Canadian Tire Bank v. Barna, 2019 ONSC 1533

CITATION: Canadian Tire Bank v. Barna, 2019 ONSC 1533

DIVISIONAL COURT FILE NO.: 311/18 DATE: 20190307

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

CANADIAN TIRE BANK

Alexandra Shelley, for the Plaintiff (Respondent in Appeal)

Plaintiff (Respondent in Appeal)

– and –

THOMAS BARNA

Marvin Shifman, for the Defendant (Appellant in Appeal)

Defendant (Appellant in Appeal)

HEARD at Toronto: March 7, 2019

SWINTON J. (Orally)

[1] The appellant appeals from the judgment of Deputy Judge De Lucia dated May 1, 2018. He granted a motion pursuant to Small Claims Court Rule 12.02, struck the appellant’s amended defence and granted judgment on a credit card debt of $10,840.17 plus interest to the respondent.

[2] The appellant first obtained a credit card from the respondent in August, 2013. The credit limit was $200. Between October 2013 and June 2017, there were five credit increases, the last being to $10,200.

[3] In his amended defence, and an affidavit filed for the motion, the appellant claimed the credit increases were not authorized by him. He relied on a regulation under the Bank Act, S.O.R. 2009-257. Section 6(1) provides that an institution may not increase the credit limit on a borrower’s credit card without first obtaining the borrower’s “express consent” to do so. Pursuant to s. 6.2, the simple use of the credit card by the borrower does not constitute express consent.

[4] The respondent filed an affidavit from David Repoody, Senior Associate Risk and Control Manager, in response to the appellant’s affidavit. He stated how each of the five credit increases was authorized by the appellant, either by internet access to the appellant’s account or by telephone access. He also provided a computer document that showed the authorizations. Following each increase, a notation of the new credit limit appeared in the appellant’s monthly statement. No dispute was ever taken with the increases until the amended defence.

[5] Rule 12.02 (1)(c) allows a Small Claims Court judge to strike a defence where it is found to be a “waste of time”. The Deputy Judge found that going to trial, in this case, would be a waste of time.

[6] While his oral reasons could have been much clearer, I am satisfied that he did not err in striking the appellant’s defence and entering judgment pursuant to Rule 12.02.

[7] The appellant argues there is a “triable issue” respecting whether he gave express consent. However, this is not a Rule 20 motion and that is not the test (see Van de Vrande v. Butowsky, 2010 ONCA 230 at para. 19). The Deputy Judge had to determine if the defence had any meaningful chance of success at trial. The respondent provided evidence to show that the appellant had responded to the offers of credit increases and authorized them, either through internet banking or by responding to recorded questions by telephone. That is evidence of express consent that the Deputy Judge was entitled to accept, and he did so on pp. 27-28 of the transcript. This evidence showed that the respondent complied with the regulation under the Bank Act.

[8] Given that compliance, the Deputy Judge concluded that the defence should be struck, as a trial would be a waste of time and cause delay and prejudice to the plaintiff. He then considered the respondent’s evidence to support its claim and gave judgment for the indebtedness.

[9] The appellant has demonstrated no error of law, nor any palpable and overriding error of fact. Accordingly, the appeal is dismissed. Costs to the respondent are fixed at $5,000.00, an amount agreed upon by the parties.

___________________________ swinton J.

Date of Reasons for Judgment: March 7, 2019

Date of Release: March 8, 2019

CITATION: Canadian Tire Bank v. Barna, 2019 ONSC 1533

DIVISIONAL COURT FILE NO.: 311/18 DATE: 20190307

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

CANADIAN TIRE BANK Plaintiff (Respondent in Appeal)

– and –

THOMAS BARNA Defendant (Appellant in Appeal)

ORAL REASONS FOR JUDGMENT

SWINTON J.

Date of Reasons for Judgment: March 7, 2019

Date of Release: March 8, 2019