CITATION: Spiro v. Koc, 2015 ONSC 609
COURT FILE NO.: 3073/11
DATE: 2015-01-27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PAUL SPIRO
Plaintiff
– and –
ELIZABETH KOC, BONNIE STRAPP, VALENTIA SKRIBANE, MARIJA CAVDAMOVA and TANIA CAM
Defendants
AND BETWEEN
TANIA CAM
Plaintiff by Counterclaim
– and –
PAUL SPIRO
Defendant to the Counterclaim
Saul I. Glober, for the Plaintiff
Robert L. Jenkins, for Defendants Koc, Strapp, Skribane and Cavdamova
Marek Z. Tufman, for Defendant Cam
Marek Z. Tufam, for the Plaintiff by Counterclaim
Saul I. Glober, for the Defendant to the Counterclaim.
HEARD: November 17, 18 & 19, 2014
REASONS FOR JUDGMENT
Murray J.
Background Facts
[1] From about November, 2008 to July, 2010 the plaintiff Paul Spiro (hereinafter “Spiro “) and four of the defendants, Elizabeth Koc (hereinafter “Koc”), Bonnie Strapp (hereinafter “Strapp”), Valentia Skribane (hereinafter “Skribane”) and Marija Cavdamova (hereinafter “Cavdamova”) were all employed at the HSBC Bank branch in Milton, Ontario. They played Lotto Max and contributed five dollars per person to a common pot. One of their group would buy Lotto Max tickets with the money contributed by the group. It was the understanding that should there be a winning ticket each member of the group would divide winnings equally amongst the group of contributors. After purchase, the tickets were usually placed in the bank vault for safe keeping. Purchased tickets were then checked after the draw to determine if any previously purchased tickets were winners. The group of employees who participated in purchasing lottery tickets was not always consistent. While there was a core group of Koc, Strapp, Skribane, Cavdamova and Spiro, others participated from time to time. The group had no written rules. They kept no accurate records.
[2] After July 16, 2010, the date upon which the plaintiff Spiro left the employ of the Bank in Milton, he no longer participated in the group purchase of lottery tickets.
[3] Tania Cam (hereinafter “Cam”) joined the Milton branch of the HSBC Bank as a new employee on or about July 19, 2010 after Spiro had left the branch and thereafter she joined the group and participated in the group's purchase of lottery tickets.
[4] Lotto Max tickets were purchased on June 25, 2010 when Spiro worked at the branch and before Cam commenced her employment there.
[5] On August 25th, Cam took previously purchased tickets to the Lotto Max ticket vendor at the local gas bar/convenience store to check the tickets for winners. Cam was informed by the ticket vendor that one of the previously purchased tickets resulted in a free play ticket. That free play ticket purchased on June 25, 2010 won $1,000,000 in the Lotto Max draw of August 13, 2010.
[6] Elizabeth Koc, Bonnie Strapp, Valentia Skribane, Marija Cavdamova and Tania Cam split the proceeds; each received $200,000.
[7] When Spiro found out about the win, he thought that the winning free ticket was likely a prize won by a ticket purchased when he was employed at the Bank in Milton, that he was a participant in the group of five employees which purchased the ticket and that he was entitled to a share of the proceeds. Spiro made a complaint to the OLG and an inquiry was conducted. There was also an investigation by the OPP. After the investigation, the OLG records established conclusively that the winning free ticket was a prize resulting from the purchase of a lottery ticket on June 25, 2010 during Spiro's employment at the Bank and prior to the commencement of Cam’s employment. Spiro, being a member of the group of regular contributors to the purchase of lottery tickets, then claimed that he was entitled to $200,000 being a 1/5 share of the winnings. There being no agreement, this litigation was commenced.
The position of the plaintiff, Paul Spiro
[8] The plaintiff Paul Spiro alleges that in June and July, 2010, he participated in the purchase of Lotto Max tickets until he left the employ of the Bank on July 16, 2010. He asserts that he and Koc, Strapp, Skribane and Cavdamova participated in Lotto Max draws, that each of them paid five dollars towards the purchase of tickets. The plaintiff alleges that he paid his contribution to the weekly draw for the purchase of tickets on June 25, 2010 by giving his contribution to Strapp. Spiro alleges that the defendant Cam has wrongfully claimed and received his share of the $1,000,000. He claims the amount of $200,000 based on breach of contract.
