CITATION: NAFEES v. Royal Bank of Canada, 2020 ONSC 1026
COURT FILE NO.: DC-18-105
DATE: 20200218
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Osman Nafees, Appellant
AND:
Royal Bank of Canada, Respondent
BEFORE: Tzimas J.
COUNSEL: Osman Nafees, Self Represented
Michelle Cook, Counsel, for the Respondent
HEARD: October 25, 2019
ENDORSEMENT
INTRODUCTION
[1] The defendant appealed the judgment of Deputy Judge Filkin concerning credit card debt. At the hearing of the appeal the defendant conceded the debt associated with his AVION card, but he disagreed with the trial judge’s finding that he was liable for the debt on the VISA Gold Card where he was only listed as a secondary card holder.
[2] The essence of the defendant’s argument was that the trial judge erred in fact and in law in her finding that he was liable for the debts against the VISA Gold Card because the card was in his ex-wife’s name, he never signed any application for that card, it was his ex-wife who added him as a secondary card holder back in 1993 when he was not even a resident of Canada, and that the debts related to his ex-wife and not to anything he incurred or owed.
[3] The plaintiff and respondent to the appeal, The Royal Bank of Canada (RBC) submitted that the defendant’s submissions before this court were nothing more than an attempt to re-litigate the issues that were before the trial judge. Counsel conceded that RBC could not find a copy of the original VISA application. However, the judge considered this deficiency and was satisfied that the defendant received a VISA Gold card, that he used the card as far back as 2004 and that in the result he remained liable for the balance owing on the card right to the present.
[4] I have considered the submissions of the parties, I have reviewed the transcript of the proceeding as well as the trial judge’s oral reasons. As much as the defendant is not happy with the judgment, I regret that I fail to see any palpable and overriding error in the trial judge’s interpretation of the evidence. I understand that the defendant feels hard done by RBC but his own admissions at trial about his use of the Gold card undermined any prospect of success.
[5] I also appreciate that the defendant is facing financial hardship and that what was a relatively modest debt has ballooned to a much greater sum having regard for accumulating interest charges. However, it is not the function of a reviewing court to retry this case. Deference is owed to the trial judge who had the benefit of seeing and hearing the witnesses.
[6] Accordingly, the appeal is dismissed with costs in favour of the Respondent which I fix at a modest $3500.
[7] I acknowledge that this is less than what the Respondent claimed, but the response to the appeal was straight forward and did not engage any complicated issues. Moreover, I am mindful of the overall proportion of costs to the outstanding judgment and accordingly anything more than a costs order of $3500 would be disproportionate to the overall outcome.
Tzimas J.
Date: February 18, 2020
CITATION: NAFEES v. Royal Bank of Canada, 2020 ONSC 1026
COURT FILE NO.: DC-18-105
DATE: 20200218
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Osman Nafees, Appellant
AND:
Royal Bank of Canada, Respondent
BEFORE: TZIMAS J.
COUNSEL: Osman Nafees, Self Respresented
Michelle Cook, Counsel, for the Respondent
ENDORSEMENT
Tzimas J.
Date: February 18, 2020