Antoinette Curley v. Lesley Mary Taafe
OSHAWA COURT FILE NO.: 89186/14SR
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANTOINETTE CURLEY
Plaintiff
– and –
LESLEY MARY TAAFE
Defendant
Lubomir Poliacik, for the Plaintiff
P. James Zibarras, for the Defendant
HEARD: November 23, 24, 27, 28, December 5, 2017, May 22, 23, 2018
REASONS FOR DECISION
EDWARDS J:
Overview
1A law clerk sues a lawyer for breach of a business agreement, pursuant to which the Plaintiff would exclusively refer real estate clients and provide the required paralegal services for the completion of the real estate transaction. The business agreement lasted a few short months, resulting in this litigation in which the Plaintiff claims damages for breach of the agreement and also damages for malicious prosecution.
The Facts
2The Plaintiff is a law clerk. The Defendant is a lawyer, practicing primarily in the area of family law in the Region of Durham. As part of her family law practice, the Defendant also provides services in real estate planning. The Defendant was called to the Ontario Bar in September 2011. While the Defendant received her LLB in Liverpool, England, prior to her immigration to Canada in 2004, she testified that she did not practice law in England.
3The Plaintiff had a background providing law clerk services to a number of law firms prior to setting up her own business known as Trinity Legal. The Plaintiff was not, however, registered with the Law Society as a paralegal, presumably because she did not have any formal training or qualifications to hold herself out to the public as a paralegal.
4The Plaintiff and Defendant first became acquainted when they were both working for a lawyer in the Region of Durham. This was when the Defendant was completing the articling requirements of the Law Society of Upper Canada (LSUC) (as it was then called), in order to be called to the Bar in Ontario.
5Subsequent to their relationship as coworkers, the Plaintiff approached the Defendant in 2012 about referring real estate clients to the Defendant. This approach ultimately led to the signing of what is described as a document entitled “Business Agreement” (the Agreement), that amongst other things provided that the Plaintiff - through her business name Trinity Legal would refer clients exclusively to the Defendant, and that the Defendant would provide legal services to Trinity Legal for real estate, family law, wills and provincial offences (POA). The business agreement provided that the term of the agreement was for a period of one year, from September 1, 2012 to August 31, 2013.
6There is a disagreement between the Plaintiff and the Defendant with respect to whether the Plaintiff fulfilled her obligations under the agreement, but more importantly there is complete disagreement between the parties with respect to what occurred between January 15, 2013 and February 12, 2013.
7The Plaintiff maintains that she fulfilled all of her responsibilities under the agreement, and that the law clerk services she provided to the Defendant’s clients were fulfilled without complaint from either the clients or the Defendant herself.
8The Defendant on the other hand, maintains that she received numerous complaints from her real estate clients that had been referred to her by the Plaintiff. The Defendant maintains that she discussed these concerns with the Plaintiff, and that ultimately she had no choice but to terminate the agreement. Virtually no evidence was called by the Defendant to back up her claims that clients complained about the Plaintiff.
9The Plaintiff went on vacation to Ireland on January 31, 2013. She testified that for the most part she did not have her cell phone on while she was in Ireland, as she was concerned with incurring substantial roaming charges. This evidence is important in the context of alleged communications that the Defendant maintains she had directed to the Plaintiff by mail.
10The Defendant testified that she mailed a letter dated January 15, 2013 to the Plaintiff at her home address in Brooklin, Ontario. The purpose of this letter was to allegedly confirm a discussion that had taken place on January 15, 2013, when the Plaintiff had attended at the Defendant’s address in Whitby. The Defendant alleges in her letter of January 15, 2013, that she had discussed with the Plaintiff the “shoddy and slap-dash” work performed by the Plaintiff for the Defendant. The letter of January 15, 2013 goes on to indicate that because of the Plaintiff’s “misuse of the Teranet key”, and because the Plaintiff had breached the agreement and failed to provide her law clerk qualifications, the agreement was at an end. One might surmise that with this letter the Plaintiff was given notice of the termination of the agreement. Such was not, however, the Plaintiff’s evidence. To the contrary, the Plaintiff maintains that she never received a copy of the letter of January 15, 2013 terminating the agreement.
11The plot, however, continues to thicken. Amongst the Plaintiff’s documents entered into evidence was a series of text messages and emails beginning in late January 2013, which allegedly evidence communication between the Plaintiff and the Defendant. These text messages on their face, would leave one with little doubt that the Plaintiff and Defendant were continuing as if business under the agreement continued unchanged. The Defendant, in her evidence maintains that she never engaged in any of the text messages reflected in Exhibit 13, nor did she send or receive any of the Plaintiff's emails marked as Exhibit 14.
12The one thing that the Plaintiff and Defendant agree upon is a meeting (if one can call it that), that occurred at the Defendant’s house on January 15, 2013. The Plaintiff, in her evidence maintains that this was a pre-arranged meeting with the Defendant, and that she had brought with her seven of the real estate files that she had worked on for clients that she had referred to the Defendant. The Plaintiff maintains that she waited approximately one hour at the Defendant’s home. During this one hour period the Defendant was engaged in discussions with another client. The Plaintiff became fed up and ultimately left the Defendant’s office, located in the Defendant’s home.
13Entered into evidence as Exhibits 4 and 5 are two photographs. These photographs are taken from video surveillance at the Defendant’s home and show the Plaintiff carrying what appears to be some files when she entered the house at 11:14 a.m. Another photograph shows her exiting the house at 12:15 p.m., also with a file or files. Because the quality of these pictures is not very good, it is very difficult to tell how many files the Plaintiff had when she entered the house. A comparison of the two photographs does, however, leave me with no doubt that the Plaintiff left the Defendant’s house with far fewer files than she had when she entered at 11:14 a.m.
