COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Singer, 2015 ONCA 415

DATE: 20150610

DOCKET: C57239

Weiler, Tulloch and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jack Singer

Appellant

Alan D. Gold and Melanie Webb, for the appellant

Susan G. Ficek, for the respondent

Heard: June 2, 2015

On appeal from the conviction entered on November 1, 2012 by Justice G.A. Hainey of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant appeals from convictions for fraud over $5,000 and theft in relation to his home renovation business “Stay in Place Renovations”.

[2] Mrs. Heath, a 76 year old woman at the time of these events in 2008, lived alone in a house she had owned for 30 years. She had a mental illness, and her financial advisor restricted her to withdrawing $1,000 per month.

[3] Mrs. Heath called the appellant after receiving his brochure. On August 13, 2008, the appellant and his associate Brent Steinberg went to meet her. At this meeting, the complainant signed a contract for various items of renovation work. The contract price was $5,617.50. On August 15, she signed another contract for $122,010, for further renovation work. On September 12, she signed a third contract for $195,300. The contracts were all signed by the appellant. In total, Mrs. Heath paid out $301,000 to the appellant. She withdrew some of the money from her savings, and some from RRSPs and RRIFs, resulting in an income tax liability of almost $80,000.

[4] After November 5, 2008, Mrs. Heath’s mental health began to deteriorate and she had a psychiatric admission to the hospital. She never returned to her home and moved to a nursing home. On November 19, 2008, the appellant left a note on her fridge saying that “because of your present health condition all work will be stopped on Nov. 20/08. Please call when your health improves.”

[5] At the time, none of the work had been completed, much of the work that was performed was deficient, and the house was uninhabitable.

[6] After Mrs. Heath was hospitalized, her son spoke with the appellant, who indicated he required a further payment of $60,000 to complete the work. The appellant denied telling Mr. Heath his mother owed him $60,000 more: he said he told Mr. Heath his mother owed $20,000 more. He also denied that he refused to complete the work and testified that he was waiting to do the work because he needed Mrs. Heath’s approval. The appellant never did any more work and did not refund any of the money the appellant had paid.

[7] The trial judge rejected the appellant’s evidence and found that he could have completed the work as he had a key to the house.

[8] In convicting the appellant of fraud, the trial judge considered the evidence of the Crown’s three expert witnesses as well as the appellant and the defence expert witness as to the value of the work performed, the work that remained to be done under the contracts and normal commercial mark-ups within the industry. He concluded that, in comparison to industry standards, the appellant grossly overcharged the complainant. (We note that the appellant included in his cost estimate a $40,000 commission to Mr. Steinberg for dropping off the flyer.)

[9] The trial judge was satisfied beyond a reasonable doubt the overcharge was dishonest conduct by the ordinary standards of reasonable and honest people. On the expert evidence he accepted the overcharge was as high as $200,000. At a minimum, even accepting the appellant’s own figures, he overcharged by at least $85,000. As for intent, the trial judge noted that the appellant is an experienced home renovator and it is inconceivable that he did not know that the overall price of the three contracts was far greater than the market value of the work.

[10] The finding of guilt in relation to theft was based on the fact that after Mr. Heath spoke to the appellant he kept the money that the complainant had paid although he had terminated work on the house, leaving the house uninhabitable, when the complainant went into hospital. The trial judge rejected the appellant’s contention that he had a colour of right in respect of the money paid to him by the complainant.

[11] On appeal, the appellant says the trial judge erred by finding that overcharging amounted to fraud. A contractor who overcharges is not engaging in deceit; he is simply setting a price for his work. Further, he says that the trial judge’s failure to determine the precise amount of the overcharge is an error. An overcharge of $85,000 on a contract price of $300,000 does not amount to fraud.

[12] The appellant seeks to isolate one portion of the trial judge’s reasons, when regard must be had to the reasons as a whole. Whether overcharging amounts to fraud is fact specific. The Supreme Court in R. v. Zlatic, 1993 CanLII 135 (SCC), [1993] 2 S.C.R. 29 observed that “other fraudulent means” is “conduct which reasonable and decent persons would consider dishonest and unscrupulous” (at para. 32).

[13] Here, there was more than overcharging. After initially agreeing with the complainant to do $5,000 worth of renovations to the exterior of her home, the appellant, within days, persuaded her to enter into two further contracts for a total of $300,000. The trial judge found it significant that the appellant persuaded the complainant to engage in renovations for $300,000 on a house with a market value in the mid $400,000 range, and he was “satisfied beyond a reasonable doubt that [the appellant] knew he was taking advantage of [the complainant].” The trial judge applied the proper test for fraud based on “other fraudulent means”. While the trial judge did not quantify the exact amount of the overcharging in his reasons for conviction, he concluded that there was overcharging by “at least $85,000”. He was entitled on the evidence to make this finding and was not required to specifically quantify the amount over $5,000 in finding the appellant guilty.

[14] The appellant submits the trial judge also erred by qualifying one of the Crown witnesses, Rudy Mulder, as an expert, despite his being an acquaintance of the complainant’s son. The trial judge conducted a voir dire into Mr. Mulder’s evidence. He properly considered the witness’ education and experience and limited the scope of his expert testimony. He recognized that there were certain limitations in his experience that, depending on how he justified his opinion, were relevant to the weight of his evidence. The question of whether Mr. Mulder was impartial and independent was not pursued by defence counsel at the voir dire or in argument at trial. In all the circumstances, there was no error in the trial judge’s ruling permitting Mr. Mulder to testify as an expert witness and in the scope of the opinion he was permitted to provide.

[15] Finally, the appellant argues that, in the circumstances of this case, he ought not to have been found guilty of theft in addition to fraud. He submits that he received the funds from the complainant voluntarily and without any trust or other specific obligation and she was under no mistake that it was for payment under the contracts. It was simply payment for work to be done. The property in the funds passed upon the initial payment and receipt. They became the appellant’s property. There was no “conversion” of Mrs. Heath’s property simply because the work was thereafter not performed.

[16] In R. v. Lake, 1953 CanLII 157 (ON CA), [1953] O.R. 1009 (C.A.), it was alleged that the accused had defrauded the complainant of a cheque for $2,500 because the complainant was intoxicated at the time and had no knowledge of it. McKay J.A., in delivering the judgment of the Court, said at p. 1014:

It is plain that the offence of larceny or theft by a trick in some cases so nearly resembles that of obtaining by fraudulent means, deceit or falsehood as to create real difficulty in distinguishing one from the other. However, one intelligent distinction is: In theft the owner of the thing stolen has no intention to part with his property therein to the person taking it, while in the case of deceit, falsehood or other fraudulent means the owner does intend to part with his property in the money or chattel, but it is obtained from him by an act of deliberate deception, practised with the object of gaining something of recognized value from the owner to his prejudice: (citations omitted)[^1]

[17] Having regard to the distinction above, we agree with counsel for the appellant that the appellant, having been found guilty of fraