Royal Bank of Canada v. Raincock, 2013 CarswellOnt 5915, 2013 ONSC 2876.
Ontario Superior Court of Justice
RoyalBank of Canada v. Raincock
2013 CarswellOnt 5915, 2013 ONSC 2876, 228 A.C.W.S. (3d) 712
RoyalBank of Canada, Plaintiff and Ann S. Raincock, Defendant
Heard: May 14, 2013
Judgment: May 14, 2013
Counsel: Natalie Marconi, for Plaintiff
Lauren Kenley, for Defendant
Subject: Public; Labour; Civil Practice and Procedure; Corporate and Commercial
Related Abridgment Classifications
For all relevant Canadian Abridgment Classifications refer to highest level of case via History.
Labour and employment law --- Labour law — Collective agreement — Employee benefits — Non-pecuniary benefits
Table of Authorities
Cases considered by Morgan J.:
Oakley v. RoyalBank of Canada (2013), 2013 ONSC 145, 2013 CarswellOnt 276 (Ont. S.C.J.) — considered
RoyalBank v. Lau (2008), 2008 CarswellOnt 7438 (Ont. S.C.J.) — considered
1 Plaintiff claims payment for the outstanding amount owing under a Visa Credit Account in respect of card numbers 4514 0116 0119 4499 and 4514 0118 0110 3084.
2 The Visa statements exhibited in the record show that they are in the names of N. Raincock and the Defendand Ann S. Raincock. The Plaintiff submits that the Visa account is a joint account and that both named account holders are jointly and severally liable for any balance owing on this account.
3 The Defendant deposes that her husband, Nigel Raincock, applied for the Visa cards and is the sole person liable on the account. She submits that her understanding was always that she was a supplementary card holder on her husband’s account, but that she is not liable for any amounts owing on the account.
4 Nigel Raincock has made an assignment in bankruptcy. The Plaintiff now seeks judgment against the Defendant for the entire amount owing on the account. This amount was $34,015.84 as of December 12, 2011, with interest at 19.99% per annum.
5 It is clear that while Mr. Raincock may have initially applied for the Visa cards, neither Mr. Raincock nor the Defendant ever actually signed a Visa agreement. Rather, the cardholders sign the back of each credit card, which contains a note indicating that by signing the card the cardholder agrees to the terms of the Visa agreement. The Defendant claims not to have noticed that note on the back of the card. I believe her. The note is so small and difficult to read that it is hard to believe that anyone ever notices it.
6 That said, there is nothing unclear or difficult to read about the monthly invoices that the Defendant and her husband have been receiving for years. Both names are listed as account holders. The mailing address is either the shared business address or the shared home address of the Defendant and her husband. Every month a single joint statement is issued for the two cards held by Mr. Raincock and the Defendant. The RoyalBank of Canada rewards points, the payment information, the credit limit, the interest rate, and the total balance owing are reported and billed as joint amounts on these monthly statements.
7 The evidence shows that the Defendant regularly used a Visa card listed on the account. It may be that the Defendant somehow misunderstood her status as joint account holder, but that misunderstanding was no fault of the Plaintiff’s. There is no affidavit of Nigel Raincock in the record, and no statement by the Defendant that the Plaintiff somehow misled her as to her liability. The monthly statements are unambiguously issued to her and her husband jointly.
8 Moreover, the record shows that when Mr. Raincock and the Defendant applied for an increase in their credit limit, the Plaintiff requested information from the Defendant regarding her own income. There would be no reason for a bank to require proof of a person’s income if that person were not liable on a credit agreement. The Defendant supplied the income information requested by the Plaintiff and was awarded the increased credit limit.
9 It does not matter that the Defendant never signed the Visa agreement or that she did not notice the note on the back of the Visa card that she signed. Section 68(1) of the Consumer Protection Act, 2002, SO 2002, ch 30, Sch A (the “Act”), provides that “a consumer who...receives a credit card from a credit card issuer without applying for it shall be deemed to have entered into a credit agreement with the issuer with respect to the card on first using the card.”
10 Once the Defendant began using her Visa card and accumulating the charges recorded on her monthly statements, she was liable to pay the balance owing on the joint account. As this court held in Oakley v. RoyalBank of Canada, 2013 ONSC 145 (Ont. S.C.J.), one of two joint account holders is liable for the unpaid balance on the entire credit card account despite a paucity of evidence that the co-account holder had actually signed a credit card agreement.
11 Further, the Defendant’s alleged misunderstanding of her status on the account does not effect her status as a liable account holder. A similar argument was put forward by a joint account holder in RoyalBank v. Lau (2008), 173 A.C.W.S. (3d) 483 (Ont. S.C.J.) [2008 CarswellOnt 7438 (Ont. S.C.J.)], where a Visa card holder likewise pointed to her spouse as the sole liable party despite the account being a joint account. As Wilson J. put it (at para 10):
She seems to rely on statements made by her husband as to the use of the card and who was responsible to make the payments. Even if he told her that she would have no liability for debt arising from the use of the card, this is no defence to the summary judgment motion before me.
12 I find that the Defendant is a joint account holder of the Visa account in issue, that she used her Visa card to purchase items on credit and thereby incurred debt. She therefore is deemed to have agreed to the terms of the Visa agreement, which makes her jointly and severally liable for the outstanding balance on the account.
13 There is no genuine issue for trial here. Any issues of credibility raised by the Defendant are entirely resolved by the documented Visa statements. Moreover, the Act makes it clear that the Defendant is liable to the Plaintiff under the circumstances in which the Visa card was used and the debt incurred.
14 Judgment shall issue in favour of the Plaintiff in the amount of $34,015.84, which interest running from December 12, 2011 at 19.99% per annum.
15 The Plaintiff has a contractual right under the Visa agreement for full legal fees to be paid by the account holders. While cost awards are discretionary by the court, I can take into account the fact that there is a contract in existence which calls for legal fees to be paid in exercising that discretion.
16 The Plaintiff has submitted a Costs Outline with costs that are, in any case, reasonable. Counsel appearing before me for the Plaintiff was called to the bar in 1989, and has used the billing rate of $275 per hour. Some of her peers in other firms might consider that rate to be quite modest. The Defendant shall pay the Plaintiff $10,026.85 on account of costs, inclusive of disbursements and HST.
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