ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-55329

DATE: 2014/12/17

BETWEEN:

Michael Evans and Crystal Evans,
Plaintiffs

and –

The Bank of Nova Scotia and Richard Wilson
Defendants

Michael Hebert and Cheryl Gerhardt McLuckie, counsel for the Plaintiffs

Martin Sclisizzi and Markus F. Kremer, counsel for the Defendants

HEARD: November 4, 2014

REASONS FOR JUDGMENT

CHARBONNEAU, M. Z.

[1] The Bank of Nova Scotia (“the Bank”) seeks leave to appeal to the Divisional Court from the decision (the “Decision”) of Justice R. Smith certifying this action as a class proceeding.

[2] The motion is brought pursuant to the provisions of Rule 62.02 (4) of the Rules of Civil Procedure which provides:

62.02 (4) Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or

elsewhere on the matter involved in the proposed appeal and it is, in the

opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the

correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted. R.R.O. 1990, Reg. 194, r. 62.02 (4).

[3] The Bank seeks leave to appeal three aspects of the Decision on the basis of both paragraphs (a) and (b) of Rule 62.02 (4).

The Factual Background

[4] The defendant Richard Wilson (“Wilson”) was an employee of the Bank who was authorized as mortgage administration officer to have access to highly confidential customer information. Wilson provided private and confidential information of Bank customers to his girlfriend who then disseminated it to third parties for fraudulent purposes. As a result many of the Bank’s customers were victimized.

[5] When Wilson was arrested by the Calgary police, the Bank notified the 643 customers whose profiles had been accessed by Wilson between July 2011 and May 18, 2012. Of those, 138 customers have advised the Bank that they may have been victims of identity theft and or fraud and 36 made claims for pecuniary loss and were compensated by the Bank.

The Decision

[6] The motion judge defined the class as follows:

All persons who:

i) reside in Canada;

ii) provided personal information, which may include, but is not limited to,

their name, financial and employment information, date of birth, address

and telephone number or government identification numbers, to the defendant the Bank of Nova Scotia for the purpose of obtaining credit or opening an account;

iii) who received a letter or telephone call from the Bank of Nova Scotia or

Scotiabank in or about June of 2012 in which they were advised that there was a

risk that their personal information may have been provided by a former employee of the Bank of Nova Scotia to third parties for possible fraud or other purposes.

[7] The motion judge certified the following causes action:

a) Vicarious liability of the Bank for Wilson’s tort of intrusion upon seclusion or his breach of duty of good faith;

b) Negligence of the Bank in failing to adequately supervise Wilson;

c) Breach of contract by the Bank;

d) Liability of Bank on the basis of waiver of tort;

e) Liability of the Bank for damages for emotional stress, hardship and inconvenience for any of the alleged causes of action.

[8] The motion judge certified the following common issues:

a) Did the Defendants breach their contractual obligations owed to the Class Members by disseminating their private and confidential information to third parties for improper and fraudulent purposes?

b) Was the Defendant, The Bank of Nova Scotia, negligent in failing to provide adequate supervision or electronic monitoring of Richard Wilson which allowed Class Members’ private and confidential information to be disseminated to third parties for improper and fraudulent purposes?

c) Is Richard Wilson liable for the tort of intrusion upon seclusion and should The Bank of Nova Scotia be held vicariously liable for same?

d) Did Richard Wilson breach a duty to act in good faith with respect to the handling and use of Class Members’ private and confidential information? If so, is The Bank of Nova Scotia vicariously liable for Richard Wilson’s breach of his duty of good faith?

e) What damages can the Class Members claim from The Bank of Nova Scotia on the basis of waiver of tort?

The grounds of appeal

[9] The Bank only seeks to appeal three aspects of the Decision:

• the class definition;

• the certification of the waiver of tort claim;

• allowing the plaintiffs to pursue the action in negligence and contract for damages for emotional suffering and inconvenience.

Analysis

[10] I am not called here to decide whether the motion judge’s decision should be upheld or not. I am only concerned whether or not the Bank has established that an appeal is warranted on the basis of ground (a) or (b) of Rule 62.02 (4).

