CITATION: Royal Bank of Canada v. Sanders, 2017 ONSC 4210
COURT FILE NO.: CV-15-541509
DATE: 20170707
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROYAL BANK OF CANADA
Plaintiff
– and –
GUY JOSEPH SANDERS and
GLORIA SANDERS
Defendants
Natalie Marconi for the Plaintiff
Aaron Wachna for the Defendant, Guy Joseph Sanders
No one appearing for Gloria Sanders
HEARD: April 21, 2017
ENDORSEMENT
DIAMOND J.:
[1] RBC’s motion for summary judgment has already been adjourned twice. This is a Simplified Procedure action, and due to inherent difficulties encountered in moving this matter forward, Justice Faieta was appointed case management judge until he removed himself from that role. Before he did so, Justice Faieta set out the latest timetable for interim steps (leading up to today’s hearing date), including a March 6, 2017 deadline for any responding motion material to be filed by the Defendants.
[2] Gloria Sanders has filed no material at all on this motion and did not attend today.
[3] Guy Sanders did not comply with the March 6, 2017 deadline and now seeks leave to file a 2 volume Motion Record, Factum and Book of Authorities on the very day of the hearing. In support of his request for leave, Guy takes the position that he did not receive RBC’s answers to questions ordered answered by Justice Faieta until March 7, 2017 and this precluded him from putting his best foot forward until now. I reject Guy’s position for the following reasons:
a) Justice Faieta’s timetable order was made on October 24, 2016 and Guy took zero steps to deliver any evidence until today, when a review of his responding affidavit discloses that most if not all of his evidence was well known to him before the March 6, 2017 deadline.
Guy seeks to not only file late material but seeks follow up examinations which are not permitted under Rule 76, and yet he seems to use this request for further discovery as a basis to hopefully transfer this action into the Ordinary Procedure. This approach is circular and contrary to the efficiency of Rule 76, and for that matter Rule 77 and the entire summary judgment process.
b) Guy’s evidence in support of his request for leave is vague and lacking any particulars as to why he was allegedly unable to put his best foot forward until now. In argument he pointed to 2 allegedly outstanding questions due to be answered by RBC. I do not see how these questions are outstanding but even if they were they would not stop him from delivering responding material, something which he chose not to do but instead sought to schedule another motion before Justice Hood who denied that request holding that such a new motion would yet again derail the motion for summary judgment. I will not permit Guy to achieve through the back door what Justice Hood denied through the front door.
[4] Court orders must mean something. The evidence before me does not satisfy the test for leave to deliver materials late and in breach of a court order. The motion for summary judgment shall proceed without regard to Guy’s recent responding materials and on the record which existed as of April 19, 2017.
[5] In the absence of any responding material, Guy takes the position that RBC has failed to meet its legal and evidentiary onus on this motion due to RBC having chosen to submit the supporting affidavit of Nancy Lee, a private banker employee who has no first-hand knowledge of the loans and debts forming the subject matter of this proceeding. Guy submits that it was incumbent upon RBC to tender the affidavit of a “records librarian” to authenticate the exhibits attached to Ms. Lee’s affidavit, and pursuant to Rule 39.01(4) Ms. Lee’s affidavit should be struck out.
[6] Both Statements of Defence filed on behalf of Gloria and Guy assert bald denials of RBC’s claims to the outstanding debts (loan and credit card). No particulars whatsoever are provided to make the authenticity of the RBC loan/credit agreements in issue, nor do Gloria or Guy assert that the RBC funds weren’t advanced. Since such matters were not placed in issue (Guy’s defence is truly focused on a purported set-off argument), the bald denial in the pleadings is far from sufficient to now render the evidence of Ms. Lee to be a concern. This claim is easily substantiated through documents, and these documents clearly show the debts owing by the defendants. There is no evidence filed in response to RBC’s motion to oppose the relief sought, or support the defendants’ counterclaim. With the scope of the currently pleaded counterclaim being somewhat wide given the issues in the main action, one would have expected a fulsome response from the defendants from the outset. This did not happen and it does not lie in the mouths of the defendants to take an overly technical approach when there are no substantive matters in the claim at issue.
[7] I grant RBC’s motion for summary judgment on the joint loan, Guy’s credit card debt and both of Gloria’s credit card debts. RBC will no doubt account for any payments made by the defendants towards those debts since demand was made.
[8] I grant RBC’s motion dismissing the counterclaim as well. No evidence was filed in support of that counterclaim even after all these months.
[9] RBC shall have 10 business days to serve and file written costs submissions no more than 5 pages. The defendants shall have 10 business days from receipt of RBC’s costs submissions to serve and file their own costs submissions also no longer than 5 pages. RBC may serve and file brief Reply costs submissions (maximum 2 pages) within 5 business days thereafter.
“Diamond J.”
Diamond J.
Released: April 21, 2017
CITATION: Royal Bank of Canada v. Sanders, 2017 ONSC 4210
COURT FILE NO.: CV-15-541509
DATE: 20170707
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROYAL BANK OF CANADA
Plaintiff
– and –
GUY JOSEPH SANDERS and
GLORIA SANDERS
Defendants
ENDORSEMENT
Diamond J.
Released: April 21, 2017