14The Plaintiff testified that she left six of the Defendant’s files on the kitchen table in the Defendant’s house. As such, she therefore maintains that she left the Defendant’s house with only one file.
15Whether or not the Plaintiff left the six files on the Defendant’s kitchen table is critical to the credibility issue between the Plaintiff and the Defendant, as well as the criminal charges that were laid by the Durham Regional Police.
16The Defendant maintains that no files were left on her kitchen table. As a result the Defendant wrote to the Plaintiff on February 12, 2013, again by ordinary mail addressed to the Plaintiff’s home address in Brooklin, Ontario. In her letter the Defendant, in essence, maintains that the Plaintiff continued to have possession of the client files that the Defendant insisted should be returned to her. The Plaintiff denies receiving the Defendant’s letter of February 12, 2013.
17Ultimately, because of the Defendant’s position that her client files had not been returned to her by the Plaintiff, she contacted the Law Society. The Defendant maintains she received advice from a representative of the Law Society that she report this matter to the police. The Defendant, acting on the advice that she received from the Law Society contacted the police, and ultimately charges were laid.
18As a result of the charges laid (theft under $5,000 and possession of stolen property), the Plaintiff was fingerprinted and she had her mugshot taken. The Plaintiff engaged the services of a lawyer and ultimately the charges were withdrawn by the Crown.
19Subsequent to the laying of theft and possession of stolen property charges, the Defendant testified that she found out that the Plaintiff had allegedly altered her letterhead, by changing the telephone and fax numbers from the Defendant’s to the telephone and fax number of the Plaintiff. The Plaintiff maintained in her evidence, that she had received the Defendant’s approval to use the Defendant’s letterhead in her correspondence with the Defendant’s real estate clients, so as to avoid the Plaintiff being needlessly contacted by the real estate clients on issues that the Plaintiff in her capacity as a law clerk, would be dealing with. The Defendant categorically denies the Plaintiff’s evidence in this regard, and maintains that at no time did she ever give the Plaintiff authority to use, let alone change her letterhead to reflect the telephone and fax number of the Plaintiff.
20With the discovery of the altered letterhead the Defendant again sought the advice of the Law Society, who again suggested to the Defendant that she report this matter to the local police. Acting on the advice that she received, the Defendant contacted the Durham Regional Police and charges were laid against the Plaintiff, including fraud under $5,000 and forgery. Those charges, as with the earlier charges, were ultimately withdrawn by the Crown.
Position of the Plaintiff
Breach of Contract Claim
21The Plaintiff in this case seeks damages that Plaintiff’s counsel quantified in the net amount of $9,509.86. A review of the average earnings of the Plaintiff during the six months that she did work for the Defendant, would suggest that she was earning an average of close to $3,000 per month. In order to earn this revenue, however, the Plaintiff would have incurred expenses. Included in the Plaintiff’s documentation filed as exhibits at trial were her income tax returns. A review of those tax returns and her statement of business affairs, has led me to the conclusion that she was deducting expenses that were approximately 50% of her revenue. As such, if the business agreement was breached by the Defendant - and assuming that the Plaintiff was entitled to be compensated for the balance of the term of the agreement, the Plaintiff would be entitled to six months revenue less 50% for the expenses she would otherwise have incurred. The net damages recoverable for breach of the agreement would be approximately $10,000, assuming the agreement was wrongfully terminated by the Defendant.
22In addition to the Plaintiff’s claim for damages for the wrongful termination of the agreement, she also claims damages for malicious prosecution.
The Malicious Prosecution Claim
23It is argued on behalf of the Plaintiff, that this case is essentially one where the court has to choose between two completely different versions of what happened on January 15, 2013 and thereafter. In essence it is argued on behalf of the Plaintiff, that the Defendant on more than one occasion fabricated her evidence such that this court can have no confidence in the Defendant’s version of what happened on January 15, 2013. In support of that argument, Mr. Poliacik referred to the Defendant’s evidence where she stated under oath she had never acted for two parties where she was in a conflict of interest. Specifically, she denied that she had ever acted on a real estate transaction for a husband and wife with respect to the sale of a matrimonial home in the context of contested matrimonial proceedings. The Defendant’s evidence in this regard has to be contrasted with Exhibits 21 and 22 which would suggest otherwise. While this evidence is collateral to the central issue before this court, it does call into question the Defendant’s overall credibility.
24The charges that were laid against the Plaintiff by the Durham Regional Police are set forth in the information that was placed before the court. On count one, the Plaintiff was charged:
on or about the 15th day of January in the year 2013 at the Town of Whitby in the Central East Region did steal legal files of a value not exceeding five thousand dollars, the property of Taafe Legal Services, contrary to Section 334, clause (b) of the Criminal Code of Canada.
And count two provided:
on or about the 15th day of January in the year 2013 at the Town of Whitby in the Central East Region did possess property, namely legal files of a value not exceeding five thousand dollars, the property of Taafe Legal Services, knowing that all or part of the said property had been obtained by an offence punishable by indictment, contrary to Section 354, subsection 354, subsection (1) of the Criminal Code of Canada.
25The importance of setting forth the entirety of the information, lies in the fact that it is very specific in terms of when the Plaintiff is alleged to have stolen the files belonging to the Defendant.
