Court of Appeal for Ontario

Citation: Central Lumber Limited v. Gentile, 2020 ONCA 719

Date: 2020-11-09

Docket: C67577

Before: Feldman, Simmons and Harvison Young JJ.A.

Between:

Central Lumber Limited operating as Central Fairbank Lumber Plaintiff (Respondent)

and

Giorgio Gentile also known as George Gentile, Gentile & Associates Wealth and Estate Planning Group Inc., Gentile & Assoc. Paralegal Corporation, Leopoldo Gallo also known as Peter Gallo, also known as Leo Gallo, Sergey Shtefanyuk, also known as Sergey Stefanyuk and 1846666 Ontario Inc. Defendants (Appellant)

Counsel: R. Lee Akazaki, for the appellant Jeffrey Long and Leona Kung, for the respondent

Heard and released orally: November 5, 2020

On appeal from the judgment of Justice Shaun O’Brien of the Superior Court of Justice, dated October 8, 2019, with reasons reported at 2019 ONSC 7413.

REASONS FOR DECISION

[1] The appellant is the owner of a large residence being constructed. The respondent is the lumber supplier to the contractor 1846666 Ontario Inc. (“184”).

[2] The appellant appeals from the order of the trial judge that: 1) he is “Peter” who controls the contractor 184; 2) the bank draft for the amount owed to the respondent lumber supplier by 184 constituted a payment from the appellant as owner to the appellant as contractor; 3) as a result, the payment was impressed with a trust under s. 8 of the Construction Lien Act, R.S.O. 1990, c. C.30, 4) 184 was in breach of trust by failing to pay the respondent; and 5) the appellant is personally liable under s. 13 for the breach of trust.

[3] The appellant challenges the clear finding of fact by the trial judge that the person representing 184 to the respondent who calls himself Peter is the appellant. This finding was amply supported by the record. There is no basis to interfere with it.

[4] The appellant also argues that the trial judge erred in law in her application of s. 8 and s. 13 of the Construction Lien Act. We do not agree.

[5] We agree with the analysis by the trial judge that the appellant’s provision of the bank draft in the exact amount owed to the respondent plus 3% commission, from his account to the paralegal firm account, and which was shown to the respondent to demonstrate that 184 had the funds to pay it, constituted receipt by 184 under s. 8 (1)(b) of the Construction Lien Act.

[6] Further, there is no basis to interfere with the trial judge’s further finding that the appellant had effective control of 184 and thereby acquiesced in the breach of trust by 184 by failing to pay the respondent, and is thereby personally liable under s. 13 of the Act.

[7] The appeal is dismissed with costs including disbursements fixed at $25,000 plus HST.

“K. Feldman J.A.”

“Janet Simmons J.A.”

“Harvison Young J.A.”