Executive Summary: Key Legal and Evidentiary Issues

• Ashley Gesner's claims of breach of contract, negligence, and breach of fiduciary duty against Coast Capital were dismissed at summary trial, with the Court of Appeal upholding all findings on appeal.

• Fresh evidence filed on appeal failed to meet the stringent Palmer test, as the banking records could have been obtained before trial with reasonable diligence and would not have changed the outcome.

• No fiduciary relationship was established between the credit union and Ms. Gesner, as their ordinary banking interactions did not require Coast Capital to place her interests above its own.

• Coast Capital was found not to be the issuer of Ms. Gesner's Visa credit card — it was issued by the Fédération des caisses Desjardins du Québec — eliminating liability for the $100,000 online cryptocurrency fraud.

• An application to add new respondents (Visa Desjardins, Equifax, TransUnion, Binance, and two individuals) to the appeal was denied under Rule 18, as those parties were not affected by the order under appeal.

• Post-appeal applications for an indefinite sealing order over the entire court file and for special costs were both dismissed, as the Sherman Estate test for displacing the open courts principle was not satisfied.

The banking relationship and mortgage arrangements
Ashley Gesner became a member of Coast Capital Savings Federal Credit Union in 2017, around the time she had completed a program in environmental design and wished to pursue architectural studies and grow her business. She and her father were joint owners of a property in Vancouver, which they rented to a tenant. In early 2018, they decided to refinance their mortgage with Coast Capital, opting for a five-year fixed-term mortgage even though doing so required them to pay a penalty to their previous lender. The mortgage, registered in March 2018, also secured a home equity line of credit. Ms. Gesner subsequently set up automatic monthly transfers from her personal chequing account to the line of credit — first in October 2018 for $190 per month, and then in June 2019 for an additional $1,561 per month. In August 2019, she applied for and received a Visa Desjardins credit card, marketed under the "Coast Visa Desjardins Modulo Gold" brand.

Financial hardship during the COVID-19 pandemic
Beginning in about March 2020, the effects of the COVID-19 pandemic severely impacted Ms. Gesner's finances. The person who was renting the Vancouver property ceased to be a tenant after she lost her job, and Ms. Gesner herself had no stable job or income. Coast Capital deferred the payments on the mortgage for April, May, and June 2020, and later allowed interest-only payments in October and November 2020, and in February 2021. Ms. Gesner's factum also indicated she was a victim of domestic violence in April 2020, though this matter does not appear to have been an issue at trial. She first contacted Coast Capital in mid-December 2020 to discuss an application under the Canada Emergency Business Account (CEBA) program, a federal loan initiative designed to assist small businesses during the pandemic. Coast Capital wrote to Ms. Gesner on January 12, 2021, providing her the requirements for different types of business accounts, and the evidence supported a finding that her business account was opened on January 18, 2021. Despite this, Ms. Gesner's CEBA application was rejected by the federal government due to her failure to meet all eligibility requirements by September 3, 2021.

The property sale, mortgage payout, and continued automatic transfers
Ms. Gesner and her father sold the Vancouver property in July 2021, receiving approximately $206,000 in proceeds after the mortgage and line of credit balance of about $340,000 was paid out. That figure included an early payout penalty of approximately $8,400, which was in accordance with the mortgage contract. Ms. Gesner contended that Coast Capital should not have been entitled to the penalty because it ought to have counselled her against taking a fixed-term mortgage. After the property sale, Coast Capital continued to transfer funds from Ms. Gesner's chequing account to the mortgage account, despite the mortgage and associated line of credit having been paid out. The automatic transfers continued for three months. When, in October 2021, Ms. Gesner noticed money was being transferred, she contacted Coast Capital, which immediately cancelled the automatic transfers and moved the amount credited to the mortgage account back to her chequing account. It also sent her a restaurant gift card as an acknowledgement of the problem.

The online fraud and credit rating decline
Beginning in January 2021, Ms. Gesner had been contacted online by a person purporting to be a celebrity who was interested in her. She ultimately became convinced she was in a relationship with that person. In September 2021, she sent them $100,000 in Bitcoin that she purchased with her Desjardins Visa card. By October 2021, she realized she had been defrauded and reported the matter to police, but she has been unable to recover the funds. Ms. Gesner alleged that Coast Capital bore responsibility for failing to prevent the transaction. Her financial situation continued to deteriorate, and in November 2022, she made demands on Coast Capital to compensate her, including allegations that Coast Capital's actions left her vulnerable and open to being the target of cybercriminals and that Coast Capital had wrongfully caused her credit rating to decline.

The summary trial and its findings
Ms. Gesner filed a notice of civil claim against Coast Capital on March 1, 2023, alleging breach of contract, negligence, and breach of fiduciary duty. She filed an application for summary trial on March 2, 2023, and Coast Capital applied to strike or dismiss the claim on August 25, 2023. Both applications came before Justice McDonald on September 26, 2023. The trial judge addressed each of Ms. Gesner's allegations individually: the claim that Coast Capital wrongfully delayed opening her business account was dismissed because the evidence showed the account was opened within a reasonable time and the timing did not result in actionable loss or damage; the claim regarding wrongful debiting of funds was dismissed because, to the extent funds were debited, it was solely the result of Ms. Gesner's own actions; the claim that Coast Capital wrongfully failed to grant additional payment deferrals was dismissed as there was no evidence to support it, and there was inadequate proof that Ms. Gesner suffered any loss or damage recoverable from Coast Capital; the allegation of liability for cyber fraud was dismissed because the evidence did not establish that Coast Capital was liable for the loss or damage she claimed as a result of participating in a fraudulent online scheme; and the claim that Coast Capital wrongfully caused her credit rating to decline was also dismissed. The judge ultimately dismissed Ms. Gesner's application seeking judgment on the claim.

