COURT OF APPEAL FOR ONTARIO

CITATION: Bayerische Landesbank Girozentrale v. Grant Thornton Limited, 2016 ONCA 399

DATE: 20160525

DOCKET: C59939

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

[1] The 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.

[2] The respondent has not filed any material on the merits of the cross-appeal but does not seek an adjournment to file material.

[3] We 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.

[4] We would allow the cross-appeal in part.

[5] First, 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.

[6] In 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.

[7] The 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.

[8] The cross-appeal is allowed per the terms of this endorsement and the trial judgment should be varied accordingly.

[9] The 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.