2015 QCCQ 7114, 2015 QCCQ 7114

Canadian Imperial Bank of Commerce c. Emsperger (Estate of) 2015 QCCQ 7114 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-211790-145 DATE: August 6, 2015 ______________________________________________________________________ BY THE HONOURABLE MAGALI LEWIS, J.C.Q. ______________________________________________________________________ CANADIAN IMPERIAL BANK OF COMMERCE Plaintiff vs. ESTATE OF MRS.

ELISABETH URSULA EMSPERGER Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Canadian Imperial Bank of Commerce ( CIBC ) is claiming $60,000 from the estate of Mrs.

Elisabeth Ursula Emsperger (the Estate ) as reimbursement of the personal line of credit of the late Elisabeth Ursula Emsperger ( Emsperger ). [ 2 ] The Estate contests the claim, arguing that Emsperger did not sign the August 23, 2007 Line of Credit Statement of Disclosure as she was not in Canada and that CIBC’s failure to follow proper protocol allowed Emsperger’s eldest son to use $52,200 from the line of credit contrary to his mother’s intentions. [ 3 ] At the very beginning of the hearing, the parties admitted that Emsperger left the country for a trip to Germany on June 6, 7 or 8 of 2007, and came back sometime in October of the same year.

QUESTION AT ISSUE [ 4 ] To decide this matter, the Court must determine if Emsperger contracted a line of credit with the CIBC and if the fact that she did not benefit from the money available justifies the dismissal of the claim.

CONTEXT [ 5 ] Franca Cinquino ( Cinquino ), the CIBC Financial Service Representative at the Kirkland branch that served Emsperger in May of 2007, testified on the circumstances surrounding Emsperger’s application for a personal line of credit and its activation. [ 6 ] On May 24, 2007, a few days shy of her 81 st birthday, Emsperger met with Cinquino, wanting to open a $60,000 personal line of credit.

Emsperger’s son, Asis Bagchi ( Asis ) [1] , with whom she had been living for quite sometime at that point, was present at the meeting. [ 7 ] Although she does not have any notes in her file about that, Cinquino testified that Emsperger came back to sign the personal line of credit application on May 29, 2007. [ 8 ] Cinquino did not have any memory of her meetings with Emsperger, referring systematically to the information entered in Emsperger’s computer file.

It is only because the personal line of credit application bears the computer generated date of May 29, 2007, that she stated that that is when Emsperger signed it. [ 9 ] The personal line of credit application form provides the following: This application is for the benefit of a Third party? No (…) If you are approved for and we make the line of credit available to you, you agree to pay the total amount owing under the line of credit to CIBC on demand, and until demand is made, to make the minimum payment each month required by the terms of the Application

[ 10 ] With the line of credit application, Emsperger signed a CIBC Line of Credit Statement of Disclosure printed on May 29, 2007 as shown by the computer generated date that appears on the document [2] , this form indicating the initial prime interest rate that would applied to the credit used. Since that form needed to be signed on the date the line of credit would be opened and Emsperger was leaving for Germany shortly after she applied for the credit, Cinquino had her sign the form leaving the space for the date empty.

She added the date when the line of credit was opened, August 23, 2007 [3] . [ 11 ] Emsperger was not working and the evidence presented suggested that she had little income at the time she applied for the line of credit. It appears however that the CIBC did not enquire about Emsperger’s ability to repay the credit. [ 12 ] To secure the repayment of the line of credit, CIBC asked to be granted a mortgage on Emsperger’s residence.

She consented apparently, although she did not inform Cinquino that in 1993 she had transferred her residence to her daughters Esha and Iris Bagchi (respectively Esha and Iris ) and that the deed transferring the residence back to her had never been published against the property. [ 13 ] Below is what the evidence revealed as to the ownership of the property the CIBC wanted to mortgage to guarantee the repayment of the sums that would be used on the credit it would grant Emsperger. [ 14 ] Emsperger’s son in-law, Gerard Grand ( Grand ), testified to provide some background about the Emsperger – Bagchi family.

