COURT FILE NO.: DC-08-56

DATE: 20090720

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

NAVIN JOSHI

M. Klein, for the Appellant

Appellant/Plaintiff

• and -

ROYAL BANK OF CANADA

K.A. Klayman, for the Respondent

Respondent/Defendant

HEARD: June 19, 2009

REASONS FOR JUDGMENT

Lemon J.

1The plaintiff appeals the decision of Deputy Judge Ian Nadler dated June 20, 2008. The appellant had claimed against the Royal Bank of Canada on a variety of grounds for damages that amounted to a sum roughly equivalent to his outstanding student loan with the defendant. The bank counterclaimed for $10,000, somewhat less than the outstanding balance of the student loan.

2After a rather unorthodox trial, Deputy Judge Nadler dismissed the appellant’s claim, and gave judgment for the defendant in the amount of $10,000 along with $1,000 in costs and interest.

3In his factum, the appellant sought a number of remedies; however, in oral argument, the appellant’s counsel, Mr. Klein, waived all of the requests put forward in the Notice of Appeal and Factum, save and except the issue as to whether Deputy Judge Nadler should have allowed the defendant’s counterclaim. It is the submission of the Appellant that the trial judge erred in doing so.

4In essence, the appellant contends that since he was not in default under the terms of the student loan, he should have been entitled to various benefits and privileges pursuant to The Lender-financed Saskatchewan Student Loans Regulations. It is the appellant’s submission that the trial judge was wrong to say as he did:

I am prepared to assume without deciding that the bank erred in processing some or all of Mr. Joshi’s applications, or alternatively failed to properly account for some of Mr. Joshi’s payments. In saying this, I wish it clearly understood that I am not making any final determination on this point. It is not necessary for me to do so.

5It is the submission of the appellant that the trial judge was required to make that determination because, if he was not in default under the terms of the student loan, then he was eligible for interest relief, interest capitalization, and loan reduction. All of these, he submits, would have precluded a judgement for the Bank.

6The appellant’s submission fails to take into consideration the interaction between the plaintiff and the trial judge at pages 150 to 151 of the transcript. At that point in the trial, the appellant admitted that he was in default under the loan, regardless of the accounting done by the bank.

THE COURT: What you do is is you take your payments made in that period, in that six-month period and you tell me whether that computes to $390, even taking into account the missing payments, 65.01, which you made, plus 66, which you made, you say you made, which isn’t there, plus 200. Okay, 65.01 plus 66, which you say you don’t owe, we will give you credit for that even though it’s not apparently accounted for, plus 200, equals $331. During that period you were short $60.

MR. JOSHI: That’s right. So the letter should said $66.

THE COURT: I don’t care what the letter says.

MR. JOSHI: So, no, how ….

THE COURT: I am talking to you about whether or not you were in default in that six-month period, that’s all I am saying.

MR. JOSHI: Your Honour, I agree with you. What I am saying, how am I supposed to know whether I should make $66?

THE COURT: Well, presumably if you acknowledge there was an agreement to pay $66 per month, you would know that you would have to pay that for six months. That was her evidence. Are you going to dispute that evidence?

MR. JOSHI: No. I – I already paid 66 - $66, $65, $200, which comes to $331.

THE COURT: Right.

MR. JOSHI: Okay.

THE COURT: Presumably that was for a six-month period.

MR. JOSHI: That was until February.

THE COURT: March.

MR. JOSHI: March is a new application comes in.

THE COURT: No, no, no. October, November, December, January, February, March, that’s six months. You make an application at the end of March.

MR. JOSHI: Yes, for March.

THE COURT: So the point is in that six-month period, you were apparently short sixty odd dollars.

MR. JOSHI: That’s right. But …

THE COURT: All right.

MR. JOSHI: …Your Honour, I still have a right to capitalize that interest.

THE COURT: We’re not arguing about that.

MR. JOSHI: Yeah.

THE COURT: What we are arguing about or just trying to discuss and understand is whether or not in that six-month period, you did or did not fulfil your obligations to the bank. And from what I can see, you were short, that’s all.

MR. JOSHI: I was short. That is – that is not the end of the world. I was short and I had option to capitalize the interest, if I wanted to.

THE COURT: No.

MR. JOSHI: Yeah.

THE COURT: I don’t …

MR. JOSHI: That is what the law says.

7Unfortunately for Mr. Joshi, his position is wrong and the trial judge’s position is correct. Pursuant to s. 27 (2) of the Lender-financed Saskatchewan Student Loans Regulations, a borrower is not eligible for interest relief unless the borrower pays the interest in arrears on the loan or agrees with the lender that the interest in arrears on the loan is to be capitalized into principal. A borrower is entitled to have interest capitalized on no more than two occasions. Mr. Joshi admitted that he had already had his interest capitalized on two occasions. Accordingly, on his own evidence, he was not eligible for the relief that he requests at the heart of his action.

8I have referred to the trial as unorthodox. On a review of the transcript, I have no doubt that both parties feel that the trial judge’s procedures and interventions were exceptional. Be that as it may, I can assure both parties that on the evidence led (then?) and, now, submissions made on appeal, I am confident that all relevant evidence was heard and issues argued before this court.

9For the reasons set out above, the appeal is dismissed. If the parties cannot agree upon costs, the respondent can file written submissions of no more than three pages (exclusive of any offers or Bills of Costs) within the next 45 days. The Appellant shall provide his submissions of a like length within 30 days thereafter.

Lemon J.