Cousin Steals from Own Family Member – and Gets Slapped with $5,000 in Punitive Civil Damages
Although it still technically relates to “family” matters, a recent Ontario civil case was still interesting even though it falls outside the realm of the topics I normally cover.
The court set the stage:
On the morning of Wednesday, June 8, 2011, [the victim] left the house at 8:30 a.m. for his regular golf game. His wife … went to play tennis. Sometime between 9 a.m. and 11 a.m., someone entered the house, proceeded to [the victim’s] home office, used a key hidden in a briefcase to open a locked armoire, and removed jewelry, cash, and a Personal Video Recorder (PVR) which was part of a home security system and was hidden in a closet. Nothing else in the house was disturbed. The [victim] contacted the police the same day, and retained a private investigative agency two days later to attempt to locate the jewelry and find the perpetrators.
It turned out to be an “inside job” by the victim’s own first cousin, Esposito, and the victim’s housekeeper. The court detailed how the victim had hired and occasionally loaned money to Esposito, who had no source of regular income and admitted to a gambling habit.
At the civil trial brought by the victims to have Esposito held liable for conversion and damages, the court had no trouble disbelieving Esposito’s evidence. Among other things, he initially denied outright that he had any phone conversations with the housekeeper, until his phone records were produced at trial. These showed 139 calls up to the date of the theft (including 7 on the morning of the theft alone), and only 2 calls afterward. The phone records also showed lengthy conversations with her that Esposito claimed not to remember, or could not adequately explain.
The court also found that Esposito had first-hand knowledge of the cousin’s daily routine, knew the layout of his home, and had an obvious motive (in the form of the gambling habit). Especially with his shoddy credibility, the court readily found Esposito to have been either the culprit, or else the mastermind behind the theft.
After finding him personally liable for damages for conversation and trespass, as well as breach of confidence, the court ordered him liable for the value of the jewelry and sums of cash in various currencies.
But what was especially interesting about the case, was he court’s decision to impose a hefty award of punitive damages against Esposito in these circumstances. The court wrote:
I award punitive damages given the intrusion on the privacy and security of Esposito’s cousin and his family, the important sentimental value of the jewelry which was made known to Esposito within six days of the theft; and the betrayal of a cousin and misuse of family ties. [The victim’s] evidence was that he trusted Esposito because he was a family member. Esposito’s conduct must be denounced. I award $5,000 in punitive damages.
What’s interesting about this case is that it’s a civil matter – not a criminal one – and is designed to restore the victim to where he was pre-theft, through the award of damages. Although the court has the right to impose punitive damages in appropriate cases, it’s a bit unusual to have a court increase the awarded damages to account for the fact that the victim and perpetrator were both members of the same family.
What are your thoughts on that?
At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com