Grand is an attorney in Ontario, widower of Esha, one of Emsperger’s daughters, and administrator of the Estate. [ 15 ] Emsperger became owner of the property located at […] in Beaconsfield on February 18, 1983, when her ex-husband transferred the title to her. The property was mortgage free then [4] . [ 16 ] Emsperger’s son, Asis, mortgaged the property for $150,000 on May 20, 1986 [5] ; Asis’ creditor transported said mortgaged in favour of the Bank of Montreal later that year [6] .

In December of 1991, Emsperger took over the mortgage transferring it with the CIBC [7] . [ 17 ] Grand explained that, in 1993, Emsperger asked him to transfer her house into her daughters Esha and Iris’ names to protect her only asset from her son Asis. [ 18 ] On June 11, 1993, a deed of sale of Emsperger’s residence in favour of Esha and Iris was published against Emsperger’s property [8] . On April 19 th and May 12 th , 1993, Emsperger, Esha and Iris also signed a deed whereby Esha and Iris were selling the residence back to Emsperger.

Grand was to hold on to the original of that second deed of sale that was not to be published against the property until Emsperger would ask him to, which she never did. [ 19 ] According to Grand, Asis, who was already living with Emsperger, was supposed to manage the mortgage that Emsperger took because of him.

At one point however his siblings were made aware that he was not paying the mortgage and that is when Emsperger’s other children, Esha, Iris and Michael took over the payment of the mortgage. [ 20 ] Esha opened a bank account with the CIBC in which between 2000 and 2007 she deposited $1,123.33 monthly, the amount of money necessary to make Emsperger’s mortgage payments [9] . [ 21 ] Emsperger did not share with her children Esha, Iris and Michael her intention of contracting a line of credit of $60,000 with the CIBC and granting a second mortgage on the property to guaranty its repayment.

In May of 2007, a balance of approximately $9,000 was still owed on the first mortgage [10] . [ 22 ] Emsperger passed away in February 2011. Asis continued to live in the Beaconsfield residence for a few years after that. He received Emsperger’s mail, controlled it and never mentioned anything about the unpaid CIBC line of credit to the Estate.

He was ordered to vacate the property in June of 2013 [11] . [ 23 ] Emsperger’s family learned about the line of credit in October of 2013, when the CIBC tried to foreclose on what it believed was Emsperger’s residence [12] . [ 24 ] Now, back to the May 2007 credit application. [ 25 ] Although Emsperger manisfested that she accepted to mortgage the Beaconsfield residence to guaranty the repayment of the line of credit she was applying for, she did not take the necessary steps to allow the mortgage to be taken.

She did not ask her son in-law, Grand, to publish the deed of transfer signed by her daughters Esha and Iris in 1993 against the residence before she left for Germany, although she knew that it needed to be done, as appears from various notarized documents she signed after May 29, 2007. [ 26 ] On June 4 th , 2007, Emsperger signed a document requiring that a

summary of the 1993 deed of sale where her daughters were transferring the house back to her be registered against the property [13] . Yet, she did not request the original of the deed from either her daughters or her son in-law to whom she had asked to safe keep it. Neither did she leave instructions with the notary in order for him to get the original of the deed of transfer of the property signed in her favour, who did not ask for such instructions. The notary did not do anything to get the original of the deed of transfer of the property in Emsperger’s favour.

Without the original of the deed, he could not publish the transfer of ownership in Emsperger’s favour against the property. [ 27 ] On June 4 th , 2007, notary Jean-François Dugas also had Emsperger sign a deed of mortgage of the Beaconsfield residence [14] .

He had her sign the deed of mortgage although he knew that, as far as third parties were concerned, she was not the owner of the Beaconsfield residence [15] , as he so wrote in the Power of Attorney he had her sign the following day. [ 28 ] Emsperger went back to Notary Dugas’ office on June 5 th , 2007, to sign a Special Power of Attorney in favour of her son Asis [16] , authorising him to take the necessary steps to finalise her line of credit application with the CIBC.

