Sayami v. Royal Bank of Canada, 2015 BCSC 1100

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Sayami v. Royal Bank of Canada, 2015 BCSC 1100 Date: 20150626 Docket: S130779 Registry: New Westminster Between: Hassibullah Sayami and Tamana Sayami Plaintiffs And: Royal Bank of Canada Defendant Before: The Honourable Madam Justice Adair Reasons for Judgment Counsel for the Plaintiffs: Kevin Morrison Counsel for the Defendant: Jef Poulsen Place and Date of Trial: New Westminster and Vancouver, B.C. February 16-20, May 26-27, 2015 Place and Date of Judgment: Vancouver, B.C.

June 26, 2015 Introduction [ 1 ] In late October 2007, the plaintiffs completed the purchase of a new home in Port Coquitlam, B.C. The purchase was financed through a mortgage with the defendant, Royal Bank of Canada (“RBC”). [ 2 ] The plaintiffs say that they had a binding agreement with RBC for a variable rate mortgage. RBC says that the plaintiffs requested that their mortgage be changed from a variable rate to a fixed rate and then signed an agreement to that effect.

The plaintiffs say they did no such thing, and that the signatures on the document relied on by RBC were forged. [ 3 ] The plaintiffs say they are entitled to damages for the consequences of the forgery, including compensation for what they say is the loss in equity in their home as a result of not receiving the reduction in interest paid that a variable rate mortgage would have provided.

The plaintiffs also seek aggravated and punitive damages against RBC, in addition to other relief. [ 4 ] RBC says that the plaintiffs’ assertion that their signatures were forged is not credible, and (among other things) it is inconsistent with other credible and reliable evidence. It says that the action must, therefore, be dismissed. Factual Background [ 5 ] As of the Spring of 2007, Mr. Sayami had been a customer of RBC for some time. His branch was on Shaughnessy St. in Port Coquitlam (the “Branch”). His account manager was Ms. Stephanie Chew, who was a senior account manager at the Branch. In the Spring, Mr.

Sayami spoke to Ms. Chew about moving a mortgage (which Mr. Sayami had guaranteed) on a house owned by Mr. Sayami’s sister from another of the major banks to RBC. Ms. Chew referred Mr. Sayami to Ms. Jennifer Foster. [ 6 ] Ms. Foster was a mortgage specialist at RBC. The practice within RBC was to refer customers who were interested in residential mortgages to a mortgage specialist. Ms. Foster joined RBC in 2001, after working for a number of years at TD Canada Trust, where her job included handling loans and mortgages.

As of 2007, she had been working as an RBC mortgage specialist for about two years. [ 7 ] The mortgage on Mr. Sayami’s sister’s house was successfully moved to RBC. Mr. Sayami and Ms. Chew also discussed a personal line of credit, for which Mr. Sayami wished to have a preferential rate. Ms. Chew told him that this was something that could

be considered in the future, as his relationship with RBC became stronger and he used more of the products RBC had available. [ 8 ] By the summer of 2007, the plaintiffs were seriously looking to buy a house. Ms. Chew again referred them to Ms. Foster concerning a mortgage. [ 9 ] According to Ms. Foster, she took the plaintiffs through the mortgage pre-approval process. As Ms. Foster recalled, she dealt mostly with Mr. Sayami. However, she recalled meeting with both of the plaintiffs during the pre-approval process. This meeting was at a Starbucks across from the Branch. According to Ms.

Foster, during the meeting, she and the plaintiffs discussed a number of matters including interest rates, whether the mortgage interest rate would be fixed or variable, the mortgage term, the CMHC premium and property taxes. As Ms. Foster recalled, this was the only time she met with both of the plaintiffs. [ 10 ] The plaintiffs denied that such a meeting occurred. [ 11 ] In any event, in August 2007, the plaintiffs were pre-approved for a mortgage of $450,000. [ 12 ] By September 21, 2007, the plaintiffs had made an offer on a house, which was accepted.

The purchase price was $433,500, and the closing date was October 29, 2007. The plaintiffs proceeded to finalize the terms of their mortgage with RBC. [ 13 ] Both of the plaintiffs testified that their instructions to RBC were for a variable rate mortgage, with a 5-year term and a 40-year amortization. Both say that their instructions were reflected in a document titled “Approval of Mortgage and Cost of Borrowing Disclosure Statement” dated October 23, 2007 (the “Approval of Mortgage”). Both insist that they signed this document at a meeting with Ms. Foster on October 23, 2007 at the Starbucks near the Branch.

