Court of Appeal for Ontario

Citation: Gyimah v. Bank of Nova Scotia, 2013 ONCA 252

Date: 20130423

Docket: C56150

Judges: Blair, Juriansz and Tulloch JJ.A.

Between:

Anthony Gyimah

Plaintiff (Appellant)

and

The Bank of Nova Scotia, Scotialine Visa, Mike Mckeil and Avin Sharma

Defendants (Respondents)

Counsel:

Anthony Gyimah, in person

Kate Findlay, for the respondents

Heard & released orally: April 9, 2013

On appeal from the summary judgment of Justice Janet Wilson of the Superior Court of Justice, dated October 12, 2012.

ENDORSEMENT

[1] On October 12, 2012, Wilson J. granted summary judgment dismissing Mr. Gyimah’s claim against the Bank defendants and granting the defendants’ counterclaim in the amount of $18,491.23 together with pre-judgment interest and costs.

[2] In the action, Mr. Gyimah claimed substantial damages against the defendants for what he alleges was the wrongful termination of his loan facilities – in particular, a line of credit and a Visa card. The defendants counter-claimed for the amounts outstanding on the loan facilities at the time of cancellation

[3] Mr. Gyimah appeals from the summary judgment awards, arguing that there is a genuine issue for trial both with respect to his claim for damages for mental and emotional stress, financial hardship and damage to his credit rating, as well as with respect to the amounts owing. The defendants cross-appeal against the awards of pre-judgment interest and costs made by the motion judge, arguing that the loan facilities contracts entitled them to more.

[4] We dismiss the appeal in the main action and counter-claim, but allow the cross-appeal with respect to interest. In all of the circumstances, we would not grant the defendants leave to appeal costs.

[5] Mr. Gyimah complains about various actions by the Banks’ representatives, and we note that the motion judge took some of these considerations into account in her order of costs while properly concluding that they could not amount to negligence or breach of contract in the circumstances.

[6] The legal reality is that the Bank defendants have very broad powers under the loan facilities contracts to renew, amend or cancel the loan facilities. In particular, the Personal Credit Agreement Companion Booklet (“PCACB”) (a document incorporated into the contracts) entitles the Bank defendants to require the total balance of the loan to be paid, without prior notice or demand where, amongst other things “anything else happens that [the Bank defendants] believe endangers [the client’s] ability to pay or that [the Bank defendants] believe endangers the property in any way” (PCACB, p. 70). In addition, the PCACB provides that the Bank defendants are entitled to cancel the agreements if the client “[is] not handling [his or her] account in accordance with this agreement or our requirements” [Emphasis added].

[7] The defendants received credible information in the form of a credit report that Mr. Gyimah posed a high credit risk and, indeed, that other financial institutions appeared to hold the same view. They also conducted a review that disclosed some history (albeit dated) of uneven payments by Mr. Gyimah on their own accounts.

[8] Under the provisions of the loan facilities contracts, notwithstanding that the accounts were in good standing at the time, the Bank defendants were entitled to demand updated financial information from Mr. Gyimah (which he at least delayed in providing) and, were entitled to cancel the loan facilities.

[9] We see no error on the part of the motion judge in granting summary judgment dismissing his action and accepting the Banks’ sworn testimony as to the amount outstanding.

[10] In our view, however, the motion judge erred in failing to grant pre-judgment interest at the rate provided for in the contracts (accepted to be 7.5%) and instead imposing the lower rated provided for under the Courts of Justice Act: see Bank of America Canada v. Mutual Trust Co., 2002 SCC 43, [2002] S.C.J. No. 44 (S.C.C.) at paras. 45-46. We therefore allow the cross-appeal and vary the judgment below to provide for pre-judgment interest at the rate of 7.5% per annum.

[11] With respect to the cost cross-appeal, we decline in the circumstances to grant leave to appeal.

[12] The loan facilities contracts entitle the Bank defendants to recover their indemnity costs. In these circumstances, we interpret that to mean substantial indemnity costs. Accordingly, the Bank defendants are entitled to their costs of the appeal and cross-appeal fixed in the amount of $10,342.91 all inclusive.

“R.A. Blair J.A.”

“R.G. Juriansz J.A.”

“M.H. Tulloch J.A.”