Court of Appeal for Ontario
Date: 2017-04-20 Docket: C62766
Judges: Hoy A.C.J.O., Blair and Hourigan JJ.A.
Between
Royal Bank of Canada Plaintiff (Respondent)
and
Nuzhat Ibrahim aka Nuzhat Salam Ibrahim Defendant (Appellant)
Counsel
For the Appellant: John D. Buote and Dan Baker
For the Respondent: Vic Rampersad
Heard and Released Orally: April 20, 2017
On Appeal From: The judgment of Justice S.F. Dunphy of the Superior Court of Justice, dated September 14, 2016.
Endorsement
[1] The appellant, Nuzhat Ibrahim, appeals a judgment granted on a motion for summary judgment in favour of the respondent bank, Royal Bank of Canada, requiring the appellant to pay the respondent $58,126.03 on an outstanding RBC line of credit account.
[2] The appellant argues that the motion judge erred:
by relying on a personal line of credit agreement the appellant executed on June 10, 1988, when the respondent's statement of claim referred to a line of credit agreement executed on November 3, 1994;
by relying on the affidavit evidence of the respondent's affiant, Michael Connolly, who (i) indicated that, in part, he relied "on information of others" without identifying them or the basis of their knowledge, and (ii) appended business records to his affidavit without having provided seven business days' notice of his intention to enter such records into evidence, contrary to s. 35(3) of the Evidence Act, R.S.O. 1990, c. E.23; and
by failing to provide reasons for awarding post-judgment interest at a rate higher than the rate provided for in the Courts of Justice Act ("CJA").
[3] We reject these arguments. There is no basis to interfere with the motion judge's judgment.
[4] In its statement of claim, the respondent claimed the balance owing under "Royal Bank Credit Line account number 55438782-001". It plead that a line of credit agreement the appellant executed on November 3, 1994 set out the details of the loan. However, there was no evidence of an agreement dated November 3, 1994. Rather, Mr. Connolly deposed the appellant in fact executed a personal line of credit agreement on June 10, 1988, and attached a copy of the executed agreement. The agreement bears the account number 55438782-0011. The appellant denied signing an agreement in 1994, but did not deny executing the agreement dated June 10, 1988 and received monthly statements confirming the amounts outstanding under the line of credit.
[5] The respondent's claim was for amounts owing under account number 55438782-001. There is no basis to interfere with the motion judge's conclusion that the 1988 agreement evidenced the agreement between the parties.
[6] While Mr. Connolly indicated that he relied, in part, "on information of others", the facts he deposed to in relation to line of credit number 55438782-001 are substantiated by the business records attached to his affidavit. To the extent that s. 35 of the Evidence Act has any application, the appellant had ample notice of the respondent's intention to rely on these records. Mr. Connolly's affidavit was served on the appellant nearly two months before the motion was heard.
[7] As Cronk J.A. held in Stellarbridge Management Inc. v. Magna International Canada Inc., (2004), 75 O.R. (3d) 263 (C.A.), leave to appeal dismissed, [2004] S.C.C.A. No. 371, at para. 85, lower courts "enjoy a wide discretion under s. 130 of the CJA to allow pre- or post-judgment interest at a rate higher or lower than the rate of interest prescribed by the CJA where they consider it just to do so." The motion judge imposed a rate of interest consistent with the rate provided for in the statements issued to the appellant. It is clear why the motion judge imposed that rate, and not the lower rate provided for in the CJA. There is no basis to interfere with his decision on the basis of insufficiency of reasons.
[8] This appeal is accordingly dismissed. Costs of the appeal are awarded to the respondent in the amount of $6,000, including disbursements and HST, and, consistent with the parties' agreement, shall be paid within 90 days. As further agreed by the parties, the costs below in the amount of $2,500 shall also be paid within 90 days.
"Alexandra Hoy A.C.J.O."
"R.A. Blair J.A."
"C.W. Hourigan J.A."