



COURT OF APPEAL FOR ONTARIO

CITATION: Gyimah v. Bank of Nova Scotia, 2013 ONCA 252

DATE: 20130423

DOCKET: C56150

Blair, Juriansz and Tulloch JJ.A.

BETWEEN

Anthony Gyimah

Plaintiff (Appellant)

and

The Bank of Nova Scotia, Scotialine Visa, Mike
    Mckeil and Avin Sharma

Defendants (Respondents)

Anthony Gyimah, in person

Kate Findlay, for the respondents

Heard & released orally: April 9, 2013

On appeal from the summary judgment of Justice Janet
    Wilson of the Superior Court of Justice, dated October 12, 2012.

ENDORSEMENT

[1]

On October 12, 2012, Wilson J. granted summary judgment dismissing Mr.
    Gyimahs claim against the Bank defendants and granting the defendants
    counterclaim in the amount of $18,491.23 together with pre-judgment interest
    and costs.

[2]

In the action, Mr. Gyimah claimed substantial damages against the
    defendants for what he alleges was the wrongful termination of his loan
    facilities  in particular, a line of credit and a Visa card. The defendants
    counter-claimed for the amounts outstanding on the loan facilities at the time
    of cancellation

[3]

Mr. Gyimah appeals from the summary judgment awards, arguing that there
    is a genuine issue for trial both with respect to his claim for damages for
    mental and emotional stress, financial hardship and damage to his credit
    rating, as well as with respect to the amounts owing. The defendants
    cross-appeal against the awards of pre-judgment interest and costs made by the motion
    judge, arguing that the loan facilities contracts entitled them to more.

[4]

We dismiss the appeal in the main action and counter-claim, but allow
    the cross-appeal with respect to interest. In all of the circumstances, we
    would not grant the defendants leave to appeal costs.

[5]

Mr. Gyimah complains about various actions by the Banks
    representatives, and we note that the motion judge took some of these
    considerations into account in her order of costs while properly concluding
    that they could not amount to negligence or breach of contract in the
    circumstances.

[6]

The legal reality is that the Bank defendants have very broad powers
    under the loan facilities contracts to renew, amend or cancel the loan
    facilities. In particular, the Personal Credit Agreement Companion Booklet
    (PCACB) (a document incorporated into the contracts) entitles the Bank
    defendants to require the total balance of the loan to be paid, without prior
    notice or demand where, amongst other things anything else happens that [the
    Bank defendants] believe endangers [the clients] ability to pay or that [the
    Bank defendants] believe endangers the property in any way (PCACB, p. 70). In
    addition, the PCACB provides that the Bank defendants are entitled to cancel
    the agreements if the client [is] not handling [his or her] account in
    accordance with this agreement
or our requirements
 [Emphasis added].

[7]

The defendants received credible information in the form of a credit
    report that Mr. Gyimah posed a high credit risk and, indeed, that other
    financial institutions appeared to hold the same view. They also conducted a
    review that disclosed some history (albeit dated) of uneven payments by Mr.
    Gyimah on their own accounts.

[8]

Under the provisions of the loan facilities contracts, notwithstanding
    that the accounts were in good standing at the time, the Bank defendants were
    entitled to demand updated financial information from Mr. Gyimah (which he at
    least delayed in providing) and, were entitled to cancel the loan facilities.

[9]

We see no error on the part of the motion judge in granting summary
    judgment dismissing his action and accepting the Banks sworn testimony as to
    the amount outstanding.

[10]

In
    our view, however, the motion judge erred in failing to grant pre-judgment
    interest at the rate provided for in the contracts (accepted to be 7.5%) and
    instead imposing the lower rated provided for under the
Courts of Justice
    Act
: see
Bank of America Canada v. Mutual Trust Co.
, [2002]
    S.C.J. No. 44 (S.C.C.) at paras. 45-46. We therefore allow the cross-appeal and
    vary the judgment below to provide for pre-judgment interest at the rate of
    7.5% per annum.

[11]

With
    respect to the cost cross-appeal, we decline in the circumstances to grant
    leave to appeal.

[12]

The
    loan facilities contracts entitle the Bank defendants to recover their
    indemnity costs. In these circumstances, we interpret that to mean substantial
    indemnity costs. Accordingly, the Bank defendants are entitled to their costs
    of the appeal and cross-appeal fixed in the amount of $10,342.91 all inclusive.

R.A. Blair J.A.

R.G. Juriansz J.A.

M.H. Tulloch J.A.


