



COURT OF APPEAL FOR ONTARIO

CITATION: Bayerische
    Landesbank Girozentrale v. Grant Thornton Limited, 2016 ONCA 399

DATE: 20160525

DOCKET: C59939

Doherty, Tulloch and Benotto JJ.A.

BETWEEN

Bayerische Landesbank Girozentrale

Plaintiff (
Respondent/Appellant by way of cross-appeal
)

and

Grant Thornton Limited, Trustee of the Estate of Helmut Sieber, A
    Bankrupt, Helga Sieber, H.J. Sieber Farms Ltd. and
Rosen Ridge Farms
    Ltd.

Defendants (
Appellant
/Respondent by way of
    cross-appeal
)

Benjamin Bathgate and Samantha Gordon, for
Bayerische Landesbank
    Girozentrale


H. Cohen and A. Wilford, for Rosen Ridge Farms Ltd.

Heard:  May 24, 2016

On appeal from the judgment and vesting order of Justice E.M.
    Morgan, of the Superior Court of Justice, dated September 25, 2015.

APPEAL BOOK ENDORSEMENT

[1]

The respondent on the cross-appeal seeks an adjournment indicating that
    a motion will be brought before the trial judge to set aside the judgment on the
    basis on evidence discovered after the judgment.

[2]

The respondent has not filed any material on the merits of the
    cross-appeal but does not seek an adjournment to file material.

[3]

We see no reason to adjourn the cross-appeal.  It may be helpful if the
    terms of the trial judgment are fully settled before the next round of
    litigation in the trial court.

[4]

We would allow the cross-appeal in part.

[5]

First, in respect of the trial judges deletion of the word sham from
    para. 1 of the judgment, we see no error.  The trial judge declared that the
    transaction was void.  His reason for the declaration, i.e. because the trust
    was a sham, is clearly set out in his reasons for judgment.  He made no error
    in deleting the factual finding upon which the declaration in para. 1 of the
    order was based from the terms of the judgment granting the declaration.  The
    relief requested in para. 42(a)(i) of the cross-appellants factum is refused.

[6]

In respect of the trial judges deletion of the accounting and seizure
    remedies from the draft judgment, we accept the submission that the
    cross-appellant was entitled to that relief, but as against the defendant,
    Rosen Ridge Farms, only and not as against Helmut Sieber who was not a party to
    the trial.

[7]

The relief requested by the cross-appellant at paras. 42(a)(i) and
    42(a)(iii) of its factum should be granted save that the reference to Helmut
    Sieber should be deleted.

[8]

The cross-appeal is allowed per the terms of this endorsement and the
    trial judgment should be varied accordingly.

[9]

The cross-appellant is entitled to costs on the cross-appeal.  However,
    those costs are tempered by the mixed result and the relatively uncomplicated
    nature of the cross-appeal once the cross-appellant conceded that the order
    could not be made against Mr. Sieber.  Costs are awarded in the amount of
    $5,000, inclusive of disbursements and applicable taxes.


