COURT OF APPEAL FOR ONTARIO
Doherty, Tulloch and Benotto JJ.A.
BETWEEN
Bayerische Landesbank Girozentrale
Plaintiff (Respondent/Appellant by way of cross-appeal)
and
Grant Thornton Limited, Trustee of the Estate of Helmut Sieber, A Bankrupt, Helga Sieber, H.J. Sieber Farms Ltd. and Rosen Ridge Farms Ltd.
Defendants (Appellant/Respondent by way of cross-appeal)
Counsel:
Benjamin Bathgate and Samantha Gordon, for Bayerische Landesbank Girozentrale
H. Cohen and A. Wilford, for Rosen Ridge Farms Ltd.
Heard: May 24, 2016
On appeal from the judgment and vesting order of Justice E.M. Morgan, of the Superior Court of Justice, dated September 25, 2015.
APPEAL BOOK ENDORSEMENT
1The respondent on the cross-appeal seeks an adjournment indicating that a motion will be brought before the trial judge to set aside the judgment on the basis on evidence discovered after the judgment.
2The respondent has not filed any material on the merits of the cross-appeal but does not seek an adjournment to file material.
3We see no reason to adjourn the cross-appeal. It may be helpful if the terms of the trial judgment are fully settled before the next round of litigation in the trial court.
4We would allow the cross-appeal in part.
5First, in respect of the trial judge’s deletion of the word “sham” from para. 1 of the judgment, we see no error. The trial judge declared that the transaction was void. His reason for the declaration, i.e. because the trust was a sham, is clearly set out in his reasons for judgment. He made no error in deleting the factual finding upon which the declaration in para. 1 of the order was based from the terms of the judgment granting the declaration. The relief requested in para. 42(a)(i) of the cross-appellant’s factum is refused.
6In respect of the trial judge’s deletion of the accounting and seizure remedies from the draft judgment, we accept the submission that the cross-appellant was entitled to that relief, but as against the defendant, Rosen Ridge Farms, only and not as against Helmut Sieber who was not a party to the trial.
7The relief requested by the cross-appellant at paras. 42(a)(i) and 42(a)(iii) of its factum should be granted save that the reference to Helmut Sieber should be deleted.
8The cross-appeal is allowed per the terms of this endorsement and the trial judgment should be varied accordingly.
9The cross-appellant is entitled to costs on the cross-appeal. However, those costs are tempered by the “mixed” result and the relatively uncomplicated nature of the cross-appeal once the cross-appellant conceded that the order could not be made against Mr. Sieber. Costs are awarded in the amount of $5,000, inclusive of disbursements and applicable taxes.
