Sean Edward Cumming

An employee of the respondent perpetrated a large-scale fraud by requisitioning cheques payable to six entities and depositing them into accounts he controlled.

Two of the entities were invented, and four were customers not owed money.

The respondent sued the appellant banks for conversion.

The Court of Appeal allowed the banks' appeal, finding they had a valid defence under s. 20(5) of the Bills of Exchange Act.

The court held that the two invented payees were non-existing, and all six payees were fictitious because the respondent's directing minds never formed an intention to pay them.

On a contested passing of accounts, the court considered the compensation claimed by an estate trustee during litigation for administering a complex estate over several years involving extensive litigation, missing assets, and the unwinding of a corporate entity owned by the estate.

One charitable beneficiary objected to aspects of the trustee’s compensation, including the application of percentage fees on large capital transactions and the treatment of accounting fees.

The court accepted certain accounting adjustments and deductions but declined to reduce the trustee’s compensation in light of the extraordinary complexity of the estate administration and the significant recovery work undertaken.

A special fee was also awarded for the additional effort required to wind up the corporate estate asset.

The court further determined the outstanding legal fees payable to counsel for several charitable beneficiaries and ordered costs on the passing of accounts.

The appellant, a judgment creditor, appealed an order granting partial summary judgment dismissing his claims to an interest in a property and shares in a company.

The motions judge had found that the transfer of shares in a bare trustee company effectively transferred the beneficial interest in the property it held.

The Court of Appeal allowed the appeal, finding that the motions judge improperly conflated the transfer of shares with the transfer of the beneficial interest in the land, failing to consider the requirements of the Statute of Frauds and the lack of land transfer tax payment.

The partial summary judgment was set aside, a certificate of pending litigation was granted, and the matter was directed to trial.

The court considered whether a former estate trustee who had previously been imprisoned for civil contempt had purged that contempt by accounting for missing estate assets.

Forensic accounting reports revealed extensive unexplained withdrawals, questionable transactions, and missing securities from an estate once valued at approximately $30 million.

The responding party failed to provide a full explanation for the disappearance of assets and demonstrated little effort to comply with prior court orders requiring disclosure.

Although the court concluded the contempt had not been purged, it determined that further imprisonment would not serve the public interest and that additional accounting would be futile.

The order requiring the passing of accounts was withdrawn and the contempt issue brought to an end.

The respondent sued the appellant bank in conversion after a fraudulent employee deposited $4,000,000 in forged cheques into accounts at the bank.

The appellant sought to amend its statement of defence to plead estoppel by negligence, arguing the respondent was negligent in failing to detect the fraud.

The Court of Appeal upheld the lower courts' refusal to allow the amendment, confirming that conversion is a strict liability tort and that recognizing a new duty of care or a defence of estoppel by negligence would inappropriately alter the allocation of risk in the banking system.

The appeal was allowed only to the extent of permitting the appellant to plead defences arising from the respondent's actual knowledge of the fraud.

The respondent insured was sued for negligent construction after selling a renovated apartment building.

The appellant insurer denied coverage and a duty to defend based on a policy exclusion for property damage to 'property owned' by the insured.

The motion judge found the insurer had a duty to defend because the word 'owned' could refer to the present tense, making the exclusion ambiguous.

The Court of Appeal dismissed the insurer's appeal, agreeing that the exclusion did not clearly and unambiguously exclude coverage.

The tenant appealed a review decision of the Landlord and Tenant Board that denied her request to review an eviction order for rent arrears.

The landlord brought a motion to quash the appeal on the basis that it did not raise any question of law.

The Divisional Court granted the motion to quash, finding it plain and obvious that the appeal could not succeed because the tenant did not allege any error on the merits of the original order, but merely sought an opportunity to repay the arrears over time.

The appellant's husband, while acting as an estate trustee, misappropriated millions of dollars from an estate and used the funds to purchase and renovate a luxury matrimonial home, placing title in the appellant's name.

The motion judge granted partial summary judgment against the husband, imposed a constructive trust on the home in favour of the estate, and issued a vesting order.

The appellant appealed, arguing she had contributed her own funds to the home and that the vesting order was improper.

The Court of Appeal dismissed the appeal, finding that all funds for the home's purchase and renovation came from the misappropriated estate funds, the vesting order was a proper exercise of discretion under section 100 of the Courts of Justice Act, and any notional entitlement the appellant had to reimbursement was offset by the financial benefits of living rent-free in the home for a decade.

The appellant appealed a decision granting the respondent bank priority over the appellant's security interest in a bankrupt company's accounts receivable.

The application judge found that the appellant's factoring agreements did not create a purchase money security interest (PMSI) under the Personal Property Security Act, as the appellant only advanced general working capital.

