NEWMARKET COURT FILE
COURT FILE NO.: CV-13-117114-SR
DATE: 20140620
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Preferred Credit Resources Limited, Plaintiff
AND:
Mike Pecar, aka Mike D. Pecar, aka Michael Pecar, aka Michael D. Pecar, aka Michael Daniel Pecar, Defendant
BEFORE: THE HON. MR. JUSTICE P.H. HOWDEN
COUNSEL:
R. Waserman, Counsel for the Plaintiff
Mike Pecar, Self-represented
HEARD: June 12, 2014
ENDORSEMENT
[1] I have considered the submissions of counsel and from Mr. Pecar. This is another case of a sale of receivables, in this case from the MBNA, a division of TD Canada Trust, to the plaintiff.
[2] The plaintiff relies on the standard Credit Card Agreement mailed to the defendant Mike Pecar at 162 Queens Quay East, Toronto, M5A 1B4 immediately after it was arranged. It established a MasterCard account for the defendant’s benefit. There is no signature on the agreement nor is there any space for signatures. The agreement is sent to the payor’s address. It contains a provision that Mr. Pecar promises to “pay us the amounts of all credit you obtain, which includes all Purchases and Cash Advances. You also promise to pay us all the amounts of finance charges, fees, and any other transactions we charge to your account”. A further provision requires any person who asks for, accepts or guarantees the account are individually and together responsible for any total outstanding balance.
[3] Accounts showing the charges monthly, interest and total balance owing was sent to the defendant commencing in the month after the records of the MBNA bank show that Mike Pecar activated the account by a call from his home number on August 16, 2005. The call was made first by cellphone but when the caller was told to phone from his home number, he did so a minute later. Monthly statements were sent to Mike Pecar personally from September 2005, a month after activation. Copies of the monthly statement with Mr. Pecar’s mailing address on each, identified by the credit report as his addresses, were filed for the periods October 2005 to October 2006; January 2009 to June 2011; June 2011 to July 2013.
[4] On July 15, 2013, he was sent notice of the assignment of receivables including this alleged debt. The balance owing by then was $40,240.74. On the account statement to Mike Pecar from January 2009 to June 2011, the name Dockshop or The Dock Shoppe appears first as part of the address and in the more recent statements directly under the name Mike Pecar.
[5] On a cheque dated February 25, 2012, drawn on his personal account showing the same address as the more recent statements were sent, he is identified as Mike Pecar with the words The Dock Shoppe under his name, just as an the more recent statements. The cheque was negotiated. The payee on the cheque was The Dock Shoppe and it was for $37,000. On a search of the property identified as Mr. Pecar’s home, it was discovered that until May 2014, after Mr. Pecar had been served with the statement of claim and after this motion for judgment was brought, a 50% interest in the property had been transferred to Joseph Pecar as tenants in common. The address for the transferee is the same as the defendant’s. The transfer lists the consideration as $120,000 comprised of half cash and half mortgage. No Mortgage appeared on title.
[6] At no time until Mr. Pecar filed his affidavit in response to this motion did he question his liability for the MasterCard account to the bank or the plaintiff assignee.
[7] Mike Pecar filed an affidavit on this motion. He swears that he is the sole shareholder, director and officer of The Dock Shoppe Inc. which formerly carried on business at one of the addresses to which the account statements were sent to Mike Pecar and The Dock Shoppe. He swears that all credit received from MBNA was extended to the company and all payments on the credit account were made by The Dock Shoppe Inc. He says that the address in Uxbridge is a place he has not lived at since 1986. He identifies himself on the affidavit as being of the Town of Oakville. He also swears that the Toronto Dominion Bank would be well aware of the distinction between him and The Dock Shoppe and that he has never done business with the bank or MBNA in his personal capacity.
[8] Attached to the affidavit filed by the plaintiff and sworn June 9, 2014, is a letter from Jamie Laurin of MBNA. He states that the account was opened by Mr. Pecar personally and a MasterCard credit card was issued to him; it was not opened as a business MasterCard account. MBNA is a recent acquisition by Toronto Dominion Bank.
