Avrum David Slodovnick

The appellant appealed an order dismissing his motion to set aside a consent order that had amended a default judgment against him to include declarations of fraud.

The bank had originally obtained default judgment for a debt based on a personal guarantee, without pleading fraud.

Later, the bank moved under Rule 59.06 to add declarations of fraud, to which the appellant consented based on his solicitor's misunderstanding.

The Court of Appeal allowed the appeal, finding that the motion judge misapprehended the evidence regarding the solicitor's mistake and the bank's reliance on the appellant's representations.

The Court also held that Rule 59.06 cannot be used to amend a judgment to grant relief that was never sought in the original pleadings.

The moving party brought a motion for security for costs of an appeal under rule 61.06(1).

The responding party, who had made a consumer proposal in bankruptcy, was appealing a decision that refused to set aside a consent order converting a default judgment into a judgment in fraud.

The responding party argued he consented to the order due to his former solicitor's misunderstanding and failure to explain the consequences.

The Court of Appeal dismissed the motion, finding that although the responding party was impecunious, his appeal was not plainly devoid of merit and he should not be deprived of the opportunity to have his claim adjudicated.

The respondent lawyer acted for a purchaser in a fraudulent real estate transaction and delivered a trust cheque payable to the true owner.

The fraudster forged the endorsement and deposited the cheque into an account at the appellant bank.

The respondent sued the appellant bank for conversion and was granted summary judgment.

On appeal, the Court of Appeal affirmed the decision, holding that under the Supreme Court's ruling in Boma, a collecting bank is strictly liable in conversion for paying out on a forged endorsement.

The court rejected the bank's defences under the Bills of Exchange Act, finding the payee was not fictitious and the bank was not a holder in due course.

The appellant landlord appealed a decision finding that the respondent tenant, who operated a gas bar in a commercial plaza, was not required to share in the costs of maintaining common facilities.

The application judge had found the lease required payment but was amended by subsequent conduct.

The Court of Appeal dismissed the appeal and allowed the tenant's cross-appeal, holding that the lease was unambiguous and, properly interpreted, did not require the tenant to contribute to common facilities maintenance costs.