CITATION: DiPierdomenico v. Esposito, 2017 ONSC 7391

COURT FILE NO.: CV-12-452606

DATE: 20171211

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANTHONY DIPIERDOMENICO and WILMA AMMENDOLIA

Plaintiffs

– and –

VENDY BAPTISTE and RINO ESPOSITO

Defendants

Harold Rosenberg, for the Plaintiffs

Rino Esposito, In Person

HEARD: May 15, 16, 17 & 18, 2017

REASONS FOR JUDGMENT

kristjanson j.

[1] On the morning of Wednesday, June 8, 2011, Anthony DiPierdomenico left the house at 8:30 a.m. for his regular golf game. His wife, Wilma Ammendolia, dropped the kids off at school, and went to play tennis. Sometime between 9 a.m. and 11 a.m., someone entered the house, proceeded to DiPierdomenico’s home office, used a key hidden in a briefcase to open a locked armoire, and removed jewelry, cash, and a Personal Video Recorder (PVR) which was part of a home security system and was hidden in a closet. Nothing else in the house was disturbed. The plaintiffs contacted the police the same day, and retained a private investigative agency two days later to attempt to locate the jewelry and find the perpetrators.

[2] The plaintiffs DiPierdomenico and Ammendolia subsequently commenced this claim against the defendant, Rino Esposito, DiPierdomenico’s cousin, and the housekeeper, Vendy Baptiste, claiming that they are responsible for the theft. Baptiste was noted in default and did not participate in the trial.

Issues

[3] The issues to be determined are:

(1) Did Esposito, either personally or in concert with others, enter the plaintiffs’ home without permission and remove jewelry, cash and a PVR security system on June 8, 2011?

(2) Is Esposito liable in conversion, trespass, or breach of confidence?

(3) If so, what are the damages?

THE FACTS

June 8, 2011: The Theft

[4] DiPierdomenico left home early that morning for his weekly Wednesday golf game. Ammendolia was out playing tennis; Ammendolia regularly worked out Monday, Wednesday, and Friday mornings, often with a personal trainer and sometimes by playing tennis. When Ammendolia left, she left the side door unlocked as Baptiste would be arriving for work. Ammendolia texted Baptiste at 9:17 a.m., indicating that she was playing tennis and would be back by 11:10 a.m., when the piano tuner was expected to attend, and Baptiste should not admit the piano tuner until Ammendolia returned.

[5] Baptiste did not have a key to the house, but she did have the garage access codes. An interior side door led into the garage. On days where Ammendolia would be out, she would leave the side door unlocked and the house unarmed, so Baptiste could enter using the garage touchpad security access codes. Baptiste did not have the alarm codes to the house.

[6] The day of the theft, Baptiste called Ammendolia at the tennis club at 9:42 and 9:43 a.m. to tell her that she could not get into the house as the interior door was locked. Ammendolia testified that when she left in the morning, she had, as was her normal practice, left the house unarmed, and the inside door unlocked. She told Baptiste to wait at her mother’s house and informed her that she would be home after 11 a.m.

[7] Ammendolia arrived home about 11 a.m. and noticed that the internet was not working. DiPierdomenico arrived home at about 12:30, and went to check the computer in his home office. He discovered that the PVR was missing from the closet, a key which he kept hidden in a briefcase had been inserted into a locked armoire, and money and jewelry was missing.

[8] The theft resulted in the loss of $5000 US, $2000 Canadian, €5600 and jewelry with monetary value of $10,500. In addition, the PVR was removed from a closet in the home office. Nothing else in the home was disturbed or removed.

[9] Ammendolia reported the theft to the police the same day, and provided them with e-mails listing the jewelry and cash that had been removed. No charges were laid, and no items were recovered.

[10] The day following the theft, DiPierdomenico retained Precept Canada Investigation Services Inc., A licensed private investigation firm, to discover the identity of the perpetrators and recover the stolen goods. Precept was informed by DiPierdomenico that there were three individuals they should focus on: Esposito, Baptiste, and Baptiste’s boyfriend.

