Court File and Parties

COURT FILE NO.: CV-22-00690351-0000 DATE: 20230328 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AMERESCO CANADA INC., Plaintiff AND: BERNARD CHRISTOPHER, Defendant

BEFORE: Justice Gertrude Speigel

COUNSEL: Miranda Spence and Josh Suttner, for the Plaintiff

HEARD: March 27, 2023

Endorsement

[1] The plaintiff moves for default judgment. The statement of claim has been served. The defendant filed no defence and was noted in default. The defendant is therefore deemed to have admitted the allegations contained in the statement of claim. The motion for judgment was served on the defendant by email and courier at addresses that the defendant used as shown in the correspondence that was part of the motion record. It was also served in accordance with the order for substituted service of Associate Justice Brott dated January 5, 2023 (albeit by courier rather than by regular mail).

[2] The defendant defrauded the plaintiff of $911,528.44. Fortunately, the plaintiff was able to secure $764,613.45 still being held in the defendant's accounts at The Toronto-Dominion Bank. The plaintiff claims, and is entitled, to pre-judgment interest to February 7, 2023 and post-judgment interest thereafter. Judgment shall be issued for these claims.

[3] The defendant somehow managed to gain access to the Outlook or other email program of either the plaintiff or its supplier. He watched the correspondence and then pounced. When it came time for the plaintiff to pay for services that its supplier had rendered, the defendant, though a very similar but false email address, inserted himself into the email conversation as if he were the supplier. He then directed the plaintiff to wire payment for the invoices to his account at The Toronto-Dominion Bank (which, of course, was not the supplier's account). The plaintiff, who should have confirmed the wire instructions orally, but did not, complied with the instructions. The plaintiff discovered the fraud when the supplier enquired about payment, which it had not received.

[4] The defendant engaged in cyber fraud. This type of fraud is even worse than other methods of fraud because it causes businesses to spend a great deal of money in (sometimes vain) attempts at thwarting the fraudsters and, worse yet, it does not allow businesses to deal with communication in the normal course; what is believed to be true is, because of the fraudsters, not true. This lack of assurance in our communications systems makes businesses become inefficient and adversely affect our economy. The defendant's fraud was not just a fraud on the defendant, it was a fraud on all of us.

[5] The statement of claim claimed $100,000 in punitive damages. Notwithstanding counsel's submissions for a greater amount to be awarded, I cannot exceed the amount claimed. In any case, I award punitive damages of $90,000. It is approximately 60% of the plaintiff's damages after mitigation and approximately 10% of the amount actually stolen before recovery. This amount is high to act as a disincentive to fraudsters. Simply ordering a fraudster to return his ill-gotten gains is not nearly a sufficient disincentive to forestall future cyber fraud.

[6] Most of the costs that the plaintiff has claimed deal with work done to obtain the various orders (e.g., freezing orders, amending the statement of claim, substituted service, etc.) preceding this judgment. Unfortunately, the orders themselves either stated that no costs would be awarded or were silent as to costs. I cannot order costs for the work to obtain these orders. After considering counsel's subsequent submissions, the plaintiff's costs to make subsequent submissions, and my award of punitive damages, costs are fixed at $6,000, including disbursements and HST.

Justice Gertrude Speigel Date: March 28, 2023