Small Claims Court

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA

Citation: Bank of Montreal v. Eyland, 2018 NSSM 82

 

Claim No: SCCH 465875

 

BETWEEN:

 

Bank of Montreal

Claimant

 

-and –

 

 

Sarah Eyland (a.k.a. Sarah J. Eyland;

a.k.a. Sarah Eyland Fisher)

Defendant

 

Jonathan Saumier represented the Claimant.

 

Billy Sparks represented the Defendant.

 

Editorial Note: The electronic version of this judgment has been edited for grammar, punctuation and like errors, and addresses and phone numbers have been removed.

 

 

DECISION

 

(1)          This claim is brought by the Bank of Montreal for payment of an Air Miles Mastercard balance which is in arrears. The amount claimed is $9426.38.

(2)          The Claimant’s solicitor submitted into evidence the affidavit of Mark Hebert, Branch Manager of the Bank’s branch at 254 Baker Drive in Dartmouth. The affidavit contained the loan application, account agreements and transaction statements. Mr. Saumier called no further evidence.

(3)          Mr. Hebert was available for cross-examination by Mr. Sparks which I have summarized below. The Defendant called no evidence. Submissions were heard at the conclusion of evidence. The Defendant alleges significant gaps in the evidence so as to call into doubt the Claimant’s proof of the debt. The Bank disputes this, submitting the documents are clear on their face and the cross examination has not discredited the Claimant.

Issues

(4)          Has the Claimant proven the debt on the balance of probabilities?

(5)          For the reasons stated below, I have found in favour of the Bank and awarded the full amount claimed.

 

Background

Affidavit of Mark Hebert

(6)          In his affidavit, Mark Hebert swore the Defendant, Sarah Eyland, submitted an application for a credit card dated November 23, 2011. A Master Card account was issued with a card number to Ms. Eyland. On June 4, 2013, a separate card was issued to one Kyle Murphy, as an authorized user on the account at the request of Ms. Eyland. Mr. Murphy’s card was later replaced. Ms. Eyland’s card was also replaced for security reasons on or about August 13, 2014. This subsequent number was replaced again and a new card number was issued. This card was cancelled on March 29, 2015 for security reasons and a new card issued to the Defendant.

(7)          Based on this evidence, Ms. Eyland was issued a total of four cards, while Mr. Murphy was issued two cards. Each card all had different card numbers operating from the same account.

(8)          The documentation provided, in effect, that Ms. Eyland is liable for all charges on the account. There have been no payments since February 2017.

Cross Examination

(9)          In cross examination, Mr. Hebert acknowledged the first transaction on the account occurred November 3, 2012, almost a year after the application. Kyle Murphy appears on the statements on July 3, 2013. Since January of that year, Mr. Murphy was an authorized card holder. Mr. Hebert acknowledges that he has not met or dealt with Ms. Eyland. There were balances on both dates and subsequent transactions. It is clear the two incurred charges together during that time and both changed residences several times as well. He confirmed he does not have personal knowledge of the applications, the circumstances surrounding the addition of Mr. Murphy as a card holder or why he was removed after April 2014.

(10)       In redirect evidence, Mr. Hebert provided several “DOS” printout screens showing different successive card numbers to Ms Eyland. He indicated the Bank does not issue an initial card number until credit has been approved. He has worked at the Bank of Montreal since 2012. He believes Ms. Eyland received a copy of the cardholder agreement.

 

Submissions

(11)       In his submissions, Mr. Saumier provided that the Application contemplates the provision and amendment of a cardholder agreement from time to time. He relies on
s. 21 of the Evidence Act (NS) that the entries and accounts are prima facie correct.

(12)       Mr. Sparks submits the evidence is insufficient to show the numbers correspond with Ms. Eyland’s application. Further, he noted there were gaps in the statements to show charges that increased. There was no documentation surrounding the inclusion and exclusion of Kyle Murphy.

Findings

(13)       In reviewing the evidence, I find the Defendant, Sarah Eyland, applied for credit in 2011 for a Master Card. It was the Bank’s practice at the time (as it is today) to defer issuing an account number until credit has been approved. I do not consider it misleading or ambiguous. The application provides that a cardholder agreement will be issued.

(14)       In terms of the entries while held by Kyle Murphy, I refer to s. 21 of the Evidence Act relied on by Mr. Saumier. That section states as follows:

Bank entry

       21      (1)    Subject to this Section, a copy of any entry in any book or record kept in any bank shall in all legal proceedings be received as prima facie evidence of such entry and of the matters, transactions and accounts therein recorded.

               (2)     A copy of an entry in such book or record shall not be received in evidence under this Section unless it be first proved that the book or record was at the time of the making of the entry, one of the ordinary books or records of the bank, and that the entry was made in the usual and ordinary course of business, and that the book or record is in the custody or control of the bank and that such copy is a true copy thereof and such proof may be given by the manager or accountant of the bank and may be given orally or by affidavit, sworn before any commissioner or other person authorized to take affidavits.

 

(15)       I find the statements were made during the ordinary course of business of the Bank. There was no evidence disputing their accuracy.

(16)       With respect to the entries related to Kyle Murphy, I agree the lack of documentation concerning his involvement in the account is ambiguous. The accounts were sent out for a period of 15 months with Mr. Murphy’s name on them. Ms. Eyland was not present in Court to raise any concern regarding his involvement.

(17)       In the circumstances, I believe it appropriate to draw a negative inference. I quote from the case of Scotia Fuels Limited v. Lewis (1991), 102 N.S.R. (2d) 12 where Justice Jamie Saunders then of the Supreme Court of Nova Scotia, who stated as follows:

“24  .....It is well recognized that where a party or a witness fails to present evidence, which was in the power of the party or witness to give, then such failure justifies the court in drawing the inference that the evidence would have been unfavourable to the party to whom the failure was attributed....”

 

(18)       In the circumstances, I am satisfied Mr. Murphy’s name was on the account with Ms. Eyland’s acquiescence. Accordingly, I find nothing out of the ordinary with the Bank’s claim. I find Ms. Eyland entered into an agreement for a credit card. She was principally liable for all charges and interest. The amount claimed has been proven in evidence. Ms. Eyland shall be liable for the full amount of the debt claimed by the Bank.

(19)       The June 2017 statement showed an amount owing of $9331.33. The interest rate charged is 11.90 per annum or 0.0326% per diem. Mr. Saumier submits his client seeks $9426.38 all inclusive, which I am prepared to award.

 

Summary

(20)       In summary, the Claimant shall have judgment in the amount of $9426.38. An order shall issue accordingly.

 

Dated at Halifax, NS,

on February 1, 2018;

 

                                                                                                                                                                                                            ______________________________

    Gregg W. Knudsen, Adjudicator

           

                        Original:          Court File

                        Copy:              Claimant (s)
Copy:              Defendant(s)