Bank of Montreal v. Tortora et al.

• Jurisdiction: British Columbia
• Court: Court of Appeal (British Columbia)
• Judge: Finch, C.J.B.C., Hall and Chiasson, JJ.A.
• Citation: 2010 BCCA 139,(2010), 287 B.C.A.C. 14 (CA)
• Date: 16 December 2009

Bk. of Mtrl. v. Tortora (2010), 287 B.C.A.C. 14 (CA);

    485 W.A.C. 14

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. MR.059

Bank of Montreal (appellant/plaintiff) v. Giuseppina Tortora, also known as Josephine Tortora, Shenaz Poonja and Shaffin Punja, also known as Shaffin Poonja (respondents/defendants)

(CA037480; 2010 BCCA 139)

Indexed As: Bank of Montreal v. Tortora et al.

British Columbia Court of Appeal

Finch, C.J.B.C., Hall and Chiasson, JJ.A.

March 19, 2010.

Summary:

The Bank of Montreal sued two of its former mortgage employees, Tortora and Poonja. The Bank also sued Punja, Poonja's husband. The Bank alleged that Tortora and Poonja acted improperly in arranging mortgages, and that Tortora improperly split her mortgage commissions with Poonja by making payments to Punja. The Bank made claims against Tortora and Poonja for breach of fiduciary duty, breach of contract, negligence and constructive fraud. The Bank made claims for unjust enrichment and civil conspiracy against all defendants. The defendants applied under rules 19(24) and 24 of the Rules of Court (B.C.), to strike a number of the Bank's claims.

The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 1140, allowed the application in part. The court struck the unjust enrichment claim against Punja only and struck the conspiracy claim against all defendants. The Bank appealed.

The British Columbia Court of Appeal dismissed the appeal.

Practice - Topic 2230.6

Pleadings - Striking out pleadings - Grounds - Merger - The Bank of Montreal sued two of its former mortgage employees, Tortora and Poonja - The Bank also sued Punja, Poonja's husband - The Bank alleged that Tortora and Poonja acted improperly in arranging mortgages, and that Tortora improperly split her mortgage commissions with Poonja by making payments to Punja - The Bank made claims against Tortora and Poonja which included breach of contract and breach of fiduciary duty - The Bank also made a claim against Tortora and Poonja for civil conspiracy - A motions judge struck the claim as having been merged with the claims for breach of contract and breach of fiduciary duty - The British Columbia Court of Appeal upheld the decision - Where the unlawful acts alleged to constitute the conspiracy were breach of contract and breach of fiduciary duty, a claim for unlawful act conspiracy was merged with those causes of action - See paragraphs 50 to 62.

Restitution - Topic 66

Unjust enrichment - General - Conditions precedent - The Bank of Montreal sued two of its former mortgage employees, Tortora and Poonja - The Bank also sued Punja, Poonja's husband - The Bank alleged that Tortora and Poonja acted improperly in arranging mortgages, and that Tortora improperly split her mortgage commissions with Poonja by making payments to Punja - The Bank made claims against Tortora and Poonja which included breach of fiduciary duty and breach of contract - The Bank also made a claim against the three defendants for unjust enrichment - A motions judge struck the unjust enrichment claim against Punja, absent an obligational relationship between him and the Bank like the one that existed between Poonja and the Bank - The British Columbia Court of Appeal upheld the decision - See paragraphs 23 to 34.

Torts - Topic 5703

Conspiracy - General - Elements - The Bank of Montreal sued two of its former mortgage employees, Tortora and Poonja - The Bank also sued Punja, Poonja's husband - The Bank alleged that Tortora and Poonja acted improperly in arranging mortgages, and that Tortora improperly split her mortgage commissions with Poonja by making payments to Punja - The Bank made claims against Tortora and Poonja for breach of fiduciary duty, breach of contract, negligence and constructive fraud - The Bank also made a claim against Punja for civil conspiracy - A motions judge struck the claim - The British Columbia Court of Appeal upheld the decision - Where the gravamen of the civil conspiracy tort was unlawful conduct, Punja's agreement to assist Tortora and Poonja by lawful conduct, i.e., receiving money from Tortora, did not constitute actionable civil conspiracy - See paragraphs 35 to 49.

Cases Noticed:

McNaughton v. Baker (1988), 25 B.C.L.R.(2d) 17 (C.A.), refd to. [para. 4].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, dist. [para. 4].

Minnes v. Minnes (1962), 34 D.L.R.(2d) 497 (B.C.C.A.), refd to. [para. 4].

Canada Cement LaFarge Ltd. et al. v. British Columbia Lightweight Aggregate Ltd. et al., [1983] 1 S.C.R. 452; 47 N.R. 191; [1983] 6 W.W.R. 385, refd to. [para. 12].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84; 42 D.L.R.(4th) 81, refd to. [para. 37].

Southam Co. v. Gouthro, [1948] 3 D.L.R. 178 (B.C.S.C.), consd. [para. 39].

Lonrho Ltd. v. Shell Petroleum Co. (No. 2), [1982] A.C. 173 (H.L.), consd. [para. 43].

Kuwait Oil Tanker Co. SAK v. Al Bader, [2000] 2 All E.R. (Comm.) 271 (C.A.), refd to. [para. 45].

728654 Ontario Inc. et al. v. Ontario et al. (2005), 202 O.A.C. 4 (C.A.), dist. [para. 54].

Ohoven et al. v. Vince Estate et al., [2009] B.C.T.C. Uned. 1052; 2009 BCSC 1052, consd. [para. 55].

Napoleone v. Baraldi et al., [2004] B.C.T.C. Uned. 869; 48 B.L.R.(3d) 175; 2004 BCSC 1065, consd. [para. 55].

Normart Management Ltd. v. West Hill Redevelopment Co. et al. (1996), 16 O.T.C. 63; 30 O.R.(3d) 531; 140 D.L.R.(4th) 550 (Gen. Div.), consd. [para. 57].

Normart Management Ltd. v. West Hill Redevelopment Co. et al. (1998), 113 O.A.C. 375; 37 O.R.(3d) 97; 155 D.L.R.(4th) 627 (C.A.), refd to. [para. 58].

Horn Abbot Ltd. et al. v. Reeves (2000), 189 D.L.R.(4th) 644; 2000 NSCA 88, refd to. [para. 60].

Marrinan v. Vibart, [1963] 1 Q.B. 528 (C.A.), refd to. [para. 60].

Peter et al. v. Medtronic Inc. et al., [2007] O.T.C. Uned. Q16; 50 C.P.C.(6th) 133 (Sup. Ct.), consd. [para. 60].

Counsel:

R.B. Smith and J. Kuroyama, for the appellant;

D. Perry, for the respondent, Giuseppina Tortora;

N.T. Mitha and D. Rideout, for the respondents, Shenaz Poonja and Shaffin Poonja.

This appeal was heard at Vancouver, B.C., on December 16, 2009, by Finch, C.J.B.C., Hall and Chiasson, JJ.A., of the British Columbia Court of Appeal. The decision of the Court of Appeal was delivered at Vancouver, B.C., on March 19, 2010, by Chiasson, J.A.