Court of Appeal for Ontario

Date: 2019-05-13 Docket: C56707

Judges: Feldman, Miller and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Karen Koningen Appellant

Counsel

Travis Hughes, for the appellant Sean Horgan, for the respondent

Heard: May 3, 2019

On appeal from the conviction imposed on November 29, 2012 by Justice Gregory A. Pockele of the Ontario Court of Justice.

Reasons for Decision

Introduction

1The appellant appeals from a conviction for fraud exceeding $5000, contrary to s. 380(1)(a) of the Criminal Code, arising out of misrepresentations related to receipt of social benefits from the Ontario Works program.

2A benefits recipient has a continuing obligation to report any changes in income, assets, or living circumstances immediately. The significance of a benefits recipient failing to fulfil this obligation is that Ontario Works is thereby deprived of the information it needs to assess continued entitlement to benefits.

Facts

3The appellant initially qualified for benefits in October 2007 while living in rented accommodation on South Street in London, Ontario with her two children. When the appellant first qualified for Ontario Works benefits, she was assessed as a sole-support parent of two children, with no income. She provided requisite details of her living arrangements and rent. She signed and initialed documents explaining her obligation to advise of any change to her status. There is no dispute that the appellant's initial statements to Ontario Works about her living circumstances were accurate when they were made. The main issue at trial was whether there were significant changes in the appellant's living circumstances that she failed to report.

4In July 2008, the appellant moved with her children to a rented home on Paperbirch Crescent in London. She notified Ontario Works as required, and submitted a copy of her Tenancy Agreement signed in June 2008. The Tenancy Agreement indicated that she was renting the upper portion of the residence for $700 per month. She requested payment for first and last month's rent. Lisa Dalla Costa, a case worker for the City of London, called the person identified in the Tenancy Agreement as the landlord – James Weedmark – to verify the information provided. She had already determined that he was not the owner of the property. He advised her that he was in fact renting the residence and lived in the basement with his children. The only concern Ms. Dalla Costa had at that time was that an Ontario Works recipient is not entitled to reimbursement for last month's rent in advance when subletting, and she advised the appellant of that. There was no concern at that time that there had been any changes to the appellant's "benefit unit" – the appellant and her two children.

5In September 2009, the appellant moved again, to an address on Sunningdale Road. This time she did not advise Ontario Works, which continued her benefits on the basis of the rent payable under the June 2008 Tenancy Agreement from the Paperbirch residence.

6In December 2009, Ontario Works received an anonymous complaint that the appellant had undisclosed income and had moved without informing Ontario Works. Ontario Works began an investigation and placed a hold on the appellant's benefit payments.

7Ontario Works was not able to substantiate the claim of undisclosed income. However, when the Ontario Works eligibility review officer, Barbara Bourne, contacted the registered owner of the Paperbirch residence, she was informed that the appellant had moved to a residence on Sunningdale Road with Mr. Weedmark, who was characterized by the owner as the appellant's spouse. A subsequent conversation with the landlord at Sunningdale revealed that the Sunningdale landlord also understood the appellant and Mr. Weedmark to be living as spouses.

8At that point, Ontario Works had two concerns: (1) the appellant had not disclosed a change in residence (including the quantum of rent payable at the new residence), and (2) the appellant's "benefit unit" had potentially changed such that she was no longer a sole-support parent. Both of these changes could potentially impact her entitlement to receive benefits, or at least the quantum of that entitlement. Based on information from the owner of the Paperbirch residence that the house had been rented out as a single dwelling, and information from the owners of both Paperbirch and Sunningdale that they understood the appellant and Mr. Weedmark to be spouses, Ontario Works suspected that the appellant and Mr. Weedmark had been living with their respective children as a single family unit. It concluded that the June 2008 Tenancy Agreement that indicated that the appellant was renting accommodation from Mr. Weedmark and living upstairs with her two children and no one else, was a deception.

9From the perspective of Ontario Works, the significance of the apparent deception was that it was prevented from making inquiries about Mr. Weedmark's income to determine whether the appellant now had more resources at her disposal than previously. It was possible that Mr. Weedmark had little or no income, and that cohabitation would not impact on the appellant's benefits. But Ontario Works was prevented from determining the true state of affairs, and whether the appellant's benefit entitlement should be reduced.

10In January 2010, Ontario Works mailed the appellant a notice requiring her to attend a meeting to address their concerns. She did not attend. Ontario Works rescheduled the meeting for February. Again, she did not attend. She was sent a notice of overpayment of approximately $14,000 comprising of the funds she had been paid under Ontario Works since July 2008. The notice also explained how to appeal that determination. She did not appeal, and her file was closed on the basis of her failure to make any contact with Ontario Works.

