Master Robertson

1.4: Procedural orders
4.31: Application to deal with delay
4.33: Dismissal for long delay
5.12: Penalty for not serving affidavit of records
7.3: Summary Judgment (Application and decision)

Case Summary

Applications were brought and jointly considered in two related Actions involving the Royal Bank of Canada (“RBC”) and Andrew Warionmor. In one Action, RBC sought Summary Judgment in respect of a credit card debt; in the other, Mr. Warionmor and others sought Summary Judgment against RBC respecting an alleged mishandling of a trust account.

In respect of RBC’s debt claim, Mr. Warionmor argued that his RBC insurance should cover the debts owing. Master Robertson held that this was not a defence to the claims, and was merely a misunderstanding on Mr. Warionmor’s part. Mr. Warionmor also argued that he had not signed his credit cards, and that his credit card applications were not signed because they were completed online. Master Robertson found that these were not defences to the amount owing.

Mr. Warionmor further argued that RBC did not file its Affidavit of Records within 3 months as required by the Rules. The Master noted that RBC had failed to do so based on “the misapprehension that if it was going to seek summary judgment it need not file” an Affidavit of Records, but explained that this is not the law. Master Robertson then explained that “Mr. Warionmor’s complaint is really about the delay in proceeding with the action as a whole”, which caused him to believe the claim had been abandoned. The Master reviewed Rules 4.31 and 4.33, which address delay when there is no significant advance in the Action for a period of 3 years or more, or where delay has resulted in significant prejudice to a Defendant. Here, RBC’s delay did not result in significant prejudice, and was for 22 months, as opposed to 3 years. The Master also noted that while Rule 5.12 contemplates a Costs penalty when an Affidavit of Records is filed late, Mr. Warionmor’s Affidavit of Records in his related Action was also late, so no Costs award was made. The Affidavit of Records issue was also no defence to the debt claim.

Master Robertson next considered Mr. Warionmor’s claim against RBC, which included allegations of defamation and breach of trust. Since factual disputes existed respecting RBC’s activities, the Master held that the claim could not be determined summarily. Master Robertson also offered comments and guidance to Mr. Warionmor pursuant to Rule 1.4(2)(g), to advise him that he had not pleaded facts supporting his assertion of defamation in his Statement of Claim, and “offer[ed] the observation that parts of Mr. Warionmor’s approach may be fundamentally incorrect in law”.

Master Robertson ultimately granted Summary Judgment in favour of RBC, and dismissed Mr. Warionmor’s Applications for Summary Judgment. Contractual solicitor and client Costs were awarded to RBC.

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