Significant Successes

Case Name:

Bousfield v. Marshall

Between
Robert Bousfield, plaintiff, and
Lawrence Marshall and Gerry Marshall, defendants

[2002] O.J. No. 737
Court File No. 99-CV-18014

Ontario Superior Court of Justice A. Campbell J.

Heard: July 25-27, 2001; written submissions, August 8, 21
and 27, 2001.
Judgment: February 27, 2002.
(96 paras.)

Contracts — Formation of contract — Oral contracts — Performance or breach — Breach — Bad faith.

Action by Bousfield against Lawrence and Gerry Marshall for half of the proceeds of a lottery draw. Bousfield and Lawrence were good friends and both were serious lottery players. In 1995, they orally agreed to buy lottery tickets, jointly or separately, and split the winnings equally, no matter who bought the tickets. They each bought lottery tickets regularly twice a week. Their agreement was well known in their community. Lawrence held a winning ticket for a $100,000 prize. The ticket was a Lotto 649 quick pick. Lawrence and Gerry claimed the prize. The answers in the winners' questionnaire matched Lawrence's pattern of winnings. Both parties initialled the winner questionnaire. After winning the prize, Lawrence and Gerry concocted a false story that Lawrence won $2,000 from the draw. They told Bousfield and the members of the community that there were two winning tickets, the $2,000 ticket bought by Lawrence, and the $100,000 ticket bought by Gerry. They gave Bousfield a bank draft for $1,000 and represented it as half of the proceeds of Lawrence's lottery prize. It was only after the action was started that Lawrence admitted that the two-ticket prize story was a lie intended to deceive Bousfield and conceded that there was only one winning ticket, bought by Lawrence, on behalf of his wife, for a $100,000 prize. Lawrence submitted that he had purchased the ticket for his wife upon her request and that the fact that it was a quick pick ticket supported his position since he usually filled out a sheet or a card.

HELD: Action allowed. Bousfield was entitled to half of the winnings. Bousfield demonstrated that Lawrence bought the winning ticket during the course of their 1995 agreement. As a result, he had a prima facie right to half of the winnings. The Marshalls did not demonstrate that Lawrence purchased the ticket as Gerry's agent. Rather, the balance of probabilities supported a conclusion that Lawrence bought the ticket himself in the course of his regular pattern of play. The evidence demonstrated that Lawrence bought the ticket on the day in question, that it was outside the invariable course of events for Lawrence not to buy a ticket on the night in question and that he and Gerry made up an elaborate series of lies in order to deceive Bousfield.

Counsel:
Soliman A. Mangal and H.A. Fancy, for the plaintiff.
Ben Mignardi, for the defendants.

A. CAMPBELL J.:-

The Case

Robert Bousfield sues Lawrence and Gerry Marshall for $52,500, half the proceeds of a $105,000 [See Note 1 below] lottery prize in the August 21, 1999 Lotto 649 draw.
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Note 1: The precise amount was $105,569.90 but both sides treat it as a $105,000.00 prize.
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The Story

Robert Bousfield and Lawrence Marshall were great friends. Robert was Lawrence's best man when he married Gerry in 1999. Lawrence and Gerry chose Robert as the godfather of their baby daughter, but this litigation intervened before the ceremony could be performed.

Both men were serious lottery players. They agreed orally in 1995 to buy lottery tickets, jointly or separately, and split the winnings equally, no matter who bought the ticket. They each bought lottery tickets regularly twice a week.

Their agreement was well known in their closely-knit community around Keele and Sheppard in the north west part of Toronto. Their course of play was the subject of banter at the Kingscourt pub where they gathered a few evenings a week.

On Tuesday August 24, 1999, Lawrence Marshall at the pub gave Robert a bank draft for $1,055.60, representing it as half of the proceeds of their winning Lotto 649 prize of $2,111.20 for Saturday August 21. The Marshalls said there was another winning ticket in the same draw, held by Gerry alone, for a prize of $105,000.