The Position of Koc, Strapp, Skribane and Cavdamova (hereinafter “the four defendants”)
[9] The four defendants take the position that Spiro did not participate in the purchase of lottery tickets on June 25, 2010 and furthermore that Cam was not entitled to share in the lottery winnings. They say Cam owes the 4 of them $200,000.
The cross-claim of Koc, Strapp, Skribane and Cavdamova
[10] The four defendants have cross-claimed against Cam for $200,000.
The position of Cam
[11] Cam alleges that after she commenced working for the Bank in Milton on July 19, 2010 she was invited by Koc, Strapp, Skribane and Cavdamova to join their group for the purpose of purchasing lottery tickets. She characterizes this group as a partnership within the meaning of the Partnerships Act, RSO 1990, c. P 5. Based on the premise that the group of participants in purchasing lottery tickets was a partnership, she asserts that the ticket purchased on June 25, 2010 was a partnership asset owned by the partnership. Her argument is that because she became a partner – albeit after the purchase of the winning ticket – she is entitled to share in the distribution of partnership assets and was properly allocated $200,000 and that Koc, Strapp, Skribane and Cavdamova are also each entitled to $200,000. In the alternative, she asserts that the $200,000 claim by Spiro is owed to him only by the defendants Koc, Strapp, Skribane and Cavdamova.
Cam counterclaim against the plaintiff Spiro and cross-claim against the defendants Koc, Strapp, Skribane, Cavdamova
[12] In her counterclaim against Spiro, Cam seeks the relief set out in the statement of defence i.e. confirmation of her entitlement to $200,000. In the alternative to the relief claimed in the statement of defence, Cam claims: a declaration that she and Koc, Strapp, Skribane and Cavdamova were equal partners with each other to the extent of 4/5 of the value of the ticket and, in the further alternative, a declaration that the $200,000 claim by the plaintiff Spiro is owed to him only by the four defendants Koc, Strapp, Skribane and Cavdamova and, in the further alternative, a declaration that the plaintiff Spiro and all five defendants, Koc, Strapp, Skribane and Cavdamova, and Cam are equal partners in the winning ticket.
[13] In her cross-claim against Koc, Strapp, Skribane and Cavdamova,, Cam claims, inter alia, contribution and relief over with respect to the claim of the plaintiff Spiro, a declaration that the $200,000 claim by Spiro is owed to him only by the four defendants Koc, Strapp, Skribane and Cavdamova, or, in the further alternative, a declaration that Spiro and the defendants Koc, Strapp, Skribane and Cavdamova, are equal partners to the extent of 4/5 of the value of the winnings and, in the further alternative that all parties are equal partners in the winning ticket.
The Evidence
The Evidence of the plaintiff Paul Spiro
[14] Spiro’s evidence at trial was that there were eight employees in the Milton branch and that he was the senior accounts manager until he left on July 16, 2010. His evidence was that Cam was not employed at the bank prior to his leaving. He confirmed that he was involved in purchasing lottery tickets with the four defendants. His evidence was that the branch manager, Steve Shauman, also participated but that he left the branch in May of 2010. When the jackpot got large, the group usually purchased tickets. Typically, Strapp or Cavdamova collected five dollars from each member of the group and purchased tickets. Usually one of them would come around and collect before a Friday draw. Spiro testified that he recalled Friday, June 25, 2010. This was the day that one of the employees at the branch, Mr. Hanna, resigned. On June 25th Mr. Hanna was working as were Koc, Strapp, Skribane and Kavdamova. Spiro testified that on that day, Mr. Hanna was late for work and that he spoke to him about calling in if he was going to be late. As a result Mr. Hanna got very upset and quit. At approximately 11:00 a.m., Spiro recalled speaking once more with Mr. Hanna who advised him that he was leaving the bank for another opportunity and not because of the issue earlier in the morning. Then Cavdamova came over and spoke to him, told him that it was Strapp’s birthday and about the lottery. Immediately afterward, he went to Strapp's desk, wished her a happy birthday and paid his five dollars at which time he left for lunch as regular time, sometime between 12:00 noon and 1:00 p.m. and returned to the bank early in the afternoon after taking approximately one hour for lunch. He recalled staying at the branch until approximately 5:00 p.m. He was certain that he always paid his five dollars towards the purchase of lottery tickets when the group purchased them and certain that he paid on that day by giving his five dollars to Strapp. On cross-examination, Spiro stated that there were a number of people gathered around Strapp’s desk to wish her a happy birthday at the time he paid his five dollars and couldn't remember whether he gave the money to Strapp or to Cavdamova but he was certain he contributed.
