Gorsalitz v. BMO Bank of Montreal, 2012 ABQB 24

Court of Queen ’ s Bench of Alberta Citation: Gorsalitz v. BMO Bank of Montreal, 2012 ABQB 24 Date: 20120111 Docket: 1103 08885 Registry: Edmonton Between: Murray Gorsalitz Plaintiff - and - BMO Bank of Montreal Defendant _______________________________________________________ Memorandum of Decision of W. S. Schlosser, Master in Chambers _______________________________________________________ [ 1 ] This is the Defendant Bank’s application for

summary judgment. [ 2 ] The lawsuit is an action by a borrower against the bank. It came before me in regular chambers. I reserved so that I could review the materials. [ 3 ] The Plaintiff is a former employee of the bank. He financed two condominiums: one in Edmonton and one in Fort McMurray. In November 2010, the Plaintiff indicated he was giving up responsibility for the Edmonton condominium and the bank foreclosed.

[ 4 ] The bank has called in two other debts, a line of credit and a home line of credit. They have also commenced foreclosure proceedings against the Lloydminister property which has reached the Order Nisi stage. [ 5 ] The lawsuit makes variety of allegations ranging from defamation to improper treatment. The Plaintiff feels that he has been singled out and has been treated unfairly by the bank. [ 6 ] All of the allegation in the Statement of Claim have been met and denied by the bank in an Affidavit by one of its managers, including the ability of the bank to proceed against the other loans and securities. [ 7 ] The test for

summary judgment is well established: is it ‘plain and obvious’ or ‘beyond doubt’ that there is (in this case) no merit to the claim or part of it: Rule 7.3(1)(b). [ 8 ] The legal burden is on the Applicant bank throughout. The Respondent is not obliged to furnish evidence. However, if an Applicant discharges the evidentiary burden imposed upon it on a balance of probabilities, the evidentiary burden then falls to the Respondent to show that there is arguable merit to the case. Murphy Oil Company Limited v. Predator Corp. Ltd.

(2006) ABCA 69. [ 9 ] The Respondent runs a risk if they do not adduce any evidence in response to the application. Parties are expected to put their best foot forward. The court cannot base its decision on what evidence might be generated later in the lawsuit, should it be allowed to continue. Canada (Attorney General) v. Lamenan ,

(2008) SCC 14. [ 10 ] Based on the materials filed, the Applicant/Defendant bank has satisfied the legal and evidentiary burden imposed upon it. [ 11 ] The Respondent/Plaintiff filed a somewhat lengthy Affidavit in response. The text of the Affidavit itself is very brief, (3 paragraphs). However there are lengthy exhibits attached which are in substance more like a Blog They consist of a rough diary of events and include some transcriptions of conversations the Plaintiff had with a bank official.

The Affidavit also includes a facebook entry from his sister. [ 12 ] Unfortunately, none of this information or evidence satisfies the evidentiary burden that has passed to the Respondent in this application. In fact, some of the information confirms and supports portions of the bank’s evidence. There does not appear to be any direct factual conflict, at least none that would raise a triable issue. [ 13 ] The Plaintiff/Respondent is deeply suspicious of what the bank may have told others but defamation is a tort that requires very specific pleading.

A party must identify the alleged defamatory words and the circumstances of their publication. A mere suspicion that something might have been said to someone else is not enough for a cause of action. [ 14 ] Accordingly, the bank has discharged the legal and evidentiary burden imposed upon it and the bank’s application for

summary dismissal must succeed. [ 15 ] As this action is essentially part and parcel of other proceedings which attract solicitor and client costs in favour of the bank, I am disinclined to award costs of this application or the action to the bank. However, the parties may speak to costs if they so desire. Heard on the 15 th day of December, 2011.

Dated at the City of Edmonton, Alberta this 11 th day of January, 2012. W. S. Schlosser M.C.C.Q.B.A. Appearances: Murray Gorsalitz self represented Richard Cotter, Q.C. Fraser Milner Casgrain LLP for the Defendant