Craik v Alberta Treasury Branches, 2012 ABQB 373

Court of Queen ’ s Bench of Alberta Citation: Craik v Alberta Treasury Branches, 2012 ABQB 373 Date: 20120605 Docket: 1001 17943 Registry: Calgary Between: James Wayne Craik Plaintiff - and - Alberta Treasury Branches (ATB Financial), Dave Mowat, Cathy Trombley, Steven Fedorchuk, Samson Lamb, Jim Jamieson, Susan Lucas, Irene Perkins Defendants _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J. Strekaf _______________________________________________________ I. Introduction [ 1 ] On March 1and 2, 2012, I heard cross-applications in this action which I am case-managing. The plaintiff James Craik applied for

summary judgment and the corporate defendant Alberta Treasury Branch and the individual defendants, all of whom were employees of the Alberta Treasury Branch, applied for

summary dismissal of the action. For the purposes of this decision, I will refer to the defendants collectively as the ATB, unless the context requires otherwise.

[ 2 ] Essentially Mr Craik claims that he was wrongfully charged service charges of $18 per month on his bank account (which account ended in the numbers 42 and which will be referred to as Account 42 in this decision) commencing in June 2009, that he was improperly accused of having made lewd and vulgar comments in the branch by the ATB, that the ATB’s conduct was contrary to various provisions of the Fair Trading Act, RSA 2000, c F-2, the Alberta Treasury Branches Act , RSA 2000, c A-37 the Financial Consumers Act , RSA 2000, c.

F-13, and that the ATB’s actions constituted extortion and defamatory libel, contrary to the Criminal Code , RSC 1985, c C-46. He seeks a variety of relief, including punitive damages of $5 million. The ATB’s position is that the service charges were properly charged pursuant to the agreement between the ATB and Mr Craik in respect of Account 42 and that they are not liable to Mr Craik under any of the above legislation, or at all. II. The Law [ 3 ] Mr Craik’s application for

summary judgment is brought pursuant to Rule 7.2 of the Rules of Court which provides that the Court may give judgment to which an applicant is entitled “when (

a) admissions of fact are made in a pleading or otherwise, or (

b) the only evidence consists of records and an affidavit is sufficient to prove the authenticity of the records in which the evidence is contained.” The ATB’s application is brought pursuant to Rule 7.3 which states in part: 7.3(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: (

a) there is no defence to a claim or part of it; (

b) there in no merit to a claim or part of it; (

c) the only real issue is the amount to be awarded. 7.3(2) The application must be supported by an affidavit swearing positively that one or more of the grounds described in subrule (1) have been met or by other evidence to the effect that the grounds have been met. [ 4 ] The substantive test applied by the Court on applications for

summary judgment or

summary dismissal under Rules 7.2 and 7.3 is the same. The applicant must demonstrate that it is plain and obvious that there is no genuine issue for trial. The test was outlined by the Alberta Court of Appeal in the context of a

summary dismissal application in Murphy Oil Co v Predator Corp , 2006 ABCA 69 , 384 AR 251, at paragraphs 24- 25 :

Summary judgment against a plaintiff, or a plaintiff by counterclaim, will only be granted where there is no genuine issue for trial. It must be "plain and obvious" that the action cannot succeed: Boudreault v. Barrett (1998), 219 A.R. 67, 1998 ABCA 232 at para. 9 ; Prefontaine v. Veale (2003), 339 A.R. 340, 2003 ABCA 367 at para. 9 . Other formulations of the burden to be met by a moving party include the "beyond doubt" standard. When a chambers or case management judge must necessarily assess the quality and weight of evidence to come to a decision, the failure of the case is not beyond doubt: Lui v. Tangirala (2004), 131 A.C.W.S. (3d) 627, 2004 ABCA 171 at para. 2 . The analysis of a

summary judgment application is performed in two stages. In the first, the moving party must adduce evidence to show that there is no genuine issue for trial. Once the moving party has met that burden, the responding party may adduce evidence to persuade the court that there remains a genuine issue to be tried. It may choose to adduce no evidence, but then bears the risk that the judge will decide that the evidence adduced by the moving party has established that there is no genuine issue to be tried. See Watts Estate v.

