1994 CarswellOnt 2871

Jaffe v. Miller

Sidney L. Jaffe and Ruth Jaffe, Plaintiffs and Joe C. Miller, II, Metropolitan

Toronto Condominium Corporation No. 539, Daniel J. Kear, Frances L. Giles, Hank M. Snow, Jr., William Hatch, Louis R. Stark, Clyde E. Shoemake, Stephen L. Boyles, Accredited Surety & Casualty Co., Terrence Schmidt, Charles W. Grant, Patricia Silver, The Attorney General of the State of Florida, Florida Board of Risk Management, Ormark Enterprises Limited, Putnam County Florida, Smith, Mandler, Smith, Werner, Jacobowitz & Fried, P.A. Kelly Smith, Charles Baird, Gary Keller, Bonnie Allender, John Eubanks, Timm Johnsen and Glenn E. Norris, Defendants

Charles W. Grant, in his capacity as Trustee in Bankruptcy of Continental Southeast Land Corp., a bankrupt Florida corporation, Plaintiff by counterclaim and Sidney L. Jaffe, Ruth Jaffe and Brunswick Investments Limited, Defendants to the counterclaim

Ontario Court of Justice (General Division)

Carruthers J.

Heard: October 4, 1993

Heard: October 5, 1993

Heard: October 6, 1993

Heard: October 7, 1993

Heard: October 8, 1993

Heard: October 11, 1993

Heard: October 12, 1993

Heard: October 13, 1993

Heard: October 14, 1993

Heard: October 15, 1993

Heard: October 18, 1993

Heard: October 19, 1993

Heard: October 20, 1993

Heard: October 21, 1993

Heard: October 22, 1993

Heard: October 25, 1993

Heard: October 26, 1993

Heard: October 27, 1993

Heard: October 28, 1993

Heard: October 29, 1993

Heard: November 1, 1993

Heard: November 2, 1993

Heard: November 3, 1993

Heard: November 4, 1993

Heard: November 5, 1993

Heard: November 8, 1993

Heard: November 9, 1993

Heard: November 10, 1993

Heard: November 12, 1993

Heard: November 15, 1993

Heard: November 16, 1993

Heard: November 17, 1993

Heard: November 18, 1993

Heard: November 19, 1993

Heard: November 22, 1993

Heard: November 23, 1993

Heard: November 24, 1993

Heard: November 25, 1993

Heard: November 26, 1993

Heard: November 29, 1993

Heard: November 30, 1993

Heard: December 1, 1993

Heard: December 2, 1993

Heard: December 3, 1993

Heard: December 13, 1993

Heard: December 14, 1993

Heard: December 15, 1993

Heard: December 20, 1993

Heard: December 21, 1993

Heard: December 22, 1993

Judgment: March 17, 1994

Docket: 85-CQ-6103

Counsel: Sidney L. Jaffe and Ruth Jaffe, for themselves.

Bernard Chernos and Robert A. Watson, for Defendants, Grant, Schmidt.

F.J.C. Newbould, Q.C. and S. Leitl, for Defendants, Silver, Smith, Mandler, Smith, Werner, Jacobowitz, Fried, P.A.

P.H. Le Vay and S. Caskey, for Defendants, Putnam County Florida, Kelly Smith, Charles Baird, Gary Keller, Bonnie Allender, John Eubanks.

Subject: Torts; International; Contracts; Corporate and Commercial

Conspiracy --- Nature and elements of tort -- General.

Conspiracy --- Nature and elements of tort -- Damage.

Conflict of laws --- Enforcement of foreign judgments -- Defences -- Defence to original action.

Fraud and misrepresentation --- Fraudulent conveyances -- What constituting.

Carruthers J.:

1 The plaintiffs are husband and wife, ("Jaffe") and ("Mrs. Jaffe"), respectively, and they claim $10 million damages for conspiracy.

2 There is a counterclaim by the defendant Charles W. Grant ("Grant"), in his capacity as trustee in bankruptcy of the estate of Continental Southeast Land Corp. ("Continental"). Grant seeks to enforce a judgment for $3 million U.S. granted in his favour against Jaffe on the 2nd of October 1984 by the U.S. District Court in Florida. As well, Grant seeks to set aside as fraudulent and void as against the creditors of Continental certain conveyances involving Jaffe and Mrs. Jaffe and a corporation in which either or both have an interest. These conveyances concern a condominium being Suite 1905 located in a building at 110 Bloor Street West, Toronto ("the condominium"). Grant also seeks a declaration that, because the funds used to initially purchase the condominium were those of Continental, ownership of it should be vested in Continental.

3 The issues raised in this action have their roots in a subdivision located in Putnam County, Florida, and known as St. Johns Riverside Estates ("St. Johns"). That subdivision was created by Continental in 1972 when it consisted of some 2,800 lots. Thereafter lots were sold to individuals on instalment contracts under which money was paid to Continental. Upon payment of the total purchase price, the individuals were to receive what has been described in evidence as a "warranty deed". In many cases, Continental borrowed from some of the purchasers of lots giving as security a mortgage against the title to those lots. This scheme has been referred to in evidence as "investor note mortgages" and under it Continental was required to make regular payments on account of the mortgages.

4 In the spring of 1976, a man known as Robert Kaufman ("Kaufman") was the sole shareholder of Continental and its president. Jaffe then agreed with Kaufman to purchase his interest in Continental through a company called Meadow Valley Ranchos, Inc. ("MVR"). That company was in the land development business in Nevada and Jaffe was then its president and majority shareholder.

5 The purchase price of Kaufman's interest in Continental was fixed at $750,000. No money, however, was paid to him by either Jaffe or MVR. Rather, Kaufman was given the right to continue to collect the money due to Continental on 270 lots which were subject to existing contracts for which warranty deeds were to be ultimately given by Continental.

6 After entering into the transaction with Kaufman, Jaffe then caused title to the 270 lots to be transferred to MVR, in exchange for its interest in some 2,000 acres of land which it owned in Nevada. The deed for the 2,000 acres, however, was never registered in the name of Continental and Jaffe later caused a large portion of that tract to be conveyed to a third party. The purchase price for that conveyance was retained by MVR and Continental therefore was left only with an equitable interest in the balance of the MVR lands.

7 Following the assignment to Kaufman there was some 500 lots remaining upon which Continental continued to collect the purchase price. These lots and the monies owing on them were assigned to Ruby Mountain Construction Development Company ("RM"), a company wholly owned by MVR and of which Jaffe was president. Earlier in the fall of 1976, Jaffe had formed a company known as Atlantic Commercial Development Corporation ("ACDC") "to assume the operation in Florida". In 1977 RM transferred all the 500 lots and accounts to ACDC for no consideration. The net result of all of these dealings was that Continental was left with no assets and particularly no income-producing property in Florida. ACDC continued to collect the accounts owing on the 500 lots. At the same time it appears that the title to the lots was such that the purchasers thereof were unable to obtain the warranty deeds which they were due. Instead, Jaffe arranged to have quitclaim deeds given to the purchasers upon payment in full.

8 It is fair to say that this situation was not one about which the creditors of Continental, and this includes the purchasers of lots and the holders of individual note mortgages, were satisfied. This led to a number of them commencing an action against Continental, RM, MVR and ACDC, all of whom I shall hereinafter refer to collectively as "the corporations", in February of 1978 in the State Court of Florida. The plaintiffs in that action were represented by the defendant Patricia Silver ("Silver"), who was then a member of the defendant Smith, Mandler, Smith, Werner, Jacobowitz & Fried, P.A. That action has been referred to through the trial as the "Barbara Raymond action".

9 The plaintiffs in that action sought to set aside the various transfers or conveyances involving Kaufman and the corporations. As well, the court was asked to appoint a receiver "to collect and marshall all the assets of Continental including ... the funds received by RUBY MOUNTAIN CONSTRUCTION AND DEVELOPMENT CORP. under the name of ST. JOHN'S RIVERSIDE ESTATES from the Instalment Sales Contracts of Continental...". An order appointing that receiver was made by Judge Eastmoore on the 18th of June 1979. His order expressly authorized a receiver to be appointed forthwith so as to "marshall, collect and retain ..., all of the assets of ... (CONTINENTAL), whether presently owned by it or whether said assets have been transferred to any or all of the other Defendants; to wit, RUBY MOUNTAIN CONSTRUCTION & DEVELOPMENT CORP. ..., ATLANTIC COMMERCIAL DEVELOPMENT CORP. ..., MEADOW VALLEY RANCHOS, INC. ...; ... or ... Robert Kaufman".

10 By 1979 Jaffe had enroled in the Golden Gate Law School in San Francisco, California. He would be called to the bar of that State in the fall of 1980. Jaffe's response to the Barbara Raymond action and the order of Judge Eastmoore was to file a petition on behalf of Continental under the Bankruptcy Act in the Bankruptcy Court in California. At the same time Jaffe obtained, ex parte, an order giving certain directions to the State Court receiver about the property of Continental.

11 That order also provided that "all stays and restraints of Rule - 44 of the Rules of Bankruptcy Procedure shall remain in full force and effect as they restrain (the Receiver) from proceeding to exercise power or control over the property or assets of the debtor". The debtor was Continental and the stay would be lifted in May 1980 after the proceedings were transferred from California to Florida. It was at this time as well that the defendant Charles Grant ("Grant") was appointed the trustee in bankruptcy of Continental and as well the State Court receiver. Grant retained the defendant Terrence Schmidt ("Schmidt") as well as other members of his firm to represent him, particularly in his capacity as trustee in bankruptcy.

12 At all times, right up to the present, Jaffe has made it quite clear that it made no difference to him that the bankruptcy proceedings, and therefore the stay, were restricted to Continental, as the debtor. Insofar as Jaffe has been concerned it has always been "black letter law" that the State Court was without any jurisdiction to do anything to bind Continental, himself, or the corporations.

13 From the outset Jaffe was not at all cooperative with Silver or Grant with respect to the Barbara Raymond action or for that matter with the State Court itself. There are many instances of Jaffe or the corporations failing to comply with orders of that court, particularly those which required production of documents. And Jaffe's refusal to cooperate or comply was not restricted to the State Court. On one of the many occasions upon which it was asked to intervene the Federal Court required Jaffe to show cause why he should not be held in contempt for the failure of the corporations not to comply with orders of the court. On that occasion, which was the 9th of July 1980, Jaffe failed to appear and he was found not to have complied with an order to turn over certain documents to Grant. Jaffe was directed by Judge Proctor to appear on the 7th of August 1980 "to show cause why he should not be held in civil contempt for failure to obey a lawful order of this Court".

14 On the 6th of August 1980, Jaffe returned a settlement agreement to Grant. That agreement appears to have been executed by the corporations on the 31st of July 1980. By its terms all outstanding matters of concern between Jaffe and the corporations and Grant were to be resolved and, as well, steps were to be taken leading to a dismissal of the Barbara Raymond action.

15 Jaffe appeared before Judge Proctor on the 7th of August 1980 as directed. At that time a copy of the settlement agreement was filed with Judge Proctor, whose approval of the settlement was required. Silver, representing the plaintiffs in the Barbara Raymond action, Schmidt, representing Grant, and counsel for Continental and ACDC and Jaffe in his personal capacity, were in attendance.

16 After Jaffe testified on the issue of contempt, Judge Proctor said that he would take his decision "under advisement". In reaching this conclusion he said, "I want to see how you do in the future. Frankly, I really don't understand why we should have ever had any problems with you. And when I say 'we,' I am talking about the Court, the trustee, the creditors and everyone else."

17 Judge Proctor at that time also noted that Jaffe's excuse for not appearing on the previous date was "kind of kindergarten", "ridiculous", and "silly". Jaffe had told Judge Proctor that he did not turn up as directed on that previous occasion because "no one was paying for mileage". Judge Proctor pointed out that it was Jaffe's lawyer who had requested that earlier date for Jaffe's appearance. Judge Proctor put over his consideration of the settlement agreement to a later date.

18 Following that appearance before Judge Proctor, but on that day, Jaffe was arrested on 28 charges of violations of the Florida Uniform Land Sales Practices Law. Throughout this trial these have been referred to by all as the "land sales charges". They related to Jaffe's efforts on behalf of Continental or the other corporations to give quit-claim deeds rather than warranty deeds to 28 purchasers who had completed payment for the lots in St. Johns.

19 Jaffe was released from jail on the day he was arrested after posting a bond in the amount of $137,500. The bond was written and issued by the defendant Accredited Surety & Casualty Co. ("Accredited"). A term of the bond provided that in the event of default Accredited could "forthwith apprehend, arrest and surrender the principal". Jaffe had noted in his application for the bond that his address was "1000 Green Street, San Francisco, California" and that his "previous address" was "44 Charles Street West, Toronto, Canada".

20 The bond provided that it was a violation of its terms should Jaffe "move from his address in California to another" without notifying Accredited beforehand or "to depart the jurisdiction of the court without the written consent of the court" and Accredited. Without giving any notification or obtaining the consent of the court, immediately following his signing of the bond Jaffe left the United States for Toronto.

21 On the 24th of September 1980, Judge Proctor refused to give his approval to the outstanding settlement agreement because the total amount of money and property to be received by Grant was not adequate in his opinion. Two months later a new agreement which called for a payment of more money, $375,000, was reached and approved. However, other than the payment of $25,000 due as a deposit, the corporations at the direction of Jaffe did not pay the balance. As a result the settlement fell through.

