Profession Provincial Taxation

The Samaroo Case: CRA slapped for malicious prosecution by BC Supreme Court

It's not unusual for immigrants to avoid banks, even stashing $100 bills. The onus was on the CRA to prove its case. It failed.

Author: Colin Ellis

TORONTO, March 16, 2018 – The recent ruling by the BC Supreme Court to award $1.7 million for malicious prosecution by the Canada Revenue Agency to a Vancouver Island couple was met with satisfaction by many Canadian tax accountants and lawyers. 

Some, such as Tim Cestnick in the Globe and Mail, spoke out against the “unfortunate culture within the CRA,” while others, such as John Grant of Miller Thomson, took a more balanced approach, pointing to the “odd bad apple” in an organization as large and diverse as the CRA. 

It’s worth noting the unusual nature of the case and that it involved the steady transfer of $100 bills, accumulated over more than three decades, from safety deposit boxes to various accounts. In a scathing indictment, Justice Robert Punnett found that Tony and Helen Samaroo of Nanaimo were the victims of an “egregious” prosecution, and of “highly blameworthy” and “reprehensible” conduct. 

The back (taxes) story

Tony Samaroo immigrated from Trinidad to Canada over 30 years ago and began his career as a cook. He and his wife were equal shareholders of three corporations that owned and operated the Harbour Light Motel in Nanaimo, a restaurant, night club and motel combination. In 2008 they were charged with 21 counts of tax evasion for allegedly skimming $1.7 million from the business. 

According to court documents, the Samaroos, based on their experiences in Trinidad and China, did not trust banks. Tony Samaroo began accumulating savings as early as 1970, which he stored as $100 bills in his home and later in safety deposit boxes. The Samaroos also had inheritances that were stored in the same manner. However, when Tony Samaroo heard that the Canadian government was discontinuing the old $100 bills in 2004, he began depositing the bills to various bank accounts. 

“This is not a normal fact pattern,” says Canadian Accountant columnist and prominent tax lawyer David Rotfleisch, “but every person has unique circumstances. Large cash deposits that are not unreported income are common. Many immigrants deal in cash due to cultural or bank issues back home. They often bring cash from their home country.”

According to Rotfleisch, the CRA invariably considers these amounts to be unreported income regardless of the evidence presented and credibility of the reasons. The CRA’s investigators claimed the Samaroos had understated income of $1,791,169. Tony and Helen Samaroo were assessed unpaid taxes in the amount of $512,776 each. 

Savings of that amount would be large, says Rotfleisch, “however the CRA methodology in coming up with this amount [was] seriously flawed, the lack of capital cost allowance accounting for well over half. The explanation as to why the amounts were deposited — fear that the old bills would no longer be acceptable — is entirely reasonable. 

Indeed, the Crown found that the CRA did not interview the Samaroos before doing its net worth analysis and did not include the cash on hand which was in the form of savings and inheritances nor did [it] factor in capital cost allowance over the years involved. “[The agent] relied on historical data, the seized documents and his own notional figures to determine their net worth to support his theory that they could not have saved over a million dollars.” 

To Rotfleisch, it is clear that the prosecution was completely unreasonable. "I find the most damning fact to be that, even after CRA lost the prosecution, the investigator was still convinced of [the Samaroos’] guilt.” 

Malicious and reprehensible behaviour

The Samaroos took the CRA to court for malicious prosecution and, seven years after the original ruling, finally had their day in court. The judgment is also noteworthy for its bookkeeping and personal issues involving the interaction of all involved. 

In the end, however, Justice Punnett found that the conduct of the CRA “must be denounced. It affected the reputations of the plaintiffs, their professional lives and their family lives. It involved the concealment of exculpatory evidence. It involved the power imbalance of the State over the individual. It violated fundamental rights and was highly reprehensible.” 

In his ruling, the Justice noted that, as a taxpayer-funded agency, “No amount of punitive damages will cause the CRA financial hardship,” but awarded damages to the plaintiffs against the Canada Revenue Agency as follows: $347,731.74 for legal fees and disbursements incurred in the defence of the tax evasion charges plus pre-judgment interest; $300,000 to each of Tony Samaroo and Helen Samaroo for aggravated damages; and $750,000 in punitive damages. 

The CRA has 30 days to appeal the decision, from the date of the judgment. 

For your convenience, we have included the two judgments, below:

Tony Samaroo, Helen Samaroo aka Lai Sheung Ng, M.G.M.Restaurants Ltd., Samaroo Holdings Ltd.

REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.E.SAUNDERS

Counsel for the Crown: B.Jones; R.Gibson

Counsel for the Accused: S.Kelliher for Tony Samaroo; C.Tollefson for H.Samaroo; Jones, Q.C. for M.G.M. Restaurants Ltd. and Samaroo Holdings Ltd.

Place of Hearing: Nanaimo, B.C.

Dates of Hearing: Feb 1-3, Sept 21-24, Nov 15-19, Dec 13-16, 2010; Feb 21-24,2011

Date of Judgment: April 6, 2011

INTRODUCTION

[1] Tony Samaroo, Helen Samaroo (also known as Lai Sheung Ng) (the “Samaroos”), Samaroo Holdings Ltd. (“Samaroo Holdings”) and MGM Restaurants Ltd. (“MGM”) are charged with the contravention ofsections 239(1)(a) and (d) of theIncome Tax Act(“ITA”) andThe bookkeeper Debbie Ferens (witness  4:  The accused provided only two of the three daily till tapes to their bookkeeper Debbie Ferens to February 28, 2006.

      • Debbie Ferens (witness 1” and “till tape 2 sales data and a summary column of those two days till tapes, and this is attached with the till tapes for that month as provided to her by Tony Samaroo.

Element 4: The accused provided only two of the there till tapes to their bookkeeper Debbie Ferens to February 28, 2006. 

      • Debbie Ferens will be able to attest to having met the CRA auditor, Glen Foster on March 21st of 2006 and informed him that she has only ever received two MGM till tapes per day from Tony Samaroo for the period under audit.
      • Debbie Ferens will not be able to state that she knew which till tape shift she received during the periods leading up to February 2006: the morning, the evening or the graveyard shifts, as she only posted the data from the filled out daily sales sheet summary provided to her with the till tapes from Tony Samaroo.

[217]     Mr. Kendal did not reference Ms. Ferens’ second interview, nor did he mention that she could not say how many till tapes she received. Mr. Kendal also did not reference the second interview in his January 10, 2008 telephone call with Ms. McLean. Her notes indicate that the CRA could prove the plaintiffs had additional income after the audit period, but could not prove if and when the funds were skimmed, or from which corporation, or how the plaintiffs did so. When Mr. Kendal wrote what he did in the Prosecution Report, all the CRA had was the evidence of cash deposits and payments made by the plaintiffs in 2004 and 2005, and Mr. Samaroo’s explanation about where the extra income came from. The CRA could also not explain how the plaintiffs could alter the daily sales summary sheets to skim cash but still account for the debit and credit card sales.

[218]     Mr. Kendal testified that he knew Mr. Alan Jones had “probably” created a series of pre-typed questions before the search to be used to interview Ms. Ferens and Mr. Heese. Mr. Kendal testified that it would be the CRA’s normal practice to prepare questions in advance, and that they had hoped to interview both Ms. Ferens and Mr. Heese. Mr. Kendal also testified that he knew it would be Mr. Finlay or another individual who would conduct the interviews of Mr. Heese and Ms. Ferens.

[219]     Mr. Kendal attempted to explain his statements in the Report by stating that he wrote what he thought Ms. Ferens would say. The following exchange during cross-examination is relevant:

      1. Let’s just deal with bullet there 1 under “Element 3” again: She’ll be able to explain that she received a filled-out daily cash report summary sheet for each day of the month, with till tape number 1 sales data, till tape number 2 sales data, and a summary column.

            Where did you get that information?

      1. That’s my own words, saying “till tape number 1” and “till tape number 2,” “sales data.”
      2. Right.

      1. So the first column would be “till tape number 1,” the second column would be “till tape number 2,” in my words.
      2. Right. And when you say – when you preface that, you don’t say, “Oh, these are my words,” do you? Does that appear somewhere in the bullet?
      3. Well, you know what, this 50-page report is my words.
      4. All right. In this bullet, do you say, “I’m going to say this; I can say this”?
      5. No.
      6. Do you say that in there? No?
      7. I’ve said all along this is a draft witness report for Deborah Ferens, who I haven’t interviewed at this point in time. I’m anticipating her saying this.

[220]     I do not accept Mr. Kendal’s explanation that he wrote what he thought Ms. Ferens would say. He did not explain why he would anticipate her saying something that he knew was contradicted by what she had said in her second interview conducted by Mr. Finlay. Mr. Kendal’s statements in the Prosecution Report are not true and are misleading.

[221]     I find that Mr. Kendal hoped that if he interviewed Ms. Ferens for a third time, he could obtain the evidence from her that he required to establish the basis for his theory of the case. Indeed, when he structured his written questions for the 2010 interview it is clear that he anticipated getting her to say that she only got two till tapes for each day. The questions he asked are illuminating, given his previous failure to properly state Ms. Ferens’ evidence.