Contact Canada Tourism Services Ltd. (2000), 261 A.R. 66 , 2000 ABCA 160 at para. 86 ; Pioneer Exploration Inc. Estate (Trustee of) v. Euro-Am Pacific Enterprises Ltd. (2003), 339 A.R. 165 , 2003 ABCA 298 at para. 15 ; and 732311 Alberta Ltd. v. Paradise Bay Spa & Tub Warehouse Inc. (2003), 339 A.R. 386, 2003 ABCA 362 at paras. 10-12 . III. Relevant Facts [ 5 ] The affidavit evidence before me establishes that Mr Craik has been banking at the ATB branch located at the Brentwood Village Shopping Centre since at least 1995. Pursuant to an application dated May 15, 1995, he and Ms Ann Louie opened Account 42.

Paragraph 2 of the account agreement executed by them provided that: I agree to be bound by the conditions of operation for the Account, as amended by ATB from time to time without notice to me, and agree to pay such fees and charges in connection with the operation of the Account as may be established by ATB from time to time. The account agreement was amended by ATB effective November 20, 2006 when the new ATB Financial Personal Account Agreement Terms and Conditions came into effect. It provided in part: 1.2 General Terms You agree to, and are bound by, all the terms and conditions of this Agreement if :...(

b) You conduct a transaction of the Account. 4.4 Other Charges You must pay all fees that apply to the Account and this Agreement. The current charges for these items are set out in the Rate and Fee Schedule. ATB Financial will charge these fees to the Account at the time they are incurred and can use any monies in the Account to do this. These charges include, but are not limited to: (

a) Any charges ATB Financial assesses for the handling of purported payments for the Account returned unpaid upon presentation for payment; (

b) ATB Financial’s Service charges for the retrieval of sales slips, Cheque copies or images, issuance of replacement Statements or Customer Cards, cash advances from automated banking machines, over the counter cash advances and credit bureau searches; (

c) If we have consented to overdraft privileges for the Account, any charges ATB Financial assesses for these privileges; (

d) The annual and any supplemental fee charges by ATB Financial for a Customer Card, or any service; (

e) Any administrative fee charged by ATB Financial for purchases, cash advance or Cheques made or drawn in a foreign currency; (

f) Any liability of the Account Holder incurred under any agreement with ATB Financial; or (

g) Where permitted by law, other administrative items. 7.2 Notices and Change of Address Any notice to be given by ATB Financial under this Agreement will be deemed effectively given if sent by ordinary mail to the address provided by you last appearing on ATB Financial’s Account records. Any communication sent by ATB Financial will be deemed to be sufficient communication to each of you who have signed the Application and, or Signature Card. You agree to immediately notify ATB financial of any change of address.

Any Notice to be proved to ATB Financial under this agreement must be directed to ATB Financial’s address appearing on the most recent statement. 8 Amendments ATB Financial may amend, modify, or replace this Agreement from time to time, by giving notice to you. You accept any amendment, modification, or replacement, if any transaction is conducted on the Account after the effective date of such notice.

You may cancel a service by providing written notice to ATB Financial. ATB Financial may at any time amend any service or privilege available or offered, or may at any time add or terminate any such service or privilege without notice to you. [ 6 ] Account 42 was initially used by Mr Craik and Ms Louie in connection with a Home Equity Line of Credit (HELOC). The HELOC was paid out and discharged at their request in 2000. The ATB’s practice is to waive account fees when a credit facility is attached to an account.

