Hongkong Bank of Canada v. Phillips, (1997) 119 Man.R.(2d) 243 (QB)

• Judge: Clearwater, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: March 24, 1997
• Jurisdiction: Manitoba
• Citations: (1997), 119 Man.R.(2d) 243 (QB)

Hongkong Bk. v. Phillips (1997), 119 Man.R.(2d) 243 (QB)

MLB headnote and full text

Temp. Cite: [1997] Man.R.(2d) TBEd. JN.050 & JN.051

Hongkong Bank of Canada (plaintiff) v. Walter John Raymond Phillips also known as Raymond Phillips (defendant) and N. Bruce McLeod, Bruce Barry and Buchwald Asper Henteleff (third parties)

(File No. CI 90-01-45206)

Indexed As: Hongkong Bank of Canada v. Phillips

Manitoba Court of Queen's Bench

Winnipeg Centre

Clearwater, J.

March 24, 1997.

Summary:

Phillips and McLeod were both bank customers. Shead was McLeod's lawyer. Phillips, induced by McLeod's fraud, bor­rowed monies from the bank and invested in a worthless real estate project. McLeod went bankrupt and was criminally convicted. Phillips lost his investment. The bank sued Phillips for the loan balance. Phillips claimed that the bank (1) owed him a fiduciary duty, which it breached by failing to disclose information it possessed concern­ing McLeod's insolvency; (2) was negligent in failing to disclose material information; (3) was negligent in failing to obtain required security from McLeod or Shead's law firm; and (4) was negligent in accepting security that the bank knew or ought to have known was worthless or insufficient. Alter­na­tively, Phillips claimed (1) full indemnity from McLeod for fraud, negligence and negligent misrepresentation and (2) full indemnity from Shead's law firm for negli­gence, negligent misrepresentation and breach of fiduciary duty. At issue was the scope of the duty of a bank to a customer and the duty of a lawyer to a non-client.

The Manitoba Court of Queen's Bench dismissed the bank's claim against Phillips. If Phillips was found liable to the bank, he was entitled to be indemnified jointly and severally by McLeod, Shead's law firm and the bank employee who dealt with him. In supplementary reasons for judgment (para­graphs 80 to 91), the court varied its initial order as to costs.

Banks and Banking - Topic 744

Duties of banks - Fiduciary relationships -Debtor's reliance on bank - Phillips and McLeod were both bank customers - Phillips, induced by McLeod's fraud, bor­rowed monies from the bank to invest in a worthless venture - The bank knew McLeod was insolvent - It was having trouble collecting its debts from him - Phillips told the bank he could not afford the loan unless the security to be provided by McLeod was sufficient to repay the loan - The bank knew the project was an unsafe investment or, at the least, specu­lative - The bank remained silent and knew, or ought to have known, that the only way McLeod could repay his debt to the bank was if he convinced others to invest in his project - McLeod went bank­rupt and was criminally convicted - Phil­lips' investment was lost - The Manitoba Court of Queen's Bench held that the bank was estopped from suing Phillips for re­payment of the loan, because it breached its fiduciary duty to him - Even if confi­dentiality precluded the bank from disclos­ing McLeod's business situation to Phillips, the bank still had a duty to advise Phillips to obtain independent legal or financial advice - Further, McLeod's conduct con­stituted implied consent for the bank to disclose the information to Phillips - See paragraphs 1 to 48.

Banks and Banking - Topic 1446

Liability of banks to customers - Duties of bank - Duty to inform - [See Banks and Banking - Topic 744 ].

Barristers and Solicitors - Topic 4446

Relations with third parties (incl. opposite parties) - Duty to third parties - Fiduciary duty as trustee - McLeod fraudulently induced Phillips to borrow monies to invest in a mortgage for McLeod's office building - Shead was McLeod's lawyer and acted as agent and bare trustee for Phillips and other investors - McLeod went bankrupt - The investment was lost - The bank sued on the loan - Phillips sought indemnification from Shead's law firm - The Manitoba Court of Queen's Bench held that if Phillips was liable, he was entitled to indemnification from Shead's firm for breach of fiduciary duty as a bare trustee - Shead had knowledge of McLeod's financial state - He knew that the mortgaged property's debt exceeded its fair market value - Even if Shead's duty of confidentiality to his client (McLeod) precluded him from disclosing information, he had the minimal duty to return Phillips' monies, advising that he could not accept monies where total indebtedness exceeded fair market value - Further, Shead was negligent in accepting investment monies when he knew the mortgage was in default or arrears - See paragraphs 49 to 73.

