ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-494663
DATE: 20150928
BETWEEN:
LIONEL NATHANIEL COHEN
Plaintiff
– and –
ORLY ELINOR ASSA-ELIAHU, MALCA ASSA-ELIAHU, also known as MALKA ASSA-ELIAHU, NISAN ASSA-ELIAHU, also known as NISSAN ASSA-ELIAHU and TORONTO DOMINION BANK
Defendants
Larry J. Levine, Q.C., for the Plaintiff
George A. Bougadis, and Boris Goryayev, for the Defendant Orly Elinor Assa-Eliahu
James Zibarras and David Meirovici for the Defendants Malca Assa-Eliahu and Nisan Assa-Eliahu
HEARD: December 15, 16, 17, 18, 19, 22
and 23, 2014
STEWART, J.
[1] On the morning of June 23, 2013, Orly Elinor Assa-Eliahu enjoyed a loving relationship with her young son and her parents, Malca and Nisan Assa-Eliahu. She also had a close and comfortable attachment to her boyfriend, Lionel Nathaniel Cohen. On the evening of that same summer day, she had the misfortune of purchasing the $2 million winning ticket for an Ontario “Scratch and Win” lottery.
[2] Orly is now being sued by her (former) boyfriend and her parents, who claim entitlement to either a share in or all of the $2 million winnings. That part of the proceeds of the lottery win not already spent by her has been frozen by Court order pending determination of these claims. The Defendant Toronto Dominion Bank is named for the sole purpose of abiding by this order and no other claim is advanced against it. Accordingly, TD did not appear at or take part in the trial.
[3] There are also counterclaims and cross-claims advanced in the action that relate to amounts advanced to certain parties out of the lottery winnings and whether repayment should be ordered.
[4] The evidence adduced at trial consumed several days in December 2014. This evidence was followed by the exchange of lengthy written submissions throughout January 2015.
[5] Following completion of the evidence called by Lionel, counsel for Malca and Nisan moved to dismiss Lionel’s claims against them of intentional interference with contractual relations and related claims. On consent, these claims were dismissed.
[6] It now falls to this Court to determine who among the warring parties should enjoy legal entitlement to this substantial windfall.
FACTS
[7] This case turns largely on its facts. The applicable law is not in any serious dispute. As a general observation, I consider that much of the evidence called by the parties at the trial was ultimately irrelevant to the essential findings of fact necessary to determine legal entitlement to the lottery winnings.
[8] In particular, evidence tendered by Orly purportedly designed to help this Court determine whether Lionel was a deserving future faithful mate or an untrustworthy philanderer was of little assistance to the Court in arriving at a legal conclusion as to whether there was any enforceable agreement between Orly and Lionel to share the lottery winnings. The details of the timing of Lionel’s marriage proposal, purchase of an engagement ring or various dealings by Orly and Lionel with a real estate agent to rent or purchase a house for them to live in may be of importance to the parties but are not, in this case, determinative of the existence or otherwise of any agreement between Lionel and Orly to share the lottery winnings.
[9] Correspondingly, evidence tendered by Lionel to demonstrate that after the lottery win Orly became irrationally suspicious, greedy and “changed by the money” does not pertain to whether they ever had an agreement to share the lottery winnings.
[10] Finally, the question of whether the fact that Orly purchased the winning ticket using Malca’s company’s debit card entitles Orly’s parents to claim the entire lottery proceeds will be governed by facts and legal principles which, to some great extent, are not in dispute.
[11] Orly is a young divorced woman. At the time these events occurred, Orly was in her late twenties and living with her son at her parents’ home. She was enrolled in a hairdressing course, and receiving student loans/grants and social benefits.
[12] Lionel is 33 years old and also divorced. Lionel had moved from France to Toronto in 2000 to live with family. He works as a self-employed plumber.
[13] In 2012, Orly met Lionel on an Internet dating site. They quickly became involved romantically.
[14] Although Orly attempted in her evidence to downplay the seriousness of her relationship with Lionel in the spring of 2013, I accept that the two were eventually considering the possibility of a future together.
