Bank of Montreal v. Lee

2025 BCSC 115 Bank of Montreal v. Lee

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Bank of Montreal v. Lee, 2025 BCSC 115 Date: 20250124 Docket: S221463 Registry: Vancouver Between: Bank of Montreal Plaintiff And Alexandra Jen-Yi Lee and Kwei-Lan Liao Defendants Before: The Honourable Justice Latimer Supplementary Reasons for Judgment to Bank of Montreal v. Lee, 2024 BCSC 2236, Vancouver Docket No.: S221463 Supplementary Reasons for Judgment Counsel for the Plaintiff: B. Jibu The Defendants, appearing in person: A.J.-Y. Lee K.-L. Liao Written Submissions of the Plaintiff: December, 19, 2024 Written Submissions of the Defendants: January 8, 2025 Date of Original Reasons for Judgment: December 10, 2024 Place and Date of Supplementary Reasons for Judgment: Vancouver, B.C. January 24, 2025 Table of Contents Introduction.. 3 Position of the Parties. 3 Analysis. 5 Admissibility of the Affidavit #1 of Mr. Meyer 5 The Interest Calculation. 6 Conclusion.. 8 Introduction [1] This is a debt collection proceeding in respect of Homeowner Readiline line of credit 22192306692 (the "Line of Credit"). An application for summary judgment came before the Court on November 19, 2024. [2] In reasons released December 10, 2024, indexed at 2024 BCSC 2236 (the "Reasons"), the Court concluded that the plaintiff had established a prima facie case that a debt is owing. Costs were ordered in favour of the plaintiff. [3] The amount of the

debt owing as of February 11, 2022 was $352,490.79 (the "Debt"). The Court held that the plaintiff was also entitled to interest on the Debt after February 11, 2022 up to the date of judgment at a rate per year equal to the plaintiff's prime rate as that rate is determined by the plaintiff from time to time, compounding monthly, and that changes to the prime rate were effective immediately. [4] The Court also concluded that there was not sufficient admissible evidence upon which the Court could calculate the interest owing up to the date of judgment. The Court therefore directed that if the parties could not agree on the interest owing, they were at liberty to make further written submissions supported by evidence within specific constraints set out in the Reasons. [5] The parties have been unable to reach a resolution on the interest owing. On December 19, 2024, the Court received supplemental submissions and evidence from the plaintiff. On January 8, 2025, the Court received supplemental submissions and evidence from the defendants. [6] For the reasons that follow, judgment is pronounced in favour of the plaintiff in the amount of $418,485.34 as at December 10, 2024. Position of the Parties [7] The plaintiff has tendered the Affidavit #1 of Jocelyn Sauvé, a corporate representative of the plaintiff. Ms. Sauvé has used as her starting point the Court's finding that the amount

of debt owing as of February 11, 2022 was $352,490.79. She has provided evidence of the plaintiff's prime lending rate for all periods between February 11, 2022 and December 10, 2024. The compounding period is monthly. When the plaintiff's prime lending rate changed in the middle of the month, she has given immediate effect to that change with the result that there are multiple calculations for some months. She calculates interest accrued on the Debt from February 11, 2022 to December 10, 2024 in the amount of $65,994.55. [8] The defendants rely upon the Affidavit #1 of Aaron Meyer. I will address Mr. Meyer's affidavit in more detail below. The defendants argue that the plaintiff has "intentionally violated" the order made in the Reasons "for the purpose of profit". In total, it is argued the defendants conduct amounts to abuse of process and contempt of court. The alleged intentional breach of the order is said to arise in the following ways: a) It is argued that an offer made by the plaintiff on December 10, 2024 contained a calculation error (corrected days later by the plaintiff) and this was an intentional violation of the order; b) It is argued that Ms. Sauvé's affidavit also contains "errors/problems", in particular: i. It is argued that the affidavit uses a compounding frequency contrary to that required by the Reasons; ii. It is argued that the manner in which rate

changes that occur mid-month are addressed is erroneous; iii. It is argued that the plaintiff has not explained the formulae used for interest calculations thus obscuring what errors the plaintiff made; iv. It is argued that there are "mathematical impossibilities" in Lines 24-27 of Ms. Sauvé's Exhibit A. v. It is argued that the wrong per diem rate is used in Line 1 of the calculations. [9] The defendants further argue that the Line of Credit statement of account dated March 11, 2022 contains inappropriate charges and was sent to the wrong address. They further allege that the plaintiff has refused to receive payment towards the debt in a strategy to profit by harming the defendants by maximizing interest, legal costs, and fees. Analysis Admissibility of the Affidavit #1 of Mr. Meyer [10] Mr. Meyer is the spouse of one of the defendants and a third party to this litigation. [11] Large portions of Mr. Meyer's affidavit are inadmissible. [12] In the Reasons, this Court provided the parties with a limited opportunity to produce submissions and affidavit evidence addressing the narrow question of the interest owing on the Debt after February 11, 2022 up to December 10, 2024. The Court directed that the affidavits were not to exceed five pages and the written submissions in chief were also not to exceed five pages. [13] Mr. Meyer's affidavit is 54 pages long, including exhibits.

