This case was resolved successfully on behalf of the victim.
APPENDIX "A"
Superior Court
(Toronto Small Claims Court)
B E T W E E N:
MICHAL RABKO
Plaintiff
- and -
ROYAL BANK OF CANADA
Defendant
C L A I M
The Plaintiff claims against the Defendant:
Indemnificaton in respect of a loss, more particularly described
herein;
Rescission of any contract between the Rabko and the Defendant and
repayment of his monies remitted in relation thereto;
In the alternative, damages against the Defendant for breach of
contract, breach of collateral contract, negligence, breach of fiduciary
duty, breach of statute, and negligent misrepresentation in the amount
of $6,000;
Further, or in the alternative, exemplary damages against the Defendant
for breach of fiduciary duty, negligence, breach of contract, breach
of collateral contract, and breach of statute in the amount of $6,000;
Interest pursuant to the Courts of Justice Act, R.S.O. 1990, c.
c.43 and amendments thereto
Costs of this action on a solicitor-client scale plus Federal Goods
and Services Tax;
Such further and other relief as to this Honourable Court may deem
just.
THE PARTIES
The plaintiff Michal Rabko ("Rabko") resides in the Province
of Ontario.
Royal Bank of Canada ("RBOC") is a company registered
pursuant to the Laws of Canada with regional head offices at 200
Bay Street, 14th Floor, North tower, Toronto, M5J 2J5, with telephone
number 974-5523, fax number 974-2217. At all material times, the
plaintiff was a customer of RBOC.
THE SALE OF BANK DRAFT SERVICES
For many years, RBOC developed and provided to the public a method
of transferring money from one party to another party through is
commonly referred to as "bank drafts" ("Bank Draft
Services.")
Bank drafts sold by RBOC require the purchaser pay a fee for RBOC’s
service. In addition, RBOC profited by lending out to borrowers the
cash paid by the purchaser until such time that the payee of the
bank draft managed to encash the draft.
RBOC sold its Bank Draft Services to the plaintiff on the basis
that only the payee would be able to receive the monies entrusted
by the plaintiff after the payee provided proper endorsements.
RBOC developed and marketed its Bank Draft Services with the intention
of increasing sales and improving its profitability.
In soliciting the plaintiff to use bank drafts, RBOC made representation
("Representation") which were designed to solicit the plaintiff
and thus induce the plaintiff to use its Bank Draft Services.
At material times, RBOC represented that RBOC’s Bank Draft
Services would provide a trustworthy method of transmitting the plaintiff’s
funds.
The Representations were made to solicit plaintiff with the intention
that such Representations are relied upon. In fact the Representations
were relied upon and did induce the plaintiff to purchase RBOC’s
bank drafts.
RBOC knew that bank drafts were a favorite tool of fraudulent telemarketing
operators. The Defendant had a duty and failed in its duty to properly
train its staff with respect to handling suspicious bank drafts.
Only a small minority of the Defendant’ staff actually understood
how fraudulent telemarketers were using bank drafts. Hence, at the
time of contracting, and at material times, RBOC’s staff was
unable to explain and identify the misuse of bank drafts by fraudulent
telemarketers. In addition:
The systems in use at RBOC lacked sufficient controls to prevent
staff from seizing suspicious bank draft activities.
RBOC had a duty and failed in its duty to require its staff to explain
to the plaintiff how bank draft endorsements worked and that the
plaintiff’s monies could be paid out to a party without
the payee providing an endorsement.
Although it was an implied term of the contract that RBOC would
check the endorsement for validity, RBOC in fact did not do
so.
RBOC’s failure to warn the plaintiff of the possibility of
the Bank Draft Services system allowing payments to fraudulent telemarketers at
RBOC’s Queen Mary branch were a consequence of RBOC’s
ignoring of concerns known to RBOC, to the detriment of the
plaintiff.
