COURT FILE NO.: CV-21-2255

DATE: 2022 02 11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Royal Bank of Canada, Plaintiff

AND:

Graham Hogarth and Nicole Christine Lobb aka Nicole Lobb, Defendants

BEFORE: Coats J.

COUNSEL: Alexandra Tratnik, for the Plaintiff

Graham Hogarth and Nicole Lobb, Self-Represented

HEARD: February 3, 2022

ENDORSEMENT

I. Nature of Motion

[1] In the motion before me the Plaintiff seeks summary judgment against the Defendants. The Plaintiff requests that the Defendants pay the sums the Plaintiff claims are owed to the Plaintiff as set out in the Statement of Claim. The Defendants brought a cross-motion seeking to strike the Affidavit of Kay Protacio, sworn November 8, 2021 and for disclosure.

II. Background

a) Line of Credit

[2] In or around October of 2019, the Plaintiff provided the Defendant Graham Hogarth with a Royal Bank Credit Line, evidenced by a Royal Credit Line Agreement signed by Graham Hogarth and dated October 3, 2019.

[3] As of June 18, 2021, Graham Hogarth was indebted to the Plaintiff with respect to the Credit Line in the amount of $70,889.10. Interest continues to accrue on the Credit Line from June 19 , 2021, to the date of payment at the Plaintiff’s prime interest rate in effect from time to time plus 2.49 per cent per annum.

[4] Graham Hogarth defaulted under the terms of the Credit Line and that default continues.

b) The Master Card

[5] Graham Hogarth also holds a Royal Bank of Canada credit card account (“MasterCard”) and as of June 14, 2021, he was indebted to the Plaintiff with respect to this account in the amount of $31,993.54. Interest continues to accrue on the MasterCard from June 15, 2021 to the date of payment at the rate of 24.99 per cent per annum.

c) The Overdraft

[6] As of June 11, 2021, the Defendants’ personal account has gone into overdraft in the amount of $827.51. Interest continues to accrue on this overdraft from June 12, 2021 to the date of payment at the rate of 22.00 per cent annum.

d) The Demand and Action

[7] The Plaintiff, on July 2, 2021, made demand for payment for the full outstanding indebtedness owing pursuant to the above-noted debts.

[8] Notwithstanding the demand, the Defendants have failed to pay the full indebtedness to the Plaintiff.

[9] The Statement of Claim was issued on August 11, 2001 and a Statement of Defence was received on or about August 25, 2021.

[10] In their Statement of Defence, the Defendants admit to entering into agreements with respect to the above-noted indebtedness but appear to allege, among other things, that they are withholding payment due the Plaintiff’s alleged non-compliance with the terms of the Personal Information Protection and Electronics Documents Act, S.C. 200, c. 5 (“PIPEDA”).

[11] The terms in the agreements for the above-noted credit facilities do not permit the Defendants to withhold payment on the basis of the Plaintiff’s non-compliance with PIPEDA. It is the Plaintiff’s position that it has complied with PIPEDA.

[12] Graham Hogarth signed a Client Agreement dated October 3, 2019 wherein he expressly agreed that the Plaintiff may collect financial and other personal information about him. The Client Agreement sets out what types of personal information the Bank may collect about Graham Hogarth as well as how such personal information may be used by the Bank.

[13] The Statement of Defence further alleges that the Plaintiff and its lawyer are “conspiring to conceal material facts” and are committing fraud by failing to provide what the Defendants believe is required by the Bank under the Canada Business Corporations Act, RS 1985 c. C-44 (“CBCA”).

III. Issues and the Law

a) Issue

[14] The issue on this summary judgment motion is whether there is a genuine issue of material fact requiring a trial with respect to whether the Defendants owe the amounts set out in the Statement of Claim.

b) The Law

[15] As set out in Rule 1.04 (1.1) of the Rules of Civil Procedure, the courts are required to make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amounts involved, in the proceeding.

c) Summary Judgment

[16] As provided for in Rule 20.04(2) of the Rules of Civil Procedure, the court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[17] Hryniak v. Mauldin, 2014 SCC 7, para. 4, provides that a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.