The two-ticket two-prize story was a lie intended to deceive Robert. It was only after Robert started this action that the Marshalls admitted it was a lie. They finally conceded that there was only one winning ticket, bought by Lawrence, for a prize of $105,000.

The Marshalls in court put forward a new story; that Lawrence bought the ticket on behalf of Gerry who agreed to let him co-sign it and share in the proceeds as a gift. The Marshalls now say they intended the payment to Robert as an act of charity and lied about its provenance and amount only because they thought that Robert, a "chauvinistic ... and a very proud Irishman" would never accept a gift from a woman.

Like most lottery cases, [See Note 2 below] this one turns on credibility. If the Marshalls' evidence is accepted, they owe Bousfield nothing. If their evidence is rejected and Bousfield shows on a balance of probabilities that Lawrence Marshall bought the winning ticket for himself, the Marshalls owe Bousfield $52,500.

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Note 2: Including Vaccaro v. Cataldi (Borins J., January 15, 1993); Skarec v. Ali, [1985] O.J. No. 547 (Holland J.); Gryglewicz v. Onyszko, [1999] O.J. No. 2340 (Belleghem J.); Helmy v. Helmy, [2000] O.J. No. 4456 (Seppi J.)
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The Marshalls, because their story is implausible and because they admittedly lied about the ticket and the winnings in order to deceive Bousfield, start out with a disadvantage in respect of credibility.

The Agreement

It is undisputed that Lawrence and Robert agreed orally in about 1995 to buy lottery tickets, jointly or separately, and to divide the winnings equally, no matter who happened to buy the ticket.

Lawrence now disputes whether the agreement applied to all lottery tickets or only to Lotto 649 tickets. He says the agreement was void for uncertainty "in that Bousfield believed the agreement pertained only to Lotto 649 tickets and that Lawrence believed that the agreement included any and all lotteries including but not limited to Lottario, Super 7, Ontario 49, and so forth."

Although there is some evidence to support the defence argument that Robert thought the agreement applied only to Lotto 649 tickets, the argument is moot because there was a meeting of the minds and a mutually binding oral agreement in respect of the subject of this dispute, a Lotto 649 ticket.
The Alleged Breach

The defendant alleges that Bousfield breached the agreement so as to make it void.

During the course of the agreement Bousfield won $10 on two or three separate occasions and spent the winnings on tickets for the next draw. Although Lawrence says this repudiated the agreement, it did not, because the 20 or 30 dollars stayed in the joint pool to the benefit of both Lawrence and Robert.

There is a further defence that Robert won $20 in 1998 and spent it on a liquid lunch without sharing the winnings with Marshall, thereby breaching the original agreement and terminating it without reaffirmation or renewal.

Robert testified that he did not recall the alleged incident and says that in any event the agreement was to share in any substantial winnings.

It is unnecessary to make findings of fact on these minutiae. I am satisfied on a balance of probabilities that Robert did not repudiate or void the agreement. Even if he committed some breach that made the agreement voidable at the instance of Lawrence, Lawrence did not treat it as a breach. He continued to perform under the agreement, thus waiving any breach by Robert.

The agreement continued in full force through the purchase of the ticket and the $105,000 win.
The Winning Ticket

The winning ticket was a Lotto 649 "quick-pick" bought by Lawrence for $3 at Bob's Variety on Friday August 20, 1999 at 6:03 p.m. The ticket won a prize of $105,569.90 treated by the parties as a win of $105,000.

Lotto 649

Lotto 649 is played every Wednesday and Saturday evening. The object of the lottery is to match 6 out of 49 numbers, hence "649." Each draw announces 6 winning numbers and a bonus number. The first prize is won when the ticket matches all 6 numbers. The second prize is won when 5 regular numbers are matched along with the bonus number. A ticket that does not win a cash prize may entitle the holder to a free lottery ticket to play for the next draw.

There are two ways to play Lotto 649. The first is by "quick-pick". The player tells the store attendant to let the computer pick the numbers.

