COURT FILE NO.: CV-20-3009

DATE: 2021 10 20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Canadian Imperial Bank of Commerce, Plaintiff

AND:

Stephen Sutherland, Defendant

BEFORE: Conlan J.

COUNSEL: Ron Aisenberg, Counsel for the Plaintiff

Stephen Sutherland, Self-Represented

HEARD: October 20, 2021

ENDORSEMENT on motion

I.

[1] This is a motion for summary judgment brought by the Plaintiff, Canadian Imperial Bank of Commerce (“CIBC”). Hence, I must ask myself, has CIBC established on a balance of probabilities that there is no genuine issue requiring a trial with respect to its claim? Rule 20.04(2)(a).

II.

[2] The claim is with regard to three CIBC credit facilities in the name of the Defendant, Mr. Sutherland – a personal line of credit, an Aerogold Visa credit card, and a Select Visa credit card. As of the hearing date of the motion, October 20, 2021, the total amount owing (principal and interest) on the three credit facilities is $172,716.58.

III.

[3] Mr. Sutherland represents himself. He filed extensive materials on the motion, including a record and a revised factum. He spoke well in his oral submissions. He filed a Confirmation form in advance of the hearing, which form indicated that the matter was being argued on October 20th. He sought no adjournment. Fifty-nine minutes in total had been set aside for the hearing of the motion, however, this Court permitted Mr. Sutherland to make submissions for a duration in excess of thirty minutes.

[4] Mr. Sutherland does not dispute the existence of the three credit facilities. Nor does he deny his liability thereunder. Nor does he deny the calculation of the total amount owing. He spent some time in his oral submissions advising the Court that CIBC had irreparably ruined his credit rating and had treated him in a way incongruous with his loyal customer status since 1978. He relayed his serious concerns about CIBC’s unscrupulous practices and the alleged sharp practice and “unmitigated gall” of its counsel, Mr. Aisenberg, in perpetuating the unfair treatment of him during the course of the within litigation.

[5] This Court attempted to assist Mr. Sutherland in asking him to summarize his defence to what is alleged in CIBC’s Statement of Claim. That invitation was a courtesy to the gentleman since his entire Counterclaim was struck out by another judge, and almost all of his Statement of Defence was struck out by that same judge, and no appeal was taken to the said order, and a different judge had warned Mr. Sutherland two months ago, verbally and in writing in an endorsement, that without a request to amend his pleading he would be seriously hampered in his ability to respond to the motion for summary judgment on the return date. No step towards any such amendment was taken by Mr. Sutherland.

[6] Instead, on further prompting by me, he advised the Court that his defence was the following: CIBC had a security interest in his recreational property and, although not required to do so, it should have been more honest and more fair to him by enforcing that security interest in a manner that included the extinguishment of the three credit facilities now being sued on. Again, there was nothing requiring the lender to do so (that was expressly stated by Mr. Sutherland during his oral submissions), but it had the contractual right to do so and ought to have done so.

IV.

[7] I appreciate the hard work of Mr. Sutherland in preparing for the motion hearing. I understand his frustrations, and I have listened carefully to his perceptions of being treated like a second-class citizen. His criticisms of Mr. Aisenberg are unfounded, however, and his best foot forward does not cause me to hesitate in concluding that there is no genuine issue for trial. There is no issue for trial. Not on these credit facilities, in these amounts, owing by Mr. Sutherland. That is all that is before me.

[8] Judgment is therefore granted in favour of CIBC as per the draft filed. For the action and the motion, Mr. Aisenberg suggested $7500.00 total in costs. He did not comment on the personal criticisms of him advanced by Mr. Sutherland. He did not ask for full indemnity. A modicum of restraint is a virtue in the courtroom; this was more than that.

[9] I will fix the costs at $6500.00 total and direct that the said sum be included in the Judgment.

V.

[10] I know that the result will not sit well with Mr. Sutherland. He had a mortgage with CIBC. That was a secured debt. He also owed other monies to CIBC in the form of three unsecured credit facilities. The lender enforced its security interest in the real property. Putting the pleading issues aside, admittedly, there is no document and no evidence of any kind to suggest that CIBC had to pay off/wipe-out/extinguish the personal line of credit and the two credit cards at the same time. That’s why he lost the motion. “Should-haves” are not a part of the equation.

[11] I hope the best for Mr. Sutherland and his business.

(“Original signed by”)

C.J. Conlan J.

Date: October 20, 2021