22 Jaffe maintained during this present trial that it was an unwritten term of that settlement agreement that the outstanding land sales charges against him would be dropped and when that did not happen, Jaffe maintains, Grant breached the settlement agreement thereby releasing the corporations from their obligation to pay. I note that neither Jaffe's brother, Robert, nor his son Harold, both of whom are lawyers, retained by Jaffe to represent his interest and those of the corporations, raised that ground when each of them wrote to Grant claiming that agreement had been breached by him. In all Jaffe alleged seven other reasons for the settlement not having been completed and all because of Grant. Jaffe called no one to testify in support of his position.

23 Jaffe failed to appear for the trial of the land sales charges on the 18th of May 1981. Instead, his counsel attended to seek an adjournment on the ground that the effects of an injury suffered while playing basketball in Toronto a month or so before prevented Jaffe from travelling. Medical reports from doctors who professed to have treated Jaffe were filed with the court. Judge Perry did not accede to the request and accordingly because of Jaffe's absence estreated the bond issued by Accredited and issued a warrant for Jaffe's arrest. In addition, a charge of failing to appear was laid against Jaffe.

24 In the course of reaching his decision on that occasion, Judge Perry noted that no mention had been made about "Mr. Jaffe being physically unable to appear" during the motion to restrain the trial of the charges which was heard three days earlier. And it appears that nothing about Jaffe's condition was raised in the pretrial hearing conducted on the 6th of May 1981.

25 On the 7th of July 1981, Judge Eastmoore in a proceeding taken within the Barbara Raymond action held the corporations to be "in continuing contempt of this Court" since the 10th of September 1979. Assets had not been delivered, no accounting of assets received had been made and money continued to be collected from purchasers of lots in St. Johns, all in violation of Judge Eastmoore's judgment of the 10th of March 1981. The appeal of the corporations from that judgment to the District Court of Appeal was dismissed on the 10th of September, 1981 because of the corporation's continuing contempt. That Court found it to be a "willfull and intentional refusal to comply with the requirements of the final judgment previously entered in the cause, notwithstanding Appellants' ability to comply therewith".

26 On the 10th of July 1981, Judge Eastmoore again in the Barbara Raymond action struck the corporations' response to Grant's request for admissions as "frivolous on their face and demonstrate the defendants' continued bad faith and dilatory refusal to comply with the discovery rules in this action". He thereby found the statements requested "deemed to be admitted by the defendant". Those statements included one that the corporations had collected at least $3 million from the amounts being paid by purchasers of lots in St. Johns. This is the way in which the amount of the judgment that Grant seeks to enforce by his counterclaim in this action was determined.

27 On the 18th of September 1981, on notice to counsel for Jaffe, Accredited moved before Judge Perry for an order setting aside the estreature of its bond. Ronald Clark ("Clark"), counsel for Putnam County, also attended because it had an interest in the proceeds of the bond. It is not clear whether any one in fact appeared representing Jaffe, his lawyer at that time and for that purpose being Larry Turner. Judge Perry set aside the estreature but required Accredited to deposit $137,500 with a designated agent and "produce ... Jaffe ... before this Court within ninety (90) days hereof, and ... report to this Court at thirty (30) day intervals of the progress made towards producing said Defendant". The form of order indicates that a copy was directed to be sent to counsel for State of Florida, Putnam County, Accredited and Larry Turner, representing Jaffe.

28 On the 21st of September 1981 Daniel J. Kear ("Kear") and Timm Johnsen ("Johnsen"), both of whom while named as defendants in this action were not served, went to Toronto to apprehend Jaffe so they could surrender him to the Sheriff of Putnam County. Posing as police officers, they confronted Jaffe in the lobby of the building in which the condominium is located as he was returning from jogging. Kear and Johnsen convinced Jaffe to accompany them to "the police station". Once in their car they drove Jaffe almost directly to the airport in Niagara Falls, New York. This event has been referred to during the course of this trial as "the kidnapping".

29 At some time during the journey from Toronto, Kear and Johnsen permitted Jaffe to call home. Mrs. Jaffe was not there at the time and apparently he spoke to his daughter Robyn. Upon learning of what had transpired, Jaffe said she contacted the police in Toronto and they in turn alerted the police in Niagara Falls, New York. Representatives of that police force attended on Jaffe at the airport and there met as well Kear and Johnsen. Once they were shown the order of Judge Perry, according to Jaffe, that they left without doing anything further. Shortly after an airplane arrived and he was flown directly to Florida where he was incarcerated in the Putnam County Jail.

30 Representatives of Jaffe and the Government of Canada, the latter being primarily, if not solely, concerned with the issue of Canada's sovereignty, tried unsuccessfully to obtain his release. On the 23rd of October 1981, Jaffe was convicted of the land sales charges, 28 counts in all, as well as failing to appear at the 18th of May 1981 trial. Effectively, because of its concurrent nature, his sentence worked out to a total of 35 years in prison although on their surface the sentences appear to total 145 years. Neither Jaffe nor Mrs. Jaffe testified at that trial.

31 On the 27th of April 1982, the State Court gave judgment in favour of Grant against the corporations in the Barbara Raymond action in the amount of $3 million. An appeal to the District Court of Appeal was dismissed on the 30th of June 1982, because the appeal was found to be "frivolous and dilatory" and because of "the appellants' continuing contempt".

32 Grant later moved within his counterclaim in the "civil rights action", which had been commenced in the Federal Court by Jaffe and the corporations, to extend the State Court judgment against Jaffe personally as the alter ego of the corporations. This judgment was granted on the 2nd of October 1984 and it is the judgment which Grant seeks to enforce in his counterclaim in this action. Jaffe's appeal from this judgment was dismissed on the 18th of July 1986.

33 In the meantime, on the 8th of July 1983, Jaffe had been charged with 8 counts of "organized fraud", referred to during this trial as the "fraud charges". The specification contained in the charges includes the following:

SIDNEY L. JAFFE induced, tricked and mislead said victims into continuing payments under contracts to purchase real property in Putnam County, Florida, by false and misleading representations indicating the land under such contracts had marketable title when, in fact, title thereto was unmarketable by virtue of impediments and encumbrances which ... were known to ... JAFFE.

These charges relate to Jaffe's activities concerning St. Johns.

34 On the 29th of September 1983, the District Court of Appeal set aside Jaffe's convictions on the land sales charges because, inter alia, their wording was "defective". The conviction for failing to appear and the sentence of 5 years was affirmed. On the 30th of September 1983, a bail hearing was conducted on the fraud charges. At the same time Jaffe was considered for parole on the failure to appear conviction. He was granted both after a letter of credit was filed on his behalf in the amount of $150,000. A regular bail bond was not available to him because of his previous default.

35 It was Jaffe's position at that time that he and Mrs. Jaffe were without sufficient funds to meet $300,000, the amount originally proposed as bail, and that any money to be used in this respect would have to come from "friends". When released in October of 1983, Jaffe returned directly to Canada.

36 On the 1st of March 1984, at the instance of Stephen Boyles ("Boyles"), a State Attorney for the Seventh Judicial District of Florida and named as a defendant in this action, Jaffe was charged with four counts of perjury arising out of his written answers to interrogatories made in both the Federal and State Court proceedings. Three charges deal with an alleged failure by Jaffe to disclose information about bank accounts while the fourth concerns an alleged failure to disclose payments to his daughter. Jaffe did not meet these charges and they remain outstanding. They have been referred to during this trial as the "perjury charges".

37 On the 6th of April 1984, Jaffe and Mrs. Jaffe commenced an action in the District Court for the Western District of New York. This action has been referred to during the course of the trial as "the Buffalo action". Basically speaking, the subject matter of that action including the relief claimed is similar to that of the present. In particular, in that action, Jaffe and Mrs. Jaffe alleged a "conspiracy illegally to abduct the plaintiff from Canada". The defendants Schmidt, Grant, Silver, her law firm and other defendants named in the present action were not named as defendants in the Buffalo action or referred to in the claim which was presented in that action. The venue of that action was eventually moved from Buffalo to Florida and the action was not prosecuted thereafter.

38 Kear and Johnsen were charged with a crime under s.279(1)(b) of the Criminal Code of Canada as follows:

Everyone who kidnaps a person with intent ... to cause him to be unlawfully sent or transported out of Canada against his will ... is guilty of an indictable offence....

They were convicted in May 1986 of that offence and the late Chief Justice Callaghan sentenced each of them to a jail term of 21 months. I shall refer later to the "Kear and Johnsen action".

39 In October 1989 the Ontario Court of Appeal dismissed the appeal of Kear and Johnsen from their conviction but granted their appeal from sentence. The Court of Appeal reduced each of their sentences to time served.

40 The present action was commenced on the 20th of September 1985. As originally framed, the statement of claim contained no reference to an alleged conspiracy in relation to the fraud charges, which occurred in 1983, or the perjury charges, which occurred in 1984. Allegations based on these events were not incorporated into the statement of claim until amendments were made in November 1991.

41 Although named as a defendant in this action, the plaintiffs have not proceeded against Metropolitan Toronto Condominium Corporation No. 539. Rather, Jaffe and Mrs. Jaffe in March 1987 commenced a separate action in this court against that Corporation claiming damages of $10 million for breach of contract and negligence giving rise to the kidnapping of Jaffe in September 1981. The plaintiffs alleged in that action that employees of the Condominium Corporation were responsible for Jaffe having been taken from the building by Johnsen and Kear. I shall refer later to the "condominium action".

42 Grossi J. tried the issue of liability only and on the 6th of August 1993, immediately at the conclusion of the trial, having found no liability, dismissed the action. I am advised that an appeal from that decision is currently pending.

43 As I have noted, neither Johnsen nor Kear were served with a notice of this action or the statement of claim and, accordingly, as with the condominium corporation, they are not parties to this action.

44 In March of 1990, due to their failure to appear in this action, although having been duly served with notice, default judgment was granted by Matlow J. against the defendant Accredited and its president, the defendant Hank Snow ("Snow"). Matlow J. awarded Jaffe: General damages of $200,000 Canadian Dollars and prejudgment interest on the general damages of $110,260 Canadian Dollars; Special damages of $290,140.94 United States Dollars and $315,434.17 Canadian Dollars and prejudgment interest on the special damages of $123,665.53 United States Dollars and $95,262.29 Canadian Dollars; punitive damages of $100,000 Canadian Dollars. Matlow J. awarded Mrs. Jaffe: General damages of $25,000 Canadian Dollars; special damages of $903,481.47 United States Dollars and $88,293.56 Canadian Dollars; prejudgment interest on the damages of $498,089.33 United States Dollars and $62,458.74 Canadian Dollars.

45 Matlow J. acceded to the request of the Jaffes that there be two forms of judgment, one representing the amount due to Jaffe and the other representing that which he awarded to Mrs. Jaffe. There is no question that this request was made because the Jaffes anticipated that a judgment in favour of Jaffe would not be enforced in Florida. They apparently did not anticipate that a separate judgment in favour of Mrs. Jaffe would meet the same fate.

46 On the 13th of November 1992 [see Jaffe v. Snow, 610 So.2d 482 (Fla. C.A. 5th Dist 1993)], the District Court of Appeal for the Fifth District of Florida dismissed Mrs. Jaffe's appeal from a "final summary judgment which denied her petition to recognize and enforce a large money judgment she obtained in Canada...". That Court concluded that Jaffe was a fugitive from justice, in contempt of orders of courts in Florida, and in breach of his bail bond and on that basis he could not recover. The Court referred to a "fugitive from justice doctrine" which bars any claim that is solely derivative of a fugitive's claim.

47 The Court of Appeal concluded that Mrs. Jaffe's claims "are derivative of her husband's and likewise are barred under the fugitive from justice doctrine". As well, the Court said that Mrs. Jaffe could not "profit from a wrongdoer's activity. The expenses of retaining counsel to defend Sidney in Florida and her visitation in Florida should rightfully have been spent because Sidney should rightfully have returned to this jurisdiction to stand trial. To allow him to collect on any of those items as 'damages' would be to award the bond jumper." I am advised that there is currently pending in the United States Supreme Court an application for certiorari with respect to this decision of the Florida Court of Appeal.

48 On the 10th of July 1990, Sutherland J. released the defendants Hatch, Stark, Shoemake, Boyles and the Attorney General of the State of California, Florida Board of Risk Management and Norris on the ground of "sovereignty immunity". This decision was upheld by the Ontario Court of Appeal and leave to appeal therefrom to the Supreme Court of Canada was denied following the commencement of this trial.

49 As of the date this trial commenced, the 4th of October 1993, the defendants who have remained in the action and who are represented by counsel are Schmidt, Grant, Silver, her law firm, Putnam County Florida and the five commissioners thereof, Smith, Baird, Keller, Allender and Eubanks. The defendant Miller did not appear at the trial nor was he represented by counsel. If I was told about the position of the defendants Giles and Ormark Enterprises Limited, I cannot recall. No reference was made to either of them during the course of the trial.

50 The issue of forum conveniens was initially dealt with by Master Garfield. On the 4th of August 1989 he concluded that it was Ontario because "the plaintiff would lose a juridical and personal advantage if the action was brought in Florida". The Master found that "the plaintiff would likely be incarcerated if he returned to Florida to pursue the action even if ... he is the author of that dilemma". Sirois J. confirmed that decision by noting on the record before him that "the appellants have to persuade this court that the ... Master was ... in error". Leave to appeal from the decision of Sirois J. was not sought.

