Court File and Parties

COURT FILE NO.: CV-16-125152-00 DATE: 20160719 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THE BANK OF NOVA SCOTIA Plaintiff – and – KURT MULL Defendant

Counsel: Lauren Lee, for the Plaintiff Kurt Mull, acting for self

HEARD: June 23, 2016

REASONS FOR DECISION

CHARNEY J.:

Introduction

[1] The plaintiff, The Bank of Nova Scotia (the Bank), brings this motion for summary judgment under Rule 20.04(2.1) of the Rules of Civil Procedure against the defendant, Kurt Mull.

[2] The Bank filed a Statement of Claim against the defendant on August 12, 2015, claiming the sum of $119,747.66 owing as of July 21, 2015, plus interest pursuant to the Plaintiff’s Commitment Letter, dated August 12, 2014.

[3] The defendant filed his Statement of Defence on October 13, 2015.

Background

[4] The defendant is a former employee of Scotia Capital Inc. The loan was granted under a program created to finance experienced investment executives to transition to Scotia Capital Inc. from various other investment institutions.

[5] The Bank provided the defendant with a loan in the amount of $198,683.00 made pursuant to a commitment letter and attached terms and conditions, which were signed and accepted by the defendant.

[6] The terms and conditions of the loan agreement provide that the loan “is payable on demand or is payable in 22 monthly blended instalments of principal and interest commencing within 30 days…”

[7] In addition, the terms and conditions provide that “If for any reason the Borrower ceases to be an employee of Scotia Capital Inc. before the stated termination of this Agreement, the outstanding amounts due to Private Banking will be charged to the Borrower at the time the Borrower ceases to be employed by Scotia Capital Inc.”

[8] The defendant ceased to be an employee of Scotia Capital Inc. on April 27, 2015.

[9] As the loan is payable on demand and as a result of the termination of the defendant’s employment with Scotia Capital Inc., the Bank issued a demand for payment to the defendant on July 22, 2015, for monies due pursuant to the agreement.

Motion for Summary Judgment

[10] The Bank moves for summary judgment pursuant to Rule 20.01 of the Rules of Civil Procedure. Pursuant to Rule 20.04(2)(a):

The court shall grant summary judgement if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[11] Rule 20.04(2.1) sets out the powers of the court on a motion for summary judgment:

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:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[12] These powers have been extensively reviewed by the Supreme Court of Canada in the case of Hyrniak v. Mauldin, 2014 SCC 7 [2014] 1 S.C.R. 87.

[13] Even with these extended powers, a motion for summary judgment is appropriate only if the material provided on the motion “gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute” Hryniak v. Mauldin, supra, at para. 50.

[14] In order to defeat a motion for summary judgment, the responding party must put forward some evidence to show that there is a genuine issue requiring a trial. A responding party may not rest on mere allegations or denials of the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. The court may, where appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. The motion judge is entitled to assume that the record contains all of the evidence that would be introduced at trial. A summary judgment motion cannot be defeated by vague references as to what may be adduced if the matter is allowed to proceed to trial:

[P]hrases such as “best foot forward”, “leading trump”, “not an occasion to keep powder dry” and “not holding anything back” are commonly employed to emphasize this point and have been approved by our Court of Appeal (c.f. Sweda Farms v Egg Farmers of Ontario, 2014 ONSC 1200; aff’d 2014 ONCA 878; Danos v. BMW Group Financial Services Canada et al, 2014 ONSC 2060; aff’d 2014 ONCA 887); Mazza v Ornge Corporate Services Inc., 2016 ONSC 1390

[15] Where summary judgment is refused or is granted only in part, Rule 20.05 provides “the court may make an order specifying what material facts are not in dispute and defining the issues to be tried and order that the action proceed to trial expeditiously” and to give directions or impose such terms as are just.

