Laurentian Bank of Canada v. Fanelli
Res judicata applied because the issue of whether the bank execution bound the property was already determined by Somers J. when he found the property was validly held in trust; the bank was required to raise any allegation that the trust was a sham in the original motion and Cullity J. correctly exercised his...
Source-derived case information.
- Citation
- C43469
- Parties
- Appellant: Laurentian Bank of Canada on its own behalf and on behalf of the creditors of Joe Alessandro; Respondent: Rose Fanelli; Respondent: Domenic Fanelli; Respondent: Giovanna Alessandro-Cristiano; Respondent: Guido Cristiano; Respondent: Joe Alessandro
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 2 December 2005
- Procedural Posture
- Civil Appeal / Decision of the Court of Appeal
- Outcome
- Appeal dismissed
- Legal Topics
- Res Judicata, Sham Trust, Execution Against Property, Court Discretion, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Laurentian Bank of Canada on its own behalf and on behalf of the creditors of Joe Alessandro
Appellant
Rose Fanelli
Respondent
Domenic Fanelli
Respondent
Giovanna Alessandro-Cristiano
Respondent
Guido Cristiano
Respondent
Joe Alessandro
Respondent
Procedural Posture
Civil Appeal / Decision of the Court of Appeal
Legal Issues
- 1 Whether the doctrine of res judicata barred relitigation of whether the bank execution bound the property
- 2 Whether the trust was a sham and could be attacked after the original motion
- 3 Whether the motion judge and Cullity J. erred in exercising discretion to prevent the action from proceeding
Ratio Decidendi
Res judicata applied because the issue of whether the bank execution bound the property was already determined by Somers J. when he found the property was validly held in trust; the bank was required to raise any allegation that the trust was a sham in the original motion and Cullity J. correctly exercised his discretion to bar the fresh action; appeal dismissed with costs.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
- Costs awarded to respondents in the amount of $9,500 inclusive of disbursements and G.S.T.
Full Case Text
Judgment text and source record
1 paragraphs
Laurentian Bank of Canada v. Fanelli Collection Decisions of the Court of Appeal Date 2005-12-02 Docket numbers C43469 Judges Feldman, Kathryn N.; Blair, Robert Ashley; LaForme, Harry Smith Subject Civil Decision Content DATE: 20051202 DOCKET: C43469 COURT OF APPEAL FOR ONTARIO RE: LAURENTIAN BANK OF CANADA ON IT’S OWN BEHALF, AND ON BEHALF OF THE CREDITORS OF JOE ALESSANDRO (Plaintiff (Appellant) – and – ROSE FANELLI, DOMENIC FANELLI, GIOVANNA ALESSANDRO-CRISTIANO, GUIDO CRISTIANO and JOE ALESSANDRO (Defendants (Respondents) BEFORE: FELDMAN, BLAIR and LAFORME JJ.A. COUNSEL: Ronald B. Moldaver, Q.C. for the appellant William G. Dingwall Q.C. for the respondent HEARD & RELEASED ORALLY: November 29, 2005 On appeal from the order of Justice Maurice C. Cullity of the Superior Court of Justice dated April 5, 2005. ENDORSEMENT [1] In our view, Cullity J. made no error in concluding that the doctrine of res judicata applies. Somers J. determined that the bank execution did not bind the property because the property was validly held in trust by Mr. Alessandro. Subsumed in that determination is that the trust, being valid, was not a sham. If the bank wanted to raise the issue that the trust was a sham, it was required to do so in the context of the original motion before Somers J. [2] Also, we see no basis to interfere with the discretion exercised by Cullity J. to decline to allow the current action to proceed in any event. [3] The appeal is therefore dismissed with costs in the amount of $9,500 inclusive of disbursements and G.S.T. Signed: “K. Feldman J.A.” “R.A. Blair J.A.” “H.S. LaForme J.A.”