2010 ONSC 6734, 2010 ONSC 6734

CITATION: Re Roland Christoph Hejna, 2010 ONSC 6734 Court File No. 32-1407538 Date: 20101207 SUPERIOR COURT OF JUSTICE ONTARIO IN THE MATTER OF THE BANKRUPTCY OF ROLAND CHRISTOPH HEJNA HEARD: November 30, 2010 BEFORE: C. Campbell J. COUNSEL: Robert Klotz for Rolan Christoph Hejna Martin Greenglass for Royal Bank of Canada J.

Dietrich for the Receiver E N D O R S E M E N T [1] The bankrupt Christoph Hejna appeals from a decision of the Registrar dated October 25, 2010 wherein the Registrargranted leave to the Royal Bank of Canada to continue to prosecute the action it has commenced against the bankrupt, which claims over$6 million, alleging among other matters fraud based on cheque kiting. [2] Mr.

Klotz concedes that the decision of the Registrar under s. 69.4 involved the exercise of discretion on his part and not anerror in law. [3] Rather, it is urged that the Registrar failed to weigh all the evidence in reaching the conclusion that the Royal Bank wouldbe materially prejudiced by the continuing operation of ss. 69 to 69.31 of the Bankruptcy & Insolvency Act and did not consider fairly theequitable grounds which favour the bankrupt, namely his impecuniosity and the imminence of the

summary judgment motion in theaction, which has been scheduled for December 22, 2010. [4] I have reviewed the material filed before the Registrar and am satisfied, particularly since the matter is discretionary, thatthere is no basis to interfere with the exercise of his discretion. [5] I agree with Mr. Klotz to the extent that the reasons are somewhat cryptic. However, when one considers the reasonsagainst the history included in the material before him, there is more than adequate support. [6] The Royal Bank action had been outstanding for some time and it was only following the scheduling of the

summaryjudgment motion that Mr. Hejna declared personal bankruptcy. [7] The other ground on which Mr. Klotz argues that as a matter of equity, the Registrar and this Court should take intoconsideration at the very least adding conditions to the leave to permit what is suggested is an orderly process of the

summary judgmentmotion given the impecuniosity of the bankrupt. No substantial evidence of impecuniosity was before the Registrar and even if therewere some evidence, in my view the Registrar was entitled to consider that issue in all the circumstances. [8] Numerous cases have dealt with the standard of review on appeal from the Registrar. The test is succinctly stated in Impact Tool & Mould (Trustee of) v.

Impact Tool & Mould (Interim Receiver of), (ON CA), 20 C.B.R. (5th) 220 C.A.: An appeal of the registrar's order will be allowed where it is demonstrated that the registrar erred in principle or in law or failed to takeinto account a proper factor or took into account an improper factor, which led to a wrong conclusion. [See also "Bankruptcy & Insolvency," Law of Canada, 4th ed., Revised Vol. 3, Carswell (looseleaf) at P 7-102.][1] [9] I am satisfied that in addition to this being a matter of discretion, there was ample evidence on which the Registrar couldfind sufficient material prejudice to the Royal Bank to justify lifting the stay and the lack of equitable grounds to deny it, including thesuggested inability of the bankrupt to defend. (See Re MA, (ON CA), [2001] O.J.

No. 1189 (C.A.) paragraph 2 and

Re Cataha (2003), (ON SC), 40 C.B.R. (4th) 3.) [10] The appeal is dismissed. As agreed by counsel, costs of $1500 are awarded to the Royal Bank, to be paid forthwith. C. CAMPBELL J. Released: