MARIA STASSIS PLAINTIFF AND: AMICUS BANK, TRADING AS PRESIDENT’S CHOICE FINANCIAL FIRST DEFENDANT AND: CANADIAN IMPERIAL BANK OF COMMERCE, TRADING AS PRESIDENT’S CHOICE FINANCIAL SECOND DEFENDANT AND: LOBLAW COMPANIES INC. THIRD DEFENDANT AND: CIBC MORTGAGES INC., TRADING AS PRESIDENT’S CHOICE FINANCIAL FOURTH DEFENDANT v. 200601T2452, 2011 NLTD 73

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR TRIAL DIVISION ( GENERAL ) Citation : Stassis v. Amicus Bank , 2011 NLTD(G) 73 Date : 20110 527 Docket : 200501T7997 BETWEEN: MARIA STASSIS PLAINTIFF AND: AMICUS BANK, TRADING AS PRESIDENT’S CHOICE FINANCIAL FIRST DEFENDANT AND: CANADIAN IMPERIAL BANK OF COMMERCE, TRADING AS PRESIDENT’S CHOICE FINANCIAL SECOND DEFENDANT AND: LOBLAW COMPANIES INC. THIRD DEFENDANT AND: CIBC MORTGAGES INC., TRADING AS PRESIDENT’S CHOICE FINANCIAL FOURTH DEFENDANT AND 200601T2452 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR TRIAL DIVISION BETWEEN: MARIA STASSIS PLAINTIFF

AND: BRIAN WENTZELL FIRST DEFENDANT AND: COLLINS AND ASSOCIATES SECOND DEFENDANT ___________________________________________________________________ Before: The Honourable Madam Justice Valerie L. Marshall ___________________________________________________________________ Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: May 3, 4, 5, 6, 7, November 29, 30, December 1, 2, 3, 6, 7, 8 and 9, 2010.

Summary: Ms. Stassis alleged that representatives of President’s Choice Financial and CIBC Mortgages Inc. advised her that she had been approved for mortgage financing. Ms. Stassis further alleged that the representations of approval occurred after she had provided President’s Choice Financial with income verification documentation. An offer of financing from President’s Choice Financial was subsequently revoked because Ms. Stassis’ income verification documents did not support the amount erroneously claimed as income in her mortgage application. Ms.

Stassis claims negligence/negligent misrepresentation and breach of contract against the Defendants in 2005 01 T 7997. Ms. Stassis also claims that her previous lawyer may have missed the limitation period for issuing the statement of claim in that action. She therefore commenced a related action for negligence, breach of contract and breach of fiduciary duty against the Defendants in 2006 01T 2452. Held: Ms. Stassis’ claims in both actions were dismissed with costs awarded against her.

Appearances: Maria Stassis Appearing on her own behalf (May 3, 4, 5, 6 & 7) Kenneth Mahoney Counsel for Maria Stassis (Nov. 29, 30, Dec. 1, 2, 3, 6, 7, 8, 9) Genevieve Dawson Counsel for the 1st, 2nd, 3rd and 4th Defendants (2006/7997) Kevin Stamp, Q.C. Counsel for the Defendants in 2006/2452.

Authorities Cited: CASES CONSIDERED: Queen v. Cognos Inc., (SCC), 1993 1 S.C.R. 87 STATUTES CONSIDERED: Limitation of Actions Act, R.S.N.L. 1995 c. L-16.1 RULES CONSIDERED: Rule 18.01, Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Marshall, J.: INTRODUCTION [1] The Plaintiff, Maria Stassis, was the owner and operator of a pizza business known as “Pizza Perfecto” which hadcommenced operation in 1995. Ms. Stassis’ business was her source of income.

She worked very long hours and took pride in her work. [2] In 1999, she sought financing for the purposes of investing in her business and renovating her basement apartment. Accordingly, in June of 1999, Ms. Stassis applied to refinance her mortgage with President’s Choice Financial (“PCF”). Ms. Stassisunderstood that her application for financing was fully approved in June, 1999; however, PCF’s position was that the financing wasmerely conditionally approved at that time. Ms. Stassis signed a mortgage commitment on July 3, 1999.

Subsequently, the offer offinancing was withdrawn on the basis that the financial information provided by Ms. Stassis did not support the income indicated in hermortgage application. [3] Ms. Stassis alleged that she suffered damage due to the withdrawal of financing. She commenced action 2005 01T 7997 (the“PCF action”) alleging breach of contract and negligence by the Defendants (the “PCF Defendants”). She subsequently commenced therelated action 2006 01T 2452, (the “Wentzell action”), in which Ms. Stassis claimed negligence, breach of contract and breach offiduciary duty against her lawyers.

These claims were based upon an alleged failure on the part of her lawyers to issue the statement ofclaim in the PCF action within the statutory limitation period. [4] On January 23, 2008 it was ordered, pursuant to Rule 18.01 of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.D, that both matters be joined for trial with the evidence in one matter being the evidence in the other matter. [5] The trial for these matters was lengthy, proceeding over the course of 14 days. Ms.

Stassis, whose first language is Greek,was occasionally assisted by a language interpreter throughout the trial. issues [6] The primary issues common to both actions are as follows: 1. Did any of the PCF Defendants commit breach of contract or negligent misrepresentation? 2. Was the Plaintiff’s claim in the PCF action filed within the statutory limitation period under the Limitation of Actions Act, RSNL1995, c. L-16.1? 3. Is the Plaintiff entitled to any damages? [7] In the first issue, the Plaintiff’s claim has been identified as a claim of negligent misrepresentation, rather than a claim ofnegligence.

In her amended statement of claim, the Plaintiff claimed negligence and breach of contract against the PCF Defendants. Attrial, and in the Plaintiff’s submissions, she claimed negligent misrepresentation and breach of contract. Defence counsel in both actionsnoted that Ms. Stassis did not plead negligent misrepresentation in her statement of claim. [8] In Queen v.

Cognos Inc., (SCC), 1993 1 S.C.R. 87, the Supreme Court of Canada described the elementsof negligent misrepresentation at paragraph 34, as follows: The required elements for a successful Hedley Byrne, supra, claim have been stated in many authorities, sometimes in varying forms.

The decisions of this court cited above suggest five general requirements: (1) there must be a duty of care based on a “specialrelationship” between the representor and the representee; (2) the representation in question must be untrue, inaccurate, or misleading;(3) the representer must have acted negligently in making said misrepresentation; (4) the representee must have relied, in a reasonable

manner, on said negligent misrepresentation; and (5) the reliance must have been detrimental to the representee in the sense that damages resulted. In the case at bar, the trial judge found that all elements were present and allowed the appellant’s claim. [ 9 ] While defence counsel are correct in stating that the Plaintiff did not use the words “negligent misrepresentation” in her statement of claim, I conclude that the averments in the statement of claim clearly indicate that the Plaintiff was claiming the elements of negligent misrepresentation.

Specifically, I refer to paragraphs 12, 13 and 14 of the statement of claim which refer to verbal approval of financing and the Plaintiff’s reliance thereon and which state as follows: 12. The Plaintiff further states that on or about June 30, 1999.[sic] The Plaintiff received a telephone call from a representative of the Defendants confirming that the Plaintiff’s amended mortgage application had been aprouved [sic]. This notification was followed by letter and written offer of financing from the Defendants dated June 29, 1999 and received by the Plaintiff on July, 1999. 13.

The Plaintiff further states that on July 3, 1999, the Plaintiff attended at the Kiosk and noted to a representative of the Defendants mistakes on the written mortgage approuval [sic]. These mistakes were agreed by the representative of the Defendants and the Plaintiff then executed the acceptance of the offer of financing of the Defendants. 14. The Plaintiff further states that in reliance upon the commitment of the Defendants the Plaintiff’s [sic] closed her business premises to conduct the renovations thereof.

