Bank of Montreal v. i Trade Finance Inc.

96 O.R. (3d) 561

Court of Appeal for Ontario,

Simmons, Blair and G.J. Epstein JJ.A.

August 18, 2009

Debtor and creditor -- Secured creditor -- Fraudster inducing plaintiff financing company to advance funds to fraudster's company -- Fraudster using part of those funds to purchase shares held in investment account -- Fraudster pledging those shares to defendant bank to obtain increase in his line of credit -- No written security agreement signed and defendant not registering any security agreement under Personal Property Security Act -- Plaintiff obtaining judgment against fraudster and obtaining tracing order to assist it in determining whether any of funds which it advanced to fraudster could be traced into hands of persons other than bona fide purchasers for value without notice -- Defendant entitled to proceeds of sale of shares in investment account -- Defendant having security interest in those shares -- Fraudster having sufficient interest in shares to create security interest and to pledge them to defendant -- Defendant being bona fide purchaser for value without notice of fraud.

Equity -- Unjust enrichment -- Fraudster inducing plaintiff financing company to advance funds to fraudster's company -- Fraudster using part of those funds to purchase shares held in investment account -- Fraudster pledging those shares to defendant bank to obtain increase in his line of credit -- Defendant entitled to proceeds of sale of shares in investment account -- Defendant having security interest in those shares -- Plaintiff not entitled to proceeds of sale on basis of principles of unjust enrichment -- Juristic reason for defendant's enrichment existing in view of valid contractual arrangement between defendant and fraudster, fact that fraudster had sufficient property in shares to create pledge, and fact that defendant was bona fide purchaser for value without notice of fraud.

RA fraudulently induced the plaintiff financing company to advance $11.2 million (the "Purloined Funds") to RA's company W Inc. RA and his wife were joint cardholders of a credit card issued by the defendant bank. In order to obtain an increase of their credit limit, they pledged to the defendant the proceeds of sale of shares held in an investment account. The shares had been purchased using moneys traceable to the Purloined Funds. No written security agreement was ever signed by RA or his wife with respect to the transaction and no security agreement was ever registered by the defendant under the Personal Property Security Act, R.S.O. 1990, c. P.10 (the "PPSA"). The plaintiff successfully sued RA and W Inc. An order was made in that action that the proceeds of sale of the shares held in the investment account (the "Disputed Funds") were to be held in trust pending a determination as to who was entitled to them, the plaintiff or the defendant. The plaintiff also obtained a tracing order to assist it in determining whether any of the funds that originated with the plaintiff remained in the hands of, or could be traced into assets in the hands of, persons other than bona fide purchasers for value without notice. On a motion to determine entitlement to the Disputed Funds, the motion judge ruled in favour of the plaintiff. The defendant appealed. [page562]

Held, the appeal should be allowed.

The motion judge erred in finding that the defendant did not have a security interest in the shares in the investment account. If the PPSA applied, the defendant was a "purchaser" under the PPSA because "purchaser" means a "person who takes by purchase" and "purchase" includes a "taking by pledge". The security interest attached, and was perfected by possession. RA had "rights in the collateral" as called for by s. 11(2)(c) of the PPSA. Where property is turned over with the intention of transferring ownership in it -- even where the transmission is induced by fraud unbeknownst to the transferor -- the transfer in such circumstances is sufficient to create a voidable interest in the transferee for purposes of creating a security interest. The plaintiff intended to transfer ownership of the Purloined Funds as directed by RA. The fact that ownership was transferred to W Inc. was irrelevant in the circumstances, as the distinction between intending to transfer ownership to the vehicle used by the fraudster to commit the fraud at the direction of the fraudster, and intending to transfer ownership to the fraudster himself, is immaterial. RA had sufficient property in the funds to create a security interest and to pledge them to the defendant, a bona fide purchaser for value without notice of the fraud. Once he did so, the plaintiff's ability to trace the funds pursuant to the tracing order was lost. The motion judge erred in finding that the defendant was not a bona fide purchaser for value without notice on the basis that it purchased from RA and his wife and not from W Inc. That distinction was immaterial. The fact that the defendant purchased directly from the fraudster rather than from the corporate vehicle used by the fraudster to perpetrate the fraud was of no moment.

