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Torts - Civil Fraud. Securitas Technology Canada v. North West Construction
In Securitas Technology Canada v. North West Construction (Div Court, 2023) the Divisional Court briefly considered an aspect of civil fraud:[31] Civil fraud requires actual knowledge of the wrong, not just constructive knowledge: DBDC Spadina Ltd. v. Walton, 2018 ONCA 60 , 419 D.L.R. (4th) 409, rev’d 2019 SCC 30, [2019] 2 S.C.R. 530 at para. 237 of dissent of Van Rensburg, J.A. adopted in full by the SCC. . Costanza v. Desjardins Financial Security Life Assurance Company
In Costanza v. Desjardins Financial Security Life Assurance Company (Ont CA, 2023) the Court of Appeal considers the 'knowledge' element of civil fraud:[68] The application judge expressly referred to the correct level of intent for civil fraud – knowledge of or recklessness as to the falsehood of the representation – repeatedly in her reasons. First, at the outset of her legal analysis, she set out in detail the four elements of civil fraud, with specific reference to one of the leading authorities, Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, [2014] 1 S.C.R. 126, at para. 21. There, she correctly stated that the level of intent required is: “Some level of knowledge of the falsehood of the representation on the part of the defendant, whether through knowledge or recklessness”. The insurer accepts that the application judge correctly stated the intent required for civil fraud in this passage. . Wong v. Li
In Wong v. Li (Ont CA, 2023) the Court of Appeal briefly set out the elements of the tort of civil fraud:[10] The appellant submits that the trial judge erred in his application of the test for civil fraud. We do not accept this submission.
[11] The trial judge reviewed the transactions relating to the six properties that the appellant alleged fraud on the part of Ms. Li, Ms. Yu, and Mr. Ho.[2] He did so in great detail. The trial judge correctly stated the elements of civil fraud in Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, [2014] 1 S.C.R. 126, at para. 21: (i) a false representation made by the defendant; (ii) some level of knowledge (or recklessness) of the representation on the part of the defendant; (iii) the false representation caused the plaintiff to act; and (iv) the plaintiff’s actions resulted in a loss. He also separately analyzed the elements of equitable fraud and deceit/fraudulent misrepresentation. . Aviva Canada Inc. v. 1843538 Ontario Inc.
In Aviva Canada Inc. v. 1843538 Ontario Inc. (Ont CA, 2020) the Court of Appeal considers an interesting civil response to allegations of what are essentially fraud in auto repair (I have always found fraud and related issues to be inadequately dealt with under tort law from a cause of action point of view, so it is interesting to see how the insurer's counsel approached it)]. In short, this was a Toronto-area auto repair shop 'sting':[2] This appeal arises out of an independent investigation the respondent insurer undertook to study fraud in the auto-collision industry. In short, the respondent insured several vehicles purchased by its wholly owned subsidiary. The subsidiary damaged these vehicles intentionally and submitted them to body shops that had repaired vehicles for the respondent in the past. Following repair of the vehicles, the respondent’s appraiser examined them and the work that had been performed. The respondent claimed that the appellants included parts on their appraisal to be refinished or replaced that did not require any repair and, in addition, deliberately damaged the vehicles in order to perform additional repairs. The respondent seeks to recover damages for fraudulent misrepresentation, breach of duty of honest performance of a contract, unjust enrichment, and conspiracy to commit fraud, in addition to damages for trespass to property, investigative costs, and punitive and exemplary damages. . Bruno Appliance and Furniture, Inc. v Hryniak
In Bruno Appliance and Furniture, Inc. v Hryniak (SCC, 2014) the Supreme Court of Canada took the oppourtunity to review the current law of civil fraud:[18] The classic statement of the elements of civil fraud stems from an 1889 decision of the House of Lords, Derry v. Peek (1889), 14 App. Cas. 337, where Lord Herschell conducted a thorough review of the history of the tort of deceit and put forward the following three propositions, at p. 374:First, in order to sustain an action of deceit, there must be proof of fraud, and nothing short of that will suffice. Secondly, fraud is proved when it is shewn that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. . . . Thirdly, if fraud be proved, the motive of the person guilty of it is immaterial. It matters not that there was no intention to cheat or injure the person to whom the statement was made. [19] This Court adopted Lord Herschell’s formulation in Parna v. G. & S. Properties Ltd., 1970 CanLII 25 (SCC), [1971] S.C.R. 306, adding that the false statement must “actually [induce the plaintiff] to act upon it” (p. 316, quoting Anson on Contract). Requiring the plaintiff to prove inducement is consistent with this Court’s later recognition in Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, at pp. 319-20, that tort law requires proof that “but for the tortious conduct of the defendant, the plaintiff would not have sustained the injury complained of”.
[20] Finally, this Court has recognized that proof of loss is also required. As Taschereau C.J. held in Angers v. Mutual Reserve Fund Life Assn. (1904), 35 S.C.R. 330 “fraud without damage gives . . . no cause of action” (p. 340).
