Summary

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Summary

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Civil procedure – Security for costs – Torts – Misrepresentation – Whether the Respondents committed fraudulent misrepresentation and perjury – Whether there is incontrovertible and probable evidence that the security for cost implement was used as a weapon for the purpose of blocking the Applicant from advancing an appeal.

In 2004, Mr. Clark transferred his retirement pension plan to TD Canada Trust. He met with the Respondent, Mr. Pezzente. Mr. Clark and his wife sold their house in Calgary and moved to Scotland. After he was settled there, on two occasions he called for money from his account, and the funds were transferred to him. Unfortunately, when he called for a third sum, TD Waterhouse decided, in error, that his investment was covered by Canadian federal legislation not provincial legislation. Provincial regulations allow funds to be withdrawn by a non-resident, but federal regulations do not. Mr. Clark and his wife ultimately moved back to Canada.

In 2006, Mr. Clark commenced an action against TD Waterhouse Canada Inc. (“first action”). The first action was heard in July 2012. In that trial, it was determined that the investment was regulated by provincial law and there was nothing wrong with TD Waterhouse Canada Inc. sending Mr. Clark the money in Scotland when he called for it. The error was in not sending the third request for funds. The trial judge concluded that Mr. Clark had not proven any damages as a result of TD Waterhouse Canada Inc.’s errors. The error was honest, inadvertent and not intentional. The trial judge did not award punitive or exemplary damages. Mr. Clark’s action was dismissed. Mr. Clark appealed to the Court of Appeal but the appeal was dismissed. He unsuccessfully sought leave to appeal to the Supreme Court of Canada.

In April 2015, Mr. Clark filed another action seeking the same relief as was sought in the first action. In November 2015, Mr. Clark’s motion for summary judgment was dismissed, but the Respondents’ application to strike Mr. Clark’s claim was granted. On appeal, it was concluded that the Master’s decision must be upheld and therefore the appeal was dismissed. Mr. Clark’s appeal to the Court of Appeal was struck as he failed to post security for costs as ordered.

Lower Court Rulings