Amex Bank of Canada v Genge, 2016 ABQB 311

Court of Queen ’ s Bench of Alberta Citation: Amex Bank of Canada v Genge, 2016 ABQB 311 Date: 20160602 Docket: 1403 13637 Registry: Edmonton Between: Amex Bank of Canada Plaintiff - and - Gordon Genge Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice J.J. Gill _______________________________________________________ Introduction [ 1 ] In this debt action the Plaintiff Amex Bank of Canada (“Amex”) seeks judgement for the amount of $21,192.43 arising from unpaid indebtedness on a charge card issued to the Defendant.

The Defendant disputes the validity of many of the charges that appeared on the charge card and denies owing any amount. Evidence [ 2 ] A representative of Amex and the Defendant testified at the trial. A number of documents were entered as exhibits. The Charge Card [ 3 ] The evidence establishes that the Defendant applied in writing for an Amex charge card (“the charge card”) in January 2009. After his application was approved he received the charge card and a package of documents from Amex. These documents outlined the terms and conditions covering the use of the charge card (the “Cardmember Agreement”).

The Cardmember Agreement was dated 2006. Later another Cardmember Agreement (dated 2010) was sent to the Defendant. [ 4 ] The relevant terms and conditions are in both the 2006 and 2010 Cardmember Agreement. They are as follows: By using your account (or by signing and keeping the card) you agree to the terms of agreement ....

Always check each statement for accuracy and contact us as soon as possible if you need more information about a charge on any statement. If you have a complaint or problem with your statement or any charge on it, inform us immediately but in any event within 25 days of the closing date shown on your statement. Otherwise the statement will be considered accurate except for any amount which has been improperly credited to your account and you may not later make a claim against us in respect of any item on the statement.

If we request, you agree to promptly provide us with written confirmation of your complaint or problem. [ 5 ] Amex sent the Defendant monthly statements showing the balance outstanding, the transactions processed, the payments received and the amount due on the charge card. These monthly statements contained the following statement: Billing Errors – if you have a complaint, problem or dispute with this statement or any charge on it, contact us immediately but in any event within 25 days of the closing date of this statement.

Otherwise, this statement will be considered accurate except for any amount which has been improperly credited and you may not later make a claim against us in respect of any item on this statement. Subject to the CARDHOLDER AGREEMENT, if you contact us as required, we will take all reasonable and appropriate steps to provide the information you request or attempt to resolve the dispute.

History of the charge card [ 6 ] The charge card was active from January 2009 to May 2011 when it was closed. [ 7 ] Between January 2009 and February 2011 the Defendant paid the balance in full each month as required under the terms and conditions. In March 2011 he made a partial payment of $15,023.23 on an outstanding balance of $35,167.98. No payments were made in April 2011.The Defendant made payments of between $500 and $1000 in the months of May, June, September, October, November, December and January 2012. The last transaction on the charge card was in March of 2011.

Interest was added to the outstanding balance for the months of April to September 2011 at which time the account was closed. Amex sent it for collection to an external agency. The amount outstanding was $21,192.43. Communications with the Defendant [ 8 ] Amex has an internal system that records all communications between a cardmember and the company. These interactions utilise security features to ensure that the Amex agent is speaking to the cardholder. A record of these communications (“the system notes”) relating to the charge card was entered as an exhibit.

The system notes cover a time period from February 11, 2009 to May 10, 2011. The system notes confirm that there was a number of interactions between Amex and the Defendant. For example, there was a telephone conversation with the Defendant on July 27, 2009 during which he confirmed with the agent the address for the monthly statements and that a payment had been made online. On February 15, 2011 the Defendant requested a one time increase of $3,000 to the credit limit on the charge card.

On February 24, 2011 the Defendant confirmed a transaction in the amount of $3,546.00 for Big Street Spirits Inc. [ 9 ] The system notes have no record of any interaction between Amex and the Defendant concerning alleged unauthorized charges or transactions on the charge card. [ 10 ] In fact it appears that the first time that the Defendant disputed any of the charges on the charge card was after the account had been closed and the matter went for collection.

The first time the Defendant provided a detailed list of the charges that he disputed was after he was ordered to so by Madam Justice Pentelechuk on January 10, 2014. His description of the disputed charges are in an email dated January 22, 2014 from the Defendant to Amex’s counsel dated January 22, 2014. It reads as follows: Hello Justine: Disputed charges are as folloes; 1. ALL Air Canada charges from opening of account to present. 2. Arch Collins on December 21/2010 $1970.70. 3.Mr. Liquor Feb 10/11$3129.66. 4 Services Feb 11/11 $3.39 and $200.00. 5.

Daves Liquor Feb17/11 $950.49. 6Aliant Feb 18/11 $323.88 and $1561.95 and $438.97 and $390.34. 7 Bigg Street Spirits Feb 18/11 $228.17. 8Bigg Spirits Feb 21/11 $3546.37 9. Nomad Inn Feb9/11 $1481.91 and Feb 22/11 $2148.48 and Feb 28/11 $1151.57 10. ANY AND ALL CHARGES RELATING TO THE MERCHANTS LISTED IN THE FOREGOING POINTS #2 thru #9. 11. ANY AND ALL CHARGES WHERE A SIGNED BE ME GORDON GENGE CHARGE SLIP DOES NOT EXIST MUST BE SUPPORTED BY PROPER AUTHORIZATION FOR THE CHARGE IF ANY SUCH AUTHORIZATION EXIST. i LOOK FORWARD TO YOUR REPLY AND RECEIPT OF THE REQUIRED MATERIAL BY END OF FEBRUARY 2014.

