Yanic Dufresne Excavation Inc. v. Saint Joseph Developments Ltd.

Yanic Dufresne Excavation Inc. v. Saint Joseph Developments Ltd.

The motion judge correctly admitted and relied on fresh evidence under Rule 59.06(2) because material facts were discovered after the default judgment and the evidence could not reasonably have been obtained earlier; the amended statement of claim was sufficiently particularized to ground breach of trust/misappropriation allegations; and the admissible evidence demonstrated morally unacceptable fiduciary misconduct such that the default judgment debt survives Albert Plant’s bankruptcy under s.178(1)(d) BIA — therefore the appeal is dismissed.

Citation
2022 ONCA 556
Parties
Plaintiff (respondent): Yanic Dufresne Excavation Inc.; Defendant: Saint Joseph Developments Ltd.; Defendant: Vincent Martin Detillieux; Defendant (appellant): Albert Plant
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
27 July 2022
Procedural Posture
Civil Appeal Re Variation of Default Judgment and Bankruptcy Survivorship Under BIA S.178(1)(d) / Appeal From Superior Court of Justice (motion to Vary Default Judgment)
Outcome
Appeal dismissed. Motion judge’s order varied to declare that the Default Judgment survives the bankruptcy of Albert Plant; costs awarded to respondent.
Legal Topics
Default Judgment, Variation of Judgment (rule 59.06(2)), Bankruptcy and Insolvency Act S.178(1)(d), Breach of Trust, Fiduciary Duty, Admissibility of Fresh Evidence, Pleading Particularity
Source Language
English
Civil Bankruptcy and Insolvency Construction Law Procedural Law Default Judgment Variation of Judgment (rule 59.06(2)) Bankruptcy and Insolvency Act S.178(1)(d) Breach of Trust +3 more

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Parties

Yanic Dufresne Excavation Inc.

Plaintiff (respondent)

Saint Joseph Developments Ltd.

Defendant

Vincent Martin Detillieux

Defendant

Albert Plant

Defendant (appellant)

Procedural Posture

Civil Appeal Re Variation of Default Judgment and Bankruptcy Survivorship Under BIA S.178(1)(d) / Appeal From Superior Court of Justice (motion to Vary Default Judgment)

Legal Issues

  1. 1 Whether the motion judge erred by admitting and relying on extrinsic/fresh evidence to make fresh findings of fact
  2. 2 Whether the statement of claim was sufficiently particularized to ground a claim of misappropriation while acting in a fiduciary capacity
  3. 3 Whether the evidence established morally unacceptable misconduct sufficient to render the debt non-dischargeable under s.178(1)(d) BIA

Ratio Decidendi

The motion judge correctly admitted and relied on fresh evidence under Rule 59.06(2) because material facts were discovered after the default judgment and the evidence could not reasonably have been obtained earlier; the amended statement of claim was sufficiently particularized to ground breach of trust/misappropriation allegations; and the admissible evidence demonstrated morally unacceptable fiduciary misconduct such that the default judgment debt survives Albert Plant’s bankruptcy under s.178(1)(d) BIA — therefore the appeal is dismissed.

Court Disposition

Appeal dismissed. Motion judge’s order varied to declare that the Default Judgment survives the bankruptcy of Albert Plant; costs awarded to respondent.

Orders

  • Default Judgment varied to include a declaration that the judgment in favour of Yanic Dufresne Excavation Inc. survives the bankruptcy of Albert Plant
  • Costs of the appeal awarded to the respondent in the amount of $11,200 inclusive of HST and disbursements