Bank of Nova Scotia v. BCPBank Canada, 2008 ONCA 367

CITATION: Bank of Nova Scotia v. BCPBank Canada, 2008 ONCA 367

DATE: 20080508

DOCKET: C47619

COURT OF APPEAL FOR ONTARIO

ARMSTRONG, JURIANSZ and LaFORME JJ.A.

BETWEEN:

BANK OF NOVA SCOTIA

Plaintiff

and

BCPBANK CANADA

Defendant (Appellant)

and

DOMENIC D’ABRUZZO

Defendant (Respondent)

Counsel:

Ian R. Mang, for the appellant

Alfred S. Schorr, Q.C., for the respondent

Heard and released orally: April 25, 2008

On appeal from the judgment of Justice J.H. Jenkins of the Superior Court of Justice dated July 31, 2007.

ENDORSEMENT

[1] BCPBank Canada appeals from a summary judgment dated July 31, 2007 requiring BCP to pay the respondent Domenic D’Abruzzo the sum of $299,419.82 and costs of $5,000.

[2] The monies in question were deposited in a bank account of Mr. D’Abruzzo at BCP. Mr. D’Abruzzo claimed that he had a right to the payment out of these monies in his account. However, the position of BCP is that there is an agreement between it and Mr. D’Abruzzo that those monies are to be frozen pending the outcome of this litigation in which BCP and D’Abruzzo are co-defendants and the Bank of Nova Scotia is the plaintiff.

[3] It was argued by counsel for Mr. D’Abruzzo that if there was any kind of agreement, which Mr. D’Abruzzo denies, there was no consideration and therefore no legally enforceable contract. Counsel for the appellant submits that the consideration was the agreement of the bank to continue providing the cheque cashing facility to Mr. D’Abruzzo beyond a period of reasonable notice and a commitment to clear cheques without delay.

[4] We are satisfied that there is a genuine issue for trial in respect of the alleged agreement between BCP and Mr. D’Abruzzo. We are also satisfied that there is a genuine issue for trial as to whether, if there was an agreement, it was supported by mutual consideration. We therefore allow the appeal. An order will go setting aside the summary judgment including the costs award.

[5] The appellant shall have its costs on a partial indemnity basis fixed in the amount of $10,000 including disbursements and GST.

[6] An order will go in these proceedings changing the name of BCPBank Canada to the Bank of Montreal.

“Robert P. Armstrong J.A.”

“R.G. Juriansz J.A.”

“H.S. LaForme J.A.”