Nicholas E. Fitz

The defendant bank moved for summary judgment to dismiss an action brought by a former lawyer seeking $10,000,000 in damages for the revocation of his law license and criminal conviction for fraud.

The plaintiff alleged that the bank's negligent administration of his trust account, specifically double-debiting certified cheques, caused a shortfall that prevented a real estate transaction from closing, which triggered a Law Society investigation and ultimately led to his license revocation and criminal conviction.

The court granted the motion and dismissed the action, finding that the plaintiff's license revocation and conviction were caused by his own misappropriation of trust funds, not by the bank's double-debits.

The investigation was initiated by a complaint from the plaintiff's former law clerk regarding unauthorized transfers from the trust account, not by the failed transaction.

The court found no causal link between the bank's conduct and the damages claimed.

The plaintiffs brought a motion to compel the Bank of Montreal to provide answers to discovery questions regarding the disappearance of contents from their safety deposit box.

The Bank refused, claiming litigation privilege and solicitor-client privilege over its internal investigation report, and also citing relevance and proportionality for other questions.

The court found that the Bank failed to establish that the dominant purpose of its investigation was litigation, thus denying the claim of litigation privilege.

Solicitor-client privilege was also deemed inapplicable.

The court ordered the Bank to answer most of the refused questions, finding them relevant to the plaintiffs' claims of negligence and breach of contract, including questions about the investigation process and a prior safety deposit box cleanup.

One speculative question was properly refused.

The Bank was also directed to serve an amended affidavit of documents.

Aeon Sodding Corp. sued The Royal Bank of Canada (RBC) for breach of contract after discovering that a "legal professional" it had retained, Steven Mann, was a fraudster who had performed no work despite receiving over $430,000 via an RBC Visa card.

Aeon sought a chargeback from RBC, which was denied due to time limits under Visa rules.

RBC brought a motion for summary judgment to dismiss Aeon's action.

The court granted summary judgment, finding that RBC exercised reasonable care in handling the chargeback request and that Aeon's claim was barred by a verification clause in the Visa Agreement, which required disputes to be raised within 30 days of the statement period.

This endorsement addresses the issue of costs following a successful motion by the defendants.

The defendants sought $200,000 in costs, arguing it was a discount from their partial and substantial indemnity costs, citing extensive motion records, witness evidence, cross-examinations, and rejected settlement offers.

The plaintiff requested costs be reserved to the trial judge or argued the claimed costs were excessive, noting their own partial indemnity costs were significantly lower.

The court declined to reserve costs, affirming the defendants' entitlement as successful parties.

However, the court found the defendants' claimed costs excessive, noting they were double the plaintiff's costs, and fixed the costs at $150,000, all-inclusive, payable within 30 days, emphasizing the need for costs to be reasonable in the circumstances.

The plaintiff, a former franchisee, brought a motion for summary judgment against the franchisor and its principal, alleging deficiencies in disclosure documents, fraud, and forgery, and seeking damages over $2,000,000.

The defendants opposed the motion, arguing numerous factual disputes and credibility issues.

The court dismissed the motion for summary judgment, finding that the case involved too many disputed issues of fact, including allegations of fraud and forgery, which required an assessment of credibility that could not be resolved on a paper record.

The court also noted that a complex legal issue regarding the effect of a notice of rescission required a full appreciation of the factual matrix, best achieved at trial.

Corporations defrauded by their bookkeeper through forged cheques and unauthorized payroll payments sought partial summary judgment against their bank on strict liability and negligence claims.

The motion judge granted partial summary judgment on the strict liability claim relating to cheque fraud, finding no genuine issue to be tried on the bank's business banking agreement defence or limitations defence.

The bank appealed, arguing the motion judge erred in granting partial summary judgment, misapplied the discoverability test for limitations, and erred in finding no evidence supporting the business banking agreement defence.

The Court of Appeal allowed the appeal, finding that partial summary judgment was inappropriate due to risk of overlap in evidence between the cheque fraud and payroll fraud claims, and that the motion judge misapplied the modified objective test for discoverability by conducting a purely subjective inquiry.