Court of Appeal for Ontario
Citation: 2012 ONCA 676 Date: 2012-10-05 Docket: C54618
Before: Laskin, Blair and Epstein JJ.A.
Between:
Bibico Electric Inc. Plaintiff (Respondent)
and
Battlefield Electrical Services Inc., Karen Suzanne D’Agostino, also known as Karen D’Agostino and Enio D’Agostino Defendants (Appellants)
Counsel: Frank Pignoli, for the appellants Karen D’Agostino and Enio D’Agostino Cameron Neil, for the defendants (respondents)
Heard: October 4, 2012
On appeal from the order of Justice J. Ramsay of the Superior Court of Justice, dated October 19, 2011.
APPEAL BOOK ENDORSEMENT
[1] We are satisfied that sufficient facts were pleaded – and, therefore, admitted because of the default – to bring the judgment of Whitten J. within the provisions of s. 178(1)(d) of the Bankruptcy and Insolvency Act. These facts included that the appellants caused and assented to and acquiesced in the diversion of trust funds established under the Construction Lien Act for purposes inconsistent with the trust, and that the appellants had failed to account for the trust funds. The judgment was therefore underpinned by the type of “wrongdoing, improper conduct or improper accounting” contemplated by s. 178(1)(d): See Simone v. Daley (1999) 170 D.L.R. (4th) (O.C.A.); Commdoor Aluminium v. Solar Sunrooms Inc. 2023 (2004) Carswell Ont. 2387 (O.C.A.).
[2] In addition, we see no error in Ramsay J.’s refusal to grant an adjournment to re-open the case on the merits.
[3] The appeal is therefore dismissed.
[4] Costs to the respondent fixed in the amount of $6000 inclusive of disbursements and all applicable taxes.