2014 QCCQ 12152, 2014 QCCQ 12152

Goldberg c. Toronto Dominion Bank 2014 QCCQ 12152 COURT OF QUEBEC « Small Claims Division » CANADA PROVINCE DE QUÉBEC DISTRICT DE MONTRÉAL « Civil Division » N°: 500-32-135039-123 DATE : December 16, 2014 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DOMINIQUE VÉZINA, J.C.Q. ______________________________________________________________________ ISADORE GOLDBERG Plaintiff c.

THE TORONTO DOMINION BANK and TD CANADA TRUST Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Isadore Goldberg is suing the Toronto Dominion Bank and TD Canada Trust (TD) and is claiming $7,000 flowing from TD mistakingly declaring him deceased and closing his bank accounts and his credit line. [ 2 ] TD admitted its mistake based on the incorrect spelling of Mr. Goldberg’s name where it considered the name Isidore instead of Isadore.

However, TD denies owing $7,000, pleading that no damages were suffered by Mr. Goldberg. QUESTION IN LAW [ 3 ] What are the damages suffered by Mr. Goldberg in view of TD’s mistake? CONTEXT AND ANALYSIS [ 4 ] In civil matters, a person wishing to assert a right shall prove the facts on which his claim is based [1] . In this regard, the burden of proof lies on the party presenting a demand. That party has to present evidence which will be weighed on the balance of probabilities which is also called preponderance of evidence.

This implies that Plaintiff must demonstrate that the existence of a fact is more probable than its non existence [2] . [ 5 ] Furthermore, according to

article 1458 of the Civil Code of Quebec (C.C.Q.) : 1458. Every person has a duty to honour his contractual undertakings. Where he fails in this duty, he is liable for any bodily, moral or material injury he causes to the other contracting party and is bound to make reparation for the injury; neither he nor the other party may in such a case avoid the rules governing contractual liability by opting for rules that would be more favourable to them. [ 6 ] To succeed, Mr.

Goldberg has to establish that TD’s mistake caused him damages which he can prove and which are an immediate and direct consequence of the non performance [3] . [ 7 ] All relevant elements of evidence are analysed by the Court. What are the damages suffered by Mr. Goldberg in view of TD’s mistake? [ 8 ] Notwithstanding TD’s own admission of a human mistake explaining the problem in processing the name of the deceased, the Court points out that TD’s system of verification was inadequate and it failed to verify available information such as the branch where Mr.

Goldberg opened his account, his age, address and social insurance number. [ 9 ] TD’s mistake triggered inconveniences for Mr. Goldberg, an 86 year old respected retired man, at the time of the event. [ 10 ] Mr. Goldberg had been a client of TD for more than 30 years. [ 11 ] In March 2012, he received a letter from Revenu Québec [4] indicating that his financial institution had rejected the request for direct deposit in his account and requesting new banking information.

[ 12 ] He went to his local TD branch located on Queen Mary street to inquire about the situation. [ 13 ] He then learned from the teller that according to TD’s file [5] , he was deceased. [ 14 ] Surprised and shocked, he spoke with the superior of the teller. The latter did not show any sign of understanding but rather answered in a curt fashion. [ 15 ] Mr.

Goldberg returned home and then started investigating to understand how this false information could have been transmitted. [ 16 ] He soon realized the impact of TD’s mistake on his pension payments, investments and federal and provincial income documents. [ 17 ] Indeed, TD explained that upon receiving a notice of death, the bank will freeze all accounts of the deceased. All deposits received after the presumed date of death will then be returned to the payers. That explained the letter from Revenu Québec received by Mr.

Goldberg which prompted his investigation. [ 18 ] The notice of death received by TD did not concern this Mr. Goldberg but he was the one having to deal with the consequences of the blunder. [ 19 ] Mr. Goldberg was told by TD to go to the Cavendish Mall Branch to resolve the matter. [ 20 ] That branch is farther away from his local branch and he had to obtain the help of his brother to get there. [ 21 ] Mr. Golberg and his brother spent 3.5 hours there trying to understand and clarify the situation. While waiting, he was offered $50 for a food voucher. [ 22 ] It took four to eight days for TD to reinstate Mr.

Goldberg’s status with the bank (accounts, credit line). [ 23 ] However, to fully reinstate his status, Mr. Goldberg also had to deal with various other agencies (federal and provincial) and had to fill different forms. It took him three months to resolve the problem entirely. He spent approximately 40 hours to get the appropriate result, with the help of his brother. [ 24 ] TD cannot contradict the estimated delay of three months mentioned by Mr.

Goldberg to settle everything with all these agencies. [ 25 ] On March 23, 2012 [6] , Paul Lelièvre, TD’s vice-president wrote: (…) We can certainly understand the frustration you experienced and apologize for the inconvenience it might have caused you Mr. Goldberg. We look forward to serving you again and hope you will allow us the opportunity to demonstrate the level of quality service we are capable of providing. As a goodwill gesture, you will find below an amount that we find fair and acceptable.

