Court File and Parties

CITATION: Chan v. Amex Bank of Canada, 2009 ONCA 473

DATE: 20090612

DOCKET: C49027

COURT OF APPEAL FOR ONTARIO

Doherty, Cronk and Rouleau JJ.A.

BETWEEN

Tak Kwong Chan, Rita Mark-Chan, Ian Chan, Kwan Yee Chan

Plaintiffs (Appellants)

and

Her Majesty the Queen In Right Of Ontario, Michael Bryant, Attorney General of Ontario Monte Kwinter, Minister Of Community Safety & Correctional Services, Legal Aid Ontario, Amex Bank of Canada, Bank of Montreal, Canadian Imperial Bank of Commerce, Capital One Bank (Canada Branch), Citicards Canada Inc., President’s Choice Bank, Royal Bank of Canada, The Bank of Nova Scotia, The Toronto-Dominion Bank, MBNA Canada Bank, Thomas Sheluk, Joanna Szramek, Mary Lynne Austett, Richard Spanton, Keith Edmonds, Helen Walker, Dion Yungblut, Rick Neals, George Murray, Gerry Fokas, Dean Donald Paquette, Barrister & Solicitor, Ian Maynard Begg, Barrister & Solicitor And Dean D. Paquette & Associates, Barristers & Solicitors

Defendants (Respondents)

Counsel:

Tak Kwong Chan, Rita Mark-Chan, Ian Chan, Kwan Yee Chan in person

Amanda M. Heydon, for the respondents Citicards Canada Inc. and George Murray

Christopher Stanek, for the respondents Amex Bank of Canada, Bank of Montreal, Canadian Imperial Bank of Commerce, Capital One Bank (Canada Branch), President’s Choice Bank, Royal Bank of Canada, The Bank of Nova Scotia, The Toronto-Dominion Bank, MBNA Canada Bank, Thomas Sheluk, Joanna Szramek, Mary Lynne Austett, Richard Spanton, Keith Edmonds, Helen Walker, Dion Yungblut, Rick Neals,, Gerry Fokas

Heard: Appeal in writing

On appeal from the judgment of Justice W. Low of the Superior Court of Justice dated December 12, 2007.

ENDORSEMENT

[1] This is an appeal from the dismissal of the appellants’ claim against the respondents on the basis that the action was an abuse of process and that the appellants’ pleading failed to disclose a reasonable cause of action.

[2] The appellants in this appeal act in person. Due to the illness of one of the appellants, we adjourned the matter from April 15, 2009 to April 16, 2009. On April 16, we directed that the appeal proceed as an in-writing appeal and allowed the parties to file further written submissions.

[3] We have now received and reviewed the additional materials. In our view, the appeal should be dismissed.

[4] We agree with the motion judge’s conclusion that this action is an abuse of process as it is a collateral attack on the outcome of an earlier proceeding and seeks to re-litigate the issues raised in that earlier proceeding. Further, the claim fails to disclose a reasonable cause of action.

[5] The appellants also seek leave to amend the statement of claim to plead negligence and deceit as against the respondents. In our view, the appellants have not shown that they have a viable cause of action in negligence. The appellants’ pleading does not disclose a relationship of proximity between the appellants and the respondents such as to give rise to the requisite duty of care. Finally, the appellants have not disclosed a viable cause of action for deceit as there has been no reliance upon the allegedly deceitful statements and the appellants’ damages did not result from reliance upon statements made by the respondents.

[6] In conclusion, the appeal is dismissed. Costs payable by the appellants on a partial indemnity scale fixed at $1,500 inclusive of GST and disbursements to each of the two groups of respondents.

“D. Doherty J.A.”

“E.A. Cronk J.A.”

“Paul Rouleau J.A.”