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The Court of Appeal for Ontario dismissed an appeal from summary judgment, upholding enforcement of a $2.1 million promissory note and costs.
The promissory note is a separate, enforceable contract not encompassed by the APA arbitration clause, and because there is an arguable case for summary judgment the court declines to stay the proceeding under s.9(2)(e) of the Commercial Arbitration Act; the stay is denied and VistaCare must convert the application to an action and pursue summary judgment, with arbitration reserved only if summary judgment is not obtained.
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The Court held that the banks’ s.20(5) BEA defence applied: two payees were objectively non-existing and, crucially, Teva failed to show corporate intent that the named payees receive payment because no responsible officer reviewed or approved the requisitions; absent evidence of the drawer’s directing mind forming an honest mistaken belief, the payees are fictitious and the cheques are treated as payable to bearer, absolving the collecting banks of liability for conversion.
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The promissory note unambiguously obligated James R. Sinclair personally (language 'undersigned joint and severally' and his signature), the plaintiff established no material facts in dispute and the defendant failed to show a defense with a real prospect of success; summary judgment is granted for plaintiff for USD 900,000 with pre‑judgment interest per the note and post‑judgment interest at 5% p.a.
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The court refused immediate judgment on deemed admissions, but adjourned the trial on conditions after the defendant sought time to pursue withdrawal of admissions and cure disclosure defaults.
The court allowed the appeal and set aside the summary judgment because the fraud-tainted history of the funds removed the presumption of holder in due course and shifted the burden to Esses to prove good faith and value; the record raised genuine issues of credibility and knowledge/state of mind that required trial and viva voce evidence, so summary judgment was inappropriate. Certification does not bar a defence where acceptance was procured by fraud and where the holder's status is contested.
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Where a Requirement to Pay under s.224(1) exists, a bank that is in a debtor-creditor relationship with the tax debtor is a person "liable to make a payment" because deposits are payable on demand; presentation of cheques constituted a demand making the amounts payable to the tax debtor and therefore the bank was required to comply with the Requirements and remit the proceeds to the Receiver General; failure to do so warranted assessment under s.224(4).
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The Supreme Court held that the bank was not liable in conversion because the corporation’s directing mind authorized the cheque’s proceeds to be deposited elsewhere.
The court held the note was qualified and not a bill of exchange, but it still proved an underlying loan debt. The defendant remained liable and fraud was not made out.
The Supreme Court of British Columbia allowed an appeal and ordered a new trial on whether a promissory note maker could raise lack or failure of consideration.
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