The Plaintiff also commenced renovations to an apartment in her home, financed these initial renovation costs using the Plaintiff’s personal credit card pending the provision of mortgage funding. [ 10 ] Further, at paragraphs 21 and 24, the Plaintiff asserted that her reliance was reasonable wherein she stated: 21. The Plaintiff repeats the foregoing and states that the Plaintiff reasonably relied upon the commitment of the Defendants dated June 29, 1999 in commencing renovations on her business premises and residence. 24.

The Plaintiff repeats the foregoing and states that as a result of the negligence of the Defendants, the Plaintiff injuriously but reasonably relied upon the commitment of the Defendants dated June 29, 1999. [ 11 ] Considering these averments in the context of the Plaintiff’s claim for negligence, I conclude that the Plaintiff sufficiently pleaded the elements of negligent misrepresentation.

I will therefore consider her claim of negligence as a claim of negligent misrepresentation. [ 12 ] With respect to the second issue, the PCF Defendants submitted that the Plaintiff did not file her claim of breach of contract and negligence within the appropriate limitation period in accordance with the Limitations Act , R.S.N.L. 1995 c. L-16.1. The Defendants submitted that the applicable limitation period for damages arising from breach of contract or negligence is two years in accordance with s. 5(

a) and (

b) of the Limitations Act which states: 5. Following the expiration of 2 years after the date on which the right to do so arose, a person shall not bring an action (

a) for damages in respect of injury to a person or property, including economic loss arising from the injury whether based on contract, tort or statutory duty; (

b) for damages in respect of injury to person or property including economic loss arising from negligent misrepresentation and professional negligence whether based on contract, tort or statutory duty; [ 13 ] In the event that the Plaintiff’s claims of negligent misrepresentation and breach of contract against the PCF Defendants are indeed statute-barred, then, for the purposes of assessing liability in the Wentzell action, it would still be necessary to consider whether Ms. Stassis could have succeeded in these claims.

Therefore, leaving aside the limitation issue for now, I will first consider the issue of whether Ms. Stassis established, on the balance of probabilities, either negligent misrepresentation or breach of contract, on the part of any of the PCF Defendants. ISSUE 1 Did any of the PCF Defendants commit breach of contract or negligent misrepresentation?

SUMMARY OF EVIDENCE [ 14 ] The Plaintiff’s witnesses included: Bruce Jones, Allison Abbott, Katherine Walters, Jerome Languirand and Maria Stassis. Brian Wentzell testified for the Defendants in the Wentzell action. Christine Rooney and Colin Burke testified for the Defendants in the PCF action. BRUCE JONES [ 15 ] Mr. Jones is a certified management accountant. He had been doing the bookkeeping for Ms. Stassis’ business since the mid- 1990s.

[ 16 ] Mr. Jones’ evidence was that in May, 1999, Ms. Stassis approached him to prepare financial documents for Pizza Perfecto for the purposes of obtaining financing from the bank. He accordingly prepared a certified copy of a pay stub, interim financial statements and cash flow projections. [ 17 ] The certified copy of the pay stub prepared by Mr. Jones indicated that the weekly pay for Ms. Stassis for the pay period ending May 22, 1999 was the gross amount of $530.00, and the net amount of $401.86. [ 18 ] Mr. Jones prepared two interim financial statements which were tendered in evidence.

The first was for a period of ten months commencing August 1, 1998 to May 31, 1999. Mr. Jones’ evidence was that he prepared this statement after May 31, 1999, but he did not testify as to the precise date of preparation. The statement of income and expenses for that period depicted Ms. Stassis’ remuneration as a director in the amount of $18,020.00. The second interim financial statement was for the period August 1, 1999 to June 30, 1999. The statement of income and expenses for that period also showed Ms. Stassis’ remuneration as a director in the amount of $18,020.00. [ 19 ] Mr. Jones was referred to Ms.

Stassis’ T-4 for 1998. He confirmed that this document indicated that Ms. Stassis’ employment income for 1998 was the amount of $18,500. [ 20 ] Mr. Jones was referred to the financial statements he had previously prepared for Pizza Perfecto for the years ending July 31, 1996; July 31, 1997; July 31, 1998; and July 31, 1999. For the period ending July 31, 1996, Mr.

Jones’ evidence was that the financial statements showed a net income loss for the business in the amount of $14,393; for the period ending July 31, 1997, the financial statements showed a net income loss in the amount of $19,427; for the period ending July 31, 1998, the financial statements showed a net income loss of $26,153; and, for the period ending July 31, 1999, the financial statements showed a loss of $29,876. [ 21 ] Mr. Jones’ evidence was that Pizza Perfecto was not a profitable business. Mr. Jones testified that he expressed to Ms.

Stassis the opinion that she could not sustain the business. allison abbott [ 22 ] Ms. Abbott worked at the President’s Choice Financial pavilion at the Ropewalk Lane Dominion Store for about six months in 1999; she no longer works there. She described her role as being to collect the information for mortgage applications; this information would come directly from prospective clients. [ 23 ] Ms. Abbott was working at the pavilion when Ms. Stassis had initially applied for financing for Pizza Perfecto. Ms. Abbott’s evidence was that she could not specifically recall meeting Ms. Stassis. Further, in response to Ms.

Stassis’ questions, she could not recall many details as to bank processes. Ms. Abbott did recall, however, that, when a customer made an application for a mortgage, proof of identification as well as proof of income were required. [ 24 ] Ms. Abbott testified that she did not have the authority to approve a mortgage; this was done at head office. Her evidence was that she would not have provided anyone with a preliminary guess as to whether or not they would be approved for a mortgage. katherine walters [ 25 ] Ms.

Walters worked at the President’s Choice pavilion at the Ropewalk Lane Dominion store for the period commencing December 1998 and ending mid-September 1999. [ 26 ] Ms. Walters witnessed Ms. Stassis’ signature on a mortgage commitment dated July 3, 1999. Like Ms. Abbott, she could not specifically remember Ms. Stassis. [ 27 ] Ms. Walters was questioned by Ms. Stassis as to the procedures she engaged when clients were filling in a mortgage application. Ms.

Walters’ evidence was that there was very little paper at the kiosk; rather, information was entered into the computer in response to questions prompted by a computer program. Essentially, she would meet with customers, gather their information and input the information in the computer. Ms. Walters’ evidence was that she would not analyze the financial information provided; nor would she make any decisions as to whether financing would be approved. Decisions regarding a mortgage application were not made at the pavilion level. jerome languirand [ 28 ] Mr.

Languirand testified that he was a project management professional certified by the Project Management Institute. Mr. Languirand had prepared an evaluation report for Pizza Perfecto apparently extrapolating business revenues and income for the periods 2000 to 2010. During the trial, Ms. Stassis sought to enter Mr. Languirand’s report and testimony on this report. [ 29 ] Both Defence counsel objected to the admissibility of Mr. Languirand’s report as well as his evidence. The basis of their objection was that he was not qualified to provide expert opinion; further, that he was not independent.

After considering all the submissions from the parties on the issue of the qualifications of Mr. Languirand and the question of the admissibility of his report, a ruling was made at trial that he was not qualified to give the expert opinion for which his testimony and report were offered. Further, he was not an independent witness. His report was not admissible. Oral reasons for the ruling were provided to the parties at trial. maria stassis [ 30 ] Ms.

Stassis’ evidence was that, in 1999, she decided to refinance her residential mortgage to achieve two purposes: to renovate her business and to renovate her basement apartment. Ms. Stassis pursued financing despite Mr. Jones’ recommendation that she close her business.

