Rinaldo v. Grant Thornton Limited (Trustee)
The trial judge correctly applied Koop v. Smith, found the required threshold for shifting the burden of explanation was not met given absence of evidence of other creditors or insolvency, and on the evidence reasonably concluded the conveyance was not proven to have been made with the requisite intent to defraud;...
Source-derived case information.
- Citation
- C33481
- Parties
- Appellant: Michael Rinaldo; Respondent: Grant Thornton Limited (Trustee of the Estate of Simon Rosenfeld); Respondent: Louise Rosenfeld also known as Louise Gauthier
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 1 November 2001
- Procedural Posture
- Civil Fraudulent Conveyance/collection / Appeal From Trial Judgment (court of Appeal)
- Outcome
- Appeal dismissed
- Legal Topics
- Burden of Explanation, Fraudulent Conveyance, Intent to Defraud, Release as Defence, Standard of Appellate Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Rinaldo
Appellant
Grant Thornton Limited (Trustee of the Estate of Simon Rosenfeld)
Respondent
Louise Rosenfeld also known as Louise Gauthier
Respondent
Procedural Posture
Civil Fraudulent Conveyance/collection / Appeal From Trial Judgment (court of Appeal)
Legal Issues
- 1 Whether the trial judge erred in applying the law on the burden of explanation in a fraudulent conveyance action
- 2 Whether the threshold to shift the burden of explanation to the defendant was met
- 3 Whether the conveyance was made with the requisite intent to defraud creditors
Ratio Decidendi
The trial judge correctly applied Koop v. Smith, found the required threshold for shifting the burden of explanation was not met given absence of evidence of other creditors or insolvency, and on the evidence reasonably concluded the conveyance was not proven to have been made with the requisite intent to defraud; therefore the appeal was dismissed.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed with costs
- Costs shall not be payable or recoverable until Mr. Rosenfeld’s debt to the appellant has been discharged
Full Case Text
Judgment text and source record
1 paragraphs
Rinaldo v. Grant Thornton Limited (Trustee) Collection Decisions of the Court of Appeal Date 2001-11-01 Docket numbers C33481 Judges Abella, Rosalie Silberman; Goudge, Stephen Thomas; Simmons, Janet M. Subject Civil Decision Content DATE: 20011101 DOCKET:C33481 COURT OF APPEAL FOR ONTARIO RE: MICHAEL RINALDO (Plaintiff (Appellant)) – and – GRANT THORNTON LIMITED, Trustee of the Estate of Simon Rosenfeld, a bankrupt, and LOUISE ROSENFELD, also known as LOUISE GAUTHIER (Defendants (Respondents)) BEFORE: ABELLA, GOUDGE AND SIMMONS JJ.A. COUNSEL: John E. Callaghan For the appellant Jerry Levitan and Michael Gayed For the respondent HEARD: October 24, 2001 On appeal from the judgment of Justice Colin Campbell dated December 13, 1999. ENDORSEMENT Orally Released: October 24, 2001 [1] The central issue in this appeal is whether the trial judge erred in applying the law relating to the burden of explanation in this fraudulent conveyance action. He correctly set out that law as stated in Koop v. Smith, [1915] 1 S.C.R. 533, which requires a sufficient showing both of the closeness of the relationship between the parties to the challenged conveyance and the suspiciousness of the circumstances surrounding the conveyance before the burden of explanation arises. [2] While his reasons might have been more clearly expressed, on a fair reading of them, we find that the trial judge concluded that, in the circumstances before him, the threshold necessary to put the burden of explanation on the defendant had not been reached. Particularly in light of the absence of evidence that there were other creditors at the time of the conveyance or that the defendant was unable then to meet his debts as they came due, this was a finding that was open to him on the evidence. [3] The trial judge then properly went on to consider whether, without placing a burden of explanation on the defendant, he could conclude that the conveyance was done with the requisite intent. He found that he could not. Again, this conclusion is reasonable and one with which we cannot interfere. [4] Given our conclusion, it is unnecessary for us to deal with whether Mr. Justice Campbell was correct that, in any event, the release protects the respondent in this case. [5] The appeal must be dismissed with costs. As with the costs order at trial, these costs shall not be payable or recoverable until such time as Mr. Rosenfeld’s debt to the appellant has been discharged. [6] The order of Doherty J.A. dated February 21, 2000 is exhausted as of the determination of this appeal. The appellant is of course able to seek a further stay if advised. “R. S. Abella J.A.” “S.T. Goudge J.A.” “J. Simmons J.A.”