Some of RBOC’s tellers and sales staff were not fully aware
of the loopholes in the bank draft system and thus could not adequately
warn the plaintiff about the potential loss of the his monies.
In 1997, the plaintiff contracted with RBOC to deliver his funds
with the amounts of:
$4,300 to "Columbia Group" via a bank draft;
$1,776 to "Columbia Group" via a bank draft;
At the time the plaintiff purchased the bank drafts/money orders,
he had an expectation that the Defendant, the encashing institutions,
and the integrity of the cheque-clearing system would protect his
funds from being encashed without an endorsement by the payee.
This expectation is a result of the plaintiff’s business dealings
with RBOC.
Endorsements matching the payee’s name were missing
fro m encashed bank draft(s)/money order(s) that are the subject
of this proceeding.
At all material times, the plaintiff was not in a position to detect
the invalid endorsement(s) or seek redress from the encashing parties,
who were known only to the Defendant.
Due to the fact that bank drafts were not returned to the plaintiff
forthwith, Rabko was in no position to be able to detect the fraud
nor seek immediate redress from RBOC from the unauthorized payment(s)
made to the encashing parties.
The plaintiff states and the fact is that RBOC acted without authority
by making payment of the invalidly-endorsed draft(s)/money order(s)
from the plaintiff’s funds held in trust by RBOC. In the alternative,
the plaintiff states and the fact is that RBOC was negligent in having
withdrawn funds from the plaintiff’s trust monies without making
inquiries of the encashing parties’ endorsement(s), which were
invalid.
In the circumstances, RBOC had specific knowledge that the Rabko
was unsophisticated and the bank draft(s)/money order(s) purchased
would unreasonably reduce his bank account.
The Defendant, member of the Canadian Payments Association ("CPA")
is required to follow the CPA’s rules and by-laws.
The plaintiff pleads that CPA rules prevail over common law: Bank
of Nova Scotia v Toronto Dominion Bank [2000] O.J. No. 1829
Court File No. 99-CV-169831SR Ontario Superior Court of Justice
the Honourable Cameron J. releasedMay 26, 2000.
The endorsements on the draft(s)/money order(s) that are the subject
of this proceeding do not meet the requirements of the Canadian Payments
Association of which the Defendant is member. In particular, the
CPA’s by-laws define "endorsement" as "a signature."
The plaintiff pleads that the markings by the encashing party do
not constitute "a signature" under the CPA’s by-laws,
and in particular, that these markings differ from the stated payee(s)
on the draft(s)/money order(s).
The plaintiff issued written Notice(s) to the Defendant.
The plaintiff inquired with the Defendant as to the particulars
of the encashing institution and the recipient of his funds.
DUTY OF CARE:
The plaintiff pleads that at the time RBOC made the representations:
The Representations were made by RBOC in order to induce the plaintiff
to purchase RBOC’s Bank Draft Services.
RBOC knew or ought to have known that the plaintiff, being an unsophisticated
consumer and a person not possessed with technical knowledge concerning
the operation of bank drafts would rely upon the reputation, integrity,
and soundness of the banking system in his decision to purchase bank
drafts.
The Representations did in fact induce the plaintiff to purchase
RBOC’s Bank Draft Services.
For the following reasons the plaintiff pleads that RBOC owed to
the plaintiff the following duties of care (the "Duties of Care"):
To ensure that the Representations were accurate.
Not to make negligent or false Representations.
To disclose to the plaintiff any of the material negative facts
or drawbacks to its Bank Draft Services including the possibility
that the funds may be encashed by a party whose name differed from
that of the payee.
To disclose to the plaintiff the problems other telemarketing victims
have had with bank drafts.
To disclose to the plaintiff the fact that its bank draft system
has been the primary route for $100M going annually to fraudulent
Montreal telemarketers.
To provide sufficient warning to the plaintiff when circumstances
allow parties to encash payments through the use of missing, improper,
forged, or unauthorized endorsements.