[18] The court should first determine if there is a genuine issue requiring a trial based only on the evidence in the motion record, without using the fact finding powers set out in Rule 20. 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.” (Masales v Cole, 2016 ONSC 763, at para. 49).

[19] As set out at para. 50 of Masales, if 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) provided that use of these Rules 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.

[20] Paragraphs 52 and 53 of Masales provides as follows:

[52] At para. 22 of her judgment in the companion case of Bruno Appliance and Furniture, Inc. v. Hryniak, supra, Justice Karakatsanis summarized the approach to determining when a summary judgment may or may not be granted; she stated:

Summary judgment may not be granted under Rule 20 where there is a genuine issue requiring a trial. As outlined in the companion Mauldin appeal, the motion judge should ask whether the matter can be resolved in a fair and just manner on a summary judgment motion. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. If there appears to be a genuine issue requiring a trial, based only on the record before her, the judge should then ask if the need for a trial can be avoided by using the new powers provided under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice.

[53] Justice Corbett provided a useful summary of the Hryniak v. Mauldin approach in Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, where he stated at paras. 33 and 34:

33. As I read Hryniak, the court on a motion for summary judgment should undertake the following analysis:

(1) The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;

(2) On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;

(3) If the court cannot grant judgment on the motion, the court should:

(a) Decide those issues that can be decided in accordance with the principles described in (2), above;

(b) Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues;

(c) In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.

34. The Supreme Court is clear in rejecting the traditional trial as the measure of when a judge may obtain a "full appreciation" of a case necessary to grant judgment. Obviously greater procedural rigour should bring with it a greater immersion in a case, and consequently a more profound understanding of it. But the test is now whether the court's appreciation of the case is sufficient to rule on the merits fairly and justly without a trial, rather than the formal trial being the yardstick by which the requirements of fairness and justice are measured.

[21] On a motion for summary judgment, the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial and that the parties have advanced their best case (Masales at paragraph 54).

[22] As stated at para. 54 of Masales, the onus is on the moving party to show that there is no genuine issue requiring a trial, but the responding party must present its best case or risk losing.

[23] The holding of a trial is unnecessary and, accordingly, represents a failure of procedural justice, in proceedings which do not involve any genuine issues which requires a trial (Irving Ungerman Ltd. v. Galanis (C.A.), 1991 CanLII 7275 (ON CA), at para. 20).

[24] As provided for in Rules 20.04(2.1), of the Rules of Civil Procedure, at a hearing of the summary judgment motion, the judge may weigh evidence, evaluate the credibility of the deponents, and draw any reasonable inferences from the evidence.

[25] On a motion for summary judgment a party must ‘put its best foot forward’ with respect to the existence or non-existence of material issues to be tried, and may not sit back and rely on the possibility that more favourable facts may develop at trial. (Transamerica Life Insurance Co of Canada v. Canada Life Insurance Co., 1996 CanLII 7979 (ONSC), para. 29).

[26] Once a moving party has met the appropriate test for summary judgment, the responding party must show a real chance of success in order to oppose the summary judgment motion. A self-serving affidavit is not sufficient in itself to create a triable issue in the absence of detailed facts and supporting evidence. (Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] 3 SCR 423, at paras. 27 and 31).

IV. Analysis

[27] I find there is not a genuine issue of material fact requiring a trial and that the Defendants owe the amounts set out in the Statement of Claim. There is no genuine issue requiring a trial with respect to a claim or defence. The Plaintiff has met their onus.

[28] The materials filed on this summary judgment motion are sufficient for the court to achieve a fair and just adjudication. The summary judgment process in this case is a proportionate, more expedient and less expensive means to achieve a just result than a trial.

[29] I find that there is no genuine issue requiring a trial based on the evidence filed on this motion. The Defendants admit they entered into agreements with the Plaintiff. They admit the amounts owing. They acknowledge the applicable interest rates.

[30] The Defendants state that the Plaintiff has not complied with PIPEDA. In my view, this is not a defence to their liability for the debts.

