Citation and Court Information
DIVISIONAL COURT FILE NO.: 372/12
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
OAKDALE KITCHENS INC.
Plaintiff
– and –
THE BANK OF NOVA SCOTIA and DUCA CREDIT UNION
Defendants
COUNSEL:
Steven Bellissimo, for the Plaintiff
Martin Sclisizzi and A. Nicole Westlake, for the Defendant, The Bank of Nova Scotia
HEARD at Toronto: September 27, 2012
Oral Reasons for Judgment
PARDU J. (orally)
1Oakdale Kitchens Inc. suffered losses as a result of employee dishonesty. It sued the Bank alleging that the Bank was liable for conversion effected by forged cheques and for negligence, alleging that the Bank ought to have discovered the forgeries.
2The Bank moved for summary dismissal of the action on the ground that the contract with Oakdale Kitchens barred recovery. The Bank argues that there was good reason to doubt the correctness of the motion judge’s decision refusing summary judgment dismissing the action.
3This was a case based on construction of documents and there were no material facts in dispute. While the motion judge referred to alleged representations by Bank officials, on cross-examination of Tersigni, it was conceded there were no representations. Secondly, the motion judge referred to the issue of whether the plaintiff customer complied with its contractual duty to diligently examine bank statements and cancelled cheques. The contract excludes liability, whether or not the customer was diligent, where no complaint is made to the Bank within thirty days of sending of the statements. Whether or not the contract excluded liability for negligence on the part of the Bank could have been determined on the summary judgment motion as this was purely a matter of construction of the document.
4That said, the issues in dispute here do not raise issues of public importance which transcend the interests of the parties.
5Specifically, the issue of whether the defendant Bank must proceed to trial for resolution of this matter does not raise issues of importance to the public or the administration of justice. Resolution of the matter will ultimately depend on construction of the contract between the parties in the context of their relationship.
6For this reason, the Bank is not satisfied the test for granting leave to appeal, pursuant to Rule 62.04(4)(b) and the motion is dismissed.
COSTS
7I have endorsed the Motion Record, “For reasons given orally, the motion is dismissed. Costs to plaintiff, respondent on motion fixed at $5,000 inclusive of disbursements and HST, being calculated on a partial indemnity basis having regard to complexity of this matter, time required and importance to the parties.”
PARDU J.
Date of Reasons for Judgment: September 27, 2012
Date of Release: October 5, 2012
CITATION: Oakdale Kitchens Inc. v. Bank of Nova Scotia, 2012 ONSC 5479
DIVISIONAL COURT FILE NO.: 372/12
DATE: 20120927
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PARDU J.
BETWEEN:
OAKDALE KITCHENS INC.
Plaintiff
– and –
THE BANK OF NOVA SCOTIA and DUCA CREDIT UNION
Defendants
ORAL REASONS FOR JUDGMENT
PARDU J.
Date of Reasons for Judgment: September 27, 2012
Date of Release: October 5, 2012