Court of Appeal for Ontario

Citation: 2012 ONCA 677 Date: 2012-10-05 Docket: C55323

Before: Laskin, Blair and Epstein JJ.A.

Between:

Fairlie Insurance Agency Inc. and John Fairlie Plaintiffs (Appellants)

and

Benesure Canada Inc. and John Lorriman Defendants (Respondents)

Counsel: Mark Wainberg, for the plaintiffs (appellants) Paul Michell, for the defendants (respondents)

Heard: October 4, 2012

On appeal from the order of Justice Kenneth L. Campbell of the Superior Court of Justice, dated March 7, 2012.

APPEAL BOOK ENDORSEMENT

[1] Without deciding the issue, we are not able to say, given the decision of the British Columbia Court of Appeal in Sun-Rype Products Ltd. v. Archer Daniels Midland Company, 2008 BCCA 278, that it is “plain and obvious” a claim in equitable fraud cannot succeed. The appeal is therefore allowed, the order striking the plea of equitable fraud is set aside, and the defendants’ motion below is dismissed. The plaintiffs are entitled to amend their statement of claim if so advised.

[2] The costs order below is varied by reducing the costs payable to the defendants to the sum of $3500 all inclusive. Costs of the appeal are fixed in the amount of $8000, in favour of the appellant, again inclusive of disbursements and all applicable taxes.