Court File and Parties
COURT FILE NO.: 15-65914 DATE: 2019/04/12 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Randy Lorne Skinkle, Plaintiff AND Mary Elizabeth Skinkle, Defendant
BEFORE: Justice M. R. Labrosse
COUNSEL: Joseph W.L. Griffiths, Counsel for the Plaintiff No one appearing for the Defendant
HEARD: February 22, 2019
Endorsement
[1] The Plaintiff has commenced a claim for fraud and other relief against his spouse from whom he is separated. The Statement of Claim alleges that the Defendant forged the Plaintiff’s signature on numerous documents including credit cards, a mortgage, lines of credit and insurance documents. The Plaintiff alleges that the Defendant’s fraud has reached a value of $318,235.64 and that his credit rating has been significantly impacted thereby causing him further damage.
[2] The Defendant did not defend the claim and has been requisitioned into default. This hearing was a default proceeding that went ahead in the absence of the Defendant although she was clearly aware of the nature of the Plaintiff’s claims and the risk that she would be noted in default. The evidence shows that the Defendant had retained a lawyer who engaged with the Plaintiff’s lawyer and who was warned of the potential for default proceedings.
[3] It is not my intention to review all of the Plaintiff’s claims in great detail. The Plaintiff testified at the default hearing and provided the Court with the best available evidence relating to the Defendant’s fraudulent actions. The Plaintiff specifically testified to numerous letters that he says were forged by the Defendant and to numerous payments obtained in his name by the Defendant that he said were never received by him. That evidence is uncontradicted. Furthermore, as a result of the Defendant’s default, the allegations in the Statement of Claim are deemed to have been admitted.
[4] While the Plaintiff claims damages of up to $318,235.64, he limited his damages in the default proceedings to those debts and obligations that have either been paid by him to settle third party claims or claims for the lost value in a number of life insurance policies.
[5] I am satisfied that the Plaintiff has proven the following debts in the amount of $58,067.77 incurred by the Defendant for which he has been required to make payments to settle:
− RBC Line of Credit - $10,467.77;
− RBC Mortgage - $25,000.00;
− Scotia Bank - $6,600; and
− Loan from Ruth Malcomson - $16,000.00.
[6] I am also satisfied that without the Plaintiff’s knowledge, the Defendant arranged to obtain the cash surrender value of the following insurance policies in the amount of $55,304.74 and diverted those funds away from the Plaintiff:
-Sunlife (Policy No. R242565-8) - $3,838.88;
-Sunlife (Policy No. R351625-8) - $2,100.71;
-Great West Life (Policy No. 4531843) - $18,227.42;
-Desjardins/Citadel (Policy No. L5587468A) - $20,716.72;
-Metrolife/Sunlife (Policy No. 6794356-6) - $8,851.72;
-Metrolife/Sunlife (Policy No. 7056353-3) - $1,569.29.
[7] I also accept the Plaintiff’s evidence that his insurance policy with Desjardins/Citadel had a cash surrender value of $55,000.00 and that the policy was terminated without his authorization. He therefore lost the full potential of the cash surrender value. I accept his damage claim of $55,000.00 less the amount cashed out above of $20,716.72 (see Desjardins/Citadel (Policy No. L5587468A)) for a remaining damage of $34,283.28.
[8] In addition, I accept the Plaintiff’s evidence that he was required to pay out $6,800 to MBNA related to a debt he did not incur and the loss of a $21,000 RRSP purchased from funds related the Plaintiff’s business in the amount of $21,000.00. While this may be a pre-tax amount, given that the Plaintiff lost any potential increase in value of this RRSP, I conclude that the full amount of the RRSP is indicative of the Plaintiff's loss. This is the best evidence available.
[9] With respect to the claims I have not accepted, I am unable to conclude that the Defendant is liable for spending $50,000 from a joint account she held with the Plaintiff. Firstly, the Plaintiff has no records to substantiate his claim and the evidence is that it was a joint account and thus she would have equal entitlement to those funds. I have also disallowed the claim for $16,000.00 with respect to a GIC. The documentation presented suggests that the GIC may have been in the Defendant’s name and the Plaintiff was not able to provide any contrary evidence.
[10] Finally, the Plaintiff has claimed general damages and damages for defamation resulting from how the Defendant’s fraudulent acts have affected the Plaintiff’s credit rating. The Plaintiff relies on a series of decisions where damages have been awarded in various analogous situations where a person’s credit rating has been negatively affected; see Clark v. Scotiabank, [2004] O.J. No. 2615; Nammo v. TransUnion of Canada Inc., [2010] F.C.J. No. 1; Neil v. Equifax Canada Inc., [2006] S.J. No. 191; Unfasung v. Assouline, [2011] Q.J. No. 4080.
[11] The Statement of Claim has not been defended and as such, the allegations are deemed to have been admitted. The Statement of Claim pleads that the Defendant knowingly made false representations to secure funds for her own financial benefit. Further, she fraudulently obtained a mortgage, secured funds from other bank accounts, credit cards, insurance policies, stock bonds, GIC’s, RRSP’s and other individuals. Finally, as a result of the Defendant’s intentional actions, the Plaintiff has lived with extreme financial pressures, experienced mental anguish, inconvenience and loss of enjoyment of life.
[12] The Plaintiff has claimed general damages in the amount of $100,000 but has not provided specific evidence in support. He relies on the facts pleaded in his Statement of Claim. In consideration of the case law mentioned above, the actions of the Defendant and their effect on the Plaintiff, I accept the pleading that the Plaintiff has suffered mental anguish, inconvenience and loss of enjoyment of life. In addition, his credit rating has been significantly impacted from the Defendant’s actions.
[13] While the Plaintiff could not identify any monetary loss arising from his credit rating being negatively affected, I am of the view that the Plaintiff has demonstrated that the Defendant’s actions have caused an intrusion on the financial integrity that the Plaintiff is entitled to enjoy: see Clark v. Scotiabank at para. 44 and Sobko v. Amex Bank of Canada (2006), 27 B.L.R. (4th) 114 (Ont. S.C.) at para 53. In all the circumstances, I accept the quantification of the damages as proposed by the Plaintiff and I fix those damages at $5,000.00.
Conclusion
[14] For these reasons and those provided orally during this default hearing, the Plaintiff is entitled to judgment against the Defendant in the amount of $180,455.79.
Costs
[15] The Plaintiff has provided his written cost submissions and claims full indemnity costs in the amount of $13,471.89. The Bill of Costs shows reasonable rates and time spent on this matter. Having considered the cost submissions and the relevant provisions of Rule 58, I have considered the appropriateness of awarding costs at the substantial indemnity rate. It is well accepted that substantial indemnity costs are the exception and usually require a triggering event. Often, such event is an Offer to settle and the provisions of Rule 49 are engaged. In these circumstances, the triggering event is clearly the conduct of the Defendant and her fraudulent misrepresentations and deceitful conduct. I conclude that a fair amount of costs to be paid by the Defendant for these proceedings is an award of costs at the substantial indemnity rate in the amount of $11,431.11.
Justice M. Labrosse
Date: 2019/04/12
COURT FILE NO.: 15-65914
DATE: 2019/04/12
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Randy Lorne Skinkle, Plaintiff
AND
Mary Elizabeth Skinkle, Defendant
BEFORE: Justice M. R. Labrosse
COUNSEL: Joseph W.L. Griffiths, Counsel for the Plaintiff
No one appearing for the Defendant
HEARD: February 22, 2019
ENDORSEMENT
Justice M. Labrosse
Released: 2019/04/12