Dionisio (Trustee) v. O'Sullivan et al. (Trustees)
The Court upheld the application judge's finding that the evidence did not demonstrate a likelihood that the respondents would act contrary to plan members' interests or that members would be prejudiced, and that the appellant failed to meet the threshold required to show a likelihood of abuse of discretion;...
Source-derived case information.
- Citation
- C42112
- Parties
- Applicant/appellant: Antonio Dionisio, in his capacity as Trustee of the Labourers’ Pension Fund of Central and Eastern Canada; Respondent: Terence O'Sullivan, in his capacity as Trustee of the Labourers’ Pension Fund of Central and Eastern Canada; Respondent: Joseph Mancinelli, in his capacity as Trustee of the Labourers’ Pension Fund of Central and Eastern Canada; Respondent: Carmen Principato, in his capacity as Trustee of the Labourers’ Pension Fund of Central and Eastern Canada; Respondent: Douglas Serroul, in his capacity as Trustee of the Labourers’ Pension Fund of Central and Eastern Canada; Respondent: David D'Agostini
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 3 December 2004
- Procedural Posture
- Civil Trusts/pensions / Appeal Court of Appeal Decision
- Outcome
- Appeal dismissed
- Legal Topics
- Removal of Trustee, Interim Relief, Abuse of Discretion, Standard of Review, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Antonio Dionisio, in his capacity as Trustee of the Labourers’ Pension Fund of Central and Eastern Canada
Applicant/appellant
Terence O'Sullivan, in his capacity as Trustee of the Labourers’ Pension Fund of Central and Eastern Canada
Respondent
Joseph Mancinelli, in his capacity as Trustee of the Labourers’ Pension Fund of Central and Eastern Canada
Respondent
Carmen Principato, in his capacity as Trustee of the Labourers’ Pension Fund of Central and Eastern Canada
Respondent
Douglas Serroul, in his capacity as Trustee of the Labourers’ Pension Fund of Central and Eastern Canada
Respondent
David D'Agostini
Respondent
Procedural Posture
Civil Trusts/pensions / Appeal Court of Appeal Decision
Legal Issues
- 1 Whether the applicant established a likelihood that the respondents would act contrary to the best interests of plan members such that removal pending investigation was justified
- 2 Whether the evidence met the threshold to demonstrate a likelihood of abuse of discretion by the trustees
- 3 Whether the application judge applied the correct legal test
Ratio Decidendi
The Court upheld the application judge's finding that the evidence did not demonstrate a likelihood that the respondents would act contrary to plan members' interests or that members would be prejudiced, and that the appellant failed to meet the threshold required to show a likelihood of abuse of discretion; accordingly the appeal was dismissed.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed with costs fixed at $10,000 inclusive of G.S.T. and disbursements.
Full Case Text
Judgment text and source record
1 paragraphs
Dionisio (Trustee) v. O'Sullivan et al. (Trustees) Collection Decisions of the Court of Appeal Date 2004-12-03 Docket numbers C42112 Judges Rosenberg, Marc; Moldaver, Michael James; Simmons, Janet M. Subject Civil Decision Content DATE: 20041203 DOCKET: C42112 COURT OF APPEAL FOR ONTARIO RE: ANTONIO DIONISIO, in his capacity as Trustee of the Labourers’ Pension Fund of Central and Eastern Canada (Applicant (Appellant)) – and – TERENCE O’SULLIVAN, JOSEPH MANCINELLI, CARMEN PRINCIPATO, DOUGLAS SERROUL, in their capacities as Trustees of the Labourers’ Pension Fund of Central and Eastern Canada, and DAVID D’AGOSTINI (Respondents (Respondents in appeal) BEFORE: ROSENBERG, MOLDAVER and SIMMONS JJ.A. COUNSEL: Bryan Finlay and Marie-Andrée Vermette for the appellant David Stamp and Derek Leschinsky for the respondent HEARD & ENDORSED: December 2, 2004 On appeal from the judgment of Justice Katherine E. Swinton of the Superior Court of Justice dated July 6, 2004. APPEAL BOOK ENDORSEMENT [1] On the record before the application judge, we are not persuaded that Swinton J. erred in finding that: There is no evidence before me that the Respondents are likely to act contrary to the best interests of the Plan members, or that Plan members may be prejudiced by the Applicant’s removal as a Trustee pending the outcome of the investigations of alleged misconduct relating to the operation of the Pension Fund. [2] In particular, we agree that the evidence relied upon by the appellant did not meet the threshold of demonstrating a likelihood of abuse of discretion. In framing the issue that way, we are satisfied that Swinton J. applied the correct legal test: see Edell v. Sitzer (2001), 55 O.R. (3d) 198 (S.C.J.) at para. 177 and following, aff’d, (2004), 187 O.A.C. 189 (Ont. C.A.), and Fox v. Fox Estate (1996), 28 O.R. (3d) 496 (Ont. C.A.) at p. 517; leave refused [1996] S.C.C.A. No. 241. [3] Accordingly, the appeal is dismissed with costs fixed at $10,000 inclusive of G.S.T. and disbursements. The appellant is not seeking reimbursement out of the trust fund.