51 The statement of claim in this action from the outset has included the following paragraphs:

31. The plaintiffs plead that the defendants Hatch, Stark, Shoemake, Boyles, Schmidt, Grant, Silver, Smith and Mandler, Kelly Smith, Norris, Baird, Keller, Allender, Eubanks, Putnam County, and others (the "conspirators") conspired together, in the State of Florida and in Ontario, to harm the plaintiffs, to intimidate them for the purpose of extracting from them monies in purported settlement of the civil action against CSEL referred to in paragraph 27, and to harm their business interests in the State of Florida and in Ontario.

32. In furtherance of the conspiracy, in or about July of 1980, and, unknown to the plaintiff Sidney Jaffe, the conspirators caused a criminal charge (the "Criminal Charge") to be laid in the State Court of Putnam County in the State of Florida, against the plaintiff Sidney Jaffe, alleging breach of the Uniform Land Sales Practices Law of the State of Florida.

34. In furtherance of the conspiracy, and for the wrongful purpose of enticing the plaintiff Sidney Jaffe into the jurisdiction of the State of Florida, in August, 1980, the defendants Grant and Schmidt maliciously caused a subpoena to be delivered to the plaintiff Sidney Jaffe, purportedly to request his attendance at civil proceedings in connection with the trusteeship of CSEL in the State of Florida. The plaintiff Sidney Jaffe responded to the subpoena, and attended at the federal courthouse in the City of Jacksonville, in the State of Florida, and while in the courthouse he was illegally arrested on the Criminal Charge.

36. In furtherance of the conspiracy, in or about the fall of 1980, the defendants Grant, Boyles and Schmidt advised the plaintiff Sidney Jaffe, through his attorney, that if he would pay the Barbara Raymond plaintiffs $350,000 in purported settlement of the civil action referred to in paragraph 29, the Criminal Charge would be withdrawn. The plaintiff Sidney Jaffe declined to pay the monies so demanded.

43. In or about February 11, 1971, the plaintiff Sidney Jaffe was wrongfully convicted on the Criminal Charge, and was subsequently, and wrongfully, sentenced to 135 years imprisonment.

47. The plaintiffs plead that but for the abduction, assault, battery, and wrongful imprisonment described in paragraphs 38-41 hereof, the plaintiff Sidney Jaffe would not have been subjected to the imprisonment and proceedings referred to in paragraphs 42-46 hereof.

48. In or about December, 1981, the defendants Kear and Johnsen were charged in the City of Toronto, in the Municipality of Metropolitan Toronto with unlawfully kidnapping the plaintiff Sidney Jaffe with intent to cause him to be unlawfully transported out of Canada against his will, contrary to the Criminal Code of Canada, R.S.C. 1970, c. C-34. The defendants Kear and Johnsen were extradited to Canada to stand trial on the said charges.

59. The plaintiff Sidney Jaffe therefore pleads that by reason of the foregoing he has suffered and continues to suffer serious damage by reason of his mental and physical suffering, loss of income, loss of business opportunities, legal and other expenses, loss of reputation, and the loss of care, guidance and companionship of members of his family during the period of his imprisonment.

60. The plaintiff Sidney Jaffe pleads that by reason of the foregoing the defendants are liable for the said damage.

61. The plaintiff Sidney Jaffe pleads that much of the said damage was suffered in the City of Toronto, and that he continues to suffer the said damage in the City of Toronto.

63. The plaintiff Ruth Jaffe further pleads that by reason of the foregoing she has suffered and continues to suffer serious damage, by reason of her mental and physical suffering, loss of income, the aforesaid expenditures, and the loss of guidance, care and companionship of the plaintiff Sidney Jaffe during the period of his imprisonment. The plaintiff Ruth Jaffe pleads that she has suffered and continues to suffer this damage in the City of Toronto.

64. The plaintiff Ruth Jaffe pleads that by reason of the foregoing the defendants are liable for the said damage.

65. The plaintiffs' daughter, Robyn Jaffe, an actress, writer, and entrepreneur and resident of the City of Toronto devoted considerable time and effort to redress the wrongful actions of the defendants and in the administration of the affairs of the plaintiff Sidney Jaffe during the period of his wrongful imprisonment, and in so doing lost income and business opportunities, and incurred expenses in travel to and from Florida and otherwise to visit and to obtain the release of the plaintiff Sidney Jaffe from his wrongful imprisonment. During the period of the wrongful imprisonment of the plaintiff Sidney Jaffe, Robyn Jaffe was deprived of his guidance, care the companionship and suffered further damage thereby. The plaintiffs plead that all of the foregoing damage was suffered in the City of Toronto, and that the defendants are liable for the said damage.

52 And from the beginning, as well, the statement of claim has included claims on behalf of the three children of Jaffe and Mrs. Jaffe and his mother. With respect to the children, it is claimed that each:

lost income and business opportunities, and incurred expenses in travel to and from Florida and otherwise to visit and obtain the release of the plaintiff Sidney Jaffe from his wrongful imprisonment.... During the period of the wrongful imprisonment of the plaintiff Sidney Jaffe ... was deprive of his guidance, care and companionship.

53 The claim put forward on behalf of Jaffe's mother is framed in similar language. The paragraphs which relate to the claims being put forward on behalf of the children and Jaffe's mother are followed by paragraph 70 of the statement of claim which reads as follows:

70. The plaintiffs plead and rely upon Section 60 of the Family Law Reform Act, R.S.O. 1970, c.152.

54 In 1991 amendments were made to the statement of claim so as to add the following paragraphs:

48. Following Boyles' failure to extract a 'settlement' from the Crown and Jaffe, as described in paragraph 47, herein, Boyles maliciously filed a new information against Jaffe in Florida, on July 8, 1983, alleging breach of the Organized Fraud Statute of the State of Florida. The fraud charges were founded on the same series of actions as the convictions which were reversed and quashed on appeal on September 2, 1983. Although the fraud charges are patently false and were vindictively brought under a statute which has since been repealed, they nevertheless remain outstanding even as of today.

49. The purposes of the spurious fraud charges were:

(a) to obstruct justice in Canada by preventing Jaffe from returning to Canada in order to testify at the trial of his kidnappers who were being prosecuted for illegally kidnapping Sidney Jaffe pursuant to the Criminal Code of Canada; and

(b) to continue the attempt to extort an improper settlement of the civil action of the Barbara Raymond plaintiffs in exchange for providing the release of Jaffe.

53. In 1984, Grant and Schmidt further conspired with Boyles to cause a charge of perjury to be laid against Jaffe on March 2, 1984. The purpose of these spurious and false perjury charges which were filed after Jaffe was released from Florida and had returned to Canada were:

(a) to obstruct justice in Canada by attempting to destroy the credibility of Jaffe at the trial of the kidnappers in Ontario;

(b) to ensure that if Jaffe returned to Florida to defend and contest the Barbara Raymond claim (which had also become the subject matter of a personal counterclaim against Jaffe in the Federal Court), he would be arrested and incarcerated, or, if Jaffe did not return to Florida, as he was instructed not to do by the Government of Canada and the Attorney General of Ontario, his ability to defend the Barbara Raymond counterclaim would be prejudiced as a result of his absence from Florida, and it would give Boyles, Schmidt and Grant another opportunity to misrepresent to the various Florida courts that Jaffe refused to attend in Florida, which is what these defendants in fact did.

54. Schmidt and Grant gave documents and information to Boyles to enable him to fabricate the perjury charge by alleging that Jaffe had omitted to disclose the existence of a bank account during civil examination for discovery in Florida while Jaffe was illegally incarcerated. Jaffe had inadvertently and innocently omitted to name one of a number of bank accounts which were named, as part of the subject matter of his examination. For a period of at least one year prior to this civil discovery, Grant and Schmidt had full knowledge of the bank account in question, as Jaffe had previously issued cheques on that very bank account to Grant and Schmidt in the Barbara Raymond action. They were therefore aware of Jaffe's omission in this respect was inadvertent and innocent and could never arguably be the foundation for a perjury charge. Moreover, they also knew that the governing law required an active misstatement, knowingly made, and could not be satisfied by a mere omission.

55. Shortly after the perjury charges were laid, Grant and Schmidt conspire with Boyles to attempt to wrongfully cause Jaffe to be extradited from Ontario to Florida by making another extradition request to the Governor of Florida which was then forwarded to the U.S. State Department (the "Extradition Request"). Grant and Schmidt filed false affidavits in support of the Extradition Request. The U.S. State Department refused to act upon the Extradition Request as it determined that the evidence did not merit a perjury charge or extradition, all of which confirmed the maliciousness of their actions.

57. The combined actions of Grant, Schmidt and Boyles, with respect to the original charge, the fraud charge and the perjury charge, all as described herein, expose them to both criminal sanctions and civil penalties under the Racketeering Influenced and Corruption Organizations Act ("R.I.C.O.") in the United States. Civilly, the egregious nature of their conduct is such as to warrant a penalty of triple damages under the R.I.C.O. Although Jaffe asserts no claim per se under R.I.C.O., this Court respectively ought to take into account the R.I.C.O. penal consequences the punitive damages claimed against Boyles, Schmidt and Grant.

55 At the beginning of the trial, Jaffe characterized the basis of the claim for damages to be put forward on behalf of both himself and Mrs. Jaffe as being five acts of conspiracy as follows:

1. A conspiracy with respect to the land sales charges which involves the defendants Schmidt, Grant, Silver, the Attorney General for the State of Florida, Boyles, Norris and Hatch.

2. A conspiracy with respect to the kidnapping which involves the defendant Kear, Snow, Stark, Shoemake, Boyles, Accredited, Schmidt, Grant, Silver, the State of Florida Board of Risk Management, Putnam County, Florida, Smith, Mandler, Smith, Werner, Jacobowitz & Fried, P.A., Smith, Baird, Keller,

Allender, Eubanks, Johnsen and Norris.

3. A conspiracy with respect to the fraud charges which involves the defendants Boyles, Schmidt, Grant, Silver, the State of Florida Board of Risk Management, Smith, Mandler, Smith, Werner, Jacobowitz & Fried, P.A. and Norris.

4. A conspiracy which concerns the perjury charges and involves the defendants Boyles, Schmidt, Grant, Silver and Norris.

5. A conspiracy to deny Jaffe required medical care while he was incarcerated in the Putnam County Jail for thirty days between January 19, 1982 and February 1982 by the defendants Putnam County, Smith, Baird, Keller, Allender and Eubanks.

56 Throughout the trial and at the conclusion thereof, during the course of submissions, there was no change in the manner in which Jaffe described the foundation of the claims of both Mrs. Jaffe and himself. And from what Mrs. Jaffe had to say herself, both in testimony and at the conclusion of the trial when she made submissions on her own behalf, it is clear that she relies only upon the alleged acts of conspiracy as the basis of the claim for damages which she puts forward on her own behalf, it is because she has her own claims to advance that Mrs. Jaffe said that those of Jaffe and herself were "not totally joint".

57 The tort of conspiracy consists of four elements. They are outlined by the Supreme Court of Canada in Canada Cement LaFarge Ltd. v. Ocean Construction Supplies Limited, [1983] 1 S.C.R. 452 as follows:

(a) An agreement among two or more parties.

(b) With respect to the agreement, either

(i) the predominant purpose of the Defendants is to cause injury to the plaintiff; or

(ii) the conduct of the Defendants is unlawful, the conduct is directed towards the Plaintiff and the Defendants should know that injury to the Plaintiff is likely to, and does, result.

(c) Some act done in furtherance of the joint plan;

(d) Damages to the Plaintiff arising out of the agreement.

58 An essential element of the tort of conspiracy is an agreement to injure the plaintiff. And while such an agreement can be proved directly or indirectly where it is intended to rely upon inference as proof, the facts cannot fairly admit any other inference being drawn. In Nicholls v. Richmond et al. , [1984] 3 W.W.R. 719 McLachlin J., at p. 731, refers to a test set out by the Lord Chancellor in Sweeney v. Coote, [1907] A.C. 221 at 222 (H.L.) as follows:

In such a proceeding [i.e., where civil conspiracy is alleged] it is necessary for the plaintiff to prove a design, common to the defendant and to others, to damage the plaintiff, without cause or excuse. That, at all events, it is necessary to prove. Now, a conclusion of that kind is not to be arrived at by a light conjecture; it must be plainly established. It may, like other conclusions, be established as a matter of inference from proved facts, but the point it is not whether you can draw that particular inference, but whether the facts are such that they cannot fairly admit any other inference being drawn from them.

59 In my opinion, there is absolutely nothing in the evidence which permits me to conclude that any of the elements of the tort of conspiracy are present with respect to the conspiracies, either alleged in the statement of claim or as outlined at the beginning of the trial or at all. It appears to me that this case proceeded to trial without the plaintiffs having any regard for either the required elements of the tort of conspiracy or the production of evidence from which they could be found, or both.

60 With respect to the land sales charges, Jaffe stated constantly throughout the course of the trial that they were false, and he has pleaded that they "were taken without reasonable and probable cause with malice and/or when the conspirators knew or ought to have known that there was no foundation" for them. Jaffe's position in this respect appears to be based solely upon the fact that the charges were dismissed by the Court of Appeal in Florida. To my mind, there is nothing in that decision which allows Jaffe to say or plead as he has about them or to support his plea that "the court also ruled that there was no evidence to demonstrate any fraudulent activity by Jaffe...". The Court of Appeal in Florida in addition to finding that the wording of the charges "was defective", said, "Even if the charging document accurately traced the statute the proof at trial would not sustain the allegations."