The claim for non-pecuniary damages for breach of contract and/or negligence

[11] The Bank submits that the plaintiffs have not alleged that they have suffered a recognizable psychiatric injury. The Bank relies on decisions which have clearly established that non-pecuniary damages for breach of contract or negligence are non-recoverable in the absence of a serious and prolonged psychological injury. Without provable damages there can be no cause of action in negligent or contract. The Bank relies on the decision of the Supreme Court of Canada in Mustapha v. Culligan of Canada Ltd 2008 SCC 27 and the decision of the Ontario Court of Appeal in Healey v. Lakeridge Health Corp. 2011 ONCA 55. The Bank also relies on the decision of the Federal Court in Condon v. Canada [2014] FC 250.

[12] In Mustapha, Chief Justice McLachlin writes at paragraph 9:

This said, psychological disturbance that rises to the level of personal injury must be distinguished from psychological upset. Personal injury at law connotes serious

trauma or illness: see Hinz v. Berry, [1970] 2 Q.B. 40 (C.A.), at p. 42; Page v. Smith, at p. 189; Linden and Feldthusen, at pp. 425-27. The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury. I would not purport to define compensable injury exhaustively, except to say that it must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept. The need to accept such upsets rather than seek redress in tort is what I take the Court of Appeal to be expressing in its quote from Vanek v. Great Atlantic & Pacific Co. of Canada (1999), 1999 2863 (ON CA), 48 O.R. (3d) 228 (C.A.): “Life goes on” (para. 60). Quite simply, minor and transient upsets do not constitute personal injury, and hence do not amount to damage.

[13] In Healy, the Court dismissed an appeal from a decision dismissing an action on a motion for judgment. Healy was very similar to our case in that the plaintiffs in Healy had not pleaded that they had suffered a recognizable psychiatric illness. Sharpe J.A. writing the judgment of the Court agreed with the following passage of the judge granting judgment and dismissing the action:

For the purposes of the case at bar, four observations may be made about Chief Justice McLachlin’s comments. First, jurisprudentially speaking, her comments about the

threshold of psychological injury in a tort claim for negligence were at most obiter dicta because in Mustapha, it was a given that Mr. Mustapha suffered a recognizable psychiatric illness. Second, it is doubtful that the Chief Justice would make an important and potentially far-reaching change in the law by obiter dicta. Third, and in any event, if her comments are taken to be more than obiter and are an authoritative statement of the law, all she decided was that: (a) personal injury damages include psychological injury; but (b) not all psychological upset constitutes personal injury damages. Justice McLachlin expressly left open - she said: “I would not purport to define” – the definition of compensable psychological injury except to say” that it must be serious and prolonged and rise about the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly accept… Quite simply, minor and transient upsets do not constitute personal injury and hence do not amount to damage”. Fourth, her citation of Hinz v. Berry suggests that she was equating a psychological disturbance that rises to the level of personal injury to a psychiatric illness recognizable to the medical profession.

[14] The Bank therefore submits on that issue that there are good reasons to doubt the correctness of the motion judge’s decision and that the proposed appeal involves matters of importance requiring an appeal.

[15] Sharpe J.A. clearly stated that the appeal was being dismissed on the narrow basis that the appellants in Healy had stated their case on the proposition that Mustapha had changed the law. He went on to say at paragraph 64 that the evidence in Healy clearly revealed that the harm suffered by the plaintiffs did not go beyond what McLachlin C.J. described as “ the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept”. And further at paragraph 66, he states that: “I do not wish to be taken as saying the possibility of any change in the formulation of the test should be foreclosed once and for all”.

[16] The motion judge in the present case was well aware of the Court of Appeal’s decision in Healy. He was however deciding the issue on the basis of the very low threshold of whether or not it was plain and obvious that the plaintiff’s action in negligence and/or contract would fail. This is a very minimal threshold for the plaintiffs to meet. A much more stringent test will have to be met at a motion for judgment or a trial should the same issue be raised. This however is not a reason to refuse certification.

[17] In Anderson v. Wilson (1999), 1999 3753 (ON CA), 44 O.R. (3d) 673 (C.A.) in agreeing with the motion judge who had certified the action as a class action the Court of Appeal stated:

Given the uncertain state of the law on tort relief for nervous shock, it is not appropriate

that the court should reach a conclusion at this early state and without a complete

factual foundation. It cannot be said, in this case, that it is plain and obvious

that the claim for the tort of mental distress standing alone will fail.

