Court File and Parties

CITATION: Bray v. Fijnheer, 2009 ONCA 746

DATE: 20091027

DOCKET: C50564

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Juriansz & Rouleau JJ.A.

BETWEEN:

Mary Bray

Appellant (Plaintiff)

and

Willem Fijnheer, the H.E.L.P. Sign Inc., Cohen Highley, Rose Finance Corp., Rose London Inc., the Rose Corporation, 2040262 Ontario Inc., and Tim Bankier

Respondents (Defendants)

Counsel:

Andrew C. Murray, for the appellant

Gavin MacKenzie and Marcus Knapp, for the respondents

Heard: October 26, 2009

On appeal from the order of Justice T.D. Little of the Superior Court of Justice dated May 6, 2009.

APPEAL BOOK ENDORSEMENT

[1] The respondent concedes that the motion judge erred in concluding that the statement of claim does not plead a cause of action against the defendant law firm and also in concluding that there could not be a cause of action against the firm.

[2] Paragraph 89 pleads that the law firm was aware of and assisted the fraud and breach of fiduciary duty by the other defendants and assisted the knowing receipt of the property by the other defendants. This constitutes a plea of “knowing assistance” which can form the basis for legal liability.

[3] Given the view that the motion judge took of the matter, he did not deal with the question of whether the claim of “knowing assistance” was sufficiently particularized and, if not, whether leave to amend should be granted.

[4] In our view, the statement of claim lacks sufficient particulars with respect to two of the essential elements of an action for knowing assistance, those being the requirements that a stranger to a trust have actual knowledge of the existence of the trust and that the stranger have actual knowledge or be wilfully blind to and participate in the trustee’s dishonest and fraudulent breach of trust.

[5] We are satisfied that this is a proper case to provide the appellant with an opportunity to amend to include the necessary particulars.

[6] In the result, the appeal is allowed and the order of the motion judge is set aside. The appellant shall have leave to amend the statement of claim as set out above. This order is without prejudice to the respondent bringing a further motion after the particulars have been provided. Costs to the appeal are fixed in the amount of $7,500, inclusive of disbursements and GST and shall be in the cause.