[15] As their relationship developed, Orly and Lionel talked about possibly moving in together and getting married. The evidence of both parties establishes that before the lottery win Orly was far more interested in marriage than Lionel.
[16] The viability of this possible plan to marry was affected by Cohen’s status as a “Cohen” within his Jewish faith, a status which would be compromised by his marrying a divorced woman.
[17] In order to discuss this possible stumbling block to their relationship, Orly and Lionel went to see Yves Elancry, a man described as an advisor and spiritual guide. Elancry’s website touts him as a “World Renown (sic) Psychic”.
[18] Elancry does not have any special professional training as a psychologist or counsellor or religious leader. He performs Turkish coffee readings to predict the future and provides these sessions to customers for $100.00 each. Although Elancry prefers to see himself as a spiritual advisor, the trial evidence suggests that he, in common parlance, is a fortune teller.
[19] Orly had consulted Elancry on her own in the past. She and Lionel also saw Elancry a few times during the late spring of 2013. Elancry, not surprisingly, did not keep notes of any of his sessions with them.
[20] Elancry recalled in his evidence at trial that he had told Orly and Lionel that the only way for Lionel to avoid the religious status consequences of marriage would be for them to live common law rather than marry. Failing that, Lionel would have to give up his status as a Cohen.
[21] Elancry also says he told the couple that they were right for each other and were destined to have a happy future together. As evidenced by this lawsuit, this is one prophecy that did not come true.
[22] Orly swore that Elancry actually had told her in private sessions with him to break up with Lionel. In my view, this contradiction, like so many other instances of retrospective contradiction and conflict in the evidence at this trial, has no real bearing on the relevant legal issues for determination.
[23] Elancry further testified that in his sessions with Lionel and Orly he had predicted several windfalls, including $2,000.00 and $4,000.00 in casino winnings and $2,000,000.00 “coming” from a source other than a casino. He said he had always seen Orly as being a very lucky woman.
[24] Elancry told Orly and Lionel that the $2,000,000.00 would only come to them if it was agreed that he (Elancry) would be given 10% of the proceeds. If that were not done, the money would not be “blessed”.
[25] The details of the nature and amount of this “prediction” or “vision” are disputed by Orly who maintains that the prophecy was described by Elancry in much vaguer terms than he swore to at trial. In any event, to the extent that it is common ground that some sort of prophecy was made by Elancry involving Orly and Lionel and a windfall event of some considerable magnitude, it has little impact on whether any actual agreement existed between Orly and Lionel with respect to the proceeds of the June 23, 2013 winning lottery ticket. The prophecy is not capable of enforcement. It is merely a peculiar and colourful prelude to the events that ensued.
[26] On June 23, 2013, Orly and Lionel were at Orly’s parents’ house. Orly had made arrangements to meet later that day with her bookkeeper/accountant, David Amitay, to sign her 2012 income tax return.
[27] Amitay’s office was in a plaza near Orly’s residence where this signing was to be done. Lionel agreed to drive her there. Before departing, Orly was asked by Nisan and Malca to pick up some cigarettes while she was at the plaza and was given Malca’s company’s debit card and PIN for that purpose.
[28] When they arrived at the shopping plaza, Orly met with Amitay in the parking lot and signed her income tax return as arranged. She gave Amitay $50.00 in cash for his services. Orly says the money given to Amitay was taken from her own purse, while Lionel claims he had given her the cash to give to Amitay. I accept Orly’s evidence that Lionel was dressed in his bathing suit when they attended at the convenience store plaza, did not have a wallet with him and could not have given her any money either to pay Amitay or to purchase a lottery ticket. In my view, although the origin of the payment to Amitay has no bearing on the legal issues arising out of the purchase of the lottery ticket, I find that Lionel did not provide Orly with any money on that day.
[29] Before Orly entered the Kitchen Food Fair convenience store, Lionel asked her to check his 6/49 ticket to see if it won. While in the convenience store, Orly scanned Lionel’s unsigned 6/49 lottery ticket which was determined to be a loser. When she returned to the van she gave the losing ticket back to Lionel.
