Stevenson Estate v. Siewert et al., 2000 ABCA 222

• Judge: Russell, Picard and Berger, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: August 08, 2000
• Citations: 2000 ABCA 222;(2000), 266 A.R. 35 (CA)

Stevenson Estate v. Siewert (2000), 266 A.R. 35 (CA);

    228 W.A.C. 35

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. AU.054

Clifford Trimble Macor, interim trustee of the estate of Hannah Edith Stevenson (plaintiff/appellant) v. Wulf Siewert, Wulf H. Siewert Professional Corporation, Anna Huraj and The Royal Bank of Canada (defendants/respondents) and Gerald Martin Salvino (third party/not a party to the appeal)

(No. 9903-0229-AC; 2000 ABCA 222)

Indexed As: Stevenson Estate v. Siewert et al.

Alberta Court of Appeal

Russell, Picard and Berger, JJ.A.

August 8, 2000.

Summary:

Stevenson, age 99, was subject to a guard­ianship and trusteeship order under the Dependent Adults Act (Alta.) respecting her assets in Alberta. She had a US $100,000 bank draft payable to herself drawn on her out of province funds. The draft was delivered to a law office in Alberta and picked up from there by a Mr. Salvino. Stevenson endorsed the draft in blank in Alberta. The draft funds were deposited in a bank account in Alberta. The bank account belonged to a numbered company whose sole shareholder, director and officer was Salvino. The funds were withdrawn. Steven­son sought recovery of the money. After her death, the interim estate trustee sued those who came in contact with the draft. The defendants were a lawyer, his professional corporation, his secretary and the bank.

The Alberta Court of Queen's Bench, in a decision reported 242 A.R. 265, dismissed the action. The plaintiff appealed.

The Alberta Court of Appeal allowed the appeal and allowed the action.

Banks and Banking - Topic 2006

Liability of banks to third parties - Gen­eral - Conversion - [See second Torts - Topic 3093 ].

Barristers and Solicitors - Topic 4382

Relations with third parties (incl. opposite parties) - Conversion - What constitutes conversion - [See first Torts - Topic 3093 ].

Contracts - Topic 752

Parties - Capacity - Persons of unsound mind and drunkards - Dependent adult - Stevenson, age 99, was subject to a guard­ianship and trusteeship order respecting her assets in Alberta - Appearing to be capable, Stevenson had a US $100,000 bank draft payable to herself drawn on her out of province funds and delivered in Alberta - She endorsed the draft in blank but the funds were lost through third party intervention - An action to recover the funds was dismissed at first instance - The judge held that Stevenson had capacity to make the endorsement and that the trust­eeship order did not include the draft - The Alberta Court of Appeal reversed this decision, holding that the judge erred since Stevenson had been judicially found to be incompetent and the draft's face value had become an asset in Alberta, subject to the trustee's control, once the draft arrived in Alberta - See paragraphs 17 to 32, 47, 48.

Guardian and Ward - Topic 1045

Duties and powers of guardian - Respect­ing ward's estate - Re negotiable instru­ments - [See Contracts - Topic 752 ].

Negotiable Instruments - Topic 4163

Cheques - Endorsements - Endorsement in blank - Bank draft - [See Contracts - Topic 752 ].

Persons of Unsound Mind - Topic 1523

Property - Banking - Endorsements - [See Contracts - Topic 752 ].

Practice - Topic 5402

Judgments and orders - General - Cur­rency of judgments - Stevenson, age 99, was subject to a guardianship and trustee­ship order respecting her assets in Alberta - In July 1990, Stevenson had a US $100,000 bank draft payable to herself drawn on her out of province funds and delivered in Alberta - She endorsed the draft in blank but the funds were lost through third party intervention - An action to recover the funds was allowed on appeal, in a decision rendered on August 8, 2000 - The Alberta Court of Appeal issued judgment for US $100,000 plus interest - The U.S. amount was to be converted to Canadian dollars as of the breach date, July 1990 - See paragraphs 62 to 76.

Torts - Topic 3093

Trespass - Trespass to goods - Conver­sion - What constitutes conversion - Stevenson, age 99, was subject to a guard­ianship and trusteeship order under the Dependent Adults Act (Alta.) respecting her assets in Alberta - She had a US $100,000 bank draft payable to herself drawn on her out of province funds - The draft was delivered to a law office in Alberta and picked up from there by a Mr. Salvino - Stevenson endorsed the draft in blank in Alberta - The funds were deposited in a bank account but were lost through third party intervention - An action was brought to recover them - The defendants included a lawyer from the law office, who knew that Stevenson was a dependent adult, his secretary and his professional corporation -The action was allowed on appeal - The Alberta Court of Appeal held that the trial judge erred in failing to find the above-mentioned defen­dants liable for conversion in dealing with the dependent adult's assets without the consent of her trustee - See paragraphs 33 to 43.