The second is by sheets or cards. The player selects his or her own numbers by filling out a sheet or card. A sheet contains 10 game boards. The player fills in 6 numbers on each board and plays as many boards as he or she wishes, to a maximum of 10. The sheet can be used for the lotteries Lotto 649, Ontario 49, Double Play (Lotto 649 and Ontario 49) and Encore.

Lawrence's Alleged Pattern of Play

The winning ticket bought by Lawrence was a quick-pick. Lawrence says he played off sheets and used quick-pick rarely if at all. The defence says this evidence supports the position that the winning quick-pick ticket was Gerry's and not Lawrence's. This evidence, as noted below, is contradicted.

Lawrence testified that he played Lotto 649 twice a week. He has been a serious lottery player since at least the early 1980s. In the mid 70s he and a group won $10,000 on an Olympic lottery and about 6 or 7 years ago he and the Kingscourt Tavern owner and another man won $6,000 on the Lotto 649. He won small prizes about 50 to 100 times, most of them free tickets. He generally spent between 10 to 15 dollars and up to 18 dollars a week on lottery tickets of various kinds.

Lawrence testified that he played off Lotto 649 sheets 80% to 85% of the time and used quick-pick 15% of the time. He described in detail his system for picking sheet numbers corresponding to the numbers worn by past Montreal Canadien players. He produced sheets demonstrating his use of this system.

Vijay Thigarajah owns the Bargain Way variety store near Jane and Lawrence. He acquired a lottery terminal sometime between June and August of 1999. He testified that Lawrence bought lottery tickets sometimes every week and sometimes once a month, usually on the weekends. He used sheets. He "maybe" played quick-pick. In cross-examination Thigarajah could not recall how often Lawrence played quick-pick. In re-examination Thigarajah said that Lawrence "mainly" played with the sheets, 90 or 95% of the time.

Thigarajah's evidence was not helpful because Lawrence before August 21, 1999 seldom dealt with him. Although Thigarajah favoured Lawrence somewhat in chief and strongly in re-examination his evidence taken as a whole, does not determine the extent to which Lawrence, even if he did patronize Thigarajah more than a few times before August 21, played quick-pick.

The evidence is contradictory on Lawrence's proportion of quick pick play as opposed to sheet number play.

Robert testified that he was with Lawrence "the majority of the time" that Lawrence bought tickets and that he bought quick-pick tickets most of the time, although Robert saw him play off sheets "maybe twice."

David Neri, a mutual friend familiar with the agreement, said he was with Lawrence about 10 to 15 times in 1999 when he bought Lotto 649 tickets and that he typically played quick-pick. He had seen Lawrence play quick-pick in variety stores and never saw him with a sheet of numbers.

John Hilton, a mutual friend, said that he had seen Lawrence play the lottery and as far as Hilton knew Lawrence played only quick-pick.

Richard Bagnall, another mutual friend, said that Lawrence "basically all the time" played quick-pick, but he had seen Lawrence a couple of times take random numbers from people for the purpose of sheet play.

There is not enough independent evidence on this point to make a solid finding of fact, one way or the other, on Lawrence's regular course of play as between quick-pick and sheets.

It was open to Lawrence, if he thought this issue important, to call independent evidence as to his preference for sheet numbers over quick-pick. He chose not to. This choice does not advance his case.

The body of evidence about Lawrence Marshall's course of play, as between quick-pick and sheets, taken as a whole does not support his position that he bought the winning quick-pick ticket for himself because he does not buy quick-pick tickets for himself.

Gerry's Alleged Purchase Pattern

Gerry testified that she had bought lottery tickets for many years, in many different stores, for many different lotteries including Lotto 649, Super 7, and Lottario. She said she usually played quick-pick because it is faster and requires no paperwork and her eyesight is really bad.

The defence says this evidence supports the position that the winning quick-pick Lotto 649 ticket was Gerry's and not Lawrence's.