To adequately train its tellers and sales staff with respect to
the marketing of its Bank Draft Services and to supervise the conduct
of its sales staff in selling its services.
To ensure that in the written and oral presentations, material facts
effecting the risk, advantages and disadvantages of its Bank Draft
Services were not omitted or concealed.
To act with reasonable care in the preparation of staff training
manuals and in the formation of the training program used to deal
with elderly customers who purchase bank drafts and money orders.
To ensure that the training materials provided to its branches for
distribution to potential new sales staff was not deceptive and would
provide the plaintiff with correct information to make any informed
decision.
FIDUCIARY DUTIES:
The plaintiff Further, pleads that RBOC was fiduciaries of the plaintiff
and in addition to the Duties of Care as fiduciaries owed to the
plaintiff the following fiduciary duties ("Fiduciary Duties"):
To act in good faith and in the best interest of the plaintiff.
To ensure that the Bank Draft Services sold to the plaintiff were
in the best interest of the plaintiff.
To ensure that the audit/review of endorsements for validity were
in the best interest of the plaintiff.
REPRESENTATIONS ARE IMPLIED TERMS OF THE CONTRACT AND
ARE A COLLATERAL AGREEMENT WITH THE PLAINTIFF:
The plaintiff Further, pleads that the Representations, having been
made by the RBOC to induce the plaintiff to purchase bank drafts
and having so induced the plaintiff to purchase bank drafts, constitute
implied terms of the Bank Draft Services entered into between the
plaintiff and RBOC and constitute a collateral agreement between
RBOC and the plaintiff when the plaintiff purchased the bank drafts
that are the subject of this proceeding.
MISREPRESENTATIONS
The plaintiff alleges that RBOC’s Representations with respect
to its Bank Draft Services were false. The RBOC’s actual audit
of endorsements were inconsistent with or contrary to RBOC’s
Representations and were inconsistent with its duties under to the
Canadian Payments Association.
The plaintiff pleads that the Representations by RBOC was made negligently
and in breach of the Duties of Care and Fiduciary Duties and in breach
of the implied terms of the contract and the collateral agreement
and the following are the particulars of the misrepresentation ("Misrepresentations")
known to the plaintiff:
RBOC failed to disclose or concealed the fact that Montreal telemarketers
in defrauding seniors frequently used its Bank Draft Services.
RBOC failed to disclose or concealed the magnitude of the laxity
existent within the banking system, which allowed fraudulent Montreal
telemarketers to use the Bank Draft Services.
RBOC knew or ought to have known (and concealed such knowledge)
that RBOC would not challenge invalid/forged endorsements until such
time that fraudulent telemarketers would be long gone and the encashing
account closed.
RBOC knew or ought to have known (and concealed such knowledge)
that the safety and security of its Bank Draft Services were inconsistent
or contrary to the plaintiff’s expectations.
RBOC failed to bring to the attention of the plaintiff, or concealed,
the material terms of how bank drafts are negotiated between banks
and the liabilities of RBOC with respect to the time limits of challenging
invalid endorsements.
RBOC failed to disclose that they were warned by police authorities
and its own internal security staff to screen purchases of its Bank
Draft Services to elderly customers, but did not, for fear of reducing
its sales to competitors.
The plaintiff pleads that RBOC was aware or ought to have been aware
of the Misrepresentations at the time that said representations were
made. In the alternative if RBOC and its employees were not so aware,
(which is denied) RBOC was in further, breach of its Duties of Care
in failing to adequately train its sales staff and to disclose to
its sales staff and employees the fact that the Representations being
made by them were Misrepresentations.
The plaintiff pleads that RBOC’s Representations were made
with reckless abandon as to be fraudulent. In particular, RBOC did
not hold an honest belief in the purported security of audits on
endorsements.
The Plaintiff further, pleads that the Misrepresentations constitute
a false, misleading and deceptive consumer representation within
the meaning of section 2 of the Business Practices Act R.S.O.
