





CITATION:
Royal Bank of Canada v. Hejna, 2012 ONCA 27



DATE: 20120113



DOCKET: C53542



COURT OF APPEAL FOR ONTARIO



Weiler, Armstrong and Rouleau JJ.A.



BETWEEN:



Royal Bank of Canada



Plaintiff (Respondent)



and



Roland Hejna



Defendant (Appellant)



Robert Klotz, for the appellant



Martin Greenglass, for the respondent



Heard and released orally: January 9, 2012



On appeal from the order of Justice
          Susan E. Healey of the Superior Court of Justice, dated March 10, 2011.



ENDORSEMENT



[1]

We are all of the opinion that the appeal should be allowed.  The
    motions judge failed to consider the proportionality of granting the banks
    motion to strike Mr. Hejnas defence for failure to pay $3,000 in costs in an
    action for almost seven million dollars in fraud which had been allowed to
    proceed despite Mr. Hejnas bankruptcy.  In addition the motions judge failed
    to consider the possibility of an adjournment particularly in light of the fact
    that Mr. Hejna had been out of the country since service of the motion.  There
    is no evidence of prejudice to the bank.  The costs order of $3,000 has been
    paid.

[2]

Accordingly the appeal is allowed and the order of the motions judge
    striking Mr. Hejnas statement of defence for failure to pay $3,000 in costs is
    set aside.  In addition, the order granting the bank default judgment on March
    18, 2011 is set aside.

[3]

Mr. Hejna concedes that he should pay the costs of the motion that the bank
    was invited to bring in the event that the $3,000 costs had not been paid by
    February 15, 2011.  The costs of that motion were fixed in the amount of $1,500. 
    Insofar as the costs of the appeal are concerned, we award those costs to Mr.
    Hejna and fix the costs of the appeal in the amount of $8,000.  The costs of
    the motion are to be set off against the costs of appeal with the result that
    $6,500 in costs are awarded to Mr Hejna inclusive of all disbursements and
    applicable taxes.

K.M. Weiler
    J.A.

R.P.
    Armstrong J.A.

Paul Rouleau
    J.A.


