ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
GOLAM MEHEDI
Applicant
- and -
CANADIAN IMPERIAL BANK OF COMMERCE
Respondent
In Person
Sean Butt, for the Respondent
HEARD at Toronto: July 6, 2009
JENNINGS J.: (Orally)
1Mr. Mehedi appeals from the decision of Godfrey J. dated July 24, 2008, dismissing his claim against the Bank for seizing a GIC lodged with the Bank and $265.00 from his savings account with the Bank, to satisfy overdue charges on his Visa account of approximately $5,000.00. There is no dispute that Mr. Mehedi had incurred the charges.
2Mr. Mehedi understands that to succeed on this appeal, he had to show Godfrey J. erred in law, or made a palpable overriding error in a factual finding.
3Godfrey J. found as a fact that Mr. Mehedi signed the two security pledge agreements under which the Bank acted, notwithstanding Mr. Mehedi’s evidence that the signature was not his. There was sufficient evidence for Godfrey J. to make that finding, including the evidence of Ms. Vitorino, called by Mr. Mehedi, at page 37, lines 3-10 of the transcript.
4Regardless, applying Sutcliffe & Sons Ltd. 1933 163 (ON CA), [1933] 1 D.L.R. 562, Godfrey J. correctly found that the Bank could exercise its common law right of set off to partially repay itself for the visa indebtedness. I should add that references in the judgment to Mr. Mehedi’s indebtedness on a personal line of credit are in error – that debit is the subject of other proceedings between the parties. Accordingly, the appeal must be dismissed.
5Costs fixed at $2,500.00 inclusive, payable to the defendant forthwith.
JENNINGS J.
Date of Reasons for Judgment: July 6, 2009
Date of Release: July 8, 2009
COURT FILE NO.: 420/08
DATE: 20090706
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
GOLAM MEHEDI
Applicant
- and -
CANADIAN IMPERIAL BANK OF COMMERCE
Respondent
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: July 6, 2009
Date of Release: July 8, 2009