The plaintiff was not entitled to recover the Disputed Funds based on principles of unjust enrichment. Assuming, without deciding, that the defendant had been enriched at the expense of the plaintiff, there were valid juristic reasons for the enrichment. Those reasons were: the otherwise valid contractual agreement between the defendant and RA and his wife; the fact that, in law, the borrowers had sufficient property in the shares in the investment account to create a pledge; and the fact that the defendant was a bona fide purchaser for value without notice of the fraud.

APPEAL by defendant from the order Kiteley J. of the Superior Court of Justice dated October 14, 2008 that the plaintiff was entitled to funds held in trust.

Cases referred to Bank of Nova Scotia v. Simpson, [1984] N.S.J. No. 51, 64 N.S.R. (2d) 383, 52 C.B.R. (N.S.) 183, 143 A.P.R. 383 (S.C. (T.D.)); Canada (Attorney General) v. Confederation Life Insurance Co. (1997), 1997 2801 (ON CA), 32 O.R. (3d) 102, [1997] O.J. No. 123, 145 D.L.R. (4th) 747, 97 O.A.C. 18, 41 C.C.L.I. (2d) 1, 14 C.C.P.B. 1, 70 A.C.W.S. (3d) 649 (C.A.), affg (1995), 1995 7097 (ON SC), 24 O.R. (3d) 717, [1995] O.J. No. 1959, 33 C.B.R. (3d) 161, 31 C.C.L.I. (2d) 77, 8 C.C.P.B. 1, 8 E.T.R. (2d) 72, 56 A.C.W.S. (3d) 509 (Gen. Div.); Central Newbury Car Auctions Ltd. v. Unity Finance Ltd., [1957] 1 Q.B. 371, [1956] 3 All E.R. 905, [1956] 3 W.L.R. 1068 (C.A.); Gray v. Royal Bank of Canada, 1997 2006 (BC SC), [1997] B.C.J. No. 151, 143 D.L.R. (4th) 179, 12 P.P.S.A.C. (2d) 126, 68 A.C.W.S. (3d) 534 (S.C.); McTaggart v. Boffo (1975), 1975 351 (ON SC), 10 O.R. (2d) 733, [1975] O.J. No. 2539, 64 D.L.R. (3d) 441 (H.C.J.); Peter v. Beblow, 1993 126 (SCC), [1993] 1 S.C.R. 980, [1993] S.C.J. No. 36, 101 D.L.R. (4th) 621, 150 N.R. 1, [1993] 3 W.W.R. 337, J.E. 93-660, 23 B.C.A.C. 81, 77 B.C.L.R. (2d) 1, [1993] R.D.F. 369, 48 E.T.R. 1, 44 R.F.L. (3d) 329, 39 A.C.W.S. (3d) 646, EYB 1993-67100; Pettkus v. Becker, 1980 22 (SCC), [1980] 2 S.C.R. 834, [1980] S.C.J. No. 103, 117 D.L.R. (3d) 257, 34 N.R. 384, 8 E.T.R. 143, 19 R.F.L. (2d) 165, 6 A.C.W.S. (2d) 263; R. v. Canadian Imperial Bank of Commerce (2000), 2000 16957 (ON CA), 51 O.R. (3d) 257, [2000] O.J. No. 4149, 138 O.A.C. 127, 151 C.C.C. (3d) 439, 49 W.C.B. (2d) 133 (C.A.); Rathwell v. Rathwell, 1978 3 (SCC), [1978] 2 S.C.R. 436, [1978] S.C.J. No. 14, 83 D.L.R. (3d) 289, 19 N.R. 91, [1978] 2 W.W.R. 101, 1 E.T.R. 307, 1 R.F.L. (2d) 1, [1978] 1 A.C.W.S. 225; [page563] Royal Bank of Canada v. Harowitz (1997), 1997 662 (ON CA), 33 O.R. (3d) 704, [1997] O.J. No. 2599, 72 A.C.W.S. (3d) 614 (C.A.), affg (1994), 1994 7245 (ON SC), 17 O.R. (3d) 671, [1994] O.J. No. 619, 46 A.C.W.S. (3d) 1194 (Gen. Div.) Statutes referred to Personal Property Security Act, R.S.O. 1990, c. P.10, ss. 1(1) [as am.], 4(1) [as am.], 11(2) [as am.], 22(1) [as am.] Authorities referred to Bump, Orlando, A treatise upon conveyances made by debtors to defraud creditors, 4th ed. (Washington: W.H. Lowdermilk & Co., 1896)

Joshua J. Siegel, for appellant Bank of Montreal. Benjamin Salsberg, for respondent i Trade Finance Inc. (and its successor, i Trade Holdings Inc.).