[15] Mr.Frank Sirianni is employed by OLG as an investigator. He explained how Lotto Max works and provided the results of his investigation. A purchaser of a Lotto Max ticket can win either cash or a free ticket. Mr. Sirianni confirmed that the winning free play ticket originated from a Lotto Max ticket that was purchased for the June 25, 2010 draw. The ticket purchased on that day won a free ticket for the draw on August 13, 2010. The ticket that was generated on June 25, 2010 was validated on August 13, 2010 and the free play ticket was generated at 9:43 a.m. on August 13th according to the computer records of OLG. The free play ticket generated on August 13, 2010 resulted in the $1,000,000 win referred to by Lotto Max as a MaxMillion prize.
The Evidence of Cam
[16] Ms. Cam testified that prior to being transferred to Milton branch of the HSBC on or about July 19, 2010, she worked for the HSBC in Oakville. After she joined the branch in Milton, she started to play in the Lotto pool with the other four defendants. On August 13th, she testified that she collected money from the other four defendants and left the bank to go to the local ticket vendor at about 2:30 p.m. afternoon. Her task was to check previously purchased tickets to see any of them were winners and to purchase new lottery tickets for the August 13, 2010 draw. Her evidence was that she attended the local gas station between 2:30 p.m. and 3 p.m. on August 13, 2010. When she attended at the gas bar/convenience store, one of the previously purchased tickets that she had brought with her to check generated a free play ticket. She testified that the evidence of Mr. Sirianni that the free play ticket was generated at 9:43 a.m. on that date is not correct. It was Cam’s evidence that she did not return to the Milton branch that day. On August 25th, she went to the gas bar/convenience store to check the tickets and it was then that she was advised that the free play ticket had won $1,000,000. The $1,000,000 was paid to her and the other four defendants by the OLG by cheque dated August 27, 2010 made out to the five of them and that each received $200,000. She testified that she believed that she was in an arrangement which was a partnership.
[17] In cross-examination, Ms. Cam admitted that on August 13, 2010 she was aware that the free play ticket resulted from the purchase of a ticket on June 25th, prior to her employment at the bank and that she did not tell any of the other named defendants. In cross-examination she agreed that she did not disclose to the OLG that the free ticket was a prize won on a ticket purchased on June 25, 2010 prior to her commencing employment at the Milton branch of the HSBC. She was not able to explain why the computer records of the OLG showing the free play ticket being generated at 9:43 a.m. on August 13th were different than her recollection. She insisted that she went to the gas bar/convenience station between 2:30 p.m. and 3:00 p.m. on August 13th.
The Evidence of the Defendants Koc, Strapp, Skribane, Cavdamova
A. The Evidence of Bonnie Strapp
[18] Strapp testified that she recalled June 25, 2010 because of the argument between Mr. Spiro and Mr. Hanna who had reported to work late and was reprimanded by Mr. Spiro. She testified that there was a little birthday celebration in her honour which took place at her desk at which time the members of the group put in five dollars each. She testified that Mr. Spiro was not present at the birthday celebration. Cavdamova went to purchase tickets on that day.
[19] She testified that it was not until April 4, 2011 after the OPP began its investigation that she became aware that the winning free play ticket was purchased on June 25th. At the time of the payment of the $1,000,000, Strapp said that she thought the free play ticket resulted from tickets purchased when Cam was part of the group. According to Strapp, Cam eventually told the other four defendants that she knew all along that the free play ticket resulted from tickets purchased on June 25th before she was employed in the Milton branch of the bank.
