COURT FILE NO.: 2590/19

DATE: 2021-07-07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Canadian Imperial Bank of Commerce, Plaintiff

AND:

Guy R. Zito also known as Guy Roger Zito also known as Guy K. Zito also known as Guy Zito, Defendant

BEFORE: Conlan J.

COUNSEL: Ron Aisenberg, for the Plaintiff

Guy Zito, Self-represented Defendant

HEARD: July 7, 2021

ENDORSEMENT

I. The Action

[1] By Statement of Claim (“Claim”) issued on June 17, 2019, the Plaintiff, Canadian Imperial Bank of Commerce (“CIBC”), initiated a simplified procedure action (Rule 76 of the Rules of Civil Procedure) against the Defendant, Guy Zito (“Zito”). The action dealt with two alleged sources of indebtedness – a CIBC Select Visa card and a CIBC Dividend Visa card.

[2] Zito, representing himself, responded to the Claim with a very brief Statement of Defence and Counterclaim. In the Defence, he raised two substantive points: (i) that CIBC allegedly promised him zero per cent interest but failed to honour that promise, and (ii) that CIBC unilaterally reduced his credit limit. In the Counterclaim, Zito requested $250,000.00 in general damages, plus $250,000.00 in punitive damages, plus interest and costs. He alleged that CIBC acted improperly and thereby caused him to be unable to complete the home renovations that he borrowed the money for, and he lost rental income, and the value of his property decreased, and his credit rating was irreparably damaged.

[3] CIBC defended the Counterclaim.

II. The Motion

[4] CIBC moves for summary judgment with respect to both its Claim and Zito’s Counterclaim.

[5] The Motion was heard via Zoom on July 7, 2021. Although Zito filed no materials on the Motion, the Court permitted him to make fairly lengthy submissions.

III. The Law

Summary Judgment

[6] The Court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial: Rule 20.04(2)(a).

[7] CIBC, as the moving party, has the burden of proof. The standard of proof is on a balance of probabilities.

[8] In determining whether there is a genuine issue requiring a trial, the Court shall consider the evidence adduced on the Motion and may weigh that evidence, evaluate credibility, and draw reasonable inferences: Rule 20.04(2.1).

[9] In addition, the Court may order a mini-trial, where oral evidence would be presented: Rule 20.04(2.2).

[10] Where the only genuine issue is one of law, the Court may decide the question and grant judgment accordingly: Rule 20.04(4).

[11] The following principles may be gleaned from a careful review of the seminal decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7.

[12] First, it is the principle of proportionality that ought to drive the Court’s decision on a request for summary judgment. There will be no genuine issue requiring a trial when the judge hearing the Motion is able to reach a fair and just determination on the merits.

[13] Second, what does that mean – a fair and just determination on the merits? It means (i) that the judge hearing the Motion is able to make the necessary findings of fact, (ii) is able to apply the law to the facts, and (iii) the process employed to do those things is a proportionate, more expeditious and less expensive means to achieve a just result (as compared to a trial).

[14] The judge must be able to have confidence in the conclusions reached on the Motion, otherwise, the case ought to proceed to trial.

[15] Third, the judge hearing the Motion should follow a two-stage procedure. Initially, consider only the evidence filed without regard to the expanded powers. Then, afterwards, if there appears to be a genuine issue requiring a trial, the judge may (but does not have to) weigh the evidence, evaluate credibility and draw reasonable inferences.

[16] Fourth, there is certainly a culture shift that was signalled by the decision of the Supreme Court of Canada referred to above. The Courts have been encouraged to, wherever possible, deal with matters expeditiously. Cases should proceed to trial only if they really have to. The summary judgment process can, where employed properly, increase access to affordable and timely justice. A trial should no longer be viewed as the default procedure.

IV. Findings

[17] For the reasons that follow, the Motion is granted in its entirety. The draft Judgment filed by counsel for CIBC, for the Court attendance on July 7, 2021, shall issue, subject to the below regarding costs.

[18] On costs, $13,135.67 is sought by CIBC on a full indemnity basis. Notwithstanding anything that is stipulated in the Cardholder Agreement(s), in light of Zito’s personal circumstances including the very recent loss of his father, I exercise my discretion to award what I think is a more fair, just, reasonable, and proportionate quantum of costs. Costs in favour of CIBC are hereby fixed at $8,000.00, all-inclusive.

[19] I have concluded that there is no genuine issue requiring a trial. On the basis of the evidence filed on the Motion, which evidence is limited to that delivered on behalf of CIBC, and without having to resort to any of the expanded powers under Rule 20.04(2.1) and (2.2), I am able to say with confidence that the Claim must succeed and the Counterclaim has no merit to it.

[20] First, regarding the Claim, Zito does not dispute the principal amounts owing by him on the two Visa cards. In his pleading, he raises only the issues of interest and the unilateral reduction in his credit limit. The latter has nothing to do with the Claim. The former is relevant to the Claim but has absolutely no evidence to substantiate it.

[21] Although he did not request an adjournment at Court on July 7th, I contemplated granting him one on my own accord. That would not be appropriate, however. On March 4, 2021, CIBC’s Motion was adjourned at Zito’s request. Zito was ordered by Gibson J. to deliver his materials by March 25th. He failed to do so. On June 9, 2021, because of the recent death of his father, Zito’s request for another adjournment was granted by Justice Coats. Zito was ordered to deliver his materials by June 29th. Again, he failed to do so. Yet another adjournment on July 7th was simply not in the interests of justice, especially given that Justice Coats expressly endorsed that the matter was peremptory on Zito.

[22] Regarding the Counterclaim, Zito has put forward absolutely no evidence to support it. The bald assertions in his pleading cause this Court to draw no other conclusion than that the Counterclaim stands zero chance of success.

[23] The result is that the Motion must be granted, and summary judgment shall issue in favour of CIBC in accordance with these reasons.

(Original signed by)

Conlan J.

Date: July 7, 2021