In June 2009, ATB undertook a comprehensive review of all accounts that were not being charged any service charges and determined that it had not been charging account fees on Account 42, notwithstanding that the HELOC had been paid out. ATB advised Mr Craik and Ms Louie by a letter dated June 23, 2009 that monthly service charges would be applied commencing the end of June. The letter stated: A recent review of our accounts where service charges have been waived for some time indicates that we have not been collecting monthly service charges from your account.

The account appears to warrant operating charges, however, we would like to provide you with the opportunity for a review, should you wish to do so. ATB Financial offers a variety of accounts with features, benefits and pricing geared to how customers wish to do their banking. There are several ways to review this information... ATB began charging Account 42 with a monthly flat fee of $18 per month commencing June 30, 2009. [ 7 ] Mr Craik wrote to Dave Mowatt, the President and CEO of the ATB, on September 28, 2009 complaining that “changes have been made to my banking account that I have not authorised.

This includes changing the account and taking money out of that account that I did not authorize.” [ 8 ] Cathy Trombley, Customer Relations Manager of the ATB, responded by a letter dated October 16, 2009 which stated in part: Upon review I see you are currently operating an ATB Advantage account. The ATB Advantage Account offers customers an all- inclusive account with unlimited transactions and extra services for one low fee. However, there is a balance waiver option, whereby ATB will waive the fee if you maintain a larger balance.

It appears that for a number of years ATB has been waiving applicable fees on the account contrary to the conditions of the balance waiver. Account fees are representative of the costs to ATB to provide the services associated to the accounts. As a result, ATB has been providing this service at a cost to ATB without receiving compensation for this cost. On June 24, 2009, a letter was issued that advised ATB would no longer be waiving fees on your joint account held with Anne Louie. A copy of the content of this letter is attached for your reference.

ATB should have applied the fee on your account since the initial arrangements had been made and you are fortunate that ATB had permitted this service at no charge for this period. Expectedly, we are not able to continue with this arrangement and ATB cannot waive this fee going forward. [ 9 ] On May 6, 2010, Jim Jamieson, the ATB Brentwood Village Mall Branch Manager wrote to Mr Craik which stated: It has come to my attention that when you attended the branch to conduct business on April 30, 2010, you made personal remarks regarding one of our associates.

Upon investigating, another associate indicated that just days before, you were advised that lewd, vulgar comments made while in the branch were unacceptable and had to stop or you would be asked to leave. The behavior is offensive and disrespectful of our associates and will not be tolerated. We expect our employees to treat our customers with dignity and respect and expect the same from our customers when dealing with our employees. Any further inappropriate comments will leave us no alternative but to terminate our relationship and may result in the immediate closure of your account.

[ 10 ] Mr Craik responded by a letter dated May 11, 2010 that stated in part: In response to your letter dated May 6, 2010. It is indicated that you have addressed the issue of “immediate closure of my account.” As my account(

s) are joint accounts with Ann Louie, my partner, you have not advised or disclosed any of this information to her. This is in direct violation of the Fair Trading Act RSA 2000 c. F-2,

Section 62 - 63 . Secondly, there are allegations in your letter, that have not been substantiate, from 3 rd . Parties and the requirement for a Public Corporation is absolute disclosure. Therefore a requirement of Affidavits in Support of the Alleged Claims and Comments is required. This is in direct violation of [sic] Bank Act sc 1991 c.46

Section 980.1 [ 11 ] Mr Jamieson then readdressed the May 6, 2010 letter to both Mr Craik and Ms Louie and sent it under cover of a letter dated May 18, 2010 as a result of the concerns expressed that all account holders had not been notified of action that ATB may take on their accounts. [ 12 ] Further correspondence was exchanged between Mr Craik and the ATB. [ 13 ] This action was commenced on December 3, 2010 and amended several times. [ 14 ] Mr Craik has continued to bank at the ATB and the ATB has continued to charge Account 42 with a flat fee of $18 per month. IV. Analysis [ 15 ] Having regard to the test to be applied on

summary judgment and

summary dismissal applications, Mr Craik’s application for

summary judgment must be dismissed, whether it is considered under Rule 7.2 or Rule 7.3. The evidence before me does not establish that it is plain and obvious that the plaintiff’s claims will succeed, as will be more particularly addressed below. He has demonstrated no contractual entitlement to require the ATB to continue to provide him with banking services without any service charges, which is the basis for his contractual claim.

