LaFleur et al. v. Canadian Bond Credits Limited
[Indexed as: LaFleur v. Canadian Bond Credits Ltd.]
68 O.R. (3d) 754
Ontario Superior Court of Justice Small Claims Court,
Deputy Judge Caskey
November 24, 2003
Debtor and creditor — Collection agency breaching Collection Agencies Act by harassing telephone calls to relative of debtor
— Collection Agencies Act, R.S.O. 1990, c. C.14 — R.R.O. 1990, Reg. 74, ss. 20, 21.
The plaintiff Marc LaFleur was married to the plaintiff Lynn Bourke, and they lived at a residence in London, Ontario. The defendant Canadian Bond Credits Limited (“CBC Ltd.”) was in the debt collection business for banks and other institutions. In July 2002, it sought to collect a $567.57 indebtedness owed by Todd LaFleur, who was the brother of Marc LaFleur. CBC Ltd. decided to pursue the repayment of the debt by automated telephone calls. It pursued that course relentlessly with frequent phone calls to the residence of the plaintiffs despite their advice that Todd LaFleur did not live with them and despite requests that the calls stop. The calls did not cease despite correspondence from a lawyer acting for the plaintiffs. The calls stopped only after the plaintiffs commenced proceedings. The plaintiffs claimed compensation and punitive damages alleging that CBC had contravened the Collection Agencies Act.
Held, there should be judgment for the plaintiffs.
The plaintiffs did not owe the debt. They were under no obligation to collect the debt from Todd LaFleur or to inform CBC Ltd. of his whereabouts. The defendant contravened the Collection Agencies Act. Its deliberate, persistent and unwarranted telephone calls constituted harassment, a nuisance, and an invasion of privacy deserving of compensation. The plaintiffs were also entitled to punitive damages to accomplish the objectives of retribution, deterrence and denunciation. The purpose of the punitive damages was to give the defendant a strong message of disapproval; to deter the defendant and others from similar misconduct; and to mark the community’s collective condemnation of what had occurred.
Cases referred to
Motherwell v. Motherwell (1976), 73 D.L.R. (3d) 62, [1976] 6W.W.R. 50, 1 A.R. 47 (S.C. App. Div.); R. v. Ens, [1979] S.J. No. 393 (QL), D.C.C.A. No. 1 A.D. 1979 J.C.S. (Dist. Ct.); [page755] Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595, 2002 SCC 18, 20 B.L.R. (3d) 165, [2002] S.C.J. No. 19 (QL), 209 D.L.R. (4th) 257, [2002] I.L.R. 1-4048, 283 N.R. 1
Statutes referred to
Collection Agencies Act, R.S.O. 1990, c. C.14 Rules and regulations referred to
R.R.O. 1990, Reg. 74, ss. 20, 21
ACTION for damages for breach of the Collection Agencies Act,
R.S.O. 1990, c. C.14.
J. Pitblado, for plaintiff.
M. Silverthorn, for defendant.
DEPUTY JUDGE CASKEY: — The plaintiffs are husband and wife
and are the parents of a one-year-old boy by the name of Ryder. They reside with the seven-year-old son of the plaintiff Lynn Bourke, at [address omitted] in London.
The defendant is in the debt collection business for banks and other institutions that extend credit to individuals.
Included in the Statement of Claim filed with the court at the time this action was commenced were two documents. The first is a faxed message of May 26, 2003 from the Pitblado Law Office to the defendant. It is now Exhibit 1 to these proceedings. The second is a letter of June 27, 2003 faxed from the Pitblado Law Office to the defendant on that date. It is Exhibit 2 to these proceedings.
By way of response and as part of its Statement of Defence, the defendant provided a computer printout of the activity in its office throughout the time the collection proceeding was active. It is now Exhibit 3 to these proceedings.
Counsel for the plaintiffs called both the plaintiffs to give evidence. He also called his legal assistant to prove that the faxed messages (Exhibits 1 and 2) had been sent to the defendant and the reason she was confident they had been received by the defendant.
The agent for the defendant called Mr. Pomfret, an executive with the defendant, as his only witness. He did not call Mr. Glen Denboch as a witness notwithstanding the fact that Mr. Denboch was the only representative of the defendant to have been in personal contact with the plaintiffs.
From the evidence of the plaintiffs, which I accept, and from the documents filed as Exhibits 1, 2 and 3, the following are the facts and narrative as I find them to be.
In July 2002, two cheques totalling $1,600 that had been cashed through a TD Bank Green Machine were returned NSF. [page756] By July 16, 2002, the sum of $1,032.43 had been deposited, leaving a balance of $567.57 owing. The debtor was Todd LaFleur, the brother of the plaintiff Mark LaFleur. He gave his address as [address omitted] in London and his phone number as [phone number omitted] to the bank when the account had been opened. Todd LaFleur either lived at that address at that time or had recently moved to another residence.
On July 20, 2002, a call to [phone number omitted] resulted in the representative of the defendant being told that they had the wrong number. As a consequence it was removed from the defendant’s records. The business number that had been provided by Todd LaFleur was then called. In that call he confirmed that his address was [address omitted], London, and that his home phone number was [phone number omitted]. This disclosure meant that the person answering the phone on July 20, 2002 had misled the defendant’s representative about the whereabouts of Todd LaFleur and the phone number at which he could be located.
When Todd LaFleur was contacted by a representative of the defendant on July 24, 2002, he was told that the balance owing would have to be paid immediately. The response from Todd LaFleur was that the defendant would hear from his lawyer. He then hung up.
A call from the defendant to Todd LaFleur on July 31, 2002 resulted in the phone being hung up as soon as the identity of the defendant was revealed. One day later a person by the name of Todd answered the phone, refused to give his last name, became rude and hung up. Throughout August there were a series of calls, either by automatic voice message or by way of calls in person. Some went unanswered and some were responded to with the phone being hung up. The collection activity abated somewhat over September and October 2002 but resumed with vigour on November 25, 2002. At that time a former employer of Todd LaFleur provided a current employment telephone number.
The representative of the defendant spoke to Todd LaFleur who refused to discuss the account, became very rude and very vulgar, said he had no intention of resolving the account, and hung up. The collector suggested that the file be referred to another department of the defendant for the commencement of legal proceedings against Todd LaFleur.
Someone at the defendant with a clear sense of economic proportion suggested that the debt was too small to litigate and that the file ought to be closed. Perhaps because of the time invested, or the nature of the responses from Todd LaFleur to date which were apparently less than polite, or the fact that someone had misled a representative of the defendant on July 20, 2002, the [page757] decision was made to pursue telephone collection of the debt. It was a course of conduct that would be pursued relentlessly, ceasing only with the commencement of these proceedings at the end of July 2003.
Marc LaFleur testified that although his brother Todd LaFleur had lived with him at [address omitted] in London along with three or four other people, his brother had moved out sometime in 2002 when the plaintiff Lynn Bourke moved in. Neither of the plaintiffs were absolutely clear about when Todd LaFleur moved out, but both were clear that he was not living there at any time in the year 2003.
Between December 17, 2002 and May 26, 2003, some 41 calls were placed by the defendant to the residence of the plaintiffs. A recorded message identified the defendant as the caller, left a toll-free number, and suggested an urgent response was required. The phone calls were automated.
Sometimes Lynn Bourke would answer the phone and hang up.
Sometimes she was unable to get to the phone before it stopped ringing. She had a new baby. The phone calls were becoming more bothersome and disruptive for her and for her young child.
On May 26, 2003, a frustrated and irritated Lynn Bourke made contact with Glen Denboch at the defendant. She wanted the calls stopped and told him so. He demanded to speak to Todd. When told that Todd did not live there, he demanded to know his whereabouts. Some dialogue ensued about whether or not she would give Mr. Denboch any more information, at the end of which she finally asked if he would direct that the calls would be stopped. The answer was no. By now Ms. Bourke was crying. “How can I get you to stop calling?” she asked. The reply was that she couldn’t. He indicated he didn’t care how upsetting the calls were to her, he wanted Todd. Mr. Denboch pointed out to Ms. Bourke that he was doing nothing wrong. He knew his guidelines. He was being polite and was not in breach of anything and there was no obligation to cease doing what he was doing. Although Ms. Bourke thought “enough is enough”, Mr. Denboch did not apparently share her view.
