CITATION: Khan v. T.D. Canada Trust, 2010 ONSC 4832
DIVISIONAL COURT FILE NO.: 09-62
DATE: 20100903
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JUSTICE MICHAEL TULLOCH
BETWEEN:
AMZAD and ERAWATY KHAN
Amzad and Erawaty Khan, on their own behalf
Plaintiffs (Appellants)
- and -
T.D. CANADA TRUST
David Pomer, for the Defendant (Respondent)
Defendant (Respondent)
HEARD: June 18, 2010
[1] This is an appeal by Amzad and Erawaty Khan, who are husband and wife, from the decision of the Honourable Deputy Judge L. Oliver, sitting as a Small Claims Court judge in Brampton on July 20, 2009.
[2] The appellants submit that the trial judge erred by misapprehending the evidence as well as for penalizing the appellants and their agent Ahmad Khan with costs.
[3] For the reasons that follow, the appeal is hereby denied.
Background Facts:
[4] On April 21, 1994, a T.D. Visa application form was made out in the name Erawaty Khan. A signature was affixed to the application which seemingly belonged to Mrs. Erawaty Khan. On May 16, 1994, a T.D. Visa card was issued to Mrs. Erawaty Khan and sent to the address where she and her husband, Mr. Amzad Khan, were living at the time. The T.D. Visa card was subsequently used and an outstanding balance of $4,203.07 was accumulated. The Khans refused to pay this balance. T.D. Canada Trust (“T.D.”) attempted to contact the Khans on several occasions by letter as well as by leaving numerous telephone messages at their residence in order to request payment of the outstanding balance. According to T.D., there was no response from the Khans to the numerous inquiries by T.D. in regards to the outstanding debt. As a result, T.D. instructed their legal counsel to proceed with a joint claim against the Khans. This resulted in T.D. obtaining default judgment against the Khans in February, 1997.
[5] Earlier, the Khans had opened up an account with the T.D., out of which they paid their monthly mortgage payments. According to T.D., because the Khans ignored the bank’s request for payment on the T.D. Visa credit card and because of the subsequent default judgment obtained, the bank initiated a “right to off-set” and withdrew two separate amounts from the Khans’ account and applied them towards the delinquent Visa debt.
[6] The amounts which were withdrawn from the Khans’ joint account were $332.87, withdrawn on October 12, 2006, and $295.84, withdrawn on November 6, 2006. The Khans took issue with T.D.’s actions and claims that the withdrawal of the funds from the account caused their mortgage to go into default. In response, the Khans sued T.D. in the Brampton Small Claims Court for $600.00. The action proceeded to trial where the Khans were represented by an agent, Mr. Ahmad Khan, who happens to be the brother of Mr. Amzad Khan.
[7] At trial, the claim against T.D. was dismissed against the Khans with costs in the amount of $1,500.00. Another $1,500.00 in costs was awarded against the agent, Mr. Ahmad Khan, personally penalizing him because the learned Deputy Judge found the conduct of the agent to be unreasonable throughout the proceedings.
[8] At trial, the appellants chose to proceed by raising technical arguments and did not present Mrs. Erawaty Khan to testify. They took the position that the monies were removed from their account unlawfully, as they were never served and were unaware of the default judgment.
[9] T.D.’s position was that it obtained judgment against the plaintiffs in 1997 by an action in the Small Claims Court, Court file number M85/97, and submitted a copy of a Notice of Default Judgment from the file in evidence. At the commencement of the trial, the Khans’ agent argued that the trial judge should exclude the document from evidence because an original could not be produced by the bank. All parties agreed that attempts over an extended period of time to locate the original file were unsuccessful.
[10] Once it was acknowledged by T.D. that the original file was missing, the Khans took the position that they had never seen the document previously. The trial judge then held the matter down and gave the Khans an opportunity to review the document so that they could proceed with the trial. The court took a half hour break for this review, after which the Khans, through their agent, asked for an adjournment, claiming that they wanted to get to the bottom of the issue with respect to the authenticity of the document.
[11] The trial judge refused to grant the adjournment request, as she found that it was obvious from a review of the file that as of May 2007, when the first settlement conference was held, the existence of the judgment was already in issue. The trial judge found that since the default judgment was in the court file, the document had previously been exchanged, reviewed, and debated.
[12] The trial proceeded and, notwithstanding the fact that the appellants did not present Mrs. Erawaty Khan, the named holder of the credit card, to give evidence, the Khans attempted to discredit the T.D. representative because of her lack of personal knowledge of the Khans’ actual use of the Visa card.
[13] At the request of T.D.’s counsel, the trial judge correctly drew an adverse inference from the failure of Mrs. Erawaty Khan to attend court and testify as to the use, default and collection activity relating to the card.
[14] I do not see any error in the trial judge’s decision in dismissing the appellants’ claim. In fact, based on the evidence at trial, I agree with her decision. I also agree with her findings that the agent’s conduct during the course of the trial was unreasonable in the circumstances. The appellant Mrs. Erawaty Khan, was a material witness to the appellants’ case as the credit card was taken out in her name and she had purportedly signed the application. The card was mailed to her and Mr. Amzad Khan’s residence. The card was used, no payments were made and the bank, in an effort to collect the outstanding debt, made several attempts to contact her at her residence to no avail. The appellants’ failure to respond to the bank triggered the legal action which ultimately resulted in the bank initiating the “right to off-set” process. The trial judge was therefore correct in drawing an adverse inference against the appellants for their failure to call the key material witness to the proceedings.
[15] It is also apparent that the agent for the appellants, instead of proceeding on the merits of the case, utilized procedural tactics in an effort to obfuscate the issues. In the circumstances, I find that the trial judge correctly exercised her discretion in awarding costs against the agent personally. I also find that the amount awarded was reasonable.
[16] Having dismissed this appeal, costs for this appeal are hereby awarded to the respondent in the amount of $1,500.00 to be paid forthwith by the appellants.
TULLOCH J.
Released: September 3, 2010
CITATION: Khan v. T.D. Canada Trust, 2010 ONSC 4832
DIVISIONAL COURT FILE NO.: 09062
DATE: 20100903
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
TULLOCH J.
BETWEEN:
AMZAD and ERAWATY KHAN
Plaintiff (Appellants)
- and –
T.D. CANADA TRUST
Defendant (Respondent)
REASONS FOR JUDGMENT
Released: September 3, 2010