Demsky v. Tay, 2019 BCPC 362

Citation: Demsky v. Tay 2019 BCPC 362 Date: 20191217 File No: 1759189 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: MONICA DEMSKY CLAIMANT AND: MATTHEW TAY CHRIS TAY ESTATE OF MARGARET MARY ANNE TAY ESTATE OF ROBBERT DIEDERICH DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. BAKAN

Appearing on her own behalf: M. Demsky Appearing for the Defendants: C. Tay Place of Hearing: Vancouver , B.C. Dates of Hearing: November 26 and 27, 2019 Date of Judgment: December 17, 2019 [ 1 ] The claimant, Monica Demsky (“Ms. Demsky”), filed this action against the defendants, Matthew Tay, Chris Tay, the Estate of Mary Margaret Anne Tay, the Estate of Robbert Diederich, and the Bank of Nova Scotia (“BNS”) in the British Columbia Supreme Court on February 27, 2015. [ 2 ] Matthew Tay and Mary Margaret Anne Tay, deceased, were married and are the parents of Ms. Demsky and Chris Tay.

Robert Diederich, deceased, is a relative of the individual parties. These parties were joint-co-tenants of Safety Deposit Box #711 at Oarkridge Branch of the BNS (the “SDB”) in Vancouver, B.C. at various times relevant to this action. [ 3 ] By way of a Consent Order made July 18, 2017, by Associate Chief Justice Cullen, the proceedings were transferred to this Court further to s. 15 of the Supreme Court Act , RSBC 1996, c. 443 . [ 4 ] This order limited Ms. Demsky’s claim to $35,000 CAD pursuant to the Small Claims Rules.

It further permitted Chris Tay to act as a representative of the defendant Matthew Tay. [ 5 ] On November 9, 2018, the claimant withdrew her claim against BNS. She testified she received $15,000 from the bank with no admission of liability and in consideration of her ending litigation relating to this matter against the BNS. [ 6 ] Ms.

Demsky alleges that without her knowledge and consent, her brother, Chris Tay, was added as a joint tenant of the SDB and that Chris Tay or Matthew Tay removed or converted, without her consent or knowledge, six bags containing her jewelry, coins and gold bars that she submits are worth over $100,000. [ 7 ] The defendants Matthew Tay, Chris Tay, the Estate of Margaret Mary Anne Tay and the Estate of Robbert Diederich filed a Response denying the allegations against them. [ 8 ] They deny removing any items belonging to the claimant and submit she has not established she had the jewelry alleged in the SDB.

In their Response, they state they are prepared to give the claimant items in the SDB that she can demonstrate are hers. [ 9 ] At trial, Chris Tay and Matthew Tay maintained a denial of the allegations against all remaining defendants. [ 10 ] The claimant seeks: 1. access to the SDB and a viewing of its contents; 2. removal of Chris Tay as a joint tenant of the SDB; and 3. the defendants return her jewelry and other valuable items or in the alternative damages for their loss. ISSUES 1. Has the claimant established on a balance of probabilities:

a) That she owned the items in the list she made on November 19, 2018 (Ex. 1);

b) That if she did own the items listed above, they were in the SDB #711 as she alleges;

c) If the listed items, or any of them, were in the SDB, that they were removed without her consent or knowledge? (

i) If so, were her items removed without her knowledge, consent or authority by the defendants or anyone on their behalf? (ii) If so, what is the value of items removed? [ 11 ] Ms. Demsky must establish the above on a balance of probabilities to get to the next issue. If she does not, the claim fails. 2. If the claimant establishes that the defendants or anyone on their behalf, removed her property without her knowledge or consent, what damages is she owed and by whom?

a) What other relief or remedy is she entitled to, if any? WITNESSES [ 12 ] The claimant called her boyfriend, Michael Flanagan, as a witness and testified on her own behalf. [ 13 ] Chris Tay and Matthew Tay testified on their own behalf. [ 14 ] No one from the former party, Bank of Nova Scotia, was called to testify at the trial. BACKGROUND INFORMATION