[11] Precept conducted interviews, surveillance, and attempted to locate the stolen goods. They maintained contact with the Toronto Police Service into 2012. Neither the police nor Precept were able to recover the stolen goods. In the course of their investigation, Precept interviewed both Baptiste and Esposito. Baptiste did not take part in the trial, and the transcript of her interview was not admitted into evidence. However, Esposito at trial confirmed that the interview was an accurate record of what he said to the investigators on June 14, 2011, 6 days after the break-in.

History Between DiPierdomenico and Esposito

[12] DiPierdomenico and Esposito are first cousins. For ten years prior to the theft, DiPierdomenico assisted his cousin both by lending money and providing work to Esposito. Esposito declared bankruptcy in December, 1998. In about 2000 or 2001, Esposito asked DiPierdomenico for help in paying off about $20,000 of debt. DiPierdomenico agreed to lend Esposito the money, and let Esposito work off the debt. After the loan was repaid in about 2003 to 2004, DiPierdomenico would pay Esposito for his work. DiPierdomenico subsequently loaned Esposito another $12,000 and agreed to let Esposito work it off. The last job that Esposito did for DiPierdomenico was in December, 2009.

[13] DiPierdomenico had a wholesale pharmaceutical venture in which he would purchase pharmaceutical supplies from large retailers and resell to smaller retailers. Esposito would pick up products from the retailers in exchange for payment, two to three times a week in busy periods.

[14] DiPierdomenico had a locked armoire in his office where he kept valuables, including both jewelry and cash. The key was kept in a briefcase on a shelf in his office. He also installed a PVR security system, linked to cameras on the front and back of the house as well as the garage. The PVR was hidden in a closet.

[15] DiPierdomenico’s evidence is that he met Esposito in his home office about one a month to do a reconciliation, and to pay him. He testified that every time he paid Esposito, he would take his briefcase off a shelf in his office, remove the key to a locked armoire, open the armoire and take the cash to pay Esposito from the armoire petty cash. He would then lock the armoire and return the key to the briefcase. His evidence is that Esposito is the only person, other than his wife, who knew about the location of the key in the briefcase, the petty cash in the armoire, and the location of the PVR in the closet. He did not open the armoire to remove petty cash in front of anyone else. He also provided Esposito with the garage access codes.

[16] Esposito’s evidence is that he met with DiPierdomenico in his office sometime between once a week and 4 times a week. Esposito’s evidence is that he did not see DiPierdomenico’s briefcase; he did not know where the key for the armoire was; he agrees he saw DiPierdomenico use the desk drawers, but did not see him remove cash from the armoire. His evidence was that when DiPierdomenico paid him, the cash was always ready on the desk. Esposito conceded that on one occasion he was provided with the garage access code, used it, and tried to memorize the code. Esposito also conceded that there were times when neither DiPierdomenico nor Ammendolia were at home when Baptiste had given him entry into the house.

[17] In 2010, approximately $800 in cash went missing from the home office when the family was away. DiPierdomenico viewed the PVR tape and noted that the only people who entered or left the house were Baptiste, Esposito and Ammendolia’s mother. He said he observed Esposito entering and exiting three times over the weekend, and Baptiste let Esposito enter the house. Baptiste denied removing the money. DiPierdomenico’s evidence is that in about February, 2010 he met with Esposito, confronted him with the evidence of the missing money and Esposito’s three entries into the home, told him about the PVR, and showed him the PVR tapes. His evidence is that other than himself and his wife, no one other than Esposito knew the location of the PVR. Esposito denied taking the money and he left.

[18] Esposito denies that DiPierdomenico pointed out the location of the PVR in the closet. He said that while DiPierdomenico had mentioned checking recordings to and from the house while they were away on holiday he did not show Esposito the recordings. He said he did not see the PVR and it was not visible. He denied taking the cash in February, 2010, and says this was the last time the cousins spoke prior to the lawsuit.