A very upset and crying Ms. Bourke called her husband at work. He contacted Mr. Denboch. Mr. LaFleur said he wanted the calls stopped. He told Mr. Denboch not to call any more. The response was that the defendant had proof that Todd LaFleur was at that address and telephone number and that the only way to stop the calls was to either give the defendant his new telephone number and address or give them his mother’s telephone number. Mr. LaFleur reacted somewhat badly. He refused to give Mr. Denboch any information about his brother and used less [page758] than polite language to inform Mr. Denboch that the unwanted, unsolicited calls constituted harassment. He was provided with what he described as a Q-card recitation of the reason Mr. Denboch was entitled to do what he was doing, in the manner in which he was doing it. Mr. LaFleur was very angry. He hung up the phone and went for a coffee to cool down. The more he thought of his conversation with Mr. Denboch and of his conversation with his distressed wife, the worse it got for him. He finally called his lawyer to see what could be done to stop what to him and his wife were clearly harassing calls. Mr. Pitblado did two things. He called Mr. Denboch and asked that the calls cease immediately. He followed this call with a faxed message confirming his discussion with Mr. Denboch and telling the defendant of the consequences of failing to stop the calls. (Exhibit 1)
Notwithstanding the call from Ms. Bourke, the call from Mr. LaFleur, the call from Mr. Pitblado, and the fax from Mr. Pitblado, the calls did not cease. In fact, they resumed the very next day. Between May 27 and June 27, 2003 there were 14 automated calls initiated by the defendant to the residence of the plaintiffs. Mr. Pitblado again sent a fax, enclosing the original message. (Exhibit 2)
Incredibly, an additional 13 calls were made to the home of the plaintiffs between the date of the second fax on June 27, 2003 and the receipt by the defendant of the Claim in this action on July 28, 2003.
All the plaintiffs wanted was for the calls to stop. The plaintiffs did not owe the debt. They were under no obligation to the defendant to collect the debt from Todd LaFleur or to inform the defendant of his whereabouts. The plaintiff Mark LaFleur testified that had the telephone calls and fax of May 26, 2003 been effective in causing the calls to stop, this lawsuit against the defendant would not have been commenced. He would have paid Mr. Pitblado for his services and the plaintiffs would have gone on with their busy lives as parents and homemakers.
As indicated at the outset of these reasons, the defendant filed with its defence the chronology of activity (Exhibit 3) and elected to call Mr. Larry Pomfret as the only witness for the defence. He was able to explain the short forms and symbols in Exhibit 3 and was also able to provide the procedure at the defendant when people have a complaint. There is an ombudsman who investigates the complaints against members of the defendant’s staff and who attempts to achieve customer satisfaction. The problem for the defendant in this case is that the plaintiffs were never told that there was an ombudsman available at the defendant to assist them in getting the calls stopped. They were speaking [page759] directly with Mr. Denboch who they assumed would solve the problem of the unwanted calls. I accept their evidence that Mr. Denboch did not advise them of the ombudsman service available to them.
Mr. Pomfret advised the court that Mr. Denboch was a senior experienced employee who had a good record. He confirmed that the fax number to which the Pitblado office sent Exhibits 1 and 2 was the fax number of the defendant, but he had no idea why the defendant had no record of faxes being processed at the defendant after they were received. They apparently simply disappeared. Mr. Pomfret also confirmed that he had no direct contact with either the plaintiffs or their solicitor and was therefore in no position to rebut any of the evidence given by the plaintiffs. It was the position of the defendant that both the plaintiffs and the defendant were the victims of the actions of Todd LaFleur. He owed the debt. He advised the bank and then the defendant of his address and phone number, which were those of the plaintiffs. In calling the telephone number given to it by Todd LaFleur, as it was entitled to do, the defendant was doing nothing wrong.
Counsel for the plaintiffs provided the court with a Book of Authorities which includes a portion of the Collection Agencies Act, R.S.O. 1990, c. C.14 and in particular parts of Regulation
74 of the Revised Regulations of Ontario 1990. Sections 20 and
21 of the Regulation are as follows in part:
20. No collection agency or collector shall,
. . . . .
