Court of Appeal for Ontario

Citation: R. v. Formosi, 2012 ONCA 485

Date: 2012-07-06

Docket: C55080

Before: Laskin, Cronk and Hoy JJ.A.

Between:

Her Majesty the Queen

Respondent

and

Vincent R. Formosi

Appellant

Counsel:

Lucas E. Lung, for the appellant

Robert Maxwell and Ian Daley, for the respondent

Heard and released orally: July 4, 2012

On appeal from the judgment of Justice Norman S. Douglas of the Ontario Court of Justice, dated August 16, 2011, dismissing an appeal from the sentence imposed by Justice of the Peace Paul MacPhail on April 13, 2010.

APPEAL BOOK ENDORSEMENT

[1] The appellant was convicted of breaching s. 31(2) of the Real Estate and Business Brokers Act, 2002, S.O. 2002, c. 30. He received a fine of $5,000 and a restitution order in the amount of $10,000 was imposed in favour of the vendor of the relevant property. The appellant appeals only the restitution order on the basis that, in the absence of any finding that the vendor suffered a loss, the restitution order cannot stand.

[2] We agree that this appeal must be allowed and the restitution order set aside. The Justice of the Peace was unable to conclude that the vendor of the property suffered a loss on payment of the sum of $10,000 to the appellant on closing of the relevant real estate transaction. A finding of loss is a necessary precondition to the imposition of a restitution order. Further, the evidentiary record in this case does not establish that the vendor of the property, in fact, suffered a loss by his payment of $10,000 to the appellant.

[3] Accordingly, the appeal is allowed and the restitution order is set aside. We see no reason to refer the matter back to the Justice of the Peace for reconsideration of penalty. In our view, the $5,000 fine imposed is a fit sanction in all the circumstances.