Torts - Topic 3093

Trespass - Trespass to goods - Conver­sion - What constitutes conversion - Stevenson, age 99, was subject to a guard­ianship and trusteeship order under the Dependent Adults Act (Alta.) respecting her assets in Alberta - She had a US $100,000 bank draft payable to herself drawn on her out of province funds - The draft was delivered to a law office in Alberta and picked up from there by a Mr. Salvino - Stevenson endorsed the draft in blank in Alberta - The draft funds were deposited in an Alberta bank account of a numbered company whose sole share­holder, director and officer was Salvino - The funds were withdrawn - Stevenson sought to recover them - An action was brought - The action was allowed on appeal - The Alberta Court of Appeal held that the trial judge had erred in law by failing to find that by negotiating the draft on Stevenson's un­authorized endorsement, the bank was liable for conversion - See paragraphs 44 to 57.

Cases Noticed:

McDonald v. Fellows, Doherty Brothers Realty Ltd. and Wilkinson, [1979] 6 W.W.R. 544; 17 A.R. 330 (C.A.), refd to. [para. 15].

Poulos v. Caravelle Homes Ltd. et al. (1997), 196 A.R. 138; 141 W.A.C. 138; 49 Alta. L.R.(3d) 385 (C.A.), refd to. [para. 15].

Monticello State Bank v. Baillee et al. (1922), 18 Alta. L.R. 6 (C.A.), consd. [para. 16].

Walker, Re, [1905] 1 Ch. 160, refd to. [para. 28].

Marshall, Re; Marshall v. Whateley, [1920] 1 Ch. 284; [1920] All E.R. Rep. 190, refd to. [para. 28].

Rourke v. Halford (1916), 31 D.L.R. 371 (Ont. C.A.), refd to. [para. 28].

Arrow Transfer Co. v. Royal Bank of Canada et al. (1971), 19 D.L.R.(3d) 420 (B.C.C.A.), affd. (1972), 27 D.L.R.(3d) 81 (S.C.C.), consd. [para. 31].

Law Society of Alberta and Ainscough's Estate v. Canadian Imperial Bank of Commerce and Bank of Nova Scotia (1989), 101 A.R. 374; 71 Alta. L.R.(2d) 102 (Q.B.), refd to. [para. 31].

Boma Manufacturing Ltd. et al. v. Cana­dian Imperial Bank of Commerce, [1996] 3 S.C.R. 727; 203 N.R. 321; 82 B.C.A.C. 161; 133 W.A.C. 161; 140 D.L.R.(4th) 463, refd to. [para. 33].

Maple Leaf Lumber Co. and 384238 Ontario Ltd. v. Canada (1983), 52 N.R. 206; 8 D.L.R.(4th) 676 (F.C.A.), leave to appeal refused (1984), 53 N.R. 399; 8 D.L.R.(4th) 676 (S.C.C.), refd to. [para. 36].

384238 Ontario Ltd. et al. v. Canada - see Maple Leaf Lumber Co. and 384238 Ontario Ltd. v. Canada.

Simpson v. Gowers et al. (1981), 121 D.L.R.(3d) 709 (Ont. C.A.), refd to. [para. 38].

Shibamoto & Co. et al. v. Western Fish Producers Inc. (Bankrupt) et al., [1991] 3 F.C. 214; 43 F.T.R. 1 (T.D.), affd. (1992), 145 N.R. 91 (F.C.A.), refd to. [para. 39].

Lovekin v. Podger (1866), 26 U.C.Q.B. 156 (C.A.), refd to. [para. 39].

Joule Ltd. v. Poole (1924), 24 S.R.(N.S.W.) 387, refd to. [para. 39].

Elvin and Powell Ltd. v. Plummer Roddis Ltd. (1933), 50 T.L.R. 158, refd to. [para. 40].

Premier Lumber Co. v. Grand Trunk Pacific Railway Co., [1923] S.C.R. 84, refd to. [para. 40].

Landry v. Grunwald, [1986] B.C.J. No. 1889 (S.C.), refd to. [para. 40].

Eastrock Inc. v. Ultrafilter Canada Inc. (1999), 99 O.T.C. 15 (S.C.), refd to. [para. 40].

Arnold v. Cheque Bank (1876), 1 C.P.D. 578, refd to. [para. 55].

Fine Art Society Ltd. v. Union Bank of London Ltd. (1886), 17 Q.B.D. 705 (C.A.), consd. [para. 55].

