CITATION: Oakley v. Royal Bank of Canada, 2013 ONSC 145
COURT FILE NO.: DC-12-0021-00
DATE: 20130108
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SEAN OAKLEY
Mark Silverthorn, for the Appellant
Appellant
- and -
ROYAL BANK OF CANADA
Gregory W. Bowden, for the Respondent
Respondent
HEARD: December 17, 2012
REASONS FOR JUDGMENT
[On appeal from the decision of Deputy Judge D.B. Holub, dated February 23, 2012]
André J.
[1] This is an appeal of the judgment of Holub J. wherein he held the appellant to be personally liable for $24,824.50 in cheques and charges drawn on an RBC credit card issued in his name and a company he managed. The appellant contends that absent any signed credit card application or a credit card agreement signed by the appellant there was no basis in law for the trial judge to have held him liable for the amount in question. The appellant also submits that on account of the trial judge’s rulings throughout the trial, a reasonable person would conclude that the trial judge was biased against him. For the reasons outlined below, the appeal is dismissed.
EVIDENCE AT TRIAL
[2] Ms. Demello, an employee of the respondent company, testified that the applicant applied for and received a credit card in 2006. The card was made out in the names of Pharmathletica Inc. and Sean Oakley. The terms of agreement included the stipulation that the two were jointly and severally liable for any expenses incurred through the use of the card. The employee identified four cheques, including one totalling $16,700, drawn on the credit card and a number of other charges which totalled $24,824.50. The cheques were all signed by the appellant, a fact he confirmed when he testified during the trial. Ms. Demello testified that the appellant activated the credit card on January 26, 2006, a fact the appellant did not dispute although he denied any memory of having done so. Ms. Demello testified that she could not locate a signed application for an RBC Visa credit card signed by the appellant. This meant that the application was either signed by the appellant and lost by the respondent or that the appellant never signed the application in the first place.
[3] The respondent also relied on affidavit evidence from Ms. Demello as part of its case against the appellant. The affidavit, which was filed on consent, indicated in paragraph four that the Visa card was sent to Mr. Oakley and Pharmathletica Inc. with a form letter that advised the cardholder to review the Visa agreement.
[4] An agreement used by the respondent in 2011 was tendered and marked as Exhibit A in the trial. It mirrored the agreement which was sent to the appellant with one exception. The agreement marked as Exhibit A makes reference to an “authorized user” while there was no such designation in the agreement in existence when the credit card was issued to the appellant. The 2006 agreement provided that the signatory of a Visa card application or whose name was on the Visa account, or to whom the Visa card was issued, are individually and severally responsible for amounts owing on the Visa account. The agreement also provided that the signing, activation or use of the Visa card by the signatory of a Visa card application, or someone whose name is on the card or on the Visa account, signified that the cardholder received and read the agreement and had agreed to all its terms. Ms. Demello was not cross-examined on the terms of this agreement that was in effect in 2006, nor was she ever challenged on her affidavit evidence to the effect that the 2011 agreement was almost identical to the 2006 agreement, except for the designation, “authorized user.”
[5] An issue arose at the conclusion of the respondent’s case. The appellant’s counsel indicated at the commencement of the trial that he intended to call the appellant as a witness. At the conclusion of the appellant’s case, the appellant’s counsel indicated that he would not be calling the appellant after all. The respondent’s counsel immediately indicated his intention to call the appellant as a witness. The appellant’s counsel objected. He concluded that the appellant’s counsel had not undertaken to call the appellant as a witness; he had merely expressed an intention to do so. The trial judge nevertheless permitted counsel for the respondent to question the appellant. The trial judge also allowed the appellant’s counsel to cross-examine his client, over the objections of counsel for the respondent.
[6] The appellant testified that he was one of the managers of Pharmathletica. He could not explain how he was paid by the company. He acknowledged that he signed cheques on behalf of the company including one for $16,000. He could not recall on whose behalf he had signed the cheque. He had no recollection of using the cheque for any personal expenses. He admitted to owning a car and buying gas, but had no recollection of using the Visa card for gas purchases although the affidavit evidence from Ms. Demello showed that it had been. He also had no recollection of activating the card in January 2006. He recalled using a Visa card with his name on it, but could not recall how often he had done so. He conceded that there were charges on the Visa card issued in his name and that he was the only one who had used the card for credit purchases. He had no recollection of reading the Visa agreement. He recalled signing Visa cheques to pay company debts and agreed that he was the only person associated with Pharmathletica Inc. to have had that authority.
