DATE: 20041203

DOCKET: C42112

COURT OF APPEAL FOR ONTARIO

RE:

ANTONIO DIONISIO, in his capacity as Trustee of the Labourers’ Pension Fund of Central and Eastern Canada (Applicant (Appellant)) – and – TERENCE O’SULLIVAN, JOSEPH MANCINELLI, CARMEN PRINCIPATO, DOUGLAS SERROUL, in their capacities as Trustees of the Labourers’ Pension Fund of Central and Eastern Canada, and DAVID D’AGOSTINI (Respondents (Respondents in appeal)

BEFORE:

ROSENBERG, MOLDAVER and SIMMONS JJ.A.

COUNSEL:

Bryan Finlay and Marie-Andrée Vermette

for the appellant

David Stamp and Derek Leschinsky

for the respondent

HEARD & ENDORSED:

December 2, 2004

On appeal from the judgment of Justice Katherine E. Swinton of the Superior Court of Justice dated July 6, 2004.

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

[1] On the record before the application judge, we are not persuaded that Swinton J. erred in finding that:

There is no evidence before me that the Respondents are likely to act contrary to the best interests of the Plan members, or that Plan members may be prejudiced by the Applicant’s removal as a Trustee pending the outcome of the investigations of alleged misconduct relating to the operation of the Pension Fund.

[2] In particular, we agree that the evidence relied upon by the appellant did not meet the threshold of demonstrating a likelihood of abuse of discretion. In framing the issue that way, we are satisfied that Swinton J. applied the correct legal test: see Edell v. Sitzer (2001), 55 O.R. (3d) 198 (S.C.J.) at para. 177 and following, aff’d, (2004), 187 O.A.C. 189 (Ont. C.A.), and Fox v. Fox Estate (1996), 28 O.R. (3d) 496 (Ont. C.A.) at p. 517; leave refused [1996] S.C.C.A. No. 241.

[3] Accordingly, the appeal is dismissed with costs fixed at $10,000 inclusive of G.S.T. and disbursements. The appellant is not seeking reimbursement out of the trust fund.