The owners of a Kelowna winery allege a former employee stole nearly $450,000 over a 30-month period.
A recent BC Supreme Court judgment outlines the allegations made by The View Winery against the company's former controller, Debra Saywell, who worked there from November 2020 to June 2023. The company says Saywell worked as a controller for the entire Turton Group, which owns The View, Orchard Greens Golf Course and rental business Excalibur Enterprises.
In obtaining a “Mareva injunction” against Saywell, which has frozen her assets while the matter winds its way through the courts, the company claims Saywell directed more than $359,000 of company's funds to her personal Mastercard through 75 transactions, along with more than $82,000 to a joint bank account she shared with her son.
Justice Briana Hardwick granted the Mareva injunction on Aug. 3, 2023, but in January, Saywell applied to remove the injunction and free up her assets. But last week, Justice Bill Veenstra dismissed her application and kept the injunction in place, describing The Turton Group's case against Saywell as “sufficiently strong.”
The first of Saywell's disputed transactions began in January 2021, a little more than a month after she started in the position.
Saywell denies the allegations that she stole the funds, but doesn't dispute she received the money. She says about $60,000 of the alleged misappropriated funds were reimbursed business expenses and the remaining $390,000 was payment for overtime hours. She says the company made these payments directly to her Mastercard.
Managing shareholder of the The View, Jennifer Turton-Molgat, says her employees either bank their overtime hours or the receive overtime pay. She says expense reimbursements would never be paid directly to someone's credit card.
Saywell also allegedly purchased a large storage container ($5,699) and a shelter ($3,225) using the company's bank account, and both purchases were arranged to be delivered to Saywell's home. Saywell says her employer had agreed to the purchases in lieu of accrued vacation pay, something Turton-Molgat denies.
Turton-Molgat said Saywell had “complete control” over the business' bank account, and was the only person who was able to send e-transfers from the account.
An external accountant prepared year-end financial statements for the Turton Group, but the accountant never noticed anything out of the ordinary. The company was only made aware of possible inconsistencies after it was alerted by the bookkeeping software Quickbooks in June 2023.
In his decision, Justice Veenstra notes that if Saywell's version of events is true, the $390,000 in OT payments over 30 months works out to about $13,000 each month, while her base monthly salary was about $5,000.
"The explanations provided by the defendant are difficult to reconcile with the amounts that were paid to her," he said in his decision.
He also says that if Saywell is being truthful, the four witnesses who submitted affidavits “were not only lying but working together to create a false history of fraud on the defendant’s part.”
“In light of these considerations, and notwithstanding the contradictory evidence and the serious credibility issues raised, it is my view that this is a case in which the plaintiff has advanced a sufficiently strong good arguable case,” Justice Veenstra said.
As a result, Justice Veenstra ruled its appropriate to keep the Mareva injunction in place.
“In this case, there was no evidence as to the assets that might be available should the plaintiff obtain and ultimately seek to recover on a judgment, and the amount of the claim is beyond the ability of many individuals to pay,” he wrote.
“In my view, the potential prejudice to the plaintiff if it successfully advances a claim of this nature through trial and finds nothing left to recover is the kind of significant prejudice that Mareva orders are intended to address.”
According to online court documents, it appears The View has yet to formally file a notice of civil claim against Saywell. Justice Veenstra notes that a Mareva injunction will often be dealt with “at the earliest stages of an action” to ensure a person doesn't take steps to hide their assets prior to a potential judgment.
The allegations made against Saywell in securing the Mareva injunction have not been tested in court. No criminal charges have been filed against Saywell in relation to the allegations either.
One of the Turton Group's businesses, Orchard Greens Golf Course, has been for sale since December.
Earlier this year, a Kelowna bookkeeper was convicted of defrauding her employer of $1.35 million. She's scheduled to face sentencing in the criminal matter on Friday.