[222]     For example, as noted previously regarding what information was contained in the daily sales summary sheets, Mr. Kendal first asked Ms. Ferens why the document had only two columns. Then, as though anticipating her response that she did not know, the next question he asked was whether she recalled stating to the auditor, Mr. Foster, that she had only ever received two till tapes of data. However, she did not tell Mr. Foster she only received two till tapes and Mr. Kendal knew that. This is the evidence that Mr. Kendal wrongly attributed to her in his Prosecution Report. Instead, she told Mr. Foster she received a sheet that in her mind showed only two ring offs, and showed the auditor a sales summary sheet with two columns but no designation of ring-offs or till tapes.

[223]     These are written questions prepared in advance when the author, Mr. Kendal, knew she had never said she only received two till tapes. It has the appearance of seeking to obtain from the witness evidence already wrongfully attributed to her. It is also of note that Mr. Kendal failed to refer to the Finlay interview of Ms. Ferens despite the obvious importance of her answers in that interview.

[224]     It is also telling that earlier in the investigation he had reported that Ms. Ferens had refused to be interviewed which was not correct as she only sought questions to be provided to her counsel. I conclude that it was important to him to interview her personally as he sought to support the evidence he had attributed to her throughout.

[225]     To reiterate, Mr. Kendal knew of Ms. Ferens’ evidence given to Mr. Foster and clarified in her second interview with Mr. Finlay. He knew that she could not say how many till tapes she received, or what information was included on the summary sheets. By as early as 2007, he knew he could not show what shifts were included in the summary sheets for 2004 and 2005.

[226]     Despite this, Mr. Kendal continued to facilitate the prosecution, and continued to suppress the evidence from Ms. Ferens’ second interview.

[227]     Neither Mr. Kendal nor Mr. Brian Jones mentioned Mr. Finlay or his interview in the criminal trial. Even in this malicious prosecution trial Mr. Kendal did not mention the existence of the second interview with Ms. Ferens in his direct testimony. Instead, he testified that in preparing his Reports, he relied on Ms. Ferens’ remarks to Mr. Foster:

      1. Where did you get all of this information that you’re reporting to thePPSC about Deborah Ferens?
      2. I’m getting this information from my interviews with the auditor thatgoes into finalizing his witness report and this T2020 notes as the starting point.

[228]     He also admitted in cross-examination that he did not mention Mr. Finlay’s interview with Ms. Ferens in his direct testimony, despite having reviewed Mr. Finlay’s notes in the week prior to this trial:

      1. Mm-hmm. Have you read the Terry Finlay notes of Deborah Ferens’ interview prior to attending court and testifying in chief?
      2. I have read all these binders that you provided for me -
      3. Yes or no, sir, if you could?
      4. Yes, I read through every tab of information provided to me.
      5. All right. So the existence of the Terry Finley interview of Deborah Ferens was fresh in your mind at the time you took the stand; correct?
      6. It wasn’t fresh in my mind, but I had read it in the prior week.

[229]     His explanation for his failure to mention Ms. Ferens’ second interview at any time in the criminal prosecution was that he had other evidence he considered sufficient, which I take to mean the “material facts” set out above. These facts amount to no more than a suspicion, a theory, and cannot be said to constitute reasonable and probable grounds for Mr. Kendal to believe he could prove the plaintiffs’ guilt beyond a reasonable doubt.

[230]     I conclude that despite what he said in his Prosecution Report, Mr. Kendal understood that the theory that only two till tapes were being reported could not be proved by the sales summary sheets and that Ms. Ferens could not testify to that. He clearly appreciated that the summary sheets could include information from three ring-offs or shifts. In his evidence he confirmed that he knew the daily sales summary sheet showed two columns of data but did not know how many till tapes it represented and in particular whether it represented two or three till tapes or shifts.

[231]     I am satisfied this conduct is consistent with Mr. Kendal’s earlier misstatement of Ms. Ferens’ evidence and demonstrates his continued attempts to conceal the existence of the Finlay interview because its exposure would destroy the Crown theory. The evidence of Ms. Ferens was required to prove the funds in question were unreported income. Her evidence was essential to prove the actus reus, that is the overt acts of the alleged offences of tax evasion. Mr. Kendal knew that he did not have reasonable and probable cause to believe that guilt could be proved beyond a reasonable doubt based on the evidence he wrongly attributed to Ms. Ferens.

[232]     However, it is also important to address Ms. Ye’s evidence because, as mentioned, at trial the defendants’ characterization of the actus reus changed. Since the evidence of Ms. Ferens would not prove the Crown’s case, Mr. Kendal turned to Ms. Ye.

[233]     I have previously outlined the sequence of interviews of Ms. Ye by Mr. Kendal. During the first two interviews, Ms. Ye only mentioned the use of a single daily sales summary report sheet with columns labelled “day”, “night” and “days total”. Ms. Ye did not mention anything about a second daily summary sheet in those interviews.

[234]     However, in her third interview in February 2010, Ms. Ye apparently changed her story and said there were two daily sales summary sheets prepared each day, leading to the implication that the plaintiffs were not reporting a second sheet setting out the graveyard shift income.

[235]     Mr. Kendal testified in cross-examination that the first time the existence of the second daily summary sheet entered his mind was when Ms. Ye disclosed it during this interview. However, in cross-examination Mr. Kendal was confronted with the 2010 will-say of Ms. Ferens, which was typed up before Ms. Ye’s third interview, and in which Ms. Ferens was purported to have corroborated Ms. Ye’s new evidence by saying she only ever received one daily summary sheet for each day. The notes of Ms. Ferens’ final interview with Mr. Kendal disclose that she was never asked how many daily sales summary sheets she received.

[236]     Mr. Kendal attempted to explain this problem by testifying that after he was told about the existence of a second sheet, he went back and altered Ms. Ferens’ will-say to include the corroborative statement. This is a misrepresentation of Ms. Ferens’ testimony. It appears to have been an attempt to corroborate the evidence of Ms. Ye respecting the new theory that there were two daily sales summary sheets.

[237]     If this new theory were true and Ms. Ferens only received one of two daily summary sheets, the result would be that it was the income from the graveyard shift that was not being reported, as opposed to the more lucrative day and afternoon shifts. This is problematic because it means it would be impossible for the defendants to prove the plaintiffs evaded taxes in the amount set out in the Information and the Prosecution Report.

[238]     I find that Mr. Kendal continued to pursue the prosecution based on a theory he knew that he could not prove, and then by proceeding on a theory that could not be corroborated he significantly overstated the degree of the plaintiffs’ alleged tax evasion. I conclude that objectively Mr. Kendal did not have reasonable and probable grounds to believe that he could prove the actus reus of the offence of tax evasion against the plaintiffs beyond a reasonable doubt.

[239]     Turning now to Mr. Brian Jones. Mr. Jones testified that after learning of Ms. Ye’s new evidence respecting the “missing sheet”, he did not think this meant the graveyard shift was likely not being reported. He said he did not turn his mind to how that would have affected the calculation of the quantum alleged to have been evaded. It is difficult to understand how he could have not concluded that it was the graveyard shift that was not being reported based on Ms. Ye’s new allegation.

[240]     As I have said, the allegation made by the defendants all along was that the plaintiffs and their corporations evaded tax in the tax years 2004 and 2005 by failing to provide one of the three daily till tapes to Ms. Ferens, resulting in a personal enrichment of about $50,000 per month. When Mr. Brian Jones learned of Ms. Ye’s new evidence, it should have been apparent that he could no longer prove the charges as they were alleged. This also should have been clear given Mr. Jones knew of the Finlay interview.

[241]     As is evident from these reasons, when the charges were laid the defendants lacked evidence of the overt acts or actus reus of tax evasion. The only inculpatory evidence of the actus reus that Mr. Kendal included in the Prosecution Report were his own views of what he hoped Ms. Ferens would say. Unfortunately, this lack of evidence was not remedied throughout the course of the investigation and prosecution. The defendants did not have the till tapes or daily sales summary sheets from tax years 2004 and 2005. They did not have evidence that Ms. Ferens only received two out of three till tapes. In 2010, they had Ms. Ye’s evidence that allegedly there were two daily summary sheets, but even then had no means with which to corroborate or substantiate this allegation, nor to reconcile it with the quantum of the plaintiffs’ alleged evasion.

[242]     As Ms. McLean recorded in her notes of her telephone call with Mr. Kendal dated January 10, 2008: the CRA could prove the plaintiffs had the money, but not anything about whether it was skimmed, when it was skimmed, from which corporation it was skimmed, nor how the plaintiffs did so. The theory of the prosecution was founded on an assumption, which could not be proved. Neither the CRA nor Mr. Brian Jones ever advanced a theory of how Mr. Samaroo may have altered the summary sheets to skim the cash component, but still account for debit and credit sales. When Mr. Brian Jones told the court that Mr. Samaroo did so with “magic”, his failure to have properly assessed his ability to prove the mechanics of the actus reus of the offences is apparent.

[243]     In addition I note there was never an explanation given as to how Ms. Helen Samaroo may have been involved in this alleged scheme of evasion.

[244]     To summarize, the defendants had no evidence to prove, and knew they could not prove, whether the plaintiffs were providing only two of the three till tapes to Ms. Ferens, or which of the three till tapes. This meant they could not prove the actus reus of the offence of tax evasion, nor could they ever hope to prove the quantum of the evasion. As in Proulx, the charges against the Samaroos were founded on an assumption, and grounded in mere suspicion and hypotheses, which did not and could not constitute reasonable and probable cause as that term is uniquely defined in the tort of malicious prosecution.

