DATE: 20040723

DOCKET: C40961

COURT OF APPEAL FOR ONTARIO

RE:

LEO PERCIASEPE (Plaintiff/Respondent) – and – ROY FRANCIS SMITH, JANET ANDERSON SMITH, 120308 ONTARIO LIMITED, SUNLAND ENTERPRISES INC., 930545 ONTARIO LIMITED c.o.b. as FLORIDA ATTRACTION SALES and RUEBEN PARNES (Defendants/ Appellants)

BEFORE:

CATZMAN, GILLESE and LANG JJ.A.

COUNSEL:

Robert J. van Kessell and Kenneth R. Shugart

for the appellant Janet Anderson Smith

Michael R. Kestenberg and Steven Bellissimo

for the respondent

HEARD AND ENDORSED:

July 22, 2004

On appeal from the judgment of Justice Margaret P. Eberhard of the Superior Court of Justice dated October 21, 2003.

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

[1] On the state of the record before the court, this appeal must be dismissed.

[2] On a plain reading of rule 20.01(1), Eberhard J. was entitled to entertain the motion for judgment that was before her. The appellant put forward no evidence to contradict the clear allegations of fraud and fraudulent misrepresentation which, by rule 19.02(1)(a), she was deemed to have admitted, and Eberhard J. did not err in reaching the conclusion that the appellant’s debt arose from fraud and thus survived her discharge from bankruptcy.

[3] We see no merit in the other grounds of appeal that were raised on behalf of the appellant.

[4] Accordingly, the appeal is dismissed with costs fixed in the sum of $7,500, plus disbursements and G.S.T.