[18] My reading of the motion judge’s decision is that he was not prepared to dismiss the action at the pleading stage. He applied the correct test. I am not convinced that leave to appeal should be granted because there are no clearly conflicting decisions at the pleading stage of the action. In any event, in my opinion it is not desirable to grant leave to appeal the decision as the issue can be more adequately decided on a better and full evidentiary record.

Class definition

[19] The Bank submits that the class definition is fatally over-inclusive because it includes all individuals whose profiles were accessed by Wilson during the given period while only less than 25% of them were actually affected by an unauthorized access and there will be no way of determining how many of the rest had their profile accessed legitimately or wrongfully. The Bank submits further it will never be possible to determine which class members have claims because it will be impossible to determine which profile was accessed legitimately or wrongfully.

[20] The Bank relies on the Ontario Court of Appeal’s decision in Dennis v. Ontario Lottery and Gaming Corp. 2013 ONCA 501. In Dennis, the Court of Appeal found that a class definition including all individuals who had signed a self-exclusion form was over-inclusive. At para 62 and 63, Sharpe J.A. writes:

62. It is conceded that some individuals who signed the form did not return to gamble.

Plainly, they have no claim. Nor do those who attempted re-entry but were excluded.

Further, it cannot be the case that an individual who signed the form but returned to lose money is thereby automatically entitled to claim those losses from OLG. An OLG patron cannot immunize himself or herself from gambling losses by singing a self-exclusion form. It follows that to make out a claim, a class member would have to establish, on an individual basis, that he or she returned to an OLG facility, lost money and suffers from vulnerability produced by the affliction of pathological gambling, and that OLG could and should have prevented the particular harm from having occurred.

63. I cannot agree with the appellants’ contention that, assuming it can be established that OLG committed an actionable failure to use its “ best efforts” to exclude those who signed the self-exclusion form, everyone who signed the form has a “tenable” claim for breach of contract, negligence, occupiers’ liability and waiver of tort. The gap between a finding that OLG failed to use best efforts to exclude and an actionable claim in law is unacceptably wide. That gap could only be filled with detailed inquiries into the individual circumstances of each and every class member, revealing the fatally over-inclusive nature of the proposed class definition.

[21] The motion judge recognized that some members of the class may ultimately not be successful. He dealt with the Bank’s submissions at paragraph 76, 77 and 78 of his reasons for judgment:

76. I find that defining the class to include the group of 643 customers in the Notice Group is preferable to limiting the class to the 138 customers who have responded to the Bank and advised that they have been the victims of identity theft or fraud, for the following reasons:

a) the group of 643 individuals is not overly large and is not unmanageable;

b) this group of individuals was identified by the Bank of Nova Scotia as the appropriate notice group;

c) the two groups can be divided into two subclasses that are not in conflict;

d) the damages suffered, if any, is any individual issue;

e) while a number of the individuals included in the class may not have suffered any damages, the number of class members is not unmanageable and damages can be determined on individual damage claims once the common issues have been decided.

77. The Bywater case involved an accident on the Toronto subway where the existence and extent of each class member’s actual injuries suffered in the accident was unknown. Winkler J. (as he then was) stated, at paras. 10 and 11, that the individuals who have a potential claim do not have to prove damages in order to be included as class members, and held that including everyone who was on the train at the time of the accident was not unduly narrow or broad.

78. I find that the Bywater situation is similar to the one before me as some of the members of the proposed class may ultimately not be successful in proving damages if their files were accessed for a proper business purpose, or if their private information was not transferred to third parties for an improper purpose. However, this does not mean that the class should not be defined to include everyone with a possible claim. [my emphasis]

[22] The plaintiff’s reply to the Bank’s submissions by asserting that the profile of every member of the class was accessed by Wilson during the period identified by the Bank in its notice and that it is sufficient to give each one of them a tenable claim against the Bank.

