To see an example of a Memorandum of Law, view the Rowe v. Canning example discussed in class.
Section 1
1. With a partner (partner A and partner B) choose a subject to research:
a. Violation of a section of the Highway Traffic Act
b. Collection of an unpaid debt
c. Eviction of a tenant for non-payment of rent
d. Human Rights violation
e. Eviction of a landlord for non-repair of a necessary service (e.g. running water)
f. Termination of employment (with or without just cause)
g. Personal injury caused by someone else’s (nom-employer) negligence
h. Personal injury at the workplace
i. Broken contract
j. Another subject approved by the instructor (be sure that the subject chosen falls within the permissible scope of practice for Paralegals).
2. Formulate a fictitious fact scenario
3. Partner A will represent the claimantapplicant and Partner B will represent the defendantrespondent
4. Research your subject.
a. Refer to and identify any statutes governing your subject or pertaining to it in some way
b. Are there any specific Regulations pertaining to your subject
c. Find a precedent case which supports the subject you have researched
d. List the case citation and quote any supporting statements made in that decision
e. Explain why you feel it will support your case
f. If possible, find a case which could be used against you in your case. List the case citation and explain why this case may hinder your successfulness
5. Put it all together in a Memorandum of Law, following the format given to you as an example
6. Prepare a short Written Submissions (e.g. opening statement) to be presented to the courttribunal
7. Be prepared to present your findings and describe the documents that you’ve drafted to the class
Part 1 of this assignment will be primarily evaluated on the content of the information, and the ability to effectively and persuasively summarize all of your findings in a Memorandum of Law.
10 marks
Section2
With a different partner, research each of the below cases:
1. Cyrenne v. Moar (1986), 2 R.F.L. (3d) 414 Manitoba Court of Appeal Monnin C.J.M. Husband and Twaddle JJ.A
2. Bell v. St. Thomas University (1982), 97 D.L.R. (4th) 370 New Brunswick Court of Queen’s Bench, Russell J
3. Banyasz v. K-Mart Canada Ltd (1986), 33 D.L.R.. (4th) 474 Ontario High Court of Justice, Divisional Court, Callaghan A.C.J.H.C.
For each case identify the following:
• Purpose
• Facts
• Issues
• Law
• Ratio
• Decidendi
• Decision
• Disposition
Part 2 of this assignment will be primarily evaluated on the content of the information. A Memorandum of Law is not necessary, however, create individual headings for each part of your answer.
10 marks.
Section3
Complete individually. Using the below information, complete two Memorandum of Law. One representing Mr. Wearing and the other representing the bank.
………………………….
First Interview
Mr. Wearing has been a client of ours for a number of years, mostly with regard to traffic and Small Claims Court collection matters. He has a concern of a different sort this time and wants to know if he has something he can pursue and whether we can help.

For the past two years he has employed a housekeeper to help around the house. His health had been failing since his stroke. Two months ago he was reviewing his bank statements and discovered certain irregularities. It appeared that five months ago more than $2,000 was unaccountably drawn from his chequing account. Upon discovering the problem he promptly wrote to the bank manager, who knew him well, and notified her of the problem.

The police were called in to investigate and found a number of forged cheques adding up to a total of $4,000. The forgeries took place over the last eighteen months in relatively small amounts, with the exception of the $2,000 cheque.

Mr. Wearing’s practice was to sign cheques for the housekeeper to cash and use for household expenses such as groceries. The housekeeper cashed some additional cheques made out for larger amounts. On these cheques she forged Mr. Wearing’s signature. The police say that it was as good a forged signature as any they have seen. It is virtually impossible to tell the forged signatures from the real thing. One of the bank tellers apparently told the police that she was suspicious when she saw the cheque for $2,000. The housekeeper claimed that the money was going to be used by Mr. Wearing for travel. The manager was on hand at the time and said she was pleased that Mr. Wearing was travelling again after the stroke.

There was also a total of $2,000 in cheques written out to Mr. Wearing. These amounts were cashed by the housekeeper by her forging of Mr. Wearing’s endorsement on the back of the cheques.

The police cannot find the housekeeper and suspect that she has left the country. One investigating officer suggested to Mr. Wearing that he seek advice about a claim against the bank for processing forged documents on his account.

