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Simon Shields, LLB

Torts - Recklessness

Carriere Industrial Supply Limited v. Toronto-Dominion Bank (Ont CA, 2015)

In this civil case the Court of Appeal set out the elements required to find 'recklessness', drawing from a parallel definition of that term in a Supreme Court of Canada criminal case:
[30] As stated by the trial judge at para. 94, the Bank “had clear notice of a real possibility of past actions constituting a breach of trust in respect of the operations of TPC, possibly extending to fraud, by an unknown party.” In continuing to afford unmonitored access to electronic banking facilities in the face of this knowledge, the trial judge found the Bank acted recklessly.

[31] As we read the trial judge’s reasons, the knowledge component of his conclusion was premised on the information the Bank had, not on its failure to acquire additional information through monitoring. As the Supreme Court of Canada stated in R. v. Sansregret, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570, 17 D.L.R. (4th) 577, recklessness consists of knowledge of a danger or risk and persistence in a course of conduct that creates a risk that the prohibited result will occur. In our view, the trial judge did not misapply this definition.

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