1. Court File No. SC-12-325-00
Ontario Superior Court of Justice
Small Claims Court - Barrie, Ontario
Between
Benjamim A. Zipagang and Myrna N. Belza
Plaintiffs
and
Darryl Peter John Zipagang, aka Darryl Zipagang
Defendant
Paul Dusome, Deputy Judge
Heard: February 1,4,2013 and October 10, 2OL3
Judgment: November 25, 20L3
Counsel:
R. Parker for plaintiff
C. Sereny, paralegal, for defendant
Reasons for judgment
This is a lawsuit by a father against his son for alleged misappropriation of the father's money
when the father was temporarily living with the son. The plaintiff, Benjamin Tipagang
("Benjamin") and the defendant, Darryl Zipagang ("Darryl") are father and son respectively.
The plaintiff Myrna Belza ("Belza") is the common-law spouse of Benjamin, but not the mother
of Darryl or his sister Karen Canlas ("Canlas"). The Claim originally named Canlas as a
defendant, but the action against her was dismissed on consent on July 13,20L2.
The factual background about which there was no dispute is as follows. Benjamin and Belza
lived together in a home in Barrie which they owned together. The home was subject to two
mortgages, a first mortgage to Home Trust, and a second mortgage to Amcourt Homes Lirnited.
Both had income which they used towards their expenses. On October 8, zgLO, Benjamin was
arrested for an assault on Belza, and held for a bail hearing. He was released on bail on
October Lz'n,with Darryl and Canlas as his sureties. Conditions included residingwith Darryl,
non-contact with Belza, and staying away from the home owned with Belza. On November 8,
20L0, Benjamin pleaded guilty to the assault charge, received a conditional discharge order

2. under which, with the written consent of Belza, he would be allowed to contact her and return
to live at home. Benjamin lived with Darryl in Brampton from his release on bail, until he had
obtained Belza's consent to return home on August L7,20Lt.
While Benjamin was living with Darryl, Benjamin opened a new bank account in Brampton on
October 15, 2010 with TD Canada Trust. This account was a joint account with Darryl, with
either Benjamin or Darryl singly having authority to sign on the account transactions. The
address on the accounts was Darryl's home in Brampton. Benjamin closed this account after his
return to his home in Barrie in August 2011.
The Claim alleges that Darryl and Canlas isolated Benjamin from relatives and friends, forced
him to sign a power of attorney and will, and misappropriated money from the new joint bank
account in the amount of 517,359.64 (this amount was revised to Stt,gS+.11 at trial, see
Exhibit !,Tab 11). The Claim also alleges that the defendants used Benjamin's Canadian Tire
MasterCard for their personal use. As a result of these allegedly misappropriated funds, the
plaintiffs allege that their mortgages quickly fell into default due to lack of these funds, that
power of sale proceedings were initiated by Home Trust on March L,IOLL, that they lost their
home in the power of sale proceedings, and that they were able to remain in possession of
their home by entering into a rent-to-own agreement with the purchaser under the power of
sale. The total amount claimed is 52S,000.00.
The Defence disputes the entire Claim, and alleges that: Benjamin was not pressured by the
defendants to make a power of attorney or will, and that Benjamin met with the lawyer on his
own respecting the power of attorney and will; that they did not isolate Benjamin from
relatives and friends (other than putting a call block on Darryl's phone to prevent Benjamin
calling Belza in breach of his conditional discharge conditions); that Benjamin closed the joint
account with Belza on his own; that Darryl reviewed a budget for Benjamin with him several
times, as Benjamin lacked ability to manage his own finances and had gotten into financial
difficulties in the past; that Benjamin opened the new bank account in his name as a senior, and
Darryl was added as a joint account holder at Benjamin's insistence; that Benjamin hired his
own lawyer to deal with the power of sale issue; and that the defendants only used the power
of attorney to gather information, not to change anything.
At the trial, plaintiffs' counsel confirmed that the claim was being advanced not on the basis of
an accounting under the power of attorney, but rather on the basis that Darryl had direct
access to Benjamin's money and had misappropriated it, thereby causing the loss of the money
and the foreseeable loss of the plaintiffs' home by power of sale proceedings. The cause of
action here lies in conversion, as the court identified at the opening of the trial. The elements
of the cause of action are: 1) specific personal property; 2) in which the plaintiff has a
possessory interes! and 3) an intentional and wrongful act by the defendant in relation to the
property which is inconsistent with the plaintiff's right to the property. Intention can be proven
by the act of the defendant taking and using the property as his own.