Equity - Topic 3714

Fiduciary or confidential relationships - Commercial relationships - Duty of dis­closure - [See Banks and Banking - Topic 744 and Barristers and Solicitors - Topic 4446 ].

Estoppel - Topic 1158

Estoppel in pais (by conduct) - Repre­sentation - By conduct - Silence or stand­ing by - Business relations - [See Banks and Banking - Topic 744 ].

Practice - Topic 2129

Pleadings - Amendment of pleadings - Third party claim - A bank sued the de­fendant on a loan - The defendant third partied a lawyer, alleging negligence - The defendant applied to amend the third party claim to allege "agency" and "fiduciary duty" - The lawyer claimed the amend­ment pleaded a new cause of action which was statute-barred - The Manitoba Court of Queen's Bench permitted the amend­ments - The amendments did not create a new cause of action - The amendments were merely further and better particulars of the lawyer's conduct - The facts pleaded in the original third party claim were sufficient to ground liability - The lawyer was not prejudiced by the failure to specifically plead "agency" or "fiduciary duty" in the original third party claim - See paragraph 74.

Practice - Topic 2129

Pleadings - Amendment of pleadings - Third party claim - A bank sued the de­fendant on a loan - The defendant third partied a lawyer, alleging negligence - The defendant applied to amend the third party claim to allege "agency" and "fiduciary duty" - The lawyer claimed the amend­ment pleaded a new cause of action which was statute-barred - The Manitoba Court of Queen's Bench stated that "if the bank (or a plaintiff) does not sue a defendant ... until the very last day of the six year limitation period, should that defendant be precluded by the same six year limitation period, from seeking indemnity if (and only if) he is ultimately found liable to the plaintiff? I do not believe so. I am of the opinion that a claim for indemnity is not and should not be treated the same as a direct claim, in terms of limitation periods." - See paragraph 74.

Practice - Topic 7110.1

Costs - Party and party costs - Special orders - Increase in scale of costs - Con­duct of opposite party - Phillips and McLeod were both bank customers - Phillips, induced by McLeod's fraud, bor­rowed monies from the bank to invest in a worthless venture - Phillips' investment was lost - The Manitoba Court of Queen's Bench held that the bank was estopped from suing Phillips for repayment of the loan, because it breached its fiduciary duty to him - The court held that if Phillips was liable to the bank, a bank employee and McLeod's lawyer's firm were all liable to indemnify Phillips - Phillips was contributorily negligent, but his negligence was not a proximate cause of his loss - The parties agreed that costs should be assessed one-third against the bank and its employee and two-thirds against the law firm - The court declined to award solici­tor and client costs against the bank and its employee, but did award party and party costs ($40,000) over and above the highest tariff amount - The court awarded solicitor and client costs against the law firm ($100,000) - See paragraphs 80 to 91.

Practice - Topic 7454

Costs - Solicitor and client costs - En­titlement to solicitor and client costs - Improper, irresponsible or unconscionable conduct - [See Practice - Topic 7110.1 ].

Torts - Topic 6631

Defences - Contributory negligence - Particular cases - Failure to investigate - Phillips and McLeod were both bank customers - Phillips, induced by McLeod's fraud, borrowed monies from the bank to invest in a worthless venture - The bank knew McLeod was insolvent - It was having trouble collecting its debts from him - Phillips told the bank he could not afford the loan unless the security to be provided by McLeod was sufficient to repay the loan - The bank knew the pro­ject was an unsafe investment or, at the least, speculative - The bank remained silent and knew, or ought to have known, that the only way McLeod could repay his debt to the bank was if he convinced others to invest in his project - McLeod went bankrupt and was criminally con­victed - Phillips' investment was lost - The Manitoba Court of Queen's Bench held that the bank was estopped from suing Phillips for repayment of the loan, because it breached its fiduciary duty to him - Although Phillips was contributorily negligent in blindly relying on McLeod and in failing to make any reasonable independent inquiries, his contributory negligence was not a proximate cause of his loss - See paragraph 75.

Cases Noticed:

Standard Investments Ltd., Brentwood Realty Ltd., Cohen and Ellen v. Cana­dian Imperial Bank of Commerce (1985), 11 O.A.C. 318; 22 D.L.R.(4th) 410; 52 O.R.(2d) 473 (C.A.), refd to. [para. 26].

