



COURT OF APPEAL FOR ONTARIO

CITATION: Pezzack Financial Services Inc. v. Raso, 2019 ONCA
    517

DATE: 20190620

DOCKET: C65849

Juriansz, van Rensburg and Paciocco JJ.A.

BETWEEN

Pezzack Financial Services Inc.

Creditor (Respondent)

and

Frank Raso

Debtor

and

Carlo Colacci

Garnishee

Ronald B. Moldaver, Q.C., for the appellants, Chanel
    Holdings Ltd. and 1598356 Ontario Inc.

Evan L. Tingley, for the respondent

Heard: June 17, 2019

On appeal from the judgment of Justice Markus Koehnen of
    the Superior Court of Justice, dated August 23, 2018.

REASONS FOR DECISION

[1]

The appellants appeal from the motion judges decision that the
    respondent Pezzack Financial Services Inc., (Pezzack), is entitled to the
    proceeds of the settlement of a mortgage action held in escrow pursuant to its
    Notice of Garnishment served on the mortgagor. The Garnishee, Frank Raso, was
    the assignee of the mortgage.

[2]

The appellants, Chanel Holdings Ltd., (Chanel), and 1598356 Ontario
    Ltd., (159), brought a motion resisting the garnishment on the basis that Raso
    held the mortgage in trust for 159 pursuant to an express or a resulting trust.
    They claimed the money should be paid out to them instead of to Pezzack.

[3]

There is no basis for disturbing the motion judges finding the claimed
    express trust was a sham. He applied the proper legal principles and his
    conclusion is amply supported by the evidence of the parties post-declaration
    conduct.

[4]

Counsel argues that, in any event, Chanel on behalf of 159, not Raso,
    paid the assignor for the assignment of the mortgage. Consequently, he submits
    there is a resulting trust in favour of 159. These are not the circumstances in
    which a resulting trust may be found. In any event, any presumption of a resulting
    trust is rebutted by Rasos rejected claim of an express trust and the motion
    judges finding that he used himself, Chanel and 159 interchangeably as it
    suited him.

[5]

The appeal is dismissed. Costs are fixed in favour of the respondent in
    the amount of $10,000.00 all-inclusive as agreed by the parties.

R.G. Juriansz J.A.

K. van Rensburg J.A.

David M. Paciocco J.A.