This exceeds the page limit by a factor of almost 11. As I will explain in more detail below, there are additional problems with its admissibility. [14] Paragraphs 2-4 and Exhibit A of Mr. Meyer's affidavit contain irrelevant re-argument about alleged defaults in the plaintiff's materials underlying the summary judgment application and irrelevant argument about the Reasons. That evidence is inadmissible. [15] Paragraph 5 contains inadmissible argument. [16] Paragraph 6 contains inadmissible argument. Exhibit B is hearsay evidence. Hearsay evidence is inadmissible on a summary judgment application. [17] Paragraph 7 mixes fact and inadmissible argument. [18] Paragraphs 8-11 set out the affiant's beliefs and arguments about how the plaintiff produced its evidence and calculations, none of which rest on a reasonable factual foundation. I give no weight to these paragraphs. The Interest Calculation [19] The Court's analysis of the contractual terms which govern the calculation of interest in this matter are set out at paras. 10-11, 42-45, 57(a) of the Reasons which should be read in conjunction with these supplemental reasons. [20] Based upon the applicable contractual terms, my finding that the amount owing as of February 11, 2022 was $352,490.79, and the Affidavit evidence of Ms. Sauvé, I am satisfied that the interest accrued between February 11, 2022 and December 11, 2024 is

$65,994.55. [21] I do not accede to the argument that the plaintiff has used an incorrect compounding frequency. While there are 34 months between February 2022 and December 2024, and 48 calculations, that is because the Agreement provides that changes to the prime rate are effective immediately. Ms. Sauvé's calculations properly delineate the number of days in each month for which each rate applies. For example: a) between February 12, 2022 and March 3, 2022, the rate was 2.4500%; and, b) between March 3, 2022 and March 12, 2022 the rate was 2.7000%. There are therefore two calculations for the period between February 12 and March 12, 2022. In the example given, Exhibit A properly delineates that there are 19 days at 2.4500% and 9 days at 2.7000%. Exhibit A deals with all mid-month rate changes in a similar fashion. [22] I reject the defendants' argument about the manner in which mid-month rate changes must be addressed. Exhibit A sets out that interest has been compounded monthly. However, as noted in the Reasons, interest is calculated daily and changes to the prime rate are effective immediately. It was therefore appropriate for Ms. Sauvé to separate the calculations at the different rates as she has done at Exhibit A. [23] I also do not accede to the argument that there are "mathematical impossibilities" in Lines 24-27 of Ms. Sauvé's Exhibit A. I do not find the

calculations at those lines to be mathematically impossible. [24] I reject the argument that the plaintiff has not explained the formulae used for interest calculations thus obscuring what errors the plaintiff made. The Reasons set out the formula to be used and Exhibits A and B comply with my directions about the additional evidence required. [25] I reject the argument that the wrong per diem rate is used in line 1 Exhibit A. This argument is premised upon the difference between the plaintiff's offer made on December 10, 2024, and the sum set forth in the plaintiff's submissions. The plaintiff's offer is not the evidence upon which the calculation at Ms. Sauvé's Exhibit A is premised. Rather, her evidence is based upon the principal of $352,490.79 owing on February 11, 2022 and interest at 2.45% being calculated for 19 days after that. [26] There is no evidentiary foundation to support the defendants' argument that the plaintiff intentionally violated this Court's order. That an earlier calculation was sent to the defendants that contained an error which was corrected by the plaintiff days later is not evidence of a willful breach of a court order. There was no court order requiring the plaintiff to make an offer to the defendants. That an offer was made and that it contained a calculation error is only evidence of an attempt to resolve this matter without further recourse to

the courts and human error which was later corrected by the plaintiff. I have also found that the calculation presented by the plaintiff complies with the directions in the Reasons. It follows that there is no basis to consider whether there has been an abuse of process or contempt of court and I will not consider those arguments further. [27] I do not intend to consider the argument that there were errors in the Line of Credit statement of account dated March 11, 2022 because even if that argument is true, and I make no finding that it is, the Line of Credit statement of account dated March 11, 2022 has no bearing on the calculations offered by the plaintiff at this juncture. Rather, as I have set out above, those calculations are based on my finding that the amount owing as of February 11, 2022 was $352,490.79, and the interest calculations set forth by Ms. Sauvé for all relevant periods since then. [28] The evidence before me does not establish a refusal to accept payment by the plaintiff. Conclusion [29] Judgment is pronounced in favour of the plaintiff in the amount of $418,485.34 as at December 10, 2024. Thereafter, the plaintiff is entitled to interest calculated under section 7 of the Court Order Interest Act, RSBC 1996, c 79. [30] The plaintiff is entitled to its costs at scale B. "Latimer J."