[30] Orly admitted in her evidence that she and Lionel had purchased some lottery tickets together in the past. In those cases, they had agreed to split any winnings and had “double-signed” tickets that won small amounts of money or free tickets. She stated these tickets purchased together were always either Lotto 6/49 or Lotto Max tickets. Each had also purchased lottery tickets individually, like Lionel’s 6/49 ticket she checked in the convenience store for him.
[31] Orly waited in the van with Lionel for a while, as the convenience store was busy. She then returned to the convenience store and bought cigarettes for her father, Lionel and herself. On a whim, she also purchased a “Scratch and Win” ticket. She paid for the cigarettes and the lottery ticket using Malca’s company’s debit card for a total amount of $51.00.
[32] Orly left the store and went back to the van in which Lionel was seated. There is a conflict on the evidence as to whether Lionel was on his cell phone talking to his brother when Orly returned so that she scratched the ticket on her own or whether they immediately scratched the ticket together. In any event, when it was scratched it was then discovered that the ticket appeared to be a winner.
[33] Amitay was in the plaza area having a cigarette when this occurred. He testified that he saw them leave the van and that Lionel told him excitedly that “we won” when running from the van to the store.
[34] Orly went back into the store where the ticket had been purchased, followed by Lionel. The clerk proceeded to check the ticket and it was confirmed to be a “Big Winner”. A telephone call was placed to the Ontario Lottery and Gaming authorities and certain further administrative steps were taken to verify the win. Orly was identified to the clerk and on the call to OLG as the only holder of the winning ticket.
[35] During Orly’s conversation with OLG in the convenience store, Lionel called Malca on his cell phone and told her “she’s got the winner”.
[36] Orly signed the back of the ticket as required for presentation to OLG to receive the winnings. Although the ticket permitted signing by more than one winner, Lionel did not sign it, nor did he request to sign it.
[37] At the time of the win, Orly and Lionel were boy-friend and girl-friend, possibly looking to move in together if they could find a suitable place. They were not engaged. They were not living in a common law relationship. They were not married, but had talked about the idea.
[38] Orly and Lionel returned to Orly’s parents’ home where they had a small celebration. That same night, Lionel and Orly discussed the future of their relationship. Lionel demonstrated a much keener interest in marriage to Orly at this time than he had shown before the lottery win. I accept that at this point a more permanent relationship was envisaged by both.
[39] On the next day, Orly attended at the OLG offices with Nisan and Lionel to pick up her winnings. All dealings at the OLG office were on the basis that Orly was the only winner and all requisite paperwork was completed to reflect the fact that Orly was the sole winner.
[40] A photograph was taken of Orly and Nisan at OLG to commemorate the event. Lionel does not appear in the photograph.
[41] The entire proceeds were deposited into a single bank account at TD held by Orly in her name only.
[42] A bank draft for $100,000.00 to Elancry was prepared in Orly’s name using funds from her account and given to Elancry on June 5, 2013.
[43] Although Orly has portrayed this payment as having been made under pressure from Elancry and Lionel, I note that no complaint was made by her at the time and no steps were taken by her to get the money back from Elancry, who is not a party to this action.
[44] Another $100,000.00 of the lottery winnings was given to two rabbis, one associated with Orly’s synagogue and the other with Lionel’s. These donations, together with the $100,000.00 given to Elancry, was described by Orly as required “tithing”, being charitable giving performed in accordance with the principles of her religion. Orly and Lionel each were given tax receipts of $50,000.00 for these donations.
[45] On July 4, 2013, Orly took Lionel, her sister and some friends on a trip to Las Vegas which Orly paid for in its entirety. Although there is again some conflict on this issue and its precise timing, I conclude that while in Las Vegas Lionel formally proposed marriage to Orly and she accepted.
[46] While in Las Vegas, however, the relationship between Orly and Lionel began to fray. Orly began to suspect that Lionel had been unfaithful to her in the past and became worried that he was flirting with other women on the trip.
[47] Before the win and before the trip to Las Vegas, Orly and Lionel had met with Dawn McGregor, a real estate agent, to locate a home to rent or buy but they had not entered into any actual deal.
