Court File and Parties

CITATION: Edgecastle Holdings Inc. v. Fingold, 2011 ONCA 296

DATE: 20110413

DOCKET: C53030

COURT OF APPEAL FOR ONTARIO

Doherty, Moldaver and Feldman JJ.A.

BETWEEN

Edgecastle Holdings Inc. and Portedge Holdings Inc.

Plaintiffs/Appellants

and

Roslyn Fingold, Brian Rowley, Mimarco Investments Ltd., 2005650 Ontario Inc. and 1284953 Ontario Inc.

Defendants/Respondents in Appeal

Counsel: J. Gardner Hodder, for the plaintiffs/appellants Fred Tayar and Colby Linthwaite, for the defendants/respondents

Heard: April 12, 2011

On appeal from the order of Justice Pepall of the Superior Court of Justice dated November 2, 2010.

APPEAL BOOK ENDORSEMENT

[1] We would dismiss the appeal. It is accepted that Katz’s trustee had knowledge of the facts underlying this claim in issue as of September 2004 (see endorsement of motion judge at para. 5). It is also accepted that the trustee could have taken steps to bring the claim forward but did not do so.

[2] The motion judge properly held that the limitation period as it applied to the claim the appellant corporation now brings had expired in September 2006, two years after the trustee had the requisite knowledge.

[3] The fact that Mr. Morra acquired control of the appellant corporation sometime later does not affect the running of the limitation period as against the appellant corporation.

[4] Like the motion judge, we do not reach the alternative argument. We should not be taken as accepting that a party to a fraudulent conveyance can subsequently move to set that conveyance aside. Under the authority of Bank of Montreal v. Bray (1997), 1997 CanLII 545 (ON CA), 36 O.R. (3d) 99, the transaction is void against creditors but is valid as between the parties to the transaction.

[5] The appeal is dismissed. Costs to the respondent in the amount of $5,000, inclusive of disbursements and HST.