The judgment of the court was delivered by

BLAIR J.A.: -- Overview

[1] This appeal pits two innocent financial institutions against each other. Both are victims of a fraudulent scheme.

[2] Roy Ablacksingh and others defrauded i Trade Finance Inc. of more than $11 million using their company, Webworx Inc., to perpetrate the fraud. In excess of $5 million has yet to be recovered. I shall refer to the moneys obtained from i Trade through the fraudulent scheme as the Purloined Funds.

[3] The questions to be resolved on the appeal are these. Who is entitled to a sum of $130,117.11 plus interest (the "Disputed Funds") currently held in trust by the solicitors for the appellant and traceable directly to the Purloined Funds? Do the moneys belong to i Trade, the financing company originally victimized by the fraud when it advanced the $11 million to Webworx at Mr. Ablacksingh's request? Or do they belong to Bank of Montreal ("BMO"), which innocently took the assets underlying the Disputed Funds as a pledge from Mr. Ablacksingh personally, without notice of the fraud, to secure a $75,000 line of credit subsequently advanced by the Bank to him and his wife, Cindy Ramsackal?

[4] On a motion to determine these issues, Kiteley J. ruled in favour of i Trade. BMO seeks to set aside that decision. For the reasons that follow, I would allow the appeal. [page564]

The Story

[5] That there was a fraudulent scheme is not in dispute. Mr. Ablacksingh and others induced i Trade [See Note 1 below] to advance $11.2 million to Webworx to finance contracts for computer services that Webworx allegedly had with a U.S. company, but which were non-existent. Mr. Ablacksingh was the President of Webworx. He and others have been convicted of criminal fraud in relation to the scheme.

[6] i Trade launched civil proceedings, too. In those proceedings, two things occurred that are pertinent to this appeal. First, on February 23, 2004, John Macdonald J. ordered that the funds at issue on the appeal be held in trust pending a determination as to who was entitled to them, i Trade or BMO. Second, on September 5, 2006, Belobaba J. granted judgment in favour of i Trade against Mr. Ablacksingh, Webworx and others for the amount of the Purloined Funds (US$5,193,457.30). Importantly, Belobaba J.'s judgment also granted a tracing order in favour of i Trade as against Mr. Ablacksingh to assist it in "[determining] whether any of the funds that originated with i Trade remain in the hands of, or can be traced into assets in the hands of, persons other than bona fide purchasers for value without notice" (emphasis added). The Disputed Funds represent the proceeds of the sale of shares that were held in the joint names of Mr. Ablacksingh and Ms. Ramsackal in a BMO Nesbitt Burns Investment Account (the "Investment Account"). There is no disagreement that the investments in this account were purchased by Mr. Ablacksingh personally, using moneys traceable to the Purloined Funds advanced by i Trade. Ms. Ramsackal gave no consideration for the purchases.

[7] Mr. Ablacksingh and Ms. Ramsackal were joint cardholders of a Bank of Montreal MasterCard account. It had a credit limit of $10,000. In August 2002, they pledged the property in the Investment Account to BMO in support of their request for an increase of the credit limit to $75,000. The Bank accepted the pledge and agreed to provide the increased credit limit. All parties agree that BMO accepted the pledge and advanced the increased credit without any knowledge of the fraudulent [page565] scheme or that the funds used to purchase the shares in the Investment Account had originated from that fraudulent scheme.

[8] Some documentation was executed in connection with the pledge and increased credit limit. However, no written security agreement was ever signed by Mr. Ablacksingh and Ms. Ramsackal with respect to the loan, and no security agreement was ever registered by the Bank under the Personal Property Security Act, R.S.O. 1990, c. P.10 (the "PPSA") to protect its interests.

[9] A Collateral Agency Agreement was executed by BMO Nesbitt Burns and by Mr. Ablacksingh and Ms. Ramsackal on August 14, 2002. For reasons not explained on the record, it was not executed by the Bank, although the Bank was undoubtedly intended to be the "Lender" referred to in the Agreement. The Collateral Agency Agreement recognizes that BMO Nesbitt Burns is appointed agent for the Bank to hold the collateral (the pledged securities) on the Bank's behalf under the Pledge Agreement. Other documentation confirms this arrangement.

