CITATION: Ahmad v. ICICI Bank Canada, 2016 ONSC 2692
DIVISIONAL COURT FILE NO.: 357/14 DATE: 20160421
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
IMTIAZ AHMAD
Plaintiff
(Appellant)
– and –
ICICI BANK CANADA
Defendant
(Respondent)
In Person
Lea Nebel, for the Defendant (Respondent)
HEARD at Toronto: April 21, 2016
M. LINHARES DE SOUSA J. (ORALLY)
[1] This is an appeal from the decision of Deputy Judge De Lucia of the Small Claims Court dated July 9, 2014. The Deputy Judge dismissed the appellant’s claim against the respondent for payment in the amount of $4,350.00. The appellant had alleged that the respondent made unauthorized withdrawals from his bank account totalling $4,350.00 and that he never received those funds from the Bank.
[2] The Deputy Judge found that, on the basis of all of the evidence before him, including the objective evidence of video tapes, withdrawal slips, safety deposit initialled documents and bank transaction records, as a fact that it was the appellant who attended the bank on the two days in question and withdrew the funds in question.
[3] The Deputy Judge stated that it was the appellant that bore the burden of proof to prove his case on a balance of probabilities. On the basis of the evidence mentioned earlier, the Deputy Judge concluded that the appellant had not met the burden of proof and dismissed the claim. The appellant did not address the standard of review on this appeal. His appeal material appears to be a recitation and a repetition of his evidence given at trial. In his material, he does state that the Deputy Judge erred.
[4] The standard of review to be applied on this appeal is not in dispute. On questions of law, the standard is that of correctness. On questions of fact, the standard is palpable and overriding error (see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S. C. R. 235). With respect to findings of fact, an appellate court may substitute its own view of the evidence and draw its own inference of fact where the trial judge is shown to have committed a palpable and overriding error or make findings of fact that are clearly wrong, unreasonable or unsupported by the evidence.
[5] Furthermore, an appellate court will not interfere with the trial judge’s finding of fact unless it can plainly identify the imputed error and that error is shown to have affected the result. (see H. L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S. C. R. 401).
[6] I can find no error of law in the Deputy Judge’s decision who applied the correct civil onus of proof. Furthermore, I can find no palpable and overriding error in his appreciation of the evidence and findings of fact which were clearly supported by the evidence before him.
[7] The appellant has submitted to this Court that he did not receive a fair hearing at trial, in that, he was not permitted to speak. The transcript of the trial, which I have read in its entirety, shows otherwise.
[8] The trial judge gave the appellant a full opportunity to present his evidence and showed patience and courtesy towards him throughout. The judge also assisted the appellant in the cross examination of the respondent’s principal witness. The appellant had an interpreter throughout the trial and was able to submit written submissions at the end of the trial. This ground of appeal, that the appellant was not given a fair trial, is without merit and not substantiated.
[9] For these reasons, the appeal is dismissed.
COSTS
[10] I have endorsed the Appeal Book, “The respondent has been substantially successful on this appeal and is awarded its costs in the amount of $1,500.00.”
____________________________ M. LINHARES DE SOUSA J.
Date of Reasons for Judgment: April 21, 2016
Date of Release: April 22, 2016
CITATION: Ahmad v. ICICI Bank Canada, 2016 ONSC 2692
DIVISIONAL COURT FILE NO.: 357/14 DATE: 20160421
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
IMTIAZ AHMAD
Plaintiff
(Appellant)
– and –
ICICI BANK CANADA
Defendant
(Respondent)
ORAL REASONS FOR JUDGMENT
M. LINHARES DE SOUSA J.
Date of Reasons for Judgment: April 21, 2016
Date of Release: April 22, 2016