DATE: 20051202

DOCKET: C43469

COURT OF APPEAL FOR ONTARIO

RE:

LAURENTIAN BANK OF CANADA ON ITS OWN BEHALF, AND ON BEHALF OF THE CREDITORS OF JOE ALESSANDRO (Plaintiff (Appellant) – and – ROSE FANELLI, DOMENIC FANELLI, GIOVANNA ALESSANDRO-CRISTIANO, GUIDO CRISTIANO and JOE ALESSANDRO (Defendants (Respondents)

BEFORE:

FELDMAN, BLAIR and LAFORME JJ.A.

COUNSEL:

Ronald B. Moldaver, Q.C.

for the appellant

William G. Dingwall Q.C.

for the respondent

HEARD & RELEASED ORALLY:

November 29, 2005

On appeal from the order of Justice Maurice C. Cullity of the Superior Court of Justice dated April 5, 2005.

E N D O R S E M E N T

[1] In our view, Cullity J. made no error in concluding that the doctrine of res judicata applies. Somers J. determined that the bank execution did not bind the property because the property was validly held in trust by Mr. Alessandro. Subsumed in that determination is that the trust, being valid, was not a sham. If the bank wanted to raise the issue that the trust was a sham, it was required to do so in the context of the original motion before Somers J.

[2] Also, we see no basis to interfere with the discretion exercised by Cullity J. to decline to allow the current action to proceed in any event.

[3] The appeal is therefore dismissed with costs in the amount of $9,500 inclusive of disbursements and G.S.T.

Signed: “K. Feldman J.A.”

“R.A. Blair J.A.”

“H.S. LaForme J.A.”