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Estates -Estate Liquidators. Gambin Estate v. Di Battista Gambin Developments Limited
In Gambin Estate v. Di Battista Gambin Developments Limited (Div Court, 2022) the Divisional Court considered a motion to remove an estate liquidator:[6] We disagree. There is normally a heavy onus on a party seeking to remove a liquidator, who is a court-appointed officer like a receiver, to demonstrate that the liquidator has engaged in blatant intentional actions contrary to the interest of one or more parties: Kraner v. Kraner, [2012] O.J. No. 4051 (Sup. Ct.), at para. 25; Canada Trustco Mortgage Co. v. York-Trillium Development Group Ltd., [1992] O.J. No. 729, at para. 5 (O.C.G.D.).
[7] There was nothing in the record to support the sinister inference urged by the appellant. The motion judge found (at para. 31), as he was entitled to do, that “Liquidator’s counsel’s action in communicating with counsel for the Estate in respect of the [motion before Gilmore J.] did not come close to the type of conduct required for removal.” It was open to the motion judge to reach this conclusion on the whole of the evidence. The absence of evidence cannot be equated with positive evidence of bad faith or wrongdoing. Moreover, concerning the drawing of adverse inferences against a responding party, it was noted by the Ontario Court of Appeal in Dwyer v. Mark II Innovations Ltd., 2006 CanLII 9406 (ON CA), [2006] O.J. No. 1189, “[a]n adverse inference should be drawn only after a prima facie case has been established by the party bearing the burden of proof.”
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