Vita Health Co. (1985) Ltd. v. Toronto-Dominion Bank (1994), 95 Man.R.(2d) 255 (C.A.), refd to. [para. 28].

Lloyds Bank v. Bundy, [1975] Q.B. 326 (C.A.), refd to. [para. 28].

Buchanan and Buchanan v. Canadian Imperial Bank of Commerce (1980), 23 B.C.L.R. 324 (C.A.), refd to. [para. 33].

Greenwood v. Martins Bank Ltd., [1932] A.C. 51 (H.L.), refd to. [para. 36].

Tournier v. National Provincial and Union Bank of England, [1924] 1 K.B. 461 (C.A.), refd to. [para. 44].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 50].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 50].

Bowles v. Johnston, Oliphant, Van Buek­enhout and Deans, [1988] 4 W.W.R. 242; 53 Man.R.(2d) 81 (Q.B.), refd to. [para. 50].

Watson v. Johnston, Oliphant, Van Buek­enhout and Deans (1990), 66 Man.R.(2d) 10 (Q.B.), refd to. [para. 50].

Hedley Byrne & Co. v. Heller & Partners Ltd., [1964] A.C. 465 (H.L.), refd to. [para. 51].

Gerlock v. Safety Mart Foods Ltd. et al., [1983] 2 W.W.R. 569 (B.C.C.A.), refd to. [para. 51].

Ross v. Caunters, [1979] 3 All E.R. 580 (Ch. Div.), refd to. [para. 51].

White et al. v. Jones et al., [1995] 1 All E.R. 691; 179 N.R. 197 (H.L.), refd to. [para. 51].

Feschuk v. Hudema and Ziegler, [1995] 2 W.W.R. 103; 126 Sask.R. 26 (Q.B.), refd to. [para. 51].

Yang et al. v. Overseas Investments (1986) Ltd. et al., [1995] 4 W.W.R. 231; 166 A.R. 178 (Q.B.), refd to. [para. 51].

McDonald Dure Lumber Co. v. Marstone Holdings Ltd. et al. (1976), 66 D.L.R.(3d) 375 (Man. C.A.), refd to. [para. 87].

Evaskow v. International Brotherhood of Boilermakers, Iron Ship Builders, Black­smiths, Forgers and Helpers (1969), 9 D.L.R.(3d) 715 (Man. C.A.), refd to. [para. 87].

Bjorninen v. Mercredi (1984), 27 Man.R.(2d) 67; 6 D.L.R.(4th) 241 (C.A.), refd to. [para. 87].

Jepson Estate v. Westfair Foods Ltd. (1990), 63 Man.R.(2d) 150; 65 D.L.R.(4th) 615 (C.A.), refd to. [para. 87].

McGrath et al. v. Goldman et al. (1975), 64 D.L.R.(3d) 305 (B.C.S.C.), refd to. [para. 87].

Enns v. Panju et al., [1978] 5 W.W.R. 244 (B.C.S.C.), refd to. [para. 87].

Tracy and Morin v. Atkins (1979), 16 B.C.L.R. 223 (C.A.), refd to. [Schedule].

Patchett et al. v. Law Society of British Columbia et al., [1979] 1 W.W.R. 585 (B.C.S.C.), refd to. [Schedule].

Wynston v. MacDonald (1979), 105 D.L.R.(3d) 527 (Ont. H.C.), refd to. [Schedule].

Kettlewell v. Watson (1882), 21 Ch. Div. 685 (C.A.), refd to. [Schedule].

Brumer v. Gunn, [1983] 1 W.W.R. 424; 18 Man.R.(2d) 155 (Q.B.), refd to. [Sched­ule].

Kwak v. Odishaw, [1985] 2 W.W.R. 222 (B.C.C.A.), refd to. [Schedule].

Klingspon v. Ramsay, [1985] 5 W.W.R. 411 (B.C.S.C.), refd to. [Schedule].

Leyden v. Gatley (1986), 4 B.C.L.R.(2d) 311 (S.C.), refd to. [Schedule].

Blown v. Johnstone, [1988] 2 W.W.R. 178 (B.C.C.A.), refd to. [Schedule].

Lefebvre v. Gardiner (1988), 27 B.C.L.R.(2d) 294 (S.C.), refd to. [Sched­ule].

