COURT FILE NO.: CV-17-570849 DATE: 2018/12/19

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Sardar Saadilla, Plaintiff – and – The Bank of Nova Scotia, Defendant

Counsel: Sardar Saadilla, self-represented Evan L. Cappe for the Defendant

HEARD: December 11, 2018

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] In January 2017, the Defendant, Bank of Nova Scotia (“BNS”) closed the bank accounts of the Plaintiff, Sardar Saadilla. The combined remaining balance of Mr. Saadilla’s accounts totalled $2,175.03, but he disputed the balance, and he said funds were missing. Mr. Saadilla sued the BNS in March 2017. He alleged that in a variety of ways he was rudely, dismissively, deceptively, and dishonestly treated by the bank and its employees. Mr. Saadilla sued BNS for general damages of $1.0 million and special damages of $40,000. BNS brings a summary judgment motion to dismiss Mr. Saadilla’s action.

[2] For the reasons that follow, I grant BNS’s summary judgment only in part, and pursuant to rule 20.05 (1) of the Rules of Civil Procedure I shall make an order specifying what material facts are not in dispute and defining the issues to be tried. I order costs in the cause.

[3] There are only two issues to be tried; namely: (1) whether BNS has failed to account for $20,000 which Mr. Saadilla’s says he deposited with BNS on October 14, 2016; and (2) whether BNS has any defence to Mr. Saadilla’s claim for the $20,000. There are no genuine issues for trial with respect to any other claim.

B. Procedural and Evidentiary Background

[4] On March 3, 2017, Mr. Saadilla commenced an action against BNS for missing funds, excessive aggravation, abuse of power causing damages, emotional and psychological intimidation and character assassination. He claimed general damages of $1.0 million and special damages of $40,000. He claimed pre- and post-judgment interest and costs.

[5] On April 3, 2017, BNS delivered its Statement of Defence.

[6] On April 10, 2017, Mr. Saadilla delivered his Reply.

[7] On September 22, 2017, BNS delivered its Affidavit of Documents. The affidavit was sworn by Nermeed Masoud who was the assistant managers at the BNS branch located at the Golden Mile Supercentre, 1800 Eglinton Ave. East, Toronto (“Golden Mile Branch”) and who had personal knowledge of the events that are the source of the dispute between Mr. Saadilla and BNS.

[8] On March 6, 2018, the trial record was filed.

[9] The trial is scheduled for January 28, 2019.

[10] In May 2018, BNS moved for a summary judgment dismissing Mr. Saadilla’s action. The bank’s motion was supported by affidavits from Ms. Masoud, Tara Deorajh, who was employed by BNS as a Customer Service Representative at the bank’s Vaughan Business Banking Branch (“Vaughan Branch”) at 7,600 Weston Rd. Woodbridge, Ontario, and Josie Calabrese, who was employed by BNS as a Customer Service Representative at the Vaughan Branch.

[11] The summary judgment motion was argued on December 11, 2018. Mr. Saadilla did not file a factum. He did appear at the hearing of the summary judgment motion, where he filed a Responding Motion Record that contained his affidavit dated May 5, 2017.

[12] On December 11, 2018, I heard the parties’ arguments on the summary judgment motion and I reserved judgment.

C. Jurisdiction to Grant Summary Judgment

[13] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if: “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” With amendments to Rule 20 introduced in 2010, the powers of the court to grant summary judgment have been enhanced. Rule 20.04 (2.1) states:

20.04 (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:

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

[14] In Hryniak v. Mauldin, 2014 SCC 7 and Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, the Supreme Court of Canada held that on a motion for summary judgment under Rule 20, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers introduced when Rule 20 was amended in 2010. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure.

