CITATION: Canadian Imperial Bank of Commerce v. Berger, 2015 ONSC 7728
DIVISIONAL COURT FILE NO.: 89/15 DATE: 20151209
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
R.S.J. GORDON, MOLLOY AND SANDERSON JJ.
BETWEEN:
CANADIAN IMPERIAL BANK OF COMMERCE
Respondent/Plaintiff
– and –
JAN BERGER a.k.a. JAN Z. BERGER a.k.a. JAN ZEPOTOCZNY BERGER a.k.a. JANET BERGER a.k.a. JANET Z. BERGER a.k.a. JANET ZEPOTOCZNY BERGER in her personal capacity and carrying on business as FLIGHT NURSE INTERNATIONAL
Appellant/Defendant
Ron J. Aisenberg, for the Plaintiff
Jan Zepotoczny Berger, In Person
HEARD at Toronto: December 9, 2015
MOLLOY J. (ORALLY)
A. Introduction
[1] This an appeal from Spence J. dated January 15, 2015, granting the respondent/plaintiff’s motion for summary judgment against the appellant/defendant and ordering the appellant to pay the respondent the amount of $26,232.53 owing under her small business line of credit.
[2] The overall questions of this Court is whether the motion judge erred in finding that there was no genuine issue requiring a trial in this case. The discrete issues can be stated as follows:
(i) Was the motion judge correct in finding that CIBC had a contractual right to demand repayment of the line of credit?
(ii) Did the motion judge err in finding that Ms. Berger had no defence to the claim and in particular, did the appellant’s reliance on communications by CIBC’s employee afford a defence?
(iii) Does CIBC’s treatment of Ms. Berger in light of her personal circumstances, amount to being unfair or unjust such that it gives rise to a genuine issue requiring trial?
(iv) Is the appellant liable to indemnify the respondent for the costs in this action as per the Costs Indemnification clause of the credit terms?
B. Jurisdiction
[3] The decision to grant summary judgment is a final order of the Superior Court of Justice: Chowdhury v. Knight, [2005] O.J. No. 1409 (Div. Ct.). The motion judge ordered the appellant to pay $26,232.53 which is below the $50,000 threshold for monetary jurisdiction. Accordingly, this Court has jurisdiction to hear the appeal under s.19(1)(a) of the Courts of Justice Act.
C. Standard of Review
[4] The Supreme Court of Canada addressed the standard of review for decisions granting summary judgment in Hryniak v. Mauldin, [2014] S.C.C. 7 (at paras. 80-84), whether there is a genuine issue requiring a trial is a legal question, reviewable on a correctness standard, while any factual determinations made by the motion judge will attract deference and imports a reasonableness standard.
[5] Other questions of law involved in a summary judgment motion ought to be reviewed on a correctness standard. Whether to exercise the new fact-finding powers at Rule 20.04(2.1) is a discretionary decision that is a question of mixed fact and law and attracts deference. When these powers are used to determine whether there is a genuine issue, it is a question of mixed fact and law and should be afforded deference unless there is an extricable error in principle or a palpable and overriding error: Housen v. Nikolaisen, [2002] S.C.C. 33.
[6] The Court of Appeal addressed the application of Housen to the interpretation of an agreement in The Plan Group v. Bell Canada, [2009] ONCA 548, noting that contractual interpretation will usually be reviewed on a standard of correctness as it is essentially a legal exercise: see paras. 24-31.
D. Analysis
(i) Did CIBC Have a Contractual Right to Demand Repayment of the Line of Credit?
[7] The motion judge held that the CIBC was entitled under its agreement to demand repayment of any amounts outstanding under the line of credit and to cancel any unused portion upon giving thirty days’ notice. That is a correct interpretation of the bank’s rights under the agreement. Accordingly, there is no basis to interfere with the motion judge’s conclusion as to the contractual right to demand repayment: see CIBC v. Bensmith, Court File No. CV-05-003243-SR, unreported decision of Speyer J., May 26, 2006; CIBC v. Romas, 2010 ONSC 4492.
[8] The fact that the motion judge relied on an unreported decision of a Superior Court Judge is not a matter that undermines his decision. Every decision of this Court is of the same precedential value regardless of whether it is published by or any other reporting service. The Court’s decisions are public documents. The decision in question was directly relevant and it dealt with the same provision in the CIBC line of credit agreement as is relied on in this case.
[9] The motion judge is not required to list every precedent that informs his decision. There can be no question that the motion judge was fully aware of the Supreme Court of Canada decision in Hryniak v. Mauldin. His decision is in conformity with Hryniak regardless of whether he specifically cited it.
(ii) Defence Based on Communications from Bank Employees
[10] Ms. Berger had argued that she had been led to believe in phone conversations with bank representatives that as long as she continued to make payments as she had been, the bank would not revoke her line of credit. The evidence of Ms. Berger on this point was set out in her supplementary factum as follows:
The defendant reasonably relied on being told by representatives of the plaintiff bank that unless two consecutive months’ payments were missed, the plaintiff bank would not close the account.