26The charges that were laid against the Plaintiff subsequent to the withdrawal of the original charges are set forth in an information that was laid on May 30, 2014, and alleged as follows:
Between the 13th day of January in the year 2013 and the 25th day of January in the year 2013 at the Town of Whitby in the Central East Region and elsewhere in the province of Ontario did by deceit, falsehood or other fraudulent means, defraud Taffe (sic) Law Firm of letterhead of a value not exceeding five thousand dollars, contrary to Section 380, subsection (1), clause (b) of the Criminal Code of Canada.
COUNT 2 AND FURTHER THAT
Antoinette CURLEY
Between the 13th day of January in the year 2013 and the 25th day of January in the year 2013 at the Town of Whitby in the Central East Region and elsewhere in the province of Ontario did, knowing a document, namely fraudulent letterhead, to be forged, use, deal with or act (sic) on it as if it were genuine, contrary to Section 368, subsection (1), clause (a) of the Criminal Code of Canada.
27I have reproduced the second set of charges in their entirety, as the allegations again are specific in terms of when the Plaintiff is alleged to have defrauded the Defendant.
28There is no dispute that the complainant with respect to both sets of charges was the Defendant. The Defendant submitted to the police a letter or formal statement which is dated February 27, 2013. The statement contains a number of factual allegations against the Plaintiff, including the following:
From the outset it was agreed that Antoinette Sullivan would provide references and written proof of her law clerk qualifications. This was requested numerous times, however there was always a reason or excuse as to why she did not present them to me; [Throughout the documentation there is reference to Antoinette Sullivan – Sullivan is the maiden name of the Plaintiff.]
That the Defendant had received ‘a number of complaints from clients’;
That on January 15, 2013, the Plaintiff came to the Defendant’s residence where she remained between approximately 11:14 a.m. and 12:15 p.m., and that after the Defendant had finished dealing with an unrelated client:
Upon conclusion with my client I went into the kitchen area expecting to see my client files and paperwork as was arranged, however there were no files left for me by Antoinette Sullivan. [Emphasis added]
- That the Defendant attempted to contact the Plaintiff on numerous times over the following days, without ever mentioning in her letter to the police that she knew that the Plaintiff was away on vacation in Ireland.
29Counsel for the Plaintiff argues that all of the aforesaid representations made in the Defendant’s letter to the police were untrue and/or were a misrepresentation of the facts.
30The first set of charges ultimately came before the Ontario Court of Justice on June 7, 2013, and after three appearances by the Plaintiff were withdrawn by the Crown on October 2, 2013.
31With respect to the second set of charges that were laid in May 2014, counsel for the Plaintiff argues that these charges were also laid solely as a result of false information that was provided by the Defendant to the police; specifically, that the Plaintiff had both used and altered her letterhead without her authorization.
32The Defendant provided to the police a copy of a letter dated April 21, 2014 in connection with the purchase of a residence in Ajax by “H”. I will use the letter of the alphabet to describe the name of the particular client without divulging the actual name of the client so as to protect the privacy of the client’s interest. The letter from H to the Defendant is dated April 21, 2014, and it is this letter that the Defendant maintains demonstrates that the Plaintiff had continued to use her letterhead after the termination of the agreement, and moreover contained the telephone and fax number of the Plaintiff after deleting the Defendant’s own telephone and fax numbers.
33Plaintiff’s counsel correctly notes that in fact the letter of April 21, 2014 was originally dated January 25, 2013. Counsel for the Plaintiff argues that this court should accept the evidence of the Plaintiff that she had received full authority from the Defendant to use the Defendant’s letterhead, and moreover had received authority to alter the telephone and fax numbers so that all real estate enquiries would go through the Plaintiff and not through the Defendant. While it was argued on behalf of the Defendant that the April 21, 2014 letter to H demonstrates the alteration of the letterhead and the Plaintiff’s continued use of the letterhead - at a point in time when her contract had already been terminated on January 15, 2013, counsel for the Plaintiff argues that to the knowledge of the Defendant both of these allegations were untrue.
34In order to support a claim for damages for malicious prosecution, a Plaintiff must meet the test set out by the Supreme Court of Canada in Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170 at pages 192 and 193, as follows:
a) the proceedings must have been initiated by the defendant;
b) the proceedings must have terminated in favour of the plaintiff;
c) the absence of reasonable and probable cause;
d) malice, or a primary purpose other than that of carrying the law into effect.
35Plaintiff’s counsel argues that the evidence is incontrovertible that both sets of charges which the Plaintiff faced in the Ontario Court of Justice were initiated solely as a result of information supplied by the Defendant, and that in both cases the Crown chose to withdraw the charges against the Plaintiff. As such, it is argued there is no dispute the proceedings were terminated in the Plaintiff’s favour.
36As for the issue of absence of reasonable and probable cause, counsel for the Plaintiff argues that if the Plaintiff’s evidence is accepted and the Defendant’s evidence rejected, it is clear that given that both informations related to a time period in mid-January 2013, that the Defendant lied to the police with respect to when the Plaintiff’s contract was terminated. Specifically, the Defendant provided information to the police that the Plaintiff’s contract was terminated on January 15, 2013, and that she continued to use the Defendant’s letterhead after that termination.
37Dealing with the last part of the Nelles test, Plaintiff’s counsel argues that if the court comes to the conclusion that the Defendant lied to the police, the only inference the court can reach is that the Defendant was motivated by malice.
