



COURT OF APPEAL FOR ONTARIO

CITATION: Saint Luke Lutheran Church v. McGregor, 2019 ONCA
    261

DATE: 20190403

DOCKET: C65615

Lauwers, Benotto and Brown JJ.A.

BETWEEN

Saint Luke Lutheran Church

Plaintiff

and

Don McGregor
and
    Investia Financial Services Inc., o/a Money Concepts

Defendants (
Appellant
)

and

Pierre Cronier, Denis Poirier, Margaret
    Tannahill-Wade, Bryan J. King, David Bickel, Kim Herweyer, Ron Herweyer, Murray
    Johnson, Gail Detlefsen, Barton Thomas Burron, John Doe #1  50 and Jane Doe #1
    - 50

Third Parties (Respondents)

Philip Ghosh, for the
    appellant

Joseph Griffiths, for the
    respondents

Heard: March 27, 2019

On appeal from the
    judgment of Justice Kevin Phillips of the Superior Court of Justice, dated March
    29, 2018.

REASONS FOR DECISION

[1]

Saint Luke Lutheran Church is an unincorporated association of
    individuals. Under its constitution, members of the congregation are appointed
    as officers and given specific responsibilities. The officers changed from time
    to time over the relevant period of Mr. Burrons fraud. It is noteworthy that
    neither the motion judge nor the parties adverted to the unincorporated status
    of Saint Luke Lutheran Church as a party to litigation, or in relation to its
    members.

[2]

At para.10 of his typed endorsement, the motion judge said:

The bottom line is that it was and
    remains the Courts intention that the third party claim involving all persons
    other than Barton Thomas Burron be dismissed (I am satisfied that a basis exist
    for him to arguably have a distinct fiduciary duty and a related independent
    standard of care).

[3]

The motion judges observation in the bracketed sentence applies to
    every person named as an officer during the time that Mr. Burron carried out
    his fraud. There are several complex issues including: the status of the
    plaintiff to bring an action; how the law applies as it relates to
    unincorporated associations of individuals, and to the provisions of the
Negligence
    Act
and the
Rules of Civil Procedure
. The correlation is a matter of considerable complexity and requires a
    full evidentiary record, one that has not been developed. This is a matter that
    should go
to trial.

[4]

The appeal is allowed, and the appellants motion to substitute new
    names for the Doe third parties is allowed. The respondents will pay costs to
    the appellant in the amount of $8000, all-inclusive.

P. Lauwers J.A.

M.L. Benotto J.A.

David Brown J.A.


