Sawh v. Canadian Imperial Bank of Commerce 2000 OCA mini 278

Case Summary

The appellant appealed the dismissal of her application for declaratory and related relief arising from the respondent bank's freezing of her account and withdrawal of funds to cover an overdraft in a joint account held with her mother. She argued that the applications judge failed to address non est factum and erred in not finding the bank negligent. The court held that non est factum was not properly raised below and that the evidence did not obligate the applications judge to address it on his own motion. The court further held that the bank was not negligent and that the appellant remained bound by her agreement to indemnify the bank for the overdraft. The appeal was dismissed with fixed costs.

DATE: 20000526

DOCKET: C32877

RE: NARISSA SAWH (Plaintiff/Appellant) v. CANADIAN IMPERIAL BANK OF COMMERCE (Defendant/Respondent)

BEFORE: OSBORNE A.C.J.O., WEILER and CHARRON JJ.A.

COUNSEL: Joseph Markin, for the appellant

Allan D. Weiss, for the respondent

HEARD: May 24, 2000

On appeal from the decision of Mr. Justice Cullity dated September 14, 1999

E N D O R S E M E N T

[1] The appellant appeals from the dismissal of her application for declaratory relief and other relief in relation to the alleged wrongful acts of the respondent. The appellant contends that the respondent bank acted negligently and to her detriment when it froze her account and withdrew monies to cover an overdraft in an account held jointly by the appellant and her mother.

[2] The appellant argues firstly that the trial judge erred in failing to deal with the issue of non est factum in relation to her knowledge of the terms of the Personal Account Agreement. Counsel concedes that the matter was not raised as an issue in the factum or in oral argument before the applications judge but submits that it was nonetheless incumbent upon the applications judge to deal with this matter because it arose from the evidence. The applications judge noted in his reasons that if the appellant had relied on an alleged ignorance of the terms of the agreement, “a trial of the issue would have probably been required”.

[3] We do not accept the appellant’s argument. The appellants’ bare allegations that the signature card was signed in a hurry and that no disclosure material or account agreement was given at the time do not necessarily support a plea of non est factum. This is particularly so where the signature card itself contradicts this allegation. Based on this evidence, it was not incumbent upon the applications judge to deal with this issue on his own motion. We note further that the issue is not raised in the notice of appeal or in the factum on this appeal.

[4] The appellant’s main argument on the appeal is that the applications judge erred in failing to find that the bank was negligent. In the circumstances of this case we agree with the applications judge that the bank was not negligent.

[5] There is no suggestion that, in the absence of negligence on the part of the bank, the appellant, a customer of the bank, is not bound by the terms of her agreement with the bank to indemnify it for the overdraft in the joint account. Hence, there is no basis to grant the remedy sought and the applications judge was correct in dismissing her application.

6The appeal is dismissed with costs fixed at $1,500.

(signed) "C. A. Osborne A.C.J.O." (signed) "K. M. Weiler J.A." (signed) "Louise Charron J.A."

May 26, 2000