Toronto Dominion Bank v. Khan
Because the defendant admitted the indebtedness, offered no evidence of any second agreement, and there was no cross-examination that undermined the Bank's position, the original line of credit remained enforceable and summary judgment was properly granted to the Bank.
Source-derived case information.
- Citation
- 2010 ONCA 320
- Parties
- Respondent/plaintiff: The Toronto Dominion Bank; Appellant/defendant: Azhar Ali Khan
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 3 May 2010
- Procedural Posture
- Collection / Appeal From Summary Judgment
- Outcome
- Appeal dismissed
- Legal Topics
- Summary Judgment, Line of Credit, Demand Clause, Mortgage Discharge, Evidence Cross Examination
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Toronto Dominion Bank
Respondent/plaintiff
Azhar Ali Khan
Appellant/defendant
Procedural Posture
Collection / Appeal From Summary Judgment
Legal Issues
- 1 Whether the Bank could rely on the demand clause in the original line of credit after mortgage discharge and continued use
- 2 Whether a second line of credit agreement was formed or required and whether non-production prevents enforcement
- 3 Whether lack of cross-examination on affidavit evidence precluded summary judgment
Ratio Decidendi
Because the defendant admitted the indebtedness, offered no evidence of any second agreement, and there was no cross-examination that undermined the Bank's position, the original line of credit remained enforceable and summary judgment was properly granted to the Bank.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
- Summary judgment in favour of the Toronto Dominion Bank in the amount of $383,755.00
Full Case Text
Judgment text and source record
1 paragraphs
Toronto Dominion Bank v. Khan Collection Decisions of the Court of Appeal Date 2010-05-03 Neutral citation 2010 ONCA 320 Docket numbers C51291 Judges Sharpe, Robert J.; Blair, Robert Ashley; MacFarland, Jean Louise Subject Civil Decision Content CITATION: Toronto Dominion Bank v. Khan, 2010 ONCA 320 DATE: 20100430 DOCKET: C51291 COURT OF APPEAL FOR ONTARIO Sharpe, Blair and MacFarland JJ.A. BETWEEN The Toronto Dominion Bank Respondent/Plaintiff and Azhar Ali Khan Appellant/Defendant Mak Sultan, for the appellant Leigh Ann Sheather, for the respondent Heard: April 29, 2010 APPEAL BOOK ENDORSEMENT [1] The Bank obtained summary judgment against the defendeant in the amount of $383,755.00 on a line of credit. The defendant admits that he borrowed the monies and that they are owing. [2] The line of credit had a limit on its face of $300,000 and was secured by three mortgages against the defendant’s home. The home was sold and two of the mortgages discharged. When the sale funds passed through the defendant’s account, his line of credit was momentarily in a positive balance in his favour. Thereafter, as the defendant states in his affidavit, he was advised by his lawyer “that [he] could use the same as an unsecured Line of Credit”. He apparently followed that advice and, as he says, “utilized the line of credit as a routine.” As noted, he does not contest the outstanding balance claimed by the Bank. [3] Mr. Sultan argues, however, that when the line of credit balance was paid down, upon the sale of the property, the Bank should have issued – and, he submits, did issue – a new line of credit, and since it has not produced that second document, the Bank is not entitled to rely upon the provision in the Line of Credit giving it the right to demand payment in full at any time. [4] There is no merit to this argument. Mr. Khan does not suggest in his affidavit that there was ever a second agreement and the Bank’s official was not cross-examined. As Mr. Khan said, he continued to use the line of credit, and its limit was overdrawn. The amounts re admittedly owing, however, and there is nothing to indicate that any other agreement was in force. The Bank is therefore entitled to the judgment it obtained. [5] The appeal is dismissed. Costs to the respondent fixed in the amount of $6,000 all inclusive.