In Djamad, the appellant sought to reverse the decision of the lower court which did not find the bank liable for damages caused by two fraudulent wire payments totaling
The appeal ultimately came down to the lower court's finding that the verification clause applied due to the absence of gross fault on the part of the bank. In the case at bar, the fraudulent transfers were reported several years after their occurrence, thus activating the verification clause (according to the trial judge and the bank). However, the Court found that contrary to the lower court's position, the clause could not apply on these specific facts in light of a gross fault, pursuant to article 1474 of the CCQ.
The Court found that the lower court erred in two ways in treating the existence of a gross fault. First, the Court held that the trial judge erroneously based her appreciation of the lack of a gross fault on an incorrect inference that the appellant could have been the one who made the transfer. Second, the bank was incapable of demonstrating that it was in fact the appellant who wired the funds in question. This evidentiary hurdle for the bank coupled with the Court's assessment of the bank's diligence in following its policies resulted in a finding of gross fault. Therefore, the verification clause which excluded the bank's liability was found to not be available to the bank.
Case Information:
Djamad v.
Docket: 500-09-028122-190 (500-17-081864-145)
Date of Decision:
To view the original article click here
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Canadian Appeals Monitor
McCarthy Tétrault LLP
Suite 5300,
ON M5K 1E6
Tel: 416362 1812
Fax: 416868 0673
E-mail: info@mccarthy.ca
URL: www.mccarthy.ca
© Mondaq Ltd, 2021 - Tel. +44 (0)20 8544 8300 - http://www.mondaq.com, source