[20] In cross-examination by Mr. Glober, counsel for Mr. Spiro, Ms. Strapp agreed that the four defendants had all met on a number of occasions before the OPP investigation and that they decided that it was important that they had the “same story” and it was also agreed that everyone should be united behind the assertion that Ms. Cam had participated in the ticket purchases. She was interviewed by the OPP on April 4, 2011. There was no dispute that the notes of the interview were accurate. She agreed that she told the OPP that Mr. Spiro generally participated in the group purchase of lottery tickets when he was working in the branch and that he was an active member of the group who contributed to the purchase of lottery tickets. One exception to this regular participation by Spiro that she reported to the OPP was related to July 16, 2010 which was Spiro's last day of employment at the Milton branch. July 16th was a day on which the group purchased tickets but did not ask for contribution from Spiro because he left early that day. She also told the OPP investigator that Cam had bought the winning ticket, that is, the ticket which generated the winning free play ticket. When asked by the OPP officer how she would feel if she was told that the free play ticket was one on a June 25th draw, she said that she thought maybe Spiro would have a case. Strapp told the police that Spiro was working in the branch on June 25th and told the OPP investigators that she did not know if he took part or not or if he was in the branch that afternoon. According to Strapp, she did not find out until she met with the OPP on April 4, 2011 that the winning free play ticket resulted from a lottery ticket purchased on June 25, 2010.
[21] Ms. Strapp in cross-examination testified that she, Koc, Skribane, Cam and Cavdamova met at least three times prior to the OPP investigation. As a group, during these meetings which took place prior to meeting with the OPP they decided that they had to get their story straight and have the same version of the facts. Notwithstanding doubts that Cam had participated in the purchase, she told the OPP that Cam was involved in the purchase of the winning ticket. To use her words in her examination for discovery: “we were trying to make sure we were all on the same page”.
[22] In cross-examination Ms. Strapp agreed that on May 4, 2011, she had a telephone conversation with Mr. Sirianni the OLG investigator, and that she told him the following: that Cam had not participated in the purchase of the June 25th lottery tickets; that she was aware of the claim by Spiro; that she was not convinced that Spiro was entitled to part of the prize but if he is entitled, then she has no issue. She also told Mr. Sirianni that when the group first claimed the prize, Cam had asked the others to say that she purchased the ticket.
[23] At her examination for discovery, her evidence was that her birthday celebration around her desk occurred on June 25th at approximately 3:00 p.m., that Spiro was not present and it was after that when Cavdamova went to purchase the tickets. At trial, in cross-examination, when confronted with the OLG evidence that the ticket had been purchased at 1:09 p.m., she conceded that her evidence at discovery was incorrect.
B. The Evidence of Valentia Skribane
[24] Her testimony in chief in most respects mirrored that of Strapp. She testified that at the celebration of Strapp’s birthday, which took place approximately 1 o'clock in the afternoon, she was “pretty sure” Paul was not there, that he had already left for lunch and did not return. She confirmed that the four defendants met prior to meeting with the OPP to make sure that they didn't have different stories. She confirmed that there was inconsistency in the recollection of the individuals involved and that they all agreed that it was important to tell the same story. In her examination for discovery, Skribane also testified that the birthday party was at approximately 3:00 p.m. in the afternoon. It was her evidence at all four defendants took the position that the birthday celebration took place at approximately 3:00 p.m. in the afternoon until they learned about the OLG computer records which proved that the ticket was bought at approximately 1:09 p.m. on June 25.
[25] In cross-examination she admitted that she was not sure if Spiro had gone to wish Strapp happy birthday on June 25.
C. The Evidence of Elizabeth Koc.
[26] Her evidence in chief was similar to that of Strapp and Skribane. She confirmed that they met three times prior to being interviewed by the OPP. At those meetings they discussed who contributed to the purchase of tickets on June 25th. As with the others, in her examination for discovery she testified that the birthday party for Strapp took place around 3:00 p.m. on that day. Her evidence at trial was that the birthday party took place at approximately 1:00 p.m. She testified that she could not recall if Spiro went to see Strapp at her desk at the time of the birthday celebration before he left the office on that day. When the notes of the OPP interview were read out to her in cross-examination, she agreed that she told the OPP that Paul may have played on June 25th if he was in the branch because he was a regular player and when they asked him he always played. In cross-examination she confirmed that she met with Mr. Hanna in Yorkdale after her examination for discovery had taken place and that Cavdamova had arranged the meeting. According to Koc, the purpose of the meeting was to confirm with Mr. Hanna his recollection that Paul had left early. She testified that when she met with Mr. Hanna, she did not discuss the case or his recollection of what happened on June 25, 2010.
