8 CRIMINAL INTEREST RATE: REPORT OF THE WORKING GROUP principal.24 However, the courts were ultimately persuaded of the inappropriateness of this response, recognizing instead a lack of criminal intent among the parties, and noting that depriving the lender of the principal of the loan represented unjust windfall for the borrower. [...] In these circumstances courts have severed the criminal interest provision from the remainder of the contract.29 While in the majority of s.347 cases the courts have found that they can and should sever the criminal interest provisions and enforce the remainder of the agreement, there are circumstances where the courts have been sufficiently concerned about the offensive nature of the contract tha. [...] In determining whether a term of a particular credit contract, mortgage or guarantee is unjust in the circumstances relating to it at the time it was entered into or changed, the Court is to have regard to the public interest and to all the circumstances of the case and may have regard to the following – a) the consequences of compliance, or noncompliance, with all or any of the provisions of the. [...] (c) In any prosecution under this section, if evidence has been introduced tending to show the existence of any of the circumstances described in subsection (b)(1) or (b)(2), and direct evidence of the actual belief of the debtor as to the creditor’s collection practices is not available, then for the purpose of showing the understanding of the debtor and the creditor at the time the extension of. [...] (c) In any prosecution under this section, if evidence has been introduced tending to show the existence, at the time the extension of credit in question was made, of the 28 CRIMINAL INTEREST RATE: REPORT OF THE WORKING GROUP circumstances described in section 892 (b)(1) or the circumstances described in section 892 (b)(2), and direct evidence of the actual belief of the debtor as to the creditor’.
- Pages
- 37
- Published in
- Canada
