Knowing assistance

Today's brief Court of Appeal decision in Bray v. Fijnheer, 2009 ONCA 746 sets out some of the requirements for a plea of "knowing assistance". The case is useful as a recent source for "wilful blindness" being sufficient as the mental element for the cause of action.

The plea of "knowing assistance" is properly brought against someone who, with actual or implied knowledge, assists in the wrongful breach of a trust.

In Baden, Delvaux and Lecuit v. Societe pour Favoriser le Developpement du Commerce et de l'Industrie en France S.A., [1983] BCLC 325, the Court held that there are four elements to establish "knowing assistance":

"(1) the existence of a trust; (2) the existence of a dishonest and fraudulent design on the part of the trustees of the trust; (3) the assistance of the stranger in that design; and (4) the knowledge of the stranger."

In today's decision the Court deals with two of these elements and writes:

[4]              In our view, the statement of claim lacks sufficient particulars with respect to two of the essential elements of an action for knowing assistance, those being the requirements that a stranger to a trust have actual knowledge of the existence of the trust and that the stranger have actual knowledge or be wilfully blind to and participate in the trustee's dishonest and fraudulent breach of trust.
James Morton
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