



COURT OF APPEAL FOR ONTARIO

CITATION: Nicholson v. Gemnay, 2017 ONCA 187

DATE: 20170302

DOCKET: C62274

LaForme, Pepall and Pardu JJ.A.

BETWEEN

Annette
    Nicholson,

by her
    Litigation Guardian Deborah McBride

Plaintiff (Respondent)

and

Roger Gemnay

Defendant (Appellant)

Melissa MacKewn and Clarke Tedesco, for the appellant

Dennis Crawford and Jared M. Gillespie, for the
    respondent

Heard: February 24, 2017

On appeal from the judgment of Justice James W. Sloan of
    the Superior Court of Justice, dated June 13, 2016.

ENDORSEMENT

[1]

The appellant appeals from an award of US$192,000 plus pre-judgment
    interest, punitive damages of $25,000, and costs of $85,000 in favour of the
    respondent in this case of civil fraud.  At the conclusion of oral argument, we
    dismissed the appeal with reasons to follow. These are those reasons.

[2]

The appellant advanced two arguments.

[3]

First, he submits that the trial judges reasons were insufficient.

[4]

The outcome of the case turned on credibility.  The trial judge noted
    that the appellants evidence on virtually every fact testified to by the
    respondent was diametrically opposed to hers.

[5]

The respondent was a recent widow with a grade eight education and two
    young children.  The appellant had been a friend of her late husband. The
    respondent gave the appellant US$100,000 and then another US$100,000 shortly
    afterwards.  She testified that it was her understanding that this money was
    not to be used for trading and that the respondent promised he would not do
    anything to jeopardize the funds.  The respondent then proceeded to invest the
    funds in call options using his personal accounts.  Shortly afterwards, the
    funds were lost.

[6]

The trial judge preferred the evidence of the respondent to that of the
    appellant and concluded that the appellant took advantage of the respondent
    essentially to get at her money so that he could trade it in his online options
    account.  He also found that the respondent was responsible for the appellants
    losses.  Of the US$200,000, the appellant repaid US$8,000 to the respondent,
    leaving a total amount due of US$192,000.

[7]

Reasons may be less than ideal but still meet the requirements for
    sufficiency of reasons.  Read as a whole and in the context of the record, the trial
    judges reasons set out what was decided and why the decision was made.  See
R.
    v. R.E.M
., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 16 and 17.  Moreover,
    the reasons permit effective appellate review.

[8]

The appellant submits that the trial judge erred by failing to find that
    the respondent was aware that the US$200,000 transferred to the appellant was
    being traded.

[9]

We disagree.  The record supported the judgment granted based on the respondents
    pleading of fraud.  The record did not support a finding of consent or
    acquiescence.  In any event, the appellant pled that the respondent effected
    the transactions or directed the appellant in that regard.  Read as a whole, it
    is clear that the trial judge concluded that defence was not made out.

[10]

Lastly, the trial judge found that the appellant preyed on the
    distraught, very trusting, naïve and vulnerable widow.  He concluded that the
    appellants conduct was highly reprehensible and departed to a marked degree
    from the ordinary standards of decent behaviour.  We see no reason to interfere
    with the trial judges award of $25,000 in punitive damages.

[11]

The appeal is dismissed with costs payable by the appellant in the
    agreed amount of $20,000 inclusive of disbursements and applicable taxes.

"H.S. LaForme
    J.A."

"S.E. Pepall J.A."

"G. Pardu J.A."


