Tangerine Financial Products Limited Partnership et al. v. Reeves Family Trust et al., (2015) 375 B.C.A.C. 294 (CA)

• Judge: Frankel, Garson and Harris, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: August 13, 2015
• Jurisdiction: British Columbia
• Citations: (2015), 375 B.C.A.C. 294 (CA);2015 BCCA 359

Tangerine Financial v. Reeves Family Trust (2015), 375 B.C.A.C. 294 (CA);

    644 W.A.C. 294

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. AU.018

Tangerine Financial Products Limited Partnership, TFP Management Ltd. in its capacity as General Partner of Tangerine Financial Products Limited Partnership, Tangerine Financial Products Corp. (petitioners) v. The Reeves Family Trust, Gundy Co. in Trust for Robert Wells, IHO Management Ltd., Gainey Consultants Inc., Corus Investments Corp., Eyton Group Ltd., Eyton Capital Ltd., Centerfire Capital Resources Inc., G3 Investments Ltd., Tangerine FP Investments Ltd., Norman Q. Chow, Corus Financial Ltd., James Henning, Doug Davis, Lisa Davis, Fentonlea Capital Corp., Robert Wells, Jason Cottle, Fourteen Eleven Ltd., Grant Sutherland, RBC Dominion Securities in Trust for RRSP Account 495-91840-13 (William Grant Sutherland), Geoffrey Briant (respondents) and The Bank of Nova Scotia and ING Bank of Canada (appellants/applicants) and RSP Generation Limited Partnership and RSP Generation Corp. (respondents/application respondents)

(CA41863)

Tangerine Financial Products Limited Partnership, TPF Management Ltd. in its capacity as General Partner of Tangerine Financial Products Limited Partnership, and Tangerine Financial Products Corp. (respondents/petitioners) v. The Reeves Family Trust, Gundy Co. in Trust for Robert Wells, IHO Management Ltd., Gainey Consultants Inc., Corus Investments Corp., Eyton Group Ltd., Eyton Capital Ltd., Centerfire Capital Resources Inc., G3 Investments Ltd., Tangerine FP Investments Ltd., Norman Q. Chow, Corus Financial Ltd., James Henning, Doug Davis, Lisa Davis, Fentonlea Capital Corp., Robert Wells, Jason Cottle, Fourteen Eleven Ltd., Grant Sutherland, RBC Dominion Securities in Trust for RRSP Account 495-91840-13 (William Grant Sutherland), Geoffrey Briant (respondents) and The Bank of Nova Scotia and ING Bank of Canada (respondents/application respondents) and RSP Generation Limited Partnership and RSP Generation Corp. (appellants/application respondents) and Ernst & Young Inc. in its capacity as Receiver of Tangerine Financial Products Limited Partnership (respondent/applicant)

(CA41976)

Tangerine Financial Products Limited Partnership, TPF Management Ltd. in its capacity as General Partner of Tangerine Financial Products Limited Partnership, and Tangerine Financial Products Corp. (appellants/petitioners) v. The Reeves Family Trust, Gundy Co. in Trust for Robert Wells, IHO Management Ltd., Gainey Consultants Inc., Corus Investments Corp., Eyton Group Ltd., Eyton Capital Ltd., Centerfire Capital Resources Inc., G3 Investments Ltd., Tangerine FP Investments Ltd., Norman Q. Chow, Corus Financial Ltd., James Henning, Doug Davis, Lisa Davis, Fentonlea Capital Corp., Robert Wells, Jason Cottle, Fourteen Eleven Ltd., Grant Sutherland, RBC Dominion Securities in Trust for RRSP Account 495-91840-13 (William Grant Sutherland), Geoffrey Briant (respondents) and The Bank of Nova Scotia and ING Bank of Canada (respondents/application respondents) and RSP Generation Limited Partnership and RSP Generation Corp. (respondents/application respondents) and Ernst & Young Inc. in its capacity as Receiver of Tangerine Financial Products Limited Partnership (respondent/applicant)

(CA41978; 2015 BCCA 359)

Indexed As: Tangerine Financial Products Limited Partnership et al. v. Reeves Family Trust et al.

British Columbia Court of Appeal

Frankel, Garson and Harris, JJ.A.

August 13, 2015.

