Toro Aluminum v. Sampogna, 2008 ONCA 125

CITATION: Toro Aluminum v. Sampogna, 2008 ONCA 125

DATE: 20080221

DOCKET: C47441

COURT OF APPEAL FOR ONTARIO

O’CONNOR A.C.J.O., ROULEAU and WATT JJ.A.

IN THE MATTER OF THE BANKRUPTCY OF NICOLANGELO SAMPOGNA OF THE CITY OF TORONTO, IN THE PROVINCE OF ONTARIO carrying on business as NICK SAMPOGNA, OF THE CITY OF TORONTO, IN THE PROVINCE OF ONTARIO, CONSULTANT

BETWEEN:

TORO ALUMINUM

Plaintiff (Appellant)

and

NICOLANGELO SAMPOGNA, also known as NICK SAMPOGNA, also known as NICKLAUS SAMPOGNA

Defendant (Respondent)

Neil Kotnola for the appellant

Edward Tonello for the respondent

Heard: February 19, 2008

On appeal from the order of Justice C. Campbell of the Superior Court of Justice dated January 26, 2007.

APPEAL BOOK ENDORSEMENT

[1] This appeal raises two issues.

[2] First, the appellant argues that the motion judge erred in failing to make a declaration pursuant to s. 178(1)(d) of the Bankruptcy Insolvency Act that the appellant’s default judgment dated March 7, 1997 against the respondent is a debt that is not released by the respondent’s bankruptcy.

[3] We agree with the appellant that the motion judge erred in the analysis that led to his decision. First, the motion judge erred in imposing upon the appellant what amounted to a burden of proof beyond a [reasonable] doubt. There was no reason on this motion to depart from the standard of proof that normally applies in civil proceedings of this nature.

[4] In addition, in declining to make the declaration, the motion judge attached weight to the failure of the appellant to renew its Writ of Seizure which had expired three and half years previously. The failure to renew the Writ was not relevant to the motion judge’s determination with respect to s. 178(1)(d).

[5] In light of these errors, we conclude that the motion judge’s decision refusing to make a declaration under s. 178(1)(d) must be set aside.

[6] Next, the appellant asks this court to set aside the motion judge’s refusal to grant leave to the appellant to issue a Writ of Seizure and Sale and Notices of Garnishment.

[7] We see no error in the motion judge’s decision. The appellant obtained a default judgment against the respondent on March 27, 1997. It obtained a Writ of Seizure which expired after six years in April 2003. The appellant did not renew the Writ.

[8] In January 2005, the respondent filed for bankruptcy. In October 2006, the respondent received a conditional discharge upon agreeing to pay $40,000 to his creditors in instalments.

[9] The motion judge found that the appellant received notice of the bankruptcy but did not file a claim.

[10] In December 2006, the appellant commenced the proceeding underlying this appeal seeking a declaration that its judgment survived the bankruptcy and seeking leave to issue a Writ of Seizure.

[11] The respondent filed an affidavit stating that he would not have entered into the agreement to pay $40,000 nor made the payments pursuant to that agreement had he known of the positions that the appellant subsequently asserted. The appellant did not cross-examine the respondent on his affidavit nor did he file any material in response.

[12] In these circumstances, it can fairly be said that the respondent relied, to his detriment, on the failure of the appellant to assert the positions he now takes, including the request for a Writ of Seizure, in a timely manner. That being the case, it was open to the motion judge to deny the appellant’s request to renew its Writ of Seizure: see Adelaide Capital Corp. v. 412259 Ontario Ltd., 2006 CanLII 34725 (ON SC), [2006] O.J. No. 4175 at para. 13.

[13] Accordingly, we dismiss this aspect of the appeal.

[14] Success was divided on this appeal. There will be no order as to costs of the appeal nor with respect to the motion before Justice Labrosse. In light of our decision, we reduce the costs award below to $5,000, inclusive of disbursements and G.S.T.