Court File and Parties

COURT FILE NO.: CV-21-00003112-0000 DATE: March 17, 2022

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MANITOBA FIRST NATIONS EDUCATION RESOURCE CENTRE INC., Plaintiff AND: JOHN DOE and THE TORONTO-DOMINION BANK, Defendants

BEFORE: KURZ J.

COUNSEL: Gregory W. Bowden – for the Plaintiff The Respondents – Self Represented – Not Appearing

HEARD: March 17, 2022

Endorsement

[1] This is a motion by the Plaintiff to require the defendant, TD Bank, to disclose the identity of the account holder described thus far in this litigation as “John Doe”.

[2] Briefly, the Plaintiff alleges that it was duped by a fraudster to pay an outstanding account owing to a supplier by depositing the funds, totaling $357,509.71, into a TD bank account. When the Plaintiff discovered the alleged deception, it commenced this action. Because TD was named in the action, the account has been frozen under s. 437(2)(b) of the Bank Act. However, since the Plaintiff is unaware of the identity of the account holder, it seeks that information from TD. It does so in order to advance this litigation, and obtain relief, including summary judgment and the release of funds from the account to satisfy that judgment.

[3] In order to ensure that it is not met by a motion by the account holder to release the funds in the subject account, the Plaintiff brings this motion as expeditiously as possible. It wishes to avoid the situation set out in Royal Bank of Canada v. Rastogi, 2011 CarswellOnt 197 (Ont. C.A.).

[4] Because TD is a party, it is not necessary for the Plaintiff to bring a Norwich motion. It simply seeks information within the possession, power and control of a party, TD. That information is necessary to advance this proceeding. Further, in light of the allegations, it is in the interests of justice to release that information so that the Plaintiff can seek its remedies.

[5] There is no rule in the Rules of Civil Procedure that exactly covers the circumstances of this case. However, I am guided by the provisions in those rules which call for them to be liberally construed, to bring about “the just, most expeditious and least expensive determination of every civil proceeding on its merits”: r. 1.04(1). I am also guided by r. 1.04(2), which deals with matters not provided for in the rules. It states in that event, “the practice shall be determined by analogy to them”.

[6] Here, two rules are available that may be liberally construed or applied by analogy to allow for the relief sought by the Plaintiff. Both deal with forms of discovery of information from a party. Rule 31.06(2) sets out that:

(2) A party may on an examination for discovery obtain disclosure of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action, unless the court orders otherwise.

[7] Further, Rule 35.01 allows for the written examination for discovery of parties. The request for the identity of the John Doe may be seen as a form of written discovery in which the Plaintiff requests “information regarding “persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action”.

[8] TD takes no position in regard to the request for information. It offers no submissions that demonstrate that the relief sought is contrary to any law or that it would be contrary to the interests of justice.

[9] I do not find that withholding the information sought is contrary to any law or the interests of justice. To the contrary, the information is in accord with the interests of justice. It’s disclosure assists in ensuring that banking laws are not used to shield the identity of alleged fraudsters or prevent alleged victims from having full access to the court system to remedy their losses.

[10] Accordingly, I order as follows:

1. THIS COURT ORDERS THAT the Defendant, The Toronto-Dominion Bank, disclose to the Plaintiff, the name and contact information for the Defendant, John Doe, who owns account number 31842-6522009 located at the TD branch located at 4 King Street, Oshawa, Ontario.

[11] As no costs are sought TD, none are granted against it. Any costs against “John Doe” are in the cause.

“Marvin Kurz J.”

Electronic signature of Justice Marvin Kurz

Date: March 17, 2022