TRIAL JUDGES DECISION
[7] The trial judge found as a fact that the outstanding credit card balance of June 24, 2012 was $24,824.50. He concluded that the evidence about the activation of the card and the terms of the agreement which existed in January 2006, made the appellant liable for the balance on the credit.
[8] The trial judge held that the respondent’s failure to produce a signed credit card application or a signed credit card agreement was not fatal to the respondent’s case. He accepted Ms. Demello’s testimony that the business records she reviewed led her to believe that Mr. Demello had activated the card. Secondly, he noted that the appellant had not denied this; he merely claimed that he could not recall doing so. The trial judge then held that the agreement, marked as Exhibit A in the trial, was substantially the same as that which was sent to the appellant, based on Ms. Demello’s evidence. That agreement made Mr. Oakley jointly and severally liable for debts incurred through the use of the RBC Visa credit card. The trial judge found that liability flowed from Mr. Oakley’s activation and use of the card both of which signified that he had received and read the agreement and had accepted all its terms.
GROUNDS OF APPEAL
[9] The appellant submits that the facts of this case give rise to the following grounds of appeal.
a. Did Holub J. err in permitting the plaintiff to re-open the plaintiff’s case and call an additional witness after the close of the plaintiff’s case?
b. Did Holub J. err in misapprehending the evidence such that there was no factual basis to support a conclusion that the defendant Sean Oakley was personally liable to the plaintiff for damages for breach of contract?
c. Did Holub J. err in conducting the trial in such a manner that would give rise to the reasonable apprehension of bias in favour of the plaintiff?
d. Did Holub J. err in conducting the trial in such a manner that the defendant Sean Oakley did not receive a fair trial?
A. The decision to permit the respondent to re-open its case against the plaintiff
[10] The Court requires the parties to litigation to bring forward their whole case. See Henderson v. Henderson (1843), 3 HARE 100 at 114-115, 67 E.E. 3/3. In both civil and criminal matters, the Crown or plaintiff must produce and enter in its own case all clearly relevant evidence it has. See R. v. Krause, 1986 39 (SCC), [1986] 2 S.C.R. 466 at 473 (S.C.C.)
[11] On the other hand, a trial judge has the discretion to permit a plaintiff to re-open its case. This discretion however, must be exercised judicially. It must involve a scrupulous balancing of the accountability of counsel for decisions regarding the prosecution of its case and the interests of justice. See Sybongco- Rimando Estate v. Lee (1999), 43 C.C.C. (4th) Ont. S.C.J. at 199).
[12] The decision of a trial judge to allow a plaintiff to reopen is discretionary and will generally be accorded deference by an appeal court. See R. v. Hall (1999) 634, para. 3. The ambit to re-open becomes narrower as the trial progresses because of the increasing likelihood of prejudice. See R. v. G. (S.G.) (1997), 116 C.C.C. (3d) SCC.
[13] At the start of this trial, appellant’s counsel declared an intention to call his client. Counsel for the respondent appeared to have relied on this representation in his decision to only call Ms. Demello on his case against the appellant. Counsel for the respondent advised the court of his intention to call the appellant as a witness as soon as counsel for the appellant advised the court that he would not call his client as a witness.
[14] Civil Rules of Procedure as opposed to Criminal Rules of Procedure permit the prosecuting party to call a defendant as a witness in a court matter. The trial judge exercised his discretion to allow the respondent to re-open its case because he concluded that the counsel for the respondent had clearly misinterpreted his counterpart’s statement at the opening of the trial as an undertaking to call the appellant as a witness. In other words, counsel for the respondent decided to call only one witness rather than two, because he erroneously concluded that given his opponent’s representation about calling Mr. Oakley as a witness, there would have been no need for him to do likewise. It is therefore clear that the trial judge decided to permit the respondent’s lawyer to call the appellant as a witness in the interests of justice.
[15] Additionally, there was little prejudice to the appellant flowing from the decision to allow the plaintiff to re-open its case. The testimony of the appellant did not assist the plaintiff in establishing a prima facie case against him. Indeed, he had no recollection of activating the credit card and denied using it for personal expenses. The evidence of his liability stemmed largely from the testimony of the respondent’s sole witness.
[16] Furthermore, the trial judge accorded counsel for the appellant an opportunity to cross-examine his own client. The appellant was therefore not prejudiced by the trial judge’s decision to allow the respondent to re-open its case against the appellant.
B. Was there a factual basis for a conclusion that the defendant Sean Oakley was personally liable for a breach of contract?
