



COURT OF APPEAL FOR ONTARIO

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

DATE: 20140417

DOCKET: C56944

Blair, Epstein and van Rensburg JJ.A.

BETWEEN

Royal Bank of Canada

Respondent/Plaintiff

and

Roland Hejna

Appellant/Defendant

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. Hejnas discharge from bankruptcy.

[2]

The central issue on the appeal turns on the appellants 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 banks 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 judges decision not to accept
    the motion, in the circumstances. There was no request for an adjournment.

[7]

In conclusion, the motion judges 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.