The plaintiff objected to the evidence of Gerry's playing pattern on the ground that the evidence was largely undisclosed to the plaintiff before trial.

Gerry's parents testified that she often talked about her lottery tickets although they never saw her buy a ticket. Her brother Les Palmer Jr. said he had seen her buy tickets hundreds of times at different variety stores or lotteries including Lotto 649, Super 7, and Lottario. He testified, implausibly, that although he knew Robert from the Kingscourt, he had never heard Robert and Lawrence discuss lottery tickets.

David Neri said that he never saw Gerry play the lotteries, he only saw her play the peel-open Nevada tickets. He saw her in variety stores quite a few times but never saw her buy lottery tickets.

Richard Bagnall said that he never knew Gerry to buy Lotto 649 or anything like that but she would buy scratch and wins and Nevadas.

Kim McGuire, another mutual friend, testified that Gerry about ten days before the win told her that she bought Nevadas and Scratch and Win but not Lotto 649 because that was between Robert and Lawrence. Gerry testified that she did not recall the conversation. The timing of this conversation, and the fact that no one else heard it, suggests that it should be subjected to the same scrutiny as the defence evidence on this point.

John Hilton testified that he never saw Gerry play Lotto 649.

It is curious, if Gerry were such an enthusiastic Lotto 649 player, that no one in the close knit community, and no one in the Kingscourt lottery discussions, ever heard a word about her parallel Lotto 649 interest.

It was open to Gerry, if she thought this issue important, to call independent evidence to support her testimony about her pattern of play. She chose not to. This choice does not advance her case.

On balance the evidence of Gerry and her family about her playing pattern is weak, to the extent that nothing in that evidence helps the defendants.

The Purchase: August 20

Robert has no direct evidence on this point. The direct evidence of the purchase comes only from Gerry and Lawrence.

The Marshalls say that on Friday, August 20, Gerry asked Lawrence to go the store. She gave him $50 in cash and asked him to pick up a Super 7 ticket, a Lottario 649 quick-pick ticket and a half a strip of bus tickets and he could buy himself a case of beer. She usually bought her lottery tickets herself but on this rare occasion she asked Lawrence to do it because the weather was bad and she was looking after the baby. Lawrence says that he walked to Bob's Variety, bought the TTC and Lottery tickets for Gerry, then went to Kingscourt Tavern where he had a beer for $2.50 or $3 then took a bus to the beer store and returned home with change of about $18 to $20 left from the original $50. He gave the lottery and TTC tickets to Gerry who put them in her purse. Lawrence says that he did not buy a ticket on August 20 because he had no money of his own and did not have a bank card with him.

This evidence is implausible. The ticket cost three dollars. Lawrence's paycheck of $300 to $400 had just been deposited in Gerry's account. He started out that evening with $50.00 in his pocket. After paying for the lottery ticket and the TTC tickets and the beer at Kingscourt and the half case of beer he still had $18 to $20 in his pocket when he got home. There was no lack of money and no plausible reason to depart from his invariable lottery ticket purchase pattern.

It is implausible that Lawrence would depart so uniquely from his invariable pattern on the one occasion in hundreds or thousands that he finally won the big prize.

The Winning: August 22

The Marshalls say that on Sunday August 22 they learned from television that Gerry's Lotto 649 ticket for Saturday's draw had their 5 regular numbers and the bonus number. She called her family to say she had the matching numbers, but did not then know the amount of the prize.

They walked to Bob's Variety with Gerry's family where the win, but not the amount was confirmed. The store attendant congratulated Gerry.

Both sides agree that nothing turns on the absence from the trial of Yung Sun Lee, the store attendant who sold the winning ticket. Neither party could locate him. There was a suggestion that he had gone to Korea.

The Marshalls say that although it was Gerry's ticket she and Lawrence both signed it on the back. Although it was Gerry's ticket she wanted to give Lawrence half of it as a token of her love and affection.