[ 31 ] Ms. Stassis went to the PCF pavilion located at the Dominion store on Ropewalk Lane in St. John’s, Newfoundland and Labrador. Ms. Stassis’ evidence was that her first visit to the PCF pavilion was at the end of May, 1999, at which time she completed a mortgage application with Ms. Allison Abbott. Ms. Stassis testified that during that visit, she had brought along her CCRA tax returns and notices of assessment for 1997 and 1998. Ms.

Stassis’ evidence was that she knew she needed to bring these documents due to the fact that she had been through a loan application process in the past. [ 32 ] In addition to providing income information from her tax assessments, Ms. Stassis testified that she also apprised Ms. Abbott of rental income she received from her daughter and son. According to Ms. Stassis, Ms. Abbott typed all this financial information into a computer application that was then transmitted to head office in Ontario. [ 33 ] According to Ms. Stassis’ evidence, a few days after she made that first application, Ms.

Abbott contacted her to inform her that her application had been rejected. The reason for rejection provided by Ms. Abbott was that the rental income received by Ms. Stassis from her children was not included on her tax returns; therefore, this amount could not be included as part of her income for the purposes of the mortgage application. Ms. Abbott then indicated to Ms. Stassis that she could come in to fill out a second application. According to Ms. Stassis, Ms. Abbott asked her to bring in her 1996 CCRA tax assessment, as well as her most recent pay cheque to indicate her current year’s income. Further, Ms.

Abbott asked Ms. Stassis to bring in financial statements for Pizza Perfecto. [ 34 ] Ms. Stassis’ evidence was that on June 3, 1999, she brought all documents requested to Ms. Abbott, with the exception of her 1996 CCRA notice of assessment. Ms. Stassis indicated that she requested a copy of this 1996 notice of assessment prior to her second meeting with Ms. Abbott, however, she did not receive it in time. The 1996 notice of assessment was tendered in evidence. It was dated June 4, 1999 and Ms. Stassis’ evidence was that she subsequently provided Ms.

Abbott with a copy of it on the same day that she received it. [ 35 ] In cross-examination, Ms. Stassis was challenged on her assertion that she had provided all the documents which she had indicated as having been provided to Ms. Abbott on June 3, 1999. In evidence was a certified copy of her pay stub which was dated May 29, 1999 and which was for the pay period ending May 22, 1999. That document had a fax banner on the top indicating that the document was faxed from Dominion Stores on July 3, 1999. Ms.

Stassis pointed out that, if she hadn’t provided a copy of her most recent pay cheque until July 3, 1999, then the date on her pay cheque would have been for the last week of June, not for the last week of May. [ 36 ] Further on this point, in cross-examination, Ms. Stassis was referred to correspondence that she forwarded to Brian Wentzell on February 10, 2004 in which she stated: The reason only my notice of assessments were faxed on July 3, in fact, was because they were one of the only things still missing from my file by that date. [ 37 ] Ms.

Stassis was also referred to another correspondence she forwarded to Mr. Wentzell, dated February 23, 2004, in which she stated: We have a copy of my notice of assessments that were faxed to President’s Choice Financial on July 3, 1999, as indicated by the fax banner at the top of the page. These were one of the only things still missing from my file by that date, as I had provided copies of my T1 General forms and the financial statements for my business on the same day that I made my mortgage application. [ 38 ] Despite these references to income verification documents being provided on July 3, 1999, Ms.

Stassis maintained her position that all financial documents were provided before she received verbal approval, and before she signed the mortgage commitment on July 3, 1999. Ms. Stassis indicated she did not prepare the above referenced correspondence to Mr. Wentzell; rather, she communicated the information to a third party who, in turn, wrote the correspondence. She suggested the discrepancies between the dates as being a result of what she referenced as her “poor English”. In other words, Ms. Stassis suggested the references to the date of July 3, 1999 were a result of miscommunication between Ms.

Stassis and the person writing the correspondence, who, she suggested, was her daughter. [ 39 ] Ms. Stassis testified that Pizza Perfecto’s financial statements provided to Ms. Abbott included the interim financial statements for her business up to May 31, 1999. Ms. Stassis noted that her business year end was July 31, 1999; however, she had asked her accountant, Mr. Jones, to provide her with interim financial statements up to the end of May 31, 1999 in order that she could provide these to Ms. Abbott. [ 40 ] Ms. Stassis’ evidence was that, when she met with Ms. Abbott on June 3, 1999, Ms. Abbott took Ms.

Stassis’ financial statements and looked at the numbers. Ms. Abbott then entered these numbers into the mortgage application on the computer screen. Ms. Stassis’ evidence was that she did not know what numbers Ms. Abbott was entering into her mortgage application. [ 41 ] Ms. Stassis pointed out that, on the statement of income and expenses, for the period ending July 31, 1998, the cost of goods sold amounted to $40,096. In her mortgage application, the amount shown as the base annual income for Ms. Stassis is $40,096. Ms. Stassis’ 1998 T4 reflects employment income of $18,500. [ 42 ] Ms.

Stassis’ view was that Ms. Abbott must have accidentally written in the number for cost of goods sold as her income on the mortgage application. Ms. Stassis testified that she did not tell Ms. Abbott that her income was $40,096.00. Further, Ms. Stassis stated that she was never provided with a copy of the mortgage application by Ms. Abbott. She never saw the mortgage application until years later, when Mr. Wentzell obtained a copy from President’s Choice. [ 43 ] In cross-examination, Ms. Stassis was asked about the financial statements prepared by Mr. Jones for Pizza Perfecto for the years 1996 through to 1999.

Specifically, she was referred to the statement of income and expenses for the period ending July 31, 1996 and was asked to indicate which number on that statement reflected how much the company made. Ms. Stassis answered by referring to the amount of $43,993; that amount was actually the amount for cost of goods sold. [ 44 ] Ms. Stassis was then referred to the statement of income and expenses for the period ending July 31, 1997 and was asked how

much the company made in that period. Ms. Stassis responded by again referring to the amount for cost of goods sold, being $41,081. [ 45 ] Ms. Stassis was asked how much the company made for the period ending July 31, 1998 and she was referred to the statement of income and expenses for the period ending July 31, 1998. Ms. Stassis responded again by providing the amount for cost of goods sold, which was $40,096. [ 46 ] Ms. Stassis was referred to the interim financial statements for the period ending May 31, 1999 and was again asked how much the company made in that time period. Ms.

Stassis indicated that the amount the company made was $28,804, which, again, was the amount for cost of goods sold. [ 47 ] Ms. Stassis was also questioned in cross examination about other discrepancies identified on the mortgage application. Ms. Stassis’ evidence was that she told Ms. Abbott that the rental amounts for her children were $400 per month. It was unclear whether this amount was paid individually, or collectively. In either case, such is inconsistent with the mortgage application which identified two amounts for rental income, one of which was $5,400 annually and the other being $6,000 annually.

Further, on the mortgage application, the amount of $22,000 was identified as Ms. Stassis’ income from her previous employer, that being “No Name 2 for 1 Pizzeria”. Again, this amount was incorrect and Ms. Stassis indicated that she has no idea as to how Ms. Abbott came up with the amount of $22,000. [ 48 ] According to Ms. Stassis, she did not hear from Ms. Abbott for several days after providing the requested documents. As a result, she went for a third time to the PCF pavilion. Ms.

Stassis’ evidence was that, for this third visit, she again brought along all income support documents, including the 1996 notice of assessment, in the event that anything else was needed from her. On this third occasion, she met with Katherine Walters who indicated that Ms. Abbott was no longer working with President’s Choice and that Ms. Walters was now handling Ms. Stassis’ file. [ 49 ] Ms. Stassis’ evidence was that she asked Ms. Walters to check on the progress of her mortgage application and to confirm whether the 1996 tax assessment was needed or not. Her evidence was that Ms. Walters took Ms.