[21] From this jurisprudential history, I summarize the following four elements of the tort of civil fraud: (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. . Wescom Solutions Inc. v. Minetto
In Wescom Solutions Inc. v. Minetto (Ont CA, 2019) the Court of Appeal canvasses a tort labelled 'wilful blindness', an apparent variant of fraud, There is no mention of conversion:[8] We agree with the appellants’ submission that the trial judge engaged in an objective analysis. Indeed, as part of his wilful blindness analysis, the trial judge stated that wilful blindness is made up of two components:
a. In circumstances that arouse the suspicions of a reasonable and honest person that are strong or sufficient enough to raise a duty to inquire; and
b. Whether someone in that person’s position chooses to remain deliberately ignorant to the knowledge that inquiry would reveal.
[9] The respondent submits that the objective analysis was appropriate because this was a knowing receipt case. It is true that knowing receipt can be proven not only by establishing actual knowledge or wilful blindness, but also by establishing “constructive knowledge” using objective criteria. Specifically, knowing receipt can be proven by showing that the defendant: (i) had knowledge of circumstances that would indicate the facts to an honest and reasonable person; or (ii) had knowledge of circumstances that would put an honest and reasonable person on inquiry: Paton Estate v. Ontario Lottery and Gaming Corp., 2016 ONCA 458 (CanLII), 131 O.R. (3d) 273, at para. 62; see also Gold v. Rosenberg, 1997 CanLII 333 (SCC), [1997] 3 S.C.R. 767, at paras. 53, 74. However, in this case the agreed issues for the trial judge were whether Mr. Fung had actual knowledge or was willfully blind to the fact that he was purchasing stolen goods or goods fraudulently obtained by Ms. Minetto. The trial judge was not asked to consider whether Mr. Fung as a reasonable person would have been alerted to a potential breach of trust.
[10] The trial judge erred in law in his articulation of the concept of wilful blindness. As stated by this court in R. v. Malfara (2006), 2006 CanLII 17318 (ON CA), 211 O.A.C. 200 (C.A.), at para. 2, “Where wilful blindness is in issue, the question is not whether the accused should have been suspicious, but whether the accused was in fact suspicious.” In short, a finding of wilful blindness, which is the same standard in criminal and civil proceedings, involves a subjective focus on the workings of a defendant’s mind.
[11] Notwithstanding this mischaracterization, we are not satisfied that the trial judge erred when he concluded that Mr. Fung was wilfully blind. It is clear from his reasons that he made findings of fact that established that subjectively Mr. Fung was wilfully blind:[128] I also reach this conclusion because Mr. Fung admitted not once, but twice that the iPhones and iPads he was purchasing from Ms. Minetto were not upgrades. This is contrary to his evidence that he took comfort in purchasing cell phones through his store that were mostly upgraded products that had been legitimately obtained. As the availability of Apple products in this volume that were not upgrades, Mr. Fung had to know they were probably products that had been stolen or obtained through fraud.
…
[130] I further find as a fact that Mr. Fung made a conscious choice not to seek verification or further information about the source of the Apple products he was purchasing from Ms. Minetto. He chose to remain deliberately ignorant as to the source of those products. I make this finding of fact because of Mr. Fung’s evidence that he may have asked Ms. Minetto a second time if the products he was purchasing from her were legitimate. [12] These findings establish that Mr. Fung knew that the Apple Products were probably stolen or obtained by fraud, but that he made a deliberate choice not to investigate. This conduct meets the definition of wilful blindness articulated in R. v. Sansregret, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570, at p. 584, which arises when a “person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth.” See also R. v. Briscoe, 2010 SCC 13 (CanLII), [2010] 1 S.C.R. 411, at paras 21-24. Therefore, despite the trial judge’s error in defining wilful blindness, we do not give effect to this ground of appeal. . Meridian Credit Union Limited v. Baig
In Meridian Credit Union Limited v. Baig (Ont CA, 2016) the Court of Appeal commented on the elements of the tort of civil fraud. The case is useful for the fact analysis that the court engaged in respecting the individual elements of fraud:[26] The Supreme Court of Canada recently affirmed in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 S.C.R. 87, at para. 87, that a plaintiff asserting a claim for civil fraud must prove the following on a balance of probabilities:
1) A false representation by the defendant;
2) Some level of knowledge of the falsehood of the representation on the part of the defendant (whether knowledge or recklessness);
3) The false representation caused the plaintiff to act;
4) The plaintiff’s actions resulted in a loss. The court also pointed out that tortious misrepresentations made by directors were directly actionable against them without recourse to the doctrine of piercing the corporate veil:[39] Subject to an exception that does not apply in this case, “[t]he consistent line of authority in Canada holds simply that, in all events, officers, directors and employees of corporations are responsible for their tortious conduct even though that conduct was directed in a bona fide manner to the best interests of the company”: ADGA Systems International Ltd. v. Valcom Ltd. (1999), 1999 CanLII 1527 (ON CA), 168 D.L.R. (4th) 351 (Ont. C.A.), at para. 18. ...
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