The Prize Claimed: August 23

Gerry and Lawrence claimed the winnings at the lottery office on Monday August 23. They were photographed holding the cheque and they completed a "Major Prize Winner Questionnaire".

The Questionnaire

The winner questionnaire completed and initialled by Gerry and Lawrence showed the winner/claimant of the prize as Lawrence & Gerri Marshall. It showed that the winner had previously won $6,140 five years ago and the winner's highest ever winnings were $10,000 in the Olympic Lottery. These answers match Lawrence's pattern of winnings. The winner's answers appear to be Lawrence's answers.

Phantom Ticket: Phony Prize

The Marshalls concocted a false story that Lawrence won $2,111.20 from the August 21 draw. They falsely told Bousfield and the rest of the crowd that there were two winning tickets, the $2,111.20 ticket bought by Lawrence and the $105,000 ticket bought by Gerry on her own. They gave Lawrence a bank draft for $1,055.50, falsely representing it to be half the proceeds of the smaller win.

As noted about above, they explained their lie by saying that Gerry wanted to give Robert a gift and they had to disguise it as a win because Robert, a proud misogynistic Irishman, would refuse to take a gift from a woman.

The Marshalls maintained the phantom ticket lie for some time. On August 28 they went to dinner at the home of Richard Bagnall, noted above as a mutual friend of Bousfield and the Marshalls. Bagnall told them they didn't have a problem as long as they showed him the other winning ticket, and they said they had left it at home.

Other than $300 in cash to Gerry's mother, there were no gifts to any of the Marshalls' family or friends.

Plausibility of the Disguised Gift Assertion

The defendants' explanation that they lied to disguise a gift is implausible. It is implausible that they would give Lawrence over a thousand dollars if he had nothing at all to do with the winnings. It is implausible that they would give him a substantial gift when they gave nothing to their family or friends except $300 in cash to Gerry's mother. It is implausible they would make up such an elaborate tissue of falsehood to disguise a bona fide gift. The "proud misogynist" notion was rejected by mutual friends of Bousfield and the Marshalls. The supposed reason for the lie, the alleged pride and misogyny of Robert is unsupported by the evidence.

The Impact of the Lie

Although the lie was not clever the Marshalls maintained its truth until Robert started this action.

Gerry admitted in cross-examination that the lie was significant. Lawrence denied that the lie was significant. He said that the lie was not significant at all because he was not lying to cheat Robert but only lying to give him something. [See Note 3 below] ----------------------------------------------------------------------------------------------------------------------------------------- Note 3: Lawrence Marshall testified in chief that he could easily have hidden the $105,000 win from Robert Bousfield: "Sure I could have; ... would not have signed the back of the ticket, would tell my wife keep your frigging mouth shut, put the money in my daughter's account, we could hide the money easily ..." -----------------------------------------------------------------------------------------------------------------------------------------

The point of the lie is threefold.

First, the dishonesty of the Marshalls in making up the deliberate lie and carrying out the elaborate deception detracts from their credibility.

Second, their innocent explanation for the lie is implausible and unsupported by the evidence. The lie is more consistent with an attempt to deflect Robert's natural suspicion that the winning ticket was Lawrence's and not Gerry's. The fact the Lawrences felt driven to lie underlines the implausibility of their story.

Third, in the absence of any plausible innocent explanation, the lie reflects consciousness of guilt on the part of the Marshalls.

The Community Mis-Informed

The agreement between Robert and Lawrence was a matter of common knowledge in the community and a source of friendly interest and banter in the Kingscourt Tavern. Kim McGuire testified that Robert and Lawrence were in dreamland; they would both talk about the big winning to come and what each would do with his half. She said that Gerry and she would get bored listening to them.