Both repeated this evidence a number of times during their testimony. [ 14 ] Ms. Foster testified that the meeting on October 23, 2007, described by the plaintiffs, did not happen. [ 15 ] Ms. Foster explained that she did not prepare the approval of mortgage documents for her customers. Rather, such documents were prepared by the RBC Mortgage Centre, based on instructions provided by the mortgage specialist. According to Ms. Foster, she did not receive copies of the approval of mortgage document for loans she arranged for her customers (including the plaintiffs). [ 16 ] As Ms.

Foster explained the process (at least as it existed in 2007), a copy of the approval of mortgage document was mailed from the RBC Mortgage Centre to customers approximately two days before the customers were scheduled to meet with the person (e.g., a lawyer) handling the conveyance, so that the customers had the opportunity to review the document in advance. The approval of mortgage document was then signed at the lawyer’s office, along with the other documents (including the mortgage itself) relating to the purchase. [ 17 ] Multiple copies of the Approval of Mortgage were in evidence at trial.

The document marked as Exhibit 5 had original signatures and included a cover letter dated October 23, 2007 from RBC to the plaintiffs, addressed to what was then their mailing address. Both of the plaintiffs say that Exhibit 5 is the document presented to them by Ms. Foster at the Starbucks on October 23, 2007 and that they signed at that time. Both of the plaintiffs deny that they received anything in the mail. [ 18 ] The cover letter for the Approval of Mortgage reads in part: Thank you for choosing [RBC].

Please review the enclosed Approval of Mortgage and Cost of Borrowing Statement of Disclosure, confirming the details of your mortgage with Royal Bank of Canada. You will be asked to sign it at the office of your lawyer or notary. [ 19 ] Despite the dispute about what happened on October 23, 2007, there is no dispute that the Approval of Mortgage reflected the instructions RBC had been given as of that date concerning the terms of the mortgage for the purchase of the plaintiffs’ new home. [ 20 ] However, according to Ms. Foster, shortly before the October 29, 2007 closing date, Mr.

Sayami contacted her and told her that he and Ms. Sayami wanted to go with a fixed rate mortgage, rather than a variable rate. The interest rate on the fixed rate mortgage was to be 5.72%. This reflected a 1.47% discount off the posted rate of 7.19%. This was the discount that Ms. Foster was authorized to give to the plaintiffs as of October 2007. [ 21 ] On October 29, 2007 (the closing date), the plaintiffs met with the lawyer handling the conveyance for them, Mr. Michael Boulet, to sign the necessary documents, including documents relating to the mortgage with RBC. Mr.

Boulet was (by consent) acting for both the plaintiffs and RBC in relation to the conveyance and mortgage. [ 22 ] Mr. Boulet testified at trial. In 2007, he was practicing as a solicitor with the firm of Cassady & Company in New Westminster, handling residential conveyances and mortgages. As Mr. Boulet recalled, the real estate market was very busy at that time. Mr. Boulet acknowledged that he did not have any independent recollection of meeting with the plaintiffs on October 29, 2007.

However, he had refreshed his memory by reviewing the file, and by reviewing notes that he made during the meeting. [ 23 ] There is no dispute that when the plaintiffs met with Mr. Boulet, they signed a Form B mortgage that showed the interest rate at prime minus 0.850% and a monthly payment of $2,208.92. The plaintiffs also signed a copy of the Approval of Mortgage. [ 24 ] Both of the plaintiffs say that the only matter they raised with Mr. Boulet concerning the mortgage was whether there would be a penalty if they wished later to change their mortgage from a variable rate to a fixed rate.

Both of the plaintiffs say that Mr. Boulet was not sure and that, in order to answer the question, Mr. Boulet had to phone Ms. Foster. Both of the plaintiffs say that the call was not on the speaker phone. Both of the plaintiffs say that, after speaking to Ms. Foster, Mr. Boulet told them there would be no penalty. Mr. Sayami denies that he said anything to Mr. Boulet about a mortgage interest rate of 5.72%. [ 25 ] Mr. Boulet explained that, as part of his standard practice for clients in the position of the plaintiffs, he would review with the clients all of the documents they were signing. As Mr.

