DATE: 20040324

DOCKET: C40554

COURT OF APPEAL FOR ONTARIO

RE:

MOSTAFA KHAYERI (Plaintiff (Appellant)) – and – MOSTAFA SHAYANGOGANI, NASRIN HAKIMZADEH, BORIS PIESOK AND ISABELLA PIESOK (Defendants (Respondents))

BEFORE:

SIMMONS, ARMSTRONG JJ.A. AND LANE J. (AD HOC)

COUNSEL:

Bruce C. Robertson

for the appellant

Lawrence F. Wallach

for the respondent Boris Piesok

HEARD & ENDORSED:

March 23, 2004

On appeal from the order of Justice Emile R. Kruzick of the Superior Court of Justice dated August 13, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] The motion judge concluded that there was no evidentiary foundation for the appellant’s claim that the respondent’s mortgage amounted to a fraudulent conveyance or that the surrounding circumstances are capable of giving rise to an inference of fraud. We see no error in the motion judge’s conclusion and in fact we agree that the evidence is not capable of supporting an inference of fraud.

[2] The appeal is accordingly dismissed. Costs to the respondents fixed at $14,000 on a partial indemnity basis inclusive of disbursements and applicable G.S.T.