Canadian Tire Bank v. Konkin, 2018 BCPC 151

Citation: Canadian Tire Bank v. Konkin 2018 BCPC 151 Date: 20180611 File No: 17-58288 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA SMALL CLAIMS DIVISION BETWEEN: CANADIAN TIRE BANK CLAIMANT AND: CHADWICK T KONKIN AKA CHAD TIMOTHY KONKIN AKA CHAD KONGKIN AKA CHADWICK TIMOTHY KONKIN DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Counsel for the Claimant: V. Nguyen Appearing in person: C. Konkin Place of Hearing: Vancouver , B.C. Date of Hearing: June 1, 2018 Date of Judgment: June 11, 2018 INTRODUCTION

[ 1 ] Canadian Tire Bank sues Chadwick T Konkin aka Chad Timothy Konkin aka Chad Kongkin aka Chadwick Timothy Konkin for unpaid debt in relation to a Canadian Tire Bank credit card, contractual interest and fees. The specific claim is as follows: Balance owing as of March 17, 2017 (inclusive of interest) $20,019.89 Additional contractual Interest from November 3, 2016 to the date of trial June 1, 2018 $6,315.44 Filing Fee $156.00 Service Fee $80.00 THE EVIDENCE [ 2 ] Edward Helder testified on behalf of the Claimant. His position is that of Senior Associate Agency Risk and Control Manager. Mr.

Helder had no personal knowledge of this matter but was able to testify about the Claimant’s usual business practices and to identify business records and documents kept by Canadian Tire Bank in the usual and normal course of its business. [ 3 ] Mr. Helder’s evidence was that he believed Mr. Konkin completed an online application for a credit card. If the application were completed in person, there would be a signed credit application on file which was not the case here. There is no signed authorization in the case of an online application. [ 4 ] Mr.

Helder identified a Canadian Tire Bank Cardmember Agreement which sets out terms that bind every holder of a credit card issued by the Claimant. The terms include the following: 1. A requirement to pay a minimum amount each month. 2. A requirement to notify Canadian Tire Bank within 90 days of any transaction posted to an account that is questioned. 3. A requirement to pay contractual interest, as stated on a separate Disclosure Statement, which is compounded monthly. 4.

A provision that in the case of default, which includes the failure to pay the minimum monthly amount, the full balance of the account plus contractual interest is payable. [ 5 ] Mr. Helder identified a printout called a CTFS Credit Application. He said this set out the information provided to the Claimant in his online application. The information listed included the following: Name of Customer: Mr. Chadwick T Konkin Email: chadwicktimothy@gmail.com Phone: (604) 614-6698 Address: 25940 56 Ave, Langley Employer: Best Choice Built-In Vacuums [ 6 ] Mr.

Helder testified that in the usual course of business when a credit card application is received, Canadian Tire Bank conducts a credit bureau check to confirm that the applicant exists. Assuming such is the case, the applicant is mailed a copy of the Canadian Tire Bank Cardholder Agreement, the Disclosure Statement which sets out the applicable interest rate, and the credit card. [ 7 ] The applicant is then required to phone Canadian Tire Bank to verify his or her identity based on information supplied in the credit card application.

The applicant then selects a personal identification number for the card and the card is activated. [ 8 ] Mr. Helder testified that he believes this would have occurred in Mr. Konkin’s case. [ 9 ] Mr. Helder said that the Disclosure Statement would have been sent to Mr. Konkin when he first received the credit card. However, he did not have a copy of that Disclosure Statement and there is no documentary evidence of the rate of interest in effect when the credit card was first issued. [ 10 ] Mr. Helder also identified a number of monthly credit card statements issued to Mr.

Konkin covering the period from January 4, 2016 to November 3, 2016. The first statement dated February 3, 2016 starts off with an existing balance of $17,947.60. Statements showing how this sum was arrived at were not provided. A statement for September 2016 was also not provided. The last statement issued was dated November 3, 2016. [ 11 ] The majority of the credit card statements refer to a contractual interest rate of 16.99 percent on purchases and 19.99 percent on cash advances.

