DATE: 20040525

DOCKET: C39320

COURT OF APPEAL FOR ONTARIO

RE:

CESIDIO CONTE and ELISA CONTE (Plaintiffs/Respondents) v. JOE ALESSANDRO, also known as GIUSEPPE ALESSANDRO, GREGORINA ALESSANDRO and ALBA ALESSANDRO (Defendants/Appellants)

BEFORE:

DOHERTY, ARMSTRONG and LANG JJ.A.

COUNSEL:

William G. Dingwall, Q.C.

for the appellants

J. Colangelo

for the respondent

HEARD & ENDORSED:

May 18, 2004

On appeal from the judgment of Justice Rouleau of the Superior Court of Justice, dated December 10, 2002.

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 found as a fact that Joe Alessandro acquired a “complete interest” in the subject property in the 1970s.

[2] That factual finding is buttressed by the language of the 1972 deed to uses which grants the fee simple to Joe Alessandro unless and until he chose to exercise the power of appointment.

[3] The trial judge found that the purported exercise of the power of appointment in favour of the appellant in 1996 was a conveyance within the Act, and was on the facts fraudulent. Neither finding of fact is open to challenge in this court.

[4] The appeal is dismissed. An order will go in the terms of para. 32(a)(b) and (c) of the respondent’s factum.

[5] Costs on a substantial indemnity basis fixed at $20,000.00 all in.