Giannotti v. Royal Bank of Canada et al., (1997) 104 O.A.C. 79 (CA)

• Judge: Abella, Rosenberg and Moldaver, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 10, 1997
• Jurisdiction: Ontario
• Citations: (1997), 104 O.A.C. 79 (CA)

Giannotti v. Royal Bk. (1997), 104 O.A.C. 79 (CA)

MLB headnote and full text

Temp. Cite: [1997] O.A.C. TBEd. OC.038

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

(Court File No. C25740)

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

Ontario Court of Appeal

Abella, Rosenberg and Moldaver, JJ.A.

October 10, 1997.

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 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), in a decision reported at 14 O.T.C. 344, con­cluded that it had jurisdiction to grant the relief sought, but dismissed the application. The wife appealed.

The Ontario Court of Appeal dismissed the appeal, but stated that neither the application nor the trial judge's reasons were dispositive of the issues respecting ownership interests.

Equity - Topic 1482

Equitable principles respecting relief - Clean hands doctrine - Application of - A husband and wife purchased land as ten­ants in common in the ratio of 99:1 in the wife's favour - His judgment creditors filed writs of seizure and sale against the land and refused to facilitate the wife in obtaining a second mortgage - The wife sought an order lifting or discharging the writs excepting the husband - The credi­tors challenged the husband's and wife's bona fides on the basis of fraudulent transfer and orchestration of affairs to avoid credi­tors - The trial judge concluded that the court had jurisdiction to grant the relief sought, but denied relief, where the wife did not establish that she had clean hands - The Ontario Court of Appeal dismissed the wife's appeal, but stated that neither the application nor the trial judge's reasons were dispositive of the issues respecting ownership interests.

Fraud and Misrepresentation - Topic 1281

Fraudulent conveyances and preferences - Conveyances and preferences impeachable by creditors or others - Conveyances be­tween relatives or near relatives - [See Equity - Topic 1482 ].

Real Property - Topic 8608

Title - Removal of encumbrances by court order - Writs of execution - [See Equity - Topic 1482 ].

Counsel:

Alvin M. Meisels (Pascale, Zentil), for the applicant/appellant;

Brian Morris (Morris and Morris), for the respondent, Medi Group Inc.

This appeal was heard in Toronto, Ontario, before Abella, Rosenberg and Moldaver, JJ.A., of the Ontario Court of Appeal.

Abella, J.A., delivered judgment for the court on October 10, 1997, and filed the following decision on December 5, 1996.