[ 29 ] After Emsperger left for Germany, Asis contacted his sister Esha requesting the original of the deed transferring the Beaconsfield residence back to Emsperger. Below is what Iris wrote to her brother Michael on June 9, 2007: Hey Mike, Could you send me mom’s number in cosel. Also could you give me a call. Asis has been calling Esha to get the papers for the house – he wants to put a line of credit on the house.

Mom mentioned this a while back but didn’t mention it again and hasn’t said anything recently but Asis has called Esha 2 or 3 times since mom has left feeling there is some urgency to get this by Monday.

Ultimately I think we just need to confirm with mom if this is the case. (…) [17] [ 30 ] Notwithstanding the content of the email, the evidence suggests that the subject of Asis’ request to Esha was never brought up with Emsperger. [ 31 ] Having been informed that Emsperger was leaving for Germany shortly after she applied for the line of credit, as previously mentioned, Cinquino had her sign in advance an undated Line of Credit Statement of Disclosure form [18] , to which the date of August 23, 2007, was added in Emsperger’s absence. [ 32 ] According to Cinquino, the delay between Emsperger signing the line of credit application and its activation was due to the title search being done. [ 33 ] What is surprising in Cinquino’s testimony is that she declared not being aware that the search revealed that Emsperger had transferred her residence to her daughters Esha and Iris on June 11, 1993.

Although the evidence is silent as to the cause of the delay to activate Emsperger’s line of credit, it is permitted to suspect that at least part of the delay was caused by the fact that the CIBC was aware that Emsperger did not appear to be the owner of the residence. Indeed, notary Dugas, who received Emsperger’s signature on the deed of hypothec, was aware of it at least as of June 4 th , 2007 and made mention of it in the deed of mortgage CIBC published on July 16, 2007 (Item III, page 4).

Notwithstanding that, CIBC managed to publish a mortgage on the building in relation to Emsperger’s credit application [19] . [ 34 ] As incredible as that may seem, Cinquino declared that Emsperger’s computer file with the CIBC makes no mention of the problematic situation with the ownership of the Beaconsfield residence and the fact that the mortgage related to the line of credit should not have been published against the residence. [ 35 ] Even more surprising is Cinquino’s testimony that there was no mortgage on Emsperger’s residence in August of 2007.

Not only as already mentioned, there was a mortgage on the Beaconsfield residence, but the CIBC paid itself back using the credit available on Emsperger’s line of credit about one month after it was activated. The Court fails to see how this information would not have been available to Cinquino. [ 36 ] Cinquino met with Emsperger on June 5, 2007, to have her sign a General Power of Attorney in favour of her son Asis, which provided the following: 1. I appoint Asis Bagchi (…) to be my lawful Attorney (…) 2. Actions for my benefit . My Attorney(

s) must act exclusively for my benefit; they may not make withdrawals, sign cheques, or otherwise deal with my property for their personal purposes (…). My Attorney(

s) are aware of this limitation.

CIBC may, therefore, choose not to allow them to make withdrawals, etc. if CIBC is not satisfied that such acts are for my benefit, and CIBC will not be liable if it acts in this manner. [20] [ 37 ] The CIBC was not made aware of the existence of the June 5, 2007 notarized Special Power of Attorney Emsperger had signed to designate Asis as her attorney to complete her credit application before September 22, 2007, as appears from the date stamped on the document when Asis provided a copy of the document to Cinquino. [ 38 ] On May 29, 2007, the day the disclosure form was printed, the prime interest rate was at 6 %.