[245]     This prosecution should never have proceeded. It was undertaken without reasonable and probable cause. The third element required by Miazga is satisfied as against all defendants.

Discussion of Malice

[246]     The plaintiffs submit that the defendants were motivated by malice or they had a primary purpose other than carrying the law into effect.

[247]     The claim of malice starts with Mr. Kendal’s initial response to the investigation. From its inception he rejected the explanations of the plaintiffs for their accumulation of cash. He rejected the explanation of their accountant, Mr. Heese. His response to their explanations was to plan “to deflect the defence of a lifetime of savings” and to “defuse” their position. He did not start from a neutral position and then see where his investigation might take him. Rather, he had his mind made up from the beginning and set out to have the plaintiffs charged and convicted. His sole interest was to collect incriminating evidence and to discount or ignore evidence that did not support his prejudgment. He saw his investigative task as not to fairly examine and report the evidence of the plaintiffs but instead to discredit it.

[248]     I am satisfied that he was and remains convinced that the plaintiffs had misappropriated $50,000 per month in revenue from their restaurant. He testified that he still believes the plaintiffs are guilty of tax evasion and would, if given the chance, prosecute them again on the same theory and the same evidentiary basis:

      1. Sir, today is it your belief that the Samaroos are guilty of the offences set out in the information that was before the provincial court judge?
      2. The information you mean as charges sworn?
      3. Yes.
      4. Yes.
      5. Sir, you have absolutely no remorse for what you’ve done, do you?
      6. I have objectively done the job that’s assigned to me.
      7. Is that “No, I have no remorse”?
      8. I have no remorse.

[249]     Mr. Kendal developed a theory of how the tax evasion had occurred. That theory was that one shift’s income was not being reported. He determined that was being done by means of only two till tapes representing two shifts being provided to Ms. Ferens. He became aware however there was a problem proving that only two till tapes were being provided given the statement Ms. Ferens provided to Mr. Finlay. As I noted above in the discussion on reasonable and probable grounds, it was clear that allegation could not be proven through her, based on the Finlay interview which Mr. Kendal failed to disclose to the PPSC and intentionally tried to supress.

[250]     In this way, Mr. Kendal misled Ms. McLean by telling her that the bookkeeper had yet to be interviewed on the issue of proof of her only receiving two till tapes. Ms. McLean had asked him to interview the bookkeeper and seek answers to some very specific questions respecting the till tapes. He agreed to do so.

[251]     When he sought to interview Ms. Ferens and Mr. Heese in February 2008, Mr. Heese wrote to him saying that such requests for information should be directed through their lawyer. As I mentioned earlier, Mr. Kendal’s evidence in direct was that Mr. Heese and Ms. Ferens outright refused to be interviewed. When asked about submitting the request through their lawyer he stated he did not want to proceed in that manner. Given the very specific questions asked by Ms. McLean Mr. Kendal provided no good reason for not submitting such questions to Ms. Ferens through her lawyer.

[252]     When informing Ms. McLean of the situation Mr. Kendal only told her that Ms. Ferens did not want to be interviewed. He did not mention the offer to provide the information through her lawyer. He also continued to fail to disclose the second interview of Ms. Ferens. Mr. Kendal’s concealment of the second interview is reflected in his reports not only to the PPSC and defence counsel but also to his own team leader, Mr. Alan Jones. Mr. Kendal’s conduct was inexcusable. He was well aware of the reliance that would be placed on his investigation and resulting report yet subverted the prosecution by supressing evidence and attributing evidence to others that he created.

[253]     I find that Mr. Kendal attempted to conceal the existence of the Finlay interview during his testimony before this Court for two reasons:

      1. a)First, to mitigate the negative affect the evidence would have on the Crown’s case; and,
      2. b)Second, to conceal his own wrongdoing in investigating and initiating the prosecution of the plaintiffs.

[254]     That failure was further exposed by the manner in which he dealt with the 2010 witness statements of Ms. Ye and Ms. Ferens. As noted above, he altered Ms. Ferens’ will-say to reflect the new evidence given by Ms. Ye in her third interview. He forwarded these will-says to Mr. Brian Jones on March 3, 2010.

[255]     In addition to the above the evidence of Mr. Kendal raised more general concerns. Those concerns relate to his credibility generally and his views of the guilt of the plaintiffs.

[256]     Mr. Kendal had a curious approach to witness interviews stating he writes down what he expects the witness to say and as noted above will update earlier witness statements where appropriate without further discussion with the witness. This fundamentally undermines the purpose of a witness statement, that is, to record the evidence of a witness.

[257]     Proof of malice requires proof on a balance of probabilities that in the role of an investigator, Mr. Kendal acted deliberately to subvert and abuse his office. I find that he did so. He did so by supressing evidence and attributing evidence to witnesses that was not accurate. He had decided from the beginning of his involvement with the Samaroos that they were guilty and set out to prove that was the case even if to do so required a breach of his proper role and responsibilities. He knowingly misstated evidence essential to the proof of the actus reus despite being aware of its importance, filed a misleading report knowing it would be relied upon to authorize the prosecution and then having achieved that end swore the Information all in the hope of convicting the plaintiffs. His purpose was improper. I am satisfied that malice has been vicariously established as against the CRA as a result of the conduct of Mr. Kendal.

[258]     As a witness, I found Mr. Kendal to be argumentative, evasive, inflexible and reluctant to concede what clearly should have been conceded. He wrote the Prosecution Report as an advocate not an investigator. He presented the evidence in a way designed to mislead both the PPSC and Mr. Brian Jones. His clear intent was to see that criminal charges were laid. The presumption of innocence appeared to be meaningless to him. The manner in which he approached the evidence was not objective. He had his theory and he then sought to prove it.

[259]     There is also evidence that Mr. Kendal’s approach may indicate an unfortunate culture within the CRA. For example:

      1. a) Alan Jones wrote in his Primary Report that two other factors related to the case being selected for a full investigation:
      2. The restaurant and night club industries were those with a high rate of non-compliance; and,
      3.   CRA had not prosecuted a business in the restaurant or nightclub industry in the Nanaimo area recently.
      4. b)Then, when the charges were laid and reported in the local paper on August 27, 2008, Christopher Gibson of Mr. Brian Jones’ office emailed Mr. Kendal a copy of the newspaper coverage of the charges published in the Nanaimo Daily News. The next day, on August 28, 2008, Mr. Alan Jones wrote to Mr. Brian Jones and said: “Front page of Wednesday’s Nanaimo Daily News. I can’t wait to read the edition after the guilty verdict”.
      5. c)In email correspondence between Mr. Alan Jones and Mr. Brian Jones respecting the number of counts in the information Mr. Alan Jones wrote:

Besides, after 85 charges, doesn’t a guilty verdict call for a guillotine?

      1. d)The CRA seeks to publicize convictions for tax evasion: “to draw attention to the consequences of tax evasion and fraud” (Canada Revenue Agency, The Criminal Investigations Program, online: Compliance <https://www.canada.ca/en/revenue-agency/programs/about-canada-revenue-agency-cra/compliance/criminal-investigations-program.html>) On the same website page, the CRA boasts under the heading “Getting [R]esults” that in 2016-2017 federal prosecutors working with the CRA’s criminal investigations department had an 89% conviction rate. The CRA also advertises that from April 1, 2016 to March 31, 2017, the CRA obtained convictions of 37 taxpayers, and court sentences totaling about $10 million in fines and 50.6 years of prison time. One can even “subscribe” to receive enforcement notifications from the CRA, and they will email you when they add or update an enforcement notification on their website (Canada Revenue Agency, Enforcement Notifications: Compliance Actions, online: CRA Newsroom <https://www.canada.ca/en/revenue-agency/news/newsroom/criminal-investigations-actions-charges-convictions.html>).

[260]     I turn next to the alleged malice of Mr. Brian Jones.

[261]     As discussed Mr. Brian Jones prosecuted the tax evasion charges in the Provincial Court of B.C. He is an experienced criminal lawyer having practiced in the field since 1977. The plaintiffs’ allegations against Mr. Jones are that he failed to bring an independent mind to charge approval and to the sentence sought should a conviction be obtained. The plaintiffs submit that he simply used his position to do the bidding of the CRA and failed to stand as an independent officer between the wishes of the CRA and the criminal justice system. They allege as well that he subverted the office of the Attorney General for financial gain.

[262]     The manner in which charge approval proceeded has been explained. I am satisfied that Mr. Brian Jones failed to independently assess the proposed charges in accordance with the obligations of Crown counsel. As noted earlier no memorandum addressing the applicable requirements was prepared. Instead the drafting of the Information was primarily left to the CRA, Mr. Alan Jones and Mr. Kendal. The manner in which the charges were finalized and pursued appears contrary to the FPS Deskbook warning referred to earlier that counsel should fulfill their duty “by not becoming simply an extension of a client department or investigative agency”.

[263]     The plaintiffs submitted there are inherent dangers that arise where prosecutors are hired on contract as opposed to being full-time government employees. They note the risk that hired agents will be motivated to maximize profit and that they will face competing duties to the department they are dealing with and their obligations as Crown counsel. They note that Mr.  Brian Jones and his firm’s billings for their work as Crown agents for the years 2008-2015 represented 100% of their work during those years. Those billings ranged from a low of $1.2 million per year to a high of $2.7 million per year. They submit as a result Mr. Brian Jones had an incentive to conduct prosecutions to increase his profits and to satisfy the PPSC and the CRA who had the power to refer or not refer cases to him depending on his performance. They note it was Mr. Kendal who actually approved Mr. Jones’ accounts for payment.