Boulet recalled, it typically took him about 45 minutes to go through the

documents with the clients, because the purpose was to ensure there were no misunderstandings and, if there were any issues, to clarify them. He would be physically present when the documents were signed. Mr. Boulet explained that was part of his obligation under his retainer. [ 26 ] With respect to his notes of the October 29, 2007 meeting, Mr. Boulet explained that he made these notes during that meeting. [ 27 ] Mr. Boulet’s notes read as follows: Clients signed into 5yr. fixed @ 5.72% T/c to Jennifer - Bank error – clients correct We will reg variable & she will look after switching over, no cost to clients.

Jennifer advised them of diff payment amount. _______________________________________________________ clients will talk to Jennifer re: payment frequency _______________________________________________________ client will fax 2nd piece of ID [ 28 ] Mr. Boulet testified that the plaintiffs told him that they had signed into a fixed rate mortgage at 5.72%. He then called Ms. Foster. Mr. Boulet explained that, not infrequently, clients would come in and (on review of the documents) tell Mr. Boulet the documents did not reflect what they signed into. During busy times, it would happen two or three times a day. Mr.

Boulet explained that his standard practice was to call the mortgage specialist on his speaker phone, with the clients present. He explained that he did this because of his dual retainer. Although pressed during cross-examination on whether he did this when he met with the plaintiffs, Mr. Boulet testified that it would have been unusual for him not to have such a discussion by speaker phone, and he had no recollection of ever deviating from his standard practice. Mr. Boulet’s notes also say “Jennifer advised them,” and this also indicated that the discussion with Ms.

Foster was on the speaker phone. [ 29 ] In his evidence at trial, Mr. Boulet confirmed that Ms. Foster told him that the clients were correct. Mr. Boulet explained that he would have told clients in those circumstances that it was not ideal to sign documents that did not in fact represent the agreement with RBC. However, the problem in the plaintiffs’ case was that the conveyance was closing that day, and it would be very difficult to reorganize everything in time to complete. The solution therefore was to sign the documents as prepared, and Ms.

Foster would then make the necessary arrangements later to implement the change. Mr. Boulet did not recall what Ms. Foster said the new payment amount would be, although it would have been based on a fixed interest rate of 5.72%. Mr. Boulet explained that his practice was to advise clients that, with a variable rate mortgage, the payment amount can change. [ 30 ] Mr. Boulet explained that the solid line in his notes indicated a new topic. He could not recall whether the phone call with Ms. Foster had ended at that point. [ 31 ] On cross-examination, the plaintiffs’ version of the reason for the phone call to Ms.

Foster was not put to Mr. Boulet. [ 32 ] Ms. Foster recalled receiving a phone call from Mr. Boulet’s office on October 29, 2007 about a problem with the documents. As best she could recall, the phone call came from Mr. Sayami, and she did not recall speaking to Mr. Boulet or whether the call was on a speaker phone. However, her recollection of the contents of the discussion is consistent with Mr. Boulet’s notes and Mr. Boulet’s evidence. It is not consistent with the plaintiffs’ evidence. As Ms.

Foster recalled, because the transaction was closing that day, there was not enough time for the RBC Mortgage Centre to get new instructions to Mr. Boulet. The solution discussed was that the documents would be signed as they had been prepared, and (since a variable rate mortgage could be converted to a fixed rate mortgage at any time without penalty) a mortgage early renewal agreement would be used to switch the mortgage from a variable to a fixed rate at 5.72%. [ 33 ] Ms.

Foster testified that, after October 29, 2007, she then prepared a mortgage early renewal agreement for signature by the plaintiffs, in order to make the change from a variable rate to a fixed rate mortgage, with a 5.72% interest rate. The mortgage early renewal agreement was dated November 7, 2007, which was the last date it could be signed based on the August pre-approval. Even then, because RBC’s 5-year posted rate had increased by October 29, 2007, from 7.17% to 7.34%, Ms.