The contractual terms at issue
The mortgage contract between Ms. Gesner, her father, and Coast Capital was a five-year fixed-term arrangement that included an early payout penalty provision. The Court of Appeal found that Ms. Gesner and her father were fully aware of the consequences of choosing a fixed-term mortgage — indeed, they were required to pay out a similar fixed-term mortgage when they decided to move their business to Coast Capital. The Court held that Coast Capital's duty was, at highest, to inform Ms. Gesner fully and fairly about her options, and it did so. Additionally, the Visa cardholder agreement in evidence bore both the Desjardins and Coast Capital logos at the top, but the text of the agreement clearly indicated that the card was issued by the Fédération des caisses Desjardins du Québec, and not by Coast Capital. The credit card statements submitted by Ms. Gesner as part of her new evidence bore the Desjardins logo alone at the top, confirming that Coast Capital did not administer the account.

The chambers applications (2024 BCCA 307)
After filing her notice of appeal on April 19, 2024, Ms. Gesner applied for an extension of time to file her factum, to add new respondents — including Visa Desjardins, Equifax, TransUnion, Binance, and two individuals — and for substitutional service. Justice Abrioux, sitting in chambers on August 16, 2024, granted the unopposed time extension to Friday, September 13, 2024, but dismissed the remaining applications. The Court applied Rule 18 of the Court of Appeal Rules, B.C. Reg. 120/2022, and the threshold question from Held v. Sechelt (District), 2021 BCCA 92 — whether the order from which the appeal is taken had a direct effect on the legal rights of the proposed respondents. Since the order under appeal only dismissed Ms. Gesner's claim against Coast Capital, and none of the proposed respondents were named as defendants to the claim or appeared in the court below, there was no basis to add them. The style of proceedings was amended to correct the respondent's name to "Coast Capital Savings Federal Credit Union." No order for costs was made for those particular applications, as the Court determined these costs should be considered as part of the costs of the appeal proper.

The appeal decision (2026 BCCA 40)
The appeal was heard on March 7, 2025, with additional materials received on January 12 and January 14, 2026. Justice Groberman, writing for a unanimous panel that included Justices Horsman and Winteringham, dismissed the appeal on February 4, 2026. The Court refused to admit the voluminous fresh evidence Ms. Gesner had filed, finding it did not satisfy the Palmer v. The Queen criteria — the banking and credit card records could have been obtained before trial with due diligence, and even if admitted, the material would not have changed the result. On the merits, the Court found no error in the trial judge's conclusions on any issue. It acknowledged that it was at least arguable that a reasonable financial institution would recognize that the payout of the mortgage and line of credit represented an important change of circumstances, but noted that even if there was negligence on the part of Coast Capital, it was at least matched by negligence on the part of Ms. Gesner, who was equally capable of ending the transfers. In any event, no damages resulted since the transfers were reversed as soon as Ms. Gesner drew them to Coast Capital's attention, and there was no evidence of either foregone interest or service charges incurred as a result. The Court confirmed that no fiduciary relationship existed between Coast Capital and Ms. Gesner, as there was nothing in their ordinary day-to-day business dealings that would have constituted it a fiduciary or required it to place her interests above its own. The procedural fairness argument was also rejected — it was up to Ms. Gesner to seek disclosure of documents before pushing on with a summary trial application, and there was nothing in the additional documents that served to change the complexion of the case.

The sealing order and special costs application (2026 BCCA 125)
Following the dismissal of her appeal, Ms. Gesner applied for what would amount to an indefinite sealing order over the entire appeal file and for special costs against Coast Capital for "intentional infliction of psychological distress." Justice Abrioux, sitting in chambers on February 24, 2026, dismissed both applications on March 3, 2026. Applying the Sherman Estate v. Donovan, 2021 SCC 25 framework, the Court found that Ms. Gesner failed to satisfy the first element of the test — that court openness posed a serious risk to an important public interest. The Court noted that significant portions of the file were already sealed under previous orders by Justices Griffin and Groberman, and that the unsealed materials only contained summaries, excerpts, and references to sensitive portions of the evidence rather than the sensitive information itself. Ms. Gesner's speculation that the unsealed portions would assist alleged fraudulent actors in further harassing her did not meet the high burden required to displace the presumption of open court proceedings. The special costs application was dismissed because Ms. Gesner was unsuccessful, both on this application and in her appeal at large. Coast Capital, as the successful respondent, was entitled to its ordinary costs of the appeal under s. 44(1) of the Court of Appeal Act. With respect to the specific applications before Justice Abrioux, Coast Capital took no position on the sealing order application and was accordingly awarded 50% of its assessed costs of those applications, being those costs incurred in relation to its opposition to the special costs application. The exact monetary amount of the costs award was not determined in the decisions.