Skimming v. Goldberg et al., [1993] 8 W.W.R. 59; 89 Man.R.(2d) 27 (Q.B.), refd to. [Schedule].

Granville Savings and Mortgage Corp. v. Slevin et al., [1993] 4 S.C.R. 279; 160 N.R. 243; 88 Man.R.(2d) 145; 51 W.A.C. 145; [1994] 1 W.W.R. 257, affing. (1990), 68 Man.R.(2d) 241 (Q.B.), refd to. [Schedule].

Karpel v. Rumack (1994), 19 O.R.(3d) 555 (Gen. Div.), refd to. [Schedule].

Makarsky v. Canadian Pacific Railway Co. (1904), 15 Man. R. 53 (C.A.), refd to. [Schedule].

Basarsky v. Quinlan (1971), 24 D.L.R.(3d) 720 (S.C.C.), refd to. [Schedule].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109; 37 C.C.L.T. 117, varied [1988] 1 S.C.R. 1206; 44 C.C.L.T. xxxiv (S.C.C.), refd to. [Schedule].

Baer v. Hofer et al. (1991), 73 Man.R.(2d) 145 (C.A.), refd to. [Schedule].

Broveglio et al. v. Adams et al. (1991), 72 Man.R.(2d) 84 (Q.B.), refd to. [Sche­dule].

Bank of Montreal v. Stuart et al., [1911] A.C. 120 (H.L.), refd to. [Schedule].

Kuruyo Trading Ltd. v. Acme Garment Co. (1975) Ltd. (1988), 55 Man.R.(2d) 47; 51 D.L.R.(4th) 334 (C.A.), refd to. [Schedule].

Groves-Raffin Construction Ltd. et al. v. Canadian Imperial Bank of Commerce, [1975] 2 W.W.R. 97; 51 D.L.R.(3d) 380 (B.C.S.C.), varied [1976] 2 W.W.R. 673; 64 D.L.R.(3d) 78 (B.C.C.A.), refd to. [Schedule].

Buchanan et al. v. Canadian Imperial Bank of Commerce (1979), 15 B.C.L.R. 373 (S.C.), refd to. [Schedule].

Banque Nationale du Canada v. Soucisse, Groulx and Robitaille, [1981] 2 S.C.R. 339; 43 N.R. 283, refd to. [Schedule].

Continental Bank of Canada v. Hunter (1986), 75 A.R. 381; 49 Alta. L.R.(2d) 358 (Q.B.), refd to. [Schedule].

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57, refd to. [Schedule].

Law Society of Alberta and Ainscough Estate v. Canadian Imperial Bank of Commerce and Bank of Nova Scotia (1989), 101 A.R. 374 (Q.B.), refd to. [Schedule].

Law Society of Alberta v. Canadian Imperial Bank of Commerce, [1989] A.J. No. 1025 (Q.B.), refd to. [Schedule].

Northland Bank (Liquidation) v. 230720 Alberta Ltd. and Kelcher, (1990), 109 A.R. 227 (Q.B.), refd to. [Schedule].

Canadian Imperial Bank of Commerce v. Timm (Otto) Enterprises Ltd. (1991), 79 D.L.R.(4th) 67 (Ont. Gen. Div.), refd to. [Schedule].

Canadian Imperial Bank of Commerce v. Sayani et al. (1993), 33 B.C.A.C. 85; 54 W.A.C. 85 (C.A.), refd to. [Schedule].

Froese v. Montreal Trust Co. of Canada et al. (1995), 8 B.C.L.R.(3d) 262 (S.C.), revd. (1996), 76 B.C.A.C. 81; 125 W.A.C. 81; 20 B.C.L.R.(3d) 193 (C.A.), leave to appeal denied (1997), 208 N.R. 244; 88 B.C.A.C. 240; 144 W.A.C. 240 (S.C.C.), refd to. [Schedule].

Hodgkinson v. Simms et al., [1994] 3 S.C.R. 377; 171 N.R. 245; 49 B.C.A.C. 1; 80 W.A.C. 1, refd to. [Schedule].

Anand v. Medjuck, [1995] O.J. No. 2571 (Gen. Div.), refd to. [Schedule].

Mirtia Holdings Ltd. v. Toronto-Dominion Bank et al. (1995), 171 A.R. 105 (Q.B.), refd to. [Schedule].