[264]     Thus the plaintiffs rely on the allegation that because Mr. Brian Jones relinquished his independence, was in a financial position of conflict of interest and suppressed key evidence, his conduct falls at the highest end of the spectrum of blameworthiness and constitutes malice. They submit he sought to secure a conviction at any cost by misleading the court and the defence and that he did so by putting his office to the service of the CRA.

[265]     I turn first to the allegation that Mr. Brian Jones supressed critical evidence.

[266]     In his closing submissions to the Provincial Court Mr. Brian Jones did not mention Ms. Ferens’ unreported till tape theory that had so recently, and for the previous two years, been the clear, “black and white” theory of the Crown and for the first time took the position that the overt acts being alleged by the Crown were now based on the evidence of Ms. Ye:

Mr. Brian Jones: Well, I'm sorry, Your Honour, I haven't -- obviously I haven't been effective in advising you what the theory about this all came about is, as it's -- it's our theory that there were three shifts –

The Court: And three columns?

Mr. Brian Jones: There were two separate pieces of paper.

The Court: And you're basing that on what Ms. Ye has to say?

Mr. Brian Jones: I am.

The Court: And so you're saying that they came and removed the proceeds from the third shift and the second piece of paper, that's what the Crown's theory is, that the Samaroos took all the proceeds from the third shift, cash, debit, credit, all those, cheques and everything else, and removed the second piece of paper so that they could take all of those proceeds? It doesn't make sense because surely the debit and the credit has to match up with the bank statements and all of that sort of thing.

Mr. Brian Jones: They do.

[267]     In an effort to explain the overt acts by which the Samaroos were alleged to have committed tax evasion Mr. Brian Jones submitted it was “magic”:

Now, it’s true that Ms. Ferens received one bag per day, but there were three bags going into the back office, which was where Mr. Samaroo did his magic with the cash.

[268]     Troublingly, Mr. Brian Jones testified in cross-examination that in his mind there was no difference between the information set out in the Prosecution Report regarding the evidence of Ms. Ye and Ms. Ferens, and the contents of their 2010 will-say statements and interview notes. He testified that he did not turn his mind to the concept of whether the Crown could prove that Ms. Ferens only received two of the three till tapes without the evidence attributed to her by Mr. Kendal in the Prosecution Report. Nor did he turn his mind to the implications of the maximum cash that could have been misappropriated if it were the graveyard shift that was being unreported. He went so far as to testify that Ms. Ye’s evidence did not mean that it was probably the graveyard shift that was not being reported.

[269]     When put to him that if it was the graveyard shift not being reported that would only account for about $500 per day or $240,000 unreported income over these years he stated:

      1. All right. So on the Ye evidence you could prove a misappropriation of a total of $240,000; right? On the Ye evidence?
      2. If I was going just on her evidence and not on the analysis done by Mr. Kendal with all the bank records?
      3. Right.
      4.         I don’t know. I never approached it from that angle.
      5.        But when you were aware what she was going to testify to, didn’t you say to yourself, “Where in the world am I going to come up with the $1.7 million? Where did the money come from?”
      6. No, I didn’t have that thought in my head.
      7. Where did you think the money came from?
      8. The money came from the underreporting of income from the restaurant, payment for wages, and supplies in cash.
      9. No, sir. Where did it come from? How did they take it from the restaurant? How did they take $1.7 million over two years from that restaurant?
      10.         The actual mechanics, it’s – we know that Deborah Ferens didn’t get all the information from the restaurant. She did enter the information she received into her spreadsheet, which found its way into the tax returns. Mr. Kendal in his analysis was able to show there was a lot more money coming into the corporation, going into the personal accounts – by money I mean cash, so we didn’t have anything in terms of source documents from the audit period. So we knew what had happened. Precisely how it had happened, I don’t think we had that information.
      11. So you knew there was $500 -- approximately $500,000 cash going into the personal account, $500,000 going into the corporate account, but you couldn’t prove exactly how it came from the restaurant to get there; is that right?
      12.         Well, we – we could show that the information came from Mr. Samaroo via the daily cash report to Ms. Ferens, and Ms. Ferens took that information and put it into the tax return. We can show that.
      13. Right. You could show the information came from Samaroo to Ferens?
      14. Yes.
      15. It came from Samaroo to Ferens, we know, on the cash sales summary sheet. We know from Ye that it was only the graveyard shift that wasn’t being reported; correct?
      16.         No, I wouldn’t go that far.

[270]     What was required to prove the actus reus based on the evidence of Ms. Ferens was clearly a problem for the prosecution. However, Mr. Jones’ reliance on the “analysis” of Mr. Kendal obscured the problem of proving the mechanics of the actus reus. In addition it was equally clear that suddenly relying on the new “second sheet” theory completely undermined the theory of $50,000 a month not being reported given it depended on non-reporting of the graveyard shift which produced approximately $500 per day in cash sales. Yet again the reliance on Mr. Kendal appears to have caused Mr. Jones to believe that they could still prove the case in a manner similar to the defence position on this trial.  

[271]     Mr. Brian Jones had opened the Provincial Court trial and conducted the trial on the basis that there was a missing till tape not delivered to Ms. Ferens. It was only on the last day of trial in his closing that Mr. Brian Jones asked the court to prefer the evidence of Ms. Ye.

[272]     The plaintiffs submit that the reason Mr. Brian Jones proceeded to trial on the till tape theory was to set the stage for the excuse, when he ultimately relied on Ms. Ye’s evidence, that he had first heard her new theory when she testified, which is what he said during his examination for discovery. The plaintiffs submit that Mr. Jones answered in the way that he did because he had prepared this answer for Judge Saunders in anticipation of being asked why, after all his previous assurances that the Crown was relying on the missing till tape theory, he was now advancing the missing sales summary sheet theory.

[273]     As I have noted Ms. McLean was really the only one who recognized from the beginning the need for proof of the actus reus. Because of Mr. Kendal and his misleading Report, those eventually responsible for authorizing the charges were lulled into a complacent acceptance of his Report as sufficient to justify the charges. Simultaneously there was a failure to properly assess the matter and to fulfill the charge assessment and approval obligations of the Crown.

[274]     Regarding Mr. Brian Jones and the issue of disclosure that arose during the trial the plaintiffs submit that the particulars eventually provided in that context were designed to obscure rather than particularize the overt acts that the Crown was required to prove. The plaintiffs submit this was done in the hope that Ms. Ye’s evidence would form a basis for a conviction without having to disclose the existence of either Ms. Ferens’ or Ms. Ye’s 2010 interview statements. The allegation is that Mr. Brian Jones knew full well that he was at that point going to rely on the missing sales summary sheet rather than the missing till tape theory. The plaintiffs submit this was a deliberate deception of both the Court and the defence and as such is evidence of malice.

[275]     It is difficult to understand how Mr. Brian Jones could plausibly have learned about Mr. Ye’s evidence and not conclude that if any shift was not being reported, it was the graveyard shift. The plaintiffs submit that Mr. Jones’ testimony in this regard is not true and that Mr. Jones was prepared to pursue a conviction against the Samaroos on the original theory of the case, no matter the evidence or the cost to the Samaroos. As such they submit this is also evidence of malice.

[276]     The plaintiffs also refer to an incident that occurred while the trial was ongoing. Ms. Ye testified in the criminal trial on December 13, 2010. Professor Chris Tollefson, co-counsel for Helen Samaroo at the criminal trial, testified that on the morning of December 13, before Ms. Ye had testified, defence counsel attempted to interview her at the Nanaimo Courthouse in an interview room. During the interview, Mr. Brian Jones abruptly entered the interview room and interrupted the interview, stating words to the effect of “What’s going on here? She’s my witness!” [Emphasis added.] In cross‑examination, Brian Jones said that he did not recall saying those words but he would not deny that he had interrupted the interview or said those words.

[277]     The inconsistencies and apparent poor recollection of Mr. Jones are concerning and undermine the reliability of his evidence. The evidence reveals a casual inattention to exercising his prosecutorial role and responsibilities. I find that he too readily left control of the prosecution, disclosure and decision making to his client, the CRA. In addition, it appears he may not have had a full understanding of this case. In an email to Ms. Hyman Mr. Brian Jones said that he “barely grasp[ed]” the “concepts involved in this particular case, like shareholder loans”.   

[278]     I am not satisfied that his conduct was the result of his status as an ad hoc agent and his financial dependence on such employment. The plaintiffs relied on materials from the United States respecting the issue and I am not satisfied that the concerns expressed apply to the use of ad hocCrown in British Columbia or to the circumstances of this case. In any event I conclude it has not been established that Mr. Brian Jones pursued the prosecution for such an improper purpose.

[279]     As was noted in Miazga at para. 8:

[8]        The high threshold for Crown liability was reiterated in Proulx, where the Court stressed that malice in the form of improper purpose is the key to proving malicious prosecution. In the context of a case against a Crown prosecutor, malice does not include recklessness, gross negligence or poor judgment. It is only where the conduct of the prosecutor constitutes "an abuse of prosecutorial power", or the perpetuation of "a fraud on the process of criminal justice" that malice can be said to exist (paras. 44 and 45).