[23] The crux of the matter is whether there is an unacceptably wide gap between a finding that the Bank was negligent in its supervision of Wilson and an actionable claim in law on the basis that the individual class member will have to prove that his or her profile was illegally accessed and provided to third parties for wrongful purposes. In Dennis (supra) the answer was clear. To even get to the issue of individual damages there were three facts that had to be established on an individual basis. In Dennis (supra) it was conceded that some of the class members did not return to gamble and therefore could never have a claim. This is not the case here. The profile of each and every member of the class was accessed by Wilson. What he did or did not do with the profile is mostly a question of damages than of tenable claim. As such this case is more like Anderson (supra).

[24] I am of the view that the present claim is very different from the situation in Dennis (supra) and in fact much closer to the situation in Bywater Toronto Transit Commission 1998 O.J. No 4913, Cloud v. Canada (Attorney-General) 2004 45444 (ON CA), [2004] 73, O.R.. (3d) 401 (C.A.) and Dumoulin v. Ontario,

[2005] O.J. No 3961 (S.C.J.). These cases all stand for the proposition that a merits based definition is not permissible nor required. It is not a requirement of the class definition that each member will ultimately be successful.

[25] Dennis (supra) must be confined to its facts. Sharpe J.A. properly distinguished between a definition that is a fatally overbroad definition to one that is acceptable by comparing the facts in Dennis to the facts in Hickey-Button Loyalist College of Applied Arts and Technology (2006) , 2006 20079 (ON CA), 267, D.L.R. 601 (Ont. C.A.) where the definition was found not to be over-inclusive, at paras 64 and 65 of his reasons for judgment:

64. This case is distinguishable from Hickey-Button v. Loyalist College of Applied

Arts & Technology (2006), 2006 20079 (ON CA), 267 D.L.R. (4th) 601 (Ont. C.A.) in which the court certified

a claim by college students for breach of contract based on the college’s failure to

provide an option it had promised. In Hickey-Button, the college had promised

every student a program option and allegedly failed to provide that option. The

class definition was not over-inclusive as the contract of every student was breached by the

defendant’s unilateral failure to provide the option it had promised. Liability did not hinge upon the individual circumstances or conduct of the students. Damages might vary depending upon the individual circumstances or conduct of the students. Damages might vary depending upon the likelihood that the individual student would have taken the option, but all students had a claim for failure to provide the option.

65. I do not agree that all signatories of the self-exclusion form are in the same

position as the students in Hickey-Button. The failure of the college to provide the opinion in Hickey-Button deprived all students of a promised benefit. The students had paid their fees for a program that included that option and, in and of itself, the failure to provide that promised option constituted a breach. In the case of OLG and self-excluders, once again, we encounter the problem that any claim is dependent upon the actions of the members of the proposed class. The promised benefit of the promise to use “best efforts” to exclude is, by its very terms, directly tied to the actions of the self-excluders. Taking the claim at its highest, OLG promised self-excluders that if they attempted re-entry, best efforts

would be made to exclude them. Any value attached to the promise to use best efforts could only come into play if and when the obligation to use best efforts was triggered by the self-excluder’s attempt and success in gaining re-entry. If the self-excluder did not attempt entry or attempted and was excluded, it is difficult to see how there could be an actionable breach. Nor could failure to use best efforts, without more, ground a claim in negligence or occupier’s liability as damages are an essential element of a claim in tort.

[26] I am not convinced that there are good reasons to doubt the correctness of the motion judge’s decision to certify the class definition.

Waiver of Tort Issues

[27] The Bank submits that the motion judge accepted the Bank’s submissions that the plaintiffs had failed to adduce any basis in fact to support an allegation that the defendants had earned profits caused by the wrongful conduct of the Bank. The Bank points out also that the motion judge accepted that the unauthorized access did not cause any profits for the Bank.

[28] The Bank submits that the motion judge then incorrectly proceeded to certify an entirely new Waiver of Tort issue that was wholly different, unrelated to the plaintiffs’ pleadings, never raised or discussed at the hearing of the motion and unsupported by any evidence providing “some basis in fact”.

[29] The motion judge dealt with this issue as follows at paras 103, 104 and 105.

[103]. As I have discussed above, prior jurisprudence has not resolved the details

of the law of waiver of tort, nor the particular circumstances in which it can be pleaded.

If waiver of tort was to be recognized as an independent cause of action, it would

require that the plaintiff show that the defendant had derived benefits from its wrongful conduct.