[15] If, however, there appears to be a genuine issue requiring a trial, then the court should determine if the need for a trial can be avoided by using the powers under rules 20.04 (2.1) and (2.2). As a matter of discretion, the motions judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if their use will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole. To grant summary judgment, on a review of the record, the motions judge must be of the view that sufficient evidence has been presented on all relevant points to allow him or her to draw the inferences necessary to make dispositive findings and to fairly and justly adjudicate the issues in the case. Campana v. The City of Mississauga, 2016 ONSC 3421; Ghaeinizadeh (Litigation guardian of) v. Garfinkle Biderman LLP, 2014 ONSC 4994, leave to appeal to Div. Ct. refused, 2015 ONSC 1953 (Div. Ct.); Lavergne v. Dominion Citrus Ltd., 2014 ONSC 1836 at para. 38; George Weston Ltd. v. Domtar Inc., 2012 ONSC 5001.

[16] Hryniak v. Mauldin, 2014 SCC 7 does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have advanced their best case and that the record contains all the evidence that the parties will present at trial. Dawson v. Rexcraft Storage & Warehouse Inc., [1998] O.J. No. 3240 (C.A.); Bluestone v. Enroute Restaurants Inc. (1994), 18 O.R. (3d) 481 (C.A.); Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372 at para. 11. Thus, if the moving party meets the evidentiary burden of producing evidence on which the court could conclude that there is no genuine issue of material fact requiring a trial, the responding party must either refute or counter the moving party’s evidence or risk a summary judgment. Toronto-Dominion Bank v. 466888 Ontario Ltd., 2010 ONSC 3798.

[17] Rule 20.05 empowers the court to make orders when summary judgment is refused or is granted only in part. For present purposes, the relevant parts of rule 20.05 are set out below.

WHERE TRIAL IS NECESSARY

Powers of Court

20.05 (1) Where summary judgment is refused or is granted only in part, 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.

Directions and Terms

(2) If an action is ordered to proceed to trial under subrule (1), the court may give such directions or impose such terms as are just, including an order,

(c) that a statement setting out what material facts are not in dispute be filed within a specified time;

Specified Facts

(3) At the trial, any facts specified under subrule (1) or clause (2) (c) shall be deemed to be established unless the trial judge orders otherwise to prevent injustice.

D. Should BNS be Granted a Summary Judgment?

[18] At the summary judgment motion, Mr. Saadilla stated that his complaint against the bank concerned what happened to a $20,000 deposit that he made at the Vaughan Branch on October 14, 2016 and the events following the cancellation of his accounts when he inquired about the allegedly missing $20,000 payment.

[19] Having reviewed the evidentiary record for the summary judgment motion, the only genuine issues for trial concern what happened to the $20,000 deposit. There are no genuine issues with respect to Mr. Saadilla’s dealings with BNS and no genuine issues with respect to the state of his three bank accounts.

[20] I am satisfied by the evidence provided BNS that there are no genuine issues for trial about the deposits, withdrawals, transactions, charges, and balances on any of Mr. Saadilla’s three BNS bank accounts.

[21] There is, however, a genuine issue about what happened on October 14, 2016, when Mr. Saadilla says that he deposited $20,000 at the Vaughan Branch.

[22] In essence, Mr. Saadilla says that the Bank’s records with respect to that deposit are mistaken or falsified. BNS and its employees have a very different version of the events of October 14, 2016. I am unable to resolve the differences in the versions of the events fairly by way of a summary judgment motion.

[23] The trial is scheduled for next month and no useful purpose would be achieved by ordering a mini-trial.

[24] Rather, the appropriate order to make is to grant BNS’s summary judgment only in part, and pursuant to rule 20.05 (1) of the Rules of Civil Procedure to specify what material facts are not in dispute and to define the issues to be tried.

E. The Material Facts that are Not in Dispute

[25] I find the following material facts are not in dispute.

[26] On March 4, 2014, Mr. Saadilla applied for and was provided with a “Basic Banking Account.” The account was opened at BNS’s branch located at 2 Toryork Drive, North York, Ontario. Mr. Saadilla requested monthly written statements for his Basic Bank Account.

[27] Over two years later, on August 19, 2016, Mr. Saadilla applied for and was provided with a “Scotiabank Momentum Savings Account” and a “Scotia One Account.” The accounts were opened at BNS’s Golden Mile Branch located at 1880 Eglinton Avenue East, Scarborough, Ontario. Mr. Saadilla requested “paperless” recordkeeping for his Scotiabank Momentum Savings Account and for his Scotia One Account.

