



COURT OF APPEAL FOR ONTARIO

CITATION: Cash House
    Inc. v. Choy, 2015 ONCA 584

DATE: 20150828

DOCKET: C58484

Feldman, Simmons and Miller JJ.A.

BETWEEN

The Cash House Inc.

Appellant (Plaintiff)

and

Lai Kwan Choy, HSBC Bank Canada,
Andrew Mantella
,
Maple Trust
    Company
, 1682689 Ontario Limited and Bob Chong

Respondent (Defendants)

Mauro Marchioni and Adam Justin Marchioni, for the
    appellant

R. Leigh Youd, for the respondent, Andrew Mantella

Martin Sclisizzi, for the respondent, Maple Trust
    Company

Heard: August 25, 2015

On appeal from the judgment of Justice David G. Stinson of
    the Superior of Justice, dated November 20, 2013.

ENDORSEMENT

[1]

The appellant appeals the decision of the trial judge dismissing its
    claims against both the mortgagee and against its solicitor. The appellant
    cashed a bank draft to the mortgagor drawn by the solicitor on his trust
    account for the mortgage funds. Unfortunately, the mortgagor was a fraudster
    who duped both respondents and the appellant.

[2]

The appellant raises two grounds of appeal against the mortgagee Maple
    Trust Company. The first is that the trial judge erred by dismissing the
    appellants request to amend the claim against Maple Trust following its
    closing argument, to add new allegations of negligence. The appellant argues
    that Rule 26 is mandatory and that the timing of the motion caused only the
    type of prejudice that could be compensated by costs or an adjournment.

[3]

In our view, there is no basis to interfere with the discretionary
    decision of the trial judge not to allow the trial to be re-opened after
    closing argument. In any event, as the new allegations would have constituted a
    completely different cause of action in negligence, they would have been
    statute barred.

[4]

As we are not giving effect to the first ground, there is no need to
    address the applicability of negligence principles had the amendment been
    allowed.

[5]

The appellant also seeks to set aside the decision of the trial judge
    not to recognize a new duty of care owed by the respondent Mantella to the
    appellant as the effective collecting bank in respect of the bank draft. We
    see no error in the trial judges conclusion. This court recently held in
Teva
    v. Bank of Montreal
,
2012 ONCA
486, 294 O.A.C.
    323, that the court should not recognize a new duty of care in the context of
    the obligations that exist in respect of bills of exchange.

[6]

The appeals against the respondents, Maple Trust and Mantella, are
    dismissed with costs fixed in the agreed amount of $17,000 inclusive of
    disbursements and HST to each respondent.

[7]

The balance of the appeal against the respondent Chong is adjourned in
    accordance with the endorsement of the court made following the oral hearing.

K. Feldman J.A.

J. Simmons J.A.

B. Miller J.A.