[48] Following the lottery win, and with the assistance of McGregor, on July 1, 2013 Orly and Lionel had executed an Agreement of Purchase and Sale to acquire a house. That transaction was not pursued. Orly bought another property on her own, using a different real estate agent for that purpose.
[49] The assertion by Orly in her evidence that it was McGregor who advised her to get a pre-nuptial agreement is denied by McGregor. However, it is not disputed that Orly told Lionel in early July, 2013, after having returned from Las Vegas, that she would like him to sign a pre-nuptial agreement. He refused to do so.
[50] Orly and Lionel ended their relationship in mid-July, 2013.
[51] After his breakup with Orly, Lionel had contact with a man named Dov Levy who is said by Orly to be a shady character and to have a connection to Lionel’s counsel in these proceedings. Lionel then launched this action claiming entitlement to a share of the lottery winnings.
[52] It is alleged on Orly’s behalf that Levy persuaded Lionel to fabricate facts to justify an entitlement to a share in Orly’s lottery winnings, with assistance from Elancry.
[53] Levy was not called by any party to testify at this trial. He was not named as a defendant. I find that it is unnecessary to make any negative findings against Levy or against Lionel with respect to these assertions involving Levy in light of the preponderance of the other available evidence.
[54] Orly paid for Lionel’s trip to Las Vegas as well as certain other amounts advanced to Lionel out of the winnings and seeks repayment from him.
[55] Orly advanced $30,000.00 from the winnings to Lionel which he used to pay off credit cards, debt and other loans. Orly also gave him money to buy her engagement ring. After the breakup, Lionel returned the ring and kept the $2,000.00 partial refund received from the jeweller.
[56] Orly also says she loaned Lionel $2,600.00 to pay first and last month’s rent on his apartment, for which she claims repayment.
[57] Orly also claims the loss of a deposit on vacation property in Florida she had contracted to purchase, planning to use the lottery winnings for that purpose. She lost her deposit of $10,000.00 (U.S.) when the freezing order sought by Lionel in this action was granted and she had no funds to close the transaction.
[58] Orly also advances other consequential claims for damages resulting from the aborted Florida transaction and for alleged damage to her credit rating. Further, she claims damages to her “reputation in the Sephardic Jewish Community in the GTA”.
[59] Orly provided $350,000.00 to her parents out of the winnings to help them pay off her mortgage. She also financed a three-week all-expenses-paid trip to Israel for them.
[60] Orly seeks recovery of these funds advanced to Malca and Nisan. However, she acknowledges in her evidence and submissions that she has no documentary or other verification that these funds were provided as a loan to them.
[61] Malca and Nisan claim that the entire winnings belong to them because the winning ticket was purchased with the debit card given by Malca to Orly. They also seek to trace all money given by Orly to Lionel and Elancry out of the winnings and demand its return to them.
Issues:
A. Should Lionel share in the lottery winnings?
B. Should Malka and/or Nisan succeed in their cross-claim that the lottery winnings belong to her/them?
C. Should Orly’s claims against the other parties succeed?
Issue A: Should Lionel share in the lottery winnings?
[62] Lionel can only succeed in his claim if it is found that Orly had agreed to share the lottery winnings with him. He contends that there were actually two such agreements made between Orly and him.
[63] The first agreement is said to have been made just prior to the June 23, 2013 purchase of the lottery ticket. Lionel claims that this agreement was made in his car and was an express agreement by them to share all lottery ticket winnings equally.
[64] The second agreement is claimed to have been an implicit one, made in the context of their relationship and their alleged agreement with Elancry to share equally in lottery ticket proceeds following the receipt of the prophecy from Elancry in mid-June, 2013.
[65] I conclude that the evidence has failed to establish on a balance of probabilities there was any agreement between Lionel and Orly to share the lottery winnings on either basis advanced.