1990 c. D. 18 and plead that as a consequence, the Plaintiff is entitled
to the relief as set out below. The Plaintiff pleads and relies upon
section 2 and 4 of the Business Practices Act.
The Plaintiff Further, pleads that the misrepresentations constitute
a false and/or misleading representation within the meaning of Section
52 (1) and (2) of the Competition Act R.S.C. 1985 c. C-34.
The Plaintiffs further, plead and rely upon Section 52 (4) of the
Act. In addition, as a result of the aforesaid breach of the Competition
Act, the Plaintiffs seek damages as set out in Section 36(1)
of the Competition Act.
In addition and in the alternative, the Plaintiff pleads that the
Misrepresentations constitute a false and/or misleading representation
within the meaning of Section 74.01 (1) (a), (b) and (c) of the Competition
Act.
DAMAGES AND RESCISSION
The Plaintiff pleads that it is entitled to the following relief
from RBOC arising out of RBOC’s breaches of Duty of Care, Fiduciary
Duties, implied terms of the contract, collateral agreements and
requirements as aforesaid:
The Plaintiff pleads that had He had known the true nature of the
Bank Draft Services He would not have purchased it. He does not have
the security of the Bank Draft Services that was promised to him.
He is entitled to rescission and the return of all monies paid to
RBOC pursuant to it.
In addition, or in the alternative, the Plaintiff has suffered substantial
damages. The Plaintiff therefore claims from RBOC damages equivalent
to the monies paid under the RBOC’s Bank Draft Services.
The Plaintiff alleges that RBOC’s Representations used to
induce the Plaintiff to enter into the contract formed an essential
term of contract which the Defendant RBOC has breached.
The Defendant RBOC only gave the Plaintiff partial and half-truths,
imposing a duty of full disclosure on the Defendant RBOC.
The Plaintiff pleads and relies on Negligence Act, R.S.O
1990, c. N.1.
The Plaintiff pleads that the aforesaid conduct of the Defendant
RBOC, amounts to conduct that is callous, high-handed, intentional,
wrongful, outrageous, and shows a wanton disregard to his rights,
thereby entitling an award of punitive, exemplary and/or aggravated
damages.
The plaintiff entrusted RBOC with his monies at all material times.
The Defendant was a trustee of the plaintiff’s funds at all
material times.
The plaintiff pleads that RBOC has a liability under the doctrine
of conversion.
Further, the Defendant had the "last clear chance" to
warn the plaintiff, and thus, prevent his loss.
In the alternative, the plaintiff pleads that the Defendant was willfully
blind to the activities of the unknown party encashing the
money order(s)/draft(s) and therefore liable for the plaintiff’s
loss.
Further, and in the alternative, the Defendant’ failure to
assist the plaintiff with Further, information as to the recipients
and encashing institutions prevented the plaintiff from pursuing
other avenues of recovery.
The plaintiff’s loss would not have occurred had the Defendant
properly trained their clerical and counter staff.
The defendant failed to perform or supervise all the necessary tasks
required for the opening of new bank accounts, thus allowing notorious
Montreal telemarketing boiler rooms to acquire a means for which
to deposit monies from victims.
The defendant and/or its contracting parties and agents should have
noticed that the encashing party was a new business and that there
were discrepancies in the encashing party’s credit bureau report
that indicated that something was amiss given the numerous other
bank credit checks being conducted, indicating that the encashing
party was jumping from bank to bank.
The Defendant has in-house staff and programs designed to prevent
telemarketing fraud.
The Defendant are aware of the seriousness of telemarketing fraud
in which the Defendant’ facilities are used by boiler-room
operators to encash their illegal proceeds.
The Defendant’ knew, or should have known, that their in-house
staff and programs dealing with telemarketing fraud are inadequate.
The Defendant failed in their duty to the plaintiff:
To ensure that the Defendant’ staff reductions -- which were
calculated by the Defendant to increase their profits -- would not
result in the loss complained of in his claim.