When ready please advise so we can agree on delivery method. Also I request that you confirm with the Court that you have received my request within the time period ordered, Jan. 24/14. Thank you; Gordon. Issue [ 11 ] Is the Defendant liable for this debt? Analysis [ 12 ] I am satisfied that the evidence shows that the Defendant applied for and obtained an Amex credit card. The Defendant admits that he used the charge card.

I find that by using the charge card he agreed to the terms and conditions of the card. [ 13 ] The terms and conditions required the Defendant to advise Amex of any disputed transactions within 25 days of receiving the statements. He failed to do so.

Therefore pursuant to the terms and conditions he is no longer entitled to dispute those transactions and is liable for the balance outstanding on the charge card. [ 14 ] The Defendant’s evidence to the effect that he did not receive the monthly statements and that some unknown third parties (eg: his staff) were making payments on the charge card is totally implausible. He provided no evidence to corroborate this contention. Equally implausible is his suggestion that he was a helpless victim of some major fraud.

The evidence suggests that what actually happened in this case is that the Defendant kept the account in good standing until he started to experience financial difficulties and then

he defaulted. [ 15 ] I do not believe the Defendant’s evidence concerning the disputed transactions. It is not credible for the following reasons:

i) The Defendant had interactions with Amex concerning the charge card. He could have raised any concerns he had with the transactions that appeared on the charge card. ii) The Defendant raised no issues concerning disputed transactions until long after the account was closed and sent to collections. iii) The Defendant did not provide any details as to the disputed items until approximately 2 to 3 years after the account was closed and many years after the transactions were charged. iv) The Defendant provided no credible basis for disputing many of the transactions.

For example, he challenges all the Air Canada charges from “opening of account to present”. The charges relating to Air Canada include several airline tickets for the Defendant. They also include airline tickets for 5 or 6 individuals known to the Defendant. These individuals either live close to him in Newfoundland or have worked with him in Fort McMurray. He provided no explanation as to why he did not ask these individuals to explain how (or why) they obtained airline tickets billed to his charge card. Nor did he request the police to investigate what he alleges were fraudulent transactions.

Merchant slips [ 16 ] Prior to trial Madam Justice Pentelechuk had ordered that Amex make its best efforts to obtain the merchant slips relating to the disputed charges. Merchant slips are the documents generated by a merchant when a charge card is used at a place of business to confirm that a charge has been made on a card. A copy is given to the purchaser. Under their agreement with Amex, merchants are required to keep their copy of the merchant slips for 90 days after the sale. If a customer disputes a transaction, Amex contacts the merchant to investigate the validity of the charge.

Presumably the merchant slips can be referred to if a dispute arises with a cardholder concerning a charge. [ 17 ] The Defendant suggests that Amex has not made reasonable efforts to get the merchant slips and therefore he should not be liable for any charges that are not proven by Amex with merchant slips. In this case because so much time had passed (approximately 3 years) Amex concluded that it would be highly unlikely that the merchants would have the merchant slips on these disputed transactions and therefore did not contact the merchants (eg: Air Canada) involved in the dispute accounts.

Taking into account the limited obligation of the merchants to retain the merchant slips and the amount of time that passed before the Defendant even challenged the transactions I find that the Amex decision is reasonable. [ 18 ] In any event I think the merchant slips are irrelevant. Under the terms and conditions of the charge card the Defendant was required to raise concerns about transactions within a certain time period and when he failed to do so he assumed liability for the transactions under the terms of the Cardmember Agreement.

His failure to raise concerns within a reasonable time has essentially prevented Amex from being able to verify the transactions as the merchants have no obligation to retain the slips. He cannot now rely on the problem (ie: the fact that the merchant slips are very likely not available) that his delay has created. [ 19 ] In

summary, I am satisfied that the transactions were authorized by the Defendant and that the amount claimed by Amex is due and owing by the Defendant. Costs [ 20 ] Amex requests costs on a solicitor client basis for both the trial in the Court of Queen’s Bench and the Provincial Court trial in Fort McMurray pursuant to the terms and conditions of the Cardmember Agreement.

The relevant clause in the 2010 Cardmember Agreement reads as follows: If we refer the account to a third party for collection, the Basic Cardmember agrees to pay all expenses and costs of collection, including legal fees on a solicitor client basis and the Basic Cardmember agrees that such amount will be a separate debt owing by the Basic Cardmember to us and will be added to the amount except as prohibited by law. [ 21 ] In support of its application for elevated costs Amex also refers to Rule 10.33.The Defendant opposes any award of costs to Amex. [ 22 ] Amex has been successful in proving its claim.

Amex is entitled to costs on a solicitor client basis as per the terms of the Cardmember Agreement. I therefore award costs on a solicitor client basis for the trial in the Court of Queen’s Bench. The costs shall be assessed by a Review Officer of the Court of Queen’s Bench of Alberta. Amex’s request for costs relating to the Provincial Court trial in Fort McMurray is dismissed. Although Amex was successful at the Provincial Court that decision was set aside on appeal. [ 23 ] The Defendant seeks costs arising from his successful appeal of the Provincial Court action.

He was self represented at the appeal and has now lost the case on the merits. As a result I find no basis to award him costs. His application is dismissed.

Summary [ 24 ] Amex is entitled to Judgment as follows: 1. for the amount claimed of $21,192.43; and 2. solicitor client costs as assessed by a Review Officer of the Court of Queen’s Bench.

Heard on the 25 th day of May 2016. Dated at the City of Edmonton, Alberta this 2 nd day of June 2016. J.J. Gill J.C.Q.B.A. Appearances: Ms. Annemarie Clarke, Witten LLP Ms. Andrea Steen, Student-at-law for the Plaintiff, Amex Bank of Canada Mr. Gordon Genge, Self represented for the Defendant