Javitz v. BMO Nesbit Burns Inc., 2011 ONSC 1332 (CanLII)

  • February 28, 2011

Date: 2011-02-28 Docket: CV-10-8951-00 CL ; CV-10-8937-00 CL ; CV-10-8950-00 CL. Pepall J. | Link

In this fraud case, the defendants have brought a motion to strike portions of the statement of claim, including one regarding other fraudulent activities involving other clients. The Court said, at para [25], "In my view, these portions of the pleading should be struck on a number of grounds.  These allegations will greatly expand the breadth, complexity and expense of the litigation in circumstances where the corresponding probative value is minimal. Discovery of the massive fraud including other customer accounts would be required.  An examination of the circumstances of each fraud and what Nesbitt knew of each of them and disclosure of detailed, confidential financial information of other Nesbitt customers would be required.  As Molloy J. stated in Brodie on the issue of an investment advisor's conduct relating to other investors: It adds very little to the plaintiff's claim and its absence could not deprive her of a cause of action or reduce any compensatory damages to which she might be entitled.  On the other hand, allowing the pleading to stand will result in a far more expensive and complex proceeding.  Production and discovery will be considerably more protracted and complicated.  There will likely be numerous interlocutory motions in respect of confidentiality issues and the rights of non-parties to protect their privacy."