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[28] In my view the definition of “deceive” in In Re London and Globe Finance Corporation, Limited, [1903] 1 Ch. 728 at p. 732 as meaning “to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false” applies equally to the offence of fraud, subject to the qualification requirements identified by Nightingale at p. 2-15 where she states:
It is important to note that the definition of deceit found in Lord Buckley’s dicta in London v. Globe Finance Corp. Ltd. refers only to the inducing of belief and not to the inducing of conduct or action by the victim. While the dicta of Lord Buckley also provides a definition of fraud in the statement that “to defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury,” this has not been taken to mean, in Canadian law, that the deceit must be practised upon the victim. It is enough that the deceit causes the deprivation to the victim.
Thus, while the definition of deceit found in London v. Globe Finance Corp. Ltd. and numerous decisions have held that a misrepresentation must induce belief, there is a distinction drawn between inducing belief and inducing the victim of the fraud to act. The deceit must be believed by the person to whom the false representation is made. The deceit must be causally connected to the loss suffered by the victim, but the deceit does not need to be practised upon the victim, nor does the deceit need to induce the victim to act to his detriment.
[29] After reviewing the authorities in depth, Nightingale at p. 2-23 summarized the general principles applicable to fraud by way of deceit as follows:
(1) Deceit is defined as inducing a person to believe that a thing is true which is false and which the person practising the deceit knows or believes to be false.
(2) Deceit may be practised by means of an oral representation, a written representation or by conduct.
(3) The deceit may be in relation to a matter of fact, an intention or undertaking as to future conduct.
(4) The subsequent honouring of intention or a future undertaking does not remove culpability.
(5) A deceit does not have to be a false pretence in law.
(6) “Dishonesty” does not have to be proven in addition to proof of deceit.
(7) The deceit must induce a state of mind, being belief in the truth of the misrepresentation.
(8) Deceit does not have to be practised upon the victim.
(9) There must be a causal connection between the deceit and the deprivation suffered by the victim.
(10) The deceit need only be an effective cause of the deprivation suffered by the victim. It does not need to be the exclusive cause of the deprivation.
(11) The fact that persons other than the person to whom the representation was made were not induced by the accused’s misrepresentation does not remove culpability.
[30] “Falsehood” in turn means something that is untrue, i.e. lying, lies: The Concise Oxford Dictionary, 9th ed. (Oxford: Clarendon Press, 1995). I agree with Ewart’s observation at p. 80 that the “concept of a falsehood is not difficult to deal with, although it has received little analysis independent of the concepts of deceit or fraudulent means”, and therefore have not reviewed the same in depth.
[31] What constitutes “other fraudulent means” is dealt with by McLachlin J. in Théroux and Zlatic and I have quoted her later in these reasons. Additional analysis therefore is not required beyond a reference to Nightingale at pp. 3-12 and 3-13 where she summarizes the general principles applicable to fraud by “other fraudulent means”:
From the foregoing decisions, the following general principles with respect to “other fraudulent means” can be identified:
(1) The issue of whether conduct will be characterized as “other fraudulent means” is a question of fact to be determined by the trier of fact;
(2) Canadian courts, unlike their English counterparts, do not define the concepts of “dishonesty” or “other fraudulent means” for the trier of fact;
(3) The English cases, with respect to the definition of “dishonesty” and the identification of the standard against which conduct is to be measured are no longer accepted as part of the Canadian law of fraud;
(4) As with all other elements of the actus reus, an objective test is to be utilized in the determination of whether the accused’s conduct can be characterized as “other fraudulent means”;
(5) Conduct will be characterized as being “other fraudulent means” if a reasonable person would
consider the conduct of the accused to be dishonest.
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