Court of Appeal for Ontario

Date: 2019-04-03 Docket: C65615

Judges: Lauwers, Benotto and Brown JJ.A.

Between

Saint Luke Lutheran Church Plaintiff

and

Don McGregor and Investia Financial Services Inc., o/a Money Concepts Defendants (Appellant)

and

Pierre Cronier, Denis Poirier, Margaret Tannahill-Wade, Bryan J. King, David Bickel, Kim Herweyer, Ron Herweyer, Murray Johnson, Gail Detlefsen, Barton Thomas Burron, John Doe #1 – 50 and Jane Doe #1 - 50 Third Parties (Respondents)

Counsel

Philip Ghosh, for the appellant

Joseph Griffiths, for the respondents

Heard

March 27, 2019

On Appeal

On appeal from the judgment of Justice Kevin Phillips of the Superior Court of Justice, dated March 29, 2018.

Reasons for Decision

[1] Saint Luke Lutheran Church is an unincorporated association of individuals. Under its constitution, members of the congregation are appointed as officers and given specific responsibilities. The officers changed from time to time over the relevant period of Mr. Burron's fraud. It is noteworthy that neither the motion judge nor the parties adverted to the unincorporated status of Saint Luke Lutheran Church as a party to litigation, or in relation to its members.

[2] At para. 10 of his typed endorsement, the motion judge said:

The bottom line is that it was and remains the Court's intention that the third party claim involving all persons other than Barton Thomas Burron be dismissed (I am satisfied that a basis exist for him to arguably have a distinct fiduciary duty and a related independent standard of care).

[3] The motion judge's observation in the bracketed sentence applies to every person named as an officer during the time that Mr. Burron carried out his fraud. There are several complex issues including: the status of the plaintiff to bring an action; how the law applies as it relates to unincorporated associations of individuals, and to the provisions of the Negligence Act and the Rules of Civil Procedure. The correlation is a matter of considerable complexity and requires a full evidentiary record, one that has not been developed. This is a matter that should go to trial.

[4] The appeal is allowed, and the appellant's motion to substitute new names for the "Doe" third parties is allowed. The respondents will pay costs to the appellant in the amount of $8,000, all-inclusive.

"P. Lauwers J.A."

"M.L. Benotto J.A."

"David Brown J.A."