Mr. Wearing’s account with the bank is subject to a verification agreement which he remembers signing when he opened his account six years ago. I need to provide Mr. Wearing with an opinion on whether he can recover against the bank. I have attached the relevant cases, subsection 48(1) of the Bills of Exchange Act and the relevant part of the bank’s standard form verification agreement.
Second Interview
I had a follow-up interview with Mr. Wearing regarding the matters and issues you raised from your initial research of the case. In the following notes I have summarized what he said, and, what I anticipate the bank will say (from my initial discussions with their counsel).

Mr. Wearing said that $8,000 was removed from his account by his housekeeper. $2,000 of that money was by forged endorsements. There was a further $6,000 removed by forged cheques.

Because of his condition Mr. Wearing was not on top of his household affairs. When reviewing his accounts in August (15th) he discovered on his April statement a $2,000 cheque being processed on April 13 which he did not write. His May statement, which was received by him in the mail June 30th, showed 4 cheques totalling $2,000 which he did not write. His June statement, received July 31st, showed another forged $2,500 going through his account in June. Another $1,500 in forged cheques went through his account in August. The forged endorsements went through the account in two amounts, once in the previous December for $1,000, and once in August for another $1,000.

Mr. Wearing said that he had a difficult time remembering the details of what happened when he first set up his account. He does not remembering signing a verification agreement card, after all the bank had him sign five or six different documents at that time. He remembers that the account was a joint account with his wife, who passed away 3 years ago. He kept the account open in his own name.

The bank will present as evidence a signed verification card dated the same day the account was opened. Mr. Wearing said that it was not his signature, but looked like his wife’s signature. You had him slowly read out loud the entire clause, and he stated he could not understand the legalese anyway.

With regard to the occasion when the housekeeper presented the $2,000 cheque explaining that Mr. Wearing was traveling, the bank manager will say that it was right for the teller to ask for an explanation for such a large amount, but that the explanation seemed reasonable and the bank cannot police their clients’ personal arrangements.

Mr. Wearing said that after his stroke, two years ago, he had a meeting with the bank manager regarding his banking matters. The manager promised that the bank would do whatever it could to help facilitate any arrangement he might make to have his banking tasks taken care of.

Mr. Wearing said that he felt the bank was agreeing to help him look after his affairs more closely. He claimed that he reviewed his account to the best of his ability given his health and circumstances. The bank manager will say that this meeting showed how concerned they were to provide customers with better service, and that they were willing to cooperate with the housekeeper (or whoever Mr. Wearing might use for his banking) to make sure the small, day-to-day household financial concerns were dealt with expeditiously. She will say that the bank could not agree to police their customers’ staffing problems.
Legal Background Information:

Verification Agreement

The Bank may from time to time deliver to the Customer or the Customer’s duly authorized representative a statement of account with relative cheques and other vouchers, or may forward the same by ordinary mail to the said Customer. The Customer will examine the said cheques and vouchers and all the credit and debit entries in each of the statements and will within thirty (30) days for the date of each such deliveries or from the date of each such mailings, as the case may be, point out to the Bank any error, irregularities or omissions therein. The Customer agrees implicitly that the producing by the Bank of the mailing and delivery record of the said items and statements duly initialled by the persons appointed to such duties, will constitute a positive proof of such delivery, mailing and receipt to and by the Customer of the said items and statements. After the expiration of the said 30 days (except as to any errors, irregularities or omissions previously pointed out to the Bank as aforesaid and except as to payments made on forged or unauthorized endorsements) it shall be conclusively settled as between the Bank and the Customer that the amount of the balance shown in statement is correct, that the said cheques and other vouchers are genuine and properly chargeable to and charged against the Customer and that the Customer was not entitled to be credited with any sum not credited in such statement.

Bills of Exchange Act, R.S.C. 1985, s.48(1)

48.(1) Subject to this Act, where a signature on a bill is forged, or placed thereon without the authority of the person whose signature it purports to be, the forged or unauthorized signature is wholly inoperative, and no right to retain the bill or to give a discharge therefore or to enforce payment thereof against any party thereto can be acquired through or under that signature, unless the party against whom it is sought to retain or enforce payment of the bill is precluded from setting up the forgery or want of authority.

