Court of Appeal for Ontario

CITATION: Bank of Montreal v. Reckless, 2015 ONCA 62

DATE: 20150130

DOCKET: C58887

Hoy A.C.J.O., van Rensburg and Brown JJ.A.

BETWEEN

Bank of Montreal

Respondent

and

Bradley Reckless

Appellant

Counsel:

Bradley Reckless, acting in person

Michael T. Collis, for the respondent

Heard and released orally: January 21, 2015

On appeal from the judgment of Justice John Murray of the Superior Court of Justice, dated April 24, 2014.

ENDORSEMENT

[1] The appellant, Bradley Reckless, appeals from the judgment of Murray J. dated April 24, 2014, which granted summary judgment in favour of the respondent the Bank of Montreal in the amount of $44,178.26 and which dismissed the appellant’s counterclaim, in which he had sought damages of $261,472 against the Bank.

[2] In his brief oral reasons, the motion judge found that the Bank was entitled to repayment of the credit card debt owed to it by the appellant. The motion judge also found that the appellant had not raised any issue requiring a trial in respect of the issues of estoppel or accord and satisfaction asserted by the appellant against the Bank by way of defence and by way of counterclaim.

[3] Ample evidence supported those findings made by the motion judge. The Bank filed evidence which established the debt owed by the appellant on his credit card. The documents entitled “Accord and Satisfaction” sent by the appellant to the Bank and the Bank’s subsequent acceptance of payment made by the appellant did not have the legal effect of altering what he owed to the Bank.

[4] The motion judge was correct in concluding that the appellant could not attempt to dictate unilaterally to the Bank the terms and conditions upon which he would repay his credit card debt.

[5] As for the procedural concerns raised by the appellant, he was not entitled to cross-examine the deponent of the Bank’s affidavit at the motion in the absence of a notice of examination.

[6] Further, Murray J. had the materials before him, including the parties’ legal positions, and from the transcript filed the motion judge had clearly considered the appellant’s materials and the points he was asserting.

[7] For those reasons, the appeal is dismissed.

[8] Costs are fixed in the amount of $6,000, inclusive of disbursements and HST, payable by the appellant to the Bank.

“Alexandra Hoy A.C.J.O.”

“K. van Rensburg J.A.”

“David Brown J.A.”