[ 15 ] This is one of several actions the Ms. Demsky, has brought against family members. [ 16 ] Ms. Demsky is estranged from her brother, Chris Tay, and her father, Matthew Tay. The reason for the estrangement is unknown but matters came to a head on December 25, 2011. [ 17 ] Ms. Demsky and Chris Tay are the only children of Matthew and Mary Margaret Anne Tay. [ 18 ] Mr. Flanagan testified that in November 2011, Chris Tay and his daughter came to their apartment and gave Ms. Demsky a birthday gift. He said they had not seen them for some time. He said he and Ms. Demsky inquired about Ms.

Demsky’s father and cousin, Robbert Diederich. [ 19 ] He said Chris Tay replied he had not seen them for a while. [ 20 ] On Christmas day, Mr. Flanagan and Ms. Demsky went to her father’s condominium to deliver gifts and found it had been sold. Both he and Ms. Demsky testified this was very traumatic especially when Ms. Demsky learned that her father had contributed to buying a house with Chris Tay on the west side and was living in the basement of the home with Robbert Diederich. Chris Tay and his family lived upstairs. [ 21 ] On Christmas day 2011, Ms. Demsky went to the new home. Mr.

Flanagan stayed in the car. Ms. Demsky stated no one answered the front door but she knew she had the correct house as she could see Chris Tay’s dog. She went to the back of the house and saw her father and Robbert Diederich through window. Her father let her in and she asked him if he had given Chris money to buy the house. She alleged that he lied and said he did not but through land title searches she found out he had. [ 22 ] Ms. Demsky testified that in her view, she was a good daughter and did chores and errands for her parents 2-3 times a week prior to her mother’s death.

She testified she was close to her mother. [ 23 ] She stated that Chris Tay did not do these things for their parents. She expressed her view that Chris Tay and her father basically conspired to take her items in the SDB. She was unhappy her father had assisted Chris Tay financially when she needed financial assistance. [ 24 ] Ms. Demsky has an MBA and was a banker for a number of banks, including the BNS. She never worked at the branch in question. [ 25 ] Ms. Demsky testified that Chris Tay and Robbert Diederich were executors of her mother’s Will. The Will was not in evidence.

She said that after her mother’s death, she assisted her father to get a new mortgage with reduced payments through a bank she used to work for. [ 26 ] Ms. Demsky testified that she went on disability in or around 2008 due to health issues including numerous hip surgeries, hospital acquired infection, and injuries from motor vehicle accidents, including a head injury. She testified she received some financial settlements for injuries received in the motor vehicle accidents but her income is ‘probably at poverty level’. [ 27 ] Chris Tay is an accountant with a CPA, CGA designation and is employed as an accountant.

He testified that the family immigrated from Singapore to Canada in 1964. His father and Robbert Diederich, a second cousin, moved in with he and his wife after Margaret Mary Anne Tay died. [ 28 ] He alleges Ms. Demsky has made false accusations in this action and others against he and his father. [ 29 ] It is not in dispute that in December 2002, the claimant, the claimant’s parents and Mr. Diederich jointly rented a safety deposit box at the Oakridge branch of the BNS. It is also not in dispute that Ms. Demsky did not sign the document adding Chris Tay as a co- tenant of the SDB on July 30, 2011.

CHRONOLOGY OF RELEVANT DATES AND FACTS THAT ARE NOT IN ISSUE December 19, 2002 The SDB was leased from the Oakridge Branch of BNS by Matthew Tay, Margaret Tay, Robbert Diederich and Monica Demsky as joint tenants (Ex. 4). The lease agreement states that two keys were provided by the bank to the joint tenants. The lease provided each tenant appointed all others that signed the agreement to act as each others agents. This allowed them to remove and replace items from the SBD until the bank was informed in writing to the contrary.

