COURT OF APPEAL FOR ONTARIO
RE: TD WATERHOUSE INVESTOR SERVICES (CANADA) INC. (Respondent) and BRAM KIRSHNER, SHERRI WOLFISH AND POLA KIRSHNER (Appellants) (C37767)
AND RE: BRAM KIRSHNER (Appellant) and TD WATERHOUSE INVESTOR SERVICES (CANADA) INC., MARIO CINFARINE AND ARJUNA HOOLE (Respondents) (C37847)
BEFORE: ABELLA, CHARRON and MOLDAVER JJ.A.
COUNSEL: Joseph Groia, for the appellant Bram Kirshner
Linda L. Fuerst, for the appellants, Sherri Wolfish and Pola Kirshner
David A. Hausman and Christine Tabbert, for the respondent, TD Waterhouse Investor Services (Canada) Inc.
HEARD: September 9, 2002
RELEASED ORALLY: September 9, 2002
On appeal from the judgment of Justice John Jennings dated January 30, 2002.
E N D O R S E M E N T
1[1] In our view, there are a number of triable issues. Given their interlocking nature, we would not narrow the scope of the trial and would instead give all parties the opportunity to have these matters decided at trial. In particular, there are conflicting facts dealing with: the margin requirements and their application to the appellants’ accounts; the reasonableness of the respondent’s conduct in the circumstances and the appropriate standard that it had to meet; and the application, if any, of the “Know Your Client Rule”.
1[2] These, among others, are issues which cannot properly be determined without the benefit of a trial. Accordingly the appeal is allowed, the judgment is set aside and the motion for summary judgment is dismissed.
2[3] With respect to the dismissal of the motion to set aside the default judgment against Ms. Wolfish, we are of the view that the material raises an arguable defence on the merits, both in respect of the presumption of undue influence and the obligation, if any, on the part of the respondent to ensure that Ms. Wolfish understood the indemnity. Moreover, Ms. Wolfish’s action is interconnected with the action against Mr. Kirshner and she should not be deprived of the benefit of his possible success.
3[4] Therefore, the appeal is allowed, judgment is set aside and the motion to set aside the default judgment is allowed.
4[5] Costs are awarded in accordance with the consent of the parties as follows: the appellant Bram Kirshner is entitled to his costs of the appeal fixed in the amount of $12,750 plus GST, and his costs of the motion before Jennings J. fixed in the amount of $15,000, plus GST: the appellants Sherri Wolfish and Pola Kirshner are entitled to their costs of the appeal fixed in the amount of $12,750 plus GST and $5,000 plus GST for the motion before Jennings J.
“R.A. Abella J.A.”
“Louise Charron J.A.”
“M.J. Moldaver J.A.”