[104] Wilson’s actions of releasing confidential, private information of class

members to third parties for improper, fraudulent purposes did not provide any benefit to the Bank. The handling of the plaintiffs’ private information is part of the Bank’s business model. The plaintiffs allege that the Bank failed to install a system to adequately supervise its employees to ensure that its customers’ confidential information remained private, which they claim is negligent and wrongful conduct. It could be inferred that the Bank has made additional profits from saving the expenses of implementing a supervision system and therefore made additional profits from the class members’ business while not adequately protecting their privacy interests.

[105] Waiver of tort does not require that individual damages be proven, and

therefore this issue could easily be addressed as a common issue and its resolution would

be necessary for each class members’ claim. Damages suffered by individual class

members may be an individual matter if the plaintiffs are successful on the waiver of tort claim.

[30] The Bank submits that the motion judge certified this common issue in the absence of “some basis in fact” in clear contradiction to the Supreme Court of Canada decision in Pro-Sys Consultants Ltd v. Microsoft Corporation [2013] SCC 57 and therefore there is good reason to doubt the correctness of his certification of the Waiver of Tort issue.

[31] Moreover, the Bank submits that in proceeding on his own inference as he did, the motion judge also denied the Bank natural justice. On that basis also there is good reason to doubt the correctness of his decision. The Bank relies on the Court of Appeal decision in Rodaro v. Royal Bank of Canada 2002 41834 (ON CA), [2002] 59 O.R. (3d) 74 (C.A.) at paras 60-62:

It is fundamental to the litigation process that lawsuits be decided within the boundaries of the pleadings...

By stepping outside of the pleadings and the case as developed by the parties to find liability [the Trial Judge] denied [the defendants] the right to know the case they had to meet and the right to a fair opportunity to meet that case. The injection of a novel theory of liability into the case via the reasons for judgment was fundamentally unfair to [the defendants].

In addition to fairness concerns which standing alone would warrant appellate

intervention, the introduction of a new theory of liability in the reasons for judgment

also raises concerns about the reliability of that theory. We rely on the adversarial process

to get at the truth. That process assumes that the truth best emerges after a full and vigorous competition amongst the various opposing parties. A theory of liability that emerges for the first time in the reasons for judgment is never tested in the crucible of the adversarial process.

[32] In Fulawka v. Bank of Nova Scotia [2012] ONCA 443 paras 78-79 Winhler C.J.O. delivering the judgment of the Court states:

78. At the Supreme Court of Canada established in Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158, at para. 25, the certification judge must be satisfied that there is “some basis in fact for each of the certification requirements set out in s. 5 of the Act, other than the requirement that the pleadings disclose a cause of action”. In his reasons in this case, the motion judge, at para. 109, referred to this passage from Hollick and added:

It should be kept in mind, however, that in certifying a

common issue the court is not concluding that it will be

answered in a manner favourable to one party or the other. The

requirement that there must be an evidentiary basis for the

existence of a common issue is a far cry from proof of the issue

on the balance of probabilities.

79. I agree with the motion judge’s comment. To the same effect, see also the majority

Of the Divisional Court in Fresco, at para.72, and Grant v. Canada (Attorney General) (2009), 81 C.P.C. (6th) 68 (Ont. S.C.), at para.21. While the evidentiary basis for establishing the existence of a common issue is not as high as proof on a balance of probabilities, there must nonetheless be some evidentiary basis indicating that a common issue exists beyond a bare assertion in the pleadings. To be clear, this is simply the Hollick standard of “some basis in fact”.

[33] The Bank does not specifically submit that the waiver of tort should not have been recognized as a cause of action. Rather it objects to the common issue “what damages if any should flow from the waiver of tort”.

[34] In Pro-Sys (supra) Rothsteain J. in delivering the judgment of the court writes the following at paragraphs 94 to 97:

94. Microsoft advances two arguments as to why this claim should be struck.

First, it states that Pro-Sys has pleaded waiver of tort as a remedy and not a cause

of action, and therefore proof of loss is an essential element. Second, if indeed waiver of tort is pleaded as a cause of action, the underlying tort must therefore be established, including the element of loss. In my view, neither argument provides a sufficient basis upon which to find that a claim in waiver of tort would plainly and obviously be unsuccessful.