[9] The defendant filed a case as authority for the proposition that where the defendant swears he is on the credit account as an officer of a company, there is an issue for trial and the motion for summary judgment should be dismissed. The case is Royal Bank v. Travani, [2009] O.J. No. 535 (SCJ). It was a case where a father and son were issued a standard unsigned credit card agreement. The father says that he worked for his son’s company and used the card only in the son’s business, never received any of the account statements, and understood he was only an authorized user which status carries no liability to the card issuer according to the terms of the Bank’s agreement. The judge held that he could not determine the issues of (i) whether s. 68 of the Consumer Protection Act applied to deem the defendant bound by the account agreement, or not as it only applies to a person who is not acting for business purposes, or (ii) of whether the defendant’s name is on the account as more than an authorized user.
[10] In this case before me, it is clear that Mr. Pecar opened the account himself, the account statements were sent to him personally and only later did they show him as at the address of The Dock Shoppe. He does not deny receiving account statements over a seven-year period and he does not appear on the account statements or the agreement as an authorized user nor is there any such provision removing liability in the credit agreement in this case. In this day and age, agreements are commonly sent out without signature or even a space for signatures because the user of the credit line signs the card before use and personally activates the card. There is no evidence that the card agreement was not received by the defendant nor is there the name of the company on the card or even on many of the account statements until they began to be sent to him personally at the address of the company.
[11] Finally, in this case, the defendant stated that MBNA was well aware of his acting in his corporate capacity throughout the time he dealt with the TD bank and MBNA. Jamie Laurin, Relationship Manager with MBNA, confirms that its records show that the account was opened as a personal credit card account and not as a business account. However he swore no affidavit to that effect and so his letter is only sworn to as having been received by the affiant and that he believes its contents.
[12] The Travani case mentions the decision in Royal Bank v. Lau, [2008] O.J. No. 5007 (SCJ) and distinguishes it. The Lau decision applies directly to this situation before me. In Lau, s. 68 of the Consumer Protection Act is engaged as I find it is here. Section 68 reads:
(1) Despite section 13, a consumer who applies for a credit card without signing an application form or who receives a credit card from a credit card issuer without applying for it shall be deemed to have entered into a credit agreement with the issuer with respect to the card on first using the card.
(2) A consumer described in subsection (1) is not liable to pay the lender any amount in respect of the credit card received in the circumstances described in that subsection until the consumer uses the card.
[13] Mr. Pecar signed no credit agreement but he received credit to the extent of over $40,000, including interest. He never questioned the billing of his account as personal to him. The mere fact that for a time later in the credit history he received the account statements at the same address as The Dock Shoppe which ceased business, he says, in 2012. The agreement he is deemed by s. 68 to have signed when he activated it, and there is no denial that that is what happened. I place little weight on the letter from Mr. Laurin as its contents are not duly sworn or affirmed. However it is in evidence that it confirms the agreement the plaintiff sent Mr. Pecar; it is an agreement to a personal line of credit with no mention whatsoever of the existence of a company called The Dock Shoppe until Mr. Pecar is claimed against by the bank.
[14] For the above reasons, I find Mr. Pecar’s evidence that he did not act in a personal capacity in dealing with the credit he was granted lacks any credibility. Rule 20.04 (2.1) provides the following powers which I have acted within in making the above findings. Rule 20.04 (2)(a) provides that where there is no genuine issue requiring a trial, the court shall grant summary judgment. The rule reads:
Rule 20.04
(2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment. O. Reg. 284/01, s. 6; O. Reg. 438/08, s. 13(2).
Powers
(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[15] The plaintiff’s motion is granted. It is ordered that judgment shall issue granting judgement to the plaintiff in accordance with the statement of claim plus prejudgment interest as claimed.
[16] As to costs, plaintiff’s counsel shall deliver her brief submissions within 10 days. The defendant sent written responding submission within 10 days from receipt of the plaintiff’s submissions. I will then finalize the order by determining the costs issues. The draft judgment may be submitted to me for signature without the defendant’s approval.
HOWDEN J.
Date: June 20, 2014