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Simon Shields, LLB

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Civil Practice - Summary Judgment - Partial Summary Judgment

Torts - Fraudulent Misrepresentation

Canadian Imperial Bank of Commerce v. Deloitte & Touche" (Ont CA, 2016)

In this case the Court of Appeal cautions against making 'partial' motions for summary judgment given the risk that inconsistent fact findings regarding elements of the various causes of action may be made on the motion, versus at a later trial on the balance of issues. The ruling makes no reference to the 'genuine issue requiring a trial' standard applicable to summary judgments [RCP R20.04(2)]:
[36] I respectfully disagree with the motion judge that there is no risk of duplicative or inconsistent findings and that partial summary judgment was advisable in this instance.

[37] The motion judge correctly states that the Lenders’ claim for reckless misrepresentation and Philip’s breach of contract claim do not involve establishing a duty of care. However, the Lenders’ claim for reckless misrepresentation and Philip’s claims arise out of the same factual matrix as the Lenders’ negligence claim. As I will explain below, the facts found by the motion judge in relation to the Lenders’ negligence claim will likely be at issue in the trial of the Lenders’ claim for reckless misrepresentation and Philip’s claims.

[38] Therefore, there is a real risk of duplicative or inconsistent findings at trial. This error taints the motion judge’s conclusion that partial summary judgment was advisable in the context of the litigation as a whole.
The court also restated the elements of the tort of fraudulent misrepresentation, particularly in it's 'reckless misrepresentation' form:
[42] Reckless misrepresentation is a kind of fraudulent misrepresentation: Redican v. Nesbitt, 1923 CanLII 10 (SCC), [1924] S.C.R. 135, at p. 154. In the law of torts, a fraudulent misrepresentation that causes loss to the recipient grounds an action in “deceit” or “civil fraud”: Bruce MacDougall, Misrepresentation (Toronto: LexisNexis Canada, 2016), at para. 5.8. Recently, the Supreme Court held that a claim for “civil fraud” requires proof of the following facts: (1) a false representation made by the defendant; (2) some level of knowledge of the falsehood of the representation on the part of the defendant (whether through knowledge or recklessness); (3) the false representation caused the plaintiff to act; and (4) the plaintiff’s actions resulted in a loss”: Combined Air Mechanical Services Inc. v. Flesch, 2014 SCC 8 (CanLII), [2014] 1 S.C.R. 126, at para. 21. [Emphasis added.]

[43] The third element of civil fraud summarized in Combined Air entails considering inducement and reliance. As the Divisional Court noted in respect of the lenders’ claims in Canadian Imperial Bank of Commerce v. Deloitte & Touche (2003), 2003 CanLII 38170 (ON SCDC), 172 O.A.C. 59, at para. 24, “The claims of negligent and reckless misrepresentation both require the plaintiffs to prove at trial that there have been representations of fact by each of the defendants upon which they relied.”


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