Citation and Court Information

CITATION: Canadian Imperial Bank of Commerce v. Berger, 2015 ONSC 3281

DIVISIONAL COURT FILE NO.: 89/15

DATE: 20150522

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

CANADIAN IMPERIAL BANK OF COMMERCE Respondent/Plaintiff

– and –

JAN BERGER also known as JAN Z. BERGER also known as JAN ZEPOTOCZNY BERGER also known as JANET BERGER also known as JANET Z. BERGER also known as JANET ZEPOTOCZNY BERGER in her personal capacity and carrying on business as FLIGHT NURSE INTERNATIONAL Appellant/Defendant

Ron Aisenberg, for the Respondent/Plaintiff

In Person

HEARD at Toronto: May 22, 2015

Oral Reasons for Judgment

LEDERMAN J. (ORALLY)

[1] The appellant/defendant has initiated an appeal from the summary judgment granted by Spence J. (the “motion judge”) on January 15, 2015 in favour of the respondent/plaintiff CIBC in the amount of $26,232.53.

[2] On this motion the appellant seeks to extend the time to perfect her appeal. The respondent does not oppose this relief. Accordingly, an order will go extending the time to perfect the appeal to July 15, 2015.

[3] In addition, the appellant seeks to adduce fresh evidence on the appeal in the form of:

(a) transcripts of telephone conversations that she had with TD Bank personnel to corroborate her view that the respondent CIBC called the Small Business Credit Line and Guarantee for improper reasons; and

(b) a transcript of discovery of a CIBC officer, Mary D’Alessio.

[4] The test for admitting fresh evidence on an appeal is well established and was recently reiterated by the Court of Appeal in Central City Auto Sales Inc. v. Kalsatos, 2013 ONCA 373, as follows:

(i) the tendered evidence must be credible;

(ii) it could not have been obtained by the exercise of reasonable diligence prior to the initial hearing; and

(iii) the evidence, if admitted, would likely be conclusive of an issue in the appeal.

[5] The transcript of telephone conversations with the TD Bank relate to a Visa account that had been transferred from the CIBC. It does not relate to the Small Business Line of Credit Account, which is in issue in this appeal.

[6] This transcript is not remotely relevant as it deals with a different bank product. It certainly would not be conclusive of any issue on this appeal.

[7] The transcript of discovery could have been ordered and made available to the motion judge, if the appellant thought it was necessary. At the least, she could have asked for an adjournment of the summary judgment motion to ensure it would be available but she did not.

[8] In any event, the appellant wants to refer to the discovery transcript to make reference to the 2006 version of the Small Business Credit Line Agreement but that was already in the motion record before the motion judge.

[9] Further, the motion record contained the appellant’s own summary of the discovery evidence and it is not necessary to adduce the formal transcript as fresh evidence.

[10] For these reasons, the appellant’s motion to adduce fresh evidence is denied.

COSTS

[11] I have endorsed the Motion Record, “For oral reasons delivered, an order will go extending the time for perfection of the appeal to July 15, 2015. The motion to adduce fresh evidence on the appeal is dismissed. I have marked my fiat on a draft order and a formal order may be taken out in those terms.”

___________________________ LEDERMAN J.

Date of Reasons for Judgment: May 22, 2015

Date of Release: June 2, 2015

CITATION: Canadian Imperial Bank of Commerce v. Berger, 2015 ONSC 3281

DIVISIONAL COURT FILE NO.: 89/15

DATE: 20150522

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LEDERMAN J.

BETWEEN:

CANADIAN IMPERIAL BANK OF COMMERCE Respondent/Plaintiff

– and –

JAN BERGER also known as JAN Z. BERGER also known as JAN ZEPOTOCZNY BERGER also known as JANET BERGER also known as JANET Z. BERGER also known as JANET ZEPOTOCZNY BERGER in her personal capacity and carrying on business as FLIGHT NURSE INTERNATIONAL Appellant/Defendant

ORAL REASONS FOR JUDGMENT

LEDERMAN J.

Date of Reasons for Judgment: May 22, 2015

Date of Release: June 2, 2015