In the recent decision SNC-Lavalin Polska SP. ZOO c. BNP Paris Canada, Justice Serge Gaudet of the Quebec Superior Court upholds the criteria set out by the Supreme Court of Canada in in the Angelica-Whitewear case of 1987 [(1987) 1 SCR 59] required to stop payment under a letter of credit. The Supreme Court had also indicated that, in order to obtain an interlocutory injunction to restrain the payment under the documentary credit, the applicant needs to establish a “strong prima facie case of fraud” (p.84).[40] As Justice Borenstein stated in Bombardier inc. v. Hermes Aero LLC (2004 CanLII 7014): “Disagreeing on the interpretation of the underlying agreement is not proof of serious prima facie case of fraud”. In that decision, Justice Borenstein relied on Justice Blair of Ontario who stated in Cineplex Odeon Corp v. 100 Bloor West General Partner inc. (1993 O.J. no. 112) , that:

“Fraud is not simply a legitimate dispute or disagreement over the interpretation of a contract, however one-sided that dispute may appear. While the notion of fraud may elude precise definition, it is a concept well-known to the law and it must in my view import some aspect or impropriety, dishonesty or deceit”

[42]While the arguments presented by [Plaintiff] as to the proper interpretation of the relevant provisions of section 8 of the contract may appear to be quite convincing, this does not mean that Orlen’s own interpretation of the contract is abusive to the point of being tantamount to fraud...

[45] At the risk of repetition, this is a dispute over the proper interpretation of the underlying contract and the Court, in the circumstances and at this preliminary stage, fails to see how Orlen’s interpretation would amount to fraud or deceit or dishonesty within the meaning of the Angelica-Whitewear test.

This decision is important as it sets out the circumstances under which payment pursuant a letter of credit can be thwarted, or not!