



COURT OF APPEAL FOR ONTARIO

CITATION: Fairlie Insurance Agency Inc. v. Benesure
    Canada Inc., 2012 ONCA 677

DATE: 20121005

DOCKET: C55323

Laskin, Blair and Epstein JJ.A.

BETWEEN

Fairlie Insurance Agency Inc. and John Fairlie

Plaintiffs (Appellants)

and

Benesure Canada Inc. and John Lorriman

Defendants (Respondents)

Mark Wainberg, for the plaintiffs (appellants)

Paul Michell, for the defendants (respondents)

Heard: October 4, 2012

On appeal from the order of Justice Kenneth L. Campbell
    of the Superior Court of Justice, dated March 7, 2012.

APPEAL BOOK ENDORSEMENT

[1]

Without deciding the issue, we are not able to say, given the decision
    of the British Columbia Court of Appeal in
Sun-Rype Products Ltd. v. Archer
    Daniels Midland Company
, 2008 BCCA 278 (CanLII), that it is plain and
    obvious a claim in equitable fraud cannot succeed. The appeal is therefore
    allowed, the order striking the plea of equitable fraud is set aside, and the
    defendants motion below is dismissed. The plaintiffs are entitled to amend
    their statement of claim if so advised.

[2]

The costs order below is varied by reducing the costs payable to the
    defendants to the sum of $3500 all inclusive. Costs of the appeal are fixed in
    the amount of $8000, in favour of the appellant, again inclusive of disbursements
    and all applicable taxes.


