



COURT OF APPEAL FOR ONTARIO

CITATION: The Energy Credit Union Limited v.
    Radwan, 2020 ONCA 136

DATE: 20200219

DOCKET: C67291

Doherty, Brown and Thorburn JJ.A.

BETWEEN

The
    Energy Credit Union Limited

Plaintiff (Respondent)

and

Pamella Radwan and Gregory
    Radwan

Defendants (Appellants)

David Conn, for the appellants

Oren Chaimovitch, for the respondent

Heard and released orally: February 13, 2020

On
    appeal from the judgment of Justice Michael Gibson of the Superior Court of
    Justice, dated July 15, 2019.

REASONS FOR DECISION

[1]

The appellant, Gregory Radwan, is the former CEO
    of a credit union. He and his wife, the appellant Pamella Radwan, own a home in
    Oakville (the Property).

[2]

In December 2015, the
    Radwans granted the respondent, The Energy Credit Union Limited (Energy
    Credit), a mortgage on their Property in the amount of $664,000. The mortgage
    stipulated that it was ON DEMAND and [s]ubject to MeritLine Home Equity
    LOC. The evidence before the motion judge was that MeritLine is a
    trademarked equity line of credit product offered by the Canadian Credit Union
    Association.


[3]

The Radwans refinanced
    their mortgage with Energy Credit in January 2017. They increased the amount of
    their equity line of credit to $736,000. The Meritline  Home Equity Line of
    Credit Agreement they signed states that all advances under the MeritLine are
    repayable upon demand. The new mortgage on the Property stipulates that it is
    On Demand. An Acknowledgement and Direction signed by the Radwans also states
    that the loan facility is ON DEMAND.

[4]

The Radwans failed to
    meet their payment obligations under the equity line of credit, resulting in
    Energy Credit making demand for payment in full. The Radwans did not pay the
    balance due or refinance the mortgage. Energy Credit commenced this action for
    judgment on the amount due under the mortgage and possession of the Property.
    The motion judge granted Energy Credit summary judgment.

[5]

On appeal, the Radwans
    advance three main arguments. First, they submit the motion judges reasons
    failed to address (i) the appellants evidence that they did not sign a set of
    standard charge terms and (ii) Pamella Radwans level of sophistication as a
    borrower. Second, the Radwans argue that the motion judges reasons were
    inadequate and did not provide insight into how the legal conclusion was
    reached. Third, they contend that the motion judge failed to consider important
    issues of credibility.

[6]

We are not persuaded by
    any of these submissions.

[7]

The reasons of the
    motion judge clearly disclose the basis for his decision.  He wrote:

The Defendants signed a valid agreement. They
    benefited from the advance of funds under the mortgage. They have defaulted on
    their payment obligations. It was not incumbent upon the lender in these
    circumstances to insist that the borrowers obtain legal advice. It is not
    credible that these borrowers did not understand what on demand meant.

[8]

We see no palpable and
    overriding error in those findings. They are amply supported by the evidentiary
    record before the motion judge, specifically:

·

The terms of the 2017 credit facility and
    mortgage were not novel ones for either Gregory or Pamela Radwan. Both had
    previous experience with an on demand mortgage. They had entered into an on
    demand credit facility, secured by a $664,000 on demand mortgage, with Energy
    Credit in 2015;

·

Mr. Radwan acknowledged that at the time they
    entered into the 2017 credit facility, he was a senior executive at another
    credit union;

·

There was no suggestion of undue influence or
    fraud that could impose upon the credit union an obligation to ensure a
    borrower received independent legal advice:
Bank of Montreal v.
    Featherstone
(1989), 68 O.R. (2d) 541 (C.A.);

·

None of the documents signed by the Radwans support
    their assertion that they thought they were entering into a one-year,
    interest-only mortgage;

·

There was no dispute that the Radwans signed
    documents in which they agreed to an on demand credit facility: specifically,
    the Meritline  Home Equity Line of Credit Agreement and the Acknowledgement
    and Direction, which included their acknowledgement of the receipt of the
    standard charge terms;

·

The Radwans do not dispute the amount of debt
    they owe Energy Credit;

·

The Radwans admit that the mortgage fell into
    arrears in late 2018; and

·

In any event, on the Radwans contention that
    the credit facility was secured by a mortgage with a 12-month term, they were
    in default of the mortgage at the time Energy Credit demanded payment in full.

[9]

The adequacy of the
    reasons is measured in the context of the evidence adduced. Reading the motion
    judges reasons in the context of the evidence, they adequately explain the
    basis for his decision.

[10]

For these reasons, the
    appeal is dismissed.

[11]

The appellants shall
    pay Energy Credit its costs of the appeal fixed in the amount of $6,500,
    inclusive of disbursements and applicable taxes.

Doherty
    J.A.

David
    Brown J.A.

Thorburn
    J.A.


