Court of Appeal for Ontario

Citation: Royal Bank of Canada v. Hejna, 2014 ONCA 306

Date: 20140417

Docket: C56944

Judges: Blair, Epstein and van Rensburg JJ.A.

Between

Royal Bank of Canada Respondent/Plaintiff

and

Roland Hejna Appellant/Defendant

Counsel: Robert A. Klotz, for the appellant Martin Greenglass for the respondent

Heard: April 16, 2014

On appeal from the judgment of Justice Susan E. Healey of the Superior Court of Justice, dated March 21, 2013.

APPEAL BOOK ENDORSEMENT

[1] Mr. Hejna seeks to set aside a summary judgment granted by Healey J. awarding RBC approximately $6 million and declaring that the judgment was a judgment in fraud and therefore survives Mr. Hejna’s discharge from bankruptcy.

[2] The central issue on the appeal turns on the appellant’s argument that he did not receive proper production from the bank, and that the record was therefore insufficient on which to base a summary judgement because it was necessary for the trial judge to find that the appellant had the necessary intent for fraud.

[3] What was involved was essentially a large cheque-kiting scheme, which the appellant defends on the basis that what took place was at least implicitly authorized or permitted by the bank.

[4] The motion judge reviewed the record and evaluated the evidence on the basis of the “full appreciation” test set out in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764.

[5] Leaving aside the issue of production, which raises a question of law, we are not satisfied that the motion judge erred in her findings based on the application of Combined Air. The more recent decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7 limits our ability to review the decision on issues of fact or of mixed fact and law even further.

[6] We do not accept the argument founded on the bank’s alleged failure to make adequate production. There is a long history to this litigation, including an earlier successful appeal to this court setting aside an earlier default judgment, and much has been said about who is to blame for what periods of delay. Suffice it to say, however, that the appellant had over six years to bring a production motion that would force the issue and enable him “to put his best foot forward” as required by the jurisprudence. The reality is that no such motion was brought until the late afternoon of two days before the summary judgment motion was to be heard (the second summary judgment date made peremptory to the appellant). We see no error in the motion judge’s decision not to accept the motion, in the circumstances. There was no request for an adjournment.

[7] In conclusion, the motion judge’s decision was amply supported on the record with respect to each of the issues of liability, fraud and production. The appeal is therefore dismissed.

[8] Costs of the appeal to the respondent fixed at $31,231.53 all-inclusive on a substantial indemnity scale given the allegation of fraud.