Archive for the ‘plain and obvious test’ Category

Bank owes no duty of care to non-customers, Ontario Court of Appeal rules

July 27, 2010
In Dynasty Furniture Manufacturing Ltd. v. Toronto-Dominion Bank, 2010 ONCA 514, the Court of Appeal for Ontario confirms that a bank owes no duty of care to a non-customer…unless properly pleaded, leaving the question of whether such a duty of care exists to another day.
In Dynasty Furniture, the defendant bank brought a Rule 21 motion to strike portions of the plaintiff’s statement of claim as disclosing no reasonable cause of action relying on an “alleged duty …to make inquiries into the activities of its customer with whom [the plaintiffs] had dealings in order to ensure that its customer was not using the bank to further fraudulent activity.”
The motion judge applied the Anns/Kamloops test and concluded that the bank had a duty to a non-customer “only where it has actual knowledge (including wilful blindness or recklessness) of its customer’s fraudulent conduct.”
The Court of Appeal agreed, concluding that:
[5]               We are of the view that the facts, as pleaded, do not give arise [sic] to the duties relied upon in the struck portions of the statement of claim.  Although in some cases trial courts have, on motion to strike, allowed claims alleging a duty to ensure that a bank’s customers did not use their accounts for fraudulent purposes to proceed to trial, we were not referred to any trial or appellate decision in Canada holding that a bank has those duties to a non-customer.  Thus the impugned claims do not fall within a category of cases that has been recognized by the courts.
[6]               Moreover, we do not consider this to be a case where this court should recognize a new duty of care under the Anns/Kamloops principles.  We agree generally with the motion judge’s analysis of those principles.  Based on that analysis, we are of the view that the facts, as pleaded in this case, are not sufficient to warrant recognizing a new duty of care by a bank to a non-customer.  
[7]               The appellants rely on Semac Industries Ltd. v. 1131426 Ontario Ltd. (2001), 16 B.L.R. (3d) 88 (Ont. S.C.) to support the position that the struck portions of this claim should proceed to trial so that the question as to whether the court should recognize a duty be decided with the benefit of a full evidentiary record. In Semac the motion judge identified particular circumstances of the claim that, in his view, ought to be dealt with at a trial. These included allegations that the bank had already raised concerns internally about suspicious conduct on the part of its customer, and that the non-customer had subsequently alerted the bank to its allegation of fraud.
[8]               No such allegations were pleaded in the appellants’ statement of claim and in our view, there are no circumstances disclosed in the claim that warrant the issue going to trial. We would, therefore, not give effect to this submission. 
[9]               In these circumstances, we do not find it necessary to decide whether a bank may ever be found to have a duty to a non-customer in circumstances where it does not have actual knowledge (wilful blindness or recklessness) of the fraudulent activities being conducted through an account of its customer.  We leave the question of whether such a duty exists and, if so, in what circumstances, to another day.
[10]          Thus, we are of the view that it is plain and obvious that the claims made in the struck portions of the statement of claim cannot succeed.” [emphasis added]

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