Because on August 23, 2007, the day Emsperger’s line of credit was opened, the prime rate had changed [21] , Cinquino had Asis sign a new Statement of Disclosure form, this one indicating that on the day the line of credit was activated the initial prime rate applicable was 6.25 % [22] . On August 21 st , Cinquino also had Asis sign a modification to the line of credit interest rate, one that reduced the rate applicable from prime to prime less 1.01 % until December 31 st , 2007 [23] . [ 39 ] The line of credit was activated on August 23, 2007.

On August 27, 2007, $25,000.00 were transferred from it via internet [24] . The Estate suggested that Asis made those transfers because Emsperger did not use the internet to do her banking. It could not however provide any evidence as to from and to where the money was transferred as the information is no longer available. [ 40 ] By October 4 th , 2007, $52,206.98 had been used on the available credit, $13,400 of which had been withdrawn in person or via an automatic teller between September 6 th and October 1 st , 2007 [25] , obviously not by Emsperger who was out of the country during that period.

The evidence was silent as to what the money was used for. [ 41 ] Emsperger passed away on February 11, 2011 [26] . Although Cinquino declared that the CIBC was not notified of her passing, the note that she used to testify indicates otherwise: CIBC was notified as of April 14, 2011 [27] .

Had the Estate not required to see the notes Cinquino was referring to when testifying, Cinquino would not have willingly provided the information and the Court would have been left with the impression that the Estate did not act responsibly. [ 42 ] In October 2013, invoking the deed of mortgage it had published on July 16, 2007 against the Beaconsfield residence, the CIBC served upon the Estate a Motion for forced surrender of the property and taking in payment. The CIBC however discharged said

hypothec on August 14, 2014 and amended its claim against the Estate [28] when it realised that the mortgage it had published against the property to guaranty the repayment of the line of credit was not valid for the reasons explained above. [ 43 ] CIBC’s contentions are simple: Emsperger applied for a personal line of credit which was approved. The full amount of credit available was used, at least in part to her benefit for the portion that was used to pay the balance on her mortgage.

If the credit available was used by her son, which the evidence has not established according to the balance of probabilities, she had constituted him her attorney and allowed him access to the account.

CIBC therefore claims that it is well founded to claim from the Estate reimbursement of the amount lent. [ 44 ] The Estate’s position is that Emsperger did not contract the line of credit with the CIBC because she was not aware of the interest rate change between the time she originally signed the line of credit application on or around May 29, 2007, and August 23, 2007, when it was activated. [ 45 ] Consequently, according to the Estate, Asis, who signed the amendments to the line of credit application, finalised the application.

In so doing he contravened to the CIBC’s General Power of Attorney Emsperger signed on June 5 th , 2007, which specifically provided that her attorney could not borrow in her name, should act exclusively for her benefit, could not make withdrawals, sign cheques, or otherwise deal with her property for his personal purposes. [ 46 ] Also taking the position that Asis alone benefited from the line of credit, the Estate asks that CIBC’s claim be dismissed. [ 47 ] Although according to the evidence Emsperger was an elderly women, weakened by illness, who had been taken advantage of in the past by her son Asis, the Estate did not argue that she was not in possession of all her faculties either in the spring of 2007 when she presented to CIBC to apply for a line of credit or at notary Dugas to sign related document, nor when she came back in October 2007 and the months that followed.

ANALYSIS [ 48 ] The Consumer Protection Act , regulates the contract of credit [29] . [ 49 ] Art. 61.1 of the Regulation respecting the application of the Consumer Protection Act [30] , provides the following: 61.1. In accordance with

section 100.1 of the Act, contracts for the loan of money and contracts involving credit which provide that the credit rate is subject to variation are exempt from the application of the provisions of the Act mentioned in that section, provided that they: (

a) indicate the initial credit rate; (…) [ 50 ] In the present case, the initial credit rate is indicated on the Line of Credit Statement of Disclosure. Emsperger signed it on or around May 29, 2007, when she applied for the line of credit.

