



COURT OF APPEAL FOR ONTARIO

CITATION:
Oak
    Incentives Group Inc. v. Toronto-Dominion Bank,
2012 ONCA 726

DATE: 20121030

DOCKET: C53952

Rosenberg, Gillese and Tulloch JJ.A.

BETWEEN

Oak Incentives Group Inc.

Plaintiff/Respondent

and

The Toronto Dominion Bank

Defendant/Appellant

Martin Greenglass, for the appellant

Robert G. Tanner, for the respondent

Heard: October 24, 2012

On appeal from the judgment of Justice Susan E. Greer of
    the Superior Court of Justice, dated June 9, 2011.

ENDORSEMENT

[1]

We agree with the appellant that the trial judge made some factual
    errors. We are also of the view that some of her comments about the banking
    system may not have been supportable on the record. However, there was a clear
    basis for liability in this case based upon the agreed statement of facts and
    the evidence of Mr. Christie, which the trial judge accepted. This court will
    only order a new trial if errors have resulted in a substantial wrong or
    miscarriage of justice within the meaning of s. 134(6) of the
Courts of
    Justice Act
. In our view, there was no substantial wrong or miscarriage of
    justice.

[2]

This case turned on the particular facts: the information that Mr.
    Christie conveyed to the appellants employees and the answers that were given
    by the employees, especially Ms. Spencer, in light of the specific inquiry made
    by Mr. Christie. The trial judge recognized that ordinarily the relationship
    between a customer and its bank is one of debtor and creditor. She was entitled
    to find, in this case, however, that there was a special relationship that took
    the case out of the normal context of debtor and creditor and that the
    appellant owed the respondent a duty of care. Contrary to the appellants
    submissions, she did not base her findings of liability on a fiduciary
    relationship.

[3]

The appellant was aware that this was an unusual transaction for the
    respondent. The representative of the respondent made specific inquiries of the
    appellants employees. He was misled by the information provided by the
    employee into believing that it was safe for him to advance the funds to Sony.
    It was open to the trial judge to find that the employee breached the standard
    of care; that the employee did not act reasonably given the information she had
    been provided and the evident reliance the respondent placed on that
    information. Since this case did not turn on broad issues of banking practice
    but rather depended upon the particular and unusual factual matrix, expert
    evidence was not required.

[4]

While contributory negligence was pleaded it was not argued at trial. We
    would not permit the appellant to raise the issue for the first time on appeal.

[5]

The trial judge was entitled to order that post-judgment interest on the
    costs would run from the date of her decision. This holding accords with s. 129
    of the
Courts of Justice Act
and
United States v. Yemec
(2007), 85 O.R. (3d) 751 (Div. Ct.). The fact that the trial judge ordered the
    appellant to pay the costs within 30 days of the Order, did not preclude
    interest on the costs running from the date of the decision.

[6]

At trial, the appellant conceded that HST was payable throughout. For
    the first time on appeal, the appellant seeks to withdraw that admission. We
    would not permit the appellant to do so.

[7]

There is an admitted calculation error. The damages should be reduced by
    $730.92 and the pre-judgment interest reduced by $131.40.

[8]

Accordingly, subject to an amendment to the Judgment to reflect para. 7
    of this endorsement, the appeal is dismissed with costs fixed at $14,969.70 inclusive of disbursements and HST.

M. Rosenberg J.A.

E.E. Gillese J.A.

M.
    Tulloch J.A.


