CANADA Law and Practice Contributed by: John Pirie, Matthew Latella, Michael Nowina and Bryan Hsu, Baker McKenzie
2.9 Compelling Witnesses to Give Evidence The applicable provincial or territorial rules of civil procedure generally provide methods to compel non- party witnesses to give evidence. In Ontario, for exam - ple, a party can seek leave of the court to examine non-party witnesses before trial and can compel any individuals with relevant evidence to attend at trial by issuing a summons. A summons may also require the witness to attend at trial and to produce documents or other things in his or her possession, control or power relating to the action that are specified in the summons. Failure to respond to a summons may ulti - mately result in an arrest warrant to compel the wit - ness be brought before the court. 3. Corporate Entities, Ultimate Beneficial Owners and Shareholders 3.1 Imposing Liability for Fraud on a Corporate Entity A corporation may be held liable for the fraudulent conduct of an individual director or officer through the corporate attribution doctrine. Under this doctrine, the individual director/officer’s mental state may be imputed to a corporation. The Supreme Court of Canada has set out the fol - lowing guiding principles regarding the applicability of the doctrine: • an individual’s fraudulent acts may be attributed to a corporation where the wrongdoer was the directing mind of the corporation, and the wrongful actions were performed within their scope of their corporate responsibility; • the corporate attribution doctrine will not apply when the directing mind acted in fraud of the cor - poration and where the acts were not designed to benefit the corporation; • courts have the discretion to refuse to apply corpo - rate attribution if it would be contrary to the public interest; and • in all cases, the court must apply the doctrine pur - posively, contextually and pragmatically.
dealing with defences that are wholly unmeritorious. For example, under Ontario’s Rules of Civil Procedure, a motion for summary judgment may succeed where the court is satisfied that there is no genuine issue requiring a trial. The threshold for summary judgment is high and, typically, questions of credibility requiring live testimony (often at issue in fraud cases) will render the claim unsuitable for summary judgment. 2.7 Rules for Pleading Fraud Given the serious nature of allegations of fraud, full particulars are required when pleading. In Ontario, for example, the Rules of Civil Procedure provide that where fraud or misrepresentation is alleged, full par - ticulars of the allegation must be pleaded. This has been clarified by the court in Ontario to mean that the pleading must set out with careful particularity the ele - ments of the misrepresentation relied upon, including: • the alleged misrepresentation itself; • when, where, how, by whom and to whom it was made; • its falsity; • the inducement; • the intention that the claimant should rely upon it; • the alteration by the claimant of his or her position relying on the misrepresentation; • the resulting loss or damage to the claimant; and • that the defendant knew of the falsity of his or her statement. While evidence is not pleaded, counsel must (under the Rules of Professional Conduct) ensure that fraud allegations are capable of being supported by reason - able evidence. Further, claims of fraud that are deter - mined to be unfounded may result in heightened cost consequences against the claimant. 2.8 Claims Against “Unknown” Fraudsters A claim can be brought against “unknown” fraudsters using pseudonyms such as John or Jane Doe. Pseu - donyms cannot be used simply as a placeholder in the event a cause of action is subsequently discov - ered against someone else. Rather, the intention to sue the unidentified party and the basis of the claim against that unidentified party must be apparent from the pleading.
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