Case Studies:

According to Canadian Pacific Hotels Ltd. v. Bank of Montreal et al. Section 38, the moment the teller identified and reported the $2,000 cheque discrepancy (being cashed by the housekeeper), the bank took on the role of primary duty to the account.

According to Kelly Funeral Homes Ltd. v. Canadian Imperial Bank of Commerce Section 2, Canadian Pacific Hotels Ltd. v. Bank of Montreal et al. Section 27 & 32, Le Cercle Universities d’Ottawa v. National Bank of Canada Section 8 and Don Bodkin Leasing Ltd. v. Toronto-Dominion Bank Sections 11 to 15, the signing of the verification agreement makes the customer responsible for the record keeping of his/her own accounts. The customer is expected to notify the bank within 30 days of any errors, omissions, or discrepancies. Furthermore, if a bank statement is uncontested after 30 days and the bank was not negligent, the statement is deemed to be correct. Subsequently, the agreement operates as a release of all claims by the customer against the bank as to any item contained in the bank statement.
Canadian Pacific Hotels Ltd. v. Bank of Montreal et al.
Section 27 (1) – According to Price v. Neal (1762), 3 Burr. 1354, 97 E.R. 871, a bank is required to know its customer’s signature.
Section 27 (3) & 35 (2) – The bank can limit its liability by insisting upon a term in the written document requiring a customer to verify its account within a stated period of time.
Section 30 & 32 – When a payee of a cheque is “fictitious” (the drawer never intended to pay the payee), the endorsement on the back is irrelevant because such a cheque is negotiated by delivery and no endorsement is required.
Section 33 – If an endorsement is inoperative [forged], the bank is not entitled to charge the amount of the cheque to its customer.
Section 38 – A banking agreement does not necessarily govern the whole relationship between a banker and its customer. When a cheque is forged, the burden is on the bank to establish that it was free from negligence.
Section 42 – If the customer was negligent, the customer should suffer a loss by the fraud of the third party.
Le Cercle Universities d’Ottawa v. National Bank of Canada
Section 8 – A verification agreement places a specific onus on the customer to check its accounts statements and to notify the bank within 30 days of any errors, omissions, or discrepancies. If errors are uncontested and the bank was not negligent, after 30 days the statement is deemed to be correct and the customer is not entitled to be credited with any subsequent errors on his/her bank statement.
Don Bodkin Leasing Ltd. v. Toronto-Dominion Bank
Section 3 – Client is entitled to recover the proceeds of forged cheques for which the customer had given timely notice.
Sections 11 to 15 – A verification agreement releases the bank from all claims by a customer when the bank was not negligence.

Background Information
According to bank policy, when a joint account holder dies, the account is suspended and the living account holder must open a new account. Every new account requires (a) a new signature card and (b) a new verification agreement.

A few terms that may be confusing. A forged “endorsement” is not the same thing as a forged “signature”. “Signature” refers to the payer’s signature on the front of the cheque. “Endorsement” refers to the payee’s signature on the back of the cheque. Also keep in mind that the monetary jurisdiction of the Small Claims Court is $25,000.
……………………….
Section 3 of this assignment will be primarily evaluated on the content of the information, and the ability to effectively and persuasively summarize all of your findingsin two Memorandum of Law.
20 Marks

Memorandum of Law
To: Class
From: Anne Allen
Date: April 24, 2013
File: Assignment 2
Re: Jones’ Charges under the Highway Traffic Act and the Compulsory Automobile Insurance Act
I. Facts

On March 26, 2013, Jim Jones was driving to work on his recently purchased electric bicycle when he was stopped by police, and charged with the following offences:

• the offence of driving a motor vehicle and failing to display on this vehicle number plates that showed a permit number, contrary to ss.7(1)(b)(i) of the Highway Traffic Act [hereinafter the”HTA”], and

• the offence of being the owner of a motor vehicle and operating this vehicle without being insured under a contract of automobile insurance, contrary to ss.2(1)(a) of the Compulsory Automobile Insurance Act [hereinafter the “CAIA”].

