Bunan v. Toronto-Dominion Bank, (2015) 331 O.A.C. 262 (CA)

• Judge: Sharpe, Pepall and van Rensburg, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 26, 2015
• Jurisdiction: Ontario
• Citations: (2015), 331 O.A.C. 262 (CA);2015 ONCA 226

Bunan v. TD Bk. (2015), 331 O.A.C. 262 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. AP.003

Moshe Bunan (plaintiff/appellant) v. The Toronto-Dominion Bank (defendant/respondent)

(C58212; 2015 ONCA 226)

Indexed As: Bunan v. Toronto-Dominion Bank

Ontario Court of Appeal

Sharpe, Pepall and van Rensburg, JJ.A.

April 7, 2015.

Summary:

The plaintiff was defrauded by his cousins. He agreed to lend over $1 million to a partnership owned and controlled by them. They were able to perpetrate their fraud by making withdrawals from a bank account the plaintiff had established with the defendant. The plaintiff sued his cousins on personal guarantees and promissory notes they signed guaranteeing the debts of their partnership. He sued the defendant for, among other things, breach of contract and negligence arising from the withdrawals from his account. The defendant defended the action on the basis that, when opening the account in issue, the plaintiff had signed a Financial Services Agreement (FSA), and its provisions barred the plaintiff's claim, specifically an account-verification provision which, in the absence of 30 days' written notice of errors, released the defendant from liability.

The Ontario Superior Court, in a decision reported at [2013] O.T.C. Uned. 7928, dismissed the action. The plaintiff appealed. The defendant cross-appealed the costs award.

The Ontario Court of Appeal dismissed the appeal. The court granted leave to appeal the costs award and allowed the cross-appeal. Based on a concession by the plaintiff, the court ordered the plaintiff to pay the costs of the trial fixed in the defendant's favour in the amount of $39,000 inclusive of disbursements. Costs of the appeal and the cross-appeal were fixed in favour of the defendant in the amounts of $12,500 and $2,000 respectively, both amounts being inclusive of disbursements and HST.

Banks and Banking - Topic 1604

Liability of banks to customers - Defences - Release - Account verification agreements - The plaintiff was defrauded by his cousins - He agreed to lend over $1 million to a partnership that they owned and controlled - They were able to perpetrate their fraud by making withdrawals from a bank account the plaintiff had established with the defendant - The plaintiff sued his cousins on personal guarantees and promissory notes they signed guaranteeing the debts of their partnership - He sued the defendant for, among other things, breach of contract and negligence arising from the withdrawals from his account - The defendant defended the action on the basis that, when opening the account in issue, the plaintiff had signed a Financial Services Agreement (FSA), and its provisions barred the plaintiff's claim, specifically an account-verification provision which, in the absence of 30 days' written notice of errors, released the defendant from liability - The trial judge dismissed the action - The plaintiff appealed - He submitted that the FSA did not provide the defendant with a defence in the circumstances - The Ontario Court of Appeal dismissed the appeal - See paragraphs 24 to 38.

Banks and Banking - Topic 2806

Bank accounts - Agreements respecting - Customer's agreement to verify debits and credits - [See Banks and Banking - Topic 1604 ].

Practice - Topic 9228

Appeals - New trials - Grounds - Reasons for judgment insufficient - The plaintiff was defrauded by his cousins - He agreed to lend over $1 million to a partnership that they owned and controlled - They were able to perpetrate their fraud by making withdrawals from a bank account the plaintiff had established with the defendant - The plaintiff sued his cousins on personal guarantees and promissory notes they signed guaranteeing the debts of their partnership - He sued the defendant for, among other things, breach of contract and negligence arising from the withdrawals from his account - The defendant defended the action on the basis that, when opening the account in issue, the plaintiff had signed a Financial Services Agreement (FSA), and its provisions barred the plaintiff's claim, specifically an account-verification provision which, in the absence of 30 days' written notice of errors, released the defendant from liability - The defendant could not locate the FSA but asserted that such an agreement had been signed by the plaintiff in 2003 and that he had failed to provide timely notice - Written notice of the 2004 to 2008 impugned transactions was provided to the plaintiff on May 31, 2011 - The plaintiff neither admitted nor denied the execution of such an FSA - The trial judge dismissed the action - The plaintiff appealed - He submitted, inter alia, that the judgment should be set aside on the basis of insufficiency of reasons - The Ontario Court of Appeal held that, in the context of the other available evidence, the absence of an actual conflict in the Manager's evidence, the failure to put what the plaintiff now claimed to be an inconsistency in the discovery evidence to the Manager at trial, and the plaintiff's admission that he could neither confirm nor deny that he signed the FSA, the appeal should not be allowed on the basis of insufficiency of reasons - It was clear from the reasons, when read in the context of the record, what the trial judge decided and why he decided as he did - See paragraphs 16 to 23.

Cases Noticed:

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 20].

Arrow Transfer Co. v. Royal Bank of Canada et al., [1972] S.C.R. 845, refd to. [para. 28].

Bodkin (Don) Leasing Ltd. v. Toronto-Dominion Bank (1998), 110 O.A.C. 276; 40 O.R.(3d) 262 (C.A.), refd to. [para. 28].

Counsel:

Jonathan L. Rosenstein, for the appellant;

Duncan C. Boswell, for the respondent.

This appeal was heard on March 26, 2015, by Sharpe, Pepall and van Rensburg, JJ.A., of the Ontario Court of Appeal. The Court of Appeal delivered the following reasons for judgment on April 7, 2015.