[10] Part of the pledge arrangement was that in exchange for the increased credit, the value of the shares in the Investment Account would be maintained at a level sufficient to cover the credit line, together with interest and costs. Accordingly, the Bank was entitled to receive monthly statements on the Investment Account. At a point in time, the Bank discovered it was not receiving such statements and took steps to remedy the omission. As part of this process, the Bank arranged for BMO Nesbitt Burns and Mr. Ablacksingh and Ms. Ramsackal to sign a "Notice and Direction". The Notice and Direction specifically referred to the pledged Investment Account and confirmed that Mr. Ablacksingh and Ms. Ramsackal had granted a security interest in the Investment Account. It also provided that "BMO Nesbitt Burns shall retain possession of and control over property in the account for the benefit of the Bank and not as agent for the Client".

[11] On the basis of this documentation, BMO argues that, while it did not have a written security agreement with Mr. Ablacksingh and Ms. Ramsackal, it nonetheless had a security agreement with them -- one that was partly written and partly oral.

[12] Although the credit limit was $75,000, the outstanding balance on the BMO MasterCard account is $138,747.66.

The Motion Judge's Decision

[13] The motion judge ruled in favour of i Trade. She held (a) that BMO did not have a security interest in the shares in the Investment Account, (b) that BMO was not a bona fide purchaser for value and therefore was not shielded from the effect of [page566] the tracing order granted by Belobaba J., and (c) that i Trade was entitled to the funds on unjust enrichment and constructive trust principles because the Pledge Agreement between BMO and Mr. Ablacksingh and Ms. Ramsackal did not constitute a "juristic reason" for the enrichment of Webworx at the expense of i Trade.

[14] Respectfully, in my view, she erred in arriving at these conclusions.

Analysis

[15] i Trade's claim to recover the funds -- after tracing them to the Investment Account -- is based on the equitable concept of unjust enrichment which it says impresses the funds with a constructive trust in its favour. In addition, i Trade submits that this type of claim gives it an equitable lien on the property which prevails over the unregistered security interest of the Bank if, indeed, the Bank has a security interest, which i Trade does not concede. Finally, i Trade contends that Mr. Ablacksingh and Ms. Ramsackal did not have a sufficient proprietary right in the Investment Account to support either a security interest or a valid pledge to the Bank. The Bank cannot be a "purchaser" in such circumstances because the fraudster had no property in the shares to transfer: nemo dat quad non habet (a party cannot give what it does not have to give).

[16] There are several impediments to the success of these arguments, however.

The Bank had a security interest under the PPSA, but it makes little difference

[17] In my view, the motion judge erred in holding that BMO did not have a security interest in the shares in the Investment Account. The security interest attached, and was perfected by possession. In the end, however, it makes little difference for purposes of the appeal. This is not a priority contest between i Trade and BMO under the PPSA, and there is a serious question whether the PPSA has any application in view of s. 4(1), which provides that the Act does not apply to a lien given by statute or rule of law. i Trade's claim to a constructive trust in the funds, if well-founded, is arguably a lien given by rule of law.

[18] In any event, if the PPSA is applicable, I am satisfied that BMO had an enforceable security interest in the shares in the Investment Account. It is a "purchaser" under the Act because purchaser means "a person who takes by purchase" and "purchase" includes a "taking by . . . pledge": s. 1(1) (Definitions). The interest taken is a "security interest" because it "secures payment [page567] or performance of an obligation" (s. 1(1)). And the interest "attaches" because (a) the Bank had possession of the collateral by virtue of the agency arrangement described above, (b) the Bank gave value, and (c) Mr. Ablacksingh and Ms. Ramsackal had sufficient rights in the collateral to create a security interest: s. 11(2). The security interest was perfected by possession: s. 22(1).

[19] Whether the Bank's debtor, Mr. Ablacksingh, had "rights in the collateral", as called for by s. 11(2)(c) of the PPSA, is an important question in this appeal. The motion judge held that the requirement in s. 11(2)(c) had not been met. She said:

BMO's debtors, Ablacksingh and Ramsackal, had no rights in the collateral that was obtained using the funds that the plaintiff had advanced to Webworx. Ablacksingh could not acquire an interest in the collateral that he knew was obtained through his fraud. Ramsackal could not acquire an interest in the collateral since she had given no consideration for the initial transactions with BMO. There is no evidence the plaintiff intended to transfer ownership to Ablacksingh and Ramsackal.

