COURT FILE NO.: 334/07
DATE: 20071126
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LANE, GANS AND SWINTON JJ.
B E T W E E N:
IN THE MATTER OF the Solicitors Act
AND IN THE MATTER OF ZEPPIERI & ASSOCIATES LTD., Solicitors of the Ontario Superior Court of Justice
Solicitor/Appellant
- and -
ALESSANDRO SANDY CARDUCCI and VERA BARBIERI
Client/Respondent
Vera Barbieri
Gregory Gryguc, for the Solicitor/Appellant on Appeal
Paul D. Guy, for the Client/Respondent Vera Barbieri
HEARD at Toronto: November 26, 2007
ORAL REASONS FOR JUDGMENT
GANS J.: (Orally)
[1] The appellant appeals from the order of Allen J., dated June 12, 2007, in which she dismissed the appellant’s motion seeking, among other things, a declaration that certain bank accounts in the name of the respondent Ms. Barbieri were held in trust for the appellant and in respect of which, the appellant sought a Garnishment Order.
[2] In our opinion, Allen J. erred in holding that the doctrine of res judicata applied to the facts of the motion before her.
[3] The claim against Ms. Barbieri arises out of an enforcement proceeding in respect of Mr. Carducci’s debt obligation to the Zeppieri firm, in which it is asserted that she holds funds of Mr. Carducci’s in trust. This is not a matter that could or should have been raised in the earlier proceedings before Echlin J., which dealt with Ms. Barbieri’s and Mr. Carducci’s personal liability to the firm, only.
[4] The Echlin judgment does not preclude an action seeking this form of relief. However, the proceeding initially fashioned, namely, a garnishment proceeding under Rule 60.08 does not permit the relief so contemplated. Put otherwise, garnishment is not the proper proceeding to be undertaken because Ms. Barbieri’s obligation to Mr. Carducci, if any, is not one which admits of ready resolution absent a trial, on better evidence, of a trust relationship, at least, if one can be established between Mr. Carducci and Ms. Barbieri, under which the Zeppieri firm should benefit.
[5] The appeal is therefore dismissed without prejudice to the Appellant commencing a separate action alleging a trust or trusts, breaches thereof, and/or a claim under the Fraudulent Conveyance Act, if so advised, against both of Ms. Barbieri and Mr. Carducci.
[6] Leave to appeal the order of costs is granted. The motions judge awarded costs on a substantial indemnity basis because of her finding on the applicability of the principle of res judicata. Having set aside that finding, we are of the view that costs should have been awarded on a partial indemnity basis to Ms. Barbieri as the form of the original proceedings was ill-conceived.
[7] The costs order is set aside and the costs of the motion below are awarded to Ms. Barbieri in the amount of $2,800, inclusive of GST and disbursements.
LANE J.
[8] The Appeal Book has been endorsed: “The appeal is dismissed without prejudice to Mr. Zeppieri commencing a separate action against Mr. Carducci and Ms. Barbieri alleging, inter alia, trusts and breaches of trust and/or fraudulent conveyance if so advised. Leave to appeal costs granted and costs order varied to $2,800, inclusive. As the proceeding was fundamentally ill-conceived, partial costs of the appeal to Ms. Barbieri fixed at $1,500.”
LANE J.
GANS J.
SWINTON J.
Date of Reasons for Judgment: November 26, 2007
Date of Release: December 12, 2007
COURT FILE NO.: 334/07
DATE: 20071126
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LANE, GANS AND SWINTON JJ.
B E T W E E N:
IN THE MATTER OF the Solicitors Act
AND IN THE MATTER OF ZEPPIERI & ASSOCIATES LTD., Solicitors of the Ontario Superior Court of Justice
Solicitor/Appellant
- and -
ALESSANDRO SANDY CARDUCCI and VERA BARBIERI
Client/Respondent
Vera Barbieri
ORAL REASONS FOR JUDGMENT
GANS J.
Date of Reasons for Judgment: November 26, 2007
Date of Release: December 12, 2007