In a case where a business partner deposited an altered cheque into an account he solely controlled, the Alberta Court of Appeal found it appropriate to summarily dismiss the defrauded party’s action against the Canadian Imperial Bank of Commerce (CIBC).
In Walczak v Canadian Imperial Bank of Commerce, 2026 ABCA 38, the appellants were victims of fraud. On July 26, 2012, on the corporate appellant’s behalf, the individual appellant wrote a cheque for $232,000, payable to a numbered company.
His then business partner altered the payee name to a different numbered company and deposited the cheque into that company’s CIBC account, solely controlled by him.
The appellants alleged that they discovered the alteration in 2021 when the Canada Revenue Agency returned their accounting documents, including the cancelled cheque, after an investigation. On Nov. 18, 2022, they brought an action against the CIBC.
An applications judge summarily dismissed the action for being statute-barred, given the 10-year ultimate limitation period under s. 3(1)(b) of Alberta’s Limitations Act, 2000. In 2020, a ministerial order extended this period by 75 days.
On Aug. 7, 2024, a chambers judge of the Alberta Court of King’s Bench upheld the summary dismissal, noting that the ultimate limitation period was a matter of public policy and that the claim arose when the wrongful or harmful conduct occurred, not when parties became aware of it.
According to the chambers judge, as the claim arose upon the altered cheque’s deposit on July 27, 2012, the 10-year limitation period plus the additional 75 days expired on Oct. 20, 2022, about a month before the commencement of the appellants’ action on Nov. 18, 2022.
The chambers judge found that the exception under s. 4(1) of the Limitations Act, which would suspend the limitation period if the defendant fraudulently concealed an injury, did not apply.
The chambers judge explained that the CIBC was not the business partner’s agent or servant, did not alter the cheque, and did not deliberately conceal the fact of an altered cheque or its effects.
On appeal, the appellants argued that the chambers judge should not have granted summary judgment because she erroneously interpreted and applied the law. The appellants added that the CIBC made misrepresentations at the application.
Summary dismissal affirmed
The Court of Appeal of Alberta dismissed the appeal upon determining that the chambers judge correctly interpreted and applied the Limitations Act’s pertinent provisions.
The appeal court found Alberta’s 10-year ultimate limitation period, instead of Ontario’s 15-year ultimate limitation period, applicable, given that the cheque’s writing, alteration, and deposit and the action’s commencement all occurred in Alberta.
The appeal court did not consider the appellants’ argument – that they were under a disability for a period of time – helpful to their case because it was not a relevant consideration in connection with the ultimate limitation period in s. 3(1)(b).
The appeal court ruled that the CIBC made no misrepresentations to the chambers judge.
Lastly, the appeal court did not find the appellants’ cited provisions – in the Bank Act, 1991, the Alberta Evidence Act, 2000, the Canadian Victims Bill of Rights, 2015, and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, 2000 – relevant to the appeal’s issues.