61 In his submissions at the end of this trial, Jaffe asserted that "an overt sign of conspiracy" was the "suspicious contention by Grant, represented by Schmidt in the Bankruptcy Court, that certain documents were not turned over by Jaffe". Because this led to an order made by Judge Proctor that Jaffe attend before him in Florida and at the conclusion of which attendance Jaffe was arrested on the land sales charges Jaffe said "a deduction can be made". I do not agree.

62 There is no evidence that the defendants Grant, Schmidt or Silver, being those of the alleged conspirators who remained in this action, or any of the alleged conspirators, knew of the charges before that hearing was called. The requirement that Jaffe appear before Judge Proctor was due to his failure to comply with orders to produce documents and the date of his appearance was set with the consent of his counsel after Jaffe had failed to appear on two earlier occasions. There is absolutely nothing in the evidence to support, let alone suggest, a conclusion that the hearing before Judge Proctor was trumped up so as to lure Jaffe to Florida for the purpose of being served with the land sales charges.

63 With respect to the alleged conspiracy to have him kidnapped, Jaffe appears to focus his attention on the hearing which led to the order of Judge Perry dated the 18th of September 1981. By the terms of that order, Accredited was authorized to "produce the defendant Sidney Leonard Jaffe before this Court within 90 days hereof". The order was made following the hearing of a motion of Accredited to vacate the judgment whereby its bond issued to permit the release of Jaffe was estreated. This had happened because of Jaffe's failure to appear before Judge Perry on the 18th of May 1981. The only testimony of any one who was present at that hearing, or the previous occasions on which the motion was before the court, is that of the defendant Miller and that of Ronald Clark ("Clark"), the lawyer for Putnam County.

64 Miller was examined for discovery at some length on behalf of Jaffe and all that he had to say on that occasion was put into evidence at the trial by Jaffe. Miller denied knowing that Jaffe resided in Canada at the time of the hearing before Judge Perry. Miller referred to the application for the bond which Jaffe had signed just prior to his release from custody wherein he indicated that he was then residing in San Francisco and that his previous address was in Toronto.

65 There is no question in my mind that when he entered into the bond Jaffe believed that it was in his best interest to show an address in the United States and not Canada even though he was in fact then residing in Toronto. No one, but Jaffe and Mrs. Jaffe, then knew that as soon as Jaffe was released following the issuance of the bond, that he would "abscond" to Canada as the Ontario Court of Appeal described Jaffe's conduct in its decision in the Kear and Johnsen action.

66 Miller denied knowing that Accredited, his client, would go to Canada to get Jaffe. Miller originally thought that the motion which he brought on behalf of Accredited would not be contested. It was Clark who did so. Jaffe's lawyer at the time, Larry Turner, was given notice of the motion and Miller said that he thought Turner would support his position because it was in the best interest of Jaffe to have the bond forfeiture set aside. Miller said that he thought that once the forfeiture was set aside Jaffe would return voluntarily to be tried on the charges since Jaffe had retained competent counsel to fight them.

67 Clark was examined for discovery on behalf of Putnam County. The transcript of his testimony on discovery was also filed as part of Jaffe's case at trial. Clark says in the discovery that at the time of the appearance before Judge Perry he thought Jaffe resided in California, although he had no idea where he was in fact. Clark said his first knowledge that Jaffe was in Canada was after the kidnapping when he read about it in a newspaper. Clark testified that Jaffe's lawyer, Turner, had been notified of the hearing. Clark said that the only agreement reached between counsel who appeared before Judge Perry was with respect to the apportionment of the bond money.

68 There is no evidence of any "back room" agreement as Jaffe has alleged. Jaffe was not present himself and did not call upon his own lawyer, Turner, to testify about what transpired. I infer from the absence of Turner appearing before me that he would not have given testimony which supported the position of Jaffe or was inconsistent with the evidence of Miller or Clark. I was not given any reason to not accept what either of them said on their respective examinations for discovery.

69 In any event, there is nothing to link Grant, Schmidt, Silver, Shoemake or Stark to the hearing before Judge Perry or his order. Jaffe suggests that Schmidt and Silver were parties to this aspect of the overall conspiracy because there was some communication between Boyles and Schmidt about Jaffe's address. Although this conversation occurred in May, Jaffe says it was in anticipation of the kidnappers going to Canada in September. Jaffe did not question Schmidt, who he called to testify on his behalf, about this or any other aspect of any of the conspiracies in which he alleges Schmidt was involved. To demonstrate an agreement which encompasses unlawful conduct, the Jaffe had to adduce evidence that the alleged conspirators agreed to have Jaffe kidnapped in Canada, as it was not an offence in the United States of America to have him picked up by bail bondsmen. There was no evidence of such an agreement.

70 Something much more than conversation between individuals is required to have them involved in a conspiracy. This is especially so when, as here, there has always existed very valid reasons for Schmidt, Grant, Silver, Boyles and others to be in touch with each other and to exchange information. One group was pursuing Jaffe in civil proceedings while others were interested in criminal proceedings. There is nothing in the evidence to support Jaffe's claim that those on the civil side used the criminal processes to attempt to extract money from Jaffe or the corporations.

71 Jaffe spent some time dealing with a series of meetings which occurred in Toronto in February 1993. While he suggested that the purpose of these meetings was to extort money from him, he adduced no evidence to support such a conclusion. The two witnesses he called who could give direct testimony about those meetings said nothing about extortion or any improper conduct on the part of any one appearing at those meetings. And there was no evidence in any event that Silver, Grant and Schmidt knew they had occurred or had anything to do with them.

72 In my opinion, there is simply no evidence that permits a conclusion that there was any conspiracy of any kind on the part of the defendants, whether it be those who remain in the action, those who have been let out, or those who against whom Jaffe did not proceed, with respect to the kidnapping, or any of the land sales charges, the organized fraud charges or the perjury charges. And I must reach the same conclusion about the alleged mistreatment while Jaffe was a prisoner in the Putnam County Jail.

73 There is no evidence of any conspiracy to mistreat Jaffe because there is no evidence of any mistreatment. And in any event, the County Board of Commissioners at the time, the defendants Smith, Baird, Keller, Allender and Eubanks, had no control over the operation of the Putnam County Jail. What Jaffe said in his direct evidence about the mistreatment was quite different from what he said in cross-examination. Jaffe acknowledged that he, in fact, did receive medical treatment outside of the jail, and that the medical log kept in the jail showed that he did receive medication on a daily basis, contrary to what he had said in his direct evidence.

74 I accept the evidence of Larry Winkleman, who was in charge of the Putnam County Jail at the time Jaffe was there, that every effort was made to deal with Jaffe's many complaints and that he was given special privileges, including cigars along with the Wall Street Journal. With respect to the matter of the tooth infection suffered by Jaffe, Winkleman testified that there was no such complaint until long after Jaffe arrived at the jail. When it was made Jaffe was sent to a dentist and Jaffe refused to follow the dentist's advice. Winkleman specifically denied Jaffe's statement that he had been told that he could only get medical treatment if he agreed to move up his sentencing date. Winkleman gave his evidence in a firm and forthright manner. I found him to be a good witness and there is no reason for me not to accept everything he had to say, particularly where he differs from Jaffe.

75 There is then, in my opinion, no basis upon which any of the defendants can be made liable to either of the plaintiffs for any aspect of their respective claims for damages. As I have noted, both rely solely upon a finding that a tort of conspiracy has been committed against Jaffe by some or all of the defendants. I have found that no such tort was committed and accordingly, on this ground the plaintiffs action must fail.

76 Had I decided otherwise the matter of the damages, if any, to which either plaintiff would be entitled, raises questions and creates concern in my mind. The plaintiffs approached this trial on the basis, so they alleged, of an understanding that they could provide adequate proof of their claim for damages by filing the judgments each obtained from Matlow J. and the records containing the material which was before him. The plaintiffs were advised by me that this was not sufficient for the reason that none of the defendants were given an opportunity to appear before Matlow J. and make representations as to what should or should not be allowed by him.

77 Counsel who represented the Jaffes before Matlow J., and who as well acted on their behalf in this action for some time, testified that they had both been told by him long before this trial that they could not expect to prove the accounts which make up the largest part of the amounts awarded to them by Matlow J., by simply filing copies of his judgments and the material upon which they were based. He said they were expressly advised that they would have to call further evidence in support of these claims. Neither Jaffe nor Mrs. Jaffe disputed this testimony or gave any explanation as to why they have proceeded otherwise.

78 Matlow J. in addition to granting to Jaffe and Mrs. Jaffe their claims for "special damages", and which I have noted consist primarily of the "accounts" of various lawyers retained to assist them following the kidnapping, also awarded them general damages, being $200,000 for Jaffe and $25,000 for Mrs. Jaffe. Unfortunately, Matlow J. gave no reasons for the basis upon which he awarded either of these amounts nor indeed those awarded by way of special damages. The affidavit which Mrs. Jaffe filed before Matlow J. was sworn on the 2nd of October 1990 and reads, in part, as follows:

6. As the kidnapping of my husband was a violation of international and Canadian law, as well as the extradition treaty between Canada and the United States, expert, professional and legal assistance was required. All the expenses which I incurred, which are summarily reviewed below, arose directly out of the illegal abduction and the violation of Canadian and international law as directed by Accredited and Snow, and as carried out by Kear and Johnsen.

7. In addition to the legal and expert fees which I incurred in arranging the defence and eventual reversal of the criminal unfounded charges brought against my husband, Sidney Jaffe, I incurred extensive expenses for travel, lodging and telephone for and with experts, lawyers and witnesses who were active in the efforts to secure my husband's release.

9. In addition to the fees and expenses which were incurred to secure the reversal of my husband's conviction and release, monies were paid in the amount of $156,865.00 U.S. to obtain my husband's parole. Although the funds were provided and disbursed upon the instructions of the Florida Parole Commission,

his parole was subsequently denied. Evidence of this expense is annexed as Exhibit "0" to this my affidavit.

10. $150,000.00 U.S. was placed to secure a bond to obtain my husband, Sidney Jaffe's release and return to Canada, after the Florida 5th District Court of Appeals had reversed his 1981 conviction. The bond was required because Florida brought additional false charges to stop the release and return of my husband to Canada. But for my husband's kidnapping, he would not have been in Florida and subject to these further charges and arrests. The surety of $150,000.00 U.S. was forfeited due to the position of the Canadian Government that the second set of charges and arrest were illegal and my husband should not appear for trial, as to do so would have contravened the express position of the Government of Canada. Evidence of this expense is annexed as Exhibit "P" to this my affidavit.

11. In addition to the foregoing, I incurred additional costs relating to my husband's incarceration with respect to travel, telephone and payments of expenses to expert, lawyers and witnesses in the assisting of my husband's case and obtaining his return to Canada. The total amounts are as follows U.S $61,395.74; Canadian $58,843.01. The attached document demonstrate these expenses and are annexed hereto as Exhibit "Q" to this my affidavit.

12. In total, the fees and expenses incurred by me between September 1981 and October 1983 in securing Sidney Jaffe's release necessitated because of his kidnapping are as follows:

U.S. Can.

Legal Fees $535,220.73 $29,450.55

Parole Moneys $306,865.00

Expenses $ 61,395.74 $ 58,843.01

$903,481.47 $88,293.56

13. I swear this motion in support of my claim for default judgment in the above amounts plus pre-judgment interest against Accredited, Snow, Kear and Johnsen as all of my expenses arose directly from the unlawful abduction of Sidney Jaffe undertaken by Kerr and Johnsen at the direction of Accredited and Snow.

79 That is the extent of the information before Matlow J. upon which he granted judgment in favour of Mrs. Jaffe. Although I was not shown a copy of the material filed on behalf of Jaffe, I have no reason to think it is any different in substance. The "evidence" which Mrs. Jaffe states is attached to her affidavit consist of copies of handwritten memos, accounts, invoices, statements and cheques. Her position at trial was little different than that contained in her affidavit. The Jaffes were told on several occasions that something more was needed in order to demonstrate the reasonableness, necessity and relevancy of the many accounts and expenses being claimed.

80 Jaffe claims "damage by reasons of his mental and physical suffering, loss of income, loss of business opportunities, legal and other expenses, loss of reputation, and the loss of care, guidance and companionship of members of his family during the period of his imprisonment". The claim put forward on behalf of Mrs. Jaffe for damages is "by reason of her mental and physical suffering, loss of income, the aforesaid expenditures, and the loss of guidance, care and companionship of the plaintiff Sidney Jaffe during the period of his imprisonment". Both of them plead and rely upon s.60 of the Family Law Reform Act, R.S.O. 1970, c.I-52, which now, through repeal of that Act, is s. 61 of the Family Law Act, R.S.O. 1990, c.F.3. It reads as follows:

61.-(1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury of death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.

(2) The damages recoverable in a claim under subsection (1) may include,

(a) actual expenses reasonably incurred for the benefit of the person injured or killed;

(b) actual funeral expenses reasonably incurred;

(c) a reasonable allowance for travel expenses actually incurred in visiting

the person during his or her treatment or recovery;

(d) where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the person, a reasonable allowance for loss of income or the value of the services; and

(e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.

