Mesrie v. La Banque pour le Commerce Suisse-Israélien et al.

Mesrie v. La Banque pour le Commerce Suisse-Israélien et al.

Because the action could properly be decided on affidavit under art.194 C.C.P., the presence of leading questions in subsequent oral evidence did not render the proof illegal; the Court may consider a statement of account included in the case by agreement under s.67 but it must be taken as a whole; applying that document required reducing the judgment amount and adjusting the interest commencement date; costs were refused to the appellant.

Citation
[1973] SCR 702
Parties
Appellant/defendant: Jemil Mesrie; Respondent/plaintiff: La Banque pour le commerce Suisse-Israelien; Respondent/mise En Cause: Beaver Investments Ltd.
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
30 March 1972
Procedural Posture
Civil Appeal (loan and Hypothec) / Appeal to the Supreme Court of Canada After Judgments in Superior Court and Court of Queen's Bench
Outcome
appeal allowed in part
Legal Topics
Default Judgment, Admissibility of Affidavit Evidence, Leading Questions, Statement of Account, Interest Calculation, Reduction of Judgment, Code of Civil Procedure Arts 194 and 306, Supreme Court Act S.67
Source Language
English
Civil Procedure Evidence Secured Transactions Mortgage Law Appeal Default Judgment Admissibility of Affidavit Evidence Leading Questions +5 more

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Parties

Jemil Mesrie

Appellant/defendant

La Banque pour le commerce Suisse-Israelien

Respondent/plaintiff

Beaver Investments Ltd.

Respondent/mise En Cause

Procedural Posture

Civil Appeal (loan and Hypothec) / Appeal to the Supreme Court of Canada After Judgments in Superior Court and Court of Queen's Bench

Legal Issues

  1. 1 Whether oral evidence elicited by leading questions rendered the default judgment illegal
  2. 2 Whether the evidence was sufficient to establish rate of interest, commissions and accounting costs
  3. 3 Whether a statement of account filed by consent under s.67 S.C. Act can be treated as part of the record and used to reduce the judgment

Ratio Decidendi

Because the action could properly be decided on affidavit under art.194 C.C.P., the presence of leading questions in subsequent oral evidence did not render the proof illegal; the Court may consider a statement of account included in the case by agreement under s.67 but it must be taken as a whole; applying that document required reducing the judgment amount and adjusting the interest commencement date; costs were refused to the appellant.

Court Disposition

appeal allowed in part

Orders

  • Judgment reduced and substituted amount awarded: $149,985.85 with interest at 9% from April 1, 1969
  • Appeal allowed in part without costs to the appellant