[280]     In my view it has not been established that Mr. Brian Jones intentionally sought to abuse or distort the role of a Crown prosecutor. This prosecution proceeded on the investigation and reports of Mr. Kendal, and as a result of changes in responsibility for the file at the PPSC as well as Mr. Brian Jones’ failure to fulfill all of his obligations respecting the charge approval process, charges were “approved” without the PPSC or Mr. Brian Jones fulfilling their respective prosecutorial responsibilities.

[281]     In addition, while Mr. Brian Jones failed to disclose the 2010 will-say statements of Ms. Ferens or Ms. Ye, and changed his argument during the trial from one based on missing till tapes to one based on missing summary sheets, I do not think that he had an improper motive in doing so, nor that this conduct rose to the level of malice. He struck me as a lawyer, who, through negligence or otherwise, gave up control of the prosecution to Mr. Kendal and the CRA and in so doing risked a miscarriage of justice. However, a failure to act properly as a result of negligence or a lack of understanding of the issues or a failure to properly exercise prosecutorial discretion does not in itself amount to malice.

[282]     In summary, I conclude the plaintiffs have not established the necessary element of malice as against Mr. Brian Jones and his corporation.

Charter Claim

[283]     The plaintiffs submit that Mr. Kendal and the CRA intentionally sought to prosecute and convict the plaintiffs in breach of their rights under s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

[284]     The defendants submit that where s. 7 Charter claims are made on the same facts as a malicious prosecution claim they stand or fall together: Skandarajah v. Canada (Attorney General)(2001), 109 A.C.W.S. (3d) 403 (Ont. Ont. S.C.J.) at para. 33; and Oniel v. Toronto (Metropolitan) Police Force(1998), 39 W.C.B. (2d) 503 (Ont. Gen. Div.) at paras. 49 and 51.

[285]     Section 7 of the Charter states:

      1. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[286]     The interests protected by s. 7 of the Charter were described by Justice Lamer in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 at pp. 1172-3:

The state can deprive individuals of life, liberty and security of the person if it is done in accordance with the principles of fundamental justice. In my view, the principles of fundamental justice can provide an invaluable key to determining the nature of the life, the liberty and the security of the person referred to in s. 7. The principles of fundamental justice are principles that govern the justice system. They determine the means by which one may be brought before or within the justice system, and govern how one may be brought within the system and thereafter the conduct of judges and other actors once the individual is brought within it. Therefore the restrictions on liberty and security of the person that s. 7 is concerned with are those that occur as a result of an individual’s interaction with the justice system, and its administration.

[287]     Those rights guaranteed by s. 7 are part of broader, more general values which underlie all of the rights guaranteed by the Charter. This was stated by the Supreme Court in R. v. Oakes, [1986] 1 S.C.R. 103 at p. 136:

The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.

[288]     In the context of a malicious prosecution, the Court in Nelles stated at p. 194:

Further, it should be noted that in many, if not all cases of malicious prosecution by an Attorney General or Crown Attorney, there will have been an infringement of an accused’s rights as guaranteed by ss. 7 and 11 of the Canadian Charter of Rights and Freedoms.

[289]     As I have found the CRA initiated the prosecution of the plaintiffs when it was wrongful to do so, their s. 7 Charter rights have been breached. Mr. Kendal suppressed exculpatory evidence from the defence, and created inculpatory evidence in an effort to secure a conviction. The CRA used the powers of the State in the form of a criminal prosecution to wrongfully and maliciously prosecute the Samaroos.

Damages

[290]     The plaintiffs seek special damages of $347,731.74 for out-of-pocket expenses including legal fees to defend themselves against the malicious prosecution, aggravated damages of $500,000 each, punitive damages of $6,000,000 or Charter damages of $6,000,000. Those sums are premised on findings of malicious prosecution against both the CRA and Mr. Brian Jones and his corporation. As a result their damages claim is a total of $7,347,731.74.

Findings of Fact Relating to Damages Claim

[291]     The impact of the tax evasion charges and the resulting publicity on the plaintiffs and their children was significant and long lasting.

[292]     Their daughter Tricia Miller testified that she grew up in Nanaimo and that the family home was very lively and “joyous” growing up. It was a hub of family activity for their extended family. The charges changed that. She withdrew from people and stopped using the surname Samaroo because of its association with the criminal charges. She said her parents became very quiet and depressed and that her mother showed signs of anxiety. She noted that the restaurant had a special section for RCMP officers and first responders who frequented it but after the charges they stopped coming. Her father ceased working as much and became quiet and reclusive and drank more. She described how the acquittal had no appreciable effect on her parents. Her father has become lethargic, will not socialize and has started chain-smoking. In summary she described the significant negative impact on her parents and the destruction of the life they had built together both in their businesses and home.

[293]     Kevin Samaroo, the plaintiffs’ son, confirmed his sister’s evidence noting that his father deteriorated and his mother was extremely embarrassed by the charges. He described how the family name despite the acquittals was forever damaged. He described his mother as a shell of who she was before, as she would not go to work and would stay in bed all day as she was too embarrassed to go to work or out in public.

[294]     Helen Samaroo testified that her life was turned upside down by the charges. She felt that others now looked at her differently and she felt embarrassed to go to the restaurant and visit with her customers. She said she had worked hard to build up her reputation as a reputable nightclub operator and felt that the charges had ruined her reputation. She testified that the charges had a significant impact on her husband who became stressed and got quieter and quieter and over time worked less and less and stopped socializing. He had cut down on drinking before the charges but began again after they were laid. She said he was smoking more and had lost weight. She said that the charges had a profound effect on their family life and their house ceased being a hub of family life and became quiet. After the acquittal she had a breakdown and she took to bed for about six months. She said that even with the acquittal she will never feel the same again.

[295]     Tony Samaroo testified that because of the charges he had to spend $347,731.74 for him and his wife and their corporations’ legal expenses defending themselves. He testified that he has lost his spirit and his strength. He explained how he used to be very ambitious and worked to grow and expand the businesses. He said that as a result of the charges everything was put on hold. While he had spent years building a good credit rating, after the charges he tried to take out a loan to upgrade the motel but was refused and was told his credit was “shot”. He confirmed that his wife has never been the same since the charges and he now feels like a different person as well.

[296]     He testified that after the acquittal things did not get better and he does not believe he will ever regain his strength. He spends his days watching TV and no longer socializes. He is drinking and smoking more. He prefers to keep to himself. He and Ms. Samaroo no longer live together.

Law of Damages

[297]     The defendants refer to a number of cases illustrating the range of damages awarded in malicious prosecution cases, noting that such cases often address general, aggravated and punitive damages. They referred to: Simon v. Toronto Police Services Board, [2002] O.J. No. 5933 (Ont. S.C.J.); Parsons v. Woodfine (2009), 178 A.C.W.S. (3d) (Ont. S.C.J.); Griffin v. City of Summerside et al, 2006 PESCTD 15, aff’d, 2008 PESCAD 14; Johnson v. Coppaway, 2004 CanLII 9755 (Ont. S.C.J); Dix v. Canada (Attorney General), 2002 ABQB 580; Oniel v. Toronto (Metropolitan) Police Force (2001), 102 A.C.W.S. (3d) 832 (Ont. C.A.); Proulx v. Quebec (Attorney-General), 2001 SCC 66; Klein v. Seiferling, [1999] 10 W.W.R. 554 (Sask. Q.B.); Ferreria v. Marcos, 2015 ONSC 1536; Pearson v. Mian (2006), 153 A.C.W.S. (3d) 112 (Ont. S.C.J.); and Fedorowicz v. Pace Marathon Motor Lines Inc. (2006), 145 A.C.W.S. (3d) 445 (Ont. S.C.J.).

[298]     The defence relies on these cases to establish what they say are the various ranges of damages in malicious prosecution cases. The range established by these cases for general or aggravated damages is $4,000 to $250,000, with most cases falling between $25,000 and $50,000. For punitive damages the range established by these cases is $5,000 to $200,000.

[299]     In each case, the court made an award of damages based on the specific facts of that case, and none of the cases are factually analogous to the case at hand.

[300]     The defence submits that relevant factors considered in assessing damages include:

      1. a)       The nature of the charges and their seriousness and the social stigma arising;
      2. b)       Whether the charges were known to be false;
      3. c)       Whether the plaintiff was arrested, where it occurred and who was present;
      4. d)       The time spent in custody and its effects;
      5. e)       The impact of the charges on the mental state of the plaintiff;
      6. f)        How widely information about the charges was publicized;
      7. g)       Whether the charges were disposed of by stay or acquittal and the length of time those charges were outstanding without reasonable and probable cause;
      8. h)       The impact of the charges on the accused’s family, work and social relationships;
      9. i)        Other amounts awarded under different heads of damage; and
      10. j)        The conduct of the defendant towards the plaintiff.

[301]     The defendants submit that the relevant factors to be applied in assessing damages for each plaintiff in this case are therefore:

      1. a)       Tax evasion charges, while serious, do not carry the social stigma that violent offences do;
      2. b)       The plaintiffs were not arrested;
      3. c)       The plaintiffs did not spend any time in custody;
      4. d)       The time from the laying of charges to acquittal was about 35 months, however depending on the findings of the court as to when the malicious prosecution arose, this time frame may be shorter;
      5. e)       While the fact that the plaintiffs were charged was publicized, so was their acquittal;
      6. f)        There are no allegations that the information in the Prosecution Report about the differences in income between the pre- and post-audit period was false;
      7. g)       There are no allegations that the information in the Prosecution Report that cash used and deposited by the plaintiffs did not come from bank accounts or shareholder repayments by the companies was false;
      8. h)       There are no allegations that the information given by Mr. Samaroo at the trial as to the source of cash funds was known to any of the defendants beyond his statement, provided by himself and his representatives, that he had historic savings;
      9. i)        There is no evidence that the defendants were aware that Mr. Samaroo and Ms. Ye had an affair before that information came out in cross-examination at trial (this factor related to Ms. Ye’s credibility as assessed by the Provincial Court Judge);
      10. j)        The allegations did not affect the plaintiffs’ ability to continue their businesses; and
      11. k)       There is no evidence of express malice towards the plaintiffs.