[28] For each of his accounts, Mr. Saadilla acknowledged receiving BNS’ Day-to-Day Banking Companion Booklet which sets out the terms and conditions for the accounts. The Booklet sets out the contractual terms of the banker and customer relationship.

[29] The contractual terms and conditions include the following terms:

Accepting Our Records

Our records as to whether an Automated Baking Services or branch transaction has been performed, and our determination of the details of that transaction, will be considered correct and binding on you, unless you provide us with evidence to the contrary within 30 days of the date of a disputed transaction.

Verifying Your Accounts

You must review your statements -You must promptly review your paperless or paper account statements, online transaction history or passbook to check and verify the transactions/entries. If you believe there are any errors or omissions, you must tell [BNS] in writing within the applicable time period indicated below for the recordkeeping option you have selected. If you do not tell [BNS] of an error or omission within the applicable time periods you,

(a) Will be deemed to have conclusively agreed to the contents of the paperless statement, paper account statement or passbook, as applicable, whether or not you have reviewed your statement or passbook, as you are required to do under this agreement, and

(b) agree that you will have no claim against [BNS] for reimbursement relating any account entry, even if the instructions resulting in the charges to your account was forged, unauthorized or fraudulent.

[30] For the paperless accounts the applicable time period to review account transactions required the customer to review his or her accounts at least every 30 days and if the customer noted an error or omission, he had to advise BNS within 60 days of the disputed entry.

[31] In the period from August 2016 to January 2017, Mr. Saadilla made numerous large cash deposits and withdrawals from his accounts.

[32] On October 14, 2016, Mr. Saadilla attended at the Vaughan Branch with $20,000 in cash. The money was given to Ms. Deorajh to deposit to Mr. Saadilla’s Scotiabank Momentum Savings Account.

[33] During the posting process, BNS’ computer system alerted Ms. Deorajh to a customer note requesting that all cash deposits be referred to the Golden Mile Branch. Ms. Deorajh consulted Ms. Calabrese and an effort was made by her to phone the Golden Mile Branch.

[34] Ms. Calabrese then made several attempts to contact the Golden Mile Branch to discuss the $20,000 deposit, but she was unsuccessful.

[35] There are genuine issues for trial about what happened next about the $20,000. However, this is the issue that must be resolved at trial.

[36] BNS decided to close Mr. Saadilla’s bank accounts and between December 2016 to January 13, 2017, Ms. Masoud made unsuccessful attempts to speak to him by telephone. She left messages, but he did not return the calls.

[37] On January 27, 2017, BNS closed all of Mr. Saadilla’s bank accounts. At the time the accounts were closed, their combined balances totaled $2,175.03.

[38] Apart from the matter of the disputed $20,000, there is no genuine issue for trial that the combined balance of the accounts totaled $2,175.03.

[39] Apart from the matter of the disputed $20,000, the transaction histories for Mr. Saadilla’s accounts are accurate and correctly show the withdrawals and transfers from August 2016 to January 2017.

[40] On January 31, 2017, Mr. Saadilla attended at the Golden Mile Branch and spoke to Ms. Masoud. He asked that the accounts be re-opened, and this was refused. Ms. Masoud called 911 and Mr. Saadilla left the bank.

[41] In the months that followed, Mr. Saadilla lodged a complaint with the Office of the President of BNS, but the matter of the $20,000 deposit was not resolved.

[42] On March 3, 2017, Mr. Saadilla commenced his action against BNS.

F. The Issues to be Tried

[43] There are genuine issues that require a trial. Mr. Saadilla should have his day in court and it is not in the interests of justice that the matter of the $20,000 be resolved summarily. However, as already noted above, apart from the matter of the $20,000, BNS’s motion for a summary judgment should be granted.

[44] There are only two issues to be tried; namely: (1) whether BNS has failed to account for $20,000 which Mr. Saadilla’s says he deposited on October 14, 2016; and (2) whether BNS has any defence to Mr. Saadilla’s claim for the $20,000.

G. Conclusion

[45] Order accordingly. Costs are reserved to the court hearing the trial.

Perell, J. Released: December 19, 2018