Mohtadi v. Canada Trust

2002BCCA0562 Citation: Mohtadi v. Canada Trust Company Date: 20021009 2002 BCCA 562 Docket: CA028531 Registry: Vancouver COURT OF APPEAL FOR BRITISH COLUMBIA ORAL REASONS FOR JUDGMENT Before: The Honourable Chief Justice Finch October 9, 2002 The Honourable Mr. Justice Lambert The Honourable Mr. Justice Hollinrake Vancouver, B.C. BETWEEN: MINOO MOHTADI RESPONDENT (PLAINTIFF) AND: THE CANADA TRUST COMPANY APPELLANT (DEFENDANT) M.J. Steven appearing for the Appellant H. Rubin appearing for the Respondent [1] HOLLINRAKE, J.A.: This is an appeal from an order of a Supreme Court Judge sitting with a jury, wherein the appellant was ordered to pay $500 nominal damages, $5,000 aggravated damages and $15,000 punitive damages for the conversion of Ms. Mohtadi's property by the wrongful drilling of her safety deposit box. [2] Here are the facts. Ms. Mohtadi contracted with the Kerrisdale branch of Canada Trust to rent a safe deposit box in 1986. In 1988 she signed a new agreement for the rental of this box. That agreement provided, in part: If the renter shall not renew such renting and shall fail to give up possession of the Safe Compartment, or if the contract shall become forfeited for any reason whatsoever, the Company shall have the right at the expiry of fifteen days after mailing notice of its intended action , or after direct services thereof, to forcibly open the Safe Compartment [3] Canada Trust billed annually for rental of its safety deposit boxes and it sends out delinquency notices from its London, Ontario office. The administration of the safety deposit box rentals is maintained by the Calgary office, which advises Canada Trust branch operations of overdue payments and boxes that are to be drilled. [4] In May of 1993, Canada Trust sent a letter to Ms. Mohtadi advising her that the rent from 1993 was overdue. The letter requested that she inform Canada Trust if she wished to have the rent automatically debited from her Canada Trust account. In that same month Ms. Mohtadi advised Canada Trust in writing that she had already paid the 1993 rent and that in the future Canada Trust could automatically debit her account or send a bill to her address. At that particular moment in time, she did not have a Canada Trust account. In August of 1994, there was a Canada Trust internal letter documenting problems in the administration of the safe deposit boxes. Customers who had paid could receive an overdue letter because their files were never updated on the system. [5] In August of 1996, Canada Trust sent a notice to Ms. Mohtadi to renew the safety deposit box. The notice, to be returned with payment, was marked with a handwritten note from Ms. Mohtadi instructing Canada Trust to debit her account. In that same month she opened an account and deposited sufficient monies to pay the safety deposit box rental fee. In September 1996, the safety deposit box was drilled and the contents were removed by Canada Trust. The records of Canada Trust indicated erroneously that the last payment was received from Ms. Mohtadi on June 11, 1992. At most the arrears covered half of 1996, a fee of $16 and the Mohtadi account had $147 in it. [6] Mr. Murdoch, the manager of the Kerrisdale branch, did not receive copies of any of the documentation in support of the drilling. Neither the Calgary nor the London, Ontario offices kept copies of billing sent out by them. Canada Trust was unaware of whether Ms. Mohtadi received any notices required by its administrative policy. [7] Some time in September Ms. Mohtadi was denied access to the safety deposit box. Canada Trust employees were unable to explain the reason why her key did not work. [8] This action was started on June 13, 1997 claiming damages for wrongful interference with the contents of the safety deposit box and the items she alleged had been removed from it. It was not until after the trial that the items in the box were returned to Ms. Mohtadi. [9] The jury found that Canada Trust had wrongfully interfered with Ms. Mohtadi's right to possession of the contents of the safety deposit box and that she suffered no damage for the loss of the diamond necklace or bracelets which she had claimed were in the safety deposit box. An award was made of nominal damages of $500, $5,000 for aggravated damages and $15,000 for punitive damages. [10] After the jury verdict came in, counsel for Canada Trust made a motion to deny, by way of judgment, the award for aggravated and punitive damages. The trial judge dismissed this motion and judgment was entered in accordance with the verdict of the jury. [11] The issues in this appeal are the awards of aggravated and punitive damages. [12] The position of the appellant is that there is no evidentiary base to justify these awards as a matter of principle. It is significant that the appellant did not object to the issues of aggravated and punitive damages being left with the jury. In fact, we are told that counsel at trial agreed to the very questions that were put to the jury on these two issues. [13] I am going to reproduce now what the trial judge charged the jury as to the facts on the issues of these damages: As I understand it, counsel for the plaintiff contends that the agreement for rental of the safety deposit box in 1986 gave the company the right to open the safety deposit box only after they had given notice, and that you should have no trouble finding that no notice was sent to the plaintiff in