Is a bank obligated to advise each director of a corporation that is a beneficiary of a trust?

British Columbia, Canada


The following excerpt is from Giles v. Westminster Savings Credit Union, 2006 BCSC 141 (CanLII):

In Gold v. Rosenberg, the court found that the bank acted reasonably in the circumstances and never received trust property in its possession, although it acquired a contingent interest in the property. Sopinka J. said this at ¶78 and ¶83: In certain circumstances, a third party in the position of the bank will not have discharged its duty to inquire unless the guarantor has been advised to obtain independent legal advice. … … A bank is only required to act reasonably in the circumstances. Corporate guarantees in situations in which the director of the corporation may be a beneficiary of a trust in relation to the shares of the corporation are common transactions. Is the bank obligated to advise each director, whose consent was necessary to obtain the guarantee, to obtain independent legal advice? I am of the opinion that, in the circumstances, advising Gold to obtain independent legal advice may be a counsel of perfection but goes beyond what is expected of an honest and reasonable banker. To quote Gibson J. in Baden, supra, at p. 268, this would impose "an impractically extensive duty of inquiry" on a bank which is otherwise acting reasonably.

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