At the conclusion of the plaintiffs' case, the defendant moved for a non-suit, and elected not to

3. call evidence if the non-suit was not granted.
L. The law
The legal principles applicable to a motion for a non'suit have been set out in the decision in
Ontaria v. Ontario Public Service Employees Union (OPSEU), [L990] O.J. No. 635 (Div. Ct.). The
defendant is required, when making a motion for a non-suit, to elect to call no evidence,
otherwise the motion will not be entertained. The test applicable in a motion for a non-suit
was set out as follows:
...The standard of proof on a non-suit is that of a prima facie case, not a case on the
balance of probabilities. If a primafacie case has been shown a non-suit must not be
granted. It is erroneous to determine a non-suit motion on the basis of the higher onus of
the balance of probabilities. A prima facie case is no more than a case for the defendant
to answer.
"The term non-suit describes the modern practice of the defendant making an
application for judgment at the close of the plaintiffs case on the ground that the
plaintiff has failed to make out a case for the defendant to answer." Williston and
Rolls, "The Conduct of an Action", p. 45. (Butterworths)
"A motion for non-suit in modern practice is made by the defendant, contending
that the trier of fact should not proceed to evaluate the evidence in the normal
woy, but should dismiss the action. The defendant must satisff the trial judge that
the evidence is such that no jury, acting judicially, could find in favour of the
plaintiff. The decision of the judge in both jury and non-jury actions is a decision
on a question of law. Sopinka, "The Trial of an Action", p.124. (Butterworths)"
The "normal way" in a civil action would be on the balance of probabilities. Where a
judge is sitting with a jury, the issue is whether there is some evidence to support the
claim. If there is, the case goes to the jury. If there is none, it does not.
When sitting alone the judge poses the same question. If there is some evidence a
motion for non-suit must be dismissed. If there is none, it must be granted.
In performing this function the judge must lean in favour of the respondent to the
motion. In Hall et al. v. Pemberton (1974).5 O.R. (2il 438 (C.A.) atpp. 438-9,Jessup
J.A. said, for the court,
"The principle which this Court must apply is stated by Lord Penzance in Parfitt
v. Lawless (1872),41 L.J.P. & M.68 at pp.71-2 where he said:
I conceive, therefore, that in judging whether there is any case evidence for a
jury the Judge must weigh the evidence given, must assign what he conceives
to be the most favourable meaning which can reasonably be attributed to any

4. ambiguous statements, and determine on the whole what tendency the
evidence has to establish the issue.
and:
From every fact that is proved, legitimate and reasonable inferences may
of course be drawn, and all that is fairly deducible from the evidence is as
much proved, for the purpose of a prima facie case, as if it had been
proved directly. I conceive, therefore, that in discussing whether there is in
any case evidence to go to the jury, what the Court has to consider is this,
whether, assuming the evidence to be true, and adding to the direct proof
all such inferences of fact as in the exercise of a reasonable intelligence
the jury would be warranted in drawing from it, there is sufficient to
support the issue."
It remains to apply these principles to the evidence provided by the plaintiff to determine if the
non-suit should be granted. lf the non-suit is refused, then the case must be decided on the
basis of the evidence now before the court, without evidence from the defendant. At that
stage, the plaintiff must prove his case on a balance of probabilities based on the evidence.
That is a higher standard than the prima facie case for a non-suit.
2. Evidence of the plaintiffs
The evidence consists of the testimony of both plaintiffs, and various documents filed with the
court as Exhibits 1 (plaintiffs' Exhibit Book), 2 (defendant's Book of Documents), 3 (letter from
Rutman & Rutman to Benjamin, dated November 15, IOLO,4 (revocable consent to
communication by Belza, dated August L7,20LL) and 5 (letter from Family Service of Peel, to
whom it may concern, dated February 5,20L3, confirming Benjamin's completion of a
counsef ling program on May L7,2OLil. The examinations-in-chief of both plaintiffs were briel
and they were the only witnesses for the plaintiffs. The cross-exarninations of both were
lengthy and detailed. For purposes of the non-suit motion, I will review the evidence of the
plaintiffs under several headings, to deal with the various claims made by the plaintiffs in
support of their case.
a. Power of attorney and will
Benjamin testified that Darryl took a power of attorney over his bank account, and took him to
a lawyer to have a power of attorney and will prepared, and to have the joint ownership of
Benjamin's home changed to separate ownerships. As there was no evidence that any of these
steps was involved in the alleged misappropriation of money, and as counsel for the plaintiff
stated that the plaintiff was not claiming an accounting under the power of attorney, these
issues play no role in the claim being advanced, and will not be further considered.

