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Toronto-Dominion Bank c. Wise*, C.S. Montréal 500-05-017480-961, 2000-05-24, AZ-50076266, B.E. 2000BE-907, juge John H. Gomery (3 p.).
1. Plaintiff's action claims $34,137.90, representing overdrafts in two bank accounts maintained in Defendant's name. 2. Defendant denies owing anything to Plaintiff, or that she ever consented to borrow money from Plaintiff, by way of loan, advance or overdraft. 3. Plaintiff has the burden of proving its claim. It produces as evidence monthly statements of the bank accounts for the period from December 24, 1993 to October 25, 1995. They reveal that at the beginning of the period Defendant was in an overdraft position, according to the bank's records, totalling $29,621.42. Earlier records have been lost or destroyed. The only activity in the accounts consisted of monthly entries, treated as withdrawals, representing interest on the overdraft and service charges. At no time did Defendant draw a cheque on the account or otherwise use the account in any way. The monthly statements were sent to her at the address of the business operated by her husband. She says that she never saw them, and did not open any envelopes sent to her by the bank, leaving such matters entirely in the hands of her husband. 4. Defendant signed signature cards at the time the bank accounts in question were opened, on October 7, 1982. The cards contain a clause reading: 5. "...you (the bank) are to send statements of account and cancelled cheques to the address given on the reverse side by ordinary mail at my risk and your records shall be conclusive proof of the correctness and authenticity of terms recorded in such statements." 6. Counsel for Plaintiff argues that this agreement, combined with Defendant's failure to protest or to deny that she owed the amounts appearing on the monthly statements, are sufficient evidence that she was indebted to the bank. 7. The Court, in the circumstances of this case, does not agree. A customer of a bank does not become indebted to the bank simply because the bank says so and has recorded an alleged indebtedness in its statements. Evidence of indebtedness to a bank normally requires the signature of its customer, on a promissory note or on cheques or withdrawal slips, or another acknowledgement of the obligation. 8. The evidentiary value of bank statements is prima facie only, and may be contradicted by other evidence. In this case Defendant testifies that she simply does not know of any reason why she would be indebted to the Plaintiff. Plaintiff produces no records which would show how the alleged overdrafts originated. 9. Defendant's agreement in the signature cards she signed in 1982 does not include an undertaking to notify the bank of her disagreement with the entries recorded in the bank statements. In fact, Defendant says that she had no dealings with Plaintiff and did not see the statements. Plaintiff introduces no evidence that she ever agreed to the overdrafts, verbally or otherwise; it dealt exclusively with her husband, and does not prove that the latter had a mandate to engage her responsibility. 10. The Court concludes that Plaintiff has not discharged its burden of proving the indebtedness of Defendant. This conclusion makes it unnecessary to deal with Defendant's subsidiary argument that Plaintiff's recourse is prescribed. 11. FOR THESE REASONS Plaintiff's action is dismissed with costs.
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