Court File and Parties

CITATION: Martinek v. Canadian Imperial Bank of Commerce, 2009 ONCA 270

DATE: 20090330

DOCKET: C49247

COURT OF APPEAL FOR ONTARIO

Feldman, Gillese and Rouleau JJ.A.

BETWEEN:

Tibor Martinek

Plaintiff (Appellant)

and

Canadian Imperial Bank of Commerce

Defendant (Respondent)

Counsel:

Antonin I. Pribetic, for the appellant

Alan J. Butcher, for the respondent

Heard: March 25, 2009

On appeal from the judgment of Justice David Aston of the Superior Court of Justice dated July 7, 2008.

ENDORSEMENT

[1] The appellant appeals from the order of Aston J. granting summary judgment and dismissing his action against the respondent. In the action, the appellant sought damages for breach of the Minutes of Settlement which had been entered into in respect of a previous action.

[2] The appellant raises two grounds of appeal: 1) the motion judge applied the wrong test for summary judgment and erred by putting the onus on the appellant to show that there was a genuine issue for trial; 2) the motion judge erred in his interpretation of the term “bad debt” in the context of credit reporting under the Consumer Reporting Act, R.S.O. 1990, c. C. 33 (as amended) where the Bank reported the appellant as an R9 credit rating for the portion of the appellant’s debt that it wrote off following the settlement.

[3] In our view, Aston J. made neither error. He properly required the appellant, as the respondent on the motion, to demonstrate with evidence that there is a genuine issue for trial. In his oral submissions, counsel for the appellant properly focused on the appellant’s principal claim against the Bank, namely, for reporting his credit rating as R9 because it had written off a portion of the amount the appellant owed it as part of the settlement. The appellant objects that R9 is the worst rating and is for bad debts, and says that the motion judge should have recognized as a genuine issue for trial, whether the failure to pay money compromised on a settlement is properly characterized as a “bad debt” within the meaning of the R9 credit rating.

[4] However, the only evidence on the issue was contained in the Bank’s affidavit, which states that settlements that involve write-downs of amounts owing to a credit grantor are intended to be reported as R9 under the North American Standard Account Ratings, and that the appellant was treated the same as other bank customers in similar circumstances. There was no evidence to the contrary.

[5] Furthermore, in the settlement agreement, the appellant specifically agreed that the respondent was not required to report to credit agencies “in any particular way”. In light of that, the R9 report could not be a breach of the settlement agreement.

[6] There is no basis to set aside the decision of the motion judge. The appeal is dismissed with costs fixed at $7,500, inclusive of disbursements and G.S.T.

“K. Feldman J.A.”

“E.E. Gillese J.A.”

“Paul S. Rouleau J.A.”