I admit that I’m late to the
party in reporting on this case, but it has such an interesting and unusual
fact set that, when I read it, I thought “better late than never”. In
a recent decision, Justice David L. Corbett of the Ontario Superior Court of
Justice (Abramovitz v. Lee 2018 ONSC 3684), granted default summary judgment
and substantial damages, including punitive and aggravated damages, against the
defendant Jennifer Lee for what the judge called “her despicable
interference in Mr. Abramovitz’s career.” Lee had impersonated the
plaintiff Eric Abramovitz and frustrated a unique opportunity that Abramovitz
had to advance his career as a professional musician. She did so,
apparently because she feared that Abramovitz would move to California and end
their relationship.
The parties met in 2013 when
they were both students at McGill University’s Schulich School of Music.
Abramovitz was a gifted musician, and an accomplished clarinetist. He had
studied the clarinet since he was seven years old with some of Canada’s
greatest clarinet teachers. He was the winner of a number of prestigious
prizes and awards and in 2013 was named as a promising up and coming artist.
In December of 2013
Abramovitz applied to study at the Coburn Conservatory of Music in Los Angeles,
California (“Coburn”). He hoped to complete the last two years of
his bachelor’s degree. Every Coburn receives a full scholarship including
tuition, room and board and a living stipend to cover meals and other
expenses. The scholarship was worth tens of thousands of dollars.
Abramovitz had applied to
study under Yehuda Gilad, an internationally renowned "clarinet pedagogue". Gilad
was recognized as one of the best clarinet teachers in the world and accepted
only two new clarinet students per year at Coburn from dozens of
applicants. Students applied from all over the world to study with
Gilad. Abramovitz had long aspired to study with Gilad and after a very
selective pre-screening process he was invited to a live audition at Coburn in
Los Angeles in February of 2014. Abramovitz and his parents flew to Los
Angeles for this audition which was conducted in front of a committee of
faculty members including Gilad. Abramovitz was told he could expect a
decision by April 1, 2014.
Meanwhile, Abramovitz and
Lee’s relationship progressed quickly. They began living together.
Abramovitz trusted Lee and let her use his laptop computer and gave her his
passwords.
Coburn got back to Abramovitz
by email on March 27, 2014. It offered Abramovitz a place to study with
Gilad on full scholarship.
Lee intercepted Coburn’s
acceptance email and responded to it, impersonating Abramovitz. She
declined Coburn's scholarship offer because Abramovitz would be “elsewhere”. Lee then
deleted the acceptance email and recomposed another email purportedly from
Gilad’s email account (which she established under her own name). The
fake Gilad email advised Abramovitz that he had not been accepted at Coburn.
Instead, the fake email from Gilad advised Abramovitz that he would not be
given a full scholarship and would have to pay substantial amounts in expenses
to attend another program at the University of Southern California and pay his
own living expenses. Lee knew that Abramovitz would not be able to afford
this alternative, fake offer.
Abramovitz was completely
fooled by this deception and stayed in Montreal and completed his music degree
at McGill. As a result, Gilad lost the two year full scholarship
opportunity to study with Gilad.
Abramovitz brought an action
against Lee in Ontario claiming damages on the basis of deceit, intrusion upon
seclusion, invasion of privacy and intentional or negligent infliction of
mental suffering. In Justice Corbett’s view, this case was primarily
about deceit – that is Lee’s impersonation of Abramovitz to send a false
rejection letter to Coburn and her impersonation of Gilad to create an email
account in his name and send a false rejection letter to Abramovitz.
Lee was personally served
with the statement of claim in Montreal. She did not file a notice of
intent to defend or statement of defence and was noted in default.
Abramovitz moved for summary judgment.
Justice Corbett held that he
was satisfied from the facts alleged in the statement of claim, which were
deemed to be true by virtue of Lee’s default, and from the supplementary
evidence filed by Abramovitz that Ontario had jurisdiction simpliciter because
Lee’s primary residence was in Ontario. Residence is the first
presumptive connecting factor establishing jurisdiction. Before attending
McGill, Lee had lived with her parents in Ontario. Her parents continued
to live in Ontario and Lee maintained a residence at her parents’ home while
she was away at school in Montreal. Accordingly, she was domiciled both
in Ontario and Quebec.
Justice Corbett held that the
law to be applied to the torts alleged in the statement of claim was the law of
the place where the activity occurred i.e. the civil law of Quebec.
Quebec law is a “foreign law” in Ontario and the substance of Quebec law is a
question of fact that has to be proved by evidence. However, Abramovitz
introduced no evidence of what the applicable law in Quebec was. As a
result, Justice Corbett relied on the presumption that the applicable law was,
in substance, the same as Ontario common law. The judge was satisfied
that justice could be best done by applying Ontario law under the presumption
that applies when foreign law is not proved.
Abramovitz’s damages were
extensive. They included loss of educational opportunity and loss of
income caused by redirection of his career. Justice Corbett held that his
claim for loss of reputation by being rejected by Coburn was short term and
would be addressed, at least in part, by the judgment. Under loss of
educational opportunity, Abramovitz argued that he had lost a “big break” to
study under Gilad that could have launched his career. Instead he stayed
at McGill and completed his Bachelor of Music. After that he attended a
two year graduate certificate in performance at USC and in those circumstances
eventually had a chance to study with Gilad in a certificate program not a
degree program two years later than he had hoped and not on full scholarship.
The judge was satisfied that Abramovitz had lost the value of his scholarship
with Coburn and that his career had been delayed for about two years.
(Gilad’s affidavit was filed in support of the motion for summary
judgment). The judge fixed the lost income at two years of a starting
salary with a reputable symphony orchestra. He then awarded damages for
loss of scholarship and Abramovitz’s additional educational costs. All
such losses amounted to US $334,000.00. However, Abramovitz had claimed
only $300,000.00 CAD for general damages in his statement of claim.
Considering the relevant currency exchange rate, the amount calculated by the
judge exceeded the amount claimed. However, in part because of the
default nature of the proceedings, Justice Corbett awarded Abramovitz
$300,000.00 CAD in general damages – the sum that he had claimed and the
sum for which Lee had been given notice.
Justice Corbett held that
Lee’s conduct had been despicable, was sufficiently blameworthy to merit
awards of punitive and aggravated damages. He assessed punitive damages
at $25,000.00 to address the betrayal of trust by Lee. He awarded
aggravated damages of 25,000.00 to represent the “incompensable” personal loss
suffered by Abramovitz by having a closely held personal dream snatched from
him by a person he trusted. Frankly, it is difficult to understand the
apparently artificial distinction the judge made between the two heads of
damage. Nevertheless, the fact scenario is remarkable, and if true,
worthy of sanction.
Regards,
Blair
