Court File and Parties

Court File No.: CV-14-572 Date: April 18, 2017

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

WAYNE DALEY, Plaintiff Counsel: M. Peter Sammon for the Plaintiff

- and -

JANE LESLIE DALEY (also known as “LESLIE JANE DALEY” or “JANE LESLIE GOWNAN” or “LESLIE JANE GOWAN”) and TD CANADA TRUST, Defendants Counsel: Joel Reinhardt for the Defendant TD Canada Trust

Heard: April 12, 2017

Endorsement

James, J.

1This is a motion for summary judgment by the plaintiff due to the defendant’s allegedly improper use of a power of attorney granted to the defendant in or about 1994 while the parties were married.

2They separated in or about 1999. At a trial in 2015, following the plaintiff’s request for a divorce, Warkentin, J specifically considered whether the plaintiff had granted permission to the defendant to use the power of attorney to withdraw funds from his bank account.

3Warkentin, J found that the defendant had used the power of attorney for personal gain without the knowledge or permission of the plaintiff. These findings were not appealed and conclusively settle the issue under the doctrine of issue estoppel.

4In addition, the defendant did not file an affidavit in response to the averments made by the plaintiff in his affidavit in support of his motion for summary judgment and instead relied on a previous handwritten affidavit sworn on September 30, 2015.

5In my view the defendant has not raised a genuine issue requiring a trial. I accept the allegations made by the plaintiff in paragraphs 8, 9 and 10 of his affidavit sworn December 2, 2016.

6The plaintiff is entitled to judgment in the sum of $22,422.73 together with prejudgment interest of 5.75% which is the rate charged by the Toronto Dominion bank on the line of credit that was drawn down by the defendant’s use of the power of attorney. Post judgment interest shall accrue at the rate allowed by the Courts of Justice Act.

7The plaintiff also claims $50,000 for punitive damages. Punitive damages are restricted to situations involving intentional wrongful acts that are so malicious and outrageous they are deserving of punishment on their own. (Keays v. Honda Canada Inc., 2008 SCC 39, [2008] 2 S.C.R. 362 at para. 62).

8Also, where punitive damages are found to be appropriate, they ought to be proportionate to the compensatory damages awarded and the financial resources of the defendant. As for the first point, the amount involved here falls within the monetary jurisdiction of Small Claims Court where punitive damages are not available. In fact, counsel for the plaintiff candidly admitted that the reason the action was commenced in this court was to hold open the prospect of recovering punitive damages, which seems to me to be a questionable reason for ignoring the fact that actions for recovery of less than $25,000 ought to be brought in Small Claims Court.

9As to the second point, in this case the defendant is retired, lives on a fixed income and recently made an assignment in bankruptcy. Her financial resources are quite modest.

10In all the circumstances I find that an award of punitive damages is not appropriate in this case.

11This brings me to the consideration of whether the plaintiff’s costs should be limited to the amount usually allowed in Small Claims Court which is capped at 15% of the amount claimed or about $3,500 in this case.

12Instead the plaintiff has presented a bill of costs of $15,000 on a full indemnity basis and $9,000 on a partial indemnity basis.

13Full indemnity costs are usually reserved for situations where a litigant has engaged in improper conduct or where the result at trial exceeds a party’s offer to settle. I am left to balance the modest amount of costs available to the plaintiff if he had sued in Small Claims Court with the defendant’s abuse of the power of attorney and breach of trust which would support a finding that the plaintiff is entitled to enhanced costs recovery on a full indemnity basis.

14In the result I find that an award of costs of $10000 inclusive of disbursements and HST, payable to the plaintiff by the defendant would be appropriate.

15Judgment to issue accordingly.

16The necessity of obtaining the approval of the defendant as to the form and content of the judgment is dispersed with.