Plaintiff’s Position Regarding Damages
38In addition to the claim for the damages arising out of the breach of the agreement, counsel for the Plaintiff asserts that the Plaintiff should receive an award for malicious prosecution that in totality is in the order of $350,000, which award includes general damages arising out of the malicious prosecution as well as punitive damages and damages for mental distress.
Position of the Defendant
39Counsel for the Defendant argues that the key dates on which the court should concentrate its analysis are not the dates in mid-January 2013, but February 19, 2013, February 21, 2013 and April 23, 2013 as it relates to the first set of charges, and April 14, 2014 and May 30, 2014 as it relates to the second set of charges. Mr. Zibarras suggests that what the Defendant said in her letter of February 27, 2013 that was filed with the police in support of the allegations relating to the first set of charges, is completely irrelevant. Mr. Zibarras went so far as to suggest the letter of February 27, 2013, even if it contained inaccurate information, was irrelevant to the overall decision that this court has to come to.
40In support of his argument in this regard, Mr. Zibarras points to a letter that the Plaintiff sent to the Defendant on April 23, 2013 (Exhibit 23), where at page two the Plaintiff states:
Now Ms. Taafe, please do not take this as a threat but merely an outline of my intentions regarding this matter.
If I don’t receive my payment in full as set out in my invoice of March 2nd 2013 including interest, by May 1, 2013, I will proceed to package up any and all files/documents here in my office that relate to your clients and forward same detailing the matter at hand to the Law Society of Upper Canada.
In my correspondence to the Law Society I will detail how you have once again misused the tax payer’s money by falsely accusing me of “theft” and by utilizing the favor (sic) of your husband’s positions as a police officer to send a detective to my home to harass me regarding files that I had stolen from you, I will be attaching the police report to show the extent you will go to get your way.
41Mr. Zibarras argues that the Plaintiff’s threat to the Defendant makes clear that she still had files of the Defendant. This runs quite contrary to the Plaintiff’s testimony, that with the exception of one file she had returned all of the Defendant’s files when she attended at her residence on January 15, 2013.
42Mr. Zibarras argues that given the Plaintiff’s own admission, as set forth in Exhibit 23 that she still had files belonging to the Defendant which she refused to return, the court can conclude that the Plaintiff was the sole reason why she was charged by the police. Given that the agreement required upon termination that the Plaintiff was required to return any and all files belonging to the Defendant, Mr. Zibarras argues that the Plaintiff was not only in breach of the agreement but also wrongfully withheld property belonging to the Defendant that resulted in the laying of the first set of charges.
43In reply, counsel for the Plaintiff emphasizes the importance of the time period covered by both informations that the Plaintiff was supposed to respond to in the Ontario Court of Justice. Specifically, the first set of charges relates to January 15, 2013, while the second set of charges relate to the time period January 13, 2013 through January 25, 2013. As it relates to the argument made by Mr. Zibarras that the Plaintiff’s letter of April 23, 2013 confirms that the Plaintiff had files belonging to the Defendant, Mr. Poliacik - quite rightly in my view, referred the court to the transcript of the Plaintiff’s cross-examination as it relates to the letter of April 23, 2013 (Exhibit 23). I have reviewed the transcript, and at no time during the course of her cross-examination was the Plaintiff cross-examined with respect to that part of her letter where she states:
If I don’t receive my payment in full as set out invoice of March 2, 2013, including interest, by May 1, 2013, I will proceed to package up any and all files/documents here in my office that relate to your clients and forward same detailing the matter at hand to the Law Society of Upper Canada. [Emphasis added]
44As a matter of fairness and in accordance with the rule in Brown v. Dunn, the Plaintiff should have been given an opportunity to respond to the suggestion now being made by Mr. Zibarras, that the aforesaid extract from Exhibit 23 confirms that the Plaintiff wrongfully had withheld files belonging to the Defendant. By her own admission the Plaintiff acknowledged that when she attended at the Defendant’s home on January 15, 2013, she had entered the Defendant’s home with the Defendant’s files which she left on the Defendant’s kitchen table. She further acknowledged that she left the house with one of the Defendant’s files. I am left to speculate as to what the Plaintiff meant by the aforesaid extract found on the second page of Exhibit 23, but I accept her evidence - in complete contradiction to the Defendant’s evidence, that she had left all of the Defendant’s files on the Defendant’s kitchen table, with the exception of one file.
45At no time did the Defendant ever tell the police the true story of what actually happened on January 15, 2013. The Defendant maintained throughout that none of her files were ever returned by the Plaintiff. The Defendant’s evidence in that regard was completely misleading to the investigating police officers, and had they known the true state of affairs I have little doubt that the first information would never have been laid.
46As for the suggestion that the failure to call the investigating police officers is fatal to the Plaintiff’s claim, Mr. Poliacik argues that the only evidence upon which the police acted was information supplied by the Defendant. If the court ultimately concludes that the information was false, Mr. Poliacik suggests that there was no need to call the investigating police officers as there was no other information upon which the police relied, or which otherwise would have been available to them from any other source.
