Mastrogiuseppe v. Bank of Nova Scotia, 2007 ONCA 726

CITATION: Mastrogiuseppe v. Bank of Nova Scotia, 2007 ONCA 726

DATE: 2007-10-22

DOCKET: C44733

COURT OF APPEAL FOR ONTARIO

MOLDAVER, LANG and ARMSTRONG JJ.A.

BETWEEN:

AMY MASTROGIUSEPPE

Plaintiff (Respondent)

and

THE BANK OF NOVA SCOTIA

Defendant (Appellant)

Counsel:

Martin Sclisizzi and Morgana Kellythorne for the appellant

Evert Van Woudenberg for the respondent

Heard and endorsed: October 16, 2007

On appeal from the judgment of Justice Romain Pitt of the Superior Court of Justice dated December 15, 2005.

APPEAL BOOK ENDORSEMENT

[1] In our view, this appeal, for the most part, is fact-driven. In that regard, we note that the trial judge gave thorough and comprehensive reasons for judgment. His findings of fact are supported by the evidence and he applied the proper legal principles throughout.

[2] Having regard to the trial judge’s findings, he was on solid ground in concluding that the appellant had failed to make out a case for termination for cause. The appellant takes no issue with an award of twenty-two months in lieu of notice. In any event, we think the award was proper in the circumstances.

[3] With respect to the Wallace damages, while we agree that this was an appropriate case for such damages, we think, with respect, that the trial judge, in arriving at the eight-month figure, took into account several matters that he ought not to have.

[4] In particular, we see no bad faith on the part of the Bank in pursuing the allegations of dishonesty, albeit that in the end, those allegations were not proved. (See Cassady v. Wyeth-Ayerst Canada Inc. (1998), 163 D.L.R. (4th) 1 at p. 20, (B.C.C.A.) and Clendenning v. Lowndes Lambert (B.C.) Ltd. (2000), 2000 BCCA 644, 193 D.L.R. (4th) 610 per Saunders J.A. at p. 633 (B.C.C.A.)). As well, along those lines, the Bank cannot be faulted for not giving the respondent a letter of reference. We are also of the view that the Bank did not act improperly, in the circumstances of this case, in couriering the respondent’s belongings to her.

[5] In our view, had the trial judge considered only the relevant factors, he would have awarded Wallace damages of four months.

[6] With respect to the award of punitive damages, the trial judge was entitled to conclude that the Bank’s conduct was oppressive and high-handed in blacklisting the respondent’s relatives and in unlawfully and improperly deducting funds from the respondent’s account with another bank in respect of her outstanding loans from the appellant. We agree with the trial judge that $25,000 is the minimum amount capable of deterring and denouncing the appellant’s conduct. Accordingly, we would not interfere with that award.

[7] In the result, the appeal is allowed in part and the order below is varied accordingly.

[8] Costs to the respondent fixed at $20,000 inclusive of G.S.T. and disbursements.