A complex civil lawsuit centered on an alleged million-dollar non-refundable program fee for a real estate development project in Barrie, Ontario, advanced this month as the Ontario Superior Court of Justice released a detailed endorsement resolving over 140 disputes regarding document production and examination questions1. The case involves Eringate Homes Corp., MGI Construction Corp., and their principal, Sergio Di Nicola (the Plaintiffs), against a group of defendants including Pensio Property Management Group Inc., Pensio Real Estate Group Inc., and several individuals and entities collectively referred to as the Pensio Defendants, as well as the late lawyer, Anthony Maniaci. The Plaintiffs are seeking the return of the $1,000,000 fee and damages, while the Pensio Defendants are pursuing a counterclaim of $5,000,000 for defamation, among other claims.
The initial action, commenced on November 17, 2020, followed the collapse of the “Mapleview Project”—a proposed development of lands in Barrie. The Plaintiffs allege that in October 2018, Eringate Homes Corp. (EHC) retained the Pensio entities and defendant John Hamilton, Pensio’s managing principal, to assist in securing financing for the land purchase. This led to EHC agreeing to purchase a Rental Income Program (RIP) with defendants Citadell Underwriters, LLC and Rentalis Insurance Company, Inc., related to the development. Central to the dispute is a $1,000,000 “Program Fee” that was allegedly deposited into the trust account of Anthony Maniaci, the lawyer who regularly acted for the Pensio Defendants. The Plaintiffs claim they relied on representations made by Pensio and Hamilton when they agreed to the RIP, and they also assert that Mr. Maniaci acted as their counsel for the land purchase and the RIP, a claim Maniaci and the Pensio Defendants deny.
The critical events unfolded in late 2018. Hamilton is alleged to have advised Di Nicola in November 2018 that the Rental Income Program Agreement (RIPA) required a $1,000,000 Program Fee to be deposited into Maniaci’s trust account. Subsequently, Di Nicola provided Maniaci with two checks from MGI Construction Inc. (MGI) totaling $1,000,000 (the Trust Funds) on December 3, 2018. The Pensio Defendants contend that the Program Fee was non-refundable and could have been paid directly to Pensio Property Management Group Inc. They further allege that on the same day, pursuant to a Direction and Authorization purportedly signed by Di Nicola, $967,000 of the funds were transferred to Citadell and/or Rentalis, and $33,000 was paid to Pensio Property Management Group Inc. The Plaintiffs have disputed the authenticity of this Direction. By February 27, 2019, the Plaintiffs confirmed they would not be proceeding with the purchase of the Property. Di Nicola formally requested the return of the Trust Funds in late June 2019, and again in the summer of 2019 and 2020.
The present ruling, issued by Associate Justice McGraw on November 10, 2025, addresses extensive disputes over undertakings and refusals that arose during the examinations for discovery of key individuals involved in the case, including Mr. Maniaci (before his passing in November 2023), Mr. Hamilton, Brandon Keks (an officer and director of Pensio), Joe Marcantel (a manager of Citadell), and Dimitris Milankov (an officer and director of Pensio). The initial attempt to hear these motions in June 2024 revealed that the parties had made insufficient efforts to resolve the more than 140 disputed questions, leading to a series of adjournments and court-ordered timetables. Justice McGraw noted that the representation issues concerning the Pensio Defendants further complicated the process, eventually requiring two full days of motion hearings in July 2025.
A significant portion of the endorsement dealt with claims of solicitor-client privilege asserted over information related to the late lawyer Anthony Maniaci. The outcome of the trial rests partly on whether Maniaci had a solicitor-client relationship with the Plaintiffs, which would affect whether certain documents are privileged. Justice McGraw applied the principle that solicitor-client privilege applies to confidential communications for the purpose of seeking or giving legal advice. For instance, the judge ruled that Maniaci’s retainer agreement with the Pensio Defendants, who prepared it, and when it was prepared, along with Maniaci’s billing arrangements with Pensio, are protected by privilege. However, Maniaci was ordered to answer an undertaking regarding the name on the file folder for this matter, as he had already agreed to answer it. Crucially, the court ordered the production of the Ledger from Maniaci’s PCLaw accounting system that reflects the Trust Funds. Justice McGraw found the Ledger relevant and probative because it concerns funds paid by the Plaintiffs and was relied upon by Maniaci during his discovery. To the extent it was privileged, the privilege was deemed waived.
Regarding the examination of John Hamilton, the court ordered him to answer several questions and produce documents deemed relevant to the Plaintiffs’ allegations of misrepresentation and the disposition of the Program Fee. Hamilton was ordered to advise on how he was compensated as a consultant, specifically if he received compensation related to the $1,000,000 paid by the Plaintiffs. The Pensio Defendants were also directed to produce financial statements and tax returns for Pensio Property Management Group Inc. and Pensio Real Estate Group Inc. for the years 2018-2022, as these documents are relevant to the use and treatment of the Program Fee. Hamilton was further ordered to advise on his experience with real estate investments and his duties as Pensio Property’s representative, rejecting the Pensio Defendants’ claim of irrelevance or confidentiality.
The ruling also established a cut-off date for the production of certain communications relating to the return of the Program Fee. The Plaintiffs requested all emails between Hamilton and Keks involving the Mapleview Project and whether Hamilton spoke to anyone at Citadell about returning the $967,000 payment, which the Pensio Defendants resisted citing litigation and common interest privilege. Justice McGraw determined that litigation privilege was reasonably triggered only after the Plaintiffs made their first request for the return of the funds. Since Di Nicola first requested the Program Fee return around June 30, 2019, the court set a deadline, ordering the production of emails and communications on or before December 31, 2019. The judge found that communications after that date were likely for the dominant purpose of litigation and thus protected.
In the Plaintiffs’ motion, the court also ordered Citadell to advise within 30 days if an invoice was created or rendered for the $967,000 payment and confirmed that Citadell must advise if there are any other managing members besides the two individuals Marcantel named. Separately, the Pensio Defendants’ motion for additional answers and documents from Di Nicola was also addressed. Di Nicola was required to identify or provide documents supporting the Plaintiffs’ claim that they had the necessary $1.78 million fee plus HST required for the land purchase. The Plaintiffs also agreed to clarify their allegations against Pensio Real Estate Group Inc. and provide their legal position on which terms of the RIPA they believed were conditional.
Associate Justice McGraw concluded the endorsement by ordering the parties to complete all outstanding productions and answers within 30 days, or as otherwise specified. The judge also directed counsel to attempt to resolve the issue of costs for the motions, with the option to submit written cost submissions or schedule a further telephone case conference if an agreement cannot be reached. The judgment effectively narrows the scope of the discovery phase and forces the production of a significant volume of financial records and communications deemed central to the $1,000,000 claim, moving the case closer to a resolution of the underlying dispute.
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