LIES, RECKLESSNESS AND DECEPTION: DISENTANGLING DISHONESTY IN CIVIL FRAUD
AbstractDespite expressions of judicial distaste for the "current fashion" of alleging civil fraud, there continue to be significant advantages to pleading the tort of deceit as alternate or concurrent liability to negligent misstatement. This article explores the evidentiary difficulties of proving the requisite mental intent for the tort of deceit, with particular focus on recent pronouncements from the British Columbia Court of Appeal and the Supreme Court of Canada requiring that a plaintiff prove that the defendant intended to deceive the plaintiff in making the false statement. The author contends that this view is mistaken, and that both precedent and policy dictate that the requisite mental intent be merely that of inducing reliance upon the misstatement. To impose an additional requirement of proof of intent to deceive would extinguish recklessness as a separate avenue to establishing the dishonesty which is the essence of the tort, and might well result in making the tort of fraud more difficult to prove than the criminal offence of fraud.
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