[20] Respectfully, I disagree. Where property is turned over with the intention of transferring the ownership interest in it -- even where the transmission is induced by fraud unbeknownst to the transferor -- the transfer in such circumstances is sufficient to create a voidable interest in the transferee for purposes of creating a security interest: R. v. Canadian Imperial Bank of Commerce (2000), 2000 16957 (ON CA), 51 O.R. (3d) 257, [2000] O.J. No. 4149 (C.A.); Gray v. Royal Bank of Canada, 1997 2006 (BC SC), [1997] B.C.J. No. 151, 143 D.L.R. (4th) 179 (S.C.). Once the property has been transferred to a bona fide purchaser for value without notice, however, the interest is no longer voidable, on the principle that a bona fide purchaser for value without notice of the fraud is not affected by the fraud.

[21] The rationale behind this principle is well-expressed in an old American text, A treatise upon conveyances made by debtors to defraud creditors, 4th ed. (Washington: W.H. Lowdermilk & Co., 1896) by Orlando Bump, at pp. 489-90, cited with approval by Nathanson J. in Bank of Nova Scotia v. Simpson, [1984] N.S.J. No. 51, 52 C.B.R. (N.S.) 183 (S.C. (T.D.)) [at para. 28]:

Purchaser as well as Grantee Protected

The principle that fraud is only prejudicial to him who participates in it is also recognized by the statute. The proviso protects all interests and estates lawfully conveyed or assured upon good consideration and bona fide to a person who, at the time of such conveyance or assurance, has no manner of notice or knowledge of the covin, fraud or collusion. These terms are broad and extensive. They apply to any conveyance, whether from the fraudulent grantor or fraudulent grantee. They are meant to protect a bona fide purchaser for a valuable consideration without notice of the fraud from the operation of the statute. This is manifest as well from the internal evidence [page568] of the proviso as from the plainest maxims of equity and justice. The proviso is general. It exempts any conveyance upon good consideration and bona fide to any person not having notice of the fraud or collusion from the effect of the statute. Its benefits therefore extend to any bona fide purchaser for valuable consideration, whether he purchases from the fraudulent grantor or the fraudulent grantee. The great object of the law is to afford certainty and repose to titles honestly acquired. It is of no public utility to destroy titles so acquired on account of the taint of a prior secret fraud, which may be unsuspected and unknown, and which, probably, no diligence could detect. A purchaser who pays a fair price for an ostensibly fair title without notice of any latent fraud in any previous link of the title has a higher equity than the creditors. They may lose their debts; if they can recover the property from him he may lose the money which he paid for it. The equities between them are equal, and he has the legal title, and consequently the prior right, for the law never divests one of a legal title in order to invest another with it where there are no equitable reasons for so doing. He will therefore hold the estate purged of the anterior fraud that infected the title. (Footnotes omitted)

[22] In Central Newbury Car Auctions Ltd. v. Unity Finance Ltd., [1957] 1 Q.B. 371, [1956] 3 All E.R. 905 (C.A.), Lord Denning M.R. (albeit in dissent) drew a careful distinction between a true owner who is simply careless about giving up custody of goods and a true owner who intends or is induced to part with the property in them. At pp. 381-82 Q.B., he said:

It is one thing to part with possession of your goods. It is quite another to part with the property in them. If a man is induced to part with the property in his goods or with the power of disposing of them, then, even though he is induced thereto by the fraud of a rogue, he cannot afterwards avoid the transaction as against an innocent person who takes in good faith and for value . . .

It may be that he only intended to pass the property in the goods conditionally on being paid or on some other conditions, but nevertheless he cannot recover them from the innocent purchaser. It would be unjust to allow him to do so when he intended to part with the property in them and has armed the rogue with the goods or the means of disposing of them. He may have some private conditions or reservations, but they cannot affect an innocent purchaser who has no knowledge of them. The owner has behaved as if he intended to pass the property and must take the consequences. (Emphasis added)

[23] This court came to a similar conclusion in R. v. Canadian Imperial Bank of Commerce. There, the Crown sought to obtain forfeiture of funds held in an account at CIBC in the name of the corporate vehicle of the architect of a massive fraudulent telemarketing scheme involving the sale of phony gemstones at inflated prices. The Bank was a secured creditor of the company. The court held that the trial judge had erred by holding that because the proceeds in the account were the proceeds of crime they could not be given as security by the perpetrator of the fraud. It said [at para. 7]: [page569]

