Court File and Parties

Court File No.: CV-16-561321 Date: 20170303 Ontario Superior Court of Justice

Between: Abdirizak Ibrahim Jama, Plaintiff – and – National Bank, Defendant

Counsel: Abdirizak Ibrahim Jama, self-represented William Main, for the Defendant

Heard: February 28, 2017

Perell, J.

Reasons for Decision

[1] Abdirizak Ibrahim Jama blames the National Bank of Canada (“National Bank”) for having to flee Ethiopia, for his life, leaving behind his goods and valuables.

[2] Mr. Jama sues the National Bank for $72,000, rounded down from $72,925.00, being the value of four Rolex watches ($60,000), shoes ($5,000), clothes ($6,786.50), and accommodation and food ($1,138.50). Mr. Jama brings a motion for summary judgment.

[3] The National Bank denies responsibility for what happened to Mr. Jama in Ethiopia, and it brings a motion for summary judgment to have Mr. Jama’s action dismissed.

[4] Mr. Jama is wrong in blaming the National Bank for his misfortunes in Ethiopia. So, for the reasons that follow, I grant the National Bank’s motion and I dismiss Mr. Jama’s action.

[5] With some additional information from Mr. Jama during the argument of the motions, the evidence on the cross-motions for summary judgment established that Mr. Jama became a customer of the National Bank (of Canada) on January 25, 2016 and he had the following misadventure on a trip to Africa.

[6] In August 2016, Mr. Jama went on a vacation trip to Africa, and after a stay in Egypt, where he acquired four Rolex watches, he went to Ethiopia where, for part of the time, he stayed at a hotel.

[7] Unfortunately, Mr. Jama spent the currency he was travelling with, and he needed to withdraw money from an ATM to pay for his accommodation and his food.

[8] The hotel seized Mr. Jama’s luggage, and it refused to release it unless he paid his bill. The Rolexes and the expensive shoes and clothes were in the seized luggage.

[9] Mr. Jama’s bank card with the National Bank affords him the right to withdraw money from merchant banks that are members of the MasterCard interbank network, and Mr. Jama deposed that between August 31, 2016 and September 1, 2016, he attempted to make six withdrawals of Ethiopian currency, but the ATMs failed to dispense him the currency.

[10] Mr. Jama said that he happened to meet the currency delivery personnel who confirmed that the machines were empty.

[11] Converted into Canadian dollars, the alleged failed withdrawals of currency were: $243.23, $243.23, $30.40, $12.21, $61.06, and $244.27.

[12] Desperate for funds to retrieve his luggage that contained his goods and valuables, and under the urgency that his return flight to Canada would depart on September 4, 2016, Mr. Jama went to the Canadian Consulate Office and complained that the National Bank was withholding his funds.

[13] However, only with some delay could the Consular officials help him with cash to pay his hotel bill, and with his imminent departure, there was nothing they could do, but they agreed to make inquiries with the National Bank in Canada about why Mr. Jama had not received money from the ATMs.

[14] Around September 1 or 2, 2016, Tina Carty, the Manager of Customer Services at the National Bank’s branch at 121 King St. W. in Toronto, was contacted by a Consular official calling from Ethiopia. She was told that Mr. Jama needed funds from his account to get back to Canada.

[15] After verifying the identity of the caller and receiving a signed letter bearing Mr. Jama’s signature, Ms. Carty made inquiries, and she advised the Consular official that there was no money in Mr. Jama’s account at that time.

[16] After his failed efforts for immediate help from the Canadian Consulate, Mr. Jama returned to the hotel, but he could not resolve matters. He says that he was threatened with physical harm and with imprisonment, and so he fled to the airport where he safely, but uncomfortably, stayed for several days before he departed to return to Canada. Mr. Jama says that he was traumatized by the whole experience.

[17] When he returned to Canada, Mr. Jama complained to the National Bank, which initially misunderstood his complaint as a grievance that the Bank was wrongfully holding his funds. With respect to this complaint, the Bank did an extensive investigation, and it determined that Mr. Jama had been denied withdrawals only when he attempted to exceed the daily maximum withdrawal limit or when, being in overdraft, he was not entitled to funds. It also appears that several transactions timed out because Mr. Jama did not properly enter a PIN.

[18] After his return to Canada, the relationship between the Bank and Mr. Jama soured further because the Bank cancelled his bank card because it said that Mr. Jama had attempted to deposit empty deposit envelopes, which Mr. Jama denies.

[19] In any event, unsatisfied with the Bank’s response, Mr. Jama sued the Bank and obtained a default judgment that was set aside.

[20] Both sides then brought summary judgment motions, and it emerged that Mr. Jama’s real complaint concerned the six alleged failed currency withdrawals from ATMs in Ethiopia.

[21] The National Bank did another investigation, and it made inquiries of the several merchant banks responsible for the ATMs in Ethiopia.

[22] The National Bank’s inquiries revealed that four of six withdrawals had not failed. With respect to the other two transactions ($30.40 and $244.27), the responsible merchant bank did not reply, and, in these circumstances, the National Bank voluntarily reimbursed Mr. Jama’s account.

[23] Such being the factual background, Mr. Jama’s action should be dismissed for four reasons.

[24] First, assuming that it is true that there were six failed currency withdrawals from the Ethiopian ATMs, the National Bank is not liable for those failures. The liability, if any, rests with the several merchant banks that operated the ATMs in Ethiopia.

[25] Second, assuming that there were only the two failed transactions, Mr. Jama has been compensated for his foreseeable losses.

[26] Third, I conclude on the balance of probabilities that there were no failed currency withdrawals.

[27] I find that there were occasions when Mr. Jama was unsuccessful in withdrawing funds; however, those occasions occurred because: he had exceeded the maximum daily limit; he had no funds in his account; or he failed to enter a proper PIN. I believe that with respect to the six transactions that occurred between August 31, 2016 and September 1, 2016, Mr. Jama is confusing those transactions with other transactions.

[28] Fourth, assuming that there were, as he alleges, six failed ATM withdrawals, Mr. Jama’s claim for damages of $72,000 is not recoverable because of the remoteness principle.

[29] It is a foundational principle of contract law that compensable damages for breach of contract (in this case a banking contract) must have been reasonably foreseeable at the time of contracting: Hadley v. Baxendale (1854), 9 Exch. 341. The promisor is liable for the ordinary losses the promisor could have foreseen; beyond that point, the promisor is not liable: Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520 at para. 47. Mr. Jama’s damages claim is not reasonably foreseeable.

[30] For the above reasons, I dismiss Mr. Jama’s action.

[31] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the National Bank’s submissions within 20 days of the release of these Reasons for Decision followed by Mr. Jama’s submissions within a further 20 days.

Perell, J.

Released: March 3, 2017