[302]     The plaintiffs, for their part, rely on the following cases respecting the award of damages sought (among others): Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; Arsenovski v. Bodin, 2016 BCSC 359; and Henry v. British Columbia (Attorney General), 2016 BCSC 1038. In Hill, the Supreme Court awarded $300,000 in general damages, $500,000 for aggravated damages, and $800,000 for punitive damages. In Arsenovski, the plaintiff was awarded $30,000 in general damages and $350,000 in punitive damages against ICBC. In Henry, the court awarded $530,000 in compensatory damages pursuant to s. 24(1) of the Charter, and $7,500,000 to address the vindication and deterrence functions of a s. 24(1) damages remedy.

Special Damages

[303]     Special damages are pecuniary damages designed to compensate a plaintiff for their out-of-pocket expenses. In Arsenovski, Justice Griffin, as she then was, awarded the plaintiff her legal fees and disbursements arising from defending herself in the criminal case (para. 362).

Discussion

[304]     Although initially in dispute the defence conceded the legal fees billed related to the criminal defence. The legal fees and disbursements of the plaintiffs expended in defending themselves on the tax evasion trial totalled $347,731.74. The plaintiffs are entitled to special damages in that sum against the CRA.

General and Aggravated Damages

[305]     In Pearson, referred to by the defendants above, the court assessed damages on an award for malicious prosecution of a police officer. The officer sought damages for emotional shock and distress, damages to his dignity, reputation and emotional injury and for the risk of imprisonment because of the false accusations made against him. The court thus considered general damages in the context of a malicious prosecution claim:

[27]      Three heads of general damages for malicious prosecution were established by Holt C.J. in the case of Savill v. Robert (1698), 1 Ld. Raym. 374 at 378; 91 E.R. 1147 at 1149. They are:

      1. a) damages to a person's "good name, fame, credit and esteem";
      2. b) damages to the person which include an emotional reaction to the prosecution and the risks attendant thereto; and
      3. c) damages to property, which generally refers to financial loss due to mounting a defense or loss of earnings.

[28]      General damages for malicious prosecution are awarded in a manner similar to general damages for defamation. Where a case of malicious prosecution is established, those who advance the malicious prosecution are liable for compensation for the moral damage caused both by the false charge and by the false arrest, in addition to compensation for the Plaintiff's monetary losses.

[29]      The appropriate quantum for general damages must be determined on its own merits by taking into account the particular facts of each case. For the purpose of determining the appropriate measure of damages based on these particular facts, I have reviewed other cases where a Plaintiff has successfully sued for malicious prosecution and compared the harm suffered by the plaintiffs in those cases, with the facts in the case at hand.

[30]      Mr. Danson suggested that the damages awarded in this case should be comparable to the damages jury awarded by the jury to Casey Hill (as he then was) in Hill v. Church of Scientology, [1995] 2 S.C.R. 1130 as, in his view, this allegation of police brutality motivated by racial hatred was "as bad as it gets".

[31]      I do not agree. The materials facts in the Hill case are distinctly different from the facts in this case, and entirely distinguishable.

[32]      The allegation in the Hill case was that a young Crown attorney had mislead a judge and had participated in or aided and abetted others in the opening and inspection of documents which, to his knowledge, were to remain sealed.

[33]      In the Hill case, long before he gave evidence to the OPP in connection with the matters in issue, Scientology kept a file on Hill and had labelled him "Enemy Canada".

[34]      A press conference was held on the court house steps. The CFTO broadcast was seen by approximately 132,000 people. The CBC broadcast was seen by approximately 118,000 people. Approximately 108,000 copies of a Globe and Mail article were circulated. All repeated the allegations.

[35]      Even after contempt charges against Hill were dismissed, Scientology moved to disqualify Hill, suggesting that he would use his position to further his private interest. Scientology continued its attack throughout the trial.

[36]      At paragraph 184, Cory J., for the majority held that:

In considering and applying the factors pertaining to general damages in this case, it will be remembered that the reports in the press were widely circulated and the television broadcast had a wide coverage. The setting and the persons involved gave the coverage an aura of credibility and significance that must have influenced all who saw and read the accounts. The insidious harm of the orchestrated libel was indeed spread widely throughout the community.

[37]      The jury granted a large award for general damages because of the wide dissemination of the false information and the fact that despite their knowledge of its falsity, the appellants continued to publish the libel. As stated by Cory J. at paragraph 187, "This particular case is in a class by itself."

[38]      In Botiuk v. Toronto Free Press Publications Ltd. [1995] S.C.J. No. 69 (S.C.C.), on the other hand, the Supreme Court of Canada upheld an award of combined general, aggravated and present value future pecuniary loss in the amount of $140,000 where a lawyer had reached "a high pinnacle of success" and the attack upon his reputation had severely damaged his health, family relationships, practice, professional and business connections, and social life. The trial judge found Botiuk had been known for twelve years and would be known for many years yet, as "the lawyer who took or kept $10,000 from that community".

[39]      In the trial judgment ofProulx c. Quebec (Procureur général), [1997] R.J.Q. 2516 (C.S. Que), Letarte J. awarded general damages of $250,000.00 (which were ultimately affirmed by the Supreme Court of Canada). In that case, the Plaintiff was a high profile broadcaster whose present and future career were ruined.

[40]      In Naseiro v. Creighton, [1999] O.J. No. 1549 (Ont. Gen. Div.) criminal charges were laid against a bookkeeper by her clients. The charges alleged that she had taken client records and threatened to destroy them unless she was paid. Naseiro spent three days in jail before she could arrange bail. The defendants ultimately withdrew the charges four months later. In that case, Sachs J. awarded $25,000 damages for malicious prosecution.

[41]      In McTaggart v. Ontario, [2000] O.J. No. 4766 (Ont. S.C.J.), the Plaintiff was jailed for 20 months after having been wrongfully convicted of robbery. General damages of $150,000.00 were awarded for breach of Charter rights, along with an additional $20,000.00 in punitive damages. In that case, the Plaintiff called expert psychiatric evidence which established that he was suffering from post-traumatic stress disorder.

[42]      In Klein v. Seiferling, [1999] 10 W.W.R. 554 (Sask. Q.B.), four plaintiffs were wrongfully charged with second degree murder. The plaintiffs were in custody for approximately two weeks. The charges were stayed. The Court determined that all of the plaintiffs suffered humiliation, loss of liberty, confinement, mental anguish, stress, and loss of reputation. In this 1999 decision, the plaintiffs were awarded general damages of $50,000.00, $35,000.00, $30,000.00, and $25,000.00, based on the degree of suffering experienced.

[43]      In Fedorowicz v. Pace Marathon Motor Lines Inc., [2006] O.J. No. 344 (Ont. S.C.J.), Ms. Fedorowicz was charged with a serious criminal offence. The Crown indicated to her that on conviction it would be seeking a custodial sentence unless there was a guilty plea. The criminal charges caused Ms. Fedorowicz' existing condition to regress. These charges were held to be particularly damaging to her name and reputation. The charges remained outstanding for approximately 22 months. The charges went directly to her integrity, reputation and ability to work as a bookkeeper. In that case, she was awarded damages for malicious prosecution in the amount of $35,000.

[306]     Aggravated damages address the intangible losses suffered by a party. As such they are a form of non-pecuniary damages. They compensate for the effect of the defendant’s conduct on the aggrieved party: Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085 at 1099.

[307]     In the context of an intentional tort the Ontario Court of Appeal in Weingerl. v. Seo (2005), 140 A.C.W.S. (3d) 400 (Ont. C.A.), said this at para. 69:

[69]      … The purpose of aggravated damages, in cases of intentional torts, is to compensate the plaintiff for humiliating, oppressive, and malicious aspects of the defendant’s conduct which aggravate the plaintiff’s suffering. …

[308]     Such damages may be awarded where the defendant’s conduct is high-handed or oppressive. In Hill the court said:

[188]    Aggravated damages may be awarded in circumstances where the defendants' conduct has been particularly high-handed or oppressive, thereby increasing the plaintiff's humiliation and anxiety arising from the libellous statement. The nature of these damages was aptly described by Robins J.A. in Walker v. CFTO Ltd., supra, in these words at p. 111:

            Where the defendant is guilty of insulting, high-handed, spiteful, malicious or oppressive conduct which increases the mental distress ‑‑ the humiliation, indignation, anxiety, grief, fear and the like ‑‑ suffered by the plaintiff as a result of being defamed, the plaintiff may be entitled to what has come to be known as "aggravated damages".

[189]    These damages take into account the additional harm caused to the plaintiff's feelings by the defendant's outrageous and malicious conduct. Like general or special damages, they are compensatory in nature. Their assessment requires consideration by the jury of the entire conduct of the defendant prior to the publication of the libel and continuing through to the conclusion of the trial. They represent the expression of natural indignation of right-thinking people arising from the malicious conduct of the defendant.

