Highlighted Cases:
Civil Practice and Procedure; Labour and Employment; Torts; Contracts; Corporate and Commercial
Treaty Group Inc. v. Drake International Inc.
2007 CarswellOnt 4018 (Ont. C.A.)
In a case which illustrates the broadening of employment law to deal with novel situations, the Ontario Court of Appeal affirmed the lower court’s decision that a recruitment agency was liable for the fraudulent actions of an employee which it had placed. The defendant, Drake International Inc. ("Drake"), had been retained by The Treaty Group Inc. (“Treaty") to find an employee to fill a vacant administrative assistant role. Drake placed the employee in the role without checking her references. After working for Treaty for two years, the employee resigned and Treaty discovered that she had defrauded the company of over $263,324.20. The employee and her husband were criminally convicted. After successfully suing the employee for civil fraud, Treaty sued Drake, claiming damages for both breach of contract and tort on the basis that Drake had failed to conduct reference checks. Drake argued, unsuccessfully, that Treaty was barred from seeking damages for the same loss from Drake as it had secured in the earlier action against the employee. The lower court determined that Drake was 50% responsible for the losses suffered by Treaty. Held: In upholding the trial judge's decision, the Court of Appeal held that there is no legal principle that a plaintiff who elects to pursue a claim against one of severally liable defendants is precluded from pursuing a second action, as it is not the damage award that amounts to satisfaction barring a second action but recovery by the plaintiff in the first action. The Court also upheld that the trial judge’s assessment of contributory negligence at 50%, noting that contributory negligence was applicable whether the damages were awarded in contract or negligence.
2007 CCLTPleading 44482 – Notice of Appeal
2007 CCLTFactum 13426 – Factum of the Appellant
2007 CCLTFactum 13427 – Factum of the Respondent, Appellant by Cross-Appeal, the Treaty Group C.O.B. as Leather Treaty
2007 CCLTFactum 13428 – Factum of the Appellant/ Respondent by Cross-Appeal Drake International Inc.
Insurance; Constitutional; Corporate and Commercial
Canadian Western Bank v. Alberta
2007 CarswellAlta 702 (S.C.C.)
The central issue in this case was the extent to which banks, as federally regulated financial institutions, must comply with provincial consumer protection legislation that regulates the promotion of insurance products to the public. In 2000, the province of Alberta enacted changes to its Insurance Act, purporting to make federally chartered banks subject to the provincial licensing scheme governing the promotion of insurance products. In response to Alberta's new legislation, numerous banks collectively sought a declaration that the promotion of insurance products as authorized by the federal Bank Act is "banking" within the meaning of section 91(15) of the Constitution Act, 1867, which grants the federal government exclusive jurisdiction over "banking." The banks also argued that the amendments of the Insurance Act conflicted with the federal Bank Act, and that they were therefore exempt pursuant to the paramountcy doctrine. Held: In dismissing the banks’ inter-jurisdictional immunity argument, the Court gave a very restrictive reading to the doctrine, noting that, going forward, it must be demonstrated that the provincial legislation actually “impairs” a vital or essential part of a federal undertaking. The majority was not satisfied that the banks’ promotion of creditor insurance was a vital part of banking activity. With respect to federal paramountcy, the Court held that neither operational incompatibility nor the frustration of a federal purpose had been made out. As such, banks must comply with both federal and provincial laws relating to the promotion and regulation of insurance.
2007 CCLIPleading 43326 – Notice of Appeal
2007 CCLIFactum 13202 – Factum of the Appellants
2007 CCLIFactum 13205 – Factum of the Respondent
2007 CCLIFactum 13207 – Factum of the Intervener the Attorney General of British Columbia
2007 CCLIFactum 13208 – Factum of the Intervener, the Attorney General of Canada
2007 CCLIFactum 13209 – Factum of the Intervener Attorney General of New Brunswick
2007 CCLIFactum 13210 – Factum of the Intervener Attorney General of Ontario
2007 CCLIFactum 13211 – Factum of the Attorney General for Saskatchewan
2007 CCLIFactum 13212 – Factum of the Intervener Alberta Insurance Council
2007 CCLIFactum 13203 – Factum of the Interveners, The Insurers
2007 CCLIFactum 13204 – Factum of the Intervener, The Financial Advisers Association of Canada
Property; Corporate and Commercial
Reviczky v. Meleknia
2007 CarswellOnt 8258 (Ont. S.C.J.)
In this precedent-setting decision, the Ontario Superior Court of Justice held that a home owner was not responsible for a mortgage on his investment property after it was sold without his knowledge using a fraudulent Power of Attorney. Paul Reviczky owned residential property in the City of Toronto. A fraudster acting pursuant to a fictitious Power of Attorney and posing as Mr. Revickzy's relative sold the property to Pegman Meleknia, an innocent purchaser and another victim of the fraud. HSBC Bank Canada financed the purchase and held a charge on the property as security for the loan. Upon becoming aware of the fraudulent transfer, Mr. Reviczky brought an application in the Ontario Superior Court of Justice for a declaration that the transfer in favour of Mr. Meleknia and the charge given by Mr. Meleknia to HSBC Bank of Canada were invalid. HSBC argued that Meleknia was an intermediate owner, and therefore a deferred owner, making the bank’s charge against him indefeasible. Held: The Court held that, because the solicitor obtained by HSBC took no steps to scrutinize the document, the bank’s mortgage was void. The Court concluded that the opportunity to avoid fraud is now central to the theory of deferred indefeasibility as a rationale for allocating loss amongst competing parties who claim an interest in land under the Land Titles Act. This decision will have an enormous impact on how banks, real estate agents, lawyers, buyers, and sellers treat any transaction involving a Power of Attorney.
2007 RPRPleading 44700 – Notice of Application
2007 RPRPleadingO 854 – Order
2007 RPRPleading 44702 – Responding Affidavit of Gholamreza Meleknia
2007 RPRPleading 44701 – Responding Affidavit of Nicola Hume
2007 RPRPleading 44703 – Responding Affidavit of Satwant Singh Khosla
2007 RPRPleadingF 1431 – Factum of the Intervener, Sheldon Caplan
2007 RPRPleadingF 1430 – Factum of the Respondent Richard Horodyski
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