CITATION: Nelson v. Louis, 2015 ONSC 1029
COURT FILE NO.: CV-12-00449371-0000
DATE: 20150312
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JUSTIN NELSON
Plaintiff
– and –
CHRISTOPHER ST. LOUIS
Defendant
Justin Nelson in person
Christopher St. Louis in person
HEARD: February 6, 2015
Dow, j
reasons
[1] The plaintiff seeks repayment of $51,000 given to the defendant, in trust and repayable on demand in or about April 6, 2010 when he was in receipt of life insurance proceeds following the death of his spouse, Juanita Kelly, on November 11, 2009. The defendant’s position is that he was only given $40,000 to hold as part of a scheme to keep the money away from the life insurer, who apparently inadvertently paid it to the plaintiff and that $20,000 of it was repaid to the plaintiff in the form of $53,000 Eastern Caribbean currency when they were both in Grenada in or about January 10, 2012.
[2] Both parties were self-represented at trial. Following my explanation of the court process and providing a copy of the standard handout entitled “Instructions for Self-Represented Litigants” with a brief adjournment to let the parties read same (after confirming neither party had any difficulty reading English), the defendant requested an adjournment to obtain additional documentation from Grenada. The plaintiff opposed this request and I ruled in favour of the plaintiff to have the trial proceed.
Background - Facts
[3] The plaintiff produced a letter with attachments from his wife’s employer, North York General Hospital, dated January 18, 2010 (Exhibit 1) indicating he was the beneficiary of an employee benefit life insurance policy in the amount of $158,000.00. The document also lists the deceased’s two daughters, Rachel Kelly (born January 8, 1988) and Alicia Savoury (born May 21, 1994) under the portion “dependant information”. The plaintiff acknowledged receipt of the $158,000 life insurance proceeds referred to and produced his April, 2010 bank account transactions to show the issuance of two bank drafts, #52495477 for $40,000 payable to himself dated April 5, 2010 and draft #52495477 in the amount of $40,000 dated April 6, 2010 payable to the defendant. Those bank drafts were marked as Exhibits 3 and 4. The plaintiff testified the draft was payable to himself for the purpose of paying some debts and included the $11,000 he alleges he gave to the defendant along with the draft of $40,000.
[4] The plaintiff testified that in order to convert the $40,000 draft payable to himself into cash, he attended at a Bank of Montreal branch where he also held an account and admitted he was required to give the bank three days’ notice for withdrawing such a large sum of cash. The three-day notice undermines his evidence that he proceeded directly to the defendant’s home to give him the $51,000.00 on the day he obtained the draft payable to the defendant. I do accept and the defendant admitted receiving the $40,000.
[5] In fact, later in the evidence, the parties agree a safe was purchased and kept at the defendant’s home with the defendant making small cash withdrawals to be placed in the safe. The defendant had the key to the safe and maintained this was done with the plaintiff’s agreement so as to prevent the insurer from recovering the funds. The defendant also testified he was given the $40,000 by the plaintiff as a result of the insurer having already succeeded in freezing another bank account held by the plaintiff.
[6] In January, 2012, both the parties admit they were in Grenada. The defendant testified and I accept this was because the plaintiff had asked for return of the funds which the defendant had spent so the defendant agreed to repay a portion of the funds by cashing a certificate of deposit he held at the Grenada Co-operative Bank Ltd. in St. George’s. This is supported by a banking record, produced by the plaintiff (marked as Exhibit 5) showing a Certificate of Deposit being purchased January 2, 2008 in the amount of $33,000 Eastern Caribbean dollars that grew to $38,143.33 until it was redeemed on January 5, 2012. That same amount was deposited by the defendant in a bank account at the same bank. The defendant produced an account book from Grenada Co-operative Bank Ltd. and a copy of the first four pages was marked as Exhibit 9. This showed a deposit on January 5, 2012 of $38,143.33 and a withdrawal of $55,000 (Eastern Caribbean currency) on January 10, 2012. The defendant maintains this was to repay the plaintiff and that he gave the plaintiff $53,000 Eastern Caribbean currency (or the equivalent of $20,000 Canadian).
[7] The plaintiff disputes the defendant’s version of events, noting the defendant made a consumer proposal to his creditors through an administrator dated August 9, 2012 (marked as Exhibit 6) which the plaintiff alleges excludes assets in Grenada such as bank accounts and property. The defendant’s explanation for this was that he reviewed these assets with the administrator and given their small value, it was decided not to include same. I would note as part of Exhibit 5 produced by the plaintiff, a statement of the defendant’s bank account (importantly with the same account number) that starts January 31, 2012 with the identical balance of $6,170.55 that was left in the account after the withdrawal of $55,000 on January 10, 2012. By the time of the last entry, September 30, 2012, the balance was $3,479.32 (using the same conversation rate), which reduces $55,000.00 Eastern Caribbean to $20,000 Canadian, this would be about $1,312.95.
[8] Regarding the defendant having property in Grenada, the plaintiff submitted three pages of “tax period balances” attached to a letter from Ontario solicitor Michael Dibua, dated November 16, 2012 to the defendant’s consumer proposal administrator and refers to properties allegedly owned by the defendant in Grenada. However, I would note that while the document references property tax in the years 2004-2012, only one page has any property tax payable and the amount for 2012 is $85.57. This would appear to support the defendant’s version of events.
Analysis
[9] I am satisfied and the defendant admits he owes the plaintiff $20,000. I am not satisfied the plaintiff has demonstrated, as he must, on a balance of probabilities, that he advanced the $11,000 in cash. I am also satisfied in all of the circumstances, that the parties were in Grenada in January, 2012 and that the defendant repaid to the plaintiff the equivalent of $20,000 of the $40,000 that he owed.
[10] As a result, the plaintiff is entitled to judgment in the amount of $20,000. The plaintiff claimed pre-judgment interest and the applicable rate would appear to be 1.3 percent per annum. I calculate the daily amount of interest on $20,000 to be $0.71 per day. Section 128 of the Courts of Justice Act provides for pre-judgment interest to be calculated “from the date the cause of action arose to the date of the order”. In the absence of a clear date, I would order pre-judgment interest be calculated from the date of issuance of the statement of claim or March 21, 2012 to the date of release of these reasons.
Costs
[11] Given the plaintiff was successful, in part, he is entitled to his legal costs. In this regard, I was advised neither party retained or incurred any expense for legal advice. However, the plaintiff did incur the filing fee expense for issuing the statement of claim ($188.00), serving same by registered by mail ($13.50) and filing the trial record ($337.00). The total is $538.58 and the plaintiff is entitled to recover this additional amount from the defendant.
Mr. Justice G. Dow
Released: March 12, 2015
CITATION: Nelson v. Louis, 2015 ONSC 1029
COURT FILE NO.: CV-12-00449371-0000
DATE: 20150312
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JUSTIN NELSON
Plaintiff
– and –
CHRISTOPHER ST. LOUIS
Defendant
REASONS FOR JUDGMENT
Mr. Justice G. Dow
Released: March 12, 2015