Stassis’ folders of documents and subsequently confirmed that she had everything that was needed for income verification purposes. [ 50 ] Ms. Stassis’ initial evidence was that she subsequently received verbal approval of her mortgage application from Ms. Walters on June 19, 1999. She concluded the date was June 19, 1999 as a result of a document on which she had handwritten notes indicating that date and the words “loan (bank) OK”. She testified that, on that day, she attended at the PCF kiosk for the fourth time and was advised by Ms.

Walters that her mortgage had been approved and that she would receive a phone call later that day from head office. Ms. Stassis’ initial evidence was that later that same day (June 19, 1999) she did indeed receive a phone call from head office. Specifically, she spoke to Ms. Christine Rooney who called to congratulate her on the approval. Ms. Stassis indicated that Ms. Rooney told her that they were going to send a mortgage commitment by mail and, once she had signed and returned the mortgage commitment, it would take about 30 to 40 days for her to receive her money. [ 51 ] In cross-examination, Ms.

Stassis acknowledged that she was aware that the decision to approve her for a mortgage came from head office. Ms. Stassis agreed that Ms. Rooney advised her that she did not make any final decisions; rather, decisions were made by someone else. [ 52 ] Ms. Stassis testified that, at the time she received verbal congratulations on her approval from Ms. Walters and Ms. Rooney, she had already provided all documents that had been requested by PCF employees. These consisted of: her tax information, including the 1996 tax assessment; her financial statements and the certified pay cheque stub. [ 53 ] Ms.

Stassis testified that, on either June 30 or July 2, 1999, she received the formal mortgage commitment letter in the mail. Ms. Stassis provided, in evidence, correspondence from PCF, signed by Christine Rooney, dated June 29, 1999 and which stated as follows: Congratulations, you have been approved for a President’s Choice Financial Mortgage. Please find enclosed your mortgage commitment. Page 1 outlines the terms and pages 2 & 3 indicate the conditions and instructions. In order to advance the funds for your mortgage on time, we require the following from you: 1.

Signed Commitment : a signed copy of the commitment to us within 7 days from the date on this letter. 2. Conditional Requirements : on page 2, we have highlighted items that you must send to us. We have enclosed a CIBC Mortgage Life Insurance application. With CIBC Mortgage Life Insurance, your outstanding mortgage balance – up to a maximum of $500,000 – is automatically paid off in the event of your death. We offer single or joint coverage at affordable group insurance rates. You can send the Commitment, the requirements and the Mortgage Life Insurance application to me in one of the following ways:

by faxing to 1-800-662-7555, or by mailing in the return envelope provided. Remember, with a President Choice Financial mortgage; you receive everyday low mortgage rates, you earn PC points towards free groceries on the advance of your mortgage and on each anniversary, you have liberal pre-payment and payment increase privileges and innovative features such as the free Home Warranty. We look forward to providing you with excellent service.

If you have any questions, please call me at our direct line 1-888-276-3744. [ 54 ] The mortgage commitment was for the amount of $86,274 and was attached to the June 29, 1999 correspondence. Ms.

Stassis was referred to a portion of the mortgage commitment which stated as follows: This commitment is conditional upon: 1) Receipt of copies of the Revenue Canada Notice of Assessments for the past two years for Marie Stassis. 2) Receipt of copies of the T1 General form for the past two years for Marie Stassis. 3) Property mortgaged must be prime and meet all The Lenders requirements. 4) Receipt of the following prior to closing:

i) Income verification satisfactory to the Lender. ii) A true copy of your mortgage document (Registered Mortgage document is required for B.C.). confirming that it is not a collateral mortgage and that fixed payments are calculated semi-annually, not in advance.

Upon receipt of the mortgage document, the amortization on this mortgage commitment will be amended to reflect the remaining amortization on the existing mortgage. iii) A Renewal or mortgage statement from current lender. iv) Satisfactory evidence that your realty taxes have been paid to date. vi) A satisfactory and acceptable appraisal of the secured property indicating a minimum value of $126,276 (The Lender will arrange). vii) A completed and signed Preauthorized cheque form with a blank cheque marked “VOID”. viii) Satisfactory mortgage rating on existing mortgage (The Lender will obtain). ix) Completed and signed appendices A & B (please obtain the standard forms from our document library on the system.

These forms are required to obtain a discharge statement from your existing lender).

x) Receipt of copy of the current title search (or the State of Title). [ 55 ] In the above excerpt the following items were highlighted: No. 1, 2, 4(i), 4(ii), 4(iii), 4(iv), 4(vii), 4(viii) and 4(ix). There were also check marks next to items No. 1, 2 and 4 (iii). [ 56 ] On July 3, 1999, Ms. Stassis again visited Ms. Walters at the PCF kiosk and she formally accepted, and signed, the mortgage commitment. Ms. Walters witnessed her signature. Ms.

Stassis confirmed that she had reviewed the mortgage commitment and, indeed, had requested an amendment to the mortgage commitment regarding the mortgage term: she wanted a convertible six-month term, rather than 60 months closed. This requested change was made during her visit on July 3, 1999, and was noted on the signed mortgage commitment. She also requested that the spelling of her first name be fixed as the commitment identified her as “Marie” Stassis. [ 57 ] At the time Ms.

Stassis received and signed the mortgage commitment, her evidence was that nobody informed her that any further income verification was required. Again, it was her understanding that the mortgage had been approved and that all income verification documents had been received before approval was communicated. [ 58 ] In cross-examination, Defence counsel put it to Ms. Stassis that Ms. Walters explained the conditions on the mortgage commitment to Ms. Stassis when they met on July 3, 1999. Ms.

Stassis evaded response to this question and was referred to her discovery transcript in which she had indeed admitted that she was aware that the mortgage commitment was subject to conditions. Ms. Stassis agreed that this was what she had said at discovery, but insisted that it was not correct.

[ 59 ] Ms. Stassis indicated that, once she had signed the mortgage commitment and had been told that everything was approved, she felt it was safe to proceed with her renovations. She testified that she broke down the interior of her business to prepare for renovations and also began renovations on her basement apartment. However, her evidence was that, in late July, 1999, she received a call from Ms. Rooney who told her that she would not be receiving her money. Ms. Stassis testified that she was advised by Ms.

Rooney that there was a mistake in the amount reported as salary in her mortgage application; the amount reported did not match the amount in her income verification documents. As a result, the mortgage would not be funded. [ 60 ] Ms. Stassis’ evidence was that this conversation occurred approximately three weeks after she had signed the mortgage commitment, and more than a month after she had received verbal congratulations on her approval from Ms. Walters and Ms. Rooney.

Further, she maintained that it occurred five to six weeks after her having provided President’s Choice with all income support documentation. [ 61 ] Ms. Stassis indicated that, at the time she had received this information from Ms. Rooney, she had already closed her business; and that she had broken down the inside of her business to prepare for renovations. Further, she had put about $6,000 in debt on her credit card for the renovations to her basement apartment. Ms.

Stassis testified that she never would have commenced these renovations if she had not been advised the mortgage had been approved; rather, she would have waited to find the money elsewhere. [ 62 ] Ms. Stassis provided in evidence a letter she wrote to Ms. Tammy Buckingham, an employee of PCF at head office, dated January 25, 2001. Again, there were discrepancies between the content of this letter and Ms. Stassis’ testimony. For example, the letter indicated that June 3, 1999, was the date of the first time Ms. Stassis visited the PCF pavilion and that she met with Ms. Walters; whereas in court, Ms.