Analysis
47The Defendant is a lawyer practising primarily in the area of family law. She was called to the Ontario Bar in 2011. She came to Canada from England in 2004. A screenshot of her website (Exhibit 8) is worth comparing to the Defendant’s actual experience as a lawyer. On her website, as it existed prior to October 2017, Ms. Taafe stated to anyone accessing her website that she “…has been practising predominantly in family law for over 20 years…” The website continues as follows: “…Lesley obtained her LLB law degree at Liverpool in the United Kingdom, graduating with an Honours Degree. Lesley then chose to pursue a career as a barrister and attended Chambers in Liverpool...” [Emphasis added]
48In cross-examination, the Defendant acknowledged the obvious error as it relates to the number of years she has been practicing family law in Ontario. When questioned about her career as a barrister in England she stated that she did not have a career as a barrister, but then went on to add she could “practice in either jurisdiction”. While her representations to the world at large reflected on her website may be seen as a collateral issue in these proceedings, her evidence reflects a complete lack of candour on her part. Anyone looking for a lawyer in the Durham Region would have concluded the Defendant had 20 years’ experience practicing as a family lawyer, and that she had been a barrister in England. Neither were true.
49If the Defendant’s evidence is to be believed, I would have to accept that on January 15, 2013 she had pre-arranged a meeting with the Plaintiff at her home. The purpose of the meeting was to have the Plaintiff return the Defendant’s files and for the Defendant to formalize what the Plaintiff already knew, i.e. that the agreement was being terminated. According to the Defendant, the Plaintiff showed up at her home and she briefly confirmed with the Plaintiff that she was terminating the agreement. She asked the Plaintiff to wait while she dealt with a client. After she finished with the client she returned to see that the Plaintiff had left, and according to the Defendant no files had been returned. Subsequent to the meeting, the Defendant then sent the letter of January 15, 2013 (Exhibit 17) terminating the agreement. The letter was sent by ordinary mail.
50Whether the letter was mailed as testified to by the Defendant is a matter of considerable importance. If it was mailed and the Plaintiff did not receive it, it could be put down to bad luck. However, the Plaintiff also did not receive two other letters that the Defendant maintains she “mailed” to the Plaintiff. This amounts to something of a pattern of some kind. I do not accept the Defendant’s evidence that she mailed the termination letter of January 15, 2013 to the Plaintiff for many reasons that I will elaborate on below. But I take note that in many instances after January 15, 2013 the Defendant sent official type documents by registered mail, courier, fax and email (see Exhibit 1, Tab 17, page 153; Tab 23, page 244; Tab 28, page 297; Tab 32, page 317; Tab 37, page 341). It makes no sense that the Defendant would send a letter terminating the contract with the Plaintiff by mail, where her pattern of conduct with important pieces of documentation post-January 15, 2013 demonstrate that they were sent in a manner where there is a record of the delivery to, and a receipt by, the addressee.
51The Defendant’s trial evidence needs to be contrasted with her discovery evidence; her statement of defence; and correspondence that transpired after January 15, 2013. The Defendant maintains that the Plaintiff did not return any files on January 15, 2013. In her statement of defence she says that the Plaintiff left four of her files, but not all of the files. When confronted with this obvious inconsistency, the Defendant stated it was an error on the part of the lawyer who had drafted the statement of defence. No motion was ever brought prior to the trial, or even at the trial, to withdraw or amend that part of the statement of defence where she admits the return of four files.
52After the agreement was purportedly terminated by the Defendant, one would surmise that all further work by the Plaintiff on the Defendant’s files would also have terminated. One might also surmise that all regular business communication between the Plaintiff and the Defendant would terminate. In fact, the evidence does not support that conclusion. Beginning on January 23, 2013, there are a series of emails to and from the Defendant. These emails (Exhibit 14) relate to various files of the Defendant, and give every indication the Plaintiff is continuing to work on them for the Defendant. There is nothing in these emails to suggest the agreement has been terminated. To the contrary, one can infer that it was business as usual. These emails are inconsistent with the agreement having been terminated as alleged by the Defendant.
53The Defendant maintains in her evidence at trial that she never received any of these emails, nor did she send them. The emails that appear to have been sent by the Defendant come from the Defendant’s email address. The Defendant’s trial evidence needs to be contrasted with her discovery evidence. On discovery she said that she “guessed” the emails had been sent and received. She also said on discovery they were “possibly” sent or received. Finally, on discovery she said she “didn’t recall” sending them. When asked to explain these inconsistencies, she blamed her former lawyer who had not properly prepared her for her discovery.
54Apart from the inconsistencies between her trial evidence and her discovery evidence, inconsistencies that in my view undermine her credibility, the Defendant offered no credible evidence to explain how an email could be sent from her email address if it was not her sending the email. The Defendant called no evidence that anyone else had access to her email account. In the absence of such evidence, I am left to conclude that all of the emails reflected in Exhibit 14 were either sent by the Defendant to the Plaintiff or vice versa.
55The emails reflected in Exhibit 14 are quite inconsistent with the Defendant’s evidence that she had terminated the agreement with the Plaintiff on January 15, 2013. The emails - Exhibit 14, demonstrate that the Plaintiff was working on the Defendant’s files after January 15, 2013. The Plaintiff was working on the files because the agreement had not been terminated. Where the Plaintiff’s evidence differs from the Defendant as it relates to what happened on January 15, 2013 until the Plaintiff went to Ireland in late January, I unreservedly accept the evidence of the Plaintiff.
56I do not believe the Defendant when she says she mailed a letter to the Plaintiff on January 15, 2013, terminating the agreement. I also do not believe the Defendant when she says the Plaintiff did not leave her files on the kitchen table on January 15, 2013. Her evidence in that regard flies in the face of her own admission reflected in her statement of defence, an admission that was never withdrawn. I accept the Plaintiff’s evidence that she left all of the files but one on the Defendant’s kitchen table before she left the Defendant’s home on January 15, 2013. While the photographs (Exhibits 4 and 5) make it difficult to discern how many files the Plaintiff left behind, they are clear enough to discern that the Plaintiff left the Defendant’s house with a lot less than what she entered with.
