COURT OF APPEAL FOR ONTARIO

DATE: 20001215

DOCKET: C34078

RE: POLLARD WINDOWS INC. AND ONTARIO NEW HOME WARRANTY PROGRAM (Applicants/Appellants) v. MARIA CASALE, a bankrupt, DOMENIC CASALE, a bankrupt and JOSEPHINE VARRIANO (Respondents)

BEFORE: DOHERTY, MOLDAVER and MACPHERSON JJ.A.

COUNSEL: Rosemary A. Fisher

for the appellants

Vincent Stabile

for the respondents, Casale

Victor L. Freidin, Q.C.

for the respondent, Varriano

HEARD: December 12, 2000

On appeal from the order of Justice Gerald F. Day dated March 28, 2000.

E N D O R S E M E N T

[1] The appellants’ motion material raised legitimate questions about the ownership of the property and the bona fides of the alleged trust for the benefit of the respondent, Josephine Varriano. The respondents’ material put forward her position on that trust. Different parts of the evidence supported the competing positions advanced by the parties.

[2] In the circumstances, Day J. was within the discretion given to him under the bankruptcy rules when he determined the matter by way of a motion and did not direct a trial of an issue. Indeed, it was the primary position of the appellants before Day J. that he should decide the merits on the motion, although counsel did direct submissions to the possibility of a trial of an issue if Day J. could not resolve the conflicts in the evidence.

[3] There was evidence which could have supported a different finding from that made by Day J. That is, however, not the test controlling appellate intervention. Considering the totality of the evidence, the finding made by Day J. was open to him and we cannot interfere.

[4] The appeal must be dismissed with costs.

“Doherty J.A.”

“M.J. Moldaver J.A.”

“J.C. MacPherson J.A.”