(d) make telephone calls or personal calls of such nature or with such frequency as to constitute harassment of the debtor, his or her spouse or same-sex partner or any member of the debtor’s family or household;
. . . . .
(h) where a person has informed the collection agency or the collector that the person is not in fact the debtor, continue to communicate with that person in respect of the collection of the debt unless the collection agency or the collector first takes all reasonable precautions to ensure, that the person is in fact the debtor;
. . . . .
21. Except for the purpose of obtaining the debtors address or telephone number, no collection agency or collector shall contact a debtor’s employer, spouse, same-sex partner, relatives, neighbours or friends unless,
(a) the person contacted has guaranteed to pay the debt and is being contacted in respect of such guarantee;
(b) the person contacted is the employer of the debtor and the collection agency or collector is contacting the employer in respect of payments [page760] pursuant to a wage assignment or an order or judgment made by a court in favour of the collection agency, or of a creditor who is a client of the collection agency; or
(c) the person contacted is the employer of the debtor and the collection agency or collector is contacting the employer for the purpose of verifying the employment of the debtor.
Although the calls made by the defendant to the plaintiffs prior to May 26, 2003 probably breached the provisions of the Collection Agencies Act and Regulations, I indicated to the parties in argument that because of the manner in which those calls were handled up to May 26, 2003, I would be looking only at the actions of the defendant on May 26, 2003 and subsequent when determining whether or not there was a breach of the Act, and if there was, whether the harassment of the plaintiffs warranted the imposition of damages as a remedy.
In the case of Motherwell v. Motherwell (1976), 73 D.L.R. (3d) 62, [1976] 6 W.W.R. 50 (Alta. S.C. App. Div.), the Alberta Court of Appeal dealt with harassing telephone calls and whether or not they gave rise to a cause of action in nuisance. At p. 10 of the Quicklaw version [p. 74 D.L.R.] provided to me by counsel for the plaintiffs, Clement J.A. had the following observation:
It is clear to me that the protracted and persistent harassment of the brother and the father in their homes, and in the case of the brother as well in his office, by abuse of the telephone system is within the principle of private nuisance as it has been recognized in the authorities I have referred to. The question is whether the calls amounted to undue interference with the comfortable and convenient enjoyment by the plaintiffs of their respective premises. I can conceive that persistent and unwanted telephone calls could become an harassment even if the subject-matter is essentially agreeable. The deliberate and persistent ringing of the telephone cannot but affect the senses in time, and operate on the nervous system as the evidence discloses. No special damage is required to support an injunction: it is the loss of the amenities of the premises in substantial degree that is involved.
The case of R. v. Ens, [1979] S.J. No. 393 (QL), D.C.C.A. No. 1 A.D. 1979 J.C.S. (Dist. Ct.) was a prosecution in Saskatchewan under the Collection Agents Act, 1968, S.C. 1968, c. 11 where the legislation is essentially the same as that in force in Ontario. The respondent made six telephone calls to the complainant in the course of two days with respect to collection of a debt owed by the complainant to the collector’s client. When looking at whether or not the calls constituted harassment within the Act, the court [at para. 11] made the following observation in relation to harassment:
It may be described as the point at which the collector’s tactics go beyond what the society concerned thinks decent under the circumstances. It may be described as the point at which the collection practice involved is offensive and unacceptable. It may be described in terms of unreasonableness in all [page761] the circumstances. The differences are more apparent than real, but perhaps, at the heart, really lies reasonableness in all the circumstances.
In that case, a collector was dealing with the debtor and the court found that the calls constituted harassment and a conviction was registered.
From May 26, 2003 onward, the defendant knew that it was not dealing with the debtor when it called the phone number at the residence of the plaintiffs; that the calls were unwanted, that the plaintiffs wanted them to cease immediately; that the plaintiffs found the calls to be upsetting and distressing to the point that the plaintiff Lynn Bourke was brought to tears, and that the plaintiffs were sufficiently distressed that they employed the services of a solicitor to assist them in getting the calls stopped. Notwithstanding all of that information in the hands of the representative of the defendant, the calls did not stop. They persisted. There was no justification whatsoever for the plaintiffs to have received even one phone call after May 26, 2003 and even less justification after the 27th day of June when Exhibit 2 was delivered by the Pitblado firm to the defendant.