Mirtia Holdings Ltd. v. Toronto-Dominion Bank et al., [1995] A.J. No. 536 (Q.B.), refd to. [Schedule].

Thorarinson v. Bruneau (1996), 110 Man.R.(2d) 117 (C.A.), refd to. [Sched­ule].

Fung Kai Sun v. Chan Fui Hing, [1951] A.C. 489 (P.C.), refd to. [Schedule].

Selangor United Rubber Estates Ltd. v. Cradock et al. (No. 3), [1968] 1 W.L.R. 1555, refd to. [Schedule].

Canadian Pacific Hotels Ltd. v. Bank of Montreal, [1987] 1 S.C.R. 711; 77 N.R. 161; 21 O.A.C. 321, refd to. [Schedule].

Sugar et al. v. Peat Marwick Ltd. et al. (1988), 66 O.R.(2d) 766 (H.C.), refd to. [Schedule].

Garofoli et al. v. Kohm et al., [1989] M.J. No. 528 (Q.B.), refd to. [Schedule].

Fletcher v. Manitoba Public Insurance Co., [1990] 3 S.C.R. 191; 116 N.R. 1; 71 Man.R.(2d) 81; 44 O.A.C. 81, refd to. [Schedule].

Jago v. Virden Credit Union Ltd. (1990), 69 Man.R.(2d) 50 (Q.B.), refd to. [Schedule].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1, refd to. [Schedule].

De Groot v. St. Boniface General Hospital, [1994] 6 W.W.R. 541 (Man. C.A.), refd to. [Schedule].

Statutes Noticed:

Court of Queen's Bench Act, R.S.M. 1987, c. C-280; C.C.S.M., c. C-280, sect. 96 [para. 86].

Limitation of Actions Act, R.S.M. 1987, c. L-150; C.C.S.M., c. L-150, sect. 2(1)(i) [para. 74].

Rules of Court (Man.), Queen's Bench Rules, rule 57.01 [para. 86].

Authors and Works Noticed:

Abra, Douglas N., Q.C., Legal and Finan­cial Advisors (November 8-9, 1996), 1996 Isaac Pitblado Lectures, pp. X-1 to X-9 [Schedule].

Baxter, The Law of Banking (4th Ed. 1992), pp. 56-68 [Schedule].

Bowstead on Agency (15th Ed. 1985), pp. 34 et seq., 145 et seq. [Schedule].

Bullen Leake & Jacobs, Precedents of Pleading (12th Ed. 1975), p. 1056 [para. 35].

Crawford and Falconbridge on Banking and Bills of Exchange (8th Ed. 1986), chs. 32, 36 [Schedule].

Fridman, G.H.L., The Law of Agency (6th Ed. 1990), chs. 2, 8 [Schedule].

Halsbury's Laws of England (3rd Ed. 1955), vol. 26, p. 838 [Schedule].

Halsbury's Laws of England (4th Ed. 1976), vol. 16 [Schedule].

McCamus, J.D., Fiduciary Obligations - Recent Developments in the Law (West­ern), Seminar (National Judicial Institute) (November 14-15, 1996), generally [Schedule].

Neate, F., and McCormick, R., Bank Con­fidentiality, in Canadian Legal Aspects of the Bank - Customer Relationship (1990), ch. 4 [Schedule].

Ogilvie, M.H., Canadian Banking Law (1991), pp. 418 to 458, 628 to 629 [Schedule].

Paget, The Law of Banking (10th Ed. 1990), chs. 10, 15 [Schedule].

Sopinka, John, Lederman, Sydney N., and Bryant, Alan W., The Law of Evidence in Canada (1992), pp. 626 to 639 [Schedule].

Waters, Donovan W.M., Banks Fiduciary Obligations and Unconscionable Trans­actions (1986), 65 Can. Bar Rev. 37, pp. 40, 41 [para. 26]; 58 [paras. 30, 31]; 59 [para. 31]; 61 [para. 32].

Counsel:

D.C.H. McCaffrey, Q.C., and B.H. Rutherford, for the plaintiff and Bruce Barry (third party);

Colin McArthur, Q.C., for the defendant, Phillips;

No one appearing for the third party, McLeod;

B.R. Burrows, Q.C., for Buchwald Asper Henteleff (third party).

This action was heard before Clearwater, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the follow­ing judgment on March 24, 1997, and the following supplementary judgment on costs on June 13, 1997.