[19] DiPierdomenico did not attend Esposito’s stag on May 21, 2010, or his wedding July 10, 2010. As Esposito put it, DiPierdomenico ended their relationship as cousins. DiPierdomenico also called Esposito’s father regarding the money being taken, which Esposito said was how DiPierdomenico wanted to ruin Esposito’s honeymoon. Esposito agreed that being accused of theft had caused some problems in the family, but denied that it had caused him resentment. In his statement of defence and at trial Esposito claimed that DiPierdomenico owed him $12,000 in wages that were not yet paid, but says he was not resentful. No other information about the alleged $12,000 owing was provided at trial.

[20] Esposito denied any knowledge of or participation in the theft on June 8.

[21] Esposito gave evidence that when Loblaw’s he worked at closed in 2008 or 2009, he was given a $42,000 package in 2010. No documents regarding this package were produced. Esposito testified that other than the jobs for DiPierdomenico, he had no regular job after this time. Esposito agreed that he engaged in gambling through a Horseplay Interactive application on his phone, played the scratch lottery every day, and had no source of income other than the scratch lottery.

Credibility

[22] I set out my findings of fact below. I must evaluate credibility, testing the veracity of the witnesses by reference to objective facts proved independently of their testimony, by considering their motives, the internal consistency of their evidence, prior inconsistencies, and assessing overall probabilities and plausibility. There is almost no documentary evidence other than cellphone and 407 ETR records.

[23] I also find that there is no challenge to the credibility of DiPierdomenico or Ammendolia, other than their personal interest in the outcome. Their evidence was not challenged in any significant manner whatsoever. The day of the theft, they contacted the police immediately, and within days had retained a private investigation service with regard to the theft and in particular to locate the jewelry, which had great personal sentimental value. The only issue raised was vagueness with respect to certain dates, which is generally a question of reliability, and it does not detract from the credibility of the plaintiffs in any way on issues relevant to this lawsuit. There was no vagueness with respect to the key events of June 8. On the other hand, I have significant concerns with the credibility of Esposito.

[11] I must decide where the balance of probabilities lies having regard to the evidence before this court. I am not required to believe or disbelieve a witness’ testimony in its entirety. On the contrary, I may believe none, part or all of the witness’ evidence and may attach different weight to different parts of the witness’ evidence. (R. v. D.R. 1996 207 (SCC), [1996] 2 S.C.R. 291 at para. 93).

[12] In assessing the plausibility of evidence – what makes sense - I must determine what is in harmony with the preponderance of probabilities, what a practical and informed observer would readily regard as reasonable in the context of the events: Faryna v. Chorny, 1951 252 (BC CA), [1951] B.C.J. No. 152, [1952] 2 D.L.R. 354 (B.C.C.A.).

Cell Phone Communications Between Esposito and Baptiste

[24] In assessing the credibility of Esposito, key evidence is the frequent and lengthy communications between Esposito and Baptiste, the denial of these communications by Esposito prior to the time the phone records were produced following discoveries, and his inability at trial to explain the communications.

[25] On June 14, 2011, two Precept investigators, Andy Lillioja and Karen Layne, both of whom testified at trial, went to Esposito’s house and interviewed him in the presence of his wife and mother. During the interview, Esposito denied that Baptiste ever telephoned him, or that he ever telephoned Baptiste. The cell phone records of both Baptiste and Esposito were subsequently obtained through a production order by Master Graham.

[26] The cell phone records show that in the 3.5 weeks prior to the theft (May 15 to June 7), Baptiste made 123 phone calls to Esposito, and Esposito made 5 phone calls to Baptiste.

[27] In June, Esposito and Baptiste had the following calls:

• June 1, 4 calls (including a 22 minute call and a 15 minute call),

• June 2, 4 calls (including two 7 minute calls);

• June 3, 13 calls (including a 9 minute and a 5 minute call);

• June 4, 4 calls (including a 35 minute and a 15 minute call);

• June 6, 6 calls (including three 5 minute calls);

• June 7, 2 calls;

• June 8, 9 calls;

• June 15, 2 calls (one 27 minute call, one 13 minute call).

