Nicholas Fitz

The plaintiff City of Saskatoon was defrauded of over $1 million when it was tricked into depositing a payment meant for a contractor into a fraudulent bank account.

The funds were dispersed by the account operator to various individuals.

The City traced and froze the funds.

On a motion to determine entitlement to the remaining frozen funds, the respondents claimed to be innocent victims who paid valuable consideration.

The court found the respondents failed to provide evidence that they were bona fide purchasers for value without notice or that they had innocently changed their position.

The court ordered the remaining funds returned to the City.

The defendants brought a motion for leave under Rule 39.02(2) of the Rules of Civil Procedure to file two further affidavits on the plaintiff's pending summary judgment motion.

The affidavits were sought to be filed after cross-examinations had concluded, primarily to respond to the plaintiff's allegation that a franchise disclosure document was forged.

The court applied the four-part test for leave and found that the defendants failed to provide a reasonable explanation for not delivering the evidence earlier, noting it was a tactical choice rather than an oversight.

The court also found the proposed evidence did not respond to matters raised during cross-examination.

The motion for leave was dismissed.