Nesbitt Burns Inc. v. Canada Trustco Mortgage

Nesbitt Burns Inc. v. Canada Trustco Mortgage

The Court of Appeal dismissed the appeal, holding that Boma establishes conversion as a strict liability tort so any portion of the pleaded defences that amounts to contributory negligence must be struck out, but s.48(1) preclusion under the Bills of Exchange Act remains available and Boma does not negate that statutory defence; because the impugned paragraphs do not specifically plead s.48(1) or preclusion their legal intent is unclear, the defendant is granted leave to amend to plead defences clearly.

Citation
C32077
Parties
Plaintiff/respondent: Nesbitt Burns Inc.; Defendant/appellant: Canada Trustco Mortgage Company
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
22 March 2000
Procedural Posture
Civil / Appeal (interlocutory Motion Concerning Pleading Strike‑out Under Rule 21; Underlying Summary Judgment Motion Under Rule 20 Pending)
Outcome
Appeal dismissed with leave to amend the Statement of Defence to state legal basis of any defence; costs of the appeal in the cause.
Legal Topics
Conversion, Preclusion Under S.48(1) Bills of Exchange Act, Contributory Negligence Defence, Pleadings Motion (rule 21), Summary Judgment (rule 20), Duty of Care Between Drawer and Collecting Bank, Forgery and Endorsements
Source Language
English
Banking Law Tort Civil Procedure Commercial Law Bills of Exchange Conversion Preclusion Under S.48(1) Bills of Exchange Act Contributory Negligence Defence +4 more

Case Brief

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Parties

Nesbitt Burns Inc.

Plaintiff/respondent

Canada Trustco Mortgage Company

Defendant/appellant

Procedural Posture

Civil / Appeal (interlocutory Motion Concerning Pleading Strike‑out Under Rule 21; Underlying Summary Judgment Motion Under Rule 20 Pending)

Legal Issues

  1. 1 Whether respondent should have been denied leave to move under Rule 21 where a Rule 20 summary judgment motion was pending and procedural steps/costs had been expended
  2. 2 Whether paragraphs 9, 10 and 11 of the Statement of Defence disclose a reasonable defence to conversion
  3. 3 Whether contributory negligence is available as a defence to an action in conversion in light of Boma Manufacturing Ltd. v. CIBC

Ratio Decidendi

The Court of Appeal dismissed the appeal, holding that Boma establishes conversion as a strict liability tort so any portion of the pleaded defences that amounts to contributory negligence must be struck out, but s.48(1) preclusion under the Bills of Exchange Act remains available and Boma does not negate that statutory defence; because the impugned paragraphs do not specifically plead s.48(1) or preclusion their legal intent is unclear, the defendant is granted leave to amend to plead defences clearly.

Court Disposition

Appeal dismissed with leave to amend the Statement of Defence to state legal basis of any defence; costs of the appeal in the cause.

Orders

  • Appeal dismissed
  • Leave granted to defendant to amend paragraphs of the Statement of Defence to state clearly the legal basis of any defence (including, if advised, pleading s.48(1) preclusion)