5. b. Misappropriation of money from bank accounts and loss of home
Benjamin testified that when he moved in with Darryt, he had monthty income of about
SZ,8OO.O0 from an OPSEU pension, CPP, OAS and an annuity, and that Darryl charged him
$SOO.OO per month room and board, and gave him 550.00 per week allowance. Benjamin
testified, in response to counsel's question "and thereafter he [Darryl] ran your account did
he?", "He does." Out of Benjamin's income he also had to pay CitiFinancial S++9.O2 a month on
a loan, Canadian Tire MasterCard ("CTC") varying amounts each month, and his share of the
mortgages on the home owned with Belza. The amounts were established with the assistance
of Exhibit 1, Tab LL, a revised breakdown of Benjamin's income and expenses. This docurnent
was not identified by Benjamin (but was later by Belza as having been prepared by her), and
was used by counsel to guide Benjamin through his testimony. Benjamin testified that Darryl
paid the monthly share of the mortgages at first, but failed to do so in March 20LL, and when
questioned by Benjamin, Darryl replied that Benjamin had no money. Benjamin asked Darryl to
pay the mortgage in April, but again was told there was no money. No more mortgage
payments were made after that, Benjamin said in response to counsel's leading question. As a
result, the house was sold under power of sale on November 3,}OLL.
Counsel then turned to expenses, referring to Exhibit 1, Tab 5, being TD Canada Trust
statements and documents relating to Benjamin's bank account 5340. Benjamin testified that
this was the account opened by him, in answer to counsel's question if this was the account
opened by Benjamin and Darryl, then repeated as "is that account he opened for you." Counsel
then reviewed individual expenses on the statements with Benjamin, asking if they were his
expenses. The answers were: for the November 2010 statement, PetroCanada, no; Sobey's,
no; ToysRUs, no; Sarah Lotto, no; that he didn't make any of these transactions and had no
knowledge of them. With respect to the Decernber 20L0 statement, he denied paying for any
of the expenses listed on the statement, and that the only one he had knowledge of was the
CitiFinancial loan payment of 54a9.02.
Benjamin testified that the "Revised breakdown of expenses" at Exhibit 1, Tab 11, showed
Stt,8S+.11 owing to him, and that the balance in account 5340 was 52.34 when he returned to
his home with Belza in August 2011.
With respect to the mortgages on the plaintiffs' home, counsel took Benjamin to Exhibit 1, Tab
9, letter of September 7,lOLL from Home Trust to the plaintiffs setting out the arrears on the
mortgage. Counsel had Benjamin identify the payments shown in the bottom of the box mid-
page as having been made by Belza, and the shortfall on the mortgage being about S1S,OOO.OO.
That concluded the examination-in-chief of Benjamin.
Belza testified on the second day of the trial. Counsel asked if she was the person who handled
the financial affairs of she and Benjamin, and she replied yes. She testified that their money
went into their joint account, Benjamin's OPSEU pension, OAS, CPP and annuity, totalling about
SZ,g0O.O0 per month, as well as her salary with the Board of Education. This was the money
they used to live on. She testified that both owned the house in Barrie, as joint tenants. She

6. had to pay the mortgage when Benjamin was out of the house, but did not have the benefit of
his income in that period. She identified Darryl as getting Benjamin's income during that
period. She stated she paid the mortgage with the help of money coming from Darryl for
Benjamin, but Darryl stopped transferring the money to her account. Counsel then had Belza
identify Exhibit 1, Tab 11 as a document she had prepared. Counsel reviewed with Belza the
particulars of October and November income, expenses, and balance to Benjamin's credit, then
confirmed with her that the balance of income less expenses to Benjamin's credit in August
}OLL was S11,854.11, and that the amount in Benjamin's bank account at August 2011 was
52.34. Belza testified that she had no idea where the money went, as Darryl controlled it.
Counsel moved on to having Belza identify Benjamin's power of attorney (Exhibit 1, Tab 6).
