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

Court of Appeal Upholds Substantial Damage Award Against Durham Police

In a decision released this week - Nissen v. Durham Regional Police Services Board, 2017 ONCA 10  - the Court of Appeal for Ontario upheld a trial decision which awarded a woman substantial damages for "emotional and psychological injury"  against the Durham Police Force for what she pleaded was “breach of informer privilege”.   

 

The plaintiff lived with her husband and two children on a quiet street in Whitby, Ontario.  On occasion, the plaintiff asked the teenaged son of one of her neighbours to babysit her children.  One day when the plaintiff asked another neighbour to babysit, her usual babysitter became angry.  The plaintiff was disturbed by what she regarded as his irrational and frightening behaviour.  The plaintiff subsequently learned from another neighbour that the babysitter had broken into the neighbour’s home, stolen guns, and with his brother had taken the guns to school and threatened students.   

 

The plaintiff decided that she would inform the police but did not wish to have her name associated with any investigation.  She was put in touch with Officer Liepsig of the Durham Regional Police.  Officer Liepsig offered to come to her home.  The plaintiff told him that she felt unsafe as the people that they were going to talk about lived across the street.  The plaintiff emphasized to Officer Liepsig that she did not wish to be identified because she was frightened of the babysitter and his brother.  Officer Liepsig promised her that her identity would not be disclosed.  The officer told her that if she came to the police station to discuss the matter he would keep her identity secret and she would remain totally anonymous. 

 

The plaintiff was given further assurances of confidentiality when she attended at the police station.  Officer Liepsig took notes but did not disclose to the plaintiff that the interview was being recorded on videotape. 

 

After the interview, the babysitter and his brother were arrested.  Officer Liepsig was reassigned and the task of preparing the Crown brief was assigned to other officers who were unaware that the plaintiff had been given any assurance of confidentiality.  The plaintiff later learned that her identity and her videotaped interview had been included in the Crown’s disclosure to the accused’s lawyers.  This disclosure provoked an angry reaction from the parents of the accused.  The plaintiff testified that the father of the accused drove his truck at her causing her to leap from the sidewalk and onto the grass behind a tree to avoid being hit by the truck. 

 

The plaintiff immediately called Officer Liepsig to report the incident and to express her concern that a mistake had been made and that her identity had been disclosed but he did not return her call.  The plaintiff’s husband spoke to the father of the accused who expressed his anger and intention to “pay the plaintiff back” for having gone to the police.  Other members of the police followed up, but not in a meaningful way.

 

The plaintiff and her husband testified that following the truck incident, both parents of the accused subjected them to on-going harassment.  The harassment became unbearable and ultimately the plaintiff and her husband decided to sell their home and move.   

 

The plaintiff complained of feeling hopeless and depressed following these events and has been diagnosed with post-traumatic stress disorder.  A psychiatrist gave evidence of the significant change in her behaviour and enjoyment of life that she had provided to her family.

 

At trial, the judge found that the police owed a common law duty not to disclose the identity of an informer and that even if the duty was not absolute, reasonable care had not been taken in the circumstances.   He awarded the plaintiff general damages for emotional and psychological injury as a result of the post-traumatic stress disorder.  He found that the failure of the police to act after they learned of the neighbours’ harassing behaviour was an aggravating factor.  The trial judge fixed the general damages at $345,000.  He also awarded Family Law Act damages for loss of guidance, care and companionship in the amount of $65,000 to the plaintiff’s husband and $25,000 to each child.

 

The Police Board appealed to the Ontario Court of Appeal. 

 

The Court of Appeal held that the trial judge’s finding that Officer Liepsig had promised confidentiality to the plaintiff was supported by the evidence, attracted deference and there was no basis to overturn it.

 

As to the issue of damages, the Court of Appeal held that, in its view, the case could and should be decided as a civil claim for damages for breach of confidence.  The fundamental point was that, on the findings of the trial judge, Officer Liepsig had made a promise of confidentiality and anonymity to the plaintiff in exchange for the information that she provided.  The trial judge found that the promise was breached and that the plaintiff had suffered damages as a result.  Those findings brought the case squarely within the long-recognized cause of action for breach of confidence and the plaintiff was accordingly entitled to recover on that basis.   

 

The police had argued that the case did not meet the requirements for breach of a duty of informer privilege in criminal law.  However, the Court of Appeal held that there was no reason to qualify the right to sue for breach of confidence by adding additional elements that would take the case into a criminal law regime.  To do so would put an ordinary citizen interacting with the police in an impossible situation.  The plaintiff had no way of determining whether the police could obtain the information she was offering from another source.  Nor did she have any way of gauging what the police considered to be the risk of harm she faced should her identify be disclosed.  She explained her fear of harm to Officer Liepsig and that fear ultimately proved to be well-founded.  She was entitled to rely on Officer Liepsig’s promise of confidentiality in exchange for her cooperation in giving him the information.

 

The court disagreed with the submissions made by the police that the trial judge had made reference to awards made in cases that were not analogous; that the plaintiff suffered from a pre-existing condition, i.e. that she had already experienced anxiety and distress before her identity was revealed; and that the trial judge should not have awarded aggravated damages.   The court held that it was open to the trial judge to find that the failure of the police to take any meaningful steps to protect the plaintiff and her family from the harm they were suffering as a result of the wrongful disclosure of her identity did aggravate the damage she suffered.  The police had promised the plaintiff confidentiality in order to gain her cooperation.  Their duty to her did not cease once they had broken that promise.   The promise they made as police officers included a duty to protect the plaintiff from the consequences of wrongful disclosure.