Summary:

These appeals arose from steps being taken by RSP Generation Limited Partnership (RSP) to prevent the Bank of Nova Scotia (Scotiabank) from changing the name of its subsidiary ING Bank of Canada to "Tangerine". RSP contended that it acquired the right to use Tangerine with respect to financial products and services when it purchased the assets of Tangerine Financial Projects Limited Partnership (Tangerine LP) from a numbered company that had previously acquired those assets by means of a court-approved sale in receivership proceedings relating to Tangerine LP. Neither Scotiabank, nor ING Bank was a party to those proceedings. RSP sought to assert its rights to Tangerine in the receivership proceedings. It therefore, filed a notice of application in those proceedings seeking an order enjoining Scotiabank and ING Bank from using that name. In response, Scotiabank and ING Bank brought an application to strike RSP's notice of application.

The British Columbia Supreme Court (Smith, J.), in a decision reported [2014] B.C.T.C. Uned. 917, dismissed the application to strike. Scotiabank appealed that order (File No. CA41863). Following the dismissal of the motion to strike, the receiver of Tangerine LP, Ernst & Young Inc., brought an application in the receivership proceedings, seeking advice from the court as to whether, in light of the terms of the receivership, RSP required leave of the court or consent of the receiver to bring its application against Scotiabank and ING Bank.

The British Columbia Supreme Court (Ehrcke, J.), in a decision reported [2014] B.C.T.C. Uned. 1228, ruled that leave was required. RSP and Tangerine LP (together with related entities) appealed that order (File Nos. CA41976 and CA41978).

The British Columbia Court of Appeal allowed Scotiabank's and ING Bank's appeal from the order of Smith, J., on the basis that RSP's application was an abuse of process. RSP was attempting to use its application in the receivership proceedings as a "Trojan Horse" for a passing off action. RSP sought to obtain substantive relief against Scotiabank by means of a process that denied Scotiabank many of the procedural and substantive rights it would have as a defendant in a civil action. That constituted an abuse of process. In light of that finding, the appeals brought from the order of Ehrcke, J., were academic, and, therefore dismissed.

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - See paragraphs 44 to 53.

Practice - Topic 8825.7

Appeals - General principles - Duty of appeal court re decision to amend or strike pleadings - See paragraphs 36 to 43.

Cases Noticed:

Director of Civil Forfeiture (B.C.) v. Flynn (2013), 334 B.C.A.C. 215; 572 W.A.C. 215; 2013 BCCA 91, refd to. [para. 36].

Timberwolf Log Trading Ltd. v. British Columbia (Minister of Forests and Lands) et al. (2013), 335 B.C.A.C. 1; 573 W.A.C. 1; 2013 BCCA 24, refd to. [para. 36].

Carhoun & Sons Enterprises Ltd. v. Canada (Attorney General) (2015), 370 B.C.A.C. 283; 635 W.A.C. 283; 2015 BCCA 163, refd to. [para. 41].

Reece v. Edmonton (City) (2011), 513 A.R. 199; 530 W.A.C. 199; 335 D.L.R.(4th) 600; 2011 ABCA 238, leave to appeal denied (2012), 435 N.R. 389 (S.C.C.), refd to. [para. 41].

Equustek Solutions Inc. et al. v. Jack et al. (2015), 373 B.C.A.C. 240; 641 W.A.C. 240; 2015 BCCA 265, refd to. [para. 44].

Equustek Solutions Inc. et al. v. Jack et al., [2014] B.C.T.C. Uned. 1063; 374 D.L.R.(4th) 537; 2014 BCSC 1063, refd to. [para. 45].

Statutes Noticed:

Rules of Court (B.C.), Supreme Court Rules, rule 9-5(1)(d) [para. 35].

Supreme Court Rules (B.C.) - see Rules of Court (B.C.), Supreme Court Rules.

Counsel:

B.W. Dixon and S.T.C. Warnett, for The Bank of Nova Scotia and ING Bank of Canada;

J.J.L. Hunter, Q.C., and C.E. Hunter, for RSP Generation Limited Partnership and RSP Generation Corporation;

R.W. Cooper, for Tangerine Financial Products Limited Partnership, TFP Management Ltd., Tangerine Financial Products Corp.;

D.E. Gruber, for Ernst & Young Inc.

This appeal was heard in Vancouver, B.C., on November 3 and 4, 2014, before Frankel, Garson and Harris, JJ.A., of the British Columbia Court of Appeal. The following decision was delivered for the court on August 13, 2015, by Frankel, J.A.