Court of Appeal for Ontario

Citation: Cash House Inc. v. Choy, 2015 ONCA 584

Date: 2015-08-28

Docket: C58484

Before: Feldman, Simmons and Miller JJ.A.

Between:

The Cash House Inc.

Appellant (Plaintiff)

and

Lai Kwan Choy, HSBC Bank Canada, Andrew Mantella, Maple Trust Company, 1682689 Ontario Limited and Bob Chong

Respondent (Defendants)

Counsel:

Mauro Marchioni and Adam Justin Marchioni, for the appellant

R. Leigh Youd, for the respondent, Andrew Mantella

Martin Sclisizzi, for the respondent, Maple Trust Company

Heard: August 25, 2015

On appeal from the judgment of Justice David G. Stinson of the Superior of Justice, dated November 20, 2013.

ENDORSEMENT

[1] The appellant appeals the decision of the trial judge dismissing its claims against both the mortgagee and against its solicitor. The appellant cashed a bank draft to the mortgagor drawn by the solicitor on his trust account for the mortgage funds. Unfortunately, the mortgagor was a fraudster who duped both respondents and the appellant.

[2] The appellant raises two grounds of appeal against the mortgagee Maple Trust Company. The first is that the trial judge erred by dismissing the appellant’s request to amend the claim against Maple Trust following its closing argument, to add new allegations of negligence. The appellant argues that Rule 26 is mandatory and that the timing of the motion caused only the type of prejudice that could be compensated by costs or an adjournment.

[3] In our view, there is no basis to interfere with the discretionary decision of the trial judge not to allow the trial to be re-opened after closing argument. In any event, as the new allegations would have constituted a completely different cause of action in negligence, they would have been statute barred.

[4] As we are not giving effect to the first ground, there is no need to address the applicability of negligence principles had the amendment been allowed.

[5] The appellant also seeks to set aside the decision of the trial judge not to recognize a new duty of care owed by the respondent Mantella to the appellant as the effective “collecting bank” in respect of the bank draft. We see no error in the trial judge’s conclusion. This court recently held in Teva v. Bank of Montreal, 2012 ONCA 486, 294 O.A.C. 323, that the court should not recognize a new duty of care in the context of the obligations that exist in respect of bills of exchange.

[6] The appeals against the respondents, Maple Trust and Mantella, are dismissed with costs fixed in the agreed amount of $17,000 inclusive of disbursements and HST to each respondent.

[7] The balance of the appeal against the respondent Chong is adjourned in accordance with the endorsement of the court made following the oral hearing.

“K. Feldman J.A.”

“J. Simmons J.A.”

“B. Miller J.A.”