(3) In an action under subsection (1), the right to damages is subject to any apportionment of damages due to contributory fault or neglect of the person who was injured or killed.

(4) No action shall be brought under subsection (1) after the expiration of two years from the time the cause of action arose.

81 Notwithstanding that both Jaffe and Mrs. Jaffe in their statement of claim suggest that their damages flow from all five of the alleged causes of action, at trial they appeared to have proceeded on the basis that their damages flow only from the kidnapping and Jaffe's incarceration which followed thereafter. Jaffe put forward claims for damages based on the accounts, the effect on the business or concept which he called "Arbitrax" and the effect "personally" of the kidnapping and incarceration. Mrs. Jaffe, on the other hand, restricted her claim to the accounts and expenses which she says she incurred by reason of Jaffe's kidnapping and incarceration, although at the end, in her submissions, she said that she thought she was also entitled to "$250,000 by reason of all that has occurred".

82 I am not certain how Mrs. Jaffe puts forward any claim for damages in her own name and particularly the lawyers' accounts incurred by reason of services rendered to Jaffe. The cause of action afforded to her under the Family Law Act is dependent upon there being an injury to, or death of, Jaffe. There can be no doubt that the kidnapping and subsequent imprisonment in themselves do not constitute an injury within the meaning of the Family Law Act.

83 Jaffe did allege that during the course of his trip from Toronto to the United States border he was beaten on two occasions by a heavy metal object. For reasons which I will outline later, I do not accept this evidence of Jaffe. I prefer, rather, to accept the conclusions reached by the late Chief Justice Callaghan, expressed during the course of giving his reasons for his sentence of Kear and Johnsen. The late Chief Justice at that time said:

For the purpose of sentence I find that the transportation in this case was carried out with only that degree of force necessary to effect the desired purpose namely: the return of the victim to the United States.

The victim was, in my view, not violently assaulted as alleged other than to the extent necessary to keep him in the motor vehicle and to get him across the border. ...Very little, if any, force was required to confine and transport him out of the country....

A significant purpose of this sentence is to recognize our border, vindicate the same, and at the same time recognize the individual characteristics of these accused.

84 I cannot conclude, on the evidence before me, that Jaffe was beaten, as he alleges, during the course of being transported from Toronto to the United States border, or at all, or in any event was occasioned any physical injury as a result of the kidnapping. There is no evidence to support a conclusion that Jaffe suffered any other form of injury while being transported to the border.

85 Contrary to the position taken on behalf of Grant, I do accept that the act of kidnapping, itself, can provide Jaffe with a civil cause of action for damages. However, absent the alleged conspiracy, only Kear, Johnsen, Accredited and Show could be liable for them. Kear and Johnsen are not parties and the plaintiffs have a judgment against Accredited and Snow.

86 But Jaffe's claim, in any event, goes beyond the kidnapping itself, and includes the events which occurred after he was deposited at the Niagara Falls New York Airport. There is a real question in my mind given the circumstances of this case as to whether Jaffe can recover damage for any of the events which occurred after he left Canada. This includes the bulk of the accounts and expenses which both Jaffe and Mrs. Jaffe claim in this action.

87 Had Jaffe not caused himself to be regarded as a fugitive from justice at the time of his being kidnapped, virtually nothing of what occurred thereafter would have arisen. I think it is only reasonable to suggest that everything that did happen to him once he left Canada was due to his own misconduct. In my view, he was not wrongfully imprisoned in the Putnam County Jail following the kidnapping. I find it difficult to accept that Jaffe can be considered to have been damnified by doing what he was otherwise legally compelled to do. As well, in my view, the actions of Kear and Johnsen in kidnapping Jaffe represent the causa sine qua non while Jaffe's own conduct is the causa causans of what transpired after Jaffe crossed the border.

88 And as a matter of policy I do not think Jaffe, assuming liability, should receive any compensation for what happened to him apart from the kidnapping itself in Canada. There is no doubt in my mind that when he entered into the bond he knew then that he would not abide by its terms. There can be no dispute, on the other hand, that Accredited acted in good faith in issuing the bond which permitted Jaffe to be released from jail and return to Canada. It strikes me as being wrong that Jaffe now has or should obtain a judgment against Accredited. It remains out of pocket at least the $137,500 payment which it was bound to make because of Jaffe's intentional default.

89 The Ontario Court of Appeal in the Kear and Johnsen action had this to say about Jaffe's conduct in relation to Accredited:

We think the appeals from the sentences imposed by the trial judge should succeed. The trial judge rightly considered the offence to be a grave affront to the sovereignty of this country. Although it is not excuse, the gravity of the affront is mitigated by the circumstances of the offence. In consideration of the surety putting up $137,000 U.S. to secure his freedom from jail and

after being told by the surety that if he did not appear at court they would come and get him anywhere, Jaffe agreed in writing that the surety would have the right "to forthwith apprehend, arrest and surrender" him. In violation of his obligations to the court which had released him from jail and to the prejudice of the surety's $137,000, Jaffe, who was then an American citizen, had absconded and fled to this country where he managed to obtain Canadian citizenship. There is nothing favourable that can be said about his conduct.

The trial judge found that both appellants had a general overriding belief that the contract constituted some authority for them to apprehend Jaffe even though that belief was arrived at negligently. It is also clear that the purpose of seizing Jaffe was to return him to the court that had jurisdiction over him.

Both appellants are men of good character and repute. The trial judge commented, 'In my many years on the bench I have never seen such an outpouring of support for two individuals'.

90 With respect to Jaffe's claim that he suffered some financial loss in connection with a company or concept, which he referred to as "Arbitrax", I find that none has been established. Jaffe specifically said that the events which occurred following the kidnapping caused the failure of this venture. The evidence suggests it was due to the departure of an associate. There is no credible evidence to support Jaffe's allegation nor is there any credible evidence to indicate what, if any, financial success could have been reasonably expected had the venture gone forward and what if anything that would have meant for Jaffe. To my mind, what Jaffe had to say about Arbitrax suggested that it was more a figment of his imagination than a reality.

91 I have already determined that Jaffe was not mistreated at the Putnam County Jail as he alleged; and, therefore, there is no evidence to support any claim for damages by reason of what occurred there.

92 In the end then, in my view, Jaffe has failed to adduce any credible evidence which would support his obtaining an award of damages by reason of any mental or physical suffering on his part, loss of income, or loss of business opportunities. He called no evidence to support his claim for loss of reputation or, the loss, which he claimed for himself, of the care, guidance and companionship of the members of his family during the period of his imprisonment.

93 I reach the same conclusion about Mrs. Jaffe and her claim for damages by reason of her mental and physical suffering, loss of income and the loss of guidance, care and companionship of Jaffe during the period of his imprisonment. That latter claim would arise under the Family Law Act and there simply was no evidence adduced which touched upon it. The claims which were advanced on behalf of the Jaffe children and Jaffe's mother were not pursued at trial.

94 While there was lots of documentary evidence concerning the claim for accounts and expenses, apart from some effort by Jaffe and Mrs. Jaffe to identify the lawyers and what they were retained to do, there was no other evidence to support these claims. Notwithstanding advice that it was required, nothing was adduced which touched upon their reasonableness, necessity, relevancy or payment. Many of the lawyers' accounts did not contain any description of the work or services and in some instances, for instance those of Dan Dearing ("Dearing"), the description had been blanked out.

95 It is significant to my mind that Jaffe himself has in the past called in to question the services alleged to have been rendered on his behalf by at least five or six of the lawyers he retained, including his own brother. In the case of Dearing, the Jaffes commenced an action in Ontario against him to recover the money they had paid to him in order that he could arrange for Jaffe's release from jail. Specifically, these amounts were the $150,000 paid in lieu of the bail bond and the $156,850 paid by way of "restitution money". Dearing counterclaimed in that action for the amount of his account and the Jaffes denied any responsibility to pay it. Austin J.A., as he now is, dismissed the Jaffes' claims and allowed Dearing's counterclaim. His account is included in those which the Jaffes claim in the present action. There is no evidence of it being paid. I will refer to "the Dearing action" again.

96 With respect to the accounts and expenses then, I am able to conclude that they have not been properly proven and I say that for reasons other than the failure to demonstrate, on a balance of probabilities, that the services were reasonably required or necessary and that the amounts charged therefor were reasonable. Even if that that had been accomplished, the amounts could not be allowed to either of the Jaffes because they have not proven any proprietary interest in them.

97 During the course of giving her direct testimony through questions put to her by Jaffe, Mrs. Jaffe said that the nearly $1 million which she claims she used to pay the lawyers' accounts and cover her other expenses, all incurred between the 23rd of September 1981 and the time of Jaffe's release on the 18th of October 1983 and which she claims in this action, was "mine". Mrs. Jaffe also testified that she had to borrow the $150,000, used to fund the letter of credit required to permit Jaffe's release, from "a friend" who she identified as Gabriel Alter ("Alter"). Records were produced to demonstrate that Alter wired this amount of money from his bank account to an account in Florida on the 7th of October 1983.

98 Mrs. Jaffe also testified that she had $100,000 of her own money which she used to pay in part the expenses that she incurred including the two sums paid to permit Jaffe's release as aforesaid, and that the rest came from a family owned company which she identified as either Brunswick Investments Limited ("BIL"), or Integrated Capital Corporation ("ICC").

99 The changes in her testimony as to whose money was used to cover the expenses and accounts arose in her cross-examination. She admitted that Alter had been repaid the sum of $150,000 three or four days following the day upon which he wired that amount to Florida. With further cross-examination it came out that all of the money which Mrs. Jaffe used for the payment of the "accounts" to whatever extent they were paid, came from a bank account in a bank situate in London, England.

100 Mrs. Jaffe did not identify the bank or advise in whose name the account existed at the time the monies were withdrawn by her. Nor did she indicate how she was able to obtain the funds herself. She did say that when Jaffe was kidnapped there were hundreds of thousands of dollars on deposit in banks around the world from Jaffe's businesses in the 1950s. She said that she had paid "no attention to these things" before Jaffe was kidnapped. Mrs. Jaffe eventually acknowledged that she withdrew over $1.8 million from this account and used part of that amount to pay the accounts and expenses which were incurred either on behalf of, or in relation to, Jaffe and which she claims as her own in this action.

101 Upon hearing this testimony of Mrs. Jaffe, it was apparent to me that Alter became involved in the exercise in order to support the position of the Jaffes, which they maintained before the State Court and the Parole Commission in Florida, that they were without funds of their own to meet that which was required to secure the release of Jaffe. Alter drew the cheque one day and three or four days later he was repaid in full. Notwithstanding this fact, some five or six weeks later, Alter wrote a letter to Jaffe's lawyer, Dearing, requesting the repayment of the amount which he had sent to Florida, including the interest which was being earned on it while deposited in a bank in Florida.

102 When asked in cross-examination why he would write such a letter when he had been repaid in full, Alter replied, "Because someone asked me to." Dearing had never been told that the funds which he used to secure Jaffe's release had come from any other source than "friends". Contrary to what Jaffe has maintained it was a significant factor in the minds of the members of the Parole Commission that the Jaffes were without funds of their own and had to rely on friends to provide them.

103 Some time toward the end of November 1983, Jaffe in an effort to obtain certain relief on the basis of his being "indigent" filed an affidavit which he swore in Toronto on the 26th of November 1983 before his lawyer John Zeldin ("Zeldin"). That affidavit states, in part, as follows:

This court recently set a bond for your affiant for $150,000.00. Affiant did not have any funds available to provide said bond. Affiant has gone into debt and borrowed from friends the sum of $150,000.00 and has no further capability to raise or borrow funds of any amount beyond a few thousand dollars.

I note here that Mrs. Jaffe conceded that of the $1.8 million or more that she obtained from the bank situate in England, over one-half million dollars was dispersed after the date of that affidavit. Mrs. Jaffe did not say that in addition to being a friend, Alter was also a director, officer and shareholder of ACDC, the company through which Jaffe collected the money derived from the sale of lots in St. Johns. That fact was not revealed until Alter was cross-examined later in the trial. In fact he was cross-examined on two separate occasions because of Jaffe's untimely production of relevant documents. Alter was a most uncomfortable witness. He was not anxious to admit or acknowledge the extent of his business relationship with Jaffe. His performance left a lot to be desired. I was not impressed with him as a witness.

104 When Jaffe testified, he was asked about his affidavit and the matter of the bank account in London, England. Jaffe explained that the bank account was in a branch of a South African bank. He said that he had anticipated that the funds in that account would be frozen in retaliation for the trade embargo imposed on South Africa. Accordingly, he maintained, he arranged through a London lawyer to have the funds removed and he sent Mrs. Jaffe to accompany that lawyer because she would evoke sympathy. That is about all that Jaffe said about that account. No documents, statements or accounts were produced and I was not told in whose name the account was held. And apart from an indication that some of the funds generated from his activities in the 1950s and 1960s were deposited in South Africa, I was not told whose funds were in fact deposited in the branch in London and when.

105 Having given that explanation, Jaffe said that the money used to pay the various accounts and expenses came from family corporations which he also identified as Brunswick Investments Limited ("BIL") and Integrated Capital Corporation ("ICC"). He said the money in those companies had been designated for the use of the Jaffe children. When asked about his use of the word "friends" in his affidavit sworn on the November 26, 1983, Jaffe said it was a euphemism used to describe the family corporations.

