Plaintiff sued defendant in negligence, alleging that defendant had actual and constructive knowledge of fraudulent dealings by third party that caused plaintiff to lose about $17 million. Judge struck out portions of statement of claim that alleged negligence as result of constructive knowledge on basis that circumstances of case were not capable of establishing relationship of sufficient proximity to found duty of care. Plaintiff brought motion to amend statement of claim to reintroduce allegations grounded in constructive knowledge. Plaintiff was granted leave to amend statement of claim. Defendant appealed. Plaintiff brought motion to quash appeal on basis that order was interlocutory, not final. Appeal quashed. Defendant misconceived nature of motion judge’s decision. Decision allowed matter to proceed to trial and did not have effect of depriving defendant of substantive defence. It remained open to defendant to advance substantive defence to argument that duty to non-customer could be created based on constructive knowledge and that constructive knowledge could be made out on facts. Decision was interlocutory in nature and appeal lay to Divisional Court.
Dynasty Furniture Manufacturing Ltd. v. Toronto-Dominion Bank (Feb. 23, 2015, Ont. C.A., John Laskin J.A., Paul Rouleau J.A., and Grant Huscroft J.A., File No. CA M44316, C59401) 250 A.C.W.S. (3d) 11.