DATE: 20060407

DOCKET: C42158

COURT OF APPEAL FOR ONTARIO

RE:

STELLA ARGYRIDES ET AL. (Plaintiffs (Appellants)) – and – SOTIRIOS KIDIAKOPOULOS ET AL. (Defendants (Respondents))

BEFORE:

ROSENBERG, GOUDGE and FELDMAN JJ.A.

COUNSEL:

George A. Bougadis

for the appellants

Aaron Postelnick

for the respondents

HEARD & ENDORSED:

April 4, 2006

On appeal from the order of Justice Ellen Macdonald of the Superior Court of Justice dated June 23, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] We agree with the appellant that the appeal must be allowed. The motion judge appears to have misapprehended one critical fact in the chronology of events relevant to the application of s. 40(1) of the BIA. The action was assigned by the trustee before its discharge in accordance with the section and not after. The trustee’s letter, attached to an affidavit filed on the motion, clearly states that the trustee informed the creditors of the action and of a potential settlement and they confirmed that they did not wish to fund the action. There is no basis to question the validity of the assignment under s. 40(1). The appeal is therefore allowed and paragraph 21(i) of the Statement of Claim is reinstated.

[2] The appellant shall have costs of the motion fixed at $5,000 inclusive of disbursements and G.S.T. and of the appeal fixed at $5,000 inclusive of disbursements and G.S.T.