Belza testified that the house was sold under power of sale, no money was received from the
sale, and there was an arrangement to buy the house. Counsel then reviewed with Belza the
TD Canada Trust bank documents at Exhibit 1, Tab 5, and reviewed particular withdrawals and
transactions with her. She testified that she had no knowledge of these transactions and
withdrawals, that Benjamin did not have an ATM card, and that Darryl had made all these
transactions. In response to a question from the court as to how Belza would know these
withdrawals were made by Darryl, Belza testified that Darryl had the access card for the
account, Benjamin did not have an access card. Counsel continued to review further
transactions with Belza, and confirmed that about 5L1,000.00 should have been left in
Benjamin's bank account. Belza then testified to various charges made by the mortgage
company as set out in the documents from Home Trust at Exhibit L, Tab 9. Belza testified as to
the second mortgage being in default, and being paid from the power of sale proceeds. Belza
further testified that she did not know what Darryl was doing with Benjamin's money, as Darryl
was preventing her from communicating with Benjamin, and that she went to court to allow
Benjamin to communicate with her (but without identifying when).
c. Misuse of credit card
The plaintiffs' Claim, "Plaintiff No. 1Statemert...", paragraph e. on the second page, makes a
claim that the defendants used Benjamin's CTC credit card for their own use. There was no
direct evidence to support this claim. The only evidence was that the CTC amounts shown as an
expense of Benjamin in the plaintiffs' "Revised breakdown of income and expenses..." in Exhibit
1, Tab 11. In response to a question about what the CTC MasterCard payments were for,
Benjamin testified that it was to pay the lawyer, meaning the lawyer who prepared the power
of attorney. There is no other testimony about the CTC charges.
3. Ruling on the non-suit motion
The test for determining the motion is, as set out on pages 3 and 4 above,
In performing this function the judge must lean in favour of the respondent to the motion...
...assuming the evidence to be true, and adding to the direct proof all such inferences of fact
as in the exercise of a reasonable intelligence the jury would be warranted in drawing from it,

7. there is suffrcient to support the issue.
The plaintiffs' evidence here is quite thin. On the claim of the personal use of the CTC
MasterCard, it is non-existent, so that that part of the Claim must be dismissed on the non-suit.
With respect to the claim of misappropriation of funds from Benjamin's joint account with
Darryl, there is some evidence but it must be examined to determine if it does raise a prima
facie case. The cause of action in conversion requires evidence of: 1) specific personal
property;2lin which the plaintiff has a possessory interest; and 3) an intentional and wrongful
act by the defendant in relation to the property which is inconsistent with the plaintiff's right to
the property, with intention being provable by the act of the defendant taking and using the
property as his own. Elements 1) and 2) are clear on Benjamin's evidence, that the money in
the joint account with Darryl was Benjamin's money, and that Benjamin had a possessory
interest, using it to pay his personal expenses. The difficulty arises from the third element,
requiring evidence that Darryl used the money in the joint account for his own purposes.
The key parts of the plaintiffs' evidence in support of the misappropriation are the following:
a) The joint bank account with Darryl and Benjamin, opened October 15, 2010.
b) Benjamin's testimony that Darryl ran the account for Benjamin.
c) Belza's testimony that she handled the finances for herself and Benjamin.
d) Benjamin's testimony that he did not make the withdrawals and could not identify many
of the withdrawals on the bank statements for the joint account, apart from the
CitiFinancial loan payment.
e) Benjamin's testimony that Darryl was to pay the mortgage payments for the plaintiffs'
home out of this joint account, did not do so in March, and that Darryl said in response
to Benjamin's question about that non-payment, that Benjamin had no money.
f) Benjamin's testimony that he had 52.34 in this joint bank account when he left Darryl's
home.
g) Belza's identification of the "Revised breakdown", Exhibit 1, Tab 11, as a document that
she prepared, and that the document shows that Benjamin should have had in the joint
bank account the sum of $L1,85 4.1t.
h) The evidence that the plaintiffs' home was lost in power of sale proceedings due to non-
payment of the mortgage, which non-payment started in February 20LL.
