Naseiro v. Creighton (2000), 135 O.A.C. 300 (CA)

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Temp.Cite: [2000] O.A.C. TBEd.AU.035

Marie Carmen Naseiro (plaintiff/respondent) v. Suzanne Condon Creighton and Diane Creighton (defendants/appellants)

(C32124)

Indexed As:Naseiro v. Creighton

Ontario Court of Appeal

Catzman, Doherty and Weiler, JJ.A.

May 9, 2000.

Summary:

The defendants Suzanne Creighton and Diane Creighton operated a tanning salon.Naseiro was a client.An arrangement was reached whereby Naseiro agreed to perform bookkeeping services in exchange for tanning sessions.The defendants alleged that the arrangement was one of straight set-off while Naseiro alleged that the arrangement was that she would charge for her services and deduct her tanning sessions from those charges.Eventually Naseiro delivered an account to the Creightons for her bookkeeping services.She also advised them that until she was paid she was going to keep their bookkeeping records.On the advice of Diane Creighton, Suzanne Creighton went to the police who sent her to a Justice of the Peace where she swore out an Information.Naseiro was charged with theft of business records, breach of trust and extortion.She was arrested and spent three days in jail before arranging bail.Three and a half months later all charges against Naseiro were withdrawn.Naseiro sued the Creightons for breach of contract, false imprisonment and malicious prosecution.

The Ontario Court (General Division), in a decision reported at96 O.T.C. 99, accepted Naseiro's version of the agreement between the parties and awarded her $781 damages for breach of contract.The court also found that Naseiro had established the tort of malicious prosecution and awarded her $25,000 general damages and $5,000 punitive damages.The defendants appealed.

The Ontario Court of Appeal allowed the appeal to the extent of setting aside the award for punitive damages.The appeal was otherwise dismissed.

Damages - Topic 1315

Exemplary or punitive damages - Malicious prosecution - The defendants were found liable for malicious prosecution - The trial judge awarded the plaintiff $25,000 general damages and $5,000 exemplary or punitive damages - The Ontario Court of Appeal set aside the award of punitive damages - There was no basis to grant punitive damages beyond the elements that warranted an award of general damages - The reference to the defendants' failure to apologize provided no support for an award of punitive damages.

Counsel:

Keith Lee-Whiting (Stortini Lee-Whiting), for the defendants/appellants;

Frank I. Liebeck (Niebler, Liebeck, Singer & Associates), for the plaintiff/respondent.

This appeal was heard before Catzman, Doherty and Weiler, JJ.A., of the Ontario Court of Appeal.The following decision of the Court of Appeal was endorsed on the appeal record on May 9, 2000.

[1]By the Court: We did not call upon counsel for the respondent to respond to any issue except the question of punitive damages.We see no appropriate basis upon which the trial judge saw fit to grant punitive damages beyond the elements that warranted an award of general damages for malicious prosecution and the reference to the appellants' failure to apologize provides no support for an award of punitive damages.

[2]The appeal is allowed to the extent that the award of punitive damages is set aside and is otherwise dismissed.Having regard to the division of success, we make no order as to costs.

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