The credit card statement dated June 3, 2016 gives written notice that the contractual rate of interest will increase to 19.99 percent for purchases and 22.99 percent on cash advances, effective two months plus one day from the date of the statement. By my calculation, the higher interest rate would be charged effective August 4, 2016. Such were the interest rates charged in the statements dated October 3 and November 3, 2016, and such is the contractual rate of interest the Claimant seeks to the date of judgment. [ 12 ] Mr.

Helder identified a document called a CTAL Dealer and Receivable Accounting, which listed certain online payments made towards the credit card account. The statement showed that online payments were made through a credit union account in the name of “BESTCHOICECENTRALVACUU”, which Mr. Helder believes stands for Best Choice Central Vacuum. [ 13 ] Mr. Konkin confirmed that Best Choice Central Vacuum is his business and that only he can authorize any transactions on this account.

[ 14 ] The CTAL statement refers to various payments which all coincide with payments recorded on the credit card statements during the period of February to May 2016. [ 15 ] Mr. Helder also testified that Canadian Tire Bank makes recordings of all incoming and outgoing phone calls, and that all callers are advised of this when calls are made. A number of the calls from Mr. Konkin and representatives of Canadian Tire Bank were played. In all cases, the caller identified himself as Chad Konkin.

In many cases, the caller also gave other identity information, such as a home address, date of birth and a three-digit number found on the back of the Canadian Tire Bank credit card. Mr. Konkin confirmed his address and date of birth which coincided with the information supplied in the telephone calls when such information was requested. [ 16 ] In none of the phone calls did Mr. Konkin dispute any credit card statements issued to him or any of the charges as set out. The calls included a request to increase the credit limits and inquiries about Canadian Tire money, account payments and loyalty program earnings.

Mr. Konkin asked whether certain payments were credited to him and in some cases the payments did match entries listed on the credit card statements. [ 17 ] There were discrepancies in the recorded calls though. The dates of certain calls could not be relied upon. In one call said to have been recorded on March 21, 2016, the Canadian Tire Bank representative asked Mr. Konkin questions about recent transactions as a means of identifying him. Those transactions did not correlate to any purchases on the credit card statements put into evidence. During that same call, Mr.

Konkin did confirm his identity, address, date of birth, and provided the three-digit code found on the back of his credit card. [ 18 ] On another call said to have been recorded November 16, 2016, Mr. Konkin inquired about a purchase transaction involving an American vendor named “Longevity”, the related charge of $172.66 (Canadian) and the exchange rate used by Canadian Tire Bank. There was no corresponding record of such a purchase in the credit card statements. The records tendered by the Claimant showed the last alleged purchase made by Mr. Konkin to have occurred on May 2, 2016.

It is unlikely that there would have been a phone call made on November 16, 2016 about a recent purchase because there were no recent purchases at that time. [ 19 ] Mr. Helder acknowledged that at least some of the dates of these recordings were wrong. However, he insisted that I could still rely on the contents of the recordings, which he said showed an acknowledgement and use of the credit card. [ 20 ] An example of a call where the discussion topic was confirmed by an entry in the credit card statements was a recorded call said to have occurred February 12, 2016. The Canadian Tire Bank representative and Mr.

Konkin discussed a credit adjustment of $35.84; this adjustment is shown in the credit card statement dated March 3, 2016. [ 21 ] In a call said to have been made February 18, 2016, Mr. Konkin asked about a purchase made through Fido for $22.16, which is shown as a transaction on the March 3, 2016 statement. [ 22 ] In a call said to be made March 7, 2016, Mr. Konkin asked about a payment of $750.00, which is shown in a statement dated April 3, 2016. [ 23 ] Mr. Konkin testified that he sent to the Claimant through its legal counsel a letter dated March 22, 2018 seeking evidence of the claim against him.

Counsel for Canadian Tire Bank said she did not receive the letter. Mr. Konkin did not receive a response to the letter. [ 24 ] Mr. Konkin’s evidence was brief. He gave a blanket denial of holding any Canadian Tire Bank credit card or being responsible for any transactions using the credit card. Mr. Konkin did not address any specific transactions or explain why his business is shown to have made payments on the credit card using an account only he can access. Mr. Konkin also did not deny that he was the person identified in the recorded telephone conversations that were put into evidence.

ANALYSIS [ 25 ] The written records referred to by Mr.

