



COURT OF APPEAL FOR ONTARIO

CITATION: Klein v. Dick, 2016 ONCA 8

DATE: 20160106

DOCKET: C60622

Doherty, MacPherson and van Rensburg JJ.A.

BETWEEN

Ester Klein and Willy (Vilmos) Klein

Plaintiffs (Appellants/

Respondents to the cross-appeal)

and

Charles Dick
,
Esther Dick
, Joel Dick, 8800383 Canada Inc.,
ABC Variety Services
,
ABC Variety
and
Jamarmy Financial Services

Defendants (Respondents/

Appellants by way of cross-appeal
)

M. Michael Title and Patricia Virc, for the appellants/respondents
    by way of cross-appeal

Fred Tayar and Colby Linthwaite, for the respondents
    Joel Dick and 8800383 Canada Inc.

James Clark, for the respondents/appellants by way of
    cross-appeal Charles Dick, Esther Dick, ABC Variety Services, ABC Variety and
    Jamarmy Financial Services

Heard: December 18, 2015

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated May 19, 2015.

ENDORSEMENT

[1]

The appellants, Ester and Willy Klein, lent Charles and Esther Dick
    money for their ATM business through a series of promissory notes. After the
    Dicks business partners brought an action for misappropriation of funds, the
    appellants brought an action to enforce the promissory notes. They also brought
    an action for a declaration that certain mortgages received by the respondents
    Joel Dick and 8800383 Canada Inc. were fraudulent conveyances under the
Fraudulent
    Conveyances Act
(
FCA
).

[2]

The motion judge dismissed the appellants fraudulent conveyance claim
    against the respondents for the same reasons as those given in the companion
    case,
2057552 Ontario Inc. v. Dick
. The motion judge also granted
    summary judgment to the appellants on the promissory notes claims for the full
    value of the notes, $710,000.

[3]

The appellants appeal and the respondents cross-appeal the motion
    judges decision.

The appeal

[4]

The appellants contend that the motion judge failed to properly assess
    the advisability of the summary judgment process in dismissing the appellants
    fraudulent conveyance claim when those defendants had not moved for summary
    judgment.

[5]

We disagree. The appellants brought a summary judgment motion, asserting
    that there was no genuine issue requiring a trial, among other things, in respect
    of their fraudulent conveyance claim. The case law is clear that summary
    judgment may be granted against the moving party in the absence of a motion
    from the responding party: see, for example,
Hunter-Rutland Inc. v.
    Huntsville (Town)
, 2015 ONCA 353, at para. 5. Once the motion judge made
    the essential findings of fact with respect to the fraudulent conveyance claim
    (that there was no fraud and no intent to defeat creditors), his dismissal of
    that claim was inevitable.

[6]

Second, the appellants contend that the motion judges reasons and
    disposition on the fraudulent conveyance issue were flawed.

[7]

For the reasons in
2057552 Ontario Inc. v. Dick
, we reject this
    submission.

The cross-appeal

[8]

The respondents contend that the motion judge erred by fixing the
    quantum of damages and by not staying the remainder of the action to allow for
    arbitration.

[9]

We disagree. There was no reason for the motion judge not to fix the
    quantum of damages relating to the promissory notes. However, we accept the respondents
    fair concession that the proper amount is $650,000, not $710,000. We also do
    not see any reason, at this juncture, to send the parties down a different path
    in this litigation.

Disposition

[10]

The
    appeal is dismissed. The cross-appeal is allowed, but only to the extent of
    changing the damages to $650,000 from $710,000. The respondents are entitled to
    their costs of the appeal fixed at $18,000, inclusive of HST and disbursements.
    The appellants are entitled to their costs of the cross-appeal fixed at $4,000,
    inclusive of disbursements and HST.

Doherty
    J.A.

J.C.
    MacPherson J.A.

K. van
    Rensburg J.A.