Assuming that evidence to be true, have the plaintiffs made out a prima facie case that Darryl
used money from the joint account for his own purposes? The evidence tending to support the
claim that Darryl had access to the money is that Darryl was named on the joint account with
signing authority, that he "ran the account" (which is consistent with Belza's testimony that she
handled the finances for herself and Benjamin), withdrawals Benjamin could not identify, and
Darryl saying in March that Benjamin had no more money. Evidence tending to support the
claim that Darryl used Benjamin's money for his own purposes is the unidentified withdrawals
from the joint account, the closing balance of SZ.E4 and the non-payment of the mortgage, and
the "Revised breakdown" document prepared by Belza showing a shortfall in Benjamin's funds

8. of 511,85 4.LL. While the evidence presented was brief, confusing at times, often very general
or conclusory, and did not provide other than, at best, circumstantial evidence that Darryl took
any money for his personal use, I find, leaning in favour of the plaintiff, that there is a prirna
facie case made out. As a result the non-suit will not be granted respecting the alleged
misappropriation of money and the loss of the plaintiffs' home.
4. Ruling on the merits of the plaintiffs' case
The plaintiffs having passed the prima facie case hurdle, I must consider whether they have
persuaded me, on a balance of probabilities, of their case. In the previous stage involving the
prima facie case, I assumed that the plaintiffs' evidence was true and leaned in their favour. At
this stage, I must view their evidence critically, taking into account the cross-examination
conducted by Ms. Sereny, and my own review of the testimony and documents.
In cross-examination, it became clear that the plaintiffs had been in default of the mortgage on
their home in 2009, and as a result switched to the mortgages with Home Trust and Amcourt in
August 2009. Exhibit 2, Tab 7 consists primarily of bank statements for a joint account 6841
held by the plaintiffs with TD Canada Trust. Darryl became a joint account holder from
November L2,}OLO until the account was closed on November L6,}OLO. Benjamin explained
that he closed that account as he did not want Belza to have access to his money. The
statements show a mortgage paymentto First National on February2,2009 in the amount of
$2,0SS.96. There is no further mortgage payment to First National, and the next identifiable
mortgage payments are to Home Trust on August 4,2009 for 51,968.64 and to Amcourt on
August L7,2OOg for $ggO.OO. Benjamin could not answer the question about the lack of
mortgage payments coming out of the account in that period, other than that Belza handled
the mortgage payments. In the interval there were two bank drafts for 59,500.00 on June 23'd
and for 5g,gZg.g3 on June 30th. Benjamin could not identify what these drafts were for. The
CitiFinancial loan first shows in the bank statements on August 4,2OO9 as a withdrawal of
5+gf.O0. Benjamin testified that that loan was for $15,000.00 to bring the mortgage out of
arrears. Benjamin agreed that the total of the two new mortgages and the CitiFinancial loan
payment came to about 52,800.00 per month, that his income was about 52,900.00 per month,
and that extra expenses would put him in a deficit position.
Benjamin testified in chief that he discussed the Home Trust power of sale notice with Darryl in
March 20t0, and received Darryl's answer that Benjamin had no money. In cross-examination,
in response to a direct question about whether he discussed the power of sale notice with
either of his children, he answered "no", and testified that when he left Darryl's home to return
to Barrie, he told Darryl he was returning to Barrie because the home was in trouble. This
testimony flatly contradicts his testimony in chief about discussing the issue with Darryl in
March. In cross-examination immediately following his "no" answer above, Benjamin testified
about hiring a lawyer in March to deal with the mortgage arrears issue, as Darryl had told him
to do so, and then states that Darryl had told Benjamin he had no money. This inconsistency
undercuts Benja min's credi bility.

9. In cross-examination respecting the purchase-option agreement with the new owner of the
pf aintiffs' home, after the sale under the power of sale on November 3, zltt, Benjamin's
testimony did not make economic sense. The two existing mortgages on their home were
about SZSS,OOO.OO. The monthly mortgage payments were |Z,Eqg.Aq. Under the purchase-
option agreement, the plaintiffs paid a S1S,OOO.0O deposit on signing the agreement on
October 14,201,U the purchase price of the home was to be 53+2,000.00; closing was to be on
October 3L,20t3, on 90 days written notice by the plaintiffs; the notice was given. A collateral
tenancy agreement required a monthly rent of 52,750.00, with the plaintiffs responsible for
paying all utilities. As of September 7,201L, the amount required to redeem the Home Trust
mortgage was |tS,Oll.OZ. Benjamin testified that they could not afford the existing mortgages
or pay the 5L5,077.62 to Home Trust. lt does not make sense that the plaintiffs would pay a
non-refundable option deposit of 5tS,000.00 and pay S+OO.OO more a month for rent than for
the existing mortgages, lose their home, and hope to buy it back in two years, but with higher
mortgages. This too impairs their credibility, and calls into question their ability to handle their
financial affairs.