The Crown relies on the case of Chrysler Credit Canada Ltd. v. MVL Leasing Ltd. (1993), 5 P.P.S.A.C. (2d) 92 (Ont. Ct. Gen. Div.). That case involved a stolen car, and is distinguishable from the case at bar. There was never any intent by the owner of the car to transfer ownership to the rogue. In this case, the victims of the gem scam did not know they were victims and intended to forward their funds to R.I.C. in exchange for the gemstones which they received. The interest of R.I.C. in the funds was voidable but not void ab initio. The security interest of the bank was therefore able to attach to the funds deposited into the account. (Emphasis added)

[24] Here, i Trade intended to transfer ownership in the Purloined Funds as directed by Mr. Ablacksingh. The motion judge attempted to distinguish the foregoing line of jurisprudence on the basis that there was no evidence of any intention to pass title in the funds to Mr. Ablacksingh and Ms. Ramsackal themselves. In my view, the distinction between intending to transfer ownership to Webworx (the vehicle used by the fraudster to commit the fraud) at the direction of the fraudster, and intending to transfer ownership to the fraudster himself, is quite immaterial. i Trade transferred the funds to, or at the instance of the fraudster, intending to pass title. Having done so, and having -- to adopt the language of Lord Denning -- "armed the rogue with the goods or the means of disposing of them", i Trade "has behaved as if [it] intended to pass the property and must take the consequences": Central Newbury Car Auctions, at p. 382 Q.B.

[25] The consequences are that Mr. Ablacksingh had sufficient property in the funds to create a security interest and to pledge them to the Bank, a bona fide purchaser for value without notice of the fraud, and that once he did so, i Trade's ability to trace the funds pursuant to the judgment of Belobaba J. was lost.

[26] I turn to that issue now.

The Bank was a bona fide purchaser for value

[27] The motion judge concluded that although BMO was a "purchaser", it had failed to establish that it was a bona fide purchaser for value without notice within the exception provided in the tracing order granted by Belobaba J. This, in spite of the fact that she found in her reasons as follows (at para. 12):

At no time did the BMO have any notice or knowledge that the shares within the account may have been acquired with funds improperly received by Ablacksingh from the funds advanced to Webworx by the plaintiff. The BMO extended the credit limit in good faith without notice of any irregularity in respect of the shares.

[28] The motion judge recognized that the chain for tracing is broken where the funds have found their way into the hands of a [page570] third-party purchaser for value without notice: McTaggart v. Boffo (1975), 1975 351 (ON SC), 10 O.R. (2d) 733, [1975] O.J. No. 2539 (H.C.J.), at p. 750 O.R. Her sole rationale for concluding that BMO did not fall within the parameters of the tracing order of Belobaba J. was that "BMO [was] a purchaser from Ablacksingh and Ramsackal, not a purchaser from Webworx."

[29] Respectfully, that distinction is equally immaterial for these purposes. The fact that the Bank purchased directly from the fraudster rather than from the corporate vehicle used by the fraudster to perpetrate the fraud is of no moment. BMO remains a bona fide purchaser for value of the funds wrongly appropriated by Mr. Ablacksingh. i Trade therefore loses its right to trace the funds pursuant to the judgment once they fall into the hands of such a purchaser.

Unjust enrichment

[30] The question remains, then, whether i Trade is entitled to recover the funds based on principles of unjust enrichment standing alone. Tracing is only a means to another remedy -- in this case, unjust enrichment resulting in the imposition of a constructive trust. Since there is no dispute that the shares in the Investment Account were purchased with moneys originating in the Purloined Funds, it is necessary to consider whether the equitable principles of unjust enrichment entitle i Trade to claim the funds.

[31] I conclude they do not.

[32] The principles that give rise to the imposition of a constructive trust, based upon unjust enrichment, require the finding of (a) a benefit to or enrichment of one party, (b) a corresponding detriment to or deprivation suffered by the other party, and (c) the absence of any juristic reason for the benefit or enrichment: Rathwell v. Rathwell, 1978 3 (SCC), [1978] 2 S.C.R. 436, [1978] S.C.J. No. 14; Pettkus v. Becker, 1980 22 (SCC), [1980] 2 S.C.R. 834, [1980] S.C.J. No. 103; Peter v. Beblow, 1993 126 (SCC), [1993] 1 S.C.R. 980, [1993] S.C.J. No. 36; Canada (Attorney General) v. Confederation Life Insurance Co. (1995), 1995 7097 (ON SC), 24 O.R. (3d) 717, [1995] O.J. No. 1959 (Gen. Div.), affd (this point not dealt with) (1997), 1997 2801 (ON CA), 32 O.R. (3d) 102, [1997] O.J. No. 123 (C.A.).