Stassis testified that her first time at the pavilion was in late May 1999, when she met with Ms. Abbott, not Ms. Walters. Ms. Stassis’ explanation of the discrepancies was, again, that English is her second language. She elaborated that she had instructed her daughter on what to put into the letter to Ms. Buckingham; however, according to Ms. Stassis, her daughter made errors. [ 63 ] Ms. Stassis testified that, once she found out that the mortgage was not going to be funded as expected, she was extremely upset. Her evidence was that she parked outside of her closed store for many days and cried.

She said that she contacted President’s Choice, insisting that they rectify the problem and honour their mortgage commitment. President’s Choice Financial representatives indicated that she did not qualify for the mortgage by herself. However, they would provide Ms. Stassis with a smaller mortgage for $70,000, provided that she transferred half ownership of her house to her daughter and, further, that her daughter would became a co- signer on the mortgage. [ 64 ] Ms. Stassis tendered as evidence a document from PCF entitled “Modification of mortgage loan approval”.

This document was dated September 10, 1999 and indicated the new loan amount of $70,000. The advance date on the second mortgage commitment was October 6, 1999. [ 65 ] Ms. Stassis acceded to the bank’s requirements and, in October, 1999, she followed through with the refinancing for the amount of $70,000. Ms. Stassis’ evidence was that she also withdrew from her RRSPs. However, even after receiving mortgage funds and withdrawing from her RRSPs, her debts kept accumulating; Ms. Stassis’ evidence was that she had no ability to make any income at this point.

On December 21, 1999 she filed articles of dissolution for Pizza Perfecto. She never reopened the business after closing it on June 11, 1999. [ 66 ] Ms. Stassis provided general evidence as to the losses she attributed to PCF’s failure to provide funding to the first, seemingly- approved mortgage. Ms. Stassis indicated that she lost her business, her source of income, her retirement investments and half ownership of her home. Further, she was of the view that she has suffered terrible emotional and mental pain for many years as a result of the unfunded mortgage.

Ultimately, none of the monies received from the second mortgage were applied to the business. BRIAN WENTZELL [ 67 ] Mr. Wentzell was the only witness called by the defendants in the Wentzell action. Mr. Wentzell provided evidence regarding his representation of Ms. Stassis. He provided details of the difficulty he experienced obtaining information and documentation from PCF in the course of his representation of Ms. Stassis. [ 68 ] Mr. Wentzell also referred to the documentation received from Ms. Stassis which he had in his file.

These documents included the letter to Tammy Buckingham, dated January 25, 2001, as well as typed notes from Ms. Stassis. In the letter to Tammy Buckingham, Ms. Stassis stated that Christine Rooney called her to revoke the offer within a week of July 3, 1999. colin burke [ 69 ] Mr. Burke was the first witness called to testify for the PCF Defendants. He is the regional sales manager in Atlantic Canada for President’s Choice Financial. [ 70 ] Mr. Burke clarified that Amicus Bank and President’s Choice Financial are divisions of Canadian Imperial Bank of Commerce (“CIBC”); CIBC is the parent company.

CIBC Mortgages Inc. handles all mortgages for CIBC. Loblaw Companies Inc. is not a related company; PCF merely operates in Loblaw’s stores. [ 71 ] Mr. Burke explained that a personal banking representative working at a PCF pavilion takes information from customers, enters the information on the computer and then presses “submit” to forward the information to CIBC Mortgages Inc. The personal banking representatives have no authority to approve mortgages. Further, the personal banking representatives do not have any authority to review documents.

It is not usual practice for the personal banking representative to take documents. They can inform a customer what the mortgage department may look for. They forward received documents to a mortgage specialist in the mortgage department. No documents or records are kept at the pavilion. [ 72 ] The mortgage specialist reviews the documents and sends the information to the underwriting department which has the authority to approve mortgages. The mortgage specialist issues a conditional approval. The mortgage specialist has the responsibility of

collecting income verification documents for underwriting. [ 73 ] Mr. Burke’s evidence was that the contents of the initial mortgage application are a result of the information provided by the customer. This initial step is a customer service and allows a customer to see if they can get approval. However, the information in the application must be subsequently verified. CHRISTINE ROONEY [ 74 ] Ms. Rooney has worked at the CIBC since 1988. From 1998 to 2005, she worked as a mortgage specialist with PCF. [ 75 ] Ms. Rooney indicated that her communications with the PCF pavilion were minimal.

Further, she likened the role of a personal banking representative at a PCF pavilion to the role of a bank teller; the representative simply filled in the blanks of a mortgage application on a computer, and that information was then forwarded to Ms. Rooney’s office. [ 76 ] Ms. Rooney likened her role as a mortgage specialist to that of a salesperson; she was the one who would be in contact with the client. Each day, she would have been provided with a list of “deals” from the Atlantic Provinces.

She would review each application, contact each client, and submit the applications to underwriting for consideration for approval. The underwriters had the final decision- making authority with respect to whether a mortgage application would be approved. The approval from underwriting was usually conditional approval; Ms. Rooney testified that it was rare for an unconditional mortgage commitment to be issued. A mortgage commitment would be forwarded to her after conditional approval was received from underwriting. [ 77 ] Ms.

Rooney’s evidence was that her usual practice was to highlight portions of the mortgage commitment which remained to be satisfied by the client. She would then contact the client and explain what the bank required; as it was her responsibility to let the client know what had to be provided for income verification. [ 78 ] Ms. Rooney recalled dealing with Ms. Stassis, but could not specifically recall the details of their conversations. Ms. Rooney provided evidence as to what likely would have happened based upon her usual practices. She indicated that Ms.

Stassis’ mortgage application would have been forwarded to her via computer from the PCF pavilion. Based on the information in the application, Ms. Rooney would have reviewed the general debt servicing and total debt servicing ratios, and then would have proceeded to submit the application to underwriting for consideration. [ 79 ] Ms. Rooney’s evidence was that before she would have sent out the mortgage commitment she would likely have had one phone call with Ms.

Stassis indicating that she had received the application, was submitting it for approval and would contact her with verbal approval and send a package when approval from underwriting had been received. Ms. Rooney stated that it was impossible for Ms. Stassis to be able to say that all conditions were satisfied, at that point in time, because they do not know what conditions are going to be required until underwriting actually looks at the application and determines the conditions. [ 80 ] Ms. Rooney reviewed the mortgage commitment documents that she had sent to Ms. Stassis.

The first page was a letter congratulating Ms. Stassis, indicating that she had been approved for the mortgage and noting that there were some conditional requirements. The requirements were highlighted. Her evidence was that, if she had already had some documentation, such as the notice of assessment for 1997 or 1998, she would not have highlighted these as a requirement on the mortgage commitment. [ 81 ] Ms. Rooney testified that she would have called Ms. Stassis on June 29, 1999 because the commitment was issued on that date. Her evidence was that in that conversation, she would have advised Ms.

Stassis that the mortgage commitment would be forwarded to her; and that her mortgage was approved, subject to conditions. She would have had a discussion with Ms. Stassis regarding the conditions required with respect to income verification as highlighted in the mortgage commitment. Ms. Rooney said that it was not possible that she would have said that the money could be obtained within 30 to 40 days. [ 82 ] Ms. Rooney’s evidence was that, on July 3, 1999, income verification documents for Ms. Stassis were faxed from the PCF pavilion. These documents would have been handed to Ms.

Rooney who would have then faxed the documents off to the underwriting department. Underwriting looks at the documents and determines whether or not to approve the mortgage. [ 83 ] In Ms. Stassis’ case, a decision from underwriting determined that her income was not sufficient for a mortgage of approximately $86,000. Ms. Rooney’s evidence was that she would have been in touch with Ms. Stassis within approximately a week after her signing the mortgage commitment. She was absolutely sure it could not have been three weeks after the date on which Ms. Stassis signed. Ms.