However, the delay between her application for the line of credit and its activation was so long that in the meantime, the initial interest rate applicable had changed twice. [ 51 ] That being, the Estate did no argue that the contract signed by Emsperger did not comply with the provisions of the Consumer Protection Act , and the Court cannot therefore raise the application of the Act [31] . [ 52 ] The interest rate that appeared on the disclosure form that Emsperger signed on or around May 29, 2007, was not the rate in force when the line of credit was activated. This situation raises the following questions:

a) Is the form that she signed on or around May 29 th , 2007, on which Cinquino added the date of August 23 rd , 2007, valid?

b) Was Asis authorized to sign the new disclosure forms of August 21 st and 23 rd , 2007? And should this question be answered by the negative, was the line of credit contract validly formed? [ 53 ] The relevant provisions of the Civil Code of Québec ( C.C.Q. ) applicable are the following: 1385. A contract is formed by the sole exchange of consents between persons having capacity to contract, unless, in addition, the law requires a particular form to be respected as a necessary condition of its formation , or unless the parties subject the formation of the contract to a solemn form.

It is also of the essence of a contract that it have a cause and an object. 1386. The exchange of consents is accomplished by the express or tacit manifestation of the will of a person to accept an offer to contract made to him by another person. 1387. A contract is formed when and where acceptance is received by the offeror, regardless of the method of communication used, and even though the parties have agreed to reserve agreement as to secondary elements. 1388.

An offer to contract is a proposal which contains all the essential elements of the proposed contract and in which the offeror signifies his willingness to be bound if it is accepted . 1389. An offer to contract derives from the person who initiates the contract or the person who determines it’s content or even, in certain cases, the person who presents the last essential element of the proposed contract. 1420.

The relative nullity of a contract may be invoked only by the person in whose interest it is established or by the other contracting party, provided he is acting in good faith and suffers serious injury therefrom; it may not be invoked by the court of its own motion.

A contract that is relatively null may be confirmed. 1421 . Unless the nature of the nullity is clearly indicated in the law, a contract which does not meet the necessary conditions of its formation is presumed to be relatively null. [ 54 ] In a contract of credit, the denunciation of the applicable interest rate is an essential condition of the contract.

Having a client sign an undated interest rate disclosure form by anticipation does not comply with the requirement of disclosing the interest rate if the rate is different at the time the line of credit is activated. [ 55 ] Cinquino had Emsperger sign the disclosure form by anticipation, knowing that her client was leaving on a trip shortly.

This means that if between the time she applied for the line of credit and the time it would be activated the prime interest rate would change, Emsperger would not know what the initial applicable interest rate would be. [ 56 ] The Court is of the opinion that, had the prime interest rate suffered a drastic increase between Emsperger’s application for a line of credit and it activation three months later, the condition of formation of the contract would not have been respected by making her sign a disclosure form by anticipation that indicated a wrong rate.

That is not however what happened in the present case. [ 57 ] Cinquino corrected the irregularity of having Emsperger sign the disclosure form by anticipation when she had Emsperger sign a General Power of Attorney which allowed Emsperger’s son Asis to receive the divulgation of the initial applicable interest rate and sign the disclosure form in Emsperger’s absence. [ 58 ] In addition, although CIBC was not aware on August 21 or 23, 2007, of the existence of the notarized Special Power of Attorney Emsperger had signed in favour of Asis, the later knew that the Special Power of Attorney authorized him to sign the necessary documents to complete Emsperger’s credit application. [ 59 ] The Court concludes that, according to the terms of the line of credit application, when CIBC approved the credit and disclosed the applicable interest rate to Asis, the contract was duly formed. [ 60 ] If the Court had concluded that the contract between Emsperger and CIBC did not respect the conditions set forth either by the Consumer Protection Act or the Civil Code of Québec , what would have been the sanctions available to the Estate? [ 61 ] The sanctions to a violation of the Act are provided for at

article 271 and following of the Consumer Protection Act , which read as follows: 271. If any rule provided in sections 25 to 28 governing the making of contracts is not observed or if a contract does not conform to the requirements of this Act or the regulations , the consumer may demand the nullity of the contract .