this case that the defendant was going to drill. The bank was also completely erroneous to think that payments had not been made, and counsel went through the 1992, 1993, 1994 and 1995 payments which were all acknowledged and not disputed to have been made. The 1993 payment authorized a debit of the account and the plaintiff's counsel suggested that that authorization was never revoked. The 1996 payment revolves around the August 6th, '96 date stamp on Exhibit 5, and the plaintiff's counsel said that the theory that the fees that were paid did not match the date stamp simply doesn't hold up when you look at the documents of payment for prior years, which clearly indicate that the memory of Mr. Murdoch is not accurate and there is no reason to assume that a 1996 payment was not made. Tab 11 is the bottom portion of the document which the plaintiff said she took to the bank and authorized the bank to debit her account. There is then tab 22, evidence of the opening of an account on August 13th with $40 to cover safety deposit box costs. Counsel said it was important for you to remember that there was money in the account at all times to cover the payment during the relevant period in 1996. Plaintiff asks you to conclude that the bank was callously wrong in drilling the safety deposit box. They were out of control on safety deposit box payments, recording the payments. They were four years behind on the records of this customer. The company had told its branches to tell customers that they were sorry. There was no apology here, and counsel asks you to consider that fact in aggravated and punitive damages and the fact that the trust company never even let her see the contents of the box until 1998. The plaintiff asks you what happened to the cash form payment for the safety deposit boxes. The receipts for cash indicated cash was paid. Counsel said employees do steal. And also consider that the bank manager was never asked for the exercise of his discretion as to whether to drill or not in this case. All of which indicates a callous disregard of customer rights. [14] I now reproduce what the jury was told as to the principles of aggravated and punitive damages: Aggravated damages can be awarded in addition to compensatory damages and punitive damages. Aggravated damages can be awarded as extra compensation to the plaintiff for injury to her feelings, dignity, pride, self-respect, especially where the injury done to her was increased by the manner in which the defendant acted. These damages are not as punishment, but are given for circumstances that have peculiarly aggravated the case. If you believe that the plaintiff suffered hurt feelings, indignity, hurt pride, loss of respect, you may award her aggravated damages in addition to any other damages that you decide. With respect to punitive damages, if you find that the defendant is responsible for the damage allegedly suffered by the plaintiff, you may then consider whether to award additional damages against the defendant in order to punish the company, to prevent unjust enrichment, or to set an example that will deter others. These are known as punitive or exemplary damages. You may award punitive damages if the wrongful acts of the defendant towards the plaintiff were outrageous or reprehensible and offensive to the ordinary standards of decent conduct in the community. The type of conduct that may justify an award of punitive damages includes conduct which is malicious, vindictive or harsh, or which indicates a contempt for the plaintiff's rights. If you decide to award punitive damages, you should award a sum which will deter others or punish the defendant. The award must be large enough to be meaningful and effective, but it should not be more than necessary. [15] There was evidence that the plaintiff was angry and upset about what had transpired between her and the Canada Trust Company with respect to the safety deposit box. [16] The award for aggravated damages is a modest one, and on the facts of this case I cannot say there is no evidentiary basis for this award. Presumably, that is what counsel for the Canada Trust Company thought inasmuch as he did not object to this question being left to the jury. [17] On the issue of punitive damage, the focus is not on loss to the plaintiff, but rather on the misconduct asserted on the part of the defendant. I think there was evidence before the jury as to the conduct of the defendant throughout the history of this case sufficient to justify an award under this head. That award was a modest one and, in my opinion, was in terms of amount in keeping with the facts of the appellant's conduct throughout and the purpose of an award of punitive damages. While it may be that there is no one fact isolated from the totality of all of the facts that by itself meets the legal test for an award of punitive damages, I think cumulatively the facts in this case left it open to the jury to make a modest award under this head as it did. [18] In my opinion, it cannot be said, as it must, that this award of $15,000 is wholly out of proportion with any of the wrongful acts of the defendant when taken cumulatively and not deserving of punishment or censure. To put it another way, this award cannot be said to be a wholly erroneous one. [19] I would dismiss the appeal. [20] FINCH, C.J.B.C.: I agree. [21] LAMBERT, J.A.: I agree. [22] FINCH, C.J.B.C.: The appeal is dismissed. "The Honourable Mr. Justice Hollinrake"