) ) Natalie Codispodi on behalf of Jordyn Marie Bivand v. Leni Rose Bivand, 2017 ONSC 6456

CITATION : Codispodi v. Billard, 2017 ONSC 6456 COURT FILE NO.: 57164/17 DATE: 2017/10/27 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Natalie Codispodi on behalf of Jordyn Marie Bivand and Leni Rose Bivand Plaintiffs – and – Jodi Marie Billard Defendant ) ) ) ) ) ) ) ) ) ) R. Watson and S. Raman, for the Plaintiffs R. Allan, for the Defendant ) ) ) HEARD: October 26, 2017 T he Honourable Justice J. R. Henderson endorsement on motion [ 1 ] Motions from both the plaintiffs and the defendant were heard together.

The main motion is the plaintiffs’ request for an order declaring that the defendant (“Jodi”) is precluded from impugning the validity of a June 2014 settlement contract (“the agreement”), and for an order that the proceeds of sale of a property, now held in court, be paid out to the plaintiffs. I will refer to this part of the plaintiffs’ motion, and the ancillary requests that accompany it, as the plaintiffs’ motion for

summary judgment. [ 2 ] The defendant, Jodi, brings a motion to strike out certain parts of the plaintiffs’ motion for

summary judgment, including the notice of motion and the factum. [ 3 ] Further, the plaintiffs bring a motion to strike out and dismiss Jodi’s Counterclaim. In a related motion, Jodi requests leave to deliver a Reply to the plaintiffs’ Reply and Defence to Counterclaim.

THE FACTUAL BACKGROUND [ 4 ] The “evidentiary” material before me on this motion includes the pleadings, a copy of the agreement, a short affidavit from a student-at-law in the plaintiffs’ law firm that provides copies of an agreement of purchase and sale, excerpts from the parcel register, and confirmation of payment into court, and an affidavit from a lawyer in the defendant’s law firm that provides copies of an exchange of correspondence between counsel. [ 5 ] From this material I am able to glean that the minor plaintiffs (“Jordyn” and “Leni”) are the children of the deceased, Scott Bivand (“Scott”).

Scott died on December 19, 2016 without a will. The plaintiffs claim to be the sole beneficiaries of Scott’s estate. [ 6 ] Scott was divorced from his former spouse, Natalie Codispodi, in 2009. Scott and Jodi started to cohabit at some point prior to 2011. [ 7 ] In 2011 Scott and Jodi purchased a property known as 2695 South Grimsby Road 18, Smithville, Ontario (“the property”). Title to the property was registered in the names of Scott and Jodi as joint tenants. They lived together at that property until they separated on June 9, 2014.

There is a dispute as to the extent to which Scott and Jodi each contributed to the property. [ 8 ] On June 12, 2014, Scott prepared, and the parties signed, the agreement. Pursuant to the agreement, among other things, Jodi relinquished her interest in the property, Scott took responsibility for payment of the expenses of the property including the mortgage, taxes and utilities, and Scott paid to Jodi the sum of $4,000. [ 9 ] Although the agreement contemplated a change in title, the registration of the ownership of the property was not changed.

Therefore, title to the property remained registered in the names of Scott and Jodi as joint tenants. [10] After Scott died, in January 2017, Jodi filed a survivorship application which resulted in title to the property being transferredto Jodi’s name alone, as the survivor of a joint tenancy. The minor plaintiffs, through their litigation guardian, then obtained andregistered a Certificate of Pending Litigation (“CPL”).

Thereafter, Jodi obtained an offer to purchase the property. [11] On April 6, 2017, Carpenter-Gunn J. made an order lifting the CPL in order to permit the sale of the property to close, oncondition that the proceeds of the sale be paid into court.

Subsequently, the sale closed and the sum of $248,128.11 was paid into court. [12] The plaintiffs claim that Scott was the sole owner of the property as of the date of his death, and that the plaintiffs are entitledto the entire proceeds of sale now held in court. [13] Jodi claims that the agreement was made under duress and as a consequence of unconscionable conduct by Scott. Therefore,Jodi claims that the agreement is not binding and that she is entitled, as the survivor of a joint tenancy, to the entire proceeds of sale. THE PLAINTIFFS’ MOTION FOR

SUMMARY JUDGMENT [14] The primary problem for the plaintiffs’ motion for

summary judgment is that the plaintiffs have not complied with Rule37.06. That rule provides that every notice of motion shall state the precise relief sought, state the grounds to be argued, including areference to any statutory provision or rule to be relied on, and list the documentary evidence to be used. [15] In the plaintiffs’ motion for

summary judgment, the plaintiffs claim an order declaring that Jodi is precluded from impugningthe validity of the agreement, an order declaring that the owner of the property was Scott alone, an order declaring that after Scott diedthe owner of the property was Scott’s estate, and an order for payment to the plaintiffs of the money held in court. [16] However, the plaintiffs’ motion for

summary judgment only mentions one rule, Rule 72.03(1), which permits the court tomake an order for payment out of court. In my view, the court cannot make use of Rule 72.03(1) unless the court determines theoutstanding issues between the parties by way of a motion under Rule 20 or Rule 21. The plaintiffs’ motion for

summary judgmentmakes no reference to either Rule 20 or Rule 21, and in fact makes no reference to any other rule in this part of the motion record. [17] I accept that counsel for Jodi was uncertain as to which rule or rules were relied upon by the plaintiffs for the relief requested.