Please read the below offer and you can present yourself at the Cavendish Mall branch to sign the waiver and receive our offer immediately. (...) [ 26 ] Attached to that letter was an offer of $300 which offended Mr. Goldberg. [ 27 ] On April 11, 2012, a demand letter was sent [7] . [ 28 ] Mr. Goldberg claims the following [8] :

a) wasted time by himself to correct the errors: 42 hours $4,200.00

b) aggravation and suffering: $5,000.00

c) wasted time by his brother to help him correct the mistake: $2,400.00

d) legal services: $3,219.30 [ 29 ] In view of juridiction of the Small Claims Division, Mr. Goldberg is claiming $7,000 from TD. [ 30 ] Cases of theft of personal identity and data are reported daily. Thus, the protection of one’s identity is a constant worry. One would expect that his financial institution would be cautious with his personal data. [ 31 ] Although the Court finds no premeditation or bad faith on the part of TD for the mistake, it notes the lack of verification and the serious consequences for Mr. Goldberg.

[ 32 ] The « thin-skull rule » imported from the common law applies in civil matters [9] : I-408 – Situation de la victime – Le principe de la réparation intégrale exige aussi que l’auteur de la faute prenne la victime dans l’état où elle se trouve au moment où le dommage est causé. Cette règle, connue en common law sous le nom de « thin skull rule » , signifie implement que l’auteur du dommage assume les risques inhérents à la qualité et à la personnalité de sa victime. Selon qu’il blesse un millionaire ou un chômeur, la situation pour lui risque donc d’être fort différente.

Également, en raison d’une fragilité de santé particulière de sa victime, les conséquences de l’acte fautif peuvent être beaucoup plus considérables, qu’elles ne l’auraient été sur une personne ordinaire. (…) [ 33 ] In that context, the age and physical condition of the victim can be considered [10] : […] Cette identité de solution est logique puisqu’une position contraire irait à l’encontre du principe fondamental de l’évaluation in concreto du préjudice.

La victime fait-elle preuve d’une meilleure capacité de récupération que la moyenne , son jeune âge et sa bonne condition physique lui permettent-ils de reprendre ses activités habituelles, le responsable en profite par une réduction de l’indemnité payable. Dans le cas contraire, il est logique qu’il assume les conséquences d’une plus grande fragilité de la victime, même si elle était imprévisible . La personne blessée dans un accident, qui décède parce que son sang ne coagule pas, n’assume aucune « part de responsabilité » dans cet accident.

Toute autre solution ferait payer aux plus faibles les conséquences de leur faiblesse, alors que c’est la conduite du défendeur – ou d’une personne dont il assume la responsabilité – qui a déclenché l’apparition du préjudice. [soulignements ajoutés] [ 34 ] Administrative nuisance and trouble, harmless for certain persons can affect others differently. [ 35 ] Mr. Goldberg had a long lasting business relationship with TD. He resented how his file was treated by TD. It affected his health, and more specifically his blood pressure. [ 36 ] Mr. Goldberg suffered numerous inconveniences:

a) meetings with TD’s employees at his branch and at a branch located farther from his local branch to resolve the situation;

b) time wasted with TD to reinstate his accounts plus credit line and to verify that all the credits and debits were all accounted for;

c) time wasted to fill various forms for provincial and federal agencies to re-establish his status;

d) numerous phone calls. [ 37 ] At his age, having to deal with the situation was troublesome. [ 38 ] Both his brother and sister-in-law confirmed at the hearing that he was stressed, nervous, disturbed and that his quality of life was affected. [ 39 ] TD apologized for the mistake but still contests the damages claimed. [ 40 ] The Court will first set aside the lawyers’ fees claimed by Mr. Goldberg. [ 41 ] Mr. Justice Michel Yergeau recently reviewed the principles regarding lawyers’ fees [11] .

Based on those principles, the Court concludes that the present facts do not allow for this type of demand. [ 42 ] However, the Court has a discretion and can arbitrate the other damages claimed. [ 43 ] The Court of appeal has confirmed such discretion in Hydro-Québec c. Construction Kiewit Cie [12] : [101] La maxime « l’évaluation des dommages n’est pas une science exacte » prend ici tout son sens vu la complexité des réclamations et contre-réclamations des parties.

Par conséquent, il est nécessaire de reconnaître au juge d’instance « un assez large pouvoir d’appréciation » dans l’évaluation qu’il est appelé à faire. Comme le rappelle la Cour dans l’arrêt Provigo Distribution , la présence de facteurs difficilement prévisibles ou appréciables peut obliger un juge d’instance à établir la compensation due « en faisant appel à une certaine approximation, à un certain degré d’appréciation et à sa discrétion ». [ 44 ] Considering the evidence, the Court grants an amount of $3,000 as damages to Mr. Goldberg.

FOR THESE REASONS, THE COURT: GRANTS in part the action of Plaintiff Isadore Goldberg against the Defendants The Toronto Dominion Bank and TD Canada Trust; CONDEMNS solidarily the Defendants The Toronto Dominion Bank and TD Canada Trust to pay $3,000 to Plaintiff Isadore Goldberg, plus the interest at the legal rate of 5% per annum and the additional indemnity provided for at

article 1619 C.C.Q. , calculated as of April 11, 2012; THE WHOLE , with the judicial costs of $163. __________________________________ DOMINIQUE VÉZINA, J.C.Q.

Date of hearing : November 17, 2014