Nicole Marcus

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.

The appellant appealed a trial judgment that found she was a partner in a law firm rather than an employee.

The appellant argued that the trial judge failed to properly apply the control and dependency test established in McCormick v. Fasken Martineau DuMoulin LLP.

The Court of Appeal upheld the trial judgment, holding that McCormick does not establish control and dependency as an all-purpose test for determining partnership status.

Instead, courts must examine all surrounding circumstances, the substance of the relationship, the behaviour of the parties, and their intentions.

The trial judge's findings of fact, which supported a partnership relationship, were available on the evidence and no palpable and overriding error was demonstrated.

The appellant appealed an order of the Superior Court of Justice granting possession of Lot 15 on the Whitefish River First Nation reserve to the respondent and ordering the appellant's eviction.

The appellant claimed she was denied a fair hearing because the application judge unreasonably refused an adjournment and his conduct gave rise to a reasonable apprehension of bias.

The appellant also sought leave to appeal the substantial indemnity costs award of approximately $24,000.

The Court of Appeal dismissed the main appeal regarding fair hearing but granted leave to appeal costs and reduced the award to $15,000 partial indemnity costs.

The plaintiff, Callidus Capital Corporation, moved for summary judgment to enforce a guarantee and mortgage against the defendant, Jeffrey J. McFarlane, for obligations of Xchange Technology Group LLC (XTG).

McFarlane had guaranteed XTG's debt to Callidus, limited to US$3 million, excluding certain facility and forbearance fees.

McFarlane argued that the debt was extinguished by an asset purchase agreement (APA) via a credit bid, and that Callidus had impaired its security.

The court found that the guarantee was a commercial agreement, not subject to the *contra proferentem* rule, and that the $3 million carve-out in the APA was intended to maintain McFarlane's guarantee obligation.

The court also rejected the impairment of security argument, noting a broad release signed by McFarlane.

Summary judgment was granted to Callidus for US$3 million plus interest and costs.

The Bank of Montreal moved for summary judgment to dismiss an action brought by The Midas Investment Corporation, which alleged negligence by the Bank in allowing fraudulent account activity.

Midas claimed the Bank was negligent in opening and operating an account used by two individuals, Kavanaugh and Commisso, to defraud Midas of over $3 million, arguing the Bank should have been put on inquiry due to irregularities, thus disentitling it from relying on the indoor management rule.

The court dismissed the motion for summary judgment, finding a genuine issue requiring a trial regarding whether the Bank was put on inquiry by inconsistencies in corporate documentation and account activity, and noting incomplete document production and the absence of expert evidence.

The moving defendants brought a motion to strike several paragraphs of the statement of claim alleging conspiracy, misrepresentation, injurious falsehood, and interference with economic relations arising from alleged diversion of employees and business from a technology company.

The court held that the pleading disclosed no reasonable cause of action against one defendant spouse because no material facts supporting any claim were pleaded against her, and struck the relevant paragraph and dismissed the action against her with leave to amend.

The court found that allegations supporting fraudulent misrepresentation, negligent misrepresentation, injurious falsehood, and civil conspiracy were adequately pleaded when the statement of claim was read as a whole.

However, the pleading failed to properly plead the tort of intentional interference with economic relations.

That claim was struck with leave to amend within 30 days.