[28] On the date of the theft, Baptiste made seven phone calls to Esposito between 8:30 a.m. and 9:35 a.m. Esposito made two phone calls to Baptiste at 9:11 a.m. and 9:13 a.m.

[29] Between the date of the theft and the end of June, there were only two phone calls. Baptiste called Esposito twice on June 15, 2011. Investigator Layne called Baptiste at 11:15 a.m. that day, requesting that she attend a polygraph test. At 11:22 a.m., Baptiste called Esposito and they spoke for 27 minutes. At 11:50 a.m. she called Esposito again, and they spoke for another 13 minutes.

[30] In total, between May 15 and June 30, 2011, Baptiste made 139 phone calls to Esposito and they spoke for a total of 819 minutes. Esposito made 7 phone calls to Baptiste, for a total of 8 minutes.

[31] On cross-examination at trial, Esposito conceded that he had told the Precept investigators on June 14 that he and Baptiste had no phone conversations which he says was truthful at the time, as he could not remember any such conversations. When confronted with the telephone records summarized above, he did not deny having the phone conversations but confirmed that his recollection on June 14 was that they didn’t have all these conversations.

[32] Esposito was represented by a lawyer on the examinations for discovery. On examination for discovery he had said that prior to the theft, he talked to Baptiste on the phone once or twice. When asked at trial whether there was a reason his answer was incorrect he said there was no reason, but he did concede that he gave the answer before the phone records had been obtained. Esposito was asked to explain what he and Baptiste talked about in the nine telephone calls on the date of the theft, June 8. He said he didn’t remember them, and that he believed they talked about his birthday the previous day. On June 7, his actual birthday, they had already spoken for 13 minutes. He denied that the two of them were communicating about the theft.

[33] After the theft, there were only two calls, both on June 15. Baptiste called Esposito ten minutes after the Precept investigator informed her they wanted to do a polygraph, and the two spoke for 27 minutes. The spoke again later that day for 13 minutes. Esposito said they did not discuss the investigation or the theft.

[34] To summarize, on June 14, 2011, in the interview with the Precept investigators, Esposito denied any phone calls with Baptiste. At discovery in December, 2012 he minimized the contact, saying that they spoke once or twice on the phone. At trial he maintained that his best recollection on June 14 was that they had never communicated by phone. It defies credulity that by June 14, Esposito had forgotten that in the previous month, he and Baptiste had 128 phone calls, and they spoke for a total of 787 minutes – 13 solid hours. I do not accept this evidence.

[35] Esposito had no explanation for the frequency of calls in May and early June, and the eight calls the day of the theft. His explanation that Baptiste was calling on June 8 to discuss Esposito’s birthday and everyday stuff made no sense in light of the lengthy calls on June 7 itself. He does not explain the large number of lengthy calls the first seven days of June. The fact that after the theft the only discussions took place the day Precept raised the polygraph issue with Baptiste, is also compelling. I find that Esposito’s denials about the reasons for the telephone calls with Baptiste are not credible, and he is not truthful.

[36] I find on a balance of probabilities that the evidence points to coordination, planning and exchange of information between Baptiste and Esposito about the theft, and the two participated jointly in the planning of the theft. There is no direct evidence, but the only reasonable conclusion is that on a balance of probabilities, Esposito was involved in the theft at the DiPierdomenico/Ammendolia household on June 8, 2010.

Esposito’s Changing Story Regarding His Actions on June 8

[37] Esposito gave evidence at trial that on June 8, at about 7:16 a.m. he got on Highway 407 at about 7:16 a.m., on his way to the Woodbine Mall/Zellers parking lot where he was meeting his friend, Frank Nardi for breakfast at 7:40 a.m. He testified that Frank Nardi had his kids in the car, and had to get home, so they just stayed and visited in the parking lot for an hour or so. After the Woodbine Mall, he went to a convenience store in Maple at about 10 a.m. for about half an hour, and then went home. He explained the calls from Baptiste that day as Baptiste calling to ask about his birthday and every day stuff.

