DATE: 20030514

DOCKET: C35657

COURT OF APPEAL FOR ONTARIO

RE:

DUCA COMMUNITY CREDIT UNION (Plaintiff (Appellant)) – and – BENITO GIOVANNOLI, SAME STABILE, SARTAN MANUFACTURING LIMITED, MATER TUBE MANUFACTURING (1993) LTD., 580129 ONTARIO LIMITED, TONY VALENTI, MARIO DONATELLI, GIOVANNOLI INVESTMENTS LTD., JULSTA INVESTMENTS LTD. and CLIFFORD HEMMING (Defendants (Respondents: Benito Giovannoli, Sam Stabile, 580129 Ontario Limited, Julsta Investments Ltd. and Clifford Hemming)

BEFORE:

ABELLA, BORINS and ARMSTRONG JJ.A.

COUNSEL:

Natalie Marconi,

for the appellant

Philip Healey,

for the respondents Benito Giovannoli, Sam Stabile, 580129 Ontario Limited, Giovannoli Investments Ltd., Julsta Investments Ltd.

Carmen M. Bush,

for the respondent Clifford Hemming

HEARD:

May 14, 2003

On appeal from the judgment of Justice Ruth E. Mesbur dated April 10, 2000 made at Toronto and the Order for costs dated December 15, 2000.

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

[1] The trial judge was alive not only to the gaps and contradictions in the evidence, but to the questionable conduct it revealed. Nonetheless, she concluded that the claim of conspiracy had not been made out, a conclusion available to her on this record.

[2] The trial proceeded solely as a conspiracy trial. The appellant sought to argue, for the first time on appeal, that this record gave rise to violations of the Fraudulent Conveyances Act and the Assignment and Preferences Act. These matters should have been argued at trial so that we would have had the benefit of the trial judge’s review and analysis. In the absence of such prior scrutiny, it would not be appropriate for us to entertain these arguments at this time.

[3] The appeal is therefore dismissed with costs. The respondents are to submit their Bills of Costs by May 21, 2003.