Court of Appeal for Ontario

Citation: 2012 ONCA 726 Date: 2012-10-30 Docket: C53952

Before: Rosenberg, Gillese and Tulloch JJ.A.

Between:

Oak Incentives Group Inc. Plaintiff/Respondent

and

The Toronto Dominion Bank Defendant/Appellant

Counsel: Martin Greenglass, for the appellant Robert G. Tanner, for the respondent

Heard: October 24, 2012

On appeal from the judgment of Justice Susan E. Greer of the Superior Court of Justice, dated June 9, 2011.

Endorsement

[1] We agree with the appellant that the trial judge made some factual errors. We are also of the view that some of her comments about the banking system may not have been supportable on the record. However, there was a clear basis for liability in this case based upon the agreed statement of facts and the evidence of Mr. Christie, which the trial judge accepted. This court will only order a new trial if errors have resulted in a substantial wrong or miscarriage of justice within the meaning of s. 134(6) of the Courts of Justice Act. In our view, there was no substantial wrong or miscarriage of justice.

[2] This case turned on the particular facts: the information that Mr. Christie conveyed to the appellant’s employees and the answers that were given by the employees, especially Ms. Spencer, in light of the specific inquiry made by Mr. Christie. The trial judge recognized that ordinarily the relationship between a customer and its bank is one of debtor and creditor. She was entitled to find, in this case, however, that there was a special relationship that took the case out of the normal context of debtor and creditor and that the appellant owed the respondent a duty of care. Contrary to the appellant’s submissions, she did not base her findings of liability on a fiduciary relationship.

[3] The appellant was aware that this was an unusual transaction for the respondent. The representative of the respondent made specific inquiries of the appellant’s employees. He was misled by the information provided by the employee into believing that it was safe for him to advance the funds to Sony. It was open to the trial judge to find that the employee breached the standard of care; that the employee did not act reasonably given the information she had been provided and the evident reliance the respondent placed on that information. Since this case did not turn on broad issues of banking practice but rather depended upon the particular and unusual factual matrix, expert evidence was not required.

[4] While contributory negligence was pleaded it was not argued at trial. We would not permit the appellant to raise the issue for the first time on appeal.

[5] The trial judge was entitled to order that post-judgment interest on the costs would run from the date of her decision. This holding accords with s. 129 of the Courts of Justice Act and United States v. Yemec (2007), 85 O.R. (3d) 751 (Div. Ct.). The fact that the trial judge ordered the appellant to pay the costs within 30 days of the Order, did not preclude interest on the costs running from the date of the decision.

[6] At trial, the appellant conceded that HST was payable throughout. For the first time on appeal, the appellant seeks to withdraw that admission. We would not permit the appellant to do so.

[7] There is an admitted calculation error. The damages should be reduced by $730.92 and the pre-judgment interest reduced by $131.40.

[8] Accordingly, subject to an amendment to the Judgment to reflect para. 7 of this endorsement, the appeal is dismissed with costs fixed at $14,969.70 inclusive of disbursements and HST.

“M. Rosenberg J.A.”

“E.E. Gillese J.A.”

“M. Tulloch J.A.”