[309]     In Bob v. Bellerose, 2003 BCCA 371, aggravated damages were described as follows:

[30]      Lord Devlin explained the concept of aggravated damages in Rookes v. Barnard, [1964] 1 All E.R. 367 (H.L.) at 407:

... it is very well established that in cases where the damages are at large the jury (or the judge if the award is left to him) can take into account the motives and conduct of the defendant where they aggravate the injury done to the plaintiff. There may be malevolence or spite or the manner of committing the wrong may be such as to injure the plaintiff's proper feelings of dignity and pride. These are matters which the jury can take into account in assessing the appropriate compensation.

[310]     In Pearson the court said this respecting aggravated damages:

[44]      Aggravated damages are rarely awarded in cases of malicious prosecution. As stated by the Supreme Court of Canada in Hill v. Church of Scientology of Toronto, at paragraph 190:

If aggravated damages are to be awarded, there must be a finding that the defendant was motivated by actual malice, which increased the injury to the plaintiff, either by spreading further afield the damage to the reputation of the plaintiff, or by increasing the mental distress and humiliation of the plaintiff.

[45]      The general nature of aggravated damages has been described in Huff v. Price (1991), 51 B.C.L.R. (2d) 282 at 299-300 (C.A.), in the following terms (at paras. 299 and 300):

... [A]ggravated damages are an award, or an augmentation of an award, of compensatory damages for non-pecuniary losses. They are designed to compensate the plaintiff, and they are measured by the plaintiff's suffering. Such intangible elements as pain, anguish, grief, humiliation, wounded pride, damaged self-confidence or self-esteem, loss of faith in friends or colleagues, and similar matters that are caused by the conduct of the defendant; that are of the type that the defendant should reasonably have foreseen in tort cases or had in contemplation in contract cases; that cannot be said to be fully compensated for in an award for pecuniary losses; and that are sufficiently significant in depth, or duration, or both, that they represent a significant influence on the plaintiff's life, can properly be the basis for the making of an award for non-pecuniary losses or for the augmentation of such an award. An award of that kind is frequently referred to as aggravated damages. It is, of course, not the damages that are aggravated but the injury. The damage award is for aggravation of the injury by the defendant's highhanded conduct.

Discussion

[311]     The plaintiffs as noted seek $500,000 each for aggravated damages. In support they rely on Hill where in 1995 the court awarded that sum to the plaintiff for aggravated damages, additional to $300,000 in general damages.

[312]     In Hill the professional and personal reputation of a Crown attorney was attacked. In this case the business and personal reputations of the plaintiffs were attacked. In the case at bar the conduct of the defendant CRA forms the basis for and justifies an award for aggravated damages.

[313]     The prosecution has irrevocably damaged the reputation of the plaintiffs. It brought to an end their desire and ability to pursue further development and growth of their businesses. It significantly strained their family life and while there were other issues between the plaintiffs such as certain human rights complaints against Mr. Samaroo, food labelling violations, tax appeal proceedings and Ms. Samaroo’s personal health issues as well as Mr. Samaroo’s affair with Ms. Ye, I am satisfied that such matters were relatively minor in comparison to the devastation wrought by the prosecution in this case. The plaintiffs are entitled to substantial compensation for their suffering with respect to their humiliation, loss of self-confidence, loss of self-esteem, stress, damage to their reputations and the like and the impact that has had on their business and personal lives.

[314]     The defendants argue that the range for general or aggravated damages in malicious prosecution cases is $25,000 to $75,000, and this case belongs in the lower end of that range. The award ordered in Hill however undermines that assertion of such a range. What is clear for each of the cases cited by the parties is that each case is unique and is to be assessed on its facts.

[315]     The prosecution of the plaintiffs has had a devastating impact on their lives both personally and financially. The tax prosecution irreparably harmed their reputations. In Arsenovski Justice Griffin noted:

[365]    Even after a stay of proceedings, it is commonly assumed that "where there's smoke, there's fire". A wrongly prosecuted person's emotional injuries can continue past the disposal of the criminal proceedings.

[316]     I am satisfied that both of the plaintiffs have suffered emotionally from the tax prosecution and continue to suffer. While there may be some public vindication as a result of this decision that is unlikely to dispel the profound impact of the prosecution on them, an impact that they will likely never completely recover from.

[317]     While the plaintiffs were not arrested or held in jail the charges were publicized in their community. Their businesses lost clientele. Their lives were disrupted and the impact on them was significant. The prosecution proceedings extended over a period of 35 months.

[318]     I am satisfied that an award of aggravated damages of $300,000 to each of the plaintiffs is appropriate.

Punitive Damages

[319]     Punitive damages as the name indicates have the purpose of punishing a defendant rather than compensating a plaintiff. As described by the Supreme Court in Whiten v. Pilot Insurance Co., 2002 SCC 18 at para. 36, citing Hill at para. 196, they may be awarded against a defendant “in exceptional cases for ‘malicious, oppressive and high-handed’ misconduct that ‘offends the court’s sense of decency.’” This test “thus limits the award to misconduct that represents a marked departure from ordinary standards of decent behaviour” (Whiten, also at para. 36).

[320]     Such damages relate to the level of blameworthiness and are governed by the concept of proportionality. In Kelly v. Norsemont Mining Inc., 2013 BCSC 147, Justice Fenlon, as she then was, said this:

[130]    The governing rule in determining the appropriate quantum of punitive damages is proportionality. The overall award, i.e. compensatory damages plus punitive damages plus any other punishment related to the same misconduct, should be rationally related to the objectives for which the punitive damages are awarded (retribution, deterrence and denunciation): Whiten at para. 74.

[131]    Proportionality in punitive damages has six dimensions, which were set out in Whiten at paras. 111-126 and reviewed by the Alberta Court of Appeal in Elgert v. Home Hardware Stores Ltd., 2011 ABCA 112 at para. 82, 510 A.R. 1. The award of punitive damages must be:

(i)     Proportionate to the blameworthiness of the defendant's conduct -- the more reprehensible the conduct, the higher the rational limits of the potential award. Factors include outrageous conduct for a lengthy period of time without any rational justification, the defendant's awareness of the hardship it knew it was inflicting, whether the misconduct was planned and deliberate, the intent and motive of the defendant, whether the defendant concealed or attempted to cover up its misconduct, whether the defendant profited from its misconduct, and whether the interest violated by the misconduct was known to be deeply personal to the plaintiff.

(ii)    Proportionate to the degree of vulnerability of the plaintiff -- the financial or other vulnerability of the plaintiff, and the consequent abuse of power by a defendant, is highly relevant where there is a power imbalance.

(iii)  Proportionate to the harm or potential harm directed specifically at the plaintiff.

(iv)  Proportionate to the need for deterrence -- a defendant's financial power may become relevant if the defendant chooses to argue financial hardship, or it is directly relevant to the defendant's misconduct, or other circumstances where it may rationally be concluded that a lesser award against a moneyed defendant would fail to achieve deterrence.

(v)   Proportionate, even after taking into account the other penalties, both civil and criminal, which have been or are likely to be inflicted on the defendant for the same misconduct -- compensatory damages also punish and may be all the "punishment" required.

(vi)  Proportionate to the advantage wrongfully gained by a defendant from the misconduct.

[Emphasis in original.]

[321]     Also, as stated by the Supreme Court in Whiten the following considerations are relevant to this matter:

[114]    The financial or other vulnerability of the plaintiff, and the consequent abuse of power by a defendant, is highly relevant where there is a power imbalance. In Norberg v. Wynrib, [1992] 2 S.C.R. 226, for example, speaking of a physician who had used his access to drugs to purchase sex from a female patient, McLachlin J. (as she then was) stated, at p. 276:

Society has an abiding interest in ensuring that the power entrusted to physicians by us, both collectively and individually, not be used in corrupt ways. …

A similar point was made by Laskin J.A. in the present case (at p. 659):

[V]indicating the goal of deterrence is especially important in first party insurance cases. Insurers annually deal with thousands and thousands of claims by their insureds. A significant award was needed to deter Pilot and other insurers from exploiting the vulnerability of insureds, who are entirely dependent on their insurers when disaster strikes.

And at para. 116:

[116]    Second, it must be kept in mind that punitive damages are not compensatory. Thus the appellant’s pleading of emotional distress in this case is only relevant insofar as it helps to assess the oppressive character of the respondent’s conduct. Aggravated damages are the proper vehicle to take into account the additional harm caused to the plaintiff’s feelings by reprehensible or outrageous conduct on the part of the defendant. Otherwise there is a danger of “double recovery” for the plaintiff emotional stress, once under the heading of compensation and secondly under the heading of punishment.

[322]     In Arsenovski a recent immigrant to Canada and her husband were involved in a motor vehicle accident in which they were struck as pedestrians. Ms. Arsenovski initiated a personal injury claim with ICBC, and she was subsequently unsuccessfully prosecuted for allegedly making a false statement in support of it. The prosecution arose from a staff member at ICBC essentially inventing the allegation. Ms. Arsenovski succeeded in her malicious prosecution claim. Justice Griffin provided a useful review of the law relating to punitive damages awards as follows:

[397]    In setting an appropriate amount of punitive damages, it is very difficult to find and compare cases.

