Court File and Parties

COURT FILE NO.: CV-20-00002202

DATE: 2022-01-31

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: The Toronto-Dominion Bank, Plaintiff

AND:

Jennifer Virgo, Defendant

BEFORE: Regional Senior Justice M.L. Edwards

COUNSEL: Phillip Polster, Counsel, for the Plaintiff

Jennifer Virgo, Self-Represented, Defendant

HEARD: Virtually, January 26, 2022

ENDORSEMENT

Overview

[1] The action between the Plaintiff, The Toronto-Dominion Bank (hereinafter “TD”) and the Defendant Jennifer Virgo (hereinafter “Virgo”), was determined by the decision of Leibovich J. released on June 25, 2021, pursuant to which he granted summary judgment in favour of TD in the amount of $18,490.59 (The Order) . The Order arose as a result of the non-payment by Virgo of amounts owing to TD on a credit card.

[2] Virgo asked Leibovich J. to re-consider and correct the Order. The correction sought was the addition of the following:

This court orders and adjudges that the defendant’s motion for summary judgment is denied.

[3] Leibovich J., in an Endorsement that he released to the parties on September 13, 2021, indicated that he would not grant the requested adjournment correction to the Order.

[4] The Order of Leibovich J. was appealed to the Divisional Court by way of a Notice of Appeal filed by Virgo on July 21, 2021. On October 4, 2021, Corbett J. released an Endorsement of the Divisional Court which stated:

The appeal has been abandoned and no costs are sought by the Respondent. The matter is now concluded.

[5] The motion that came before me on January 26, 2022 was for summary judgment brought by Virgo as a result of allegations made in her counterclaim. The motion was argued by her husband. The basis of the claim made by Virgo in her counterclaim arises out of the suggestion that TD is in breach of its obligations to Virgo as a result of various alleged violations of the Consumer Protection Act. No evidence was filed by TD in response to Virgo’s motion for summary judgment.

Position of Virgo

[6] What underlies the position asserted on behalf of Virgo is the suggestion that there was an agreement between TD and Virgo, pursuant to which Virgo agreed to pay $150.00 per month towards her outstanding indebtedness to TD. In return for the payment of $150.00 per month Virgo says TD agreed not to take collection proceedings on the outstanding debt to TD. It is argued that TD breached the agreement by initiating the action that resulted in the Order. Virgo argues TD’s breach of the agreement engages various provisions of the Consumer Protection Act.

Analysis

[7] The difficulty with the assertion made by Virgo as it relates to TD’s failure to live up to its obligations under the terms of the alleged agreement, lies in the fact that Leibovich J. has already determined that no such agreement existed. In the Reasons for Decision of Leibovich J. of June 25, 2021, he stated:

Since the house has now been sold, it is not strictly necessary to determine whether there was a verbal agreement that the plaintiff allow the defendant to make $150 monthly payments until her house was sold. That being said, it is my view that while the defendant clearly told the plaintiff’s representative that she was only able to make $150 dollar payments until her house was sold, the defendant knew that they were not consenting to the arrangement or agreeing to waive their right to enforcement. I appreciate that neither the defendant nor Ms. Whiteman were cross-examined but in my view it makes no sense that the bank, for no consideration, agreed to hold off enforcement for marginal monthly payments which were less than the per diem interest cost, based on a promise to pay once her house was sold, without any information on what steps have been taken to sell the house, what would the house be listed for or what charges were there against the house. There was no new verbal agreement. (emphasis added)

[8] What is of particular note by reference to the aforesaid extract from the Reasons of Leibovich J., is his conclusion “There was no new verbal agreement”.

[9] In my view, the factual determination of Leibovich J. that there was no new verbal agreement is determinative of the Defendant’s motion for summary judgment. The entire foundation of Virgo’s argument rises or falls on whether or not there was an oral agreement between Virgo and TD, that in return for TD not taking collection proceedings against Virgo, Virgo would pay $150.00 per month. As determined by Leibovich J., no such verbal agreement was ever made.

[10] If no verbal agreement was made, no argument can be made that TD owed Virgo any duties as she alleges in her motion for summary judgment.

[11] The motion for summary judgment brought by Virgo is dismissed.

[12] As it relates to the issue of costs, this court will receive written submissions to be received no later than February 15, 2022, limited to two pages in length. If written submissions are not received within that timeframe, the court will assume that the issue of costs as between the parties has been resolved.

Regional Senior Justice M.L. Edwards

Date: January 31, 2022