Court of Appeal for Ontario

Date: 2006-03-24

Docket: C42743

Re:

BIANCA TURCHIARO (Creditor/Respondent) – and – YOLANDA LIORTI also known as Iolanda Liorti Conetta (Debtor) – and – PATRICIA MARY LIORTI (Garnishee/Appellant)

Before:

LABROSSE, SHARPE and CRONK JJ.A.

Counsel:

Alfred S. Schorr for the appellant

Michael F. Smith for the respondent

Heard & Released Orally:

March 17, 2006

On appeal from the order of Justice Gloria R. Klowak of the Superior Court of Justice dated November 29, 2004.

ENDORSEMENT

[1] The appellant argues that the motion judge erred by reversing the onus of proof on the garnishment hearing, by admitting four pages of transcript from the judgment debtor’s evidence at trial, and by failing to give any weight to the evidence at the garnishment hearing of the judgment debtor’s former solicitor. We reject these submissions for the following reasons.

[2] First, the motion judge did not reverse the burden of proof. Before this court, the appellant acknowledges that the motion judge correctly recognized that the mortgage in question provided some evidence of the alleged debt owed by the appellant. Thereafter, the motion judge simply looked to the balance of the evidence adduced at the garnishment hearing to determine if the appellant’s claim that there was no debt had been made out. The motion judge did not err in this approach.

[3] Second, we see no error in the admission of the four pages of the transcript of the evidence given by the judgment debtor at trial. The appellant herself had sought to rely on two of these pages in earlier interlocutory proceedings between the parties in this matter, and all four pages related to the same subject matter.

[4] Nor do we see any error in the inference drawn by the motion judge concerning the appellant’s failure to call the judgment debtor as a witness at the garnishment hearing. The appellant’s defence was that no debt existed. The judgment debtor’s potential evidence was directly relevant to this issue.

[5] Finally, it was for the motion judge to determine what weight should attach to the evidence of the witnesses at the garnishment hearing, including that of the solicitor.

[6] Accordingly, there is no basis for appellate interference and the appeal is dismissed. The respondent is entitled to her costs of the appeal, fixed in the total amount of $10,513.29.

“J.M. Labrosse J.A.”

“R.J. Sharpe J.A.”

“E.A. Cronk J.A.”