[66] I arrive at this determination for the following reasons:
(a) There is nothing in writing to evidence the existence of any agreement between them to share the lottery winnings if a ticket purchased by either of them won;
(b) Lionel did not contribute financially to the purchase of the winning ticket. The winning ticket was purchased by Orly using Malca’s company’s debit card;
(c) I consider that Lionel’s credibility with respect to his role in the purchase of the ticket is seriously lacking. It was initially alleged in his Statement of Claim as well as in an affidavit sworn by him that he gave Orly the money to purchase the lottery ticket. His evidence on this fundamental fact changed at trial. He has endeavoured throughout his various assertions in interlocutory proceedings in this action and in his evidence at trial to exaggerate his devotion to Orly his expectations that they would share all winnings and his role in the purchase of the winning ticket;
(d) The conduct of Orly and Lionel when the ticket was discovered to be a winner is completely consistent with a conclusion that there was no agreement to share the winnings and that Orly was the only winner. Orly spoke to the convenience store clerk, participated in the phone call to OLG, identified herself as the ticket holder, signed the back of the ticket and went to the OLG offices to pick up her winnings. Lionel does not even appear in the photograph taken to commemorate this occasion;
(e) The proceeds of the win was deposited in Orly’s bank account. It was Orly who ultimately chose to disburse funds to Elancry, to the rabbis, to the airline and hotel for the Las Vegas trip and to Malca and Nisan, and who wrote the cheques or obtained the bank drafts for these expenses from her bank account;
(f) There would have been no need to raise the demand for a pre-nuptial agreement had Orly not considered that she had a significant asset to protect. Even when rejecting Orly’s demand, Lionel never suggested to her that he had any legal entitlement to a share of the winnings;
(g) During their conversations and e-mail exchanges surrounding their breakup, no mention was made by Lionel or Orly of the existence of any proprietary interest in the proceeds of the win or any claim to a shareby Lionel. That claim was raised for the first time many months later, after Lionel had consulted with Dov Levy and counsel.
[67] Orly denies having ever told anyone that “we” won the lottery, although she does admit that she was present when Lionel told Rabbi Hecht that “we” won when the $50,000.00 draft was being given to Rabbi Hecht by Lionel. She testified that she did not contradict him in front of Rabbi Hecht as it would have been awkward to do so.
[68] Dawn McGregor stated in her evidence that it had been represented to her by Orly and Lionel that “we” won. Elancry swore that he was told that “we” won when Orly and Lionel met with him. As mentioned above, Amitay testified that Lionel told him that “we” won.
[69] I am skeptical of the reliability of this evidence offered by Amitay, Elancry and McGregor as to these statements. However, even if this evidence of what was said is viewed generously and accepted as fact, in my view it does not operate to establish the existence of any enforceable contractual agreement between Orly and Lionel to share the lottery winnings.
[70] Rather, I view any reference to “we” as being a reflection of Orly’s generous nature and the rather loose terminology employed to describe the nature of the windfall. When the words were allegedly said, Orly was part of a romantic couple which she hoped would become a permanent loving relationship. I view the use of the word “we” in these circumstances as being a rather “Royal we”, along the lines of “our” car or “our” apartment by a boyfriend/girlfriend, with no necessary connotation of legal ownership or legal rights.
[71] In my opinion, any use by Lionel of the word “we” was imprecise wishful thinking.
[72] Accordingly, the evidence falls short of establishing any agreement between Orly and Lionel to share these winnings and his action in that regard must fail.
[73] Similarly, there is nothing in the facts to sustain a finding that the lottery proceeds are subject to a constructive trust in favour of Lionel, or that Orly would be unjustly enriched by keeping the entire winnings for herself. Lionel did not advance any funds to Orly for purchase of the winning ticket and there is no other feature of their relationship that would suggest it would be inequitable for him to be deprived of a share of the proceeds of the winning ticket and for Orly to keep all of her winnings. That theory advanced on Lionel’s behalf likewise fails.
Issue B: Should Malca and/or Nisan succeed in their cross-claim that the lottery winnings belong to her/them?
[74] It is agreed that the winning lottery ticket was purchased with Malca’s company’s debit card, given to Orly when she went to buy cigarettes for Nisan.
[75] There had been no advance discussion between Orly and Malca or Nisan that the card was to be used to buy a lottery ticket. In particular, neither Malca nor Nisan asked Orly to purchase a lottery ticket for them using the debit card. By the same token, there was no discussion or directive that it must not be so used.