106 Jaffe testified that as soon as he was released from jail, he took immediate steps to reverse the financial records of BIL and ICC so as to not have the moneys paid to that date charged to his wife's account as he said they had been, but rather to his. No records of any such transactions were produced.

107 Jaffe said that all of the accounts and expenses were used by him in the calculation of his personal income tax returns in Canada and the USA. They totalled approximately $2.2 million and were designated by Jaffe as legal fees the purpose of which was to "protect income earning ability". According to Jay Stark ("Stark"), an accountant with Arthur Andersen & Co. employed on behalf of Schmidt and Grant, Jaffe's Canadian personal income tax returns showed that on a total income (excluding the deduction of legal fees) of $1,827,150 between the years 1981 and 1992, Jaffe paid income taxes totalling $23,395. Stark stated that Jaffe had substantially reduced his Canadian taxes payable by deducting those legal fees. Stark also testified that the primary source of income for the Jaffes was from BIL, ICC and the corporations which he specifically indicated were those involved with the collection of the instalment payments due from the sale of lots in St. Johns.

108 In the Dearing action which took place in 1991, it is clear from the reasons of Austin J.A. that he had been told the $150,000 "bond money" came from Alter. The Jaffes' claim to this amount was dismissed by him for the reason that it had been forfeited due to Jaffe's failure to show up at the trial of the fraud charges. Austin J.A. expressly found that Jaffe's failure to appear for the trial of the fraud charges was not, as Jaffe had maintained before him and has continued to maintain during the course of this present trial, due to the direction or request of the Government of Canada or the Crown Attorney prosecuting Kear and Johnsen. Austin J.A. concluded that "the decision was his to make and he decided not to return".

109 Austin J.A. referred to the sum of $156,856 as "restitution money" because as part of the agreement reached for Jaffe's release from jail, the 28 purchasers of lots in St. Johns, whose situation gave rise to the 28 land sales charges, were to be repaid their purchase money. With respect to that amount, Austin J.A. said as follows:

Although the point was never pleaded or argued, the question of ownership of the restitution funds should be discussed. From the outset, Dearing was told by the Jaffes, by Fram, and possibly by others, that the Jaffes could not afford to pay the restitution funds themselves. Dearing and Fram were led to believe that the money had been collected from a group of friends. Jaffe wrote in the same vein to the Chairman of the Parole Commission. Dearing relied on this information and used it in dealing with the courts and with the Parole Commission.

Yet this action is brought in names of Mr. and Mrs. Jaffe. At trial Mrs. Jaffe said that her son had said to her that Mr. Jaffe had invested the funds for the children and that she should use them. She described them as "the funds of my children". Mr. Jaffe said that "15 or 20 years ago I have set up investment funds. Those were to be for the kids. Harold said, 'take it'."

None of the Jaffe children was called to testify. Not a scrap of paper was tendered to establish the source of the funds.

Fram said that Mrs. Jaffe told him at the time that the money came from friends. In order to send it to Florida and to get extensions of the time, he

had to get instructions from Zeldin and Zeldin had to approve the arrangements in Florida. At trial Fram said that then he believed that the money came from Zeldin and friends, but that now he was not so sure.

The statement of claim in this action does not assert any interest of the plaintiffs in the restitution funds. Dearing was not made aware of any interest being claimed by them personally until the discoveries in this action.

On all of the evidence, I am not prepared to find that the plaintiffs ever had or now have any proprietary interest in the funds put up for the purpose of making restitution.

110 There is nothing in the reasons of Austin J.A. about the judgment which Matlow J. had granted the previous year to Mrs. Jaffe, and specifically that her award of special damages in the amount of $903,481.49 included both the sums which Austin J.A. had declined to award to either Jaffe or Mrs. Jaffe. And it is clear from the material put before Matlow J. that he was not told anything of the alleged various sources of the funds which the Jaffes say were used in payment of the accounts and expenses claimed by them. Harold Jaffe did not appear before Austin J.A., did not file material before Matlow J. and did not testify at this present trial.

111 The situation concerning these accounts and expenses claimed by the Jaffes at this point appears to be as follows: Jaffe has assumed all of them as his own in order to obtain a benefit for himself for the purposes of his personal income tax returns for several years in both Canada and the United States; Mrs. Jaffe has recovered the bulk of them as her own in a default judgment granted in this action in order to overcome Jaffe's inability to recover them in his own name in Florida; Austin J.A. has concluded that neither Jaffe nor Mrs. Jaffe is entitled to two of the larger amounts which each has claimed as their own and which therefore in one instance are included as expenses in Jaffe's income tax returns or in the other as part of what Mrs. Jaffe recovered under the judgment of Matlow J.

112 There is no question in my mind that neither Jaffe nor Mrs. Jaffe are entitled to recover any of the accounts and expenses which they claim as their own in this action. I am not satisfied that either one has a proprietary interest in any part of them. I have no doubt that Matlow J. granted judgment in favour of both Jaffe and Mrs. Jaffe on the basis of misstatements or misrepresentations knowingly made to him for the purposes of furthering a scheme to promote the best interest of Jaffe before the courts and Parole Commission in Florida, and allowing a recovery of money to which neither of them are entitled. I have a serious concern about this matter and question whether the judgments of Matlow J. should now be enforced. I think the matter of their validity should be the subject of further consideration on another occasion.

113 What has occurred with respect to these expenses and accounts, to my mind, when viewed against the background of all of the evidence, is typical of the conduct which Jaffe has displayed throughout all that has happened since 1976. He has demonstrated a propensity to do or say or to cause to be done or said anything which at any given moment wherever appears to promote his interests without concern for whether it is consistent with the truth, undisputed facts, or what has been said or done by him or those acting with or under him on other occasions. The extent to which this proclivity appears to have affected Jaffe's use of the processes of various courts is of concern to me.

114 It was her part in the affair concerning the accounts and expenses which first caused me to question or doubt the credibility of Mrs. Jaffe. To that point I had had no reason to not accept what she had to say because she appeared to be testifying in an honest and straightforward manner. She has an appearance of being, and I think basically she is, an honest person. Unfortunately, however, she has succumbed to Jaffe's influence with the result that she cannot or will not say anything which does not accord with what she believes is in his best interest or, more often I think, what he has told her to say.

115 It was disappointing to me to see how easily she was able to deal with falsehoods and contend with them when they were revealed. I soon realized that her habit of not answering the most straightforward of questions without having them repeated to her was to permit her to measure what she was going to say against Jaffe's interests or script.

116 On some occasions this concern on her part pushed her to the ridiculous. For instance, she was asked during cross-examination whether she had travelled to Europe with Jaffe on a vacation during the summer of 1981. She was obviously taken back by this question because she knew that Jaffe's excuse for not appearing in Florida to deal with the land sales charges in May or attending a civil hearing in August was that an injury had prevented him from travelling. With some hesitation, Mrs. Jaffe replied that she was not sure if Jaffe had accompanied her to Europe that summer. For his part, when asked later, Jaffe had no difficulty admitting that he had in fact accompanied Mrs. Jaffe to Europe in the summer of 1981. He also said with no hesitation, "Going on vacation is one thing, being examined is another."

117 Insofar as Jaffe's credibility is concerned, I can say without any hesitation that in all my years on the Bench, I have not seen or experienced a more untrustworthy witness or litigant. Jaffe absolutely has no compunction about any kind of misconduct whether his or that of others whom he has asked to act in his interest. It is so obvious that falsehood and deception forms part of most, if not everything, he does that I cannot understand how intelligent people, such as Mrs. Jaffe, his friend and associate Alter, and his long-time lawyer Zeldin, have found it necessary to go as far as each has gone in support of his conduct.

118 An example of the type of thing that Jaffe did so frequently during the course of the trial concerns the production of computer printouts with summary pages removed from them. In July 1986, the United States Court of Appeals, Eleventh Circuit, found that Jaffe could not be excused for a variety of reasons which he had put forward to the court for "the intentional misconduct of producing documents with critical portions torn off". Before me, on one occasion, he maintained that he did not know that documents had been produced in that condition. On another, he allowed that a portion of the document was missing but said that would help understand the printouts. He denied saying on his examination for discovery that the absence of the summary sheets would make it "difficult if not impossible" to understand the computer printouts. The reporter who took his evidence on discovery attended to testify that her notes disclosed that Jaffe in fact said, "difficult if not impossible" and not "difficult but not impossible", as he contended before me.

119 In the past, a number of judges in the United States before whom Jaffe or the corporations appeared have reached conclusions about Jaffe's conduct that are similar to mine. For instance in 1985 Judge Milton, sitting in the United States District Court, Middle District of Florida, Jacksonville Division, said, after identifying misleading or false statements which Jaffe had said, "The court can only conclude that appellant has intentionally sought to mislead the court with respect to the facts in the record in an attempt to avoid dismissal...".

120 It appears to me that central to everything that Jaffe has said or done or caused to be said or done since 1976 is his steadfast refusal to account for the money which he caused to be collected from St. Johns between 1976 and 1982. I believe that he commenced this action primarily as a means of permitting the situation to continue. As it now stands he has succeeded in having another nine years go by without having to account for what was taken or to produce documents or records from which anyone else can reach a conclusion. He does not deny that money was taken; he simply does not want anyone to find out how much.

121 I do not think that gaining success on the merits of the claims raised in this action is something about which Jaffe has been greatly concerned. He apparently has realized for some time, if not at the outset of this action, that any judgment that he would obtain in his name could not be enforced in Florida. At the outset only one of the defendants resided in Canada, and it has been removed. Jaffe has had to know that there is no practical basis upon which any judgment that might otherwise have been obtained against the remaining defendants in this action could be enforced in this province. I have noted the seemingly indifferent approach to satisfy the onus which rested upon him and his wife in this action. In this respect, there is no question that Jaffe was in complete control of their case.

122 Jaffe was not anxious to have this trial proceed. Although the trial date had been fixed by Lane J. more than a year before, Jaffe failed to show up on the opening day. Rather, he sent a lawyer to seek an adjournment on the basis that Jaffe had been hospitalized and would not be available for a month. A doctor who had attended to Jaffe testified that he had come to the hospital the previous week complaining of having lost his memory for a couple of hours. The doctor said that Jaffe was diagnosed as having three problems, two of which were chronic and a third which was to be investigated further. When asked if Jaffe was "capable of coming today, giving his evidence and having his tests next week", the doctor replied "I think so".

123 During the course of the submissions which were made to me in support of the request for an adjournment, I had been told that "he is in the hospital" when I asked why Jaffe could not be present to explain his position. At my direction Jaffe came at noon time. I then learned, almost in passing, that at the time the trial began that morning, Jaffe was having his eyes examined some place in downtown Toronto. At one point in his testimony at that occasion, Jaffe said that he had left the hospital on "Friday night", while at another he said he had left about "tennish" that Monday morning, the 4th of October 1993. I directed that the trial proceed the next morning. Jaffe appeared at that time, along with Mrs. Jaffe, and he continued to be in attendance thereafter everyday until the trial was completed on the 22nd of December 1993.

124 After I had determined that the trial would proceed, I learned that Jaffe had sought an adjournment from Lane J. in his capacity as the case management judge, on the 24th of September 1993. At that time, I was told, Jaffe had put forward three reasons for an adjournment all different than the one put to me. Lane J. declined to grant an adjournment and Jaffe attempted, without success, to appeal this order to Labrosse J.A. on the 30th of September 1993.

125 It was not until later in the trial that I recognized that Jaffe's efforts to obtain an adjournment from me bore a markable similarity to those which he made before Judge Perry in May 1981. Then he attempted unsuccessfully to have his lawyer obtain an adjournment on the ground that Jaffe could not travel by reason of an injury which he alleged he sustained a month or so before. Judge Perry said that nothing of an injury had been said at the pretrial conference held less than two weeks earlier, or three days before when Jaffe attempted, unsuccessfully, to enjoin the trial from proceeding.

126 Jaffe spent some time during the trial, and, it seems, immediately before it began, attacking Grant, Schmidt or Silver. The evidence revealed absolutely no justification for anything which Jaffe has said, either in the pleadings, at trial, or otherwise, about the professional and personal integrity of any of the defendants. I am completely satisfied from all that I have seen and heard that at all times the defendants, and in particular Schmidt, Grant and Silver, were pursuing legitimate goals on behalf of the interests which they represented, tasks made most difficult by the intentional misconduct of Jaffe an object of which was to frustrate their efforts.

127 Jaffe's defence to Grant's claim to have his $3 million judgment enforced in this province essentially involves re-litigating all of the steps that led up to that judgment being obtained by Grant. This collateral attack on the validity of the judgment is made notwithstanding that throughout all of the proceedings in the courts in Florida, which led up to that judgment being granted against the corporations and Jaffe personally, the corporations and Jaffe were represented by counsel and that every step of the way was fought and every decision made along the way was appealed, including one to the Supreme Court of the United States in 1987. He was unsuccessful at every turn.