Helder were kept in the usual and ordinary course of the Claimant’s business and are admissible as a business record pursuant to s. 42 of the Evidence Act , [ RSBC 1996] c. 124 . [ 26 ] The telephone call recordings are also kept in the usual and ordinary course of business and I am satisfied that they are business records that can be entered into evidence. [ 27 ] Small Claims Court Rule 10 also allows me to receive the evidence of the documents and recordings and I find that this is appropriate in the circumstances. [ 28 ] I cannot rely on the dates of the telephone recordings because in at least two instances the dates of the recordings were clearly incorrect.

Despite the issues with the dates of the recorded calls, I am satisfied on the balance of probabilities that Mr. Konkin was recorded making the telephone calls. In many cases Mr. Konkin supplied verification to the Canadian Tire Bank representative to confirm his identity. Mr. Konkin did not give any evidence to suggest that he was not the person involved in the phone calls. [ 29 ] The contents of the calls showed awareness and use of the credit card. Inquiries about transactions and the available credit limit were discussed.

Discussions occurred about specific payments which corresponded to entries in the credit card statements. [ 30 ] Mr. Konkin did not explain why his business made online payments to the credit card account when only he had access to that account. He could have tendered bank records to show that the payments were not made through his business but did not. [ 31 ] The credit card statements were all sent to an address that Mr. Konkin confirmed to be his own. Mr. Konkin did not deny receiving these statements. There is no indication that Mr.

Konkin ever contacted Canadian Tire Bank to question why he was receiving the credit card statements.

[32] The fact that Canadian Tire Bank did not respond to Mr. Konkin’s March 22, 2018 letter asking for evidence in support of theclaim is not evidence that no claim exists. Evidence of the claim was tendered at trial and Mr. Konkin had no response. [33] I am cognizant that Mr. Konkin is not represented by legal counsel.

Nevertheless, I would have expected something more thana simple denial in defence of this claim. [34] I refer to s. 97(4) of the Business Practices and Consumer Protection Act, [SBC 2004] c. 2, which states: 97(4) An individual who applies for a credit card without signing an application form is deemed, on using the credit card for the firsttime, to have entered into a credit agreement in relation to that card in the terms of the disclosure statement referred to in subsection (5). [35] I am satisfied that on the balance of probabilities Mr. Konkin was using the Canadian Tire Bank credit card. By these actions,Mr.

Konkin is deemed to have entered into a credit agreement with Canadian Tire Bank. Mr. Helder testified that the terms of suchagreement are the same for all card holders and I find that the Canadian Tire Bank Cardmember Agreement sets out the terms of theagreement between the parties. [36] I will now discuss how Canadian Tire Bank must prove the amount of its claim. [37] Canadian Tire Bank only chose to tender credit card statements covering the dates from January 4, 2016 to November 3, 2016. The first statement, dated February 3, 2016 starts off with an existing balance of $17,947.60.

Statements showing how this sum wasarrived at were not provided. [38] Mr. Helder indicated that such statements are available as they are saved to the Canadian Tire Bank computer system and can beprinted off. The question is whether I need all the statements as evidence of the claim. [39] There is little case law on this point. In Ontario, the decision Preferred Credit Resources Ltd. v.

Ladouceur, [2007] O.J.No. 3188, is one where the court, on an application for an ex-parte assessment of damages, dismissed the application as the creditorfailed to supply “a copy of the credit card statements to the defendant from a zero balance. (Should the defendant raise the issue in thedefence, the plaintiff should also be ready to provide the transactions slips from a zero balance).” [40] The Court also required that the “plaintiff must be able to separate out the value of the purchases from the amount of theaccumulated interest.” [41] Since that decision was made though, there came the Ontario Supreme Court decision Capital One v.

Toogood, 2013 ONSC5440. This was an appeal to the Ontario Superior Court from a Small Claims Court decision where the trial judge refused to grant ajudgment in favour of Capital One. One reason for the refusal was that the Small Claims Court judge required a copy of all invoices everissued for the debt claim. On appeal, Mr.

