The Fictitious Payee Strikes Again : The Continuing Misadventures of BEA S. 20(5)

Raza Kayani LLP v. Toronto-Dominion Bank is a recent judgment in the chain of cases exposing the problematic interpretation of s. 20(5) of the Bills of Exchange Act (BEA). I have addressed relevant issues before, but will use this occasion to tackle them again, in light of new developments and novel reflections. I will proceed to set out the facts of Kayani and the conclusion of the judgment, address the cause of action, and critically analyze the evolving interpretation of BEA s. 20(5) in Canada and its application in the case. I will then argue that, having reached the correct result, Kayani nevertheless misapplied BEA s. 20(5). Subsequently, I will revisit the original meaning given by case law to the English counterpart of the provision and endeavor to identify the point where interpretation and good policy divorced. I will conclude with pointing out possible directions for law reform