ln cross, Benjamin identified the "Revised breakdown" in Exhibit 1, Tab 11 as accurate, then
identified it as prepared by Belza, then said he didn't know if the document was prepared by
Belza for them. Ms. Sereny had Benjamin identify the expenses for November in the "Revised
breakdown", then obtained his admission that the two mortgage payments in November were
not listed, so that the statement was not accurate. She obtained further admissions that sums
were paid to Belza in December, January and February, possibly for the mortgages. Ms. Sereny
also obtained an admission that Benjamin's 5405.00 fee to participate in the PARS program
(which was a condition of his conditional discharge from the assault conviction), which he paid
at 5100.00 per month, is not show in the "Revised breakdown". Ms. Sereny then obtained an
admission that the "Revised breakdown" was not accurate as to all expenses.
In response to a question from the court how Benjamin knew Darryl was taking money from
Benjamin's account, Benjamin said he never had a card for the account, then later said he did
not have his card with him. Then later near the end of the cross-examination, Benjamin
testified that he withdrew $35.00 cash on August 16, 20LL, when he had left Benjamin's home
to return to Barrie. A letter from the bank dated January 9,20L3, confirms the withdrawal
having been made "using a TD Canada Trust debit card ending in 8834." That confirms that
Benjamin did have the card for accessing the account. Belza in her testimony claimed that
Benjamin did not have a debit card for this joint bank account. When cross-examined as to how
she knew that Darryl made the withdrawals from the account, she replied that only Darryl had a
card. Ms. Sereny reviewed with Belza the TD Canada Trust "Personal Assessment" at Exhibit 2,
Tab 5, and obtained admissions that the access card was issued to the owner, Benjamin. When
asked how she could ascribe the withdrawals to Darryl, Belza responded that when Benjarnin
returned to her, he had nothing, no debit card, just $2.34. That is directly contradicted by the
evidence that Benjamin used his card to withdraw 535.00 from the account, which withdrawal
left a balance of S2.3+.
At the close of the first day of trial, the court addressed the thin evidence presented to that

10. point, the challenge to the evidence raised in cross-examination, and the paucity of detailed
evidence to support the plaintiffs' claim of misappropriation. The court suggested that the
plaintiff produce a detailed calculation of the 525,000.00 damages claimed, provide it to the
defence 30 days prior to the return date, and the defence provide any responding material 15
days prior to the return date. At the beginning of the second day of trial, plaintiffs' counsel
provided Ms. Sereny with a new document at the beginning of the court day. She objected to
its admission, as providing nothing new over what was already filed as Exhibit 1, and only
having been provided that day with no chance to review and respond. Plaintiff's counsel
countered that she had had the document for three hours before the trial re-commenced. I
did not permit the document to be filed, as it appeared not to be helpful, and not to have been
provided in advance.
Belza confirmed that she earned 54,000.00 per month from her employment as a teacher with
the school board, that this was her sole source of income, and that she had a separate bank
account for her income. That contradicted her earlier testimony that both her and Benjamin's
incomes were deposited into their joint bank account.
Belza does not have direct, personal knowledge of the operation of the joint bankaccountwith
Darryl from the time it was opened, until it was closed, as Benjamin was living with Darryl in
Brampton and communication between the plaintiffs was quite restricted under the conditions
imposed by the bail and by the conditional discharge. In cross-examination, Belza, in response
to a question whether she had direct knowledge of Canlas taking money from Benjamin's bank
account, replied that Darryl and Canlas were looking after Benjamin, and she generalized that
Darryl and Canlas took the money. She confirmed, to separate questions from Ms. Sereny and
the court, the comment that she had generalized it, that Darryl and Karen took the money.
There are a number of problems with the ptaintiffs' "Breakdown of expenses" documents.
There is one attached to the Claim, showing a shortfall of 517,359.64. A revised version was
fifed as Exhibit 1, Tab 11, showing a shortfall of 511,854.LL. That reduction does not instill
confidence in the calculations of the plaintiffs. The evidence in support of the claimed shortfall
was, in a nutshell, that Darryl controlled the bank account, Benjamin's income was deposited
into the account, less his expenses (and the only expenses listed in the "Breakdown" were
board and lodging, allowance, CitiFinancial loan payment, CTC payments, some legal bills, and
life insurance), leaves a balance in favour of Benjamin of Stt,8S4.LL, and the closing balance of
the account was 52.34, therefore Darryl took the amount of the shortfall. The document fails
to account for mortgage payments that Benjamin contributed in November (52,348.641,
December (S1,180.00), January (S1,L75.00) and February (S1,175.00) according to the bank
statements, though while Benjamin confirmed these monies from December onward were
transferred to Belza, he was not sure if they were for the mortgages. The docurnent also fails to
account for four monthly instalments of 5100.00 for the PARS program, or for Benjamin's
admitted withdrawal of Sf S.OO on the day the account was closed. Those omissions from a
statement that both plaintiffs testified is accurate simply undermine their credibility.