Justice Edwards stated: [22] As to the finding of the deputy Small Claims Court judge that in order to prove the debt the plaintiff was required to file all of thecredit card statements, I am equally of the opinion that the ruling of the deputy Small Claims Court judge in this regard is fundamentallyflawed. [23] In Canadian Imperial Bank of Commerce v. Prasad, 2010 ONSC 320 , Corbett J. offered the following comments on thegeneral approach which should be taken on credit card debt collection cases, in the context of a

summary judgment motion: The goal of civil litigation, as embodied in R.1.04(1), is to secure the just, most expeditious and least expensive determination of everycivil proceeding on its merits. It is clear that Ms. Prasad held and used a credit card. The principal amount claimed was not contested,and yet the court did not grant partial

summary judgment. It is clear (and frankly notorious) that interest is charged on unpaid credit cardbalances. If the calculation of the interest is in serious question, the proper approach is to grant judgment for the uncontested portion ofthe claim, without prejudice to a further motion respecting any controversial issues. Where this happens, often the creditor does notpursue additional relief since it is unable to collect the amount of the partial judgment anyway.

Where there does not appear to be anydefence to the claim, as appears to have been the case here, such a motion should take no more than a few minutes of time in regularmotions court. The manner in which this has been handled, the case would proceed to a trial. [24] In Gyimah v. Bank of Nova Scotia, 2013 ONCA 252 , the Ontario Court of Appeal found no error on the part of the motionjudge in accepting the bank’s sworn testimony as to the amount outstanding in a claim for the amount owing on a line of credit and acredit card.

While the decision of the motions court judge in Gyimah was not published, it seems fundamentally clear that the approachadopted by the deputy Small Claims Court judge is at odds with the prevailing caselaw. [25] Where there is overwhelming evidence that a holder of a credit card has used it and has failed to comply with its terms by notpaying the outstanding balance with interest, and where the defendant has not filed any evidence in opposition to a claim made on acredit card debt, it flies in the face of common sense that whether it is a motion for

summary judgment in the Superior Court of Justice oran assessment of damages in the Small Claims Court, that a plaintiff should have to file all of the credit card statements from day one inorder to prove its claim against the cardholder. [26] The comments of Corbett J. in Prasad to the effect that credit card collection cases should be straight-forward matters that take nomore than a few minutes in motions court are comments that should be taken to heart by all judges hearing these types of motions orassessments. [27] It may very well be that there will be cases where a credit cardholder will, in fact, take issue with the amount claimed by a creditcard company whether it be with respect to an outstanding balance or with respect to collection fees or with respect to the prevailing rateof interest claimed.

In such a situation, the cardholder has every right to contest those issues and fundamentally can do so by filing adefence and appropriate evidence in opposition to the

summary claim that may be before the court. Where, however, the cardholder hasbeen served with the claim and has chosen not to defend the claim, it makes absolutely no sense for the credit card company to be

required to file, with the court, all of the credit card statements back to the first statement that may have been issued to the cardholder. The cardholder agreement makes clear that unless the cardholder contests a particular statement, the cardholder is deemed to haveaccepted the balance claimed as of the date of the statement. [42] Capital One v. Toogood dealt with a situation where the defendant chose not to file any defence to the claim.

The caseinvolved “overwhelming evidence that a holder of a credit card has used it and has failed to comply with its terms by not paying theoutstanding balance with interest, and where the defendant has not filed any evidence in opposition to a claim made on a credit carddebt . . .” [43] The case before me does not involve an application for an order in default of filing a Reply, nor is this a case where theevidence of credit card use is overwhelming.

Nevertheless, the phone call recordings do supply evidence of an acknowledgment of theuse of the credit card and I am satisfied on the balance of probabilities that Mr. Konkin did use the Canadian Tire Bank credit card. [44] Capital One v. Toogood was cited with approval in Capital One Bank v Bartley, 2017 ONSC 2180 , where the courtstated: [26] Third, Mr. Bartley took no issue with the information contained in the records, particular the amount owing or the interest rate onany outstanding balance on the card. The significance of this is reflected in the decision of Justice M.L.

Edwards in Capital One Bank v.Wright (sub. nom. Capital One Bank v. Toogood), 2013 ONSC 5440 , at para. 27 that: The cardholder agreement makes clear that unless the cardholder contests a particular statement, the cardholder is deemed to haveaccepted the balance claimed as of the date of the statement. [45] Mr. Konkin has not submitted any evidence in opposition to the claim and has made only a simple blanket denial of liability. Itherefore accept and rely upon the uncontradicted evidence of Mr. Helder that the bank statements represent the amount of the debtowing by Mr. Konkin.