[11] The motion judge held that the alleged communications did not constitute a defence. He gave a number of reasons for that conclusion including the following:
(i) Even if there had been an undertaking from the bank with the force of a contract, which he found there was not, there was no consideration for it and it was not binding on the bank;
(ii) The requirements for promissory estoppel were also not met. In particular, there was no clear and unambiguous promise and no reliance detrimental or otherwise by Ms. Berger.
[12] These findings by the motion judge are correct in law and unassailable on the evidence before him. They are a complete answer to the defence raised.
(iii) Alleged Unfair and Unjust Treatment by CIBC
[13] Ms. Berger claims that the CIBC treated her unfairly and that this constitutes a defence to the claim. The motion judge held as follows:
The Defendant raises a number of issues about the manner in which the Bank has dealt with her, which she confides has not been fair or just. The issue for the Court in this hearing is whether these submissions raise a genuine issue requiring a trial in order to decide the claim of the Bank. None of the matters raised by the Defendant creates an issue with respect to the facts on which the Plaintiff relies or the analysis of the law which the Plaintiff submits based on those facts, so there is no genuine issue requiring a trial.
[14] We agree. It is clear that the monies are owed. None of the alleged acts of the bank have any impact on that. There is no obligation to agree to a repayment plan. Any disability the defendant may have is not a defence to her obligation to repay her legal debt. Likewise, even if the bank did not properly comply with access to information requests, that does not provide a defence to a simple claim on a debt.
(iv) Defendant’s Responsibility for Costs
[15] The defendant did not seek leave to appeal the motion judge’s cost award of $20,000.00, nor did she raise the issue in her factum. The only issue she did raise with respect to costs was a term in the credit line agreement which she interprets to mean that the bank does not have an indemnity for its costs where the bank has caused those costs through its own negligence or misconduct. There is no merit in that decision based on the facts before us or before Spence J.
[16] In any event, the motion judge did not award a full indemnity with respect to the bank’s costs under the agreement. His cost award was made under the Rules based on the time and expense incurred by the successful party, the CIBC, which were well in excess of the $20,000.00 cost award Spence J. made.
(v) No Genuine Issue for Trial
[17] We find no error by the motion judge. His decision is correct in law and to the extent he made findings of fact, they were reasonable and within the principles established by the Supreme Court of Canada in Hryniak v. Mauldin. There is no genuine issue requiring a trial.
(vi) Constitutional Question
[18] In the appeal before us the defendant challenged the constitutional validity of various of the Rules of Civil procedures and the decision of the motion judge, citing sections 12 and 15 of the Canadian Charter of Rights and Freedoms. Section 12 of the Charter, the right to be free from cruel and unusual punishment, relates to criminal matters and has no application to civil proceedings and civil rules of practice. Section 15 of the Charter relates to a person’s right to equality under the law without discrimination. Disability is a protected ground of discrimination under s.15. However, there is no evidence of any unequal application of the law to Ms. Berger. She has not been disadvantaged by the rules themselves. Most of the misconduct about which she complains on this issue relates to actions by the bank which she perceives have had an adverse impact on her as a person with a disability. The Charter of Rights and Freedoms applies to government actions and legislation. It does not apply to actions of private individuals or corporations.
[19] We see no basis for Ms. Berger’s claim that the decision of the motion judge is unconstitutional. She owes money to the bank. The bank is entitled to repayment regardless of whether or not she has a disability. That may be a cruel reality but it is nevertheless a reality. There is no constitutional protection for this eventuality.
E. Conclusion
[20] Accordingly, this appeal is dismissed.
Costs
[21] The bank has been wholly successful on every issue raised and is entitled to the costs. We are, however, awarding the amount on a partial indemnity basis of $7,000.00.
___________________________ MOLLOY J.
R.S.J. GORDON
SANDERSON J.
Date of Reasons for Judgment: December 9, 2015
Date of Release: December 14, 2015
CITATION: Canadian Imperial Bank of Commerce v. Berger, 2015 ONSC 7728
DIVISIONAL COURT FILE NO.: 89/15 DATE: 20151209
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.S.J. GORDON, MOLLOY AND
SANDERSON JJ.
BETWEEN:
CANADIAN IMPERIAL BANK OF COMMERCE
Plaintiff
– and –
JAN BERGER a.k.a. JAN Z. BERGER a.k.a. JAN ZEPOTOCZNY BERGER a.k.a. JANET BERGER a.k.a. JANET Z. BERGER a.k.a. JANET ZEPOTOCZNY BERGER in her personal capacity and carrying on business as FLIGHT NURSE INTERNATIONAL
Defendant
ORAL REASONS FOR JUDGMENT
MOLLOY J.
Date of Reasons for Judgment: December 9, 2015
Date of Release: December 14, 2015