The Court of Appeal dismissed the appeal, agreeing that the appellant could not show the extent to which its advanced funds created the collateral, and upheld the order requiring the appellant to repay sums collected in violation of the respondent's prior perfected general security agreement.

Following a successful appeal, the Court of Appeal reviewed costs submissions regarding the proceedings below.

The court ordered the respondent to pay the successful appellant $5,000, inclusive of disbursements and GST, for the costs of the proceedings below.

The appellants appealed an order allowing a receiver to sell a property free of their leases.

The receiver conceded that the motion judge's statement of the law was overly broad and that equitable considerations should have been weighed.

The Court of Appeal allowed the appeal, set aside the order, and remitted the matter back to the Superior Court of Justice, noting the appellants were not given a proper opportunity to lead evidence on the equities.

The Court of Appeal allowed the appeal, set aside the order of Justice Ground, and remitted the matter to the Superior Court of Justice.

The decision was based on the reasons provided in the companion endorsement in Court File C44279.

Costs were fixed at $4,000 inclusive of G.S.T. and disbursements.

Following the release of the court's reasons for judgment, counsel for the appellant Ackerman noted a conflict between paragraphs 56 and 58 regarding costs.

The Court of Appeal agreed and issued an addendum amending paragraph 58 to remove the reference to costs assessed on a partial indemnity scale, fixing the costs of the motion at $3,000.

The appellants, an estate trustee and her former counsel, appealed a trial judgment finding that joint bank accounts held by the trustee and her late father belonged to the estate, and ordering the counsel to repay estate funds taken for legal fees.

The Court of Appeal dismissed the trustee's appeal, holding that while the trial judge erred in law by rejecting the presumption of advancement for adult children, the evidence clearly established the father did not intend to gift the joint accounts.

The counsel's appeal was allowed, setting aside the substantial indemnity costs order against him and directing an assessment of his legal accounts.

The appellant appealed a trial judge's decision regarding the capacity of the respondent.

The appellant argued that the experts erred in quantifying the needed capacity and that the fluctuating nature of the respondent's capacity should have shifted the onus of proof.

The Court of Appeal dismissed the appeal, finding that the experts properly applied the criteria in s. 8 of the Act and that the legal onus remained on the appellant.

The trial judge was entitled to accept the expert evidence presented.

The appellant appealed a trial judgment on the grounds that the trial judge refused to grant an adjournment when the appellant was not present for trial.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's refusal to adjourn given the lack of explanation for the appellant's absence.

The Court also upheld the trial judge's findings on personal liability and damages, noting that the damages calculation was based on a spreadsheet provided well before trial.

The moving party, who was a party to the underlying proceedings, brought a motion to be added as a party to an appeal concerning an interim order affecting counsel.

The court found that the moving party should have been a party to the appeal and served with the relevant documents.

The court ordered that the moving party be added as a party, and that the overlapping appeals be expedited and heard together.

The appellants operated a senior citizens residence and borrowed funds through successive mortgages arranged by Morguard.

The trial judge found that Morguard and its officers committed fraud, deceit, and breach of fiduciary duty by overstating discharge amounts, charging excessive undisclosed fees, and hiding a corporate officer's personal involvement in the loans.

The trial judge awarded compensatory damages but declined to award punitive damages.

On appeal, the appellants sought punitive damages and increased compensation, while the respondents cross-appealed liability and damages, relying on a release executed by the parties.

The Court of Appeal dismissed both the appeal and cross-appeals, upholding the trial judge's findings and concluding that the release was properly set aside due to fraudulent misrepresentation.

The appellants appealed a trial judgment finding that the undischarged bankrupt acquired shares and diverted property in violation of the Bankruptcy and Insolvency Act.

The trial judge found that the bankrupt collaborated to conceal assets from the trustee and ordered an accounting by the corporate appellants.

The Court of Appeal dismissed the appeals, finding ample evidence to support the trial judge's conclusions on share ownership, jurisdiction, and credibility, and upheld the award of substantial indemnity costs.

The appellant, an undischarged bankrupt, had a pending civil action against the respondent law firm.

The trustee in bankruptcy took no steps regarding the action and was subsequently discharged.

Years later, the bankrupt's status to pursue the action was challenged, prompting the trustee to solicit offers for its interest in the action.

The bankrupt moved for an order that the trustee assign the action to him, which was granted by the Deputy Registrar but reversed on appeal.

The Court of Appeal allowed the bankrupt's appeal, holding that under section 40(1) of the Bankruptcy and Insolvency Act, the trustee's prolonged inaction indicated the property was incapable of realization, and it was too late for the trustee to assert an interest.