In the case of a contract of credit, if any of the terms and conditions of payment, or the computation or any indication of the credit charges or the credit rate does not conform to this Act or the regulations , the consumer may at his option demand the nullity of the contract or demand that the credit charges be cancelled and that any part of them already paid be restored . The court shall grant the demand of the consumer unless the merchant shows that the consumer suffered no prejudice from the fact that one of the above mentioned rules or requirements was not respected . 272.

If the merchant or the manufacturer fails to fulfil an obligation imposed on him by this Act, by the regulations or by a voluntary undertaking made under

section 314 or whose application has been extended by an order under

section 315.1, the consumer may demand, as the case may be, subject to the other recourses provided by this Act, (

a) the specific performance of the obligation; (

b) the authorization to execute it at the merchant's or manufacturer's expense; (

c) that his obligations be reduced; (

d) that the contract be rescinded; (

e) that the contract be set aside; or (

f) that the contract be annulled, without prejudice to his claim in damages, in all cases. He may also claim punitive damages. 273. (Repealed). 274. (Repealed). 275. (Repealed). 276. The consumer may set up in defence or by cross-demand an exception provided by this Act which tends to rebut an action or to justify a right against the merchant even if the time to avail himself thereof by a direct action has expired. [ 62 ] As for the relevant provisions of the Civil Code of Québec , it reads as follow: 1422 . A contract that is null is deemed never to have existed.

In such a case, each party is bound to restore to the other the prestations he has received. 1423 . The confirmation of a contract results from the express or tacit will to renounce the invocation of its nullity. The will to confirm must be certain and evident. [ 63 ] The evidence suggested that Emsperger did not ask for either Grand or her children Esha, Iris or Michael’s advice or assistance with respect to the situation either prior or after applying for the line of credit.

The fact is that she had represented to the bank and notary Dugas that not only she was willing to borrow $60,000, but that she was willing to mortgage the Beaconsfield house to secure the repayment of the line of credit and signed various documents that confirmed her intention. CIBC and notary Dugas did not enquire as to what the money was for, it does not appear that Emsperger took any steps to stop her son Asis from using or having acces to the credit available.

No evidence was presented to establish who used the credit and for what. [ 64 ] Although Grand and Iris testified at trial that they were not made aware prior to October 2013 that Emsperger had applied for a line of credit, questions remain unanswered: Why didn’t Esha, Iris and Michael discuss with Emsperger Asis’ June 2007 request to Esha that she provide him with the deed of transfer in favour of his mother because he wanted to mortgage the property? What did Esha, Iris and Michael do after September 28, 2007, when they realised that the mortgage on the Beaconsfield residence was paid off?

Did they bring that subject up with their mother?

If so, how did she justify the repayment of the mortgage? [ 65 ] If is it true that the subject was never brought up with or by Emsperger after June 9, 2007, although the Court does not need to address that issue to decide CIBC’s claim, it would appear that, Emsperger being of sound mind and in the absence of any evidence that she was abused or under the influence or control of anyone after October 2007, that Emsperger confirmed the contract with the CIBC. [ 66 ] The Estate suggests that, had the bank verified Emsperger’s ability to pay back the credit she was applying for, it would have concluded that she could not afford to repay the money, proof being that three of her children had taken over the payment of the balance of her mortgage. [ 67 ] The evidence has not established that financial institutions are systematically required to enquire about their client’s ability to pay back credit and that the CIBC failed to respect that practice in the present instance. [ 68 ] Also, it is not sufficient to establish that one’s mortgage is being paid off by her children for the Court to conclude that that person could not afford to borrow $60,000 when no other evidence has been presented to establish her financial capacities.