I find that the defendant contravened the Collection Agencies Act and that its persistent unwarranted telephone calls constituted harassment of the plaintiffs. It was an invasion of their privacy and constituted a nuisance deserving of compensation.
Having regard to the number of calls, the duration of them, and the detrimental effect they had on the plaintiffs and in particular Lynn Bourke, I believe a fair assessment of general damages for the invasion of privacy and consequent nuisance would be $1,000 for the plaintiff Lynn Bourke and $500 for the plaintiff Marc LaFleur.
Counsel for the plaintiffs also made a very strong case for the imposition of punitive damages. He pointed out that as early as November 25, 2002, the defendant had made a conscious economic decision that this collection would not be pursued by litigation because it was too small. Instead of closing the file, however, someone in authority at the defendant made the decision to resume collection attempts by automated telephone calls. Once that decision was made, the defendant was not going to give up calling unless the debt was paid, if not by the debtor, then by someone in his family.
It was the position of counsel for the plaintiffs that the conduct of Glen Denboch on May 26, 2003 was particularly offensive and distressing to the plaintiff Lynn Bourke. Instead of accepting that the debtor was not at the residence and agreeing to stop the calls, he essentially threatened to continue them until he got the result he wanted. In refusing to stop the calls and suggesting an [page762] indifference to the effect they had on the plaintiff Lynn Bourke and consequently on her child, he showed a disregard for her rights to privacy that demanded a strong deterrence and denunciation of his actions and consequently those of the defendant. The purpose of these damages would not be to compensate the plaintiffs, but to give the defendant a strong message of disapproval to deter the defendant and others from similar misconduct in the future thus acting as a deterrent, and to mark the community’s collective condemnation of what occurred.
In support of his position, counsel for the plaintiffs referred me to the decision in the Supreme Court of Canada of Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595, 2002 SCC 18. In particular, he suggested that the sixth heading enumerated by Justice Binnie at p. 636 was germane:
Sixth, it is rational to use punitive damages to relieve a wrongdoer of its profit where compensatory damages amount to nothing more than a licence fee to earn greater profits through outrageous disregard of the legal or equitable rights of others.
I agree with and accept the position of counsel for the plaintiffs on this issue. The defendant processes 4.5 million to 5 million matters annually. It uses an automated telephone technique that permits calls to be made and repeated in accordance with the goal the defendant’s representative hopes to achieve. In the case of Todd LaFleur, I find that the purpose of the calls after November 25, 2002 was not to achieve the collection of an insignificant amount of money from him.
Rather it was to punish the plaintiffs. The defendant had already been told by Todd LaFleur that he was not going to pay the debt. The defendant had been told that the plaintiffs would not give out any details of Todd LaFleur’s address or telephone number. The defendant knew that the plaintiffs were not the debtor. The defendant was asked to stop the calls and refused. Even the intervention of their lawyer did not deter the defendant from what I find on the evidence was a deliberate, unwarranted and persistent invasion of their privacy to the point of extreme harassment. In my view, compensatory damages will not suffice. They are inadequate to accomplish the objectives of retribution, deterrence and denunciation. They must not however be in an amount greater, than necessary to rationally accomplish their purpose. Having regard to all of the criteria set forth in the Whiten decision, I assess the punitive damages at $3,000, to be apportioned equally between the plaintiffs.
In the result therefore I find the plaintiffs are entitled to recover from the defendant the following: [page763]
(a)For the plaintiff, Lynn Bourke, general damages in the amount of $1,000 and punitive damages in the amount of $1,500;
(b)For the plaintiff, Marc LaFleur, general damages in the amount of $500 and punitive damages in the amount of $1,500:
(c)Their costs of these proceedings to include a counsel fee of $300;
(d)Prejudgment interest on the general damages only from July 26, 2003 to the present to accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43.
Judgment accordingly.