He has also not established that it is plain and obvious that he is entitled to judgment against the ATB or any of their employees under the Fair Trading Act , the Alberta Treasury Branches Act , the Financial Consumers Act , the Criminal Code or otherwise. [ 16 ] I now turn to the ATB’s application for

summary dismissal. The ATB has demonstrated that it is plain and obvious that no part of the plaintiff’s action will succeed. [ 17 ] Mr Craik has no contractual right to continue to be provided with banking services in respect of Account 42 at no charge. While service charges were initially waived by the ATB while the HELOC was outstanding from 1995 until 2000 in accordance with their practice and despite the ATB’s failure to impose any service charges from 2000 until June 30, 2009, the ATB was not precluded from exercising their contractual right to impose service charges following their review of accounts.

In the initial account agreement executed by Mr Craik and Ms Louie, they agreed to pay fees and charges in connection with the operation of the account established by the ATB from time to time. Mr Craik and Ms Louie were advised by letter dated June 24, 2009 that fees would be charged commencing at the end of the month. While more than six days notice would have been preferable for good customer relations, Mr Craik and Ms Louie could have elected to close this account and relocate this aspect of their banking business if they did not wish to be charged any service charges.

Instead they elected to remain as bank customers and have continued to utilize this account up to at least the hearing of this application. [ 18 ] The Amended Amended Amended Statement of Claim also claims that Account 42 was frozen “with gross and negligent criminal intent, and with intent to harm the plaintiff’s good name and financial situation” on May 2, 2011 which precipitated a default on his Xceed mortgage and that his account was frozen. The uncontradicted affidavit of Cathy Trombley admits that a mortgage payment to Xceed Mortgage was not processed by ATB as a result of an internal error on May 2, 2011.

She goes on to explain that Xceed Mortgage was promptly notified and the mortgage payment was processed and cleared on May 6, 2011 and that ATB reimbursed Mr Craik and Ms

Louie for $95 in processing charges. [19] Mr Craik’s MasterCard with ATB was in default from December 2010 through April 2011. The account was closed on May11, 1011, once it was delinquent for 120 days and a hold was placed on Account 42 on May 14, 2012 under the terms of the ATBFinancial MasterCard Personal Cardholder Agreement. When a portion of the arrears were addressed on May 27, 2012, the hold on theaccount was released.

I am satisfied with this explanation and find that these circumstances do not give rise to any cause of action. [20] The Amended Amended Amended Statement of Claim refers to several provisions of the Criminal Code in claiming that theATB engaged, inter alia, in criminal negligence, defamation and extortion. Alleged violations of the Criminal Code do not give rise to acivil cause of action: Direct Lumber Company Limited v Western Plywood Company Ltd, (SCC), [1962] SCR 646 atpage 648.

ATB has demonstrated that it is plain and obvious that the plaintiff has raised no genuine issue for trial with respect to any ofthese claims. [21] While the plaintiff did not plead common law defamation, nor the provisions of the Defamation Act, RSA 2000, c D-7, thetest for defamation at common law has not been met. The alleged defamation was made in a letter written to the plaintiff. There is noevidence, or even an allegation, that it was ever published to the community. To the extent that it was provided to Ms Louie, that wasdone at the request and, therefore, with the consent of Mr Craik.

Publication is one of the required elements of the tort of defamation:Grant v Torstar Corp., 2009 SCC 61, [2009] 3 SCR 640 at paragraph 28. It is plain and obvious that the plaintiff has failed to raise agenuine issue for trial with respect to this claim. [22] The plaintiff has not plead allegations associated with negligent misrepresentation in his Amended Amended AmendedStatement of Claim. Rather, he has limited such allegations to criminal negligence under the Criminal Code. I agree with the defendantsthat the plaintiff has not established negligent misrepresentation at common law.