David Neri ran into Lawrence and Gerry at the plaza on Monday August 23 when they were going to get passport photographs for their trip. Gerry said they had won on two tickets and they were going to surprise Bob with his winnings later. When Gerry told David Neri "we won the lottery" he assumed that Lawrence won it. Lawrence said he won on two tickets, he said we won. Familiar with the agreement, Neri asked if Bob knew and the Marshalls said they were going to surprise him. Lawrence came out of the store with a photocopy of the winning ticket. He said they won $105,000 on one ticket and 2,000 on another. Neri assumed that Bob would get about $50,000 as half of the big ticket and would also get half of the smaller prize.

That Neri assumed that Lawrence won the big prize is no evidence the assumption is true. Coming however from someone familiar with the Marshalls and with Lawrence's pattern of play, the assumption underlines implausibility of the story the defendants later told in court.

The story spread in the Kingscourt pub community that Lawrence had won the lottery. The natural assumption developed that Robert was entitled to half the prize.

Kingscourt Tavern, August 24

John Hilton testified that Lawrence told him on the evening of August 24 that he would not split Gerry's ticket winnings with Robert but there was a second winning ticket and Robert was getting half of it.

Lawrence approached Robert in the Kingscourt pub on the evening of Tuesday August 24 and gave him a bank draft for $1,055.60 saying it was a winning prize.

The bank draft was in an envelope addressed in Gerry's writing to "Aunty Rob", a term of endearment the Marshalls used for Bousfield. Had the Marshall's baby girl been a boy they would have named him Robert but since the baby was a girl they called Bousfield "Aunty Rob."

Robert opened the envelope. He was suspicious. Although it may be that Lawrence did not directly tell Robert the two ticket story, it had spread like wildfire through the community and there was no need for Lawrence to go into detail. Robert knew that the Lawrences were putting out the two-ticket story. Robert knew it was very highly against the odds for one couple to win two Lotto 649 prizes in the same draw. He told Lawrence he did not believe him. He told Lawrence that if he wanted to claim the other ticket was his wife's he should prove there was a second ticket, but in any event Robert was willing to accept a third of the big win, instead of half, in order to preserve their friendship.

Credibility: Witnesses

There is little in the demeanour of any witness that helps on credibility.

The mutual friends called by Bousfield, David Neri, Richard Bagnall, Kim McGuire and John Hilton were offended by the Marshalls' deceitful phantom ticket ruse and they may have felt that the Marshalls cheated Bousfield. Although some of them, particularly Bagnall, were arguably a little partisan in favour of Bousfield, nothing in their demeanour or the substance of their evidence detracted from their credibility.

Nothing in the demeanour of Bousfield and the Marshalls affected their credibility one way or the other.

There were unexplained inconsistencies between the evidence of Gerry at discovery and trial in respect of the genesis of the two ticket lie.

The evidence of Vijay Thigarajah was vague and internally contradictory. It seems doubtful that he had a long enough opportunity to observe Lawrence's pattern of play before August 20.

Bousfield's credibility is not seriously in issue, despite his interest in the outcome of the case because the substance of the agreement was well known in the community and is admitted by the defendants. He had no knowledge of the purchase and his evidence on crucial matters was not in issue.

The evidence of Gerry and her family about her playing pattern is contradicted by independent evidence.

The Marshalls' credibility, as noted above, is badly impaired by their lie about the phantom ticket and the phony prize.

Failure to Call Witnesses

An adverse inference may be drawn against a party who fails to produce an important piece of available evidence. [See Note 4 below] Lawrence's defence includes his elaborately detailed evidence that he almost always played off sheets and hardly ever bought a quick-pick ticket of the kind that won the prize on August 21. Robert Bousfield and the other witnesses on this point testified to the very opposite. Although there is an explanation for the absence of Yung Sun Lee who sold the winning ticket, there is no explanation for Lawrence's failure to call any of the regular vendors from whom he bought two Lotto 649 tickets every week. ------------------------------------------ Note 4: Levatte v. Darton, [1998] O.J. No. 110 (Morin J.) at para 45-50. This does not apply to unavailable witnesses like Yung Sun Lee where there is an explanation for their absence. ------------------------------------------

The same applies to the lack of independent witnesses to support Gerry's alleged playing pattern.

