Transamerica Occidental Life Insurance Company v. Toronto-Dominion Bank

Transamerica Occidental Life Insurance Company v. Toronto-Dominion Bank

The Court of Appeal held that on the documentary record and affidavits there were legitimate competing inferences about whether GAS held premiums in trust (express, statutory or constructive) and that weighing that evidence and resolving credibility are functions for trial; accordingly summary judgment dismissing the insurers' action was set aside and TD's motion dismissed except the negligent misrepresentation claim (for which the court found no genuine issue for trial).

Citation
C29582
Parties
Plaintiff/appellant: Transamerica Occidental Life Insurance Company; Plaintiff/appellant: Granite Insurance Company (formerly Symons General Insurance Company); Defendant/respondent: The Toronto-Dominion Bank
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
9 April 1999
Procedural Posture
Civil Appeal From Summary Judgment Motion / Court of Appeal Decision on Appeal From a Rule 20 Summary Judgment Motion
Outcome
Appeal allowed in part. Motion judge's summary judgment set aside. TD's Rule 20 motion for summary judgment dismissed except that the insurers' negligent misrepresentation claim was dismissed. Cross-appeal by TD dismissed.
Legal Topics
Summary Judgment, Express Trust, Statutory Trust (insurance Act S.402), Constructive Trust, Knowing Assistance, Negligent Misrepresentation, Agency, Mirror Accounting, Bank Confidentiality, Costs
Source Language
English
Trusts Insurance Law Civil Procedure Banking Law Agency Law Tort (negligent Misrepresentation) Summary Judgment Express Trust +8 more

Case Brief

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Parties

Transamerica Occidental Life Insurance Company

Plaintiff/appellant

Granite Insurance Company (formerly Symons General Insurance Company)

Plaintiff/appellant

The Toronto-Dominion Bank

Defendant/respondent

Procedural Posture

Civil Appeal From Summary Judgment Motion / Court of Appeal Decision on Appeal From a Rule 20 Summary Judgment Motion

Legal Issues

  1. 1 Whether premiums remitted to GAS were held in trust (express, statutory under s.402(1), or constructive)
  2. 2 Whether TD was liable for knowing assistance in a breach of trust
  3. 3 Whether TD was liable for negligent misrepresentation

Ratio Decidendi

The Court of Appeal held that on the documentary record and affidavits there were legitimate competing inferences about whether GAS held premiums in trust (express, statutory or constructive) and that weighing that evidence and resolving credibility are functions for trial; accordingly summary judgment dismissing the insurers' action was set aside and TD's motion dismissed except the negligent misrepresentation claim (for which the court found no genuine issue for trial).

Court Disposition

Appeal allowed in part. Motion judge's summary judgment set aside. TD's Rule 20 motion for summary judgment dismissed except that the insurers' negligent misrepresentation claim was dismissed. Cross-appeal by TD dismissed.

Orders

  • Set aside the motion judge's order granting summary judgment
  • Dismiss TD's motion for summary judgment with costs, except as to the insurers' negligent misrepresentation claim which is dismissed