Royal Bank of Canada v. Clarke, 2011 ABQB 639

Court of Queen ’ s Bench of Alberta Citation: Royal Bank of Canada v. Clarke, 2011 ABQB 639 Date: 20111019 Docket: 1103 08364 Registry: Edmonton Between: Royal Bank of Canada Plaintiff - and - Charles Clarke Also Known As Charles L. Clarke and Christine Clarke Also Known As Chantale Christine Clarke Defendants _______________________________________________________ Memorandum of Decision of W. S. Schlosser, Master in Chambers _______________________________________________________ [ 1 ] This is a case about a loan for a travel trailer. [ 2 ] The bank issued a demand for payment of the accelerated balance of the loan July 9, 2010. When the demand went unanswered, the bank applied for

summary judgment. [ 3 ]

Summary judgment was given by Wacowich, M., Wednesday, August 31 after an ex parte application. However, it turned out that the defendant had received late notice so the bank rightly and properly asked that the Order be withdrawn and they renewed their

application. One of the Defendants filed an affidavit and appeared in person. [ 4 ] I am not able to give

summary judgment on the facts before me. [ 5 ] The bank ’ s affidavit sets out a demand but is silent about the default. The Defendant ’ s affidavit says that a payment was “ missed ” . It appears that the payments were to be made by pre-authorized automatic withdrawal. It is not clear why a payment was missed. The evidence appears to be that there were sufficient funds in the account.

In the circumstances one can surmise the default may have been generated by an oversight on the part of the bank, but the evidence is not clear. [ 6 ] The payment appears to have been missed when the Defendant Charles Clarke was on vacation. The bank provided two cases for my consideration: Pioneer Distributors Ltd. v. Accucraft Office Products Ltd. [1983] A.J. No. 692 and Branlin Construction Ltd. v. J. Giesbrecht & Son Cranes Ltd. [1994] A.J. No. 133 . Both are decisions of Master Funduk and concern situations where debtor and creditor are in different provinces.

These cases were cited as authority for the proposition that a debtor must seek out his creditor. However, it is not clear that this principle has any direct application to a case where both debtor and creditor are in Alberta and the debtor has agreed to pre-authorized withdrawals. [ 7 ] Furthermore, it is not clear where the onus would be with respect to a default if the default were engendered by

an act or omission by the creditor. [ 8 ] Finally, there is an issue of an estoppel. The Defendants ’ evidence is that there was an representation that the default could be cured by payment, which was made. [ 9 ] Paragraphs 1, 3, or 5 of the Statement of Defence might disclose one of the issues mentioned but the defence is inexpertly drafted and would have benefited from some legal assistance. The facts are shrouded in a deep fog. [ 10 ] There may be several nice issues and there are a number of unclear facts. In its current state, the matter is not fit for

summary disposition. Heard on the 12 th day of October, 2011. Dated at the City of Edmonton, Alberta this 19 th day of October, 2011. W. S. Schlosser M.C.C.Q.B.A. Appearances:

Steven Shafir Witten LLP for the Plaintiff self represented for the Defendant