[33] The motion judge rejected BMO's submission that its otherwise valid Pledge Agreement with Mr. Ablacksingh and Ms. Ramsackal was a "juristic reason" for the Bank's enrichment if indeed the Bank was "enriched" within the meaning of the test for unjust enrichment (which BMO contests). She did so in the context of an analysis of whether Webworx had been unjustly enriched. The Bank argues that she erred in both respects. I [page571] agree, although I do not think that framing the issue to ask whether i Trade had established that Webworx was unjustly enriched makes much difference in the result.

[34] i Trade seeks to recover restitution against BMO, however, and to do so must show that the benefit/enrichment analysis applies as between it and the Bank. Here, the Bank acknowledges that i Trade has suffered a detriment, but submits that BMO has not been "enriched" as that term is meant to be construed in the context of the unjust enrichment analysis. The Bank took security in the form of the shares in the Investment Account and, in exchange, provided a loan on the strength of that pledge. Having advanced the loan in good faith, the Bank argues that it was not "enriched" by taking the pledge in the sense that the cause of action of unjust enrichment seeks to address. The counter-argument would be that the Bank benefitted -- has been "enriched" -- to the detriment of i Trade by being able to use i Trade's money as security for its credit advance to Mr. Ablacksingh and Ms. Ramsackal. BMO would not have been able to take the security were it not for the fact that the shares had been purchased using the Purloined Funds, to the detriment of i Trade.

[35] Counsel have pointed out to us that there is little jurisprudence on the issue of what constitutes "enrichment" in this context. The courts have generally been content to assume, without deciding, that there has been an enrichment, but to determine cases on the basis of the "juristic reason" analysis: see, for example, Royal Bank of Canada v. Harowitz (1994), 1994 7245 (ON SC), 17 O.R. (3d) 671, [1994] O.J. No. 619 (Gen. Div.), affd (1997), 1997 662 (ON CA), 33 O.R. (3d) 704, [1997] O.J. No. 2599 (C.A.); Canada (Attorney General) v. Confederation Life Insurance Co. (Gen. Div.), at pp. 770-71 O.R.

[36] This, too, is a similar case. I am prepared to assume for purposes of the appeal, without deciding, that the Bank has been enriched at the expense of i Trade. I am satisfied, however, that i Trade cannot succeed on unjust enrichment principles because there are valid juristic reasons for the enrichment. Those reasons are: (i) the otherwise valid contractual arrangement between BMO and Ablacksingh/Ramsackal; (ii) the fact that, in law, the borrowers had sufficient property in the shares in the Investment Account to create a pledge; and (iii) the fact that BMO is a bona fide purchaser for value without notice of the fraud.

[37] The motion judge correctly observed that the third element of the unjust enrichment analysis focuses on the "unjustness" of the situation at hand: Beblow, at p. 990 S.C.R.; Harowitz (C.A.). She essentially decided, however, that BMO -- having obtained an agreement from Ablacksingh/Ramsackal to [page572] provide a security agreement, but having failed to register or take any steps required to protect its interests under the PPSA -- should not prevail over i Trade, which was the victim of fraud. She said that the agreement between the Bank and Ablacksingh/Ramsackal was not a juristic reason for the enrichment. Her conclusion in this respect was as follows (at para. 30):

On the undisputed facts, the first two elements are satisfied; Webworx was enriched while the plaintiff suffered consequential deprivation. The third element requires an examination of the "unjustness" of the situation at hand. The BMO argues that its agreements with Ablacksingh and Ramsackal constitute a juristic reason for the enrichment of Webworx. Ablacksingh and BMO entered into commercial relationships. Ablacksingh agreed to pledge the shares in the BMO Nesbitt Burns account. The BMO obtained an agreement to give a security interest. Having failed to take the requisite steps under the PPSA, it did not acquire a security interest in the BMO Nesbitt Burns account. On the other hand, i Trade was a victim of fraud. It would not be just to prefer BMO over i Trade. The fact that BMO had such an agreement with Ablacksingh and Ramsackal is not a juristic reason that would preclude recovery by i Trade. The rights BMO obtained do not defeat the plaintiff's rights. The plaintiff has established that the BMO Nesbitt Burns account was impressed with a constructive trust in its favour.

