COURT OF APPEAL FOR ONTARIO

CITATION: Hendrix v. Award Financing Corporation, 2012 ONCA 340

DATE: 20120522

DOCKET: C53450

Weiler, Blair and Rouleau JJ.A.

BETWEEN

Cecil Hendrix, Agatha Lyczek and FFL Vacations Ltd.

Plaintiffs/Appellants

and

Award Financing Corporation and Peter Majidi and 1558620 Ontario Inc.

Defendants/Respondents

Counsel:

Jeffrey Radnoff and Andrea Lutzeier, for the appellants

Lubomir Poliacik, for the respondents

Heard: May 17, 2012

On appeal from the judgment of Justice R.E. Mesbur of the Superior Court of Justice, dated February 22, 2011.

APPEAL BOOK ENDORSEMENT

[1] Counsel for Mr. Majidi concedes that, notwithstanding the conclusions of Pepall J. in an earlier injunction motion in the proceeding, Mr. Majidi was and remains willing to, and will, return the shares in Award to the individual appellants once the principle underlying debt owed to him is paid in full. Given that undertaking, we do not accept Mr. Radnoff’s careful argument that Mr. Majidi’s retention of the shares in satisfaction of the appellant pledgors’ obligation to pay the loan in the event of default effectively forecloses and extinguishes the debt itself. We agree with the conclusion of Mesbur J. in that regard.

[2] With respect to the question of whether Mr. Majidi had notice of the Award guarantee to Ms. Lyczek, it was open to Mesbur J. to make the findings she did on the record and we see no basis for interfering with those findings or with her disposition of the action otherwise.

[3] The appeal is therefore dismissed. Costs payable to the respondent are fixed in the amount of $9,500 inclusive of disbursements and all applicable taxes.