Martin Sclisizzi

A Teva employee fraudulently requisitioned and deposited 63 cheques into accounts under names matching or resembling real customers.

The majority held the collecting banks were liable in conversion because the payees were neither fictitious nor non-existing under s. 20(5) of the Bills of Exchange Act.

The Court restored the motions judge’s decision and rejected the banks’ false-payee defence.

Following a successful pleadings motion that struck the claims against the defendant Empire Pace without leave to amend, the defendant sought partial indemnity costs of approximately $60,000.

The plaintiff argued the amount was excessive and suggested $25,000.

The court rejected the plaintiff's argument that the defendant's costs should be limited by the plaintiff's own expected costs or by access to justice concerns, noting the defendant was removed from a complicated action.

The court fixed costs at $50,000 all inclusive.

The plaintiff brought a proposed class action regarding her investment in a syndicated mortgage for a real estate development project.

The defendant developer, Empire Pace, brought a Rule 21 motion to strike the claims against it.

The court held that the plaintiff lacked standing to enforce the syndicated mortgage because she was not a signatory to the contract, which was deemed to be under seal pursuant to the Land Registration Reform Act.

Furthermore, the court found that a standstill provision in the mortgage precluded enforcement without the approval of the construction lender, which had not been obtained.

The claims against Empire Pace were struck out without leave to amend.

Maple Trust Company, a non-party, successfully moved to vary a Mareva order and subsequently sought costs.

The Plaintiff, Trade Capital Finance Corp., opposed the costs award, arguing for no costs or a significant reduction due to the novelty of the legal point involved in the motion.

The court acknowledged the novelty of the issue but determined that a complete denial of costs was inappropriate.

Applying principles from various precedents, the court awarded Maple Trust Company reduced costs, balancing the novelty of the legal question with the need to partially indemnify the successful party.

The plaintiff, Trade Capital Finance Corp., obtained a Mareva injunction over the assets of certain defendants, including The Cash House Inc. (TCHI), in a fraud action.

Maple Trust Company, a non-party, had obtained writs of seizure and sale against TCHI for unrelated costs awards.

Maple Trust moved to vary the Mareva injunction to permit it to seize funds from one of TCHI's bank accounts.

The court granted the motion, holding that a Mareva injunction is not proprietary in nature and does not give the plaintiff priority over other bona fide creditors enforcing legal process.

The injunction merely restrains the defendant from disposing of assets, not preventing lawful seizure by other creditors.

The appellant, Invecom Associates Limited, appealed a decision forfeiting a $400,000 deposit under an agreement of purchase and sale for three properties in Waterloo, Ontario.

The agreement contained conditions of closing in favour of Invecom, which could be waived by written notice to the vendors by a specified condition date.

Invecom sent a draft extension agreement proposing to extend the condition date but did not send proper written notice that the conditions had not been satisfied or waived by the deadline.

The court found that Invecom was in default and the deposit was forfeited to the vendors.

The appeal was dismissed.

The appellants appealed a partial summary judgment that allowed the respondent's action for wrongful dismissal and awarded damages based on a one-year notice period.

The motion judge had refused to admit new evidence regarding an employment contract the respondent signed with another firm shortly after termination.

The Court of Appeal allowed the appeal, finding the motion judge erred in failing to admit the new evidence, which raised issues about the respondent's actions and intentions.

The Court set aside the order and referred the entire matter for trial alongside the existing counter-claim and oppression action.

The applicants sought a declaration that the respondent breached a purchase agreement for three properties, leading to the forfeiture of a $400,000 deposit.

The agreement made time of the essence and specified strict notice requirements for waiving or satisfying conditions.

The respondent failed to provide timely written notice that conditions were not waived or satisfied, instead proposing an extension.

The court found that the proposed extension did not constitute proper notice and that the vendors did not breach their duty of good faith by not responding to the extension offer.

Consequently, the conditions were deemed satisfied, the respondent was in default, and the deposit was forfeited to the applicants.

An employee of the respondent perpetrated a large-scale fraud by requisitioning cheques payable to six entities and depositing them into accounts he controlled.

Two of the entities were invented, and four were customers not owed money.

The respondent sued the appellant banks for conversion.

The Court of Appeal allowed the banks' appeal, finding they had a valid defence under s. 20(5) of the Bills of Exchange Act.

The court held that the two invented payees were non-existing, and all six payees were fictitious because the respondent's directing minds never formed an intention to pay them.

Following a trial to determine the Gross Rentable Area of a leased premises, both parties claimed success and sought partial indemnity costs.

The court found the defendant to be the successful party, as the determined area was significantly higher than the plaintiff's position, resulting in substantial additional rent over the lease term.

The court awarded the defendant costs but reduced the claimed amount due to excessive photocopying disbursements and time spent on an unsuccessful argument regarding BOMA standards.

In a commercial lease dispute concerning a hospital building developed through a public-private partnership, the court determined the gross rentable area used to calculate annual basic rent.

The lease projected a gross rentable area of 135,000 square feet but failed to properly define that term, and the landlord's architect never issued the certificate contemplated by the lease.

Applying modern contractual interpretation principles and limiting surrounding-circumstances evidence to objective facts known at the time of contracting, the court held that the parties intended gross rentable area to correspond to the architect's gross floor area concept rather than the entire building area urged by the defendant.

The court fixed the gross rentable area at 142,907.5 square feet and left the parties to calculate rent payable from October 1, 2013 onward.

The appellant cashed a bank draft for a mortgagor who turned out to be a fraudster.