Much of the correspondence between plaintiffs’ counsel and defence counsel involved defence counsel’s request for clarification of therule or rules on which the plaintiffs relied, and plaintiffs’ counsel’s refusal to clarify. [18] Moreover, in oral argument, in response to a question from the court, plaintiffs’ counsel did not specify whether this was aRule 21 or Rule 20 motion, and stated that it was unnecessary to pigeonhole the plaintiffs’ request. With respect, this comment ispatently incorrect. [19] In the case of Transamerica Life Insurance Co. of Canada v. Hutton, [1996] O.J.

No. 1787, at para. 10, Sharpe J. confirmedthat the provisions of Rule 37.06 are mandatory and if not complied with may constitute grounds for adjourning or dismissing a motion. At para. 12 Sharpe J. wrote, “The requirement to state grounds reflects an overarching policy of the Rules of Civil Procedure, namely,that to the extent possible, disclosure of a party’s position be made to the other side to prevent surprise and unfair advantage.” Sharpe J.further noted at para. 17 that this rule was particularly important in a motion for

summary judgment. I agree with those comments. [20] Further, I accept the comments of Faieta J.in the case of Kantor v. Fry, 2015 ONSC 6857 at para. 43 in which reference ismade to the Ontario Court of Appeal decision in Boutin v. Co-Operators Life Insurance Co. (1999), (ON CA), 42O.R. (3d) 612 (Ont. C.A.) to the effect that there are differences among Rules 20, 21 and 22.

I agree that these rules are clearly related,but they are not randomly interchangeable. [21] Therefore, in my view, on the sole ground that the plaintiffs have not complied with Rule 37.06, the plaintiffs’ motion forsummary judgment should be dismissed. [22] That being said, there are other defects or irregularities in this part of the plaintiffs’ motion. First, if this is in fact a Rule 21motion, the rules are clear that either no evidence is admissible on the motion, or evidence is only admissible with leave of the motionsjudge.

In this case, the plaintiffs have filed some evidence in the form of the affidavit of the student-at-law, and a copy of the agreement.As well, the plaintiffs have attempted to introduce evidence in the body of the notice of motion. Therefore, a Rule 21 motion cannotsucceed. [23] Second, if this is in fact a Rule 20 motion, the plaintiffs must provide a full evidentiary record on all outstanding issues. Inthis case, there is almost no evidentiary record with respect to the relationship between Scott and Jodi and their connection with theproperty.

Thus, a Rule 20 motion cannot succeed. [24] Finally, the grounds set out in the plaintiffs’ motion for

summary judgment consist of multiple statements of fact that are notin evidence, as well as many inflammatory conclusory statements. One example of a statement of fact that is not in evidence is thestatement that “Jodi took the benefit of owning the assets in her column free of any claim by Scott. Having accepted the settlement’sbenefits, Jodi thereby treated the settlement contract as being in force.” An example of an inflammatory conclusory comment is thestatement that “Jodi’s damages claim is dishonest”. [25] In my view, these types of statements are not permitted in the grounds

section of a notice of motion. In that respect, I rely onand adopt the comments of Epstein J. in the case of George v. Harris, [2000] O.J. No. 1762 at paras. 11-13. [26] For these reasons, the plaintiffs’ motion for

summary judgment as set out in paras. 2, 3, 4 and 5 of the notice of motion isdismissed. Further, given my decision, there is no reason for me to formally consider Jodi’s motion to strike certain parts of theplaintiffs’ notice of motion and factum.

STRIKING THE COUNTERCLAIM AND LEAVE TO DELIVER A REPLY [ 27 ] The plaintiffs’ motion to strike the defendant’s Counterclaim has some merit as the Counterclaim requests an order discharging the CPL, and further requests damages as a result of the registration of the CPL. Given the sale of the property and the sale price, this Counterclaim is now obsolete. [ 28 ] However, this request by the plaintiffs is closely related to the defendant’s request for leave to deliver a Reply to the Reply and Defence to Counterclaim.

Specifically, the real defence of Jodi in this case is that the agreement should be set aside, and Jodi should not be bound by the agreement. This defence is clearly raised in the Statement of Defence, but there is no request in the Counterclaim for an order setting aside the agreement. [ 29 ] The plaintiffs have responded in the Reply and Defence to Counterclaim by alleging that the limitation period for setting aside a domestic agreement has expired.

Jodi now wishes to reply to that allegation by pleading facts that relate to the discoverability of the cause of action. [ 30 ] In my view, under these circumstances, the parties should be given the opportunity to properly define the issues in the pleadings. Therefore, I make the following orders: 1. The defendant’s Counterclaim is hereby struck with leave to amend; 2. The defendant may deliver an amended Statement of Defence and Counterclaim within 20 days of this decision; 3. The plaintiff may deliver an amended Reply and Defence to Counterclaim within 20 days thereafter; 4.

The defendant may deliver a Reply to the Reply and Defence to Counterclaim within 10 days thereafter. CONCLUSION [ 31 ] An order will go in accordance with the reasons set out herein. [ 32 ] If there are any issues arising out of this decision, including costs, I direct that the party seeking relief shall deliver written submissions to the trial coordinator at St. Catharines within 20 days of the release of this decision, with responding submissions to be delivered within 10 days thereafter.

If no submissions are received within this timeframe, the parties will be deemed to have settled all of the remaining issues as between themselves. J. R. Henderson J. Released: October 27, 2017 CITATION : Codispodi v. Billard, 2017 ONSC 6456 COURT FILE NO.: 57164/17 DATE: 2017/10/27

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Natalie Codispodi on behalf of Jordyn Marie Bivand and Leni Rose Bivand Plaintiffs – and – Jodi Marie Billard ENDORSEMENT ON MOTION J. R. Henderson J. Released: October 27, 2017