Foster required new authorization to discount the plaintiffs’ rate by 1.62% (rather than 1.47%, as originally authorized), in order to meet the 5.72% interest rate. According to Ms. Foster, she sent the mortgage early renewal agreement to the Branch for signature by the plaintiffs. When the signed document was returned to her, Ms. Foster then sent it to the RBC Mortgage Centre, under cover of a “sundry action request” fax cover sheet. Ms. Foster’s comments in the sundry action request cover sheet explain, briefly, why the change was being made, and are (broadly speaking) consistent with Ms. Foster’s and Mr.

Boulet’s evidence concerning the discussion on October 29, 2007. [ 34 ] The signed November 7, 2007 mortgage early renewal agreement (the “Early Renewal Agreement”) was then used by RBC to implement the change from the mortgage reflected in the documents the plaintiffs signed with Mr. Boulet on October 29, 2007, to a 5- year fixed rate mortgage, with an interest rate of 5.72% and monthly payments of $2,286.43. The first payment was due November 30, 2007. [ 35 ] According to Ms. Foster, as a result of making the changes to the plaintiffs’ mortgage, her commission went from approximately $2,800 to about $1,200.

[ 36 ] The plaintiffs say that they never signed the Early Renewal Agreement. They both say the signatures on the document are not their signatures. [ 37 ] According to Ms. Chew, on November 22, 2007, Mr. Sayami contacted her about possibly having the mortgage payments be made bi-weekly, although at that time he was undecided. This discussion is consistent with one of the items recorded by Mr.

Boulet in his notes. [ 38 ] The plaintiffs say that they were unaware of the change in the amount of their monthly mortgage payment, from $2,208.92 to $2,286.43, or that their mortgage was not a variable rate but a fixed rate mortgage, until they received a mortgage statement for the year ending December 31, 2008 (the “2008 Mortgage Statement”) in early 2009. [ 39 ] On April 6, 2009, Ms. Sayami had a meeting at the Branch with Ms. Chew. According to Ms. Chew’s notes, Ms. Sayami first asked about whether the plaintiffs could convert their mortgage to a 5-year fixed mortgage at the then current rate of 4.25%. Ms.

Chew informed Ms. Sayami there would be a penalty of about $30,810, and Ms. Sayami decided to leave things as they were. However, Ms. Sayami then informed Ms. Chew that the plaintiffs had always had a variable rate mortgage with monthly payments of $2,208.92, and showed her what Ms. Chew described as the “original agreement.” I infer this is either the original mortgage signed on October 29, 2007 or the Approval of Mortgage. When Ms.

Chew made inquiries, she learned that, as far as RBC was concerned, the mortgage had been converted in November 2007 to a fixed rate mortgage. [ 40 ] There is a dispute about whether Ms. Chew had a copy of the Early Renewal Agreement on April 6, 2009. I find that she did not, and that (as Ms. Chew testified) it had to be sent to the Branch. There was some delay in providing it to Ms. Sayami. [ 41 ] By June 2009, the plaintiffs had been provided with a copy of pages from the Early Renewal Agreement, including the signature page.

On June 28, 2009, they wrote to RBC asserting that all documents relating to the mortgage had been signed on October 29, 2007, and that they were “completely shocked” when they noticed on the 2008 Mortgage Statement that the monthly payment was $2,286.43 rather than $2,208.92. They expressed unhappiness at how they were dealt with by Ms. Chew, and asserted that, once they had received a copy of the pages from the Early Renewal Agreement, “we both agreed those weren’t our signatures. We never signed such a paper.” They asked RBC to investigate. [ 42 ] In November 2009, Ms. Sayami contacted Mr. Jean Kovacs. Mr.

Kovacs had been employed for many years as a forensic document examiner with the RCMP. Ms. Sayami assembled a collection of documents (including specimen signatures for both her and Mr. Sayami, and the signature page from the Early Renewal Agreement) for Mr. Kovacs to review, examine and compare, with a view to seeking Mr. Kovacs’ opinion about whether the signatures on the Early Renewal Agreement were genuine. Mr.

Kovacs prepared a report dated December 7, 2009 in which he expressed the conclusion that “there is a strong probability” that the writers of the specimen signatures did not write the signatures on the Early Renewal Agreement. [ 43 ] In late December 2009, the plaintiffs then sent another letter to RBC, attaching a copy of Mr. Kovacs’ report.

