Central Computer Services Ltd. and Comcheq Services Ltd. v. Toronto-Dominion Bank, (1979) 1 Man.R.(2d) 402 (CA)

• Judge: Monnin, Matas and O'Sullivan, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: November 22, 1979
• Jurisdiction: Manitoba
• Citations: (1979), 1 Man.R.(2d) 402 (CA)

Central Computer v. TD Bk. (1979), 1 Man.R.(2d) 402 (CA)

MLB headnote and full text

Central Computer Services Limited and Comcheq Services Limited v. Toronto Dominion Bank

Indexed As: Central Computer Services Ltd. and Comcheq Services Ltd. v. Toronto-Dominion Bank

Manitoba Court of Appeal

Monnin, Matas and O'Sullivan, JJ.A.

November 22, 1979.

Summary:

This case arose out of the plaintiffs' action against the defendant bank for an injunction to restrain the bank from continuing certain business practices. The bank operated an automated banking services department, which offered several computer based services, including a "computer payroll service" and "compucount". The computer payroll service performed the complete payroll work for the bank's customers, including the payment of payroll and the calculation of various deductions. Compucount was a fully integrated, computer-assisted accounting service. The plaintiffs, one of which offered a computer-program payroll service and the other of which offered general computerized accounting service, challenged the bank's power to offer the computer payroll service and compucount under s. 75 of the Bank Act. The plaintiffs brought an action for an injunction to restrain the bank from continuing the services on the ground that they were not authorized by s. 75 of the Bank Act, R.S.C. 1970, c. P-1. The Manitoba Court of Queen's Bench allowed the action in part. The Court of Queen's Bench enjoined the compucount service and enjoined the computer payroll service to all persons except depositors of the bank on the ground that the enjoined services were beyond the bank's powers under s. 75(1). The bank appealed and the plaintiff cross-appealed.

The Manitoba Court of Appeal allowed the bank's appeal and dismissed the cross-appeal. The Court of Appeal held that the bank was entitled to offer both services, because they fell within the term "business of banking", which the bank was empowered to carry on under s. 75(1) - see paragraphs 1 to 9 and 33 to 61.

Matas, J.A., dissenting in part, was of the opinion that the compucount service was beyond the bank's power, but that the computer payroll service was within the bank's power and should not have been enjoined even in part - see paragraphs 10 to 32.

Banks and Banking - Topic 1204

Powers of bank - Business of bank - Scope of - Bank Act, R.S.C. 1970, c. P-1, s. 75 - A bank operated an automated banking services department, which offered several computer based services, including a "computer payroll service" and "compucount" - The computer payroll service performed the complete payroll work for the bank's customers, including the payment of payroll and the calculation of various deductions - Compucount was a fully integrated, computer-assisted accounting service - Two other companies, one of which offered a computer-payroll service and the other of which offered general computerized accounting services, challenged the bank's power to offer the computer payroll service and compucount under s. 75 of the Bank Act - The Manitoba Court of Appeal held that the bank was entitled to offer the two services, because they both fell within the term "business of banking", which the bank was entitled to carry on under s. 75(1) of the Banks Act - The Court of Appeal held that by offering the services the bank did not "engage in any trade or business" contrary to s. 75(2) - See paragraphs 1 to 9 and 33 to 61 - The Court of Appeal held that s. 75(1) did not exhaustively set out a bank's powers - See paragraphs 24 and 44 to 48.

Company Law - Topic 690

Powers - Doctrine of ultra vires - Practice - Status to challenge exercise of power by corporation - The plaintiffs challenged the right of a bank to certain services, claiming that the services were beyond the authority of the bank under s. 75(1) of the Bank Act, R.S.C. 1970, c. P-1 - The Manitoba Court of Appeal discussed without deciding the issue of who has the status to challenge the exercise of powers by a company - See paragraphs 2 and 35 to 42.

Injunctions - Topic 9266

Practice - Parties - Necessary defendants - The plaintiffs brought an action for an injunction against a bank to restrain alleged ultra vires acts by the bank - The bank submitted that injunctive relief should not be granted against it, because other banks were engaged in the same activities and were not parties - The Manitoba Court of Appeal stated that it was not necessary for the plaintiffs to add all possible defendants in order to obtain an injunction against one - See paragraphs 12 and 43.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not raised in pleadings or at trial - In argument on appeal the defendant raised for the first time the status of the plaintiffs to sue - The Manitoba Court of Appeal held that it was too late to challenge the plaintiff's right to sue - See paragraphs 2 and 35 to 42.

Cases Noticed:

Turgeon v. The Dominion Bank, [1903] S.C.R. 67, appld. [para. 23].

London Armoury Co. Ltd. v. Ever Ready Co. (Great Britain) Ltd., [1941] 1 K.B. 742, consd. [para. 40].

Dominion Trust Ltd. v. Kirkwood, [1966] 1 All E.R. 968, consd. [para. 47].

Woods v. Martins Bank Ltd. et al., [1959] 1 Q.B. 55, appld. [para. 51].

Statutes Noticed:

Bank Act, R.S.C. 1970, c. P-1, sect. 75 [paras. 18, 44].

Authors and Works Noticed:

Baxter, The Law of Banking (2nd Ed.), p. 196 [para. 22].

Falconbridge, Banking and Bills of Exchange (7th Ed.), p. 134 [para. 22].

Fleming, The Law of Torts (4th Ed.), p. 614 [paras. 38, 39].

Halsbury Laws of England (4th Ed.), vol. 9, paras. 1342 [para. 35]; 1343 [para. 36].

Counsel:

A. Sweatman, Q.C. and A.D. MacInnes, for the defendant/appellant;

S. Green, Q.C. and D.I. Marr, for the plaintiffs/respondents.

This case was heard on September 6, 1979, at Winnipeg, Manitoba, before Monnin, Matas and O'Sullivan, JJ.A., of the Manitoba Court of Appeal.

On November 22, 1979, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Monnin, J.A. - see paragraphs 1 to 9;

Matas, J.A., dissenting in part - see paragraphs 10 to 32;

O'Sullivan, J.A. - see paragraphs 33 to 61.