[76] On previous occasions, Orly’s parents had given her money to use for personal expenses at her discretion. Indeed, she and her son lived under their roof. When she purchased the lottery ticket Orly believed that she had their authority to do so.
[77] Immediately after her win, Orly did not specifically tell her mother that the ticket had been purchased in this manner. Even if she did initially lead Malca to believe that she had paid for it herself, Malca knew at least as of August, 2012 when the debit card statement arrived that the card had been used for this purpose.
[78] Although Malca now says that she was “furious” when she made this discovery, no support for any confrontation or argument was tendered other than that bold statement. No step was taken by her or Nisan to assert any legal claim against Orly’s winnings until well into July of 2014. They happily accepted the $350,000.00 Orly extended to them. They cheerfully went on a lengthy and presumably expensive trip to Israel, paid for by Orly. Nisan was pleased to give Orly investment advice on what to do with her money.
[79] Orly proceeded to openly spend the lottery winnings without consulting with her parents who raised no objection or question.
[80] I therefore find the evidence lacking to justify a conclusion that Orly bought the lottery ticket against any instructions from her parents.
[81] Indeed, I find on all of the evidence that Orly had implicit permission to use the debit card to conduct this comparatively modest purchase on her own behalf.
[82] In my view, the sequence of events demonstrates that Malca and Nisan had no issue with what had occurred. Their claim was concocted, in my opinion, largely for the purpose of assisting in protecting the lottery winnings from any of Lionel’s claims.
[83] Similarly, the circumstances of the use of the debit card by Orly to buy the lottery ticket do not amount to a theft or conversion that would entitle her parents to claim ownership of the lottery proceeds. The legal authorities cited by counsel for Orly’s parents have no application to the facts of this particular case.
[84] Counsel for Lionel raised the technical objection to the claim advanced by Malca and Nisan that it was the debit card of Malca’s now-defunct company used to buy the ticket and that company is not party to this action. In view of my conclusions above, I consider it unnecessary to adjudicate on that point.
[85] For these reasons, the claims advanced by Malca and Nisan must fail.
Issue C: Should Orly’s claims against the other parties succeed?
[86] I consider the circumstances surrounding the funds advanced to Lionel in the context of their relationship demonstrate them to have been gifts, not loans. They were given in a spirit of generosity to celebrate her good fortune and to someone with whom, at the time, she had hopes of marrying.
[87] The loss of the $10,000.00 (U.S.) deposit was caused as a result of the granting of the freezing order, and Lionel is now obligated to pay this amount to Orly. The other consequential damages insofar as the Florida property is concerned are speculative in nature and unproven.
[88] Orly concedes that her parents viewed her advances from her lottery winnings as gifts. She has no documents or other evidence to confirm that any of these were loans. Further, she took no steps to demand repayment from them at any time.
[89] In my view, the evidence establishes that all moneys advanced to Malca and Nisan were gifts and were never intended to be repaid. Accordingly, Orly’s cross-claim against them is dismissed.
Conclusion
[90] For these reasons, I conclude that the lottery winnings belong to Orly.
[91] All freezing orders and certificates of pending litigation against Orly’s property and all other orders restraining Orly from dealing with her lottery winnings are hereby dissolved and lifted.
[92] Orly shall have judgment against Lionel for the Canadian equivalent of $10,000.00 (U.S.) as of the date when her deposit was forfeited.
[93] All other claims, cross-claims and counterclaims are dismissed.
Costs
[94] I urge the parties to seek agreement on costs. If they cannot agree on that subject, written submissions on that subject may be delivered by Orly within 30 days of the date of release of this decision, and by Lionel and Malca/Nisan within 20 days thereafter.
STEWART J.
Released: September 28, 2015
COURT FILE NO.: CV-13-494663
DATE: 20150928
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LIONEL NATHANIEL COHEN
Plaintiff
And –
ORLY ELINOR ASSA-ELIAHU, MALCA ASSA- ELIAHU, also known as MALKA ASSA-ELIAHU, NISAN ASSA-ELIAHU, also known as NISSAN ASSA ELIAHU and TORONTO DOMINION BANK
Defendants
REASONS FOR JUDGMENT
STEWART J.
Released: September 28, 2015