



COURT OF APPEAL FOR ONTARIO

CITATION: Central Lumber Limited v. Gentile,
    2020 ONCA 719

DATE: 20201109

DOCKET: C67577

Feldman, Simmons and Harvison
    Young JJ.A.

BETWEEN

Central Lumber Limited operating as Central Fairbank Lumber

Plaintiff (Respondent)

and

Giorgio Gentile also
    known as George Gentile, Gentile & Associates Wealth and Estate Planning
    Group Inc., Gentile & Assoc. Paralegal Corporation,
Leopoldo Gallo
also known as Peter Gallo, also known as Leo Gallo, Sergey Shtefanyuk, also
    known as Sergey Stefanyuk and 1846666 Ontario Inc.

Defendants (
Appellant
)

R. Lee Akazaki, for the appellant

Jeffrey Long and Leona Kung, for the
    respondent

Heard and released orally: November 5, 2020

On
    appeal from the judgment of Justice Shaun OBrien of the Superior Court of
    Justice, dated October 8, 2019, with reasons reported at 2019 ONSC 7413.

REASONS FOR DECISION

[1]

The appellant is the owner of a large residence
    being constructed. The respondent is the lumber supplier to the contractor
    1846666 Ontario Inc. (184).

[2]

The appellant appeals from the order of the
    trial judge that: 1) he is Peter who controls the contractor 184; 2) the bank
    draft for the amount owed to the respondent lumber supplier by 184 constituted
    a payment from the appellant as owner to the appellant as contractor; 3) as a
    result, the payment was impressed with a trust under s. 8 of the
Construction
    Lien Act
;
R.S.O. 1990, c.
    C.30,
4) 184 was in breach of trust by
    failing to pay the respondent; and 5)
the appellant is personally
    liable under s. 13 for the breach of trust.

[3]

The appellant challenges the clear finding of
    fact by the trial judge that the person representing 184 to the respondent who
    calls himself Peter is the appellant. This finding was amply supported by the
    record. There is no basis to interfere with it.

[4]

The appellant also argues that the trial judge erred
    in law in her application of s. 8 and s. 13 of the
Construction Lien Act
.
    We do not agree.

[5]

We agree with the analysis by the trial judge
    that the appellants provision of the bank draft in the exact amount owed to
    the respondent plus 3% commission, from his account to the paralegal firm
    account, and which was shown to the respondent to demonstrate that 184 had the
    funds to pay it, constituted receipt by 184 under s. 8 (1)(b) of the
Construction
    Lien Act
.

[6]

Further, there is no basis to interfere with the
    trial judges further finding that the appellant had effective control of 184
    and thereby acquiesced in the breach of trust by 184 by failing to pay the
    respondent, and is thereby personally liable under s. 13 of the Act.

[7]

The appeal is dismissed with costs including
    disbursements fixed at $25,000 plus HST.

K. Feldman J.A.

Janet Simmons J.A.

Harvison Young J.A.