Capital & Counties Bank Ltd. v. Gordon, [1903] A.C. 240 (H.L.), refd to. [para. 55].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 114 D.L.R.(4th) 419, consd. [para. 59].

Custodian v. Blucher, [1927] S.C.R. 420, consd. [para. 63].

Gatineau Power Co. v. Crown Life Insur­ance Co., [1945] S.C.R. 655, refd to. [para. 63].

United Railways of the Havana and Regla Warehouses Ltd., Re, [1960] 2 All E.R. 332; [1961] A.C. 1007 (H.L.), refd to. [para. 64].

Miliangos v. George Frank (Textiles), [1975] 3 All E.R. 801 (H.L.), refd to. [para. 64].

Oil Spill by Amoco Cadiz, Re (1992), 954 F.2d 1279 (7th Cir.), refd to. [para. 66].

Batavia Times Publishing Co. v. Davis (1978), 88 D.L.R.(3d) 144 (Ont. H.C.), refd to. [para. 68].

Williams & Glyn's Bank v. Belkin Pack­aging Ltd. (1981), 123 D.L.R.(3d) 612 (B.C.C.A.), refd to. [para. 69].

Chamberland and Chamberland v. Fleming and Brost (1984), 54 A.R. 291 (Q.B.), refd to. [para. 70].

First National Bank of Oregon v. Watson (A.H.) Ranching Ltd. (1984), 57 A.R. 169 (Q.B.), refd to. [para. 70].

Salzburger Sparkass v. Total Plastics Ser­vices Inc. (1988), 27 B.C.L.R.(2d) 333; 50 D.L.R.(4th) 639 (S.C.), refd to. [para. 71].

Prasad v. Frandsen (1985), 60 B.C.L.R. 343 (S.C.), refd to. [para. 71].

Stoddard v. Accupress Manufacturing Ltd., [1993] B.C.J. No. 1708 (S.C.), refd to. [para. 71].

Cox v. Brown, [1996] B.C.J. No. 3033 (S.C.), refd to. [para. 72].

N.V. Bocimar S.A. v. Century Insurance Co. of Canada (1984), 53 N.R. 383 (F.C.A.), revd. [1987] 1 S.C.R. 1247; 76 N.R. 212; 39 D.L.R.(4th) 465, refd to. [para. 72].

Alpine Canada Alpin v. Oppenheim et al. (1999), 245 A.R. 252 (Q.B.), consd. [para. 73].

Statutes Noticed:

Bank Act, R.S.C. 1985, c. B-1, sect. 205(1) [para. 53].

Bills of Exchange Act, R.S.C. 1985, c. B-4, sect. 38 [para. 37].

Dependent Adults Act, R.S.A. 1980, c. D-32, sect. 25(1)(b) [para. 20]; sect. 28(1), sect. 31(1) [para. 29].

Authors and Works Noticed:

Beal, Crystal, Foreign Currency Judg­ments: A New Option for United States Courts (1998), 19 U. Penn. J. of Intnl. Econ. Law 101, pp. 120 [para. 65]; 126, 127 [para. 66].

Bright's Banking Law and Practice in New Zealand (2nd Ed.), p. 180 [para. 31].

Côté, J.E., An Introduction to the Law of Contract (1974), p. 77 [para. 19].

Crawford and Falconbridge, Banking and Bills of Exchange (8th Ed. 1986), vol. 2 pp. 532 [para. 53]; 1348, 1349 [para. 19]; 1386 [paras. 33, 34, 46]; 1387 [para. 33]; 1713, 1714 [para. 18].

Flemming, John G., The Law of Torts (8th Ed. 1992), p. 60 [para. 40].

Klar, L.N., Tort Law (2nd Ed. 1996), pp. 77, 79 [para. 39].

Ogilvie, M.H., Canadian Banking Law (2nd Ed. 1998), pp. 519 [para. 54]; 648 [para. 55].

Palmer, N.E., Bailment (2nd Ed. 1991), p. 690 [para 40].

Sopinka, John, Lederman, Sydney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1998), p. 620 [para. 60].

Waddams, Stephen M., The Law of Con­tracts (4th Ed. 1999), pp. 489, 490 [para. 19].

Counsel:

F.F. Slatter, for the appellant (plaintiff);

B.A. Chatwin, for the respondents (defen­dants), Wulf Siewert, Wulf H. Siewert Professional Corp. and Anna Huraj;

D.C.I. Lucky, for the respondents (defend­ants), The Royal Bank of Canada.

This appeal was heard on April 3-4, 2000, by Russell, Picard and Berger, JJ.A., of the Alberta Court of Appeal.

The decision of the Court of Appeal was delivered on August 8, 2000, by Russell, J.A.