D. The Evidence of Maria Cavdamova
[27] Her evidence was that Spiro left the branch on June 25th about noon and that after that the celebration of Bonnie's birthday took place around one o'clock and that Paul did not contribute. In her examination for discovery, like other defendants, she indicated that the celebration of Strapp’s birthday and the collection of the money took place around three o'clock in the afternoon. When asked in cross-examination why her evidence was different at discovery than at trial, she testified that no one really remembered what happened on June 25th and that prior to knowing the actual time of purchase based on OLG records, they just guessed. Her evidence was that the four defendants pieced it together after the OPP investigation. In cross-examination she conceded that she did not know if Spiro did or did not pay and she did not know if Spiro went to wish Strapp happy birthday before he left the branch on that day.
Findings
[28] I accept the evidence of Spiro that he contributed to the purchase of the winning lottery ticket on June 25, 2010. His evidence was not shaken in cross-examination. Furthermore, the testimony of these four defendants did not rebut Spiro’s evidence that he did participate in the lottery pool on June 25, 2010. The evidence of the four defendants tends to confirm his evidence. They all confirmed that Spiro was a regular player and a regular payer. Consistent with this evidence, Strapp told the OPP during its investigation that the only exception that she could recall when Spiro did not participate in the group purchase of lottery tickets was on July 16, 2010 his last day working at the branch in Milton.
[29] The evidence of the four defendants is unreliable. Rather than risking inconsistent testimony or the disclosure of poor recollection, the four defendants met together on at least three occasions prior to the OPP investigation to ensure that they agreed to tell the same story. As Skribane testified, their recollections were inconsistent and they met in order to ensure consistency by putting together a story which they would all advance together. It was abundantly clear from their testimony that they decided to stick with a version of the facts which was consistent with Spiro not being in the branch at 3:00 p.m. which they asserted was the time of the celebration of Strapp’s birthday and when the group members each contributed to the purchase of lottery tickets. This was the story that they provided under oath on discovery. Their version of events at discovery was false and demonstrably so when the OLG records established the time of purchase of the lottery ticket. As a result, each of them changed their version of events at trial to conform to the indisputable evidence that the lottery ticket was purchased at 1:09 p.m. on June 25, 2010.
[30] While at trial the four defendants each testified in chief that Spiro did not participate, they were much less certain of that fact prior to trial or in cross-examination. Strapp told the OPP during its investigation that Spiro was working in the branch on June 25th and that she did not know if he participated or if he was in the branch that afternoon. By the time she got to trial and gave evidence in chief, that uncertainty had disappeared. Furthermore, in contrast to her evidence in chief, in her May 4, 2011 conversation with Mr. Sirianni, the OLG investigator, she told him that while she was not convinced that Spiro was entitled to part of the prize, but that if he was so entitled, she had no issue. Skribane admitted in cross-examination that she was not sure if Spiro had gone to wish Strapp happy birthday on June 25th. Koc in cross-examination admitted that she told the OPP that Paul may have played on June 25th if he was in the branch because when they asked him he always played. Furthermore, in cross-examination she confirmed that she met with Mr. Hanna in Yorkdale after her examination for discovery, that Cavdamova had arranged the meeting to confirm with Mr. Hanna his recollection of what happened on June 25th. She said that when she met with Mr. Hanna, she did not discuss the lottery case at all. He was potentially a witness. He was a friend. He was in the branch on June 25th. The litigation was heating up. Koc’s testimony that she did not discuss the case with Mr. Hanna is not credible. Cavdamova in her cross-examination conceded that she did not know if Spiro did or did not participate on June 25th and furthermore that she did not know if Spiro went to wish Strapp happy birthday before he left the branch on that day.
[31] In her testimony, Cam admitted that she knew at the time she became aware of the $1,000,000 win on August 25th, 2010 that the winning free ticket was a prize won by one of the tickets purchased by the group on June 25, 2010 at a time which predated her starting as an employee at the branch of the Bank. In sum, Cam knew on August 25th, 2010 that the winning ticket was a prize for a lottery ticket purchased by a group in which she was not a participant. Cam failed to notify the other members of the group of that fact. Koc, Strapp, Skribane and Cavdamova and Cam divided the proceeds with each one of them receiving $200,000. None of them notified Spiro of the winning ticket.
[32] I find on a balance of probabilities that the evidence establishes the following:
Paul Spiro did participate in the purchase of lottery tickets on June 25, 2010 by contributing five dollars together with Elizabeth Koc, Bonnie Strapp, Valentia Skribane, Marija Cavdamova who also contributed.
Cam did not participate in the purchase of lottery tickets on June 25, 2010.
