COURT OF APPEAL FOR ONTARIO

DATE: 20000526

DOCKET: C32877

RE: NARISSA SAWH (Plaintiff/Appellant) v. CANADIAN
IMPERIAL BANK OF COMMERCE (Defendant/Respondent)

BEFORE: OSBORNE A.C.J.O., WEILER and CHARRON JJ.A.

COUNSEL: Joseph Markin,
for the appellant

Allan D. Weiss,
for the respondent

HEARD: May 24, 2000

On appeal from the decision of Mr. Justice Cullity dated
September 14, 1999

E N D O R S E M E N T

[1] The appellant appeals from the dismissal of her application
for declaratory relief and other relief in relation to the
alleged wrongful acts of the respondent. The appellant contends
that the respondent bank acted negligently and to her detriment
when it froze her account and withdrew monies to cover an
overdraft in an account held jointly by the appellant and her
mother.

[2] The appellant argues firstly that the trial judge erred in
failing to deal with the issue of non est factum in relation to
her knowledge of the terms of the Personal Account Agreement.
Counsel concedes that the matter was not raised as an issue in
the factum or in oral argument before the applications judge but
submits that it was nonetheless incumbent upon the applications
judge to deal with this matter because it arose from the
evidence. The applications judge noted in his reasons that if the
appellant had relied on an alleged ignorance of the terms of the
agreement, “a trial of the issue would have probably been
required”.

[3] We do not accept the appellant’s argument. The appellants’
bare allegations that the signature card was signed in a hurry
and that no disclosure material or account agreement was given at
the time do not necessarily support a plea of non est factum.
This is particularly so where the signature card itself
contradicts this allegation. Based on this evidence, it was not
incumbent upon the applications judge to deal with this issue on
his own motion. We note further that the issue is not raised in
the notice of appeal or in the factum on this appeal.

[4] The appellant’s main argument on the appeal is that the
applications judge erred in failing to find that the bank was
negligent. In the circumstances of this case we agree with the
applications judge that the bank was not negligent.

[5] There is no suggestion that, in the absence of negligence on
the part of the bank, the appellant, a customer of the bank, is
not bound by the terms of her agreement with the bank to
indemnify it for the overdraft in the joint account. Hence, there
is no basis to grant the remedy sought and the applications judge
was correct in dismissing her application.

[6] The appeal is dismissed with costs fixed at $1,500.

(signed) "C. A. Osborne A.C.J.O."
(signed) "K. M. Weiler J.A."
(signed) "Louise Charron J.A."