reasonable.

(d)

Inherent jurisdiction?

[39]

Finally, the motion judge concluded his reasons by granting the
    respondents relief under rule 24.01, but he went on also to dismiss the action
    through the courts inherent jurisdiction, citing this courts decision in
Wallace
.
    As Lauwers J.A. explained in
Wallace
, at para 22:

There comes a timewhen enough is enough, and the civil justice
    system will no longer tolerate inordinate and inexplicable delay. A court may
    then eject the action as an exercise of its inherent jurisdiction, whether or
    not the relevant rules expressly mandate it.

[40]

Clearly, the motion judge was of the opinion that the civil justice
    system could no longer tolerate the inordinate and inexplicable delay in this
    case. His view on the record before him was that the time had come when enough
    was enough. The record certainly supports the motion judges conclusion and I
    cannot say it was unreasonable.

CONCLUSION

[41]

I would dismiss the appeal. The motion judge applied the correct test
    required under r. 24.01. And, while it was unnecessary for him to rely on the
    courts inherent jurisdiction, he did so correctly. His findings of fact and
    his assessment of them are reasonable and reveal no error. The respondents are
    entitled to their costs of the appeal in the agreed upon amount of $15,000,
    inclusive of relevant taxes and disbursements.

Released:

JAN -4 2017                                      H.S.
    LaForme J.A.

GP                                                    I
    agree Janet Simmons J.A.

I
    agree G. Pardu J.A.


