Alfano v. CIBC, 2016 ONSC 1979

CITATION: Alfano v. CIBC, 2016 ONSC 1979

DIVISIONAL COURT FILE NO.: DC-15-67-00 DATE: 20160316

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

J. WILSON, C. HORKINS AND PATTILLO JJ.

BETWEEN:

Italo Orrico Alfano

Appellant

– and –

Canadian Imperial Bank of Commerce

Respondent

D.A. Mount, for the Appellant

E.P. Inch, for the Respondent

HEARD at Brampton: March 16, 2016

C. HORKINS J. (ORALLY)

1This is an appeal from the order of Justice Gray dated June 17, 2015, granting the respondent’s motion for summary judgment against the appellant in the amount of $29,437.38 plus pre-judgment interest.

2The respondent issued a credit card to the appellant. An application form was not signed. The amount of $29,437.38 is owed on the credit card. This amount led to the dispute between the parties and the summary judgment motion.

JURISDICTION

3The 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 amount that the motion judge ordered the appellant to pay is below the $50,000 threshold for monetary jurisdiction. Accordingly, this Court has jurisdiction to hear the appeal under section 19(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

GROUND OF APPEAL

4The appellant raises one ground of appeal. He states that the motion judge erred in failing to conclude that there was a triable issue as to whether section 68(1) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A (“CPA”) applied. This section states:

68. (1) Despite section 13, a consumer who applies for a credit card without signing an application form or who receives a credit card from a credit card issuer without applying for it shall be deemed to have entered into a credit agreement with the issuer with respect to the card on first using the card.

(2) A consumer described in subsection is not liable to pay the lender any amount in respect of the credit card received in the circumstances described in that subsection until the consumer uses the card.

5It is the appellant’s position that the credit card “was used for business purposes”. As a result, the motion judge erred in law by relying on section 68 to grant summary judgment in favour of the respondent.

Standard of Review

6The Supreme Court of Canada addressed the standard of review for decisions granting summary judgment in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (at paras. 80-84) (“Hryniak”). Whether there is a genuine issue requiring a trial is a legal question and is reviewable on a correctness standard. Any factual determinations made by the motion judge will attract deference and import a reasonableness standard.

7Other 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) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 is a discretionary. Such a decision is a question of mixed fact and law and attracts deference. This discretionary power used to determine whether there is a genuine issue requiring a trial is a question of mixed fact and law, which should be afforded deference unless there is an extricable error in principle or a palpable and overriding error: see Housen v. Nikolaisen, 2002 SCC 33, 2 S.C.R. 235 (“Housen”).

8The Court of Appeal addressed the application of Housen to the interpretation of an agreement in Plan Group v. Bell Canada, 2009 ONCA 549, [2009] O.J. No. 2829. The appellate court noted that contractual interpretation will usually be reviewed on a standard of correctness as it is essentially a legal exercise: see paras. 24-31.

Analysis

9The parties each filed an affidavit on the motion and the appellant was cross-examined.

10The respondent filed an affidavit from an articling student in the law firm acting for the respondent. The motion judge found that the student had no personal knowledge of the circumstances and as a result, this affidavit was “entirely insufficient” to support the respondent’s motion for summary judgment.

11This left the appellant’s affidavit and his cross-examination. On the basis of this evidence, the motion judge made findings of fact that supported the decision to grant summary judgment in favour of the respondent. These findings of fact are set out below.

12The application for this credit card was made over the phone. The content in the application document revealed that the applicant was the one who applied for the credit card. The application document recorded his full name, correct date of birth, social insurance number and personal address. It also contained the name Orrico under “maiden name.”

13For the purpose of income verification, the application recorded his income, business name (2012746 Ontario Ltd.) and business address.

14In a sworn affidavit, the appellant stated that he did not apply for the credit card and never used it. On cross-examination, the appellant conceded that he used the card for a period of time but only for business purposes, after which he said he no longer used it. He continued to deny that he applied for the credit card.

15Statements of account for the credit card were produced. These statements were always issued in the appellant’s name and not in the name of the company. For a period of time, the accounts were mailed to his home address.

16The appellant argues today that the expenses charged to the credit card, as revealed on the statements, are business expenses. I disagree. Expenses for groceries, restaurant and travel are not unique to a business and are just as likely to be personal.

17Referring to the appellant’s evidence, the motion judge found that there “is strong evidence from which an inference can be drawn that the [appellant] applied for the card.” As a result of these findings of fact, he found that s. 68(1) of the CPA applied. The motion judge consequently granted summary judgment in favour of the respondent for the outstanding balance.

18We find no error by the motion judge. His decision is correct in law. His findings of fact clearly supported his conclusion that the appellant was liable for the balance owed on the credit card pursuant to s. 68 of the CPA. The findings of fact were reasonable and within the principles established by the Supreme Court of Canada in Hryniak. There was and is no genuine issue requiring a trial.

19The appeal is dismissed.

COSTS

20The parties have agreed on costs. The appellant shall pay the respondent its costs of this appeal fixed at $3,000 all inclusive.

___________________________ C. HORKINS J.