Law360 Canada (July 29, 2026, 5:34 PM EDT) -- New Brunswick’s Appeal Court has quashed a judge’s decision granting summary judgment to a bank being sued by a veteran lawyer who lost $100,000 to fraudsters.

The July 16 ruling in Morrison v. Bank of Nova Scotia, 2026 NBCA 83 involves veteran lawyer Barry Morrison, who is suing the Bank of Nova Scotia after losing the money in a scheme involving a counterfeit bank draft.

The issue before the Appeal Court was whether it was wrong for a motion judge to have granted the bank’s request for summary judgment — effectively bringing Morrison’s action to an end.

The case dates back to 2021.

Morrison, a sole practitioner who was called to the bar in 1974, is based in the seaside town of Saint Andrews. The Appeal Court notes Morrison held bank accounts with the Bank of Nova Scotia, which included a trust account. All were held under a Business Banking Services Agreement (BBSA) between Morrison and the bank.

On Dec. 10, 2021, Morrison received an email from someone calling themselves Maria Tochi. Tochi was seeking legal help to recover money allegedly owed to her in a divorce settlement.

Tochi claimed to be a resident of New Brunswick but said she was temporarily staying in Japan. She provided Morrison a passport containing the name “Maria Micha.”

Morrison communicated with Tochi via email and telephone. Interestingly, one of the phone calls “originated from Nigeria.”

Early on in its decision, the Appeal Court notes Morrison “later acknowledged that he had not complied with the New Brunswick Law Society’s client identification rules, explaining that he wished to act quickly to advance his client’s interests.”

On Dec. 16, Morrison received an email from “Micha Tochi,” who claimed to be Ms. Tochi’s ex-husband. Micha Tochi said he would send Morrison a bank draft in an amount between $200,000 and $300,000.

On Dec. 22, Morrison received “what appeared to be” a CIBC bank draft for $265,900 — postdated to Dec. 24, 2021. Along with the draft came “a letter purporting to be from a Calgary-based brokerage firm.”

On Dec. 24, Morrison went to the Bank of Nova Scotia and asked a teller to deposit the draft without a hold because he intended to do a transfer from his trust account that day.

With the amount of the draft exceeding her authority at the bank, the teller sought approval from the bank’s manager, who approved the draft without a hold.

Morrison instructed the bank to do an international wire transfer for $100,000 from the trust account to a bank in Hong Kong — payable to someone named Xiaoxia Liu, whose address was in China. The teller pointed out that the location of the bank receiving the money and Liu’s address were different.

Still, the $100,000 wire transfer was initiated that same day. (The Appeal Court notes it was not completed until Dec. 29, as the bank was closing early that day for the Christmas holidays.)

On Dec. 31, the bank was notified the draft was counterfeit. As a result, Morrison’s accounts were frozen. The draft’s sum of $265,900 was “charged” back to his trust account, but by then the $100,000 that Morrison had transferred had already been withdrawn on the other end.

Prior to the bogus draft coming into play, Morrison had a trust account balance of $15,342.04. That amount was also withdrawn during the “chargeback” of the fake draft, and Morrison was left with a negative balance of $84,777.96.

Morrison replenished the account and the freeze was lifted.

Morrison then sued the bank, seeking recovery of the $100,000, plus damages. He argued that he had asked the teller to confirm the draft was legitimate and that it was safe to wire the funds from his trust account.

The teller and the bank manager, however, denied any such assurances were “requested or given.”

The bank asked the motion judge for a summary judgment, which was granted.

“The motion judge concluded that there was no genuine issue requiring a trial,” writes the Appeal Court. “She determined that the BBSA between the parties was a complete answer to Mr. Morrison’s claim, notwithstanding conflicting evidence as to whether a Bank employee had assured him that the bank draft was legitimate.”

Appeal Court Justice Denise LeBlanc, with Justices Lucie LaVigne and Ivan Robichaud in agreement, found the motion judge to have been wrong in granting the summary judgment.

Justice LeBlanc acknowledged the motion judge did refer to the “well-established” two-step framework for summary judgment laid out in Russell v. Northumberland Co-Operative Ltd., 2019 NBCA 70.

The first step is determining whether evidence shows there to be a genuine issue requiring a trial. If the dispute can be “fairly and justly” decided at that point, summary judgment may be granted.

If not, the judge proceeds to the second step, which is engaged when the “initial assessment” suggests an issue may exist. This is when a judge must consider whether a trial can be avoided by exercising fact-finding “powers.”

Justice LeBlanc found the motions judge to have skipped the second part of this test.

“In my view, the conflicting evidence raised a genuine issue for trial. The judge may have been able to resolve the matter by proceeding to the second step in Russell and exercising the fact-finding powers set out in Rules 22.04(2) and (3). Instead, granting summary dismissal without clearly identifying what evidence she accepted or rejected, and on what factual basis she adjudicated the dispute, was premature and amounted to an error of law. That error, in turn, led to a flawed analysis of the negligence issue and the enforcement of the exclusion clause in … the BBSA.”

Justice LeBlanc spoke more of the evidence needing to be addressed.

“Granting summary dismissal of Mr. Morrison’s claim without clearly identifying what evidence was accepted or rejected, and the factual basis on which the dispute was adjudicated, was premature and constituted an error of law.”

Morrison’s lawyer, Edwin Ehrhardt, declined to comment. The bank’s lawyer, Stephen Hutchison, did not return repeated requests for comment.

University of New Brunswick law professor Aloke Chatterjee was asked to comment on the Appeal Court’s decision.

“The court’s decision requires that the powers conferred by the summary judgment rules must be exercised in a fair manner,” said Chatterjee. “According to the Court of Appeal, it was an error of law for the motions judge not to indicate what evidence was and was not accepted. By insisting that the powers conferred by the summary judgment rule be exercised in a procedurally fair manner, the Court of Appeal has increased the likelihood that summary judgment, when the requirements of the rule are satisfied, will be accepted as a legitimate vehicle for the resolution of civil disputes.”

Fredericton lawyer David Dunsmuir, who is not involved in the Morrison matter, also weighed in.

“The Court of Appeal … felt there were sufficient disputes of fact — the conflicting claims of fact as to the nature of the interaction by Mr. Morrison and the bank employees — to raise a triable issue,” said Dunsmuir in an email to Law360 Canada. “That having been said, the court … added the caution that its decision should not be taken as any suggestion of that court’s view of the merits of Mr. Morrison’s claims.”

As for the fraud, Dunsmuir called it an “unfortunate case.”

“[Morrison] unfortunately fell victim to a scheme that I (and probably most lawyers) routinely receive scam emails about,” he wrote, noting “members have been cautioned by the law society about such schemes for some time.”

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