Rooney’s based this time line on the fact that her commission is dependent upon how fast a mortgage commitment can be signed by a client. [ 84 ] In cross-examination, Ms. Rooney was referred to answers to interrogatories sworn by Neil Todd in his capacity as Director, of Non-Conforming Mortgages for CIBC Mortgages Inc. In the answer to interrogatories, Mr. Todd indicated that the records show that Ms. Stassis’ first mortgage application was received on June 3, 1999. Ms.

Rooney has no knowledge of the application being received on June 3, 1999 and was of the view that the first application was received on June 28, 1999.

Summary of parties’ positions on issue 1 [ 85 ] Ms. Stassis’ position was that the evidence supported her claim that income verification documents had been provided to the bank before she had been verbally told that her mortgage had been approved; this all occurred prior to her signing the mortgage commitment. The representations were the verbal congratulations on her approval from both Ms. Walters and Ms. Rooney on June 19, 1999. Because the income verification documents had been received at the time the verbal approval was communicated, Ms. Stassis’ position is that the representations of Ms. Walters and Ms.

Rooney were misrepresentations. Further, Ms. Stassis submitted that the bank’s agents mislead her into thinking that all income verification documents had been faxed on, and analyzed, and that she had been approved, before the time she signed the mortgage commitment. Ms. Stassis relied on these misrepresentations to her detriment. [ 86 ] Ms. Stassis also takes the position that the oral representations formed part of the contract. Further, she asserted that, implied

in the contract is a term which guarantees that the personal banking representative would accurately submit the information. [ 87 ] Ms. Stassis submitted that it is relevant that the inaccurate imputation of income on the mortgage application was an error made by one of the bank’s own employees. The personal banking representative had the information in hand and had the responsibility of entering the information. [ 88 ] Ms.

Stassis referred the court to the several case authorities and submitted that there was a misrepresentation, breach of contract, breach of trust and breach of fiduciary duty. [ 89 ] The Defendants in both actions submitted that Ms. Stassis’ claim should be dismissed. [ 90 ] The Defendants in the Wentzell action submitted that Ms. Stassis did not establish that the bank had made the error of entering the incorrect income on her mortgage application. They submitted that it was Ms. Stassis who provided the erroneous information for the mortgage application. Further, Ms.

Stassis knew that no one in the pavilion had the authority to approve mortgages; therefore, it is reasonable to conclude no one there had authority to say what is required for approval. Ms. Stassis further acknowledged that Ms. Rooney had no authority to approve mortgages. Finally, a reasonable person seeing the mortgage commitment of July 3, 1999 with highlighted mortgage conditions could not conclude that the mortgage was unconditionally approved. [ 91 ] The PCF Defendants submitted that the only offer of financing made to Ms. Stassis was a conditional offer from CIBC Mortgages Inc. They submitted that Ms.

Stassis was aware of the conditions. She was aware that approval came from someone other than Ms. Rooney and the pavilion. Ms. Stassis did not establish negligence or breach of contract. Her evidence was full of contradictions and inconsistencies. Her evidence was evasive and ambiguous and her credibility is at issue. analysis – issue 1 [ 92 ] The PCF Defendants did not dispute that there was a duty of care owed to Ms. Stassis collectively by PCF, CIBC Mortgages Inc. and the Bank.

The pivotal issue in this case is whether there was a misrepresentation made; if so, whether such was negligently made; and, if so, whether there was reasonable reliance by Ms. Stassis on same, to her detriment. [ 93 ] At the outset of this analysis, it is necessary to state that there is no doubt that the letter from Christine Rooney to Ms. Stassis, dated June 29, 1999, as attached to the written mortgage commitment, clearly indicates that the approval and offer of financing is a conditional offer subject to the satisfaction of various conditions including income verification requirements.

To elaborate, the beginning of the letter indicates that Ms. Stassis had been “approved for a President’s Choice Financial mortgage”. The letter states that “in order to advance the funds for your mortgage online, we require the following from you”. The letter then identifies the signed commitment, as the first requirement; and then identifies “conditional requirements”, as the second requirement. These conditional requirements are described as being highlighted. The highlighted requirements in the commitment follow the statement “This commitment is conditional upon”.

The highlighted listed conditions include requirements such as “income verification satisfactory to the lender”; two years of CCRA notices of assessment; and two years of T1 General Forms. [ 94 ] Subsequent to her signing the commitment, Ms. Stassis’ income verification was determined to be unsatisfactory to the lender. Ms. Stassis’ failure to satisfy the conditional requirements provided the bank’s rationale for refusal of financing. [ 95 ] Ms.

Stassis’ position, however, is that she detrimentally relied upon the alleged misrepresentation from representatives of some of the PCF Defendants that her mortgage financing had been approved and that all conditions had been met prior to her signing the commitment. More specifically, Ms. Stassis alleges that the verbal representations of approval from Ms. Walters and Ms. Rooney were communicated in the context of all income verification documents already having been provided to PCF and presumably reviewed by the mortgage department.

Indeed, she alleges that before the representations of approval were made, she was told by Ms. Walters that all income verification documents had been received. [ 96 ] The evidence established that the initial approval of financing, conditional or otherwise, was based upon inaccurate information pertaining to Ms. Stassis’ income contained in the mortgage application. The mortgage application indicated that Ms. Stassis’ base annual income was $40,096, which is incorrect; Ms. Stassis’ T4 income for 1998 was $18,500.

The amount of $40,096 was the amount of the cost of goods sold contained in the financial statements for Ms. Stassis’ business as of July 31, 1998. If Ms. Stassis was responsible for the inaccuracy in the application, she cannot possibly succeed in her claims. However, if Ms. Abbott was responsible for this inaccuracy, further analysis is necessary. [ 97 ] The initial factual inquiry to be resolved, therefore, is whether Ms. Stassis told Ms. Abbott that her income for 1998 was $40,096; or whether Ms. Abbott entered the number based on her own review of the documents which Ms.

Stassis alleged she brought with her when she met with Ms. Abbott. A consideration of all the relevant evidence on what transpired between Ms. Stassis and Ms. Abbott is necessary. [ 98 ] I accept Ms. Stassis’ evidence that she met with Ms. Abbott on June 3, 1999 to provide Ms. Abbott with the information for a mortgage application. Whether that was Ms. Stassis first or second meeting with Ms. Abbott is unclear. I recognize that Ms. Stassis’ position is that it was her second meeting. However, as explained later in this analysis, Ms. Stassis’ evidence regarding dates was neither cogent nor reliable.

Having said this, the reply to interrogatories, to which Christine Rooney was referred in cross examination, appear to support the date of June 3, 1999 as the date on which Ms. Stassis applied for a mortgage with PCF. [ 99 ] Ms. Stassis’ evidence was that when she met with Ms. Abbott on June 3, 1999, Ms. Abbott took the financial statements, looked at the numbers, and then entered the numbers on the mortgage application. Ms. Stassis did not see what Ms. Abbott had entered. Ms. Abbott was not able to recall precisely what it was that she did at the time she met with Ms. Stassis. Ms.

Abbott’s inability to recall the specifics of her interactions with Ms. Stassis does not, however, force the conclusion that it is more probable than not that Ms. Abbott, of her own accord, extracted the amount of $40,096 from the July 31, 1998 financial statements, and then proceeded to enter this amount as Ms. Stassis’ income on the mortgage application.

[ 100 ] As already stated, and to be explained later in this analysis, Ms. Stassis’ evidence regarding dates proved to be unreliable. I am therefore not persuaded by Ms. Stassis’ evidence that she brought along the July 31, 1998 financial statements at the time she met with Ms. Abbott on June 3, 1999. There is no reason to doubt that by June 3, 1999, her business financial statements up to the year end of July 31, 1998, would likely have been prepared. Similarly, before June 3, 1999, she would likely have completed her T1 General forms for 1997 and 1998.