The plaintiffs wrote: “The attachments are the confirmation on the signatures that were forged on Nov. 7/2007 to change our variable mortgage rate to fixed rate.” [ 44 ] The plaintiffs wrote again to RBC on January 18, 2010, repeating their assertions that the signatures on the Early Renewal Agreement were not their signatures. This letter went to RBC’s Ombudsman’s office. The Ombudsman’s office responded by letter dated March 26, 2010.

The Ombudsman rejected the plaintiffs’ assertions. [ 45 ] This action was filed in October 2010. [ 46 ] In August 2012, the plaintiffs accepted RBC’s offer of an early renewal of their mortgage, and signed an early renewal agreement dated August 22, 2012. They renewed for five years at a fixed rate of 3.040%, and their new monthly payment was $1,613.39. [ 47 ] At trial, I had the benefit of opinion evidence from two persons qualified as experts: Mr. Kovacs and Mr. Dan Purdy. Both were qualified to give opinion evidence as forensic document examiners. Mr.

Kovacs’ report dated December 7, 2009 was tendered as his expert report at trial. Mr. Purdy’s opinions were contained in his report dated February 21, 2013. In his “Summary of Findings,” Mr. Purdy stated that, based on his examination of “the extremely poor quality” of the signature page from the Early Renewal Agreement and a comparison of other submitted documents, he was unable to either identify or eliminate the plaintiffs as having written the signatures on the Early Renewal Agreement.

Discussion and Analysis [ 48 ] Credibility, especially the plaintiffs’ credibility, is a very significant feature of this action. There are, for example, very serious conflicts between the plaintiffs’ evidence of events in late October 2007 and the evidence of other witnesses (Ms. Foster and Mr. Boulet). [ 49 ] One of the leading cases discussing the assessment of credibility is Madam Justice Dillon’s decision in Bradshaw v. Stenner , 2010 BCSC 1398 (aff’d 2012 BCCA 296).

Madam Justice Dillon wrote, at paras. 186-187: [186] Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides [citation omitted].

The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness’ evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally ( Wallace v. Davis , [1926] 31 O.W.N. 202

(Ont.H.C.); Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) [Farnya]; R. v. S.(R.D.), (SCC), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)). Ultimately, the validity of the evidence depends on whether the evidence is consistentwith the probabilities affecting the case as a whole and shown to be in existence at the time (Farnya at para. 356). [187] It has been suggested that a methodology to adopt is to first consider the testimony of a witness on a ‘stand alone’ basis, followedby an analysis of whether the witness’ story is inherently believable.

Then, if the witness testimony has survived relatively intact, thetestimony should be evaluated based upon the consistency with other witnesses and with documentary evidence. The testimony of non-party, disinterested witnesses may provide a reliable yardstick for comparison. Finally, the court should determine which version ofevents is the most consistent with the “preponderance of probabilities which a practical and informed person would readily recognize asreasonable in that place and in those conditions” (Overseas Investments

(1986) Ltd. v. Cornwall Developments Ltd. (1993), (AB KB), 12 Alta. L.R. (3d) 298 at para. 13 (Alta. Q.B.)). I have found this approach useful. [50] It is fair to say that, at trial, the plaintiffs told a consistent story, and the evidence of one supported the evidence of the other,especially as it related to the events on October 23 and October 29, 2007 and the Early Renewal Agreement. The story is consistent withthe correspondence they sent to RBC in 2009 and 2010.

However, a story is not made more probable or reliable or trustworthy merelybecause it is repeated many times. [51] The plaintiffs’ story about a meeting with Ms. Foster on October 23, 2007 is inconsistent with the practice described by Ms.Foster. There was no reason for any meeting to take place between the plaintiffs and their mortgage specialist in relation to the Approvalof Mortgage. The Approval of Mortgage was a document that was going to be signed at the meeting with the plaintiffs’ lawyer, whenother documents relating to the conveyance and mortgage were going to be reviewed and signed.

That is what the cover letter stated, andthat was the practice described by Ms. Foster. An additional meeting with the mortgage specialist to sign the approval of mortgagedocument, in advance of the meeting with the lawyer, would be completely unnecessary. In that context, Ms. Foster’s description of thepractice makes sense, and the plaintiffs’ insistence that they met with Ms. Foster and signed the Approval of Mortgage before her onOctober 23, 2007 does not. In other words, the plaintiffs’ evidence is not, in my opinion, consistent with the probabilities of thecircumstances in existence at the time.

