CITATION: Bank of Montreal v. Demarsh, 2013 ONSC 890
DIVISIONAL COURT FILE NO.: DC-12-0005-00
DATE: 2013-02-06
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
T.D. RAY, J
BETWEEN:
BANK OF MONTREAL
Appellant/Plaintiff
– and –
JAMIE R. DEMARSH aka JAMIE RAYMOND DEMARSH aka JAMIE DEMARSH and 1382791 ONTARIO LTD.
Respondent/Defendant
Allyson Fox, for the appellant/plaintiff
William Procter, for the respondent/defendant
HEARD: February 6, 2013
REASONS FOR DECISION
[1] This is an appeal from the decision of Deputy Judge Rolston dated September 17, 2012, dismissing the Plaintiff/Appellant (“BoM”) claim against the defendant/respondent (“Demarsh”) for $7,017.85. BoM appeals on the grounds that the judge committed a palpable and overriding error by failing to consider evidence in support of BoM’s claim. It further contends that the judge committed an error in law by refusing to permit BoM to question Demarsh again on the second day of trial.
[2] The standard of review is palpable and overriding error regarding issues of fact and correctness on issues of law.[^1]
[3] BoM commenced this action for the outstanding balance including interest on a MasterCard it issued to Jamie Demarsh. Demarsh defended on the ground of the cardholder agreement being unenforceable. The trial took place December 20, 2011 and May 10, 2012. In his reasons of September 17, 2012, the court held that BoM had failed to establish its case as against Demarsh, and dismissed its claim.
[4] BoM’s evidence at trial did not include any witness who had knowledge of the MasterCard transactions but only a witness to establish BoM’s standard processes including the cardholder agreement. Demarsh gave evidence. He denied any knowledge of the MasterCard or the accounts from time to time; and denied that he had ever sought or obtained a MasterCard; or seen a cardholder agreement. His evidence was that the address shown on the account was not his address.
[5] BoM was granted an adjournment from December 20, 2011, to May 10, 2012 to call additional evidence concerning the address issue. BoM did not call further witnesses concerning any of the transactions shown on the MasterCard statement. Its witness was examined in chief and cross-examined. During questioning two exhibits were identified by their witness and admitted into evidence. At the conclusion of the bank’s evidence, it asked to call Demarsh. The judge refused, and said that BoM had already completed its questioning of him. BoM did not press the point.
[6] It is not the function of a reviewing court to retry the case. Great deference must be shown to the fact finder who had the benefit of seeing and hearing the witnesses. This case for the most part turned on credibility. This is clear from the judge’s reasons. The judge was alive to the burden of proof, and concluded that BoM had not satisfied its burden. On the evidence before him, it was open to him to make that finding. I can see nothing that would amount to a palpable or overriding error in regards to his findings of fact.
[7] The issue of the refusal of the trial judge to permit BoM to call Demarsh as a witness is contended by BoM to be an error in law. That refusal might be considered a breach of BoM’s right to lead evidence, and on its face might constitute unfairness. However, that refusal is not fatal unless it can be shown to have created an injustice. The Small Claims Court has a broad jurisdiction in equity and common law; and to make such orders as are considered just and agreeable to good conscience.[^2] The standard of review is therefore whether the unfairness in denying BoM the right to further examine Demarsh offends good conscience and as a consequence is unjust. Nothing was put on the record by BoM as to what or why it wished to further question Demarsh. The request was made by BoM at the end of the examination of its own witness without comment or explanation.
[8] It is submitted on this appeal by BoM that Demarsh had led additional evidence on the second day of trial and it had a right to cross-examine. The transcripts show that at the conclusion of the evidence on the first day of trial, (including cross-examination of Demarsh), BoM sought and obtained an adjournment to lead further evidence. On the second day of trial it called its witness, who was then cross-examined. Demarsh did not testify on the second day of trial. Had that been the case, then BoM would have had a further right of cross-examination. It did not. BoM might also have had a right to call Demarsh as a reply witness. Since nothing was put on the record at the time, it is very unclear why BoM wanted to question Demarsh, or what would have been gained. I fail to see how the refusal by the trial judge to permit BoM to further question Demarsh in the absence of reasons by counsel was unfair.
[9] The appeal is dismissed.
[10] Both parties filed costs outlines. If the parties are unable to agree on costs they may make written submissions of two pages or less within 14 days, and a further 5 days for reply.
Honourable Justice Timothy Ray
Released: February 6, 2013
CITATION: Bank of Montreal v. Demarsh, 2013 ONSC 890
DIVISIONAL COURT FILE NO.: DC-12-0005-00
DATE: 2013-02-06
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Honourable Justice Timothy Ray
BETWEEN:
BANK OF MONTREAL
Appellant/Plaintiff
– and –
JAMIE R. DEMARSH aka JAMIE RAYMOND DEMARSH aka JAMIE DEMARSH and 1382791 ONTARIO LTD.
Respondent/Defendant
REASONS FOR DECISION
Released: February 6, 2013
[^1]: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235.@ paragraphs 8 and 10 [^2]: Courts of Justice Act, RSO 1990, Ch C.43, s 25