57The Defendant maintains that she only reported the so-called theft of her files to the police after she received advice from the Law Society that this was what she should do. Exhibit 19 reflects the telephone calls made by the Plaintiff to the Law Society. The first call did not take place until February 21, 2013. It was presumably in this telephone call when the Defendant was told to call the police. Yet on February 12, 2013, the Defendant purportedly sent a letter, again by ordinary mail, where in the last two paragraphs she threatens the Plaintiff with going to the police if she did not get her files back. The Defendant had not received any advice from the Law Society about going to the police when her letter of February 12, 2013 was purportedly sent.
58The Defendant reported the Plaintiff’s “theft” of her files to the police by way of a statement (Exhibit 1, Tab 16). In her statement she refers to a review she did of the video recording of January 15, 2013, which she maintained demonstrated that the Plaintiff left her residence with her files. The video recording was never produced to the police, and it was never produced in these proceedings. While the Defendant maintained in cross-examination she did not know she should have kept the video recording, it defies logic that she would not have kept a copy of the video as it would have been the best evidence to support her version of the events that happened at her residence on January 15, 2013. While her failure to produce the video weighs heavily against the Defendant’s credibility, it is not determinative.
59I have suggested the agreement was purportedly terminated on January 15, 2013. I say purportedly because the Plaintiff testified she never got the letter of February 12, 2013, nor the letter of January 15, 2013. I say purportedly because in the first paragraph of the letter of February 12, 2013, the Defendant states: “I have made numerous attempts to contact you” since the meeting at her house on January 15, 2013. After January 31, 2013, the Plaintiff was in Ireland on vacation. In her trial evidence, the Defendant maintained she did not know the Plaintiff was in Ireland. She had to say that because it was inconsistent with her letter of February 12, 2013, wherein she suggests she had tried to contact the Plaintiff numerous times. This suggestion needs to be contrasted with the Defendant’s email of February 2, 2013, where the Defendant demands the return of her files “immediately upon your return from your vacation”. This email demonstrates the Defendant knew the Plaintiff was on vacation.
60At the same time as the Defendant says she was demanding the return of her files, she was in contact with a Chris Baxter at Sundial Homes. Sundial Homes was a real estate developer in the Durham Region. The Defendant emailed Baxter as follows: “Chris: Here are my contact details for the real estate coming to this office. Thank you for your assistance”. Within minutes of getting this email, Baxter replied to the Defendant as follows: “What info do you need from each deal? According to our records we have seven deals that have letters stating that, ‘I Lesley Mary Taafe am the solicitor for….and in reviewing the Agreement of Purchase and Sale…’ So you should have the APS for each deal - are you looking for phone numbers?”
61What is significant about this email relates to the Defendant’s evidence that she knew nothing about any real estate deals with Sundial. Baxter’s reply email of February 2 (Exhibit 1, Tab 15) would suggest otherwise. What is, perhaps, even more significant, arises out of the Defendant’s evidence that having been told by Baxter that Sundial had seven deals where they had received letters from the Defendant confirming she was acting on the transaction, it was the Defendant’s evidence she did nothing. This evidence makes no sense in the context of the Defendant’s protestation that she wanted to protect the name of her firm. If this was the case, one might surmise she would have at least followed up with Baxter and advised him she had no knowledge of her acting in the seven deals, and in fact she was not acting for the purchasers. She did neither.
62Having failed to obtain a successful prosecution on the theft of her files charges, the Defendant then maintains in her evidence she discovered the Plaintiff had improperly continued to use her letterhead, using a phone and fax number that belonged to the Plaintiff. As previously noted she contacted the Law Society, who according to her evidence suggested she contact the police, advice which she acted upon. In support of her complaint to the Law Society, the Defendant attached a letter dated April 21, 2014 on the letterhead of Taafe Law (Exhibit 1, Tab 28, page 305). This letter had the phone number and fax number of the Plaintiff. The Defendant maintained she had not given her consent to altering the phone and fax numbers or her letterhead.
63Because she was concerned about what, in essence was identity theft, the Defendant reported the Plaintiff to the Law Society using as evidence the letter dated April 28, 2014. What the Defendant did not tell the Law Society was that the letter was really dated and sent January 25, 2013. She also did not tell the Law Society about the emails and text messages between herself and the Plaintiff after the purported termination of their agreement on January 15, 2013. In short, the Defendant gave the Law Society – as she did later with the police, information that at its best was, to her knowledge misleading, and at its highest was a complete fabrication.
64The Defendant’s evidence was a tangled weave of inconsistencies and untruths. I can only conclude that the letters of January 15, 2013 and February 12, 2013 that the Defendant says she mailed - and which the Plaintiff says she never received, were created after the fact to give credence to her story. When caught in a lie or inconsistency, the Defendant placed the blame on her lawyers who had not properly prepared her for her discovery and who had made a mistake in the drafting of her statement of defence. Even her website reflects someone playing fast and loose with the truth. As a lawyer the Defendant should know the importance of telling the truth, the whole truth and nothing but the truth, particularly when she engaged the police in the prosecution of criminal charges in aid of getting files back; files that she knew had already been returned.