Analysis
[33] Except for one issue, this case is resolved by the above mentioned findings of fact. I have found that Spiro did make his contribution to the winning ticket purchased on June 25, 2010. It follows that he is entitled to participate in the $1,000,000 lottery win. Subject to the claim of Cam, he is entitled to $200,000.
[34] The remaining issue is that related to Cam. She acknowledges she was not working at the bank in Milton Ontario on June 25, 2010 and therefore it is agreed that she did not contribute any money to the purchase of lottery tickets on that day. It was not until after she joined the bank, in July 2010 that Cam participated in the group’s purchase of lottery tickets. As noted above, Cam argues that she was not unjustly enriched by the receipt of $200,000 because she was a partner in a partnership within the meaning of the Partnerships Act, RSO 1990, c. P 5. As I understand it, her argument is this: when she joined the partnership in July, 2010 after she became a member of the group, previously purchased lottery tickets were partnership assets; when one of the tickets owned by the partnership won a lottery prize, as a partner she was entitled to participate equally with other partners in the winnings. In sum, Cam argues that she was entitled to participate pro rata in the distribution of partnership assets, i.e., the $1,000,000. I disagree with this argument. For reasons set out below, it is my conclusion that the group who participated in the purchase of lottery tickets were not a partnership within the meaning of the Partnerships Act.
[35] Partnership is defined s. 2 of the Partnerships Act as follows:
Partnership is the relation that subsists between persons carrying on a business in common with a view to profit, but the relation between the members of a company or association that is incorporated by or under the authority of any special or general Act in force in Ontario or elsewhere, or registered as a corporation under any such Act, is not a partnership within the meaning of this Act. R.S.O. 1990, c. P.5, s. 2.
[36] The Partnership Act also stipulates that “business” includes every trade, occupation and profession. The relationship between members of the group who participated in the purchase of lottery tickets is not a partnership. The individuals were not carrying on a business within the meaning of the Partnership Act. They were not engaged in a trade, occupation or profession or any analogous enterprise. Neither did they have a view to profit. In common parlance, the profit of a business is the difference between the income of the business and the expenses incurred to earn that income. They were co-owners of tickets purchased in the lottery and each ticket had an opportunity to win a prize. Lottery winnings cannot be characterized accurately as profit from business enterprise. Lottery winnings are a windfall that do not result from any business or enterprise of the group. Section 3.2 of the Act makes it clear that a sharing of gross financial return amongst members of the group does not itself create a partnership. That section reads as follows:
The sharing of gross returns does not of itself create a partnership, whether the persons sharing such returns have or have not a joint or common right or interest in any property from which or from the use of which the returns are derived.
[37] There are numerous provisions of the Partnership Act which make it clear that the group participating in lottery ticket purchases in this case are not a partnership at law. For example, sections 6 and 10 (1) provide as follows:
S. 6 Every partner is an agent of the firm and of the other partners for the purpose of the business of the partnership, and the acts of every partner who does any act for carrying on in the usual way business of the kind carried on by the firm of which he or she is a member, bind the firm and the other partners unless the partner so acting has in fact no authority to act for the firm in the particular matter and the person with whom the partner is dealing either knows that the partner has no authority, or does not know or believe him or her to be a partner.
S. 10. (1) Except as provided in subsection (2), every partner in a firm is liable jointly with the other partners for all debts and obligations of the firm incurred while the person is a partner, and after the partner’s death the partner’s estate is also severally liable in a due course of administration for such debts and obligations so far as they remain unsatisfied, but subject to the prior payment of his or her separate debts.
[38] It is inconceivable that there was an agreement or understanding amongst members of the group that one member could commit sums of money without the knowledge and consent of others and bind the other partners. Similarly, it is inconceivable that the members of the group who bought lottery tickets intended that each member of the group be jointly liable for debts and obligations of the “group” resulting from the commitment of an individual to buy lottery tickets. In this case the arrangement was simple: lottery tickets were bought on behalf of the group after individuals contributed towards the purchase; tickets were purchased with the money contributed by each person participating in a particular lottery. Sharing in the ownership of tickets was simply a way to increase the odds of winning a windfall prize for members of the group who contributed to the purchase. There is no evidence to the contrary. This group of employees who pooled their money to buy lottery tickets was not a partnership.
[39] I conclude therefore that Cam is not entitled to keep the $200,000 which was paid to her. Cam was not a member of the group on June 25, 2010 and made no contribution to the purchase of the ticket which generated the winning free ticket. She was unjustly enriched by the payment and must return the money to those who had participated in the purchase of the winning ticket on June 25, 2010.
