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 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.

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.

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 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.

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.

Costs were determined following motions concerning the validity of minutes of settlement and enforcement of judgment.

A defendant by counterclaim had unsuccessfully sought to set aside settlement minutes on the basis of alleged mental incapacity, while the bank successfully obtained judgment under those minutes.

The bank sought substantial indemnity costs exceeding $64,000, arguing the motion lacked merit and required significant preparation including expert psychiatric evidence.

The court held that although the bank was successful, substantial indemnity costs were not warranted and awarded partial indemnity costs of $19,900 against the unsuccessful moving party.

A co-defendant who supported the bank’s position was denied any costs because his participation duplicated the bank’s submissions.

A cheque‑cashing company sought to recover losses arising from a fraudulent mortgage scheme and the negotiation of a bank draft bearing a forged endorsement.

The plaintiff alleged negligence and fraud against multiple parties involved in the mortgage transaction, including the property owner, a lawyer, a lender, and a relative of the homeowners.

The court found that the homeowners were not involved in the fraud and dismissed claims against them and other defendants, including the lawyer and lender.

The court declined to recognize a novel duty of care owed by the drawer of a bank draft to a subsequent negotiator and held that the plaintiff’s loss arose from the strict liability tort of conversion when the draft with a forged endorsement was negotiated.

Liability was established only against the relative who participated in the mortgage fraud.

The applicant sought summary judgment requiring his former employer to return amounts withheld as hypothetical tax from post‑retirement deferred compensation payments.

The dispute concerned whether stock‑based deferred compensation received after retirement retained its character as employment income and therefore remained subject to the employer’s contractual tax equalization policy for expatriate executives.

The court held that, under the employment contract and the Income Tax Act, deferred compensation arising from employment remains employment income regardless of when it is received.

Because the applicant had agreed that employment income, including stock‑based compensation, would be subject to hypothetical tax, the employer was entitled to continue applying the policy after retirement.

The motion and underlying claim were dismissed.

The defendant bank brought a motion for summary judgment dismissing claims for negligence, breach of contract, and conversion arising from a corporate employee’s long-running cheque forgery scheme.

The bank relied on verification and limitation of liability clauses in a financial services agreement requiring the customer to review statements and report errors within 30 days.

The court held that the contractual provisions, the surrounding factual matrix, and the interaction with s. 48 of the Bills of Exchange Act raised genuine issues of fact and mixed fact and law.

Issues included the interpretation of the agreement, alleged representations made by bank officials, the plaintiff’s internal fraud controls, and whether suspicious circumstances should have alerted the bank.

As a result, the court found the matter unsuitable for summary judgment and required a trial.