However, due to the lack of sufficient evidence, I cannot determine whether Ms. Stassis had, by June 3, 1999, the interim financial statements for the period ending May 31, 1999. As stated, Ms. Stassis’ evidence regarding dates proved to be unreliable; and Mr. Jones’ evidence did not assist in allowing a finding to be made as to when he prepared the May interim statements. Similarly, due to Ms. Stassis’ unreliable evidence regarding dates, a finding cannot be made that Ms. Stassis had the certified pay stub and her 1997 and 1998 tax assessments with her at the meeting on June 3, 1999. [ 101 ] Further, while Ms.

Stassis may have had some documentation in her possession as of June 3, 1999, this does not lead me to find that it is probable that Ms. Stassis gave these documents to Ms. Abbott on June 3, 1999. Again, as will be explained later in this analysis, Ms. Stassis’ evidence regarding dates proved unreliable. As a result, I do not accept Ms. Stassis’ evidence as to what she alleges having provided to Ms. Abbott on June 3, 1999. Specifically, Ms. Stassis did not establish, on the balance of probabilities, that on June 3, 1999, she provided Ms. Abbott with the July 31, 1998 financial statements.

I therefore do not accept her evidence that Ms. Abbott reviewed her financial statements and extracted the number as Ms. Stassis’ income. [ 102 ] However, even if I had accepted Ms. Stassis’ assertion that she brought all the documents which she alleges she brought with her when she attended the PCF pavilion on June 3, 1999, I could still not accept that Ms. Abbott was responsible for the entry of the erroneous amount for income. Specifically, I do not accept that Ms. Abbott entered the amount of $40,096 on the application based upon her own review of the July 31, 1998 financial statements.

Rather, it is more probable that Ms. Stassis verbally provided the amount of $40,096 to Ms. Abbott as her base annual income. [ 103 ] I conclude this after carefully considering the totality of the evidence, including the contents of the mortgage application. I particularly considered that Ms. Abbott indicated that a client making a mortgage application must have personal identification and proof of income. However, after carefully reviewing Ms. Abbott’s evidence, I cannot conclude that her evidence suggests that Ms. Abbott reviewed any proof of income when completing Ms. Stassis’ application.

On the contrary, Ms. Abbott testified that the inputted numbers came directly from the client. Further, I accept Mr. Burke’s evidence that the personal banking representatives did not have authority to review documents and that the information for the initial application emanates from the customer. [ 104 ] I have also considered that, when Ms. Stassis was referred to the statements of income and expenses tendered in evidence, she identified the “cost of goods sold” amount as being the amount that her company made for each of the periods ending July 31, 1996 through July 31, 1999.

Clearly, Defence counsel established that Ms. Stassis was unable to discern between “costs of goods sold” and profit. Ms. Stassis did not endeavour to establish that Ms. Abbott was likewise unfamiliar with the distinction and, therefore, possibly more likely to have extracted the cost of goods sold amount as Ms. Stassis’ income, if the document was reviewed by her. [ 105 ] It is also relevant to consider that, contained within the mortgage application is a reference to Ms. Stassis’ base annual income from her previous employer as being $22,000.

This amount was also revealed at trial as another inaccuracy in the application. Further, each of the amounts cited in the application as being attributable to Ms. Stassis’ rental income ($5,400 and $6,000 annually) exceeded that which Ms. Stassis indicated at trial as being the rental income from her children ($400 a month). This suggested a third inaccuracy in the document. [ 106 ] If I accept Ms. Stassis’ assertion that it was Ms. Abbott who extracted the number of $40,096 from the financial statements and identified it as Ms. Stassis’ income, then the question remains as to whether Ms.

Abbott also pulled out of a hat the number of $22,000 as income from Ms. Stassis’ previous employer; and whether Ms. Abbott erroneously calculated $400 per month as being either $5,400 and/or $6,000 annually for rental income. In light of the evidence at trial, I would find such a proposition that Ms. Abbott made such collective reckless errors very difficult to accept. [ 107 ] Based upon the evidence, I conclude that it is not plausible to suggest that Ms. Abbott extracted the cost of goods sold from the July 31, 1998 financial statements and that she then entered this amount of $ 40,096 of her own accord.

Rather, considering all the evidence, I conclude it is more probable than not that Ms. Stassis communicated inaccurate information to Ms. Abbott at the time her mortgage application was completed on June 3, 1999. [ 108 ] Having said this, it is important to also state that, even if Ms. Abbott was responsible for the errors in the mortgage commitment, the evidence did not establish that there were any misrepresentations, negligently made, by any of the PCF Defendants. [ 109 ] Ms. Stassis’ position was that Ms. Walters and Ms.

Rooney misrepresented that her mortgage had been approved and that all required income verification documents had been provided before the time at which they communicated the verbal approval. As stated, Ms. Stassis’ position is that the misrepresentation consisted of, in essence, an unconditional approval. Based on the totality of the evidence, however, I conclude that it is unlikely that Ms. Walters and Ms. Rooney misrepresented an unconditional approval to Ms. Stassis at any time. [ 110 ] To begin with, I do not accept Ms. Stassis’ evidence that Ms.

Rooney did not refer to the conditions remaining to be satisfied when Ms. Rooney told Ms. Stassis that her mortgage had been approved. Rather, I accept as more probable Ms. Rooney’s evidence that she would have advised Ms. Stassis of the conditions that needed to be satisfied for financing. While Ms. Rooney did not recall the specific details of her dealings with Ms. Stassis, she was convincing in her evidence as to her usual practices; such practices included conversations with the client discussing the mortgage commitment conditions and highlighting on the commitment those documents that she did not have.

The mortgage commitment document tendered by Ms. Stassis appeared to have several highlighted conditions, including the conditions requiring receipt of two years of copies of notices of assessments and T1 general forms, as well as “income verification satisfaction to the Lender”. The documentary evidence therefore supported Ms. Rooney’s evidence as to what likely occurred. [ 111 ] Similarly, I do not accept that it is probable that Ms. Walters verbally, or otherwise, represented to Ms. Stassis that she had been

approved and that all income verification documents had been received. Even if Ms. Walters communicated that Ms. Stassis had approval, such communication could not logically be construed as unconditional approval. Like Ms. Rooney, Ms. Walters had no authority to approve mortgages. Indeed, Ms. Stassis was aware of this collective lack of authority. Further, to be a representation of unconditional approval in the manner alleged by Ms. Stassis, all income verification documents would have had to have been received by the time such approval was allegedly communicated by Ms. Walters and Ms. Rooney.

However, after carefully reviewing Ms. Stassis’ evidence, I have concluded that her evidence as to when the bank received such documents is not reliable. [ 112 ] To elaborate, Ms. Stassis’ evidence on relevant dates was confusing, internally inconsistent, and contradicted her prior written statements. Her evidence on dates was therefore neither persuasive nor convincing. There are numerous examples, some of which I will describe. [ 113 ] To begin with, the certified pay stub tendered in evidence has a fax banner of July 3, 1999. Ms.

Stassis’ position was that this pay stub was provided to PCF much earlier than July 3, 1999; she suggested that it was provided, along with other income verification documents, to Ms. Abbott on June 3, 1999. However, as noted in the foregoing

summary of Ms. Stassis’ evidence, Ms. Stassis was referred to written correspondence which she had forwarded to Mr. Wentzell, in which she clearly stated that her notices of assessment had a fax banner of July 3, 1999 and were faxed on that date. This is inconsistent with her testimony at trial that she had already provided her notices of assessment, along with other documents, to the bank on June 3, 1999. [ 114 ] Similar inconsistencies as to dates arose from the correspondence from Ms. Stassis to Tammy Buckingham, dated January 25, 2001. For example, in that correspondence, Ms.