[38] On cross-examination, he agreed that he had told Precept on June 14 that he went to Woodbine Racetrack at about 7:50 a.m. for an hour or an hour and a half, and made no mention of meeting Frank Nardi in a parking lot with Frank Nardi’s children. He told Precept that he then went to a convenience store where he often bought lottery tickets, and spent an hour visiting the store owner, until about 9:20 a.m., when he went home. He stated that he took his wife to work, at about 2:45 pm, then went to his grandmother’s.

[39] On examination for discovery, he said that after visiting with Frank Nardi and his children in the Woodbine parking lot, he left at about 9 a.m. and drove to his grandmother’s house arriving at about 9:30 a.m., where he stayed until 10 or 10:30. He denied making or receiving any cell phone calls while at his grandmother’s. On discovery, he says he went to the grocery store after visiting with his grandmother. At his examination for discovery, the evidence was given under oath in circumstances where he was expected to tell the truth. However, this account of his actions on June 8th is inconsistent with his evidence under oath at trial.

[40] At trial he stated that he did not give an accurate version of his actions on June 8 to the investigators, and at the time of the interview did not remember meeting Frank Nardi in the parking lot for 1.5 hours. On cross-examination, he said that he went to the Woodbine Mall in the morning to meet with Frank Nardi, went to the convenience store, got home around 10:30 or 11 a.m., and went to his grandmother’s in the afternoon.

[41] None of these versions of events adequately account for Esposito’s cell phone use that day. The phone records reveal that in addition to the nine calls with Baptiste between 8:30 and 9:35 a.m., Esposito was essentially continuously on the phone for 1.5 hours, from 9:51 a.m. to 11:20 a.m.:

• 9:51 a.m., 23 minutes (to 10:14 a.m.),

• 10:22 a.m., 18 minutes, (to 10:40 a.m.),

• 10:46 a.m., 34 minutes, (to 11:20 a.m.).

[42] Esposito denied talking with people engaged in the theft.

[43] I find that none of these versions of Esposito’s activities on June 8 are credible. The shifting story, the initial failure to recall meeting with Frank Nardi and his children (6 days after the event), the failure of Frank Nardi to testify, and the complete inability to account for the telephone calls that day mean that Esposito is not being truthful about his actions on June 8. He gave two different versions, both under oath, at discovery and at trial. I infer that because he has not told the truth, he is lying to cover up his actions. The most plausible explanation, one consistent with the other evidence in the case discussed below, is that before 9:51 a.m. he entered the home and removed the items.

Telephone Calls June 9

[44] On June 9, Esposito made two telephone calls to Tiger Direct, an electronics and computer retailer. He also made a telephone call to SEQ Security Surveillance Systems. Its online website indicates that it deals in home-video security systems, including PVR video recording devices and cameras. Investigator Layne gave evidence that she spoke with SEQ to ask if they purchased used PVR security systems, and they confirmed that they did. Esposito’s evidence is that he did not own a PVR or other security system.

[45] Esposito acknowledged that he called both TigerDirect and SEQ Security Surveillance, but denied it was a call to inquire about the resale of a PVR security system. His evidence on cross-examination was that he was doing random calls about typical computer things. He had no explanation or recollection regarding the calls to those two companies. There were no such other phone calls any other time during the May 15 through June 30 period. I do not believe Esposito’s evidence that he was doing random calls about typical computer things. I find on a balance of probabilities is that he was calling to find out about the value or resale of the PVR system removed from the home.