Position of the parties

[16] The Bank takes the position that the loan is governed by the terms and conditions appended to the commitment letter. As such, the defendant is in default and the Bank is entitled to repayment of the loan. The Bank takes the position that there is no triable issue. The Bank’s affiant was not cross-examined, and the defendant has not provided any affidavit or other evidence in response to the motion for summary judgment.

[17] While the defendant has not filed any affidavit evidence to respond to the motion for summary judgment, he has filed a factum. He takes the position in his factum that the loan agreement was part of the ScotiaMcLeod Investment Executive Loan Program and was designed to attract high-level performers to ScotiaMcLeod from competing investment firms. He states:

The money represents the purchase of the client’s assets. It is structured as a repayable loan over 5 years and 1/60 is repaid each month to avoid the incoming broker having to pay CRA a lump sum of taxes in the first year with Bank of Nova Scotia. Nowhere in the agreement does it specify the currency used to repay the debt, whether these be funds from gross commission or assets retained and resold or otherwise.

[18] The defendant asserts he was terminated from the Bank as a result of what his employers deemed insubordination, and he alleges that the “reason behind the termination resulted directly from [the Bank’s] unwillingness to value Kurt Mull’s ‘book of business’ in a marital breakdown.” He alleges that this was inconsistent with “Ontario Family Law”.

[19] The defendant complains that the affidavit provided by the Bank on this motion was sworn by a Bank employee who was “neither a witness nor present for any of the signing of the documents presented with their counsel’s materials”. The defendant states that he wanted to see an affidavit “from the bank employee who actually participated in the loan bonus agreement”, although he gives no indication of why that would make any difference given the documents appended to the Bank’s affidavit.

[20] The defendant also asserts that in the 5 years that he worked at the Bank he produced in excess of $4,500,000 of gross commissions, or an average of $910,000 per year. He exceeded his asset targets every year. When he was terminated these assets were distributed to other Bank brokers, “some of who said disparaging remarks making asset transition impossible”. He will not be provided with any compensation for these client assets.

[21] He asserts that the Bank has not suffered any injury because “the debt has been recovered through payment of gross revenue exceeding expectation by 2X and by the significant assets that remain at [the Bank] and have been ‘resold’ to other [Bank] brokers.”

[22] Finally, he states that as of June 2016, he has not launched a wrongful dismissal suit against the Bank. There is no counterclaim in this proceeding.

Analysis

[23] The defendant is self-represented, and fairness requires that the court accommodate a self-represented party’s unfamiliarity with the litigation process to enable him to present his case to the best of his ability (Sanzone v. Schechter, 2016 ONCA 566 at para. 21). Even if I were to treat the allegations in the defendant’s factum as if they were contained in an affidavit, however, I would conclude that there is no genuine issue for trial and grant the plaintiff’s motion for summary judgment. None of the defendant’s allegations or argument presents a valid defence to the express terms and conditions of the loan agreement that was signed by both parties.

[24] His allegations relating to the reasons for his termination with the Bank are irrelevant to his obligation to repay the loan. The fact that the loan agreement was designed to “attract high-level performers” to the Bank does not change the clear and express repayment terms of the agreement. There is simply nothing in the defendant’s factum that would constitute a valid defence requiring a trial in this matter.

Conclusion

[25] Based on the foregoing, the plaintiff’s motion for summary judgment against the defendant Kurt Mull is granted on the following terms:

a. The plaintiff is entitled to payment of the sum of $120,380.43 owing as of March 1, 2016 owing on the loan;

b. The plaintiff is entitled to interest on this amount from March 1, 2016 until the date of payment calculated at 2.48% per annum.

[26] The plaintiff is entitled to costs of this motion. If the parties are not able to agree on costs, the plaintiff may file written submissions within 20 days of the release of these reasons. Such submissions are limited to 3 pages plus a costs outline and any offers to settle. The defendant may file reply costs submissions on the same terms within a further 15 days.

Justice R.E. Charney

Released: July 19, 2016