December 28, 2002 Matthew Tay was the first person to sign for access to the SDB on this date. He is the only signatory shown on the access cards until July 23, 2011. On this date, Ms. Demsky signed as the person accessing the box. Matthew Tay signed one further time on June 26, 2012. April 30, 2011 Margaret Mary Anne Tay dies. July 23, 2011 Ms. Demsky signs the SDB access card and accesses the SDB. Chris Tay is with her and photographs the SDB and its contents. Photographs of the box and contents were introduced into evidence at trial (Ex. 7). Ms.

Demsky and Chris Tay agree she removed some documents and items belonging to their aunt. July 30, 2011 Chris Tay is added as a joint tenant to the box. His signature is witnessed by a bank employee. Matthew and Chris Tay sign the Safety Deposit Lease for the SDB. The key and box number are the same as for the SDB leased in December 19, 2002. Neither Robbert Diederich or Ms. Demsky’s signatures are on this document (Ex. 5). August 6, 2011 Chris Tay accessed the box twice on August 6, 2011 and on January 7, 2013 and January 11, 2013. June 26, 2012 Matthew Tay accessed the SDB.

November 19, 2013 A memo from an employee of the BNS was written which states that Ms. Demsky alleges that ChrisTay was not authorized by her to be a co-tenant of the SDB nor to access it. It further states that sheadvised the bank that she was missing items from the SDB, and further advised the date of hermother’s death. The memo said she said she had no key to the SDB. The bank subsequently frozeaccess to the box.March 2, 2014 Robbert Diederich dies.April 24, 2014 A 9 page inventory of the contents of the SDB is made. The inventory was prepared at the BNSOakridge branch.

Those present while the inventory was conducted were Matthew Tay, Chris TayAngela Yuen, BNS staff and Drew Bennie, Manager Customer Service. All present sign understatement that ‘Contents listed and agreed to by the undersigned’. The contents of envelopes andbags in the box are itemized in the inventory which lists documents, Canadian and foreign money,coins, jewelry, watches, and a “mulitcoloured book listing contents and ownership of items withinthe safety box (handwritten)”. Access to the box was frozen by the bank and none of the boxcontents were therefore before the court.

None of the parties called BNS staff or former staff aswitnesses. Ms. Demsky was not present when the box was accessed and the inventory prepared.February 27, 2015 Notice of Claim filed.November 19, 2018 Ms. Demsky prepared a three page typed list entitled “List of Jewelry in safety deposit boxbelonging to Monica Demsky and Values” (Ex. 1 at trial). Value estimates for some of the itemswere put on the list by Ms. Demsky. No receipts, appraisals, insurance policies or other documentshave been put in evidence indicating the estimate of value of items on the list.

No photos of theitems are in evidence. [30] Chris Tay testified he was added as a joint-tenant of the SDB to assist his father, Matthew Tay. He had difficulty walking andChris Tay could access the box for him or assist him at the bank. He testified that on his last visit to the box, he took Matthew Tay andhelped him access the SDB. He does not recall what his father was looking for. [31] It is not disputed that Chris Tay accessed the SDB twice on August 11, 2011, January 7, 2013 and January 11, 2013 without theknowledge of Ms. Demsky.

On August 11, 2011, Chris Tay testified he went to get wills in the SDB but realized he had the wrong onesand then returned. He said there were lots of papers in the SDB. He cannot recall what he took from the box on the other two occasionsbut denies he took anything belonging to the claimant. [32] The bank froze access to the safety deposit box in November 2013. In 2014, the bank manager and another bank employee, inthe presence of Chris and Matthew Tay prepared an inventory of the SDB. [33] Chris Tay states he was told by bank employee Drew Benny that Ms.

Demsky was asked to attend the inventory of the box butshe did not do so. Mr. Benny was not called to testify. This may be his understanding but I do not give weight this testimony as Mr.Benny was not called to testify and be cross-examined. THE LAW [34] The onus is on the claimant to prove his or her claim on a balance of probabilities in a civil claim. [35] Ms. Demsky relies on Peddle v. Temple, 2017 NLTD(G) 18 in support of her claim. The action was brought by Leo Temple, theguardian of the estate of Myrtle Bell. Ms. Bell was the mother of Leo Temple and the respondent, Wendell Temple. Ms.