[17] The appellant is correct that there is no direct evidence that he signed a contract that made him personally liable for an RBC Visa credit card. Nor was there evidence of a standard RBC Visa credit card agreement used by the plaintiff in January 2006.
[18] However, there was circumstantial evidence that the applicant not only activated the credit card issued to him in January 2006 but was bound by an agreement that made him personally liable for the balance owed on the account through using the card.
[19] Ms Demello testified that the bank records entered as an exhibit on consent indicated that Ms. Demello had activated the card on January 26, 2006. The appellant never disputed this; he merely claimed that he did not recall doing so. Ms. Demello testified about four cheques drawn on the Visa credit account in the appellant’s name and that of his company. She identified the signature on the cheques as that belonging to the appellant. He did not dispute this. On the contrary, he testified that he was the only one who had signing authority on behalf of the corporation.
[20] Secondly, Ms. Demello produced an agreement that she indicated was the same as that sent to the appellant in 2006 with one variation. The 2006 agreement stipulated that the person who either activated the card or whose name appeared on it was individually or severally liable for any unpaid balances. Ms. Demello was not challenged on her affidavit evidence on that point. Her testimony on this issue and on the activation of the credit card on January 26, 2006, constitute evidence of the appellant’s liability for unpaid balances on the credit card account, despite the paucity of direct evidence that he had signed a credit card agreement making him personally liable for unpaid balances on the account.
C. Did Holub J. err in conducting the trial in such a manner that would give use to the reasonable apprehension of bias in favour of the plaintiff?
[21] In R. v. R.D.S., [1997] S.C.R. 484, paragraph 3 (S.C.C.) the Supreme Court of Canada held that:
[A]pprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. [T]hat test is what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that (the decision maker), whether consciously or unconsciously, would not decide fairly.
[22] The appellant bases this allegation of bias on the trial judge’s rulings regarding the admissibility of evidence and his reliance on the May 2011 agreement in his finding that the appellant was personally liable for the unpaid RBC Visa card balance.
[23] With great respect, I disagree. In the court’s view, it was appropriate for the trial judge to place some weight on the 2011 agreement, given Ms. Demello’s affidavit evidence that it was the same as that sent to Mr. Oakley in 2006 except for the category of “authorized user”. That evidence was not challenged. Secondly, counsel for the appellant objected to the admissibility of the document which confirmed that the appellant had activated the card. Despite the insistence of counsel for the respondent that he had disclosed the document to counsel for the appellant, the latter maintained that he had not received it. The trial judge proceeded to grant a recess to enable counsel to discuss the matter further. Upon resumption of the proceedings, counsel for the appellant advised the court that he had no further objection to the admissibility of the document. The trial judge later sided with the appellant’s counsel in his contention that he had not undertaken to call the appellant as a witness. He later permitted him to cross-examine his own client, over the objections of counsel for the respondent.
[24] In the court’s view a reasonable and right-minded person, viewing the trial judge’s decision realistically, practically and impartially, would conclude that the trial judge’s actions reflect a scrupulous desire to be even handed even if he ultimately ruled against the appellant. To that extent, this ground of appeal must fail.
D. Did Holub J. conduct a trial in a manner that denied the appellant his right to a fair trial?
[25] In the Court’s view, he did not. Rulings made against the appellant, during the trial, do not, in and of themselves, give rise to a reasonable apprehension of bias. It was within the trial judge’s discretion to make the findings about the admissibility of the documentary evidence that the appellant activated the RBC credit card in January 2006 and to permit the respondent to re-open its case. It was also within the discretion of the trial judge, in his reasons for judgment, to find that the appellant was extremely evasive about his relationship with Pharmathletica. Indeed, it appeared that the appellant was suffering from selective amnesia when he testified that he recalled signing Visa cheques on behalf of the company but had no recollection of using the card for personal expenses.
[26] There is no basis, upon a review of the evidence, to find that the appellant had been denied a fair trial.
[27] For the above reasons, the appeal is denied. Given the above decision, there is no need to decide the issue raised by the respondent on his cross-appeal.
[28] I invite counsel to make written submissions with respect to costs of this appeal.
André J.
Released: January 8, 2013
CITATION: Oakley v. Royal Bank of Canada, 2013 ONSC 145
COURT FILE NO.: DC-12-0021-00
DATE: 20130108
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SEAN OAKLEY
Appellant
- and –
ROYAL BANK OF CANADA
Respondent
REASONS FOR JUDGMENT
André J.
Released: January 8, 2013