Their repeated assertion that the meeting took place does not make their evidence more credible. Rather, it created the strong impression that their story was manufactured and rehearsed. [52] The plaintiffs’ evidence concerning events on October 29, 2007 is inconsistent with both Mr. Boulet’s evidence and Ms.Foster’s evidence. [53] Mr. Boulet is an independent, impartial witness. He made contemporaneous notes of his meeting with the plaintiffs and thediscussion with Ms. Foster. His notes do not support the plaintiffs’ version of events.

Rather, they support RBC’s version. [54] I doubt very much that a real estate solicitor, with the kind of practice Mr. Boulet had in 2007, would be unable to answer thequestion that the plaintiffs say they posed to him (whether there would be a penalty to convert from a variable to a fixed rate mortgage)and require the assistance of the mortgage specialist. The plaintiffs’ story in that regard is simply implausible. Moreover, it was neverput to Mr. Boulet on cross-examination. [55] Mr. Sayami denied having a discussion with Mr. Boulet about the 5.72% interest rate. However, his denial is not believable.

There is no reasonable explanation for Mr. Boulet noting “clients signed into 5 yr. fixed at 5.72%” other than that was what he was toldby one (or both) of the plaintiffs. No other potential source of information, especially about the interest rate, was ever identified. Mr. Boulet’s note in this respect also supports Ms. Foster’s evidence about a discussion with Mr. Sayami shortly before October 29,2007, wherein he told her the plaintiffs wanted to go with a fixed rate. [56] In the context of his dual retainer, Mr. Boulet’s evidence concerning the discussion with Ms.

Foster taking place on the speakerphone, in the presence of the plaintiffs, also makes sense. His notes concerning that discussion are consistent with what Ms. Fosterdescribed as the plan, which subsequently was implemented. [57] Ms. Foster was accused in cross-examination of forging the plaintiffs’ signatures on the Early Renewal Agreement. She had nomotive to do this, and the result of the change from the variable rate to fixed rate mortgage was a loss to her of about $1,600 incommission.

On the other hand, the plaintiffs have a financial interest (although, as of trial, it was largely unquantified) in maintainingthat they never agreed to switch from a variable rate to a fixed rate mortgage. [58] The plaintiffs’ evidence to the effect that they did not appreciate their mortgage payment had changed until they reviewed the2008 Mortgage Statement is also not credible, in my opinion. Based on other evidence, I conclude that Mr.

Sayami reviewed his bankstatements (which showed the mortgage payments) carefully, and if things were not to his liking or something appeared to be amiss, hedid not hesitate to raise such matters with Ms. Chew or her colleagues at the Branch. Moreover, the occasions when very small amountswere deposited to the RBC account from which the mortgage was being paid, to ensure there was enough in the account to cover thepayment, are inconsistent with the proposition that Mr. Sayami (at least) was unaware that the mortgage payment was $2,286.43. [59] I therefore have grave concerns about the plaintiffs’ credibility.

Their evidence does not harmonize with other independentevidence. In particular, their evidence does not harmonize with Mr. Boulet’s evidence, which I accept as both credible and reliable. Inmy view, the plaintiffs’ evidence concerning events on October 23 and October 29, 2007 is unreasonable and unlikely. [60] This brings me to the evidence of Mr. Kovacs and Mr. Purdy. In my opinion, Mr. Kovacs’ evidence is seriously weakenedbecause he relied on Ms. Sayami to choose the specimen signatures for comparison with the signatures on the Early RenewalAgreement. However, Ms.

Sayami was clearly interested in the results of Mr. Kovacs’ review and examination, and in a position toinfluence the outcome. Given my concerns generally about the plaintiffs’ credibility, I am not prepared to give much (if any) weight toMr. Kovacs’ opinions and conclusions. Rather, I prefer Mr. Purdy’s more conservative approach. The result is that the opinionevidence is inconclusive. It does not make the plaintiffs’ version of events more credible or plausible, in my opinion. [61] I reject the plaintiffs’ evidence that they met with Ms.