95. In Serhan (Trustee of) v. Johnson &Johnson (2006) , 2006 20322 (ON SCDC), 85 O.R. (3d) 665 (S.C.J.

Div. Ct.)), Epstein J. (as she then was) performed an extensive review of the doctrine of waiter of tort. Her analysis found numerous authorities accepting the viability of waiver of tort as its own cause of action intended to disgorge a defendant’s unjust enrichment gained through wrongdoing, as opposed to merely a remedy for unjust enrichment. These authorities differed, however, as to the question of whether the underlying tort needed to be established in order to sustain the action in waiver of tort.

96. The U.S. and U.K. jurisprudence as well as the academic texts on the subject have largely rejected the requirement that the underlying tort must be established in order for a claim in waiver of tort to succeed (see Serhan, at paras. 51-68, citing Maddaugh and McCamus at p. 24-20 of 2005 update; J. Beatson, The use and Abuse of Unjust Enrichment: Essays on the Law of Restitution (1991); D. Friedmann, “Restitution for Wrongs: The Basis of Liability”, in W.R. Cornish, et al., eds., Restitution: Past, Present and Future: Essays in Honour of Gareth Jones (1998), 133; National Trust Co. V. Gleason, 77 N.Y. 400 (1879); Federal Sugar Refining Co. v. United States Sugar Equalization Boards, In., 268 F. 575 (S.D.N.Y. 1920); Mahesan v. Malaysia Government Officers’ Co-operative Housing Society Ltd., (1979) A.C. 374 (P.C.); Universe Tankships Inc. of Monrovia v. International Transport Workers Federation [1983] a.c. 366 (H.L.)). Another line of cases would find a cause of action in waiver of tort to be unavailable unless it can be established that the defendant has committed the underlying tort giving rise to the cause of action (see United Australia, at p. 18; Zidaric v. Toshiba of Canada Ltd (2000), 5 C.C.L.T. (3d) 61 (Ont. S.C.J..) at para.14; Reid v. Ford Motor Co., 2006 BCSC 712). At least one of these cases (Reid) suggests that a reluctance to eliminate the requirement of proving loss as an element of the cause of action is part of the reason for requiring the establishment of the underlying tort (para. 17).

97. Epstein J. ultimately concluded that, given this contradictory law, ([c]learly, it cannot be said that an action based on waiver of tort is sure to fail” and that the question “about the consequences of identifying waiver of tort as an independent cause of action in circumstances such as exist here, involve[e] matters of policy that should not be determined at the pleadings stage”. (Serhan, at para. 68). I agree. In my view, this appeal is not the proper place to resolve the details of the law of waiver of tort, nor the particular circumstances in which it can be pleaded. I cannot say that it is plain and obvious that a cause of action in waiver of tort would not succeed.

[35] In commenting in his reasons at paragraph 105 that “Waiver of tort does not require that individual damages be proven, and therefore this issue could easily be addressed as a common issue”, the motion judge was simply applying the above principles. Each case must be decided on its own facts. Here the plaintiffs plead that the Bank failed to put in place a system to protect the confidential information. The motion judge simply found that there was a sufficient basis to find a potential unjust enrichment for the Bank in not having done so. The certification of what damages should flow on the basis of waiver of tort was a natural result of the waiver of tort cause of action. The low threshold for the criteria “some basis in fact” was satisfied in the motion judge’s consideration. There is not good reason to believe he was incorrect in his analysis. In any event, I find that it is not desirable to grant leave to appeal on this basis. The action is proceeding as a class action irrespective of this rather minor issue in the overall context of the plaintiffs’ claim.

[36] In the very limited context of this issue and for the same reasons, I reject the Bank’s contention that the motion judge introduced a novel issue which constituted a breach of natural justice. I fail to see any real prejudice to the Bank in all the circumstances and the matter cannot be said to be of such importance as to justify granting leave to appeal.

Conclusion

[37] For all of these reasons, the Bank motion for leave to appeal is dismissed.

[38] Counsel may deliver, within 20 days short, written submissions on costs together with their respective costs outlined exchanged pursuant to Rule 57.01 (6).

Charbonneau, J.

Released: December 17, 2014