Although the case does not turn on this aspect of the defence, the failure to call any such witness weakens this aspect of the defence.

Analysis

Having rejected the defence position that the contract terminated before August 20 by reason of breach and repudiation by Robert, the case turns on a straight question of credibility; did Lawrence take the ticket out of the agreement by buying it on behalf of Gerry?

Credibility in this case does not depend on the demeanour of the witnesses, but on the harmony or disharmony of the evidence on each side with the preponderance of probabilities disclosed by all the evidence. Another way to put it is to test the plausibility of each side against the reasonable probabilities disclosed by all the evidence. [See Note 5 below] -------------------------------------------------------------------------------------------------------------------------
Note 5: R. v. Pressley (1948), 94 C.C.C. 29 per O'Halloran J.A. at p. 34:
The Judge is not given a divine insight into the hearts and minds of the witnesses appearing before him. Justice does not descend automatically upon the best actor in the witness-box. The most satisfactory judicial test of truth lies in its harmony or lack of harmony with the preponderance of probabilities disclosed by the facts and circumstances in the conditions of the particular case. -------------------------------------------------------------------------------------------------------------------------

The onus of proof is on the plaintiff, Robert. He proved that Lawrence bought the winning ticket during the course of an agreement that gave Robert half the winnings on any ticket bought by Lawrence. This gives Robert a prima facie right to half the winnings and shifts to the Marshalls an evidentiary burden of persuasion to show that Lawrence bought the ticket not on his own behalf but solely as the agent for Gerry.

For the reasons given above I conclude that nothing in the "quick-pick versus sheets" evidence about Lawrence's purchase pattern assists either side and nothing in Gerry's purported purchase pattern assists the defence.

Having regard to these facts:

Lawrence bought the winning Lotto 649 ticket on Friday August 20.

Lawrence invariably bought Lotto 649 tickets for the Wednesday and Saturday draws for many years.

It was in the invariable course of events for Lawrence to buy a Lotto 649 ticket on Friday August 20.

It was outside the invariable course of events for Lawrence not to buy a Lotto 649 ticket on Friday August 20.

Lawrence had money in his pocket on Friday August 20 and there was no plausible reason for him to depart from his invariable practice of buying a Lotto 649 ticket that Friday before the draw.

Gerry had no pattern of buying Lotto 649 tickets and it would be most unusual for her to ask Lawrence to buy her a ticket.

Lawrence and Gerry made up an elaborate series of lies in order to deceive Robert, a deception inconsistent with any plausible alternative other than an attempt to conceal the truth that Lawrence bought the winning ticket which entitled Robert to half the proceeds.

the preponderance of probabilities is that Robert bought the winning ticket himself in the course of his regular pattern of play.

With money in his pocket Friday night and the draw coming up next day it is implausible that Lawrence on the one occasion out of hundreds or thousands that he won the big prize would not only depart from his invariable habit of buying a Lotto 649 ticket for himself but would also, in another startling departure from routine, buy a lottery ticket on behalf of his wife.

The coincidence is simply too great to be true, especially when coupled with the elaborate lie concocted by the Marshalls to conceal the true facts.

I therefore reject the defence evidence and find as a fact that Lawrence bought the winning ticket not for Gerry but for himself as part of the continuing agreement that entitled Robert to half the proceeds.

Judgment

For these reasons, Robert Bousfield shall have judgment for $52,500 plus prejudgment interest from August 23, 1999.

Costs

Counsel may exchange and submit written argument on costs.

A. CAMPBELL J.

QL Update: 20020425
cp/s/qlrme

Significant Successes

Bousfield v. Marshall

Between Robert Bousfield, plaintiff, and Lawrence Marshall and Gerry Marshall, defendants

Ontario Superior Court of Justice A. Campbell J.

Between
Robert Bousfield, plaintiff, and
Lawrence Marshall and Gerry Marshall, defendants