Conclusion
[40] All four defendants, Elizabeth Koc, Bonnie Strapp, Valentia Skribane, Marija Cavdamova initially agreed to the payment of $200,000 to Cam. At first, their agreement that Cam was entitled to $200,000 may have been because there was a mistaken assumption on their part that Cam had participated in the purchase of the lottery ticket which generated the winning $1 million free play ticket. Their assumption was wrong. However, if the initial error in agreeing to the payment by OLG to Koc, Strapp, Skribane, Cavdamova and Cam was innocent, the conduct of the four defendants Koc, Strapp, Skribane, and Cavdamova after they found out that the prize winning ticket was purchased on June 25th was not innocent. They conspired together to defeat the bona fide claim of Spiro to his 1/5 share of the proceeds.
[41] At the end of trial, I discussed with counsel for the parties what I thought would be a fair resolution of this case if I were to find in favor of the plaintiff Spiro and against the defendant Cam. As I indicated to counsel, if I were to find in favor of Spiro, it would be unfair to have Spiro alone bear the burden of recovering $200,000 from Cam. Counsel agreed. Therefore, in accordance with the agreement of counsel, I have decided as follows:
Each of Koc, Strapp, Skribane and Cavdamova shall pay to the plaintiff Spiro the sum of $40,000 and judgment shall be granted accordingly. The result of these payments will be that each of the five participants in the purchase of the winning lottery ticket on June 25, 2010 will have received $160,000.
Koc, Strapp, Skribane, Cavdamova and Spiro will then be owed $200,000 by Cam and judgment should be granted accordingly. Each of Koc, Strapp, Skribane, Cavdamova and Spiro will share pro rata the proceeds recovered from Cam. Whether Cam is in a position to repay the $200,000 is unknown. However, if there is a shortfall, it should not be borne by Spiro alone.
Conclusion
[42] The court makes the following orders:
The counterclaim of Tania Cam against Paul Spiro is dismissed.
The counterclaim of Tania Cam against, Elizabeth Koc, Bonnie Strapp, Valentia Skribane and Marijia Cavdavmoa is dismissed.
The plaintiff Paul Spiro shall have judgment in the amount of $40,000 against each of Elizabeth Koc, Bonnie Strapp, Valentia Skribane and Marija Cavdamova.
Paul Spiro, Elizabeth Koc, Bonnie Strapp, Valentia Skribane and Marija Cavdamova are entitled to a judgment in the amount of $200,000 against Tania Cam.
Cam shall be responsible for all costs of enforcement of the judgment against her. To the extent that there are costs related to the enforcement of the judgment against Cam which are not recoverable from Cam, they shall be borne equally by Paul Spiro, Elizabeth Koc, Bonnie Strapp, Valentia Skribane and Marija Cavdamova.
Costs
[43] Paul Spiro has been successful and is entitled to his costs. Who is responsible for payment of costs awarded to Spiro should be the subject of submissions. Given the result, it may also be that other parties claim costs as well. If there is no agreement between the parties with respect to quantum and scale of costs and the responsibility for payment of same, I will entertain brief written submissions in accordance with the following timetable:
The plaintiff will have his costs submissions served and filed by February 6, 2015;
The defendants Elizabeth Koc, Bonnie Strapp, Valentia Skribane and Marija Cavdamova shall have their cost submissions served and filed by no later than February 20, 2015;
The defendant Cam shall have her costs submissions served and filed by no later than March 6, 2015;
Reply submissions, if any, to be served and filed no later than March 13, 2015.
[44] In their submissions, the parties should indicate quantum and scale of costs being sought and the parties they submit are responsible for the payment of such costs.
Murray J.
Released: January 27, 2015
CITATION: Spiro v. Koc, 2015 ONSC 609
COURT FILE NO.: 3073/11
DATE: 2015-01-27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PAUL SPIRO
Plaintiff
– and –
ELIZABETH KOC, BONNIE STRAPP, VALENTIA SKRIBANE, MARIJA CAVDAMOVA and TANIA CAM
Defendants
AND BETWEEN
TANIA CAM
Plaintiff by Counterclaim
– and –
PAUL SPIRO
Defendant to the Counterclaim
REASONS FOR JUDGMENT
MURRAY J.
Released: January 27, 2015