Giannotti v. Royal Bank of Canada et al., (1996) 14 O.T.C. 344 (GD)

• Judge: Hoilett, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: July 04, 1996
• Jurisdiction: Ontario
• Citations: (1996), 14 O.T.C. 344 (GD)

Giannotti v. Royal Bk. (1996), 14 O.T.C. 344 (GD)

MLB headnote and full text

Nina Giannotti (applicant) v. Royal Bank of Canada, Amex Bank of Canada, Ontario New Home Warranty Program, Medi Group Incorporated and Peter Giannotti (respondents)

(No. RE6574/96)

Indexed As: Giannotti v. Royal Bank of Canada et al.

Ontario Court of Justice

General Division

Toronto

Hoilett, J.

September 20, 1996.

Summary:

A husband and wife purchased land as tenants in common in the ratio of 99:1 in favour of the wife. The husband's judgment creditors filed writs of seizure and sale against the land. The judgment creditors refused to cooperate to facilitate the wife in obtaining a second mortgage on the land. The wife applied for an order lifting or discharging the writs excepting the husband. The judgment creditors challenged the husband's and wife's bona fides on the basis of fraudulent transfer and that they had carefully orchestrated their affairs to avoid creditors. The issue of the court's jurisdiction to grant the relief sought was raised.

The Ontario Court (General Division) concluded that it had jurisdiction to grant the relief sought. The court dismissed the application, stating that where the wife was invoking the court's equitable jurisdiction, there was an onus on her to satisfy the court as to the cleanliness of her hands. The wife failed to meet that onus.

Equity - Topic 1482

Equitable principles respecting relief - Clean hands doctrine - Application of - See paragraphs 1 to 28.

Fraud and Misrepresentation - Topic 1281

Fraudulent conveyances and preferences - Conveyances and preferences impeachable by creditors or others - Conveyances between relatives or near relatives - See paragraphs 1 to 28.

Real Property - Topic 8608

Title - Removal of encumbrances by court order - Writs of execution - See paragraphs 1 to 28.

Cases Noticed:

Martin Commercial Fueling Inc. v. Virtanen (1993), 35 R.P.R.(2d) 109 (B.C.S.C.), refd to. [para. 21].

Meadowbrook Construction Ltd. v. Greater Winnipeg Gas Co. et al. (1981), 9 Man.R.(2d) 324; 18 R.P.R. 305 (Co. Ct.), refd to. [para. 23].

Bank of Montreal v. Horan (1986), 54 O.R.(2d) 757 (H.C.), consd. [para. 26].

Statutes Noticed:

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 96, sect. 98, sect. 100 [para. 2].

Rules of Civil Procedure (Ont.), rule 14.05(3)(e), rule 14.05(3)(h) [para. 2].

Authors and Works Noticed:

Anger and Honsberger, The Canadian Law of Real Property (2nd Ed. 1985), vol. 2 [para. 21].

Bennett, Frank, Creditors' and Debtors' Rights and Remedies (3rd Ed.), pp. 151, 152 [para. 25].

C.E.D. - see Canadian Encyclopedic Digest.

Canadian Encyclopedic Digest, para. 66 [para. 25].

Counsel:

Alvin M. Meisels, for the applicant;

Netanus T. Rutherford, for Ontario New Home Warranty Program;

James Klein, for the Medi Group.

This application was heard on July 4, 1996, before Hoilett, J., of the Ontario Court (General Division), who delivered the following judgment on September 20, 1996, at Toronto, Ontario.