[398]    Generally speaking, the courts are not hesitant to make significant awards when someone's professional reputation is damaged by reprehensible conduct, as in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 [Hill]. In Hill, the prosecutor who was maliciously defamed by the defendants was awarded $300,000 general damages; $500,000 aggravated damages; and $800,000 punitive damages.

[399]    Enormous harm can be done by falsely accusing a person of dishonesty, as it strikes at the very heart and dignity of a person. Mrs. Arsenovski expressed it well: it hurt her in her heart and soul.

[400]    In Hill, the Court provided a historical review of the significance of false accusations of dishonesty, including the following:

[107]    ... Yet, to most people, their good reputation is to be cherished above all. A good reputation is closely related to the innate worthiness and dignity of the individual. It is an attribute that must, just as much as freedom of expression, be protected by society's laws. In order to undertake the balancing required by this case, something must be said about the value of reputation.

[108]    Democracy has always recognized and cherished the fundamental importance of an individual. That importance must, in turn, be based upon the good repute of a person. It is that good repute which enhances an individual's sense of worth and value. False allegations can so very quickly and completely destroy a good reputation. A reputation tarnished by libel can seldom regain its former lustre. A democratic society, therefore, has an interest in ensuring that its members can enjoy and protect their good reputation so long as it is merited.

See also paras. 109-117.

[401]    The fact that Mrs. Arsenovski was not a public figure or a professional does not mean that her reputation was deserving of less respect or protection. In many ways, she was all the more susceptible to harm than an established professional person, given that she was a recent migrant to the country, on social assistance, likely unaware of her rights or how to access justice.

[402]    Community standards can be gauged in part by the jury award of $1 million for punitive damages against an insurance company which had wrongly accused the insured homeowners of burning down their own house, an award upheld by the Supreme Court of Canada in Whiten.

[403]    The Ontario Court of Appeal in Whiten had reduced the jury award of punitive damages to $100,000. The Supreme Court of Canada, in restoring the $1 million jury award of punitive damages, noted:

One of the strengths of the jury system is that it keeps the law in touch with evolving realities, including financial realities.

[404]    The Whiten jury award sent a strong message that ordinary members of the community consider an insurance company's malicious conduct to be worthy of severe sanction.

[405]    The punitive damages award in Whiten likely recognized that the insurance company's conduct continued for over two years, directly affected the very ability of the plaintiff's family to have shelter, and put the plaintiff through an eight-week trial on a trumped up charge of arson. These more aggravating facts distinguish that case from the present. However, the conduct of the insurance company in Whiten did not include malicious prosecution, and the direct threat of criminal sanctions, which are aggravating factors here.

[406]    In Proulx, the plaintiff was awarded just over $1.1 million in damages for malicious prosecution. In that case the plaintiff was initially prosecuted for murder, went through a trial, and was convicted before this was overturned by the Quebec Court of Appeal. The Supreme Court of Canada upheld the subsequent civil liability for malicious prosecution, but did not comment on or criticize the damages awarded. The basis for the damages awarded in that case, however, might not be considered directly parallel to common law principles regarding punitive damages.

[407]    Without a doubt the charge of murder made against the plaintiff in Proulx was more serious than the charge against Mrs. Arsenovski in this case. Also, the wrongful conduct continued into the conduct of the criminal trial, another factor more aggravating than in the present case.

[408]    In Kelly, the Court awarded punitive damages of $100,000 for egregious allegations and misconduct made by an employer against an employee dismissed without cause. The allegations were in the nature of fraud and incompetence, and included the wrongful withholding of sums of money due to the employee to increase the employee's vulnerability. In that case the allegations were asserted for seven years without foundation (at para. 132), a factor more aggravating than in the present case. However, the facts did not go so far as alleging a criminal offence and did not result in criminal charges, unlike the present case.

[409]    In the case of Pate Estate, Mr. Pate had been wrongfully dismissed from a public service job and then subjected to a malicious prosecution by his former employer. His case attracted significant publicity, and resulted in a four-day trial before he was acquitted. He remained in the public eye with respect to the wrongful dismissal and criminal charges for over three years. The Ontario Court of Appeal noted that the conduct at issue was sustained over a period of approximately ten years. Other factors included the fact that the defendant municipality was a public body, and it never apologized.

[410]    In Pate Estate, the total punitive damages awarded by the trial judge of $550,000 were reduced to $450,000 on appeal, taking into account that significant general damages were also awarded totaling $132,513, as well as substantial indemnity costs of just over $74,000 (at paras. 207, 215).

[411]    The present case does not involve facts as aggravating as the several years of publicity in Pate Estate and the combination of wrongful dismissal and malicious prosecution. Nevertheless, similar to that case the corporate defendant here is a public corporation with duties to the public. Also similar to that case, the defendants did not draw to my attention any apology made by them to Mrs. Arsenovski and it can be assumed no such apology has been made.

[323]     She was awarded $350,000 in punitive damages and $30,000 in general damages. No award of aggravated damages was made because while plead they were not argued (see para. 375).

Discussion

[324]     The CRA is tasked with the enforcement of the Canadian tax laws. It is expected to act in good faith and deal with the citizens of Canada fairly and objectively. Its employees are expected to do the same. It has available to it the powers of the State and can, as was the case here, bring criminal charges against individuals and companies.

[325]     The CRA is vicariously liable for the conduct of Mr. Kendal and its employees. Its conduct in this case was high-handed, reprehensible and malicious. The behaviour of Mr. Kendal respecting the supressing and misstating of evidence deserves rebuke. It offends this Court’s sense of decency and was a marked departure from conduct expected of an individual in Mr. Kendal’s position and an agency such as the CRA.

[326]     The conduct was highly blameworthy as it engaged core values in our society and the checks and balances that exist when invoking the power of the State against the individual. As noted earlier the charges should never have proceeded given it was clear prior to charge approval that additional evidence was required to meet the charge approval standard. Mr. Kendal knew that the necessary evidence was not available from Ms. Ferens. The conduct of Mr. Kendal was reprehensible. Evidence was concealed. Inculpatory evidence was created.

[327]     Here the CRA employees looked forward with unprofessional glee to the plaintiffs’ anticipated conviction and sentencing and their resulting ruination. It is appalling that the incarceration of the plaintiffs would be joked about. While I appreciate people may joke about serious matters the comments of Mr. Alan Jones went far beyond that in the context of this case.

[328]     In addition, the CRA’s advertising of its successes indicates a deeply troubling approach to its duties. No doubt the average citizen would find it objectionable if a police force advertised, on a government website, how many people they incarcerated each year.

[329]     In the circumstances of this case I do not accept the submission of the defence that a finding of malicious prosecution itself will have the effect of deterrence, denunciation and repudiation. A monetary award must in my view be made to bring home the seriousness of the defendant CRA and Mr. Kendal’s conduct.

[330]     I view the circumstances of this case as significantly more aggravating than those in Arsenovski, in that a government agency maliciously used the criminal justice system to pursue the plaintiffs, and its wrongful conduct continued into the criminal trial itself. The CRA was seeking substantial terms of imprisonment and significant penalties. The manner in which the prosecution was initiated and carried out was egregious. It must be denounced. It affected the reputations of the plaintiffs, their professional lives and their family lives. It involved the concealment of exculpatory evidence. It involved the power imbalance of the State over the individual. It violated fundamental rights and was highly reprehensible. A prosecution was initiated and pursued when Mr. Kendal knew he lacked necessary evidence, the need for which had been specifically noted by Ms. McLean.

[331]     The CRA and Mr. Kendal do not acknowledge their wrongdoing or their violation of professional standards. They expressed no apology and were without remorse. Given the opportunity they would pursue the plaintiffs again on the same basis. An award of punitive damages, while governed by the principle of proportionality, must punish the defendants.

[332]     The plaintiffs seek an award that will recognize the power imbalance between the plaintiffs and the CRA and will not amount to an award that would have the effect of licensing or condoning and thereby encouraging the behaviour of the CRA. They submit the evidence shows systemic problems where the type of behaviour evidenced is accepted and even encouraged.

[333]     No amount of punitive damages will cause the CRA financial hardship. At the same time the award must address the purpose of punitive damages and bring home to the CRA and its employees that conduct such as has occurred here is not acceptable.

[334]     I am mindful of the amounts I have awarded for aggravated damages. I award punitive damages to the plaintiffs in the aggregate of $750,000 against the defendant CRA.

Charter Damages

[335]     Section 24(1) of the Charter provides:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[336]     The Court in Vancouver (City) v. Ward, 2010 SCC 27, found that s. 24(1) is broad enough to encompass claims for damages as a result of Charter breaches.

[337]     The plaintiffs seek $6,000,000 in Charter damages as an alternative to punitive damages, alleging that award is warranted for the same reasons that a high punitive damages award is justified. As I have awarded the plaintiffs punitive damages, I decline to order damages under s. 24(1) of the Charter.

Conclusion

[338]     In summary the plaintiffs are awarded damages against the Canada Revenue Agency as follows:

      1. a)      $347,731.74 for legal fees and disbursements incurred in the defence of the tax evasion charges plus pre-judgment interest;
      2. b)      $300,000 to each of Tony Samaroo and Helen Samaroo for aggravated damages;
      3. c)      $750,000 in punitive damages.

[339]     The claims against Brian David Jones and Brian D. Jones Law Corporation are dismissed.

Costs

[340]     As requested by counsel costs may be spoken to at a date and time to be arranged through Scheduling.

                “R.D. Punnett, J.”              

The Honourable Mr. Justice Punnett

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