COURT OF APPEAL FOR ONTARIO
DATE: 20001214
DOCKET: C33526
RE: CESIDIO CONTE and ELISA CONTE (Appellants) - and - JOE ALESSANDRO ET AL. (Respondents)
BEFORE: CATZMAN, MOLDAVER and MacPHERSON JJ.A.
COUNSEL: Joseph J. Colangelo
For the appellants
William G. Dingwall Q.C.
For the respondents
HEARD: DECEMBER 13, 2000
E N D O R S E M E N T
On appeal from the judgment of Mr. Justice David G Stinson dated December 21, 1999
[1] In our view, the trial judge committed a palpable and overriding error in concluding that he had no basis to disbelieve Gregorino Alessandro's discovery evidence and that her discovery evidence was uncontradicted. When the record is considered as a whole, we are satisfied that Mrs. Alessandro's discovery evidence was contradicted by other evidence including, by way of example, the persons who her husband stated purchased the property in 1972 and the consideration paid for it.
[2] Apart altogether from contradictory evidence, we are satisfied that there was an abundance of countervailing evidence which rendered Mrs. Alessandro's discovery evidence both unreasonable and improbable.
[3] It follows, in our view, that the trial judge was wrong in concluding that he was compelled to accept Mrs. Alessandro's discovery evidence. That is the basis upon which he dismissed the appellant's action and it follows that his judgment cannot stand.
[4] Accordingly, the appeal is allowed with costs, the judgment of Stinson J. is set aside and a new trial is ordered. The costs of the trial before Stinson J. are reserved to the judge presiding at the new trial.