The appellant sued the mortgagee and the solicitor who drew the draft.

The trial judge dismissed the claims.

On appeal, the appellant argued the trial judge erred in refusing to allow an amendment to the pleadings after closing arguments, and in failing to recognize a new duty of care owed by the solicitor to the appellant.

The Court of Appeal dismissed the appeal, finding no error in the discretionary refusal to amend pleadings and affirming that no new duty of care should be recognized in the context of bills of exchange.

The plaintiff brought a summary judgment motion seeking a declaration of wrongful dismissal and damages in lieu of reasonable notice, together with unpaid commissions.

The court held that partial summary judgment was appropriate because the material facts concerning employment history, income, and circumstances of discharge were largely undisputed, while the remaining counterclaim and oppression issues did not affect the dismissal determination.

The asserted grounds for cause, namely appearing at a trade show under another business name and failing to "redouble" efforts, did not amount to cause.

The court declared the dismissal wrongful and held the plaintiff was entitled to one year's salary, with costs fixed at $20,000.

The defendant bank sought leave to appeal to the Divisional Court from an order certifying a class proceeding arising from unauthorized access to customer information by a bank employee.

The proposed appeal challenged the class definition, the certification of a waiver of tort claim, and the certification of claims for non‑pecuniary damages in negligence and contract without proof of psychiatric injury.

The court held that the certification judge had applied the correct low threshold applicable at the pleadings and certification stage and that the bank had not shown conflicting authority or good reason to doubt the correctness of the order under Rule 62.02(4) of the Rules of Civil Procedure.

The court further held that the class definition was not impermissibly over‑inclusive and that the waiver of tort issue met the “some basis in fact” standard for certification.

Leave to appeal was therefore refused.

The respondent lawyers were victims of a fraud scheme where they deposited counterfeit cheques into their trust accounts and issued instruments payable to 'Nithiyakalyaani Jewellers'.

The instruments were deposited into an account at the appellant bank.

The trial judge found the bank liable in conversion, holding that the payee was not non-existing or fictitious.

The Court of Appeal allowed the bank's appeal, finding that the trial judge erred in applying the plausibility doctrine.

Because the respondents had no knowledge of the actual corporation 'Nithiyakalyaani Jewellers Ltd.' when they drew the instruments, the payee was a non-existing person under s. 20(5) of the Bills of Exchange Act, providing the bank with a complete defence to conversion.

The appellant school board appealed an order requiring it to indemnify the respondent employee for legal costs incurred during a workplace investigation into alleged expense fraud.

The employee's contract contained an indemnity clause for costs related to any 'proceeding', excluding cases of dishonesty.

The Court of Appeal dismissed the appeal, finding no prima facie evidence of dishonesty was presented, the merits of the allegations were for arbitration, and the formal workplace investigation constituted a 'proceeding' under the broad wording of the contract.

The plaintiffs sought certification of a class proceeding against a bank and a former employee who improperly accessed customers’ confidential financial information and disclosed it to third parties, leading to identity theft and fraud affecting numerous customers.

The court considered the requirements for certification under s. 5(1) of the Class Proceedings Act, 1992, including whether the pleadings disclosed causes of action such as negligence, breach of contract, intrusion upon seclusion, vicarious liability, and waiver of tort.

The court held that several pleaded claims disclosed viable causes of action and that the proposed class of 643 customers whose information had been accessed constituted an identifiable class.

The court further found that the issues of negligence, breach of contract, vicarious liability for intrusion upon seclusion, and waiver of tort raised common issues and that a class proceeding was the preferable procedure for resolving them.

The proposed representative plaintiffs were found to be suitable and capable of advancing the litigation.

The applicant sought advancement and indemnification of legal costs under an employment contract while facing disciplinary proceedings arising from an internal workplace investigation.

The court considered whether the matter could proceed by application under Rule 14.05 of the Rules of Civil Procedure and whether the contractual indemnification clause applied to costs incurred during the investigation stage.

The court held that the presumption of good faith applies and that the respondent had not established a strong prima facie case of dishonesty sufficient to trigger the contractual exclusion.

Interpreting the contract broadly, the court found that the internal investigation and related disciplinary process constituted a “proceeding” within the meaning of the indemnification clause.

The respondent was therefore obligated to advance and reimburse the applicant’s legal costs pending the outcome of arbitration.

A pharmaceutical company brought summary judgment motions against banks for conversion after an employee fraudulently issued corporate cheques payable to entities with names similar to legitimate customers and deposited them into accounts he controlled.

The banks asserted statutory defences under the Bills of Exchange Act, including the fictitious payee rule and the holder in due course provision, and advanced negligence-based counterclaims and equitable set-off.

The court held the payees were plausibly identifiable real entities and therefore not fictitious or non‑existent for the purposes of s. 20(5) of the Act.

It further found that s. 165(3) did not apply because the cheques were not delivered to authorized persons entitled to them.

The negligence-based counterclaims and related defences were barred by the strict liability regime governing cheque conversion.

Two lawyers were victims of a fraudulent loan scheme involving counterfeit certified cheques deposited into their trust accounts.

Acting on instructions from fraudsters posing as a financing company, the lawyers issued a trust cheque and bank draft payable to a jewellery business, which were deposited into fraudulent bank accounts.

When the counterfeit instruments were discovered, the bank debited the lawyers’ trust accounts.

The plaintiffs sued the bank for conversion and negligence.

The court held that the payee was neither fictitious nor non‑existing because the drawers intended payment to an identifiable entity, and the collecting bank’s negotiation of the instruments constituted conversion.