Temple wasunder a disability due to dementia at the time it was alleged Wendell Temple took $20,000 from her safety deposit box. Wendell Templedenied the allegations and implied if money was missing, Leo Temple or Ms. Bell took it. [36] Mr. Justice Handrigan comments on ‘degrees of probability’ within a balance of probabilities when allegations of criminalconduct are made against a party in a civil action. [37] At paragraph 6 he cites Continental Insurance Co v. Dalton Cartage Co. (SCC), [1982] S.C.J. No. 116 withapproval, wherein Chief Justice Laskin, as he then was quoted the following from Bater v.

Bater [1950] 2 All E.R. 458 (C.A.) It is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification thatthere is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may bedegrees of proof within that standard….So also in civil cases. The case may be proved by a preponderance of probability, but there maybe degrees of probability within that standard. The degree depends on the subject matter.

A civil court, when considering a fraud charge,will naturally require a higher degree of probability than that which it would require if considering whether negligence were established.It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but still it does require adegree of probability which is commensurate with the occasion [12] [38] Mr.

Justice Hardigan approved the dicta of Continental Insurance Co., supra, that ‘…a trial judge is justified in scrutinizingevidence with greater care if there are serious allegations to be established by the proof that is offered…’ while still applying the civilstandard of proof (para. 7). [39] In Peddle, supra, the claimant succeeded.

It was not in dispute that he was with his mother on two occasions on the day sheremoved money from her SDB, that he counted it, that he then went and opened a new safety box in which he was a joint tenant the sameday, and that he removed all the money from the safety box subsequently for ‘safe keeping’ in his home. [40] The evidence of Leo Temple was found more trustworthy than that of the respondent as summarized in paragraph 47.

Therespondent was ordered to return the $20,000 it was found he had converted to his own use. [41] The above analysis only becomes necessary in this case if I find on a balance of probabilities that Ms. Demsky owned some orall of the items she claims and that they were in the SDB in question at the times she alleges.

Issue #1(

a) Has Ms. Demsky established she owned the items set out in her list Ex. 1 on a balance of probabilities? [ 42 ] The list provided by Ms. Demsky lists a number of jewelry items including gold jewelry with diamonds and other gemstones, gold and platinum bars and gold and platinum coins. The items she lists likely would have a value of over $100,000. [ 43 ] Ms. Demsky made the list of items she alleges she placed in the SDB and were taken without her knowledge or consent on November 19, 2018, after this litigation was started and after the bank had provided its inventory of the box. [ 44 ] Ms.

Demsky did not provide any receipts, photographs, invoices, appraisals or insurance policies for any of the items on the list. In the list she stated that she had a diamond appraised 20 years ago for $15,000. [ 45 ] Ms. Demsky also testified she had worn some of this jewelry to Chris Tay’s wedding and other events but did not produce any photos of her wearing the jewelry or of the jewelry. She states she had a list of items from her mother and used this to make the list.

The list prepared by her mother was not in evidence. [ 46 ] She testified that her mother had told her that she would leave her some of the jewelry included in this list. I do not know if title to any of her mother’s jewelry passed to her. No Wills were entered into evidence. [ 47 ] Some of the items in Ms. Demsky’s list of valuables may match some of the items inventoried by the bank. Ms. Demsky’s list contains numerous items clearly not in the banks inventory including valuable metals and jewelry. [ 48 ] The items in Ms.

Demsky’s list appeared to be in excess of the box contents shown in photographs of the box taken by Chris Tay on July 23, 2011, in the presence of the claimant. [ 49 ] I find that Ms. Demsky has not established on a balance of probabilities that she owned the items listed in Exhibit 1. The lack of proof of ownership negatively impacts on the reliability and credibility of her claim. [ 50 ] I will continue the issue analysis in the alternative (i.e. if she had established she owned the items in the box up to a value of $35,000). Issue #1(

b) If Ms. Demsky owned some or all the items listed in Ex. 1, has she established on a balance of probabilities that she placed at least some of them in the SDB? [ 51 ] The access card for the SDB did not contain Ms. Demsky’s signature until July 23, 2011. The box was opened on December 19, 2002 in the presence of joint tenants Matthew Tay, his wife, and the claimant. The initial lease agreement stated that the joint tenants would receive two keys to the SDB. I find this references two keys in addition to the key the bank holds. Ms.