65The Defendant maintained in her evidence she never wanted to have the Plaintiff charged. With respect to her files, she just wanted them back. With respect to her letterhead, she just wanted to make sure she was protected against unauthorized use of her letterhead. The Defendant knew full well that she had authorized the Plaintiff to use her letterhead. She never told the police about the authorization she had given the Plaintiff. When the Assistant Crown Attorney withdrew the charges in 2014, despite her protestations that all she wanted was to protect her name and her letterhead, she did not stop. She complained to the Law Society that the Assistant Crown Attorney had “discriminated” against her because she was a lawyer. The Law Society saw no merit in the complaint. But that did not satisfy the Defendant. She complained to the Attorney General of Ontario and asked that the Assistant Crown Attorney be “disciplined”. These are not the actions of someone simply trying to protect herself. Rather, they are - in my view, another example of the Defendant’s vindictiveness.
66It is important in this case to determine who actually initiated the charges against the Plaintiff. While technically the informations were laid at the behest of the investigating police officers, in reality those information were only laid as a result of the information supplied to the police by the Defendant. In Pate Estate v. Galway-Cavendish and Harvey (Township), 2013 ONCA 669, at para. 31 Lauwers J.A. (Dissenting) quotes Simmons J.A. in NcNeil v. Brewers Retail Inc., 2008 ONCA 405, as follows:
It is well-established that a defendant may be found to have initiated a prosecution even though the defendant did not actually lay the information that commenced the prosecution. Although this court has not determined ‘all the factors that could, in any particular case, satisfy the element of initiation’, it has held that a defendant can be found to have initiated a prosecution where the defendant knowing withheld exculpatory information from the police that the police could not have been expected to find and did not find and where the plaintiff would not have been charged but for the withholding.
67In determining whether or not the initiation of the prosecution with respect to the two informations was solely caused by the Defendant, I am guided by the four elements that Simmons J.A. identified in McNeil to determine malicious prosecutions; specifically, as applied to this case whether:
The Defendant “knowingly withheld exculpatory information from the police”. If so:
Whether the conduct of the Defendant undermined the independence of the police investigation;
Whether the Defendant prepared her statement in a manner that misled the officers into not conducting an independent investigation;
Whether the Defendant undermined the independence of the decision making process to lay charges and prosecute.
68With the aforesaid questions in mind, and with my findings that the evidence of the Defendant with respect to what occurred at her residence on January 15, 2013 is completely lacking in credibility, I am satisfied that the Defendant not only misrepresented the true state of affairs to the police but also withheld exculpatory information that would otherwise have been available to the police; specifically, the video tape that would have better demonstrated that the Plaintiff had in fact left most of the files at the Defendant’s residence on January 15, 2013. As well, having suggested to the police that the contract had been terminated on January 15, 2013, the police were ultimately misled with respect to the second set of charges given the evidence that the Plaintiff continued to do work for the Defendant after January 15, 2013. As such, the suggestion in relation to the second set of charges was completely unfounded. The Defendant’s evidence that she had never given the Plaintiff permission to use her letterhead was also false.
69This is not a case where the court could be satisfied that the proceedings against the Plaintiff were initiated by the police. This is one of those cases where the evidence demonstrates that the only reason why these proceedings were initiated by the police, was as a result of the false and misleading information supplied by the Defendant. There is no dispute that the proceedings in relation to both the first and second informations were terminated in favour of the Plaintiff. Given my findings with respect to the credibility of the Defendant and the fact that her evidence was fabricated and false in relation to what she provided to the police, I have no hesitation in concluding that there was a complete absence of any reasonable and probable cause.
70Finally, dealing with the last aspect of the test in Nelles determining whether or not there was malice in relation to the actions of the Defendant, I have little hesitation in concluding that there was no other reason why the Defendant would otherwise have proceeded with her complaints to the police other than a malicious intent. While she professed in her evidence to suggest that the only reason for the complaint in relation to the first set of charges was to get her files back, I reject that suggestion given my finding that her files had already been returned on January 15, 2013.
71Similarly, in respect to the second information, despite her professed intent to act on the basis of information supplied to her by the Law Society, I reject the Defendant’s argument that she simply wanted to protect herself by ensuring that the Plaintiff did not continue to use her letterhead. The only evidence in connection with the use of her letterhead was in connection with a client that the Plaintiff had referred to the Defendant at a point in time when their relationship pursuant to the contract was continuing, i.e. January 25, 2013.
72Contrary to the evidence of the Defendant that the contract had been terminated on January 15, 2013, the evidence is quite clear that the contract was not terminated on January 15, 2013 given the emails and text messages that continued thereafter, that amply demonstrates that the business relationship was ongoing. There is no evidence that once the agreement actually was terminated and the relationship between the parties was at an end that the Plaintiff in any way improperly held herself out to have any relationship with the Defendant. Nor is there any evidence that the Plaintiff improperly continued to use the Defendant’s letterhead without her permission.
73In St. Jacques v. Doyle, 2008 9381, Ferrier J. at paras. 8 and 9 states:
Malice is established by showing that the actual motive was improper, or the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the defendant. The burden is on the plaintiff to show malice.
With respect to allegations of malice, a suit for malicious prosecution must be based on more than recklessness or gross negligence. The test for malicious prosecution requires that the plaintiff show that the actual motive was improper, or demonstrate that the prosecution can only be explained by imputing a wrong motive. Neither bald allegations of malice, nor inferences in the face of other explanations, nor assumption and innuendo will satisfy the elements of the test.
74The Defendant in this case continued to maintain the information that she supplied to the police in connection to both the first and second informations was accurate. The evidence borne out at trial completely demonstrates the opposite. There is nothing in the evidence of the Defendant to suggest that her actions were just mere recklessness or gross negligence. Her motivation in providing the information to the police that only she could know was false, demonstrates that her only motivation was malicious intent.
