Tuesday, January 22, 2019

Ontario Judge Awards Substantial Damages to Musician for "Despicable" Deceit By Former Girlfriend


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

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