Summary re Esposito’s Credibility

[46] I have found that Esposito’s denial that he and Baptiste were talking about and planning the theft is not credible; that his explanation of his actions on June 8 is not credible; and that his explanation for the June 9th phone calls is not credible. By contrast, I found Ammendolia and DiPierdomenico credible. Wherever the evidence of Esposito contradicts the evidence of the plaintiffs, I accept the plaintiffs’ evidence.

Conclusion on Liability

[47] Esposito had run deliveries in the pharmaceutical business for DiPierdomenico for over 10 years. Esposito had access to the house, had previously been given entry by Baptiste, and had been given the garage access code by DiPierdomenico. Esposito was a frequent visitor to the house until December 2009. He had been laid off his regular employment in about 2008, and had no employment other than through DiPierdomenico or lottery/gambling winnings.

[48] I accept DiPierdomenico’s evidence that in Esposito’s presence, he used the key that was in the briefcase and obtained access to the locked armoire, and withdrew cash. I accept DiPierdomenico’s evidence that the key was hidden in the briefcase, and the only person who knew about the key in the briefcase, other than his wife, was Esposito. I accept DiPierdomenico’s evidence that in 2010, he revealed to Esposito the location of the PVR and no one other than Esposito and Ammendolia knew the location of the PVR.

[49] Esposito knew the layout of the home, and the only articles taken were from the home office. No other room in the house was disturbed. Whoever did this knew the location of the home office and that it was accessible through the garage.

[50] The regular routine of DiPierdomenico was golfing on Wednesday morning, and Ammendolia regularly worked out on Wednesday mornings, a day that Baptiste usually attended as well. I find that Baptiste would have known this regular routine. Baptiste also knew the garage code as it was the practice of Ammendolia to leave the home unlocked, unharmed, and allow Baptiste access through the garage keypad.

[51] There is also evidence of motive. Esposito had a gambling habit. DiPierdomenico had been his only source of income after losing his job at Loblaw’s, and DiPierdomenico refused to employ him after February 2010. Esposito had reasons to resent DiPierdomenico including being accused of theft in February 2010, telling Esposito’s father about the alleged theft, the failure of DiPierdomenico to attend his stag or wedding. On a balance of probabilities I find that the evidence of Esposito regarding his actions is wholly lacking in credibility. He had the motivation, means and knowledge, in concert with Baptiste, to implement the scheme. The only logical inference supported by the evidence is that he was involved, either personally or as a directing mind.

The Law

[52] This action proceeds in trespass to real property, conversion, and breach of confidence.

[53] The primary claim is in conversion, which is an interference with possessory rights. As stated in Benedict v Continental Casualty Company, 2016 ONSC 7205 (SCJ) at para. 20:

The elements of conversion are summarized by GHL Fridman in The Law of Torts in Canada as: “(i) a wrongful act; (ii) involving a chattel; (iii) consisting of handling, disposing, or destruction of the chattel; (iv) with the intention or effect of denying or negating the title of another person to such chattel”: Fridman, The Law of Torts in Canada, 3rd ed (Carswell: Toronto, 2010) at p. 118.

[54] The wrongful act was the removal of the cash, jewelry, and PVR system from the home. The actions of the defendant permit an inference to be drawn that he acted in such a way as to deny the plaintiff’s title or possessory rights: AVS Transport Inc. v. van Ravenswaay, 2016 ONSC 3568 (SCJ) at para. 18. The cash was located in a separate physical space. I am satisfied that the wrongful removal of the segregated money can be the subject of a conversion claim: Y.R.C.C. No. 890 v. RPS Resource Property Services, 2010 ONSC 3371 (SCJ), para. 42. The jewelry and the PVR system are chattels, and were converted.