Deducting the total of the above amounts omitted from the "Breakdown", totalling $5,313.64,
from the S1L,854.11 claimed misappropriation leaves a balance of 55,5 4A.47.
l-0

11. A further difficulty with the "Breakdown of expenses" is the income side of the equation. The
document only shows four recurring pension and annuity payments for each of the months
from November 2010 to July 20t7. Benjamin identified these as his only income. This totally
overlooks that according to the statements for the joint bank account held by Benjamin and
Darryl, there are in addition to the recurring pension and annuity deposits, additional deposits
made almost every month for that period, in the approximate amounts of $t,780.00 in
December ZOLO, 51,185.00 in Janu ary,ZALL, 51,300.00 in February, $2,425.00 in March,
S+zs.oo in April, St,000.00 in May, 5650.00 in June, $120.00 in July and 5360.00 in August.
Those additional deposits total approximately 59,2q5.00. These deposits are more than the
alleged misappropriation balance of 55,549.47 noted in the preceding paragraph. The plaintiffs
provided no evidence on these deposits, and their omission of these deposits from the "Revised
breakdown of expenses" further impairs their credibility. The plaintiffs had an obligation to
account for those additional deposits, or to explain why those deposits should not be used in
calculating the alleged misappropriation. In the absence of such an explanation, I can make an
adverse inference that the amounts should have been applied to reduce the alleged
misappropriation to zero.
I am not satisfied that the plaintiffs have proven their case for conversion of money by Darryl
on the balance of probabilities, for the following reasons:
The credibility of both plaintiffs is undermined by the inconsistencies in their testirnony,
outlined in this section of the reasons, by their having run into financial difficulties in
2009, with no involvement from Darryl at that time, and by the clearly deficient
"Revised breakdown of expenses" document prepared by Belza.
Their evidence that Darryl took the money, let alone took it for his own purposes, falls
well below proof on a balance of probabilities, resting on Belza's generalizations that
Darryl had access, therefore took the money for himself, resting on Benjamin's inability
to identify transactions on the bank statements from which he concludes that they were
not his transactions, when Benjamin admits he leaves financial matters to others, and
admits that he had a bank card and used it to withdraw SSS.OO when he closed the
account, so that he could have withdrawn money from the account at any time, and
resting on a clearly deficient "Revised breakdown of expenses" document that omits
both income and expenses, but which both plaintiffs initially claimed was accurate, but
had to recant under cross-examination.
The amount claimed to have been misappropriated in the "Revised breakdown of
expenses" is reduced by omitted expenses, then the remaining balance is more than
covered by omitted deposits into the joint bank account of Benjamin and Darryl. No
evidence was presented as to the source or reason for these deposits. The omitted
expenses and deposits wipe out the amount of the alleged misappropriation,
Nor am I satisfied that the plaintiffs have proven their case for the loss of the home in Barrie on
a balance of probabilities. The basis of this claim is that it is a reasonably foreseeable
consequence of the alleged misappropriation by Darryl by means of the tort of conversion.
a)
b)
c)
11

12. First, having failed to prove the conversion, the claim cannot succeed. Secondly, even if the
misappropriation had been proven, the evidence was that Belza had a monthly income of
S+,ooo.o0, which would have covered the monthly mortgage payments of S2,3 48.64 with
money for living expenses left over. The loss of the home could have been prevented by Belza
maintaining the mortgage payments, and thus the plaintiffs would have failed to mitigate,
thereby providing a defence to their claim.
In conclusion, the plaintiffs have not proven any of their claims, and the action must be
dismissed.
5. Order
Action dismissed. The trial date scheduled for June 26,20L4 is vacated.
The parties may make written submissions on costs, defendant within 30 days, and plaintiffs
within 15 days after their receipt of the defendant's submissions.
Paul Dusome, Deputy Judge
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