To ensure that the Defendant’ office procedures, manpower,
and staff training would ensure that the draft payment went to the
proper recipient.
To provide the plaintiff with the necessary information to pursue
his claim against the unauthorized recipients of the plaintiff’s
monies.
The plaintiff Further, pleads that the Defendant could have prevented
his loss:
Had the Defendant acted quickly to reverse the drafts that the recipient
would have been charged back; and,
Had the Defendant disseminated information received from police
authorities such as Phonebusters to their staff; and,
Had the Defendant adhered to the CPA’s by-laws; and,
Had the Defendant abided by their ‘know thy customer’ obligations;
and,
Had the Defendant taken proper steps when dealing with Quebec companies
that encash large quantities of bank drafts from non-Quebec customers;
and,
Had the encashing institution taken proper credit checks on the
payee(s); and,
Had the Defendant checked payee(s) against police databases.
Telemarketing fraud against the elderly and vulnerable members of
society is a practice that has been universally condemned.
The Defendant’ lack of proper training for their staff resulted
and continue to result in about $100 million dollars lost annually
by elderly victims to fraudulent telemarketers.
The Defendant is in a unique position to serve public Bank Draft
Services and prevent telemarketing fraud against the elderly.
The plaintiff asks for exemplary damages to force the Defendant
to take steps to restore the integrity of the cheque-clearing system,
and in the name of public interest.
The plaintiff is entitled to rescind the contract with the RBOC
on the grounds that the RBOC has violated several unfair practice
provisions of the Business Practices Act, R.S.O. 1990, c.27
(the "BPA.") The plaintiff further, relies on the parol
evidence abrogation provisions of the BPA.
Further, and in the alternative, the plaintiff pleads that there
was no meeting of the minds (consensus ad idem) in respect
to the plaintiff’s purchase of said money order(s)/draft(s).
RBOC’s QUEEN MARY BRANCH (the "QMB")
The QMB was a well-known depository of the Montreal-based telemarketing
syndicate. The QMB allowed said syndicate with unusual freedom. Police
authorities were aware of the fact that the QMB opened accounts for
said syndicate in a pattern inconsistent with its practices at other
banking institutions, to the point that QMB staff were suspected
(without proof) of collusion with the syndicate.
The unusual laxity at the QMB was well-known to at least one building
superintendent in the area where the syndicate operated boiler rooms.
The Columbia Group was one of the said syndicate’s many corporate
covers. The QMB lost the account application for Columbia Group,
The Columbia Group was only one account of many run by the same
syndicate at the QMB. Other accounts included companies shown on
the attached charts.
In or about 1998, after telemarketing victims started threatening
to, and suing banks that issued drafts encashed in Montreal, the
banks started to decline opening accounts to the syndicate, which
resulted in the syndicate depositing its drafts in the Middle East.
In or about 1998, after banks were sued by telemarketing victims,
banks started to question draft purchasers more rigorously.
RBOC’S OWN ANTI-FRAUD DEPARTMENT ("SUD")
To its credit, the RBOC has personnel assigned to prevent telemarketing
fraud, based out of one of its Sudbury branches. This said personnel
operate a department (referred to as the "SUD") that liases
with police databases. SUD also received data from the Paulos Luizos
law firm showing the links between ‘front’ company names
used by the syndicate.
SUD was headed by RBOC’s Ms. Maryanne Scharf.
In or about 1998, RBOC sent its SUD staff to C.A.R.P.’s national
forum on fraud on the elderly.
However, overall, SUD did not forward the information that it received
about the syndicate’s company names to other RBOC branches
and departments.
RBOC, thru SUD’s connections to police databases, knew or
ought to have known that Columbia Group was known as a depository
of the syndicate.
Were it not for the ineffective efforts by SUD, the plaintiff would
not have suffered his loss.
|