[38] Respectfully, there are three flaws in this analysis. First, as I have indicated above, BMO did obtain a security interest in the shares in the Investment Account. BMO did not argue that its agreement with Mr. Ablacksingh and Ms. Ramsackal constituted a valid juristic reason for the enrichment of Webworx; it argued, correctly, that the agreement constituted a valid juristic reason for the enrichment of BMO. The latter is the appropriate comparison. Whether a different conclusion respecting the existence of a security interest in the property in the Investment Fund would have altered the motion judge's balancing of the equities is not clear. However, had the motion judge recognized that, in law, Mr. Ablacksingh and Ms. Ramsackal did have a sufficient property interest in the shares to create the pledge, and had she focused on the enrichment of BMO rather than Webworx, she might well have taken a different view of the balance.

[39] Secondly -- and in any event -- it was an error in law for the motion judge to conclude that the agreement between Ablacksingh/Ramsackal and BMO was not a juristic reason precluding recovery by i Trade. A valid contract leading to a debtor-creditor relationship between the person enriched and another -- as was the case here -- is sufficient to establish the existence of a juristic reason for an enrichment that can be accounted for on the basis of that contractual relationship. In this regard, the absence or presence of a juristic reason in connection with the enrichment need not necessarily arise out of the relationship between the party asserting the claim for unjust enrichment [page573] (i Trade) and the party enriched (BMO): see Canada (Attorney General) v. Confederation Life Insurance Co. (Gen. Div.), at p. 771 O.R.; Rathwell v. Rathwell, at p. 455 S.C.R.; Harowitz.

[40] Here, BMO entered into a valid and legitimate contract with its borrowers (Ablacksingh and Ramsackal) without any knowledge or notice that the assets in the Investment Account had been purchased using moneys improperly taken by Mr. Ablacksingh from Webworx and improperly obtained by Webworx from i Trade through Ablacksingh's fraudulent scheme in the first place. It is not necessary that this contract be a "security agreement" in the technical sense of the PPSA, in my view. It was a valid agreement to take security pledged by Mr. Ablacksingh and Ms. Ramsackal. Such a valid contractual relationship has long been held to be one of the examples of a "juristic reason" that will defeat a claim for unjust enrichment.

[41] This brings me to the final consideration. BMO's position as a bona fide purchaser for value without notice of the fraud is not inconsequential in the third branch of the unjust enrichment analysis. Equity has long protected the interests of someone in such a position, for the reasons summarized in the quotation from Bump, cited at para. 21 above. There will always be irregular or unknown transactions ensuing from a fraudulent scam. As the text notes, however, at pp. 489-90:

It is of no public utility to destroy titles [honestly acquired] on account of the taint of a prior secret fraud, which may be unsuspected and unknown, and which, probably, no diligence could detect. A purchaser who pays a fair price for an ostensibly fair title without notice of any latent fraud in any previous link of the title has a higher equity than the creditors. They may lose their debts; if they can recover the property from him he may lose the money which he paid for it. The equities between them are equal, and he has the legal title, and consequently the prior right, for the law never divests one of a legal title in order to invest another with it where there are no equitable reasons for so doing. He will therefore hold the estate purged of the anterior fraud that infected the title.

[42] To hold that a contract entered into between the person "enriched", without any notice or knowledge of the fraud, and the fraudster does not provide a juristic reason for the enrichment would defeat the purpose of the long-established equitable protection which the law makes available -- for equally long-established policy reasons -- to bona fide purchasers for value without notice.

Disposition

[43] For the foregoing reasons, I would allow the appeal, set aside the order of the motion judge and award the Disputed [page574] Funds, in the amount of $130,117.11 together with accrued interest from March 19, 2004, to BMO.

[44] In accordance with the agreement between the parties, the appellant is entitled to its costs of the appeal fixed in the agreed amount of $12,000 plus disbursements and GST and to its costs of the motion before Kiteley J. in the same amount ordered by her.

Appeal allowed.

Notes

Note 1: The funds were advanced by i Trade Finance Inc., the plaintiff in the action. Technically, the action has now been taken over by a successor company, i Trade Holdings Inc. By order dated December 29, 2006, the action was continued by i Trade Holdings Inc. The distinction between Finance and Holdings is irrelevant to the appeal. I shall refer to the two companies together as "i Trade".