75As for the question of damages, I deal first with the question of the damages for breach of contract. I am satisfied, as I have already indicated, that there was an improper termination of the contract between the Plaintiff and the Defendant, and that the Defendant is responsible for the Plaintiff’s damages for the remaining term of the contract. In order to determine those damages, the court has to look at what the Plaintiff might otherwise have earned during the remaining term of the contract.
76Mr. Zibarras quite correctly argues that the Plaintiff has an obligation to mitigate her damages, and that there was no evidence with respect to any attempts made by the Plaintiff to refer other real estate transactions to any other lawyers in the Durham Region. Furthermore, Mr. Zibarras suggests that the $85,000 settlement that the Plaintiff ultimately obtained as a result of the termination of her employment with the Credit Union subsequent to the termination of the contract with the Defendant, should be set off against any amount that the Plaintiff might otherwise have earned during the remaining term of the contract. I have no evidence before me with respect to how the $85,000 settlement was comprised and over what period of time that settlement covered; specifically, whether it covered the remaining seven month term of the contract between the Plaintiff and the Defendant.
77The suggestion that the Plaintiff could mitigate her damages by referring other real estate transactions to other lawyers in Durham, has to be viewed in the context that the Plaintiff was also having to deal with the criminal charges laid in the first information. The court can take judicial notice of the fact that anyone having to deal with the criminal justice system for the first time, would find that experience a difficult one that might otherwise impact on one’s ability to work. In my view, an appropriate award with respect to the Plaintiff’s claim for breach of contract is an amount of $7,500.
78With respect to the Plaintiff’s claim for malicious prosecution, I deal first of all with the claim for general damages. In Pearson v. Main, 2006 38884 (ON SC), at para. 28 Thorburn J. observed as follows:
General damages for malicious prosecution are awarded in a manner similar to general damages for defamation. Where a case of malicious prosecution is established, those who advance the malicious prosecution are liable for compensation for the moral damage caused both by the false charge and by the false arrest, in addition to compensation for the Plaintiff’s monetary losses.
79I have little to no evidence with respect to any actual monetary losses that the Plaintiff might otherwise have incurred, other than the costs that she would have incurred with respect to retaining her criminal counsel. Those costs, however, based on the evidence of the Plaintiff herself, would appear to have been subsumed with respect to some kind of deal that the Plaintiff’s husband had with the criminal lawyer who represented her in the Ontario Court of Justice. I therefore decline to make any award with respect to actual monetary losses.
80I was referred by Mr. Poliacik to a number of cases where substantial monetary awards were made and upheld by the Court of Appeal. The cases provided to me are factually distinguishable, and also involved corporate defendants who in my view are in a different financial position than that of an individual defendant such as the Defendant in this case.
81I accept the submission of Mr. Zibarras that there was no evidence before the court that anyone other than the Plaintiff and perhaps her immediate family, as well as anyone who might otherwise have been in the courthouse when the Plaintiff was required to attend in court, would have known of the charges that the Plaintiff faced in the first and second informations. The fact, however, that there was no evidence that the Plaintiff’s reputation in her community has been damaged as a result of the charges she faced, does not mean that the Plaintiff is not entitled to an award of general damages.
82The Defendant was prepared to provide false information to the police knowing full well that the Plaintiff was innocent of those charges. The Defendant caused the Plaintiff to be charged not once, but twice, knowing full well that the evidence that she provided to the police on both occasions could result in a wrongful conviction of an innocent person. An appropriate award to reflect those two occasions, in my view, is $50,000.
83There remains the Plaintiff’s claim for punitive damages. As noted by Carole J. Brown J. in Campbell v. Lauwers, 2013 ONSC 2306 at para. 37:
With respect to punitive damages, the Court should consider how the combination of compensatory damages, punitive damages and any other kind of punishment related to the same misconduct contributes to achieving the objectives of retribution, deterrence, and denunciation. Where a defendant has already been punished, either criminally or through professional disciplinary process, punitive damages are generally not awarded, because this would amount to double punishment.
84In this case there is no evidence that the Defendant has been the subject of any disciplinary process, or any form of punishment. The Defendant is a lawyer, and she should have come to this court and told the truth. In my view, she did not. The Defendant is an officer of this court, quite independent of her role as a litigant within these proceedings. This is a case where an award of punitive damages is appropriate to reflect the Defendant’s misconduct so as to achieve objectives of retribution, deterrence and denunciation. The award, in my view, should not be a crippling award. An award suggested by Plaintiff’s counsel in the range of $350,000 to compensate the Plaintiff for all her damages, which would include punitive damages, would result in a crushing award that would not be a complete reflection of the Defendant’s misconduct in this case. An award of $25,000 for punitive damages is, in my view, sufficient to reflect the principles upon which punitive damages have been awarded in the past.
85In summary, the Plaintiff shall recover from the Defendant the following:
a) general damages in the amount of $7,500;
b) general damages for malicious prosecution in the amount of $50,000; and
c) punitive damages in the amount of $25,000.
86If the parties cannot agree upon the costs of these proceedings, counsel may submit written costs submissions limited to no more than five pages in length, to be received from the Plaintiff within 30 days from the date of receipt of these Reasons and the Defendant’s reply submissions 15 days thereafter. If costs submissions are not received within the aforesaid timelines, the court will assume that the issue of costs has been resolved between the parties.
Justice M.L. Edwards
Released: June 13, 2018