



COURT OF APPEAL FOR ONTARIO

CITATION: Bienstock v. Adenyo Inc., 2015 ONCA 310

DATE: 20150505

DOCKET: C59395

Simmons, Gillese and Rouleau JJ.A.

BETWEEN

Terry S. Bienstock

Plaintiff (Respondent)

and

Adenyo Inc., 7539088 Canada
Inc., Adenyo Acquisition Sub Inc., Adenyo USA Inc., Michael Orr, Michael
OConnor, Paul Heney, Tyler Nelson, David Wilson and Dennis Kavelman

Defendants (Appellants)

Alan L. W. DSilva and Aaron Kreaden, for the appellants

Ruzbeh Hosseini, for the respondent

Heard: April 27, 2015

On appeal from the judgment of Justice James A. Ramsay of
the Superior Court of Justice, dated August 29, 2014, with reasons reported at
2014 ONSC 4997.

ENDORSEMENT



[1]

The motion judge granted summary judgment to the
respondent against the corporate appellants, permitting the respondent to
enforce a Delaware judgment against the corporate appellants in Ontario.

[2]

The Delaware judgment required the corporate
appellants to pay to the respondent a sum in excess of USD$3 million.

[3]

In addition, based on a finding that a
fraudulent transfer of assets to Adenyo Inc. had taken place, the Delaware
judgment imposed a constructive trust in favour of the respondent over the
proceeds of sale of the assets of the corporate appellants to Motricity, Inc., including,
without limitation, the proceeds that remain in the possession of any and all
of [the corporate appellants] until such time as the full amount owing under
the judgment is paid by the corporate appellants.

[4]

The appellants appeal from the portion of the
summary judgment permitting the respondent to enforce the order for a
constructive trust in Ontario. Their primary argument is that the motion judge
failed to consider the impact of the order for a constructive trust on the
rights and interests of third parties  namely, the personal defendants (all of
whom are or were officers, directors or shareholders of one or more of the
corporate appellants) and other shareholders of the recently amalgamated
corporate appellant, 7539088 Canada Inc. The appellants contend that because of
this error the motion judges consideration of several of the
Pro
Swing
[1]
factors was flawed.

[5]

We do not
accept these submissions. The motion judges reasons demonstrate that he was
alive to the possibility that permitting the order for a constructive trust to
be enforced in Ontario had the potential to impact on the rights of third parties.
We see no basis on which to interfere with the motion judges exercise of
discretion. He granted summary judgment only against the corporate appellants. In
these circumstances, and on the record before him, the possibility that the
order for a constructive trust could be enforced in Ontario in a manner that is
unfair or unjust to third parties was entirely speculative. We see no error in
the motion judges consideration of the
Pro Swing
factors.

[6]

Costs of the
appeal are to the respondent on a partial indemnity scale fixed in the amount
of $25,000 inclusive of disbursements and applicable taxes.

Janet Simmons J.A.

Eileen E. Gillese J.A.

Paul
Rouleau J.A.






[1]

Pro Swing Inc. v. Elta Golf Inc.
, 2006 SCC 52, [2006] 2 S.C.R. 612.



