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The Bank’s summary trial claim for a credit card debt was dismissed after failing to prove Carol Smith was a co-applicant or that credit-limit increases were expressly consented to.
The appeal was dismissed because the motion judge did not commit reversible error: appellants received adequate notice, failed to attend or provide credible justification, failed to adduce evidence to substantiate their assertions about the debt amount or damages from the credit report, the summary judgment was appropriate on the uncontested documentary record, and the proposed fresh evidence was available with reasonable diligence and therefore inadmissible to upset the summary judgment.
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Defendant had assumed responsibility to make the periodic payments under the joint loan and did so until failing to make or cause the August 2018 payment; there was no agreement or evidence obliging defendant to pay out the full loan balance, therefore claimant is not entitled to an order for full payoff but is entitled to reimbursement of the out-of-pocket payment of $128.45 plus costs.
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The motion judge did not err: the affidavit inaccuracy was corrected and immaterial, the appellant failed to adduce evidence of new charges after an adjournment so dismissal was appropriate, and the appellant did not seek required leave to appeal the cost order; therefore the Court of Appeal dismissed the appeal and affirmed the costs award.
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Section 5(1) of the Small Claims Court Act bars a corporate claimant that is not an original party to the contract from succeeding on an assigned debt in Small Claims Court; consent of the defendant or procedural transfer does not confer jurisdiction where the statute forbids it; therefore the Court lacks jurisdiction and the claim is dismissed.
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Because the original Small Claims matter was adjourned without day and therefore not finally determined, the Court lacked jurisdiction to proceed on the second claim separately; consequently the correct remedy was to consolidate the two matters and schedule a new hearing rather than enter default judgment, despite finding service.
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Non est factum failed because the Request was clear and unambiguous and the defendant was careless in not reading or making reasonable inquiries; carelessness precludes disowning a document so the signed joint and several obligation was enforceable and the defendant is liable for the debt.
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Given credible medical evidence that recurrent major depression with anxiety prevents the bankrupt from completing residency, practicing medicine or likely earning sufficient future income to make meaningful payments, the circumstances giving rise to indebtedness are those for which she cannot justly be held responsible; therefore no fact under s.173(1) was proved and an absolute discharge was appropriate.
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No fact under s.173 BIA was proved: there was no culpable extravagance, no evidence of trading while insolvent, and the Trustee reported no viable proposal; considering the bankrupt's serious health issues, lack of income and limited prospects, and the bank's role in advancing funds, an absolute discharge was appropriate as refusal or conditions would be unjust and serve no practical purpose.
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Because VFC Inc. was an assignee of the Conditional Sales Contract and not one of the original parties to the contract, s.5(1) of the Nova Scotia Small Claims Court Act deprives the Small Claims Court of jurisdiction to hear the corporate claimant's debt claim; accordingly the claim is dismissed.
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