Regards,

Blair  

Wal-Mart Ordered to Compensate Former Employee for Workplace Bullying

To state the obvious, there is no precedent until it is done for first time.  So said the Ontario Court of Appeal in confirming a record damage award against an individual employee in the case of Boucher v. Wal-Mart Canada Corp. 2014 ONCA 419.

 Meredith Boucher began working for Wal-Mart in 1999.  She was a good employee.  In 2008, Boucher was promoted to the position of assistant manager at a Wal-Mart store in Windsor, Ontario.   She reported to the store manager, Jason Pinnock. 

 

For health reasons, Wal-Mart is required to maintain temperature logs which record temperatures of food and dairy products stored in its coolers.  Boucher was responsible for ensuring the logs were maintained.

 

In May of 2009, Boucher went on a month long Wal-Mart course and another assistant manager assumed responsibility for maintaining the temperature logs.  However, that employee did not complete the logs.  When Boucher returned to the Windsor store at the end of her course, Pinnock told her that the incomplete log would negatively affect the store’s pending evaluation and in turn would negatively affect his own evaluation as store manager.  Pinnock told Boucher to falsify the log.  Boucher refused to do so.  Because she refused, Pinnock subjected Boucher to a disciplinary “coaching” session.   Subsequently, Pinnock became abusive towards Boucher.  He belittled, humiliated and demeaned her, continuously, often in front of co-workers. 

 

Wal-Mart holds itself out as a business that regards its employees highly.  It has a number of workplace policies intended to reflect its concern for its employees.  One such policy is Wal-Mart's open-door communication policy.  Wal-Mart encourages its employees to report on a confidential basis concerns about how its stores are operated or how its employees are treated. 

 

Wal-Mart also has a prevention of violence in the workplace policy.  It undertakes to take all employee reports of incidents seriously and to protect an employee making a complaint from acts of retaliation.  In addition, Wal-Mart has a harassment and discrimination policy.  The purpose of this policy is to protect employees from unwelcome conduct that offends a person’s feelings.  Wal-Mart, through its policies, requires all of its employees to treat each other with dignity and respect. 

 

Accordingly, Boucher complained about Pinnock’s conduct and his treatment of her to three senior management representatives of Wal-Mart.  The management team said they would investigate her concerns.  They also told her to report any new incidents of misconduct.  But they also cautioned Boucher that if her concerns were found to be unwarranted, she would be held accountable for raising them. 

 

Wal-Mart’s management team investigated Boucher’s complaints.  They told her that they found the complaints to be “unsubstantiated”.  They also told her that she would be held accountable for making these unsubstantiated complaints but they had not yet decided what discipline she would face.  Pinnock on the other hand was not disciplined for his conduct or even cautioned about it.  He was spoken to only about his use of inappropriate language.   

 

Here is a sampling of Pinnock’s conduct.  He repeatedly told Boucher in front of other employees how stupid she was and that her career was blowing up; he pounded his chest and said “let me know when you can’t fucking handle it anymore”; he berated Boucher in front of other managers and customers saying “this is a fucking shit show, look at this fucking mess”; he constantly called Boucher an idiot and stupid.

 

After the management investigation at the end of Boucher’ shift, Pinnock again berated her because 10 extra skids of product had not been unloaded.  Pinnock grabbed Boucher by the elbow in front of co-workers.  He told her to prove to him that she could count to 10.  He prompted her by initiating the count, then told her to count out loud along with him.  Boucher was so humiliated she left the store.  Boucher sent Wal-Mart an email advising that she did not intend to return to work until her complaints about Pinnock were resolved to her satisfaction.  They never were and Boucher never returned to work.  Boucher commenced an action for constructive dismissal and damages.

 

The Court of Appeal commented on Pinnock’s motives.  Pinnock had told other managers at the store that he would not stop harassing Boucher, “not until she fucking quits”.  He was overjoyed when she did so.

 

At trial the jury awarded damages against Pinnock of $100,000 for intentional infliction of mental suffering and punitive damages of $150,000. 

 

Against Wal-Mart, the jury awarded damages of $200,000 for aggravated damages and $1 million in punitive damages. 

 

Pinnock and Wal-Mart appealed to the Ontario Court of Appeal.  The Court of Appeal reduced the damages against both Pinnock and Walmart.  It found that the jury had reasonably found Pinnock liable for intentional infliction of mental suffering.  His conduct was flagrant  and outrageous.  He intended to produce the harm that eventually occurred and Boucher had suffered a visible and provable illness.  The damages award of $100,000 was high but not unreasonable.  However, the award of punitive damages against Pinnock should be reduced to $10,000.  An award of $150,000 was not required for the purposes of retribution, denunciation and deterrence. 

 

As for Wal-mart, the Court of Appeal held that the award of aggravated damages against Wal-Mart in the amount of $200,000 was not excessive and did not result in double recovery by Boucher.  While Pinnock’s misconduct brought about Boucher’s mental anguish, the unfair way Wal-Mart dealt with that misconduct brought about her constructive dismissal.  Wall-mart’s own conduct justified a separate and substantial award for aggravated damages.

 

The Court of Appeal found that the trial judge had erred in instructing the jury that the tort committed by Pinnock could be an actionable wrong by Wal-Mart that supported a finding of punitive damages against it.  However, the error was harmless as Wal-Mart had committed an actionable wrong that supported an award of punitive damages by breaching its duty of good faith and fair dealing towards Boucher.  In light of the compensatory damages awarded, an award of punitive damages in the amount of $1 million was not rationally required to punish Wal-Mart or to give effect to denunciation or deterrence.  The Court of Appeal reduced the punitive damages against Wal-Mart to $100,000. 

Regards,

Blair