128 On the 2nd of October 1984, not quite ten years ago, Judge Moore of the United States District Court, Middle District of Florida, Jacksonville Division, allowed Grant's motion for final judgment in the amount of $3 million plus interest. In the course of giving his reasons for his decision, Judge Moore said as follows:

To this date, plaintiffs have never stated the total dollar amount they collected from contract vendees nor have they accounted to defendant GRANT for any of the proceeds of their collection efforts, and there is absolutely no

evidence in the record from which the Court could calculate any amount of damage other than the $3 million amount stated in the supplemental final judgment. If plaintiffs seriously contested the fact that they collected less than $3 million, the obvious method of proving that fact would be to state the amount of money they had, in fact, collected, and produce the documents which would establish that fact. Plaintiffs have done neither and the Court can only conclude that they have never had any intention of either accounting to defendant GRANT as they are obligated to do by the Final Default Judgment and this Court's Order of October 14, 1982, and that they have willfully and intentionally refused to comply with their discovery obligation in this action in an effort to frustrate, hinder and delay the Court from entering a final judgment.

129 The plaintiffs to whom Judge Moore refers are the corporations and Jaffe personally. The situation about which he speaks there is identical to what exists today in this action. Nothing has changed.

130 The lawyer whom Jaffe brought from Florida to provide testimony about the validity of the judgment in question, in the final analysis, was simply attempting to demonstrate that the courts in his opinion in Florida were wrong to have granted judgment against Jaffe. He acknowledged that at the very time he was testifying the judgment which Grant seeks to enforce in this province was enforceable in the State of Florida.

131 In my opinion, there is no obstacle which has been raised by or on behalf of Jaffe that should prevent the enforceability of that judgment in this province at this time. According to the calculation filed as an exhibit at trial, as of November 15, 1993 the debt owing by Jaffe under the judgment of the United States District Court dated the 2nd of October 1984 is calculated as follows:

Principal: $ 3,000,000.00

Simple interest accrued on $3,000,000 from date of state court 874,849.31

judgment through date of Jaffe judgment, as fixed by Jaffe

judgment:

Simple interest accrued on $3,000,000 from date of Jaffe 3,108,282.70

judgment through November 15, 1993 (9 years, 44 days), at

federal statutory rate of 11.36% per year:

Judgment debt as of November 15, 1993 $ 6,983,132.01

132 The memo which was filed indicates that simple interest continues to accrue after November 15, 1993 at the rate of $933.699 per day. As all of the amounts indicated above are expressed in United States dollars, the provisions of s.121 of the Courts of Justice Act will therefore apply.

133 The condominium was originally acquired by the Jaffes in 1980. It was then registered in both their names. By a transfer executed by both the Jaffes on the 16th of July 1982 and registered on the 20th of October 1982, the condominium was put in the name of Mrs. Jaffe alone. By a transfer executed and registered on the 27th of February 1992, the title to the condominium was registered in the name of Brunswick Investments Limited ("BIL"). No consideration was given for either of the transfers.

134 Grant attacks both of these transfers as being fraudulent and void as against Continental, himself, and generally the creditors of Continental.

135 The 1982 transfer was signed by the Jaffes soon after the State Court in Florida dismissed the corporations' appeal from the $3 million judgment. Grant had moved to extend this judgment against Jaffe personally. The transfer was not registered until three months after it was signed when Jaffe's defences were struck out because of his failure to cure defaults made earlier. The result was then that the judgment went by way of default against Jaffe. Jaffe then obtained advice from his lawyers as to whether the U.S. judgment would be recognized for enforcement in Ontario. The transfer was registered after the advice was received.

136 Mrs. Jaffe testified that the reason for the transfer was to facilitate her ability to raise money against the title to the condominium or to move. She said that Jaffe's kidnapping had caused both of these prospects to arise. In making this statement, Mrs. Jaffe made no mention of the fact that she had already testified that she had been able to obtain over $1.8 million from a bank account in London, England. Nor did she appear to realize that if she did in fact mortgage the title to the condominium, Jaffe's signature would have been required even though he was not shown on title as an owner. Mrs. Jaffe did not explain how having her name only on title would have helped her to move. She did not move until some point during the middle of the trial. I shall refer later to the circumstances under which it occurred.

137 Mrs. Jaffe's explanation for the 1982 transfer makes no sense. I think it is another example of Mrs. Jaffe following the direction of Jaffe. I do not think that she could have come up with such a story on her own. There is no question in my mind that the purpose of the transfer was to defeat Grant's judgment and for this reason it is void.

138 And in my opinion the same thing can be said about the 1992 transfer. I have no hesitation in characterizing it as a most blatant attempt to defraud creditors. It is an act completely consistent with what I have identified above as being Jaffe's approach to accomplishing his own ends.

139 Although the condominium had been registered in the names of both the Jaffes or Mrs. Jaffe alone since 1980, Jaffe waited until 1992 to have title put in the name of one of the family corporations, BIL, without any consideration for the transfer. And this step followed almost immediately the judgment of Austin J.A. in the Dearing action. The transfer itself was signed and registered the next day after the draft judgment had been sent to his counsel for approval.

140 In the meantime, Jaffe had Zeldin search the title and give him the minute book for BIL. This was not revealed until Zeldin's cross-examination. Jaffe said he caused the former transfer to be completed and that both he and Mrs. Jaffe attended the registry office to effect registration. While Jaffe suggests that he did most of what had to be done by himself rather than Zeldin or another lawyer, something quite out of character, it seems that his next-door neighbour, John Lamont, a lawyer involved with Jaffe in ACDC, played a part as well. Zeldin who has had no difficulty in the past being involved with Jaffe and his schemes apparently at some point decided to restrict his participation in this transfer. He testified "it was better that I not know what was coming down the pike". Notwithstanding this one act of contrition, I was not any more impressed with Zeldin's appearance as a witness than I was with that of Alter.

141 As obvious as Jaffe's efforts to defeat his creditors are to my mind, he had an explanation to give. He said that Mrs. Jaffe was holding title to the condominium as a bare trustee for BIL, the beneficial owner from the outset of the acquisition of the condominium. Nothing from that time, including anything Zeldin, the lawyer involved in the acquisition, could say was produced to support this position. And there is much which does not support it.

142 Accounting records produced at the trial reveal that from 1980 through 1992 Jaffe treated himself as the beneficial owner of the condominium with advances made by BIL on account of the purchase price being treated as loans to Jaffe. Financial statements of BIL do not record the condominium as being one of its assets. Nor has the mortgage been shown as a liability of BIL. Rather, payments on account of the mortgage for twelve years have been recorded as rent paid by BIL as a tenant of the Jaffes. This fact is revealed in a draft lease which Jaffe had Zeldin prepare at the outset.

143 In their statement of claim filed in the condominium action on the 5th of March 1987, the Jaffes described themselves as "owners and residents" of the condominium.

144 On the 28th day of January 1992, a month before the transfer, Mrs. Jaffe swore an affidavit which was to support an application to have the certificate of pending litigation registered against title to the condominium lifted. In that affidavit she states as follows:

1. I am the owner of a condominium with the municipal address of suite 1905, 110 Bloor Street West, Toronto, Ontario (the "Condominium"). The Condominium is my principal residence.

2. Charles W. Grant, in his capacity as trustee in bankruptcy of Continental Southeast Land Corp. obtained an ex parte Certificate of Pending Litigation on July 5, 1988 in a lawsuit brought against my husband to enforce a default judgment obtained in Florida. This judgment was obtained at a point in time when my husband could not return to Florida as he was testifying in Ontario against his kidnappers, who were convicted.

3. Because of the Certificate of Pending Litigation I have not been able to deal with this property since July, 1988. Since the date the certificate was placed on title to the property the value of the Condominium has fallen drastically. I have been unable to take any steps to get my equity out of the Condominium by selling it because of the actions of Mr. Grant.

4. I am sixty-three years old. I have reached a point in my life where it is not necessary for me to live in such an expensive location. Many of my friends have left the city to find more reasonably priced accommodation in an attempt to conserve their assets. I am unable to do so because of the certificate.

5. Since the certificate was placed on title to the property the Condominium fees and taxes have gone up significantly. In addition, I have been servicing a large mortgage and the property value has dropped significantly.

145 I have no doubt that Jaffe had a hand in drafting the content of that affidavit. Undoubtedly, it served their interests at the time to focus attention on Mrs. Jaffe as the owner of the condominium with the obligation to maintain it. It now becomes important to shift attention to BIL.

146 The Jaffes continued to reside in the condominium until some point during the middle of this trial. Then, and this was not revealed by either Jaffe or Mrs. Jaffe, they moved out after renting the condominium to the Bank of Italy for two years. Jaffe, when confronted with this situation during his appearance in the witness box, did not deny it. Nor did he deny that he did not advise the Bank of Italy that there was a certificate of pending litigation registered on the title to the condominium at the time of granting the lease. Some time was spent at trial dealing with this situation. It was left that Jaffe, Grant and the lawyer for the Bank of Italy, who had appeared at my request, would sort things out pending the outcome of the trial.

147 The evidence indicates that the Jaffes are not without prior experience in the matter of transferring title to a residence in order to defeat anticipated or pending judgments or claims of creditors. Just prior to coming to Canada, the Jaffes resided in New Jersey where Jaffe ran into difficulties concerning his operation of a sewer corporation. He had been held in contempt and found liable to pay penalties because of the corporation's continuing breach of a court order relating to pollution. The evidence indicates that at that time the title to the Jaffes' residence which had been registered in both their names was transferred into the name of Mrs. Jaffe alone. Jaffe at this trial insisted that the only sale of the home in New Jersey was to a couple from Ohio. When confronted with the transfer to Mrs. Jaffe he attempted to explain it by a reference to a "homestead exemption" which I could not follow. As far as I am concerned, the inference is obvious. Jaffe had tried in 1971 to defeat creditors through a transfer of their home into the name of Mrs. Jaffe alone.

148 In addition to having the 1982 and 1992 transfers declared void, Grant seeks a declaration that it was funds which Jaffe caused to be taken from Continental, through the collection of the monies generated by lot sales in St. Johns, that BIL applied to the purchase price of the condominium. Grant also seeks a declaration that on this basis the condominium is held on a constructive trust for Continental or Grant as its trustee in bankruptcy, and that its ownership should now be vested in Continental. To this end, Grant asks that a vesting order be issued.

149 Grant is really asking that the funds used to acquire and thereafter maintain the condominium be "traced" from the money generated by the sales of lots in St. Johns. Given the fact that these facts have never been accounted for by Jaffe or the corporations, there is no direct means of doing so. The question then is whether Grant can satisfy the onus which rests upon him by indirect means.

150 While he refuses to account for what happened to the funds, Jaffe has not denied that funds in an amount greater than that required to acquire and maintain the condominium were collected from St. Johns.

151 Both Jaffe and Mrs. Jaffe referred to large amounts of money being available to both of them in the 1980s by reason of his business activities in the 1950s and 1960s in the Far East and Europe. These activities involved, according to Jaffe, an export business and a sulphuric acid factory. No records, documents or statements were produced in support of this position. Nor was any person called to testify in this respect. Jaffe produced a photograph of six or seven men, one of whom was him, sitting at a table, as proof of what he maintained.

152 Through questions put by Jaffe at the beginning of her testimony, Mrs. Jaffe said that he had retired from business when he was thirty, which I note is 1955. She described Jaffe as "the youngest retiree" and that they then planned to live on the capital he had accumulated to that point. They were then living in New Jersey.

153 Mrs. Jaffe testified that he had shown an early interest in Canada, creating corporations to assist with his investments here. One of these corporations is BIL and the other is ICC. Mrs. Jaffe said they decided to move to Canada in 1970 about the time Jaffe acquired MVR in Nevada. She said he did not work an 8-hour day at that time but there was "no lack of funds". In 1976, she testified, Jaffe was asked to finance "a troubled company" in Florida which she identified as Continental.

154 There is no doubt in my mind that this scenario was fashioned by Jaffe in order to offset Grant's position about the source of the funds used for the purchase of the condominium. No real explanation was given for the move to Canada. Mrs. Jaffe denied in cross-examination that it was to avoid the problems Jaffe was having with the courts in New Jersey over pollution by the sewer company he was then operating. The only reason offered for the move was that the house in New Jersey was too big and a smaller one was needed.

155 If Jaffe had been able to retire at thirty in 1955 no explanation was given as to why in 1970 Jaffe was operating a sewer company in New Jersey with unpaid judgments against it, or a land development business in Nevada which left a judgment in the amount of $20,000 rendered in Ontario in 1975 unpaid. In fact, there was no effort made to give any independent financial evidence to demonstrate what the state of Jaffe's financial affairs was when they moved to Canada.

156 Up to 1976 the so-called family corporations, BIL and ICC, according to the information gained at trial, do not appear to have been enjoying much financial success. It was not until that year that things improved considerably. After that Jaffe seems to have functioned solely upon the revenue he was taking from those companies "as management fees".

157 Jaffe maintained that the funds which he took from BIL or ICC came from "offshore companies" which held the profits derived from the business which he conducted in the 1950s and 1960s. He described a scheme devised to transfer that money to BIL and ICC which involved at least four other corporations; two he referred to as "fiduciaries" and one of them he identified as the Scandinavian Swiss Bank ("SSB"). Of the other two companies, both of which Jaffe said were controlled by his son Harold and himself, he referred to one as Guaranty Investment Trust ("GIT").

