





CITATION: Edgecastle Holdings
      Inc. v. Fingold, 2011 ONCA 296



DATE:  20110413



DOCKET: C53030



COURT OF APPEAL FOR ONTARIO



Doherty, Moldaver and Feldman JJ.A.



BETWEEN



Edgecastle Holdings Inc. and Portedge Holdings Inc.



Plaintiffs/Appellants



and



Roslyn Fingold, Brian Rowley, Mimarco Investments Ltd.,
          2005650 Ontario Inc. and 1284953 Ontario Inc.



Defendants/Respondents in Appeal



J. Gardner Hodder, for the plaintiffs/appellants



Fred Tayar and Colby Linthwaite, for the defendants/respondents



Heard:  April 12, 2011



On appeal from the order of Justice Pepall of the Superior
          Court of Justice dated November 2, 2010.



APPEAL BOOK ENDORSEMENT



[1]

We would dismiss the appeal.  It is accepted that Katzs trustee had
    knowledge of the facts underlying this claim in issue as of September 2004 (see
    endorsement of motion judge at para. 5).  It is also accepted that the trustee
    could have taken steps to bring the claim forward but did not do so.

[2]

The motion judge properly held that the limitation period as it applied
    to the claim the appellant corporation now brings had expired in September
    2006, two years after the trustee had the requisite knowledge.

[3]

The fact that Mr. Morra acquired control of the appellant corporation
    sometime later does not affect the running of the limitation period as against
    the appellant corporation.

[4]

Like the motion judge, we do not reach the alternative argument.  We
    should not be taken as accepting that a party to a fraudulent conveyance can
    subsequently move to set that conveyance aside.  Under the authority of
Bank
    of Montreal v. Bray
(1997), 36 O.R. (3d) 99, the transaction is void
    against creditors but is valid as between the parties to the transaction.

[5]

The appeal is dismissed.  Costs to the respondent in the amount of
    $5,000, inclusive of disbursements and HST.