It must be noted that the Beaconsfield home was worth at least $700,000. [ 69 ] Furthermore, and more importantly the Estate is not asking that the contract relating to the line of credit be declared null and is not claiming damages from the CIBC for having been negligent in the handling of Emsperger’s credit application. [ 70 ] Had the Estate asked the Court to declare the contract regarding the line of credit null, it should have offered to reimburse the amount lent and deposit the money, failing which the Court could not have granted the nullity [32] . [ 71 ] Below is what the authors Baudoin, Deslauriers and Moore write about the duty of care and diligence of banking institutions : 2-432 – Généralités – Le contrat bancaire fait reposer sur l'institution un devoir de prudence et de diligence raisonnables à l'égard du client ( art. 1434 et 1458 C.c.Q. ).

L'analyse de ce devoir exige l'application d'un critère objectif, en vertu duquel la conduite de l'institution doit être jaugée à l'aune du comportement projeté d'une institution exerçant, dans les mêmes circonstances, la même activité professionnelle. C'est, en somme, le critère du banquier raisonnablement prudent et diligent, comme en responsabilité extracontractuelle. Comme il en est toujours, l'appréciation doit tenir compte de l'ensemble des circonstances, notamment de la vulnérabilité du client.

Aussi, les usages du milieu bancaire jouent-ils un rôle crucial, notamment en ce qui a trait à l'exécution du contrat bancaire et aux instructions données en vertu de ce dernier. Il est cependant possible que les normes en usage ne soient pas suffisantes et que, malgré leur respect, la conduite de l'institution financière soit reconnue fautive. Il est aussi possible que l'institution décide d'intensifier son obligation en concluant une entente particulière, à ce sujet, et qu'elle soit alors soumise à une obligation de résultat.

Il convient aussi de souligner que, comme le veut un principe général de la responsabilité civile, l'évaluation doit être faite au moment de la survenance de la faute imputée. [33] [ 72 ] When evaluating what should have been done at a precise point in time, one must consider the information that was available when the decision was being made. [ 73 ] The evidence has not established that, at the time Emsperger applied for a line of credit, there were signs indicating that she was either vulnerable or being exploited. [ 74 ] The Court fails to see how, in the absence of any signs of potential exploitation or vulnerability of a senior citizen, financial institutions would be justified to use different or more severe criteria to approve credit.

That would be a discrimination prohibited under the Charter of Human Rights and Freedoms [34] . [ 75 ] Emsperger’s ability to make decisions for herself has not been questioned.

Although it is possible that Asis took advantage of his mother and used all of the credit available on the line of credit she contracted [35] , no evidence has been presented that would sustain that conclusion anymore than the conclusion that she may have chosen to favor him, or that she had agreed to lend him the money that he was to pay back. [ 76 ] The evidence presented does not permit the Court to conclude that the CIBC was negligent in the handling of Emsperger’s file allowing her to be exploited by her son Asis. [ 77 ] Even if the evidence would have allowed such a conclusion, for the reason set forth above, and because the Estate is not claiming damages from the CIBC but only that its claim be dismissed, the Estate would still have to repay the line of credit.

[ 78 ] WHEREFORE, THE COURT: [ 79 ] GRANTS the claim; [ 80 ] CONDEMNS the Estate of Mrs. Elisabeth Ursula Emsperger to pay to the Canadian Imperial Bank of Commerce $61,304.60 plus interest at the rate of 4% since June 18, 2013, and the additional indemnity provided for by

article 1619 of the Civil Code of Québec ; [ 81 ] THE WHOLE with costs against the Defendant. __________________________________ MAGALI LEWIS, J.C.Q. Mtre Nathalie Bédard, lawyer Donati Maisonneuve, s.e.n.c.r.l. Attorneys for Plaintiff Mtre Muriel Librati, lawyer Teitelbaum Librati, avocats/attorneys Attorneys for Defendant Date of hearing: March 25 and 26, 2015 [33] Jean-Louis Baudouin , Patrice Deslauriers et Benoît Moore La responsabilité civile, Volume II – Responsabilité professionnelle , 8e édition, 2014, p. 459, no. 2-432.