Court of Appeal for Ontario

Date: 2017-03-02 Docket: C62274

Judges: LaForme, Pepall and Pardu JJ.A.

Between

Annette Nicholson, by her Litigation Guardian Deborah McBride Plaintiff (Respondent)

and

Roger Gemnay Defendant (Appellant)

Counsel

For the Appellant: Melissa MacKewn and Clarke Tedesco

For the Respondent: Dennis Crawford and Jared M. Gillespie

Heard: February 24, 2017

On appeal from: The judgment of Justice James W. Sloan of the Superior Court of Justice, dated June 13, 2016.

Endorsement

[1] The appellant appeals from an award of US$192,000 plus pre-judgment interest, punitive damages of $25,000, and costs of $85,000 in favour of the respondent in this case of civil fraud. At the conclusion of oral argument, we dismissed the appeal with reasons to follow. These are those reasons.

[2] The appellant advanced two arguments.

[3] First, he submits that the trial judge's reasons were insufficient.

[4] The outcome of the case turned on credibility. The trial judge noted that the appellant's evidence on virtually every fact testified to by the respondent was diametrically opposed to hers.

[5] The respondent was a recent widow with a grade eight education and two young children. The appellant had been a friend of her late husband. The respondent gave the appellant US$100,000 and then another US$100,000 shortly afterwards. She testified that it was her understanding that this money was not to be used for trading and that the respondent promised he would not do anything to jeopardize the funds. The respondent then proceeded to invest the funds in call options using his personal accounts. Shortly afterwards, the funds were lost.

[6] The trial judge preferred the evidence of the respondent to that of the appellant and concluded that the appellant took advantage of the respondent essentially to get at her money so that he could trade it in his online options account. He also found that the respondent was responsible for the appellant's losses. Of the US$200,000, the appellant repaid US$8,000 to the respondent, leaving a total amount due of US$192,000.

[7] Reasons may be less than ideal but still meet the requirements for sufficiency of reasons. Read as a whole and in the context of the record, the trial judge's reasons set out what was decided and why the decision was made. See R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 16 and 17. Moreover, the reasons permit effective appellate review.

[8] The appellant submits that the trial judge erred by failing to find that the respondent was aware that the US$200,000 transferred to the appellant was being traded.

[9] We disagree. The record supported the judgment granted based on the respondent's pleading of fraud. The record did not support a finding of consent or acquiescence. In any event, the appellant pled that the respondent effected the transactions or directed the appellant in that regard. Read as a whole, it is clear that the trial judge concluded that defence was not made out.

[10] Lastly, the trial judge found that the appellant preyed on the "distraught, very trusting, naïve and vulnerable widow." He concluded that the appellant's conduct was highly reprehensible and departed to a marked degree from the ordinary standards of decent behaviour. We see no reason to interfere with the trial judge's award of $25,000 in punitive damages.

[11] The appeal is dismissed with costs payable by the appellant in the agreed amount of $20,000 inclusive of disbursements and applicable taxes.

H.S. LaForme J.A.

S.E. Pepall J.A.

G. Pardu J.A.