In light of this, I will not require a copy of all Canadian Tire Bank credit card statements showing how the totaldebt is calculated. [46] This does not mean that a credit card company seeking payment of a debt need never provide copies of all credit card statementsto prove the claim. My ruling is based on the facts of this particular case where no real defence to the claim was tendered at trial,including any challenges to the transactions charged against Mr. Konkin. [47] During the trial I also raised concerns about the interest rate charged by Canadian Tire Bank.

The governing interest rate whenthe credit card was first issued is set out in a Disclosure Statement, a copy of which was not put into evidence. [48] The first set of credit card statements refer to a contractual interest rate of 16.99 percent on purchases and 19.99 percent on cashadvances.

The credit card statement dated June 3, 2016 then gives written notice that the contractual rate of interest will increase to19.99 percent for purchases and 22.99 percent on cash advances effective two months plus one day from the date of the statement, whichwould be August 4, 2016. [49] Had there been any evidence given to challenge the initial interest charge of 16.99 percent on purchases and 19.99 percent oncash advances, I would have required the Disclosure Statement to prove the interest rate charged. However, there was no evidencechallenging the interest charges in this case.

There was no evidence of any dispute sent by Mr. Konkin to Canadian Tire Bank that theinterest rate being charged was incorrect. There was not even a suggestion at trial that the interest rate charged was incorrect.

On thefacts of this case then, I will accept the interest rate calculation put forth by Canadian Tire Bank, as shown in its credit card statements. [50] I do expect though that there will be other cases when the Disclosure Statement must be provided in evidence. [51] I will now discuss the actual amount of the claim. [52] Canadian Tire Bank is seeking a judgment in the amount of $20,019.89, which is a sum that already includes contractualinterest. The Claimant seeks further contractual interest totalling $6,315.44 for the period of time from November 3, 2016 toJune 1, 2018.

This totals $26,335.33. [53] This claim was filed March 20, 2017, at a time when the maximum claim that can be brought in this Court was $25,000.00. Noapplication was made to this Court pursuant to Small Claims Rule 8(7) to amend the Notice of Claim to allow a claim for up to thecurrent statutory maximum of $35,000.00. [54] I refer to the decision Telus Services Inc. v. Hussey, 2016 BCPC 41 , where the Court held that a claimant is limitedto the statutory maximum claim for the combined amount of the debt and contractual interest. The court referred to the decision 32262B.C. Ltd. v. Karobi, [2004] B.C.J.

No. 2478 and stated at para. 10: [10] This decision was not appealed and, while the analysis is not apparent, I agree with the conclusion that contractual interest is notavailable in excess of the jurisdictional limit of the court. It is impossible to imagine how the Claimant understands this decisionsupports their position. [55] The Telus Services decision referred to s. 3(1) of the Small Claims Act, which reads: Claims the court may hear 3(1) The Provincial Court has jurisdiction in a claim for (

a) debt or damages, (

b) recovery of personal property,

(

c) specific performance of an agreement relating to personal property or services, or (

d) relief from opposing claims to personal property if the amount claimed or the value of the personal property or services is equal to or less than an amount that is prescribed by regulation, excluding interest and costs [emphasis added] [ 56 ] The Court in Telus Services held that the phrase “excluding interest” found in s. 3(1) referred only to interest under the Court Order Enforcement Act and not to contractual interest.

The decision thus stands for the proposition that the statutory maximum for Small Claims Court claims applies to all claims under the contract including contract interest. [ 57 ] Based on this decision, the maximum that Canadian Tire Bank is entitled to is $25,000.00, comprised of the credit card charges and contractual interest, plus fees.

CONCLUSION [ 58 ] I order the Defendant Chadwick T Konkin aka Chad Timothy Konkin aka Chad Kongkin aka Chadwick Timothy Konkin to pay to the Claimant Canadian Tire Bank the sum of $25,000.00 plus the filing fee of $156.00 and the service fee of $80.00. ________________________ The Honourable W. Lee Provincial Court Judge