Capital One Bank v. Toogood, (2013) 313 O.A.C. 49 (DC)

• Judge: Edwards, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: June 27, 2013
• Jurisdiction: Ontario
• Citations: (2013), 313 O.A.C. 49 (DC);2013 ONSC 5440

Capital One Bk. v. Toogood (2013), 313 O.A.C. 49 (DC)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. NO.023

Capital One Bank (Canada Branch) (plaintiff/appellant) v. Laura M. Toogood, aka Laura Maria Toogood, aka Laura Marie Degenova (defendant/respondent)

(DC-12-463-00; 2013 ONSC 5440)

Indexed As: Capital One Bank v. Toogood

Court of Ontario

Superior Court of Justice

Divisional Court

Edwards, J.

September 6, 2013.

Summary:

The plaintiff bank brought an action for a credit card debt. No defence was filed. The clerk of the Small Claims Court refused to sign a default judgment. A deputy Small Claims judge dismissed the action. The plaintiff appealed.

The Ontario Divisional Court, per Edwards, J., allowed the appeal.

Creditors and Debtors - Topic 1436

Credit cards - Liability - Evidence and proof - The plaintiff bank brought an action for a credit card debt - No defence was filed - The clerk of the Small Claims Court refused to sign a default judgment - A deputy Small Claims judge dismissed the action - The plaintiff appealed, asserting that the deputy Small Claims judge erred by requiring the plaintiff to enter into evidence all of the credit card statements from the date that the account was opened to prove the amount owing instead of allowing the plaintiff to submit, as proof of the outstanding balance, the last statement - The Ontario Divisional Court, per Edwards, J., allowed the appeal - The deputy Small Claims judge's ruling was fundamentally flawed - Where the cardholder had been served with the claim and had chosen not to defend the claim, it made absolutely no sense for the credit card company to be required to file, with the court, all of the credit card statements back to the first statement that might have been issued to the cardholder - The cardholder agreement made clear that unless the cardholder contested a particular statement, the cardholder was deemed to have accepted the balance claimed as of the date of the statement - See paragraphs 22 to 28.

Practice - Topic 3229

Appearance and default proceedings - Proceedings in default of defence - Default judgment - Requirement of debt or liquidated demand - The plaintiff bank brought an action for a credit card debt - No defence was ever filed - The clerk of the Small Claims Court refused to sign a default judgment - A deputy Small Claims judge dismissed the action - The plaintiff appealed, asserting that the deputy Small Claims judge erred in ruling that a claim for a credit card debt, set out on an invoice and owing pursuant to a written credit card agreement, was not a liquidated demand for money - The Ontario Divisional Court, per Edwards, J., allowed the appeal - Adopting the five pronged test set forth in Holden Day Wilson v. Ashton (1993 Ont. Div. Ct.), the court was of the view that on the evidence before him, the deputy Small Claims Court judge erred in his conclusion that the plaintiff's claim on the credit card debt was not a claim for a liquidated debt - The debt was ascertainable by calculation - The calculation could be made by a reference to the credit card agreement which was filed before the court and adopted by the parties as the operative agreement - The method of calculation was agreed upon by the parties in the cardholder agreement which set forth the interest rate and the terms of the card - The calculation of the interest was straight forward as it was a calculation based on the outstanding balance - There was no need to make reference to anything outside of the cardholder agreement - See paragraphs 17 to 21.

Cases Noticed:

Cantalia Sod Co. v. Patrick Harrison Co., [1968] 1 O.R. 169 (H.C.), refd to. [para. 17].

Holden Day Wilson v. Ashton, [1993] O.J. No. 1195 (Div. Ct.), refd to. [para. 18].

Capital One Bank v. Matovska (2007), 230 O.A.C. 1 (Div. Ct.), refd to. [para. 19, footnote 2].

Canadian Imperial Bank of Commerce v. Prasad, [2010] O.T.C. Uned. 320; 2010 ONSC 320, refd to. [para. 23].

Gyimah v. Bank of Nova Scotia et al. (2013), 305 O.A.C. 198; 2013 ONCA 252, refd to. [para. 24].

Counsel:

Menachem M. Fellig, for the plaintiff/appellant;

No one appearing for the defendant/respondent.

This appeal was heard on June 27, 2013, by Edwards, J., of the Ontario Divisional Court, who delivered the following reasons for decision on September 6, 2013.