- DATE: 20020425 DOCKET: C35508
COURT OF APPEAL FOR ONTARIO
RE:
MATTEO CALIGIURI (Respondent) – and – ROBERT ALEXANDER BONNER, ALEXANDER GREGORY BONNER, GEORGIANN GIGLIA BONNER and ROBERT FRANCIS BONNER (Appellant)
BEFORE:
SHARPE, CRONK and GILLESE JJ.A.
COUNSEL:
Margaret A. Hoy and Richard A. Nabi for the appellant
Gary M. Berman for the respondent
HEARD:
April 22, 2202
RELEASED ORALLY:
April 22, 2002
E N D O R S E M E N T
[1] We see no error in the trial judge’s reasoning or result. We are satisfied that the trial judge did not shift the burden of proof from the plaintiff to the defendants. In our view, he properly followed Koop v. Smith, 1915 26 (SCC), [1915] 25 D.L.R. 355 (S.C.C.), in holding that the near relationship was sufficient to put a burden of explanation upon the defendants.
[2] We are satisfied, as well, that the trial judge made no error in finding an absence of honest intention and in finding that, at the relevant time, the appellant was unable to pay his debts as they arose. There was ample evidence before the trial judge to justify his finding that the conveyance should be put aside under both the Fraudulent Conveyances Act, R.S.O. 1990, c. F.29 and the Assignment and Preferences Act, R.S.O. 1990, c. A-33.
[3] The appeal is, therefore, dismissed. Costs to the respondent are fixed in the sum of $4,000 inclusive of GST and disbursements.
“Robert J. Sharpe J.A.”
“E.A. Cronk J.A.”
“E.E. Gillese J.A.”