Stassis stated that her relationship with PCF began in June of 1999, which is in contrast with her court testimony that she first attended the pavilion in May of 1999. Further, she indicated in the same letter that, on June 3, 1999, she met and spoke with Ms. Walters; however, Ms. Stassis had indicated in her court testimony that she met with Ms. Abbott on that date. [ 115 ] Another example of an inconsistency between Ms. Stassis’ court testimony and written correspondence was with respect to Ms. Stassis’ assertion as to the time frame during which she was advised that CIBC did not approve the mortgage. Ms.

Rooney’s evidence was that she would have called Ms. Stassis within a week of the signing of the mortgage commitment. Ms. Stassis’ evidence at trial was that Ms. Rooney called her 3 weeks after she signed the mortgage commitment. In the original version of the letter referenced above, from Ms. Stassis to Tammy Buckingham, dated January 25, 2001, Ms. Stassis stated that “within a week, Ms. Rooney did call me”; this was the version Brian Wentzell had in his file. In the version Ms. Stassis provided to court, she had handwritten “3 weeks” above the reference to “within a week”. Ms.

Stassis stated that she was not sure when she made this alteration. [ 116 ] Ms. Stassis endeavoured to explain the inconsistencies between written correspondence and her in-court testimony by asserting in her evidence that the dates were incorrect in the correspondence. She explained the error by blaming the transcriber of the correspondence; apparently, Ms. Stassis’ daughter wrote the letters on instructions from her mother. Ms. Stassis’ evidence suggests that she directed her daughter as to the contents of the correspondence, but that her “poor English” (to use Ms.

Stassis’ words) led to these written errors regarding dates. [ 117 ] I have difficulty accepting this assertion as credible. Based on Ms. Stassis’ demonstrated ability to communicate and respond to questioning, I cannot conclude that the fact that English is Ms. Stassis’ second language led to errors in her written correspondence to Mr. Wentzell and Ms. Buckingham. Granted, Ms. Stassis had an interpreter at trial due to the fact that English is her second language; however, she availed of these services only intermittently throughout the trial. Further, as noted by Defence counsel, the evidence is that Ms.

Stassis brought to Ms. Walters’ attention that a term of the mortgage commitment needed to be changed; this change in the term of the mortgage was duly noted on the mortgage commitment. This leads to the conclusion that Ms. Stassis had the ability to review and comprehend the mortgage commitment. I cannot reasonably conclude that the inconsistencies arising from the written correspondence are attributable to the fact that English is Ms. Stassis’ second language. [ 118 ] There are numerous other examples of inconsistencies and confusion in Ms. Stassis’ evidence throughout the trial.

For example, in cross examination, Ms. Stassis was referred to contradictions regarding the date she allegedly received approval of the mortgage. In her statement of claim, Ms. Stassis asserted that she received verbal approval on June 30, 1999; in another document, Ms. Stassis identified verbal approved as being received in “late June”. In court, at one point in her testimony, Ms. Stassis indicated that she received verbal approval from Ms. Walters on June 19, 1999, and from Ms. Rooney later that same day. Subsequently, in cross- examination, Ms.

Stassis’ evidence was that she received the phone call of approval from Ms. Rooney on June 30, 1999; and the mortgage commitment documents were received on July 2, 1999. Subsequently again, in cross-examination, Ms. Stassis suggested that her conversation with Ms. Rooney regarding approval was prior to June 29, 1999. [ 119 ] A further example of Ms. Stassis’ confusing and contradictory evidence was her response to questions in cross-examination as to whether the conditions of the commitment were ever explained to her. At one point, Ms. Stassis agreed in cross-examination that this occurred with Ms.

Walters and, further, that she understood the conditions. Later in cross-examination, Ms. Stassis indicated that Ms. Walters did not review the documents with her; she stated this even though she had indicated otherwise in her discovery transcript. [ 120 ] Based on the foregoing, and considering the totality of the evidence, I conclude that Ms. Stassis’ evidence regarding dates lacks consistency, cogency and reliability. The impact on the reliability of Ms.

Stassis’ evidence is to the extent that I cannot accept her position that all income verification documentation had been received by PCF before she was allegedly provided verbal mortgage approval, and before she signed the mortgage commitment. I therefore conclude that Ms. Stassis did not establish, on the balance of probabilities, that she had already provided all income verification documents to PCF at the time verbal approval was allegedly communicated to her, and before she signed her mortgage commitment on July 3, 1999. [ 121 ] I therefore further conclude that any statements by Ms. Walters or Ms.

Rooney indicating that Ms. Stassis had been approved could not have been reasonably construed by Ms. Stassis as a representation of an unconditional approval; and that they did not negligently misrepresent to Ms. Stassis that she was unconditionally approved. I accept that Ms. Rooney highlighted outstanding requirements on the mortgage commitment because those documents had not yet been provided to PCF when Ms. Rooney sent out the June 29, 1999 correspondence. Further, based upon the evidence, it is more probable that Ms. Rooney did advise Ms. Stassis of these

highlighted conditions prior to forwarding that correspondence, as per her usual practice. Similarly, I do not accept that Ms. Stassis was ever advised by Ms. Walters prior to July 3, 1999 that PCF had all the income verification documents that it required. Based upon the evidence, it is more probable that Ms. Stassis provided Ms. Walters with the income verification documents on July 3, 1999, at which time Ms. Walters faxed such documents to the mortgage department. [ 122 ] I add that it is possible that Ms. Stassis misunderstood that her mortgage was unconditionally approved.

However, the PCF Defendants were not responsible for this misunderstanding. CONCLUSION [ 123 ] Based upon the foregoing, I find that Ms. Stassis’ claim for negligent misrepresentation against the PCF Defendants cannot succeed. She did not establish, on the balance of probabilities, that any of the PCF Defendants were responsible for the inaccurate reporting of her income in her mortgage application. Further, Ms. Stassis did not establish that there was a negligent misrepresentation by any of the PCF Defendants. Ms. Stassis claim for negligence/negligent misrepresentation is dismissed. [ 124 ] Similarly, Ms.

Stassis’ claim for breach of contract cannot possibly succeed as the mortgage commitment contract clearly indicated that the mortgage funding was conditional upon the satisfaction of conditions. Further, Ms. Stassis did not establish that these conditions were varied, or other terms implied, due to any representations by any of the PCF Defendants. I have found that the condition of “income verification satisfactory to the lender” had not been satisfied prior to Ms. Stassis signing the mortgage commitment on July 3, 1999; nor was it satisfied after July 3, 1999.

Therefore, a finding of breach of contract cannot be made. Ms. Stassis’ claim for breach of contract is dismissed. [ 125 ] It follows that it is not necessary to determine issue no. 2 regarding the limitation period and issue no. 3 regarding damages in the PCF action. [ 126 ] Ms. Stassis’ claims against the Defendants in the PCF action are dismissed in their entirety. Based on the same analysis, the Wentzell action must also be dismissed; Ms.

Stassis could not succeed in her claim for damages in the Wentzell action when she could not succeed in her claims of negligence and breach of contract against the Defendants in the PCF action. Nor is it necessary to determine the limitation period issue in the Wentzell action. DISPOSITION [ 127 ] Ms. Stassis’ claims against all the Defendants in the PCF action are dismissed in their entirety. Ms. Stassis shall pay the party and party costs of the PCF Defendants, to be taxed. [ 128 ] Similarly, I am ordering that Ms. Stassis’ claims in the Wentzell actions are dismissed in their entirety. Ms.

Stassis shall pay the party and party costs of the Defendants in the Wentzell action, to be taxed. _____________________________ valerie l. marshall Justice