Executive Summary: Key Legal and Evidentiary Issues

• Antonio De Bartolo, a tax lawyer, provided legal services to Initiatives Canada Corporation (ICC) in connection with Tax Court of Canada appeals, receiving only an initial $10,000 retainer paid by PAC Protection Corporation.
• Central to the dispute was whether Roberto Mattacchione's personal assurances of payment constituted a binding contract with De Bartolo.
• No valid offer was found, as the trial judge determined a reasonable person would understand Roberto's communications as an offer to top up the retainer only until funds were transferred from the legal defence fund managed by Robert Kepes.
• Unequivocal acceptance was also absent, as De Bartolo's February 12, 2014 email describing Roberto's offer as a "great suggestion" did not demonstrate a mutual intention to be legally bound.
• Roberto's promise could not constitute a guarantee of ICC's debt, both for lack of contract formation and because the Statute of Frauds, R.S.O. 1990, c. S.19, s. 4, requires any guarantee to be in writing to be enforceable.
• Finding no palpable or overriding error in the trial judge's findings, the Court of Appeal dismissed the appeal.

Facts of the case

Antonio De Bartolo, a tax lawyer, provided legal services to Initiatives Canada Corporation (ICC) in connection with several appeals before the Tax Court of Canada. ICC and PAC Protection Corporation (PAC) were corporations whose sole officer and director was Roberto Mattacchione. PAC paid De Bartolo an initial retainer of $10,000. Additional funds intended for his compensation were held in trust by another lawyer, Robert Kepes, as part of a legal defence fund. Despite being repeatedly encouraged to continue working — through assurances that payment would come either from the legal defence fund or from Roberto personally — De Bartolo received no further payment. He eventually removed himself from the record and commenced an action against ICC, PAC, and Roberto. ICC and PAC did not defend the claim; Roberto did, on the basis that no contract existed between him and De Bartolo.

Contractual clauses and legal framework at issue

No formal written retainer agreement between De Bartolo and Roberto was in dispute. The case turned instead on a series of communications — including emails — in which Roberto allegedly promised to personally ensure De Bartolo would be paid. The trial judge also considered whether Roberto's promise could be characterized as a guarantee of ICC's debt. On that point, the Statute of Frauds, R.S.O. 1990, c. S.19, s. 4 was directly applicable, as it requires a guarantee to be in writing to be enforceable.

Reasoning and analysis

Justice Ranjan K. Agarwal of the Superior Court of Justice, in his decision dated June 6, 2025 (reported at 2025 ONSC 3250), found that the essential elements of contract formation — offer and acceptance — had not been established. On the question of offer, the trial judge applied the test in Richter v. McKeachie, 2009 BCSC 288, at para. 30, which requires a complete statement of terms made with the intention that it be open for acceptance. He found that a reasonable person reading Roberto's emails or hearing his words would understand, at most, that Roberto was offering to top up De Bartolo's retainer until Kepes transferred funds from the legal defence fund — not that Roberto was making an unconditional personal promise to pay. On acceptance, the trial judge noted that De Bartolo's February 12, 2014 email, in which he described Roberto's offer as a "great suggestion," did not amount to unequivocal acceptance; a reasonable person would not conclude from that response that De Bartolo understood himself to be entering a contractual relationship with Roberto. The guarantee argument also failed: the absence of a contract precluded a guarantee, and in any event, no written guarantee existed as required by the Statute of Frauds.

Ruling and outcome

On appeal, the Court of Appeal for Ontario — comprising Sossin, Monahan, and Wilson JJ.A. — found that De Bartolo's arguments on appeal largely replicated those advanced at trial, amounting to a request for the appellate court to substitute its own factual findings for those of the trial judge, which falls outside the appellate court's role. Finding no palpable or overriding error in the trial judge's factual findings or any error in his legal conclusions, the Court dismissed the appeal. The successful party was Roberto Mattacchione, also known as Robert Mattacchione, represented by Alex Flesias, who was awarded costs in the agreed-upon amount of $12,500, all inclusive, for the appeal.