DATE: 20040309
DOCKET: C40192
COURT OF APPEAL FOR ONTARIO
RE:
COMMDOOR ALUMINUM (Plaintiff/Respondent) v. SOLAR SUNROOMS INC., SOLAR SUNROOMS LTD. AND GIUSEPPE DEMARCO, also known as JOE DEMARCO AND MARISA DEMARCO, also known as MARISA ROMANO (Defendants/Appellants)
BEFORE:
McMURTRY C.J.O., MOLDAVER AND CRONK JJ.A.
COUNSEL:
Barry A. Percival, Q.C.
for the appellants
Samuel S. Marr
for the respondent
HEARD & ENDORSED:
March 9, 2004
On appeal from judgment of Justice E. Loukidelis dated May 28, 2003.
A P P E A L B O O K E N D O R S E M E N T
[1] The appellant concedes that for the purposes of s. 178(1)(d) of the Bankruptcy and Insolvency Act that the appellant DeMarco was acting in a fiduciary capacity. He agrees that his failure to account for the trust money in issue was due to his incompetence and negligence and not any wrongdoing or misconduct within the meaning of s. 178(1)(d). We disagree.
[2] The trial judge found as a fact that the appellant had failed to adequately discharge his onus as a trustee to account for the relevant trust funds. That finding, which is supported by the evidence, is sufficient to trigger s. 178(1)(d). (See Simone v. Daley (1999) 1999 3208 (ON CA), 43 O.R. (3rd) 511 at 529.
[3] Accordingly, the appeal is dismissed with costs fixed in the amount of $6,115.69.