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FOREIGN JUDGMENTS
new directions in cross-border enforcement
Susan Friedman examines the recent Supreme Court of Canada decision in Pro Swing Inc. v. Elta Golf Inc., the latest dealing with the issue of enforcement of foreign judgments in Canada. In keeping with the Court’s earlier “modern” approach in the development of the law in this area (see Morguard Investments Ltd. v. De Savoye (1990) and Beals v. Saldanha (2003)), the Court has changed the previous law such that foreign non-money judgments are now enforceable in Canada in appropriate circumstances. The author notes that with its decision in Pro Swing, the Court has sent a warning to businesses in Canada that should affect how they respond to proceedings brought against them in foreign jurisdictions.
BANK FRAUD
fraud and windfalls – Court of Appeal ruling
In a previous issue of this journal, Shelley Fitzpatrick examined the British Columbia Supreme Court trial decision in B.M.P. Global Distribution Inc. v. Bank of Nova Scotia where the Court considered whether a customer was entitled to retain the proceeds of a forged cheque. In this follow-up article, the author notes that the British Columbia Court of Appeal has now overturned major portions of that decision and has held that a customer who receives such a cheque, but who is innocent of any wrongdoing, is not entitled to retain the benefits of such a cheque as a “windfall” at the expense of the bank. Financial institutions are breathing somewhat easier now as to the consequences they might suffer in the face of a counterfeit cheque. The Court of Appeal clearly found it offensive that BMP could retain the benefits of a fraudulent cheque, particularly where they had given no consideration for the cheque and it was clearly a “windfall.”
MORTGAGE FRAUD
reducing the risk of mortgage fraud
Lenders should be on their guard against fraud, as illustrated in the Ontario Court of Appeal’s decision in Susan Lawrence v. Maple Trust Company and Thomas Wright. In a situation where a lender extended a mortgage to a party who had ostensibly purchased residential property from a fraudster, the Court applied the theory of deferred indefeasibility, concluding that the lender’s interests were vulnerable to a claim from the original owner. As Shelly Munro and Ross McGowan explain, this emphasizes the importance of precautions that lenders can take to protect themselves from real estate fraud.
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Bryan Finlay, QC
Editor-in-Chief
WeirFoulds LLP
Andrew Bernstein
Torys LLP
Shelley C. Fitzpatrick
Davis & Company
Shawn M. Kavanagh
Patterson Palmer
John A. Keith
Cox Hanson
O’Reilly Matheson
Douglas I. Knowles, QC
Fraser Milner
Casgrain LLP
Donald E. Short
Fasken Martineau
DuMoulin LLP
Geoffrey Thompson
Borden Ladner
Gervais LLP
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