He has not plead any of the elements essential for sucha claim and has put forward no evidence of any resultant damage. [23] The plaintiff also refers to various sections of the Alberta Treasury Branches Act. Of those sections which place a duty uponthe defendant, the plaintiff has failed to produce any evidence that an officer or director of the ATB failed to exercise the care, diligenceand skill expected, or that they failed to act honestly or in good faith.

There is no triable issue raised that any of these sections werebreached or that any alleged violation would give rise to a civil cause of action. [24] The plaintiff also pleads numerous sections of the Fair Trading Act. While not all of the sections mentioned give rise to acause of action by a consumer, ATB has demonstrated that it is plain and obvious that the plaintiff has raised no genuine issue for trialwith respect to any claim under the Act. [25]

Section 13 of the Fair Trading Act permits a consumer who has entered into a consumer transaction and suffered damage orloss due to an unfair practice to commence an action in the Court of Queen’s Bench to recover same.

The plaintiff refers to sections 6(2)(a) (exerting undue pressure or influence to enter the consumer transaction), 6(2)(f) (charging for estimates without prior disclosure andconsent), 6(3)(c) (harsh, oppressive or excessively one-sided terms in a consumer transaction), 6(3)(d) (false representations about therights, remedies or obligations in a consumer transaction), 6(4)(a) (deceiving or misleading a consumer), 6(4)(o) (false representationsthat a specific price benefit or advantage exists) and 6(4)r (false representations about the authority to negotiate the terms of a consumertransaction), none of which are applicable having regard to the allegations in the pleadings and the evidence before me. [26] The plaintiff also refers to section 6(4)(t.1) of the Fair Trading Act, which identifies certain conduct as an unfair practice ifdirected at one or more potential consumers: (t.1) a supplier’s representation regarding an agreement for continuing provision of services if the supplier fails to provide prominent andfull disclosure of the details of the agreement, including duration, changes in price, renewals, extensions or amendments, or if thesupplier fails to obtain the consumer’s consent to renewals, extension or amendment of the agreement; [27] The account agreement between the plaintiff and the ATB clearly indicated that the ATB could amend the agreement’sprovisions by giving notice to the account holder.

The ATB provided such notice to the plaintiff, and the plaintiff continued to use the

account subsequent to the written notice and as such is bound by the terms of the amendments. There is simply no evidence of any violation of this

section of the Fair Trading Act . [ 28 ] The plaintiff refers to

section 16 (

c) and (

d) of the Financial Consumers Act , which provides that suppliers, agents and financial planners shall not: (

c) make representations or conduct themselves in an way that could mislead or deceive consumers, (

d) withhold information about named financial products or about a supplier, agent or financial planner if they know or should know that consumer might be mislead by not having the information. [ 29 ] I am satisfied that there is no evidence that raises a triable issue to suggest that the ATB was making misleading representations or withheld information about any financial products from the plaintiff. [ 30 ] The plaintiff has named seven employees of the ATB as defendants in this action.

There is no evidence to suggest that any of the employees were not undertaking ordinary tasks in the course of their employment or that there is any cause of action against them in their personal capacities. V. Conclusion [ 31 ] The plaintiff’s application for

summary judgment is dismissed. The defendants’ application for

summary dismissal is granted and the action is dismissed in its entirety against all defendants. [ 32 ] If the parties are unable to agree on costs, they are at liberty to arrange to make submissions on that issue before me. Heard on the 2 nd day of March, 2012. Dated at the City of Calgary, Alberta this 5 th day of June, 2012. J. Strekaf J.C.Q.B.A. Appearances: James Craik for the Applicant

Grant W.D. Cameron for the Defendants