Foster on October 23, 2007 and signed the Approval of Mortgage at thattime. As I noted above, there was no reason for such a meeting to take place, and Ms. Foster (whose evidence I accept) denies that it

did. The fact that Exhibit 5 has the plaintiffs’ signatures on it does not, in my opinion, assist the plaintiffs, and is at best neutral. The signatures could have been placed on that document (which was in the control of the plaintiffs) at any time. I find that no such meeting, between the plaintiffs and Ms. Foster, happened on October 23, 2007. [ 62 ] There is, therefore, no credible or reliable evidence that Ms. Foster knew what the plaintiffs’ signatures looked like.

I reject the proposition that she was familiar enough with those signatures to forge them on the Early Renewal Document. [ 63 ] I find that, shortly before the plaintiffs met with Mr. Boulet on October 29, 2007, Ms. Foster and Mr. Sayami had a discussion about the mortgage, and Ms. Foster was told that the plaintiffs wanted to have a fixed rate mortgage at 5.72%, rather than a variable rate mortgage. I accept Ms. Foster’s evidence, which is consistent with Mr. Boulet’s notes, in this regard. [ 64 ] I also reject the plaintiffs’ evidence concerning the discussions with Mr. Boulet, and I prefer the evidence of Mr.

Boulet. I find that one of the plaintiffs (probably Mr. Sayami) told Mr. Boulet that the plaintiffs “signed into” (in other words, wished) a fixed rate mortgage at 5.72%, rather than a variable rate mortgage. I find that Mr. Boulet then contacted Ms. Foster on his speaker phone and discussed what was to be done, since the transaction was closing that day. I find that, since there was not enough time to get new instructions to Mr. Boulet, the plaintiffs accepted the proposal that the documents would be signed that day as prepared, and that Ms. Foster would then prepare the necessary document(

s) to convert the mortgage from a variable rate mortgage to the fixed rate mortgage at 5.72%, which the plaintiffs had decided they wanted. I find further that, during the telephone call, Ms. Foster advised the plaintiffs of the new payment amount. Accordingly, I find that, as of October 29, 2007, the plaintiffs had been told that the monthly mortgage payment would be $2,286.43, not $2,208.92. [ 65 ] I find further that, as discussed with Mr. Boulet and the plaintiffs, Ms. Foster then prepared the Early Renewal Agreement and arranged to have it sent to the Branch for signature by the plaintiffs.

I find that, as a result of changing the plaintiffs’ mortgage from a variable rate to a fixed rate mortgage, Ms. Foster lost about $1,600 in commission. There was no motive for her to make the change, apart from complying with the plaintiffs’ request, since by doing so she suffered a detriment. [ 66 ] I reject the plaintiffs’ evidence that they did not sign the Early Renewal Agreement. Rather, I find that the plaintiffs signed it, and it was returned by the Branch to Ms. Foster. I find that on November 7, 2007, Ms.

Foster then sent it (with the sundry action request form) to the RBC Mortgage Centre to conclude the paperwork necessary to convert the plaintiffs’ mortgage to a fixed 5-year mortgage at 5.72%. [ 67 ] I find that the plaintiffs are, therefore, bound by the terms of the Early Renewal Agreement. [ 68 ] It follows that the plaintiffs’ claim must be dismissed. [ 69 ] Since I have dismissed the plaintiffs’ claim, it is unnecessary for me to address the submissions concerning aggravated and punitive damages, or the problems with the amended notice of civil claim that Mr.

Poulsen (for RBC) noted in closing submissions. [ 70 ] I will however say a few brief words about the pleadings. [ 71 ] Pleadings are the foundation on which a case rests. A party who fails to plead a complete cause of action, or who fails to plead the material facts to support the relief being requested, or who does not plead all of the relief being requested, risks an unhappy result at trial. In this case, for example, there were no facts pleaded to support an award of either aggravated or punitive damages (assuming the plaintiffs had been successful).

Facts to support a complete cause of action in negligence were not pleaded. Although in closing submissions, the plaintiffs sought an accounting as an item of relief, there was no claim for such relief in the amended notice of civil claim. Rather, the plaintiffs claimed damages, which (to the extent they wished to recover anything more than nominal damages) they were obligated to prove at trial.

Summary and Disposition [ 72 ] In

summary, the action is dismissed, with costs to the defendant. However, if the parties wish to make submissions on costs, they may do so by taking steps, within 30 days of this judgment, to arrange a hearing date convenient to the parties and counsel, and to the court. “Adair J.”