11The appellant did not testify at trial, but a video statement made to police was tendered. That exhibit has been lost. On agreement of the parties, a summary of her statement was provided on appeal. The summary indicates she knew that she was obligated to advise Ontario Works of any changes in her circumstances. She advised that the monthly rent she actually paid to Mr. Weedmark at Paperbirch had been variable and was sometimes less than $700. (She did not state whether the monthly rent of $700 was nevertheless owed by her to Mr. Weedmark, whether she had in fact paid him or not.) She stated that her rent increased after moving to Sunningdale. She denied that she and Mr. Weedmark were spouses at Paperbirch, but acknowledged they became engaged on December 31, 2009, some four months after moving to Sunningdale. She maintained that she did not have any spousal relationship with Mr. Weedmark prior to the suspension of her benefits at the end of December.

12She stated that in January 2010, she was advised by the Paperbirch owner that Ontario Works had called about her. At that point, she stated, she contacted Ontario Works through Ms. Bourne, and provided her with information, including particulars of the Sunningdale lease.

13The trial judge did not find the appellant credible. He rejected her evidence that she contacted Ms. Bourne in January 2010. Nevertheless, he was not prepared to find that the appellant and Mr. Weedmark had been living as spouses at any relevant time. The trial judge held that this question was immaterial to whether the appellant had deceived Ontario Works as to changes to her living circumstances that she had an obligation to disclose.

14No evidence was tendered that could enable the court to determine whether the loss was less than the full amount received from July 2008 forward. That is, there were no calculations from Ontario Works to determine what the appellant's entitlement (if any) would have been had she been cohabitating with Mr. Weedmark at Paperbirch or Sunningdale or both. Calculations could not be done because there was no evidence at trial of Mr. Weedmark's income.

15The trial judge entered a conviction for fraud over $5,000. At sentencing, the trial judge acknowledged that had the appellant undergone a reassessment with Ontario Works, it might have turned out that she would have been eligible for some amount of benefits even if she had been cohabitating with Mr. Weedmark. But she did not seek a reassessment, and the trial judge concluded that "her lack of cooperation should not be rewarded."

Analysis

16The trial judge committed two errors that necessitate allowing the appeal. First, the trial judge failed to make a clear finding as to whether the appellant was co-habitating with Mr. Weedmark. Second, the trial judge misapprehended the evidence with respect to the June 2008 tenancy agreement, which may have impacted his assessment of the appellant's credibility.

(1) Co-habitation

17The trial judge was correct in stating that the question of whether the appellant and Mr. Weedmark were spouses was not dispositive. The salient issue is whether the appellant was in a shared living arrangement with Mr. Weedmark, whether as spouse or otherwise, at Paperbirch or Sunningdale or both, prior to January 2010. The trial judge did not make a clear finding on this question. The appellant insisted that the information in the June 2008 Tenancy Agreement was accurate, and that she lived separately from Mr. Weedmark at Paperbirch. The trial judge made no findings as to what the living arrangements were at Paperbirch. In fact, the only evidence at trial that was contrary to the appellant's position was the landlord's testimony that the Paperbirch residence was configured as a single family dwelling and he believed it was used as such. Although the trial judge found that the appellant and Mr. Weedmark were "sharing a residence" at Paperbirch, this finding is ambiguous between co-habitation (which would have to be disclosed to Ontario Works) and subletting a portion of the residence (which is what was disclosed to Ontario Works). In the absence of an express finding that there was co-habitation, it was not open to the trial judge to draw the inference that the June 2008 Tenancy Agreement did not represent the actual state of affairs, or that the appellant intended thereby to deceive Ontario Works.

(2) Misapprehension of evidence

18Furthermore, the trial judge misapprehended the evidence in finding that the appellant was a party to the lease between the owner of the Paperbirch residence and Mr. Weedmark. Although the appellant is listed in the lease under the category of "tenants/occupants/children", together with her children, she is not a signatory to the lease. Mr. Weedmark is the only signatory to that lease. This misapprehension appears to have contributed to the trial judge's conclusion that the June 2008 Tenancy Agreement was not bona fide, which in turn was stated as a reason not to accept the appellant's evidence that she had advised Ontario Works of her move to Sunningdale.

19With respect to Sunningdale, although the trial judge stated that he accepted the appellant's statement that she was co-residing with Mr. Weedmark, it appears from the record before us that the appellant did not concede that they had co-habitated prior to January 2010. She did concede that she and Mr. Weedmark co-habitated at Sunningdale after January 2010, which is the period after her benefits were suspended. There was therefore no admission of co-habitation (as opposed to occupying different parts of the same residence) prior to that time, and the trial judge misapprehended this evidence in coming to this finding.

20This misapprehension of the evidence figures prominently in the verdict as it lies at the core of the trial judge's reasons for why he rejected the appellant's credibility. This trial largely turned on that credibility assessment. Accordingly, it played a central part in the trial judge's reasoning process resulting in the conviction appealed from: R. v. Morrissey, 22 O.R. (3d) 514, at para. 93.

Disposition

21The appeal is allowed, the conviction set aside, and a new trial is ordered.