1162740 Ontario Limited v. Pingue

1162740 Ontario Limited v. Pingue

The trial judge's factual findings that 1162740 Ontario Limited was treated as the absolute owner, that Venanzio Pingue did not pay for his shares and misappropriated funds, and that admission of the appellants' late expert report would cause non‑compensable prejudice and undue delay were open on the record, not palpably or overridingly erroneous; accordingly the constructive trust, removal of Venanzio as officer/director, and costs orders were affirmed and the appeal was dismissed.

Citation
2017 ONCA 583
Parties
Plaintiff (respondent): 1162740 Ontario Limited; Plaintiff (respondent): Joseph Pingue; Plaintiff (respondent): Sabatino Pingue Jr.; Defendant (appellant): Venanzio Pingue; Defendant (appellant): 2077626 Ontario Inc.; Defendant (appellant): 912618 Ontario Limited
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
10 July 2017
Procedural Posture
Civil Appeal / Court of Appeal Decision on Appeal From Superior Court Trial Judgment
Outcome
Appeal dismissed; trial judgment affirmed in all material respects; motions dismissed; respondents awarded costs for appeal
Legal Topics
Constructive Trust, Misappropriation, Breach of Fiduciary Duty, Share Ownership Dispute, Expert Evidence Admission, Leave to File Expert Report, Rectification (alleged), Fresh Evidence
Source Language
English
Equity Corporate Law Trusts Civil Procedure Costs Constructive Trust Misappropriation Breach of Fiduciary Duty +5 more

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Parties

1162740 Ontario Limited

Plaintiff (respondent)

Joseph Pingue

Plaintiff (respondent)

Sabatino Pingue Jr.

Plaintiff (respondent)

Venanzio Pingue

Defendant (appellant)

2077626 Ontario Inc.

Defendant (appellant)

912618 Ontario Limited

Defendant (appellant)

Procedural Posture

Civil Appeal / Court of Appeal Decision on Appeal From Superior Court Trial Judgment

Legal Issues

  1. 1 Whether the trial judge erred in interpreting the written agreements and finding that 1162740 Ontario Limited was absolute owner rather than a bare trustee
  2. 2 Whether Venanzio Pingue was obligated to repurchase his shares and whether he had in fact paid for them
  3. 3 Whether the trial judge erred in refusing to admit the appellants' late forensic accounting expert report under Rule 53.08

Ratio Decidendi

The trial judge's factual findings that 1162740 Ontario Limited was treated as the absolute owner, that Venanzio Pingue did not pay for his shares and misappropriated funds, and that admission of the appellants' late expert report would cause non‑compensable prejudice and undue delay were open on the record, not palpably or overridingly erroneous; accordingly the constructive trust, removal of Venanzio as officer/director, and costs orders were affirmed and the appeal was dismissed.

Court Disposition

Appeal dismissed; trial judgment affirmed in all material respects; motions dismissed; respondents awarded costs for appeal

Orders

  • Appeal dismissed
  • Judgment of the Superior Court dated December 22, 2014 affirmed (including constructive trust and declaration that Venanzio Pingue is not a shareholder and removal as officer/director)