COURT OF APPEAL FOR ONTARIO

CITATION: Toronto Dominion Bank v. Khan, 2010 ONCA 320

DATE: 20100430

DOCKET: C51291

Sharpe, Blair and MacFarland JJ.A.

BETWEEN

The Toronto Dominion Bank

Respondent/Plaintiff

and

Azhar Ali Khan

Appellant/Defendant

Mak Sultan, for the appellant

Leigh Ann Sheather, for the respondent

Heard: April 29, 2010

APPEAL BOOK ENDORSEMENT

[1] The Bank obtained summary judgment against the defendeant in the amount of $383,755.00 on a line of credit. The defendant admits that he borrowed the monies and that they are owing.

[2] The line of credit had a limit on its face of $300,000 and was secured by three mortgages against the defendant’s home. The home was sold and two of the mortgages discharged. When the sale funds passed through the defendant’s account, his line of credit was momentarily in a positive balance in his favour. Thereafter, as the defendant states in his affidavit, he was advised by his lawyer “that [he] could use the same as an unsecured Line of Credit”. He apparently followed that advice and, as he says, “utilized the line of credit as a routine.” As noted, he does not contest the outstanding balance claimed by the Bank.

[3] Mr. Sultan argues, however, that when the line of credit balance was paid down, upon the sale of the property, the Bank should have issued – and, he submits, did issue – a new line of credit, and since it has not produced that second document, the Bank is not entitled to rely upon the provision in the Line of Credit giving it the right to demand payment in full at any time.

[4] There is no merit to this argument. Mr. Khan does not suggest in his affidavit that there was ever a second agreement and the Bank’s official was not cross-examined. As Mr. Khan said, he continued to use the line of credit, and its limit was overdrawn. The amounts re admittedly owing, however, and there is nothing to indicate that any other agreement was in force. The Bank is therefore entitled to the judgment it obtained.

[5] The appeal is dismissed. Costs to the respondent fixed in the amount of $6,000 all inclusive.