158 Very basically speaking, according to my understanding of the scheme, interest-bearing loans were created between any one of the four companies and BIL or ICC. Nothing, however, was ever paid on account of these loans. Rather, the loans were reduced, whether principal or interest, through the issuance of preferred shares of either BIL or ICC as the case might be, which were never redeemed or for which dividends were not paid. On some occasions the interest due on a loan was deemed to have been repaid by Jaffe personally assuming the existing debt. I presumed that the funds advanced from GIT to BIL, for example, came originally from one of "the fiduciaries". When I enquired from Jaffe as to how that was accomplished, he replied that he could not tell me. He said I would have to wait until his accountant, Irwin Siderson ("Siderson"), testified as he would have the answer. Siderson never testified. He had attended at the trial prior to Jaffe testifying in response to a subpoena served upon him by the defendants. His appearance in the witness box was simply to produce various accounts, records and statements relating to Jaffe and the corporations and companies in which he had an interest which were in his possession.

159 Jaffe said there were no statements or reports or accounts from "the fiduciaries" because they supplied none. Insofar as GIT and the other company was concerned Jaffe said it was necessary that Harold consent to the release of any information about them and Jaffe could not contact him. When Mrs. Jaffe was asked about GIT in cross-examination she said she had never heard of it. I am not at all certain as to the actual existence of "the fiduciaries" or the other two companies and in particular GIT. And I have similar concern for the actual existence of BIL and ICC. I wonder if all of them are not simply names used for accounting purposes. Not one scrap of paper, apart from accounting records, was produced to demonstrate the existence of those companies or any bank accounts and the source of funds deposited in them.

160 Stark, in the preparation of his reports and his testimony, only had the benefit of a review of information obtained from Siderson either through production or his testimony on his examination for discovery. This included financial statements of BIL for the years 1969 to 1972 and 1975 to 1992, and for ICC and its predecessor (there was a change of name in 1981) for the years 1968 to 1990, the working papers of several accountants, including Siderson, copies of personal income tax returns for Jaffe and Mrs. Jaffe, a report prepared by Siderson on ACDC in 1991, financial statements of other corporations and an affidavit of the defendant Norris sworn the 5th of December 1983. This affidavit had been prepared by Norris in his capacity as an investigator for the office of the State Attorney, Seventh Judicial District of Florida.

161 Stark testified that with respect to ICC, for the year 1968, the first year for which records were made available, up to 1975, annual revenues did not exceed $3,000 and were nil in six of those years. Assets totalled $2,000 at the end of each of those years. In 1976 a cash advance of $125,000 U.S. was recorded as payable to "Jaffe for others". A 1982 accounting entry in Siderson's working papers reclassified this loan as one from SSB. No interest was shown to have been paid on this loan but, in that year, interest was reduced by $100,000 preference shares issued to SSB.

162 In 1986, $1,036,400 Canadian was advanced to ICC from SSB. It was recorded as a subscription of shares which were not issued until 1988. No dividends are shown as having been issued on these shares nor have any of them been redeemed.

163 In connection with the loan from SSB to ICC, Siderson's working papers refer to an amount of $745,625.55 which was deposited with McLeod, Young and Weir, stockbrokers, in the name of Mrs. Jaffe in October 1985. A letter dated the 1st of August 1986 and signed by Mrs. Jaffe was included in Siderson's material. In that letter, Mrs. Jaffe claims to have held that money in trust for ICC although since its deposit with the broker it was only held in her name. No documentation was found in Siderson's material to evidence the source of those funds as being SSB. Siderson's material does indicate that from the 1st of July 1982 to the 30th of June 1990, ICC expended management fees to Jaffe in excess of $610,000.

164 According to Stark, Siderson's working papers for 1987 show that the "loan payable to Ruth Jaffe" was changed to "subscription for shares - Scandinavian Swiss". I note here that that amount of $745,625.55 was identified by Mrs. Jaffe in her cross-examination as being part of the $1.8 million which she said was withdrawn from the bank account in London. Jaffe did not put any questions to Mrs. Jaffe about this when she testified by way of reply following Stark's testimony. Mrs. Jaffe had said in her cross-examination that she had given records relating to the bank account in London to Siderson or his predecessor.

165 With respect to BIL, Stark said that in the years 1973, 1975, 1981 and 1988, $1 million interest was reduced by the issuance of preferred shares to GIT and a further $250,000 in 1987 was taken off the interest account by Jaffe personally assuming the debt to GIT. The records produced by Siderson show that in excess of $850,000 was paid to Jaffe by BIL and recorded as "management fees". Other expenses of BIL include mortgage payments for the condominium.

166 The material obtained from Siderson also discloses, according to Stark, that until 1977 the principal assets of BIL were investments and mortgages receivable. After that the business of that company changed to investing in offshore term deposits. On the 28th of February 1977 the records indicate that $550,000 U.S. was advanced to BIL and recorded as an increase in the loan payable to GIT.

167 From all that which he reviewed, he concluded that in excess of $2,148,933 was generated by the collection of instalment payments due from the sale of lots in St. Johns from 1976 to the 14th of May 1981, when ACDC stopped receiving them. That is the same figure which is contained in the affidavit of Norris, and Jaffe, when it was raised during his testimony, did not appear to disagree with it. Stark found deposit and collection slips from a bank account of Continental in Miami which show additional receipts of $164,657 U.S. in addition to that larger amount. No other such banking documents were made available to Stark. As I have noted above, through default, Jaffe in effect has admitted that in excess of $3 million had in fact been collected.

168 Stark testified that the cancelled cheques recording disbursements from the money collected from instalment payments, which he was given to review, totalled $380,000. He said that those records lacked a detailed explanation of the various underlying transactions. He was, however, able to conclude that 80% by value of those cancelled cheques was made payable to Jaffe family members.

169 Jaffe maintained that although money was collected, and he acknowledged either that it was that found by Norris, or $10,000 to $12,000 per month which he offered as a guess, little was left for the overseas accounts because of the amount of expenses which were incurred. He explained that Kaufman had received $30,000 a month from 270 lots, as opposed to what he estimated was received from 500 lots, on the basis that Kaufman was given preferred accounts.

170 To support his position, Jaffe called on Norman Solman ("Solman"), a retired accountant from Toronto. He was to advise me of the total of all expenses incurred in the operation of St. Johns. His testimony, however, was restricted to providing an analysis of a statement prepared by someone else in 1981 which he had been given by Jaffe. Solman did no more than attempt to do what I was able to do on my own, although perhaps he might have been somewhat quicker in reaching his conclusion.

171 The defendants had received copies of the statements to which Solman referred at some earlier time. Those copies, however, did not show the name of the person who prepared them. In the process of making copies that name had been blanked out. The statements which Solman produced, and which he used for the purposes of his analysis, had the name included. There is no doubt in my mind that Jaffe did not want the defendants to know the name of the person who prepared those statements before Solman testified.

172 The reason, I think, is obvious. That person, according to the information on the sheets used by Solman, resided in Toronto at least at the time he prepared the statements. No explanation was provided by Jaffe as to why he was not called to testify. That failure, along with the failure of Jaffe to call Siderson, leads me to conclude that neither of them would have supported the position of Jaffe.

173 I recognize that the information made available to Stark, and therefore available to Grant, as to the source of funds used to purchase the condominium is not as full and complete as it might otherwise be because of the conscious efforts of Jaffe to not disclose. What Grant has available to him, however, is more than what Jaffe was able to produce as credible evidence. To my mind, it has to be more than a coincidence that there was so much money available to the Jaffes through BIL or ICC, or accounts elsewhere, depending on what version is considered, after 1976. No explanation, let alone a credible explanation, was given by or on behalf of either of the Jaffes for this fact.

174 No documentation was produced to demonstrate that all or any of the money which was available to the Jaffes came from "offshore corporations" which had the benefit of revenue from activities in the 1950s and 1960s. I find that there was none and that all the money about which Stark testified came from St. Johns. I accept all the evidence which was given on behalf of Grant and in particular Stark, who gave his evidence in a very straightforward, objective manner, completely consistent with the professional capacity in which he appeared.

175 A number of persons who had some interest in the events which have transpired since 1976 have pointed out that a simple accounting would have rendered most, if not all, of them unnecessary. I assume, under all of the circumstances as are now known to me, that there must have been a substantial amount of money to have made it necessary or worthwhile for Jaffe to have gone to the length which he has in refusing to disclose the true accounts of his involvement with St. Johns.

176 The fact that he gave up an opportunity to settle all of the outstanding issues for $375,000 in 1980, or an earlier opportunity to resolve the Barbara Raymond action for about a tenth of that amount, has no bearing on my decision. To my mind, Jaffe's refusal to settle on either of those occasions simply provides another aspect of his personality that is not relevant, in my opinion, to the issues in this action.

177 I am satisfied that Grant has met the onus which rests upon him on this issue and, therefore, he is entitled to a declaration that the condominium has been held on a constructive trust in his favour and that, accordingly, a vesting order should issue in his favour.

178 Some concern has been expressed by counsel for Grant that in the event I saw fit to grant a vesting order, I also determine what amount should be credited against the judgment assuming that the judgment was accepted for enforcement in this province. If I do not set a value for the condominium for this purpose, counsel for Grant believes that there will be more protracted proceedings. With the history of this action and as well the amount of litigation which has been outstanding in this country and the U.S.A., I do not blame counsel for this concern. My cursory examination of all that has occurred suggests that since 1976 Jaffe has been involved in at least four dozen actions or proceedings or attendances in courts in both countries. He acknowledged to me that he has only succeeded in two, the ex parte order in the bankruptcy court and the appeal of his conviction on the land sales charges.

179 My immediate reaction upon the completion of the trial was that nine years, of which ten weeks were spent at trial, has been consumed indulging Jaffe and his use of the court's processes to further an ulterior motive. Jaffe has been able to mask his real intention by generating an air of legitimacy to this action by his kidnapping and his discharge of the land sales charges. Unfortunately, without going through this whole trial, the fact that the die had been cast long before either of those two events occurred could not be known in my opinion. There is absolutely no justification whatsoever for this action, let alone this trial, having taken place.

180 I am sure that the expense to which the defendants have been exposed by the conduct of the Jaffes borders on the astronomical. And this must be particularly so with respect to the trial. Because the Jaffes refused to disclose and produce either in a timely fashion or at all, the length of the time of the trial has been extended to twice what it should have been, in my view. That Jaffe mentioned during the trial that "I have produced a great deal" was not a meaningful response to my criticism of his conduct in this respect.

181 I dismiss the action of Jaffe and Mrs. Jaffe. They simply have not proven any of the matters which either of them allege in their statement of claim. Grant's counterclaim is allowed and specifically as follows: The judgment dated the 2nd of October 1984 under which Grant was adjudged and entitled to recover from Jaffe and others $3 million, together with interest, by the U.S. District Court, Middle District of Florida, Jacksonville Division, Case No. 81427 Civil J.-16, is to be enforced in this province together in accordance with the provisions of s.121 of the Courts of Justice Act; the transfers made between Jaffe and Mrs. Jaffe in 1982 and Mrs. Jaffe and BIL in 1992 are set aside; the defendant Grant is declared the owner of the condominium and a vesting order is to issue to this effect.

182 All of the defendants who appeared at trial are entitled to their costs to be assessed on a solicitor and client basis. Grant is also entitled to his costs of the counterclaim on a solicitor and client basis. With respect to the assessment of the costs of Schmidt and Grant on both the main action and the counterclaim, an allowance is to be included for the attendance at trial by Schmidt. His assistance, beyond being a party, was required because of the situation created by the failure of Jaffe and Mrs. Jaffe to produce as they should have done.

183 I will determine the value of the condominium and assess the costs of the defendants, both in the main action and the counterclaim, on Monday, June 6, 1994 at 9.30 a.m. in my chambers at Osgoode Hall. With respect to my determination of the value of the condominium, the value date will be that of my judgment as shown on the endorsement on the record herein. I expect that each side, if so advised, will put forward the best figure at which each side values the condominium as of that date. It is my intention to accept one or other of those figures as the valuation. The opinion and supporting material of the Jaffes and Grant with respect to the value of the condominium shall be filed with my secretary no later than 2.00 p.m., Friday, May 6, 1994. Material filed after that date and time shall not be considered.

184 The proposal of the respective defendants as to the assessment of their costs on a solicitor and client basis, including the proposal of Grant with respect to his costs on the counterclaim on a solicitor and client basis, shall be filed in writing with my secretary on or before Friday, April 22, 1994, and delivered on the same day to the plaintiffs by leaving a copy at the office of Anil K. Kapoor, 130 Adelaide Street West, Suite 2714, Toronto, Ontario, M5H 3P5, by 4.00 p.m. on that date. Mr. Kapoor wrote to me on January 14, 1994 to advise that he had been retained by the Jaffes to pick up my decision when it became available.

185 The submissions of the plaintiffs with respect to the assessment of the defendants' costs on a solicitor and client basis and the defendant Grant's costs of the counterclaim on a solicitor and client basis shall be made in writing and filed with my secretary no later than 2.00 p.m., on Friday, May 6, 1994, and on the same date that material shall be served on the solicitors on record for the defendants appearing at trial on or before 4.00 p.m. Material filed or served after that date and those times will not be considered.

186 Any response of the defendants to the position taken by the plaintiffs with respect to the assessment of costs shall be filed in writing with my secretary by 2.00 p.m., on Friday, May 13, 1994, and on the same date a copy shall be delivered to Mr. Anil K. Kapoor, at the address shown above, by 4.00 p.m. Material filed or served after that date and those times will not be considered.

187 I intend to settle the form of my judgment at 9.00 a.m. on Tuesday, March 29, 1994, at my chambers in Osgoode Hall.