Those of us involved in the legal profession and the administration of justice would seem to enjoy a palpable advantage over many of our fellow citizens for the simple reason that we are trained to prove a conclusion by showing a path of logic to that conclusion. I should add an important caveat to that statement: there is absolutely no advantage in using cold, objective logic when having a “discussion” with one’s significant other. Indeed, resort to “lawyer mode” virtually guarantees a collateral “discussion” in which you will without doubt fare badly.
Consequently, we are a bit flummoxed when we find ourselves in a situation in which there is a complete and irrational resistance to acknowledging a set of facts clearly established by independent, physical evidence. This is the position in which I recently found myself when dealing with a very large societal institution: a chartered bank.
Banks collectively are an interesting entity. They all seem to be of the view that there lies buried somewhere in either their originating charter, or enabling legislation, or both, an all but irrefutable presumption that banks do not make errors. The doctrine of papal infallibility pales in comparison to the banking industry’s view that its members do not make mistakes. The legal maxim “rex non potest peccare” (“ the King can do no wrong”) amounts to no more than a mere suggestion of mediocrity when measured against a bank’s view of its place as the repository of all that is accurate and true.
So, when a banking behemoth with which I do business pronounced that I had missed a required account payment, my initial reaction was that I must have missed the required payment, though that did not accord with my memory of having made the payment. However, if the bank said I had erred, then I must have erred, regardless of my contrary memory. Surely it would be contrary to the laws of nature for a bank to be in error, but I was plagued by such a clear and stubborn memory of writing the cheque and walking it to the bank branch. So, rebellious fellow that I am, I trotted off to what passes for my personal filing system, burrowed about for a bit, and came up with the account statement bearing the bank’s stamp acknowledging receipt of the money. I then retrieved a copy of the cheque cashed by the bank (I wish to make it clear that I did so by electronically accessing my bank account and printing a copy of the cheque; I trouble you with this ostensibly superfluous information because being able to do so ranks as a major accomplishment worthy of note for someone of my advanced vintage and limited computer skills).
Armed with what I thought was insurmountable proof that I had been grievously and wrongly accused of dereliction of duty, I called the telephone number listed in the letter by which the bank had informed me that I had fallen below the standard of conduct they expected of me. As soon as I gave my name and satisfied the person on the other end of the line that I was who I said I was, I was told that the whole matter could be resolved by me authorizing a transfer of funds from one account to another. “But”, I interjected, “the bank is wrong. I did make the payment.” This seemed to be the banking world’s equivalent of loudly breaking wind in the middle of a benediction. There was a pause, and the very pleasant voice suggested that I was confused. I was of a mind to quote Sir Winston Churchill’s comment that “men occasionally stumble over the truth, but most of them pick themselves up and hurry off as if nothing ever happened”, but decided that a bout of verbal thrust and parry with a person who could easily eliminate my entire electronic existence with one keystroke would not be the preferable course of action.
I explained and described the physical paperwork which I had spread out before me. My efforts to show, through a logical chain of reasoning, that it really was the bank, and not me, that was wrong were met with very polite suggestions that I must be mistaken about the facts. To her credit, she said she would make “a note” on my file, though I feared that it would be a note in which the word “deranged” figured prominently. She told me to go to the bank branch and show them my paperwork. Fair enough, so off I went.
I told the very polite teller (sorry, my age is showing again, customer service representative) my now well-worn tale. In the words of the late, and much missed Yogi Berra, “it was déjà vu all over again.” The initial reaction was that I was wrong because the bank’s records said I was wrong. The copy of the cashed cheque bearing the relevant account number must relate to something else. The receipted statement must be a mirage. She was very polite and courteous, but the curtain of bank infallibility which surrounded her seemed impenetrable. She kept staring at her computer screen, and then, as if the clouds had parted and let the sun shine through, she said, “I think I know what happened. The money was put into someone else’s account.” Now, normally, hearing that my money has, without my authority, been put into another person’s account would not be the source of great personal joy. Nevertheless, in this case it was. No longer was the bank questioning my sanity (or worse), and no longer was I doubting my own grip on reality. That feeling alone was probably worth the missing $400.
I felt some sympathy for the bank employee since this startling revelation that the bank, and not the mere mortal customer, had made a mistake must have ranked equally with the childhood trauma of learning that Santa Claus is a concept and not a person. However, she rallied, and clutching copies of all my documentation, said that she would look into it. Though I knew that she was really buying time in the hope that somehow all the mounting evidence in my favour would prove illusory, I politely thanked her, and left, bathed in the warmth of the admittedly petty thought that, at some point, when removing my money from the account into which it had been erroneously placed, the bank was going to have to make to someone else another fresh admission of imperfection.
The Honourable Judge A.A. Fradsham is a Provincial Court Judge with the Criminal Court in Calgary. His column "A View From the Bench" has been a highlight in Canadian Bar Association newsletters for over 15 years.