Demsky had a key when she accessed the SDB on July 23, 2011. [ 52 ] After the SDB was rented on December 19, 2002, it was not accessed until December 28, 2002. All access signatures were those of Matthew Tay until July 23, 2011. [ 53 ] Matthew Tay testified that Ms. Demsky had put some items in the SDB prior to July 23, 2011 but he said his wife told him Ms. Demsky had removed all her items. He said the items Ms.

Demsky placed in the SDB just had ‘cheap green stones’ and that it was his understanding she had removed her items. [ 54 ] Matthew Tay’s wife is deceased and I cannot rely on his understanding on what he was told by her. In addition to her evidence not being capable of cross-examination on, I find Matthew Tay was not a reliable witness due to age related health issues. He was very hard of hearing and it was not clear he understood the questions put to him. He was physically infirm and fragile.

I note that the order of Associate Chief Justice Cullen provided that Chris Tay could act as Matthew Tay’s representative. It was clear from the testimony of all parties that there is estrangement between the claimant and Chris and Matthew Tay and each testified through this lens. [ 55 ] I find Ms. Tay may have put items of jewelry in the SDB or someone may have put it there with her consent or knowledge. I am unable to say however if any of that jewelry remains in the box, and if it was removed, whether it was removed by her or with her knowledge and consent. [ 56 ] Ms.

Demsky had access to the SDB on July 23, 2011. She was in the presence of Chris Tay when the box was accessed. She signed for the box and had the key. I find that it is clear from the photographs that the volume of items she claimed were in the box were not there on July 23, 2011. Had she thought the items were there, I find she would immediately have taken steps to ascertain their whereabouts. She did not advise the bank of her allegation her items were missing until November 2013 as indicated in the bank memo dated November 19, 2013 (Ex. 6). [ 57 ] Ms.

Demsky testified that over the years, she would ask Matthew Tay to access the SDB and remove certain pieces of jewelry for her to wear for certain events. She said she would then ask him to return them. I find it more likely she accompanied him to the SDB to access her items if and when they were in the box. [ 58 ] I find that although Ms. Demsky did not sign to access the SDB until July 23, 2011, this does not establish on a balance of probabilities that she did not have access to its contents.

It is more likely than not that she accompanied Matthew Tay to the SDB and accessed it in the viewing room after he had signed the box out. Both Ms. Demsky and Chris Tay testified they were both present in the viewing room on July 23, 2011. Chris Tay was not a joint tenant of the box until a week later. Despite not being a joint tenant, he was allowed to be in the viewing room. The evidence of Ms. Demsky was that only the person that has the key and accessed the box signs the access card. [ 59 ] Ms.

Demsky has not established that the items she is claiming were in the SDB were not removed by her at some point and placed in a safety deposit box in another bank or elsewhere. She worked at a number of banks and I find it would have been easy for her

to open another safety deposit box or safety deposit boxes. [ 60 ] Ms. Demsky has failed to establish on a balance of probabilities that she owned the items listed in Ex. 1 or in the alternative, that she placed the items alleged in the SDB, or if she did, that they were removed without her knowledge and consent. [ 61 ] The action is dismissed in respect to all remaining defendants. A Notice of Withdrawal was previously filed in respect to the Bank of Nova Scotia. [ 62 ] The pleadings were filed in the British Columbia Supreme Court.

Pursuant to the Order of Associate Chief Justice Cullen, the parties that appeared at trial, shall be at liberty to apply to the Supreme Court for a determination of costs incurred in the British Columbia Supreme Court proceeding, No. S151649, Vancouver Registry. _____________________________ The Honourable Judge Bakan Provincial Court of British Columbia