[31] PIPEDA is a federal statute that establishes rules governing the collection, use and disclosure of personal information by organizations in the course of commercial activities (s. 4(1)(a)). It is “consumer protection legislation for the digital economy” (W. Charnetski, P. Flaherty and J. Robinson, The Personal Information Protection and Electronic Documents Act: A Comprehensive Guide (2001), at p. 2). The purpose of Part 1 of PIPEDA (“Protection of Personal Information in the Private Sector”) is stated as follows in s. 3:

The purpose of this Part is to establish, in an era in which technology increasingly facilitates the circulation and exchange of information, rules to govern the collection, use and disclosure of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances.

(see Royal Bank of Canada v. Trang, 2016 SCC 50, [2016] 2 SCR 412, at para. 22).

[32] Division 2 of PIPEDA sets out the remedies available to complainants who believe that there has been a violation of the terms of PIPEDA and how complainants may apply to the federal court for a hearing. None of the remedies available include permitting the Defendants to withhold payment from the Bank in these circumstances (Personal Information Protection and Electronic Documents Act, SC 2000, c 5, at ss. 11-17.2).

[33] The Defendants also state that the Plaintiff has not complied with the Canada Business Corporations Act. This is not a defence to their liability for these debts.

[34] The Plaintiff is not a body corporate incorporated under the Canada Business Corporations Act, RSC 1985 c. C-44 (“CBCA”) and is therefore not governed by the CBCA or subject to its terms.

[35] The Defendants have brought a cross motion in which they seek:

1. An order to strike out the Plaintiff’s Affidavit due to lying under oath and misrepresentation.

2. An order for full disclosure, Plaintiff and Plaintiff’s lawyer to answer all questions in the Access to Information Request.

3. An order for draft order to be upheld.

[36] In terms of the claim to strike the Plaintiff’s Affidavit, this is in reference to the Affidavit of Kaye Protacio and in particular para. 1 of her Affidavit sworn, November 8, 2021. I do not find that para. 1 demonstrates that Ms. Protacio has lied under oath or misrepresented anything.

[37] In terms of the claim for disclosure, the disclosure requested does not relate to the Defendants responsibility for the debts.

[38] The Defendants say they want disclosure to be sure the bank is a legitimate organization and that the Plaintiff’s lawyer is legitimate and entitled to handle their data. The Defendant’s say they are concerned about fraudulent contracts and aiding and abetting fraud. There is no genuine issue requiring a trial in this regard. The Defendants admit they entered into these agreements and that they incurred the debts. The Defendants put forward no evidence of fraudulent contracts or fraud.

V. Conclusion

[39] The Defendants’ Motion is dismissed.

[40] The Plaintiff’s summary judgment motion is granted as follows (these amounts include further interest):

1. Graham Hogarth shall pay to the Plaintiff the sum of $73,090.63;

2. Graham Hogarth shall pay to the Plaintiff the sum of $37,119.22; and

3. Graham Hogarth and Nicole Christine Lobb aka Nicole Lobb shall pay to the Plaintiff the sum of $946.22.

[41] The judgment shall bear interest from its date:

a) at a rate of 4.94 per cent (Royal Bank prime rate plus 2.49 per cent) per annum with respect to the $73,096.63;

b) at a rate of 24.99 per cent per annum with respect to the sum of $37,119.22; and

c) at a rate of 22 per cent per annum with respect to the sum of $946.22.

VI. Costs

[42] I encourage the parties to resolve the issue of costs of the Motions. If they are unable to do so, the Plaintiff shall serve and file brief written submissions as to costs, limited to two pages (double spaced with regular font and margins), with a bill of costs attached, to be served and filed within 30 days of today.

[43] The Defendants shall serve and file brief written responding submissions as to costs, limited to two pages (double spaced with regular font and margins), (with a bill of costs attached, if the Defendants are claiming costs), to be served and filed within 60 days of today.

[44] The Plaintiff may serve and file a one-page submission in reply (double spaced with regular font and margins), within 75 days of today.

K. Coats

Electronic signature of Coats J.

Date: February 11, 2022