[55] I am satisfied that Esposito is personally liable for the torts of trespass and conversion. On a balance of probabilities, I find that Esposito himself entered the home the morning of June 8, and he and Baptiste planned and acted in concert to organize the theft. In any event, whether he himself entered the home and removed the property, or he instructed or encouraged someone else to do so, he either acted individually or as a joint tortfeasor. As the only tortfeasor known to the court, he bears full responsibility for all the damages suffered by the plaintiffs as a consequence of the incident. Where individuals engage in a common action that is unlawful in itself, the tortious action can be imputed to the other tortfeasors, where there has been some element of conspiracy or agreement to commit the intentional tort. I find this to be the case here, as Esposito and Baptiste acted and planned together to commit these torts: Fitzpatrick v. Orwin, 2012 ONSC 3492 (SCJ) at paras. 118-125.

[56] With respect to trespass, I find that Esposito entered into the home of the plaintiffs to remove the property, intentionally intruding onto the property without permission and so committing the tort of trespass: Fitzpatrick, paras. 135-138.

[57] The claim was also brought in breach of confidence. As stated by the Court of Appeal in Free Trade Medical Network Inc. v. RBC Travel Insurance Co., 2006 31447 (ON CA) at para. 8:

The three elements that must be established to make out a claim for breach of confidence, as established in Lac Minerals are the following:

1. The information conveyed must be confidential;

2. The information must have been communicated in confidence, and,

3. The information must have been misused by the party to whom it was communicated to the detriment of the party who confided it.

[58] The confidential information conveyed by DiPierdomenico to Esposito included the garage access code, the location of the key, the location of the cash and the location of the PVR. This information was communicated in confidence to Esposito as a family member and a worker for the purpose of his duties in the pharmaceutical work. The information was misused by Esposito for the purposes of entering the home and removing the plaintiffs’ property.

Damages

[59] I find Esposito liable in conversion for the value of the jewelry at $10,500, and the cash at Canadian $2,000, US $5,000, and €5,600. There is no evidence as to the value of the PVR security system. I would have found the same liability with respect to breach of confidence. I accept Ammendolia’s evidence of the contents, including the cash, and her estimates of value of the jewelry.

[60] The plaintiffs ask for punitive damages, which they argue are warranted in the present case due to the “high-handed, malicious, arbitrary or reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour:” Whiten v. Pilot Insurance Co., 2002 SCC 18 at para. 94. Punitive damages may be awarded for trespass for fraudulent, malicious, or calculated conduct, where the defendant “has shown a wanton disregard for the plaintiff’s rights as property owner”: Pyper v. Crausen (2008), 37 C.E.L.R. (3d) 257 (Ont. S.C.) at para. 44.

[61] Punitive damages are not compensatory, but provide for retribution, deterrence and denunciation. Punitive damages must take into account any other fines or penalties imposed on the defendant to ensure that the misconduct does not go unpunished, or where the penalty is seen to be inadequate at achieving these goals. In the present case, there were no criminal charges laid against Esposito. I award punitive damages given the intrusion on the privacy and security of Esposito’s cousin and his family, the important sentimental value of the jewelry which was made known to Esposito within six days of the theft; and the betrayal of a cousin and misuse of family ties. DiPierdomenico’s evidence was that he trusted Esposito because he was a family member. Esposito’s conduct must be denounced. I award $5,000 in punitive damages.

[62] The plaintiffs are entitled to prejudgment interest on the sums awarded to them as prescribed by the italics Courts of Justice Act.

[63] In respect of costs, I urge the parties to come to an agreement. If they are unable to do so I sent the following schedule: the plaintiffs to serve their bill of costs and submissions of no longer than 3 pages on the defendant by December 18, 2017. The defendant is to respond with submissions of no more than three pages by January 4th. Submissions are to be sent to my attention at Judge’s Administration, 361 University Avenue, Toronto, or by e-mail to my assistant, with a copy to the other side.

Kristjanson J.

Released: December 11, 2017

CITATION: DiPierdomenico v. Esposito, 2017 ONSC 7391

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANTHONY DIPIERDOMENICO and WILMA AMMENDOLIA

Plaintiffs

– and –

VENDY BAPTISTE and RINO ESPOSITO

Defendants

REASONS FOR JUDGMENT

Kristjanson J.

Released: December 11, 2017