Jones did not offer any particulars about his electric bike, such as its speed capacity, whether or not the pedals on the bike could be removed, or even whether the pedals were attached to the bike on the day that he was charged.

Jones is scheduled to appear in Provincial Offences Court on May 24, 2013.
II. Issues

This memorandum of law will attempt to answer the following issues:

1. Is Jones’ electric bike a “motor vehicle” as defined under the statutes he is charged with?

2. If Jones’ electric bike falls under the definition of “motor vehicle” within the applicable statutes, what, if any, penalties could he face?
III. Relevant and Applicable Statutes

a. Definitions

Several statutes and regulations that relate to the act of driving in Ontario attempt to apply a definition to electric bikes:

Section 1 of the HTA sets out the following definitions:

“motor assisted bicycle” means a bicycle,
(a) that is fitted with pedals that are operable at all times to propel the bicycle,
(b) that weighs not more than fifty-five kilograms,
(c) that has no hand or foot operated clutch or gearbox driven by the motor and transferring power to the driven wheel,
(d) that has an attached motor driven by electricity or having a piston displacement of not more than fifty cubic centimetres, and
(e) that does not have sufficient power to enable the bicycle to attain a speed greater than 50 kilometres per hour on level ground within a distance of 2 kilometres from a standing start;
[Emphasis Mine]

“motor vehicle” includes … a motor-assisted bicycle unless otherwise indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power, but does not include … a power-assisted bicycle …
[Emphasis Mine]

“power-assisted bicycle” means a bicycle that,
(a) is a power-assisted bicycle as defined in subsection 2 (1) of the Motor Vehicle Safety
Regulations made under the Motor Vehicle Safety Act (Canada),
(b) bears a label affixed by the manufacturer in compliance with the definition referred to in clause (a),
(c) has affixed to it pedals that are operable, and
(d) is capable of being propelled solely by muscular power;
[Emphasis Mine]

“vehicle” includes a … bicycle and any vehicle drawn, propelled or driven by any kind of power, including muscular power ….

Section 1 of the Insurance Act [hereinafter “IA”] advises that:

“automobile” includes … a self-propelled vehicle ….

In Section 2 of the Regulations Respecting Safety for Motor Vehicles and Motor Vehicle Component

“power-assisted bicycle” means a vehicle that:
(a) has steering handlebars and is equipped with pedals,
(b) is designed to travel on not more than three wheels in contact with the ground,
(c) is capable of being propelled by muscular power,
(d) has one or more electric motors that have, singly or in combination, the following characteristics:
(i) it has a total continuous power output rating, measured at the shaft of each motor, of 500 W or less,
(ii) if it is engaged by the use of muscular power, power assistance immediately ceases when the muscular power ceases,
(iii) if it is engaged by the use of an accelerator controller, power assistance immediately ceases when the brakes are applied, and
(iv) it is incapable of providing further assistance when the bicycle attains a speed of 32 km/h on level ground,
(e) bears a label that is permanently affixed by the manufacturer and appears in a conspicuous location stating, in both official languages, that the vehicle is a power-assisted bicycle as defined in this subsection, and
(f) has one of the following safety features,
(i) an enabling mechanism to turn the electric motor on and off that is separate from the accelerator controller and fitted in such a manner that it is operable by the driver, or
(ii) a mechanism that prevents the motor from being engaged before the bicycle attains a speed of 3 km/h
[Emphasis Mine]

Section 2 of the Criminal Code of Canada advises that:

“motor vehicle” means a vehicle that is drawn, propelled or driven by any means other than muscular power ….
[Emphasis Mine}

b. Offences and Penalties

If it is determined that an electric bicycle is a motor vehicle under the relevant statutes, then the following other provisions would apply:

Ss. 7(1) of the HTA deals with permit requirements, and advises that

No person shall drive a motor vehicle on a highway unless,
(a) there exists a currently validated permit for the vehicle;
(b) there are displayed on the vehicle, in the prescribed manner,
(i) number plates issued in accordance with the regulations showing the number of the permit issued for the vehicle, or
(ii) number plates described in subsection (7.2) if the vehicle is an historic vehicle and the Ministry has issued a currently validated permit for it; and
(c) evidence of the current validation of the permit is affixed, in the prescribed manner, to,
(i) one of the number plates mentioned in subclause (b) (i) displayed on the vehicle, or
(ii) to a mini-plate attached to the number plate exposed on the rear of the vehicle, if number plates described in subsection (7.2) are displayed on the vehicle

Those found guilty of general offences under the HTA are subject to the following penalty:

ss. 214(1) Every person who contravenes this Act or any regulation is guilty of an offence and on conviction, where a penalty for the contravention is not otherwise provided for herein, is liable to a fine of not less than $60 and not more than $500.

Section 2 of the CAIA deals with compulsory automobile insurance and the penalties for failing to possess automobile insurance:

2(1) Subject to the regulations, no owner or lessee of a motor vehicle shall,
(a) operate the motor vehicle; or
(b) cause or permit the motor vehicle to be operated,
on a highway unless the motor vehicle is insured under a contract of automobile insurance.

2(3) Every owner or lessee of a motor vehicle who,
(a) contravenes subsection (1) of this section …
is guilty of an offence and is liable on a first conviction to a fine of not less than $5,000 and not more than $25,000 and on a subsequent conviction to a fine of not less than $10,000 and not more than $50,000 and, in addition, his or her driver’s licence may be suspended for a period of not more than one year.
IV. Analysis

1. Is Jones’ electric bike a “motor vehicle” as defined under the statutes he is charged with?

Multiple definitions exist within various Ontario statutes and regulations, which attempt to define what an electric bike is. Determining whether an electric bike is a motor vehicle or not becomes important given that falling under the definition of motor vehicle within these laws will attract licensing and insurance requirements.

Although the various definitions appear different among the statutes and regulations, upon closer examination two commonalities consistently appear. According to these statutes, it appears that electric bicycles are not considered motor vehicles if they possess pedals, and can be self-propelled solely through muscular power, despite the presence of a motor.

Jones has neither advised whether his electric bicycle possessed pedals at the time he was charged, nor whether he was actively pedaling the bike himself instead of using its motor. If I were to assume that Jones was pedaling and propelling the bicycle himself, it becomes clear that his bicycle could not possibly be considered a motor vehicle under either the HTA or the CAIA. If his bicycle does not fall within the definition of a motor vehicle, he cannot be charged with failing to comply with those statutes’ licensing and insurance requirements.

However, even if Jones had been using the bicycle’s motor, and even if his pedals had not been attached to the bicycle when he was stopped, it is likely the HTA and the CAIA charges leveled against him would still be dismissed. The Ontario Court of Justice recently examined a similar issue in R v Pizzacalla. In that case, Pizzacalla had been stopped and charged by the police with the same offences Jones is currently facing. Pizzacalla had been operating his bicycle, not with its pedals, but instead with its motor. In fact, he had completely detached both pedals and was carrying them on his person. The court ruled that electric bikes, even with the pedals not attached, were not motor vehicles.

In light of the statutory provisions, which provide that electric bikes are not motor vehicles for the purposes of licensing and insurance requirements, it is likely that the charges against Jones would be dropped if his case ever proceeded to trial. This view is supported by case law recently released by the Ontario Court of Justice.

2. If Jones’ electric bike falls under the definition of “motor vehicle” within the applicable statutes, what, if any, penalties could he face?

Although it is unlikely that Jones will be found guilty of failing to possess proper permits or insurance for his electric bicycle, in the event he is found guilty, there are several penalties he could face. If he was found guilty of failing to possess proper permits, pursuant to ss.214(1) of the HTA,he would face a fine that could fall anywhere between $60 and $500. If he was found guilty of failing to possess insurance, pursuant to 2(3) of CAIA, he would face a fine that could fall anywhere between $5000 and $25,000 for a first conviction, and then face fines that fell between $10,000 and $50,000 for any subsequent provision. He would also likely have his driver’s license suspended for a one year period.
V. Conclusion

It is unlikely that Jones’ electric bicycle will be considered a “motor vehicle” under either the HTA or the CAIA. These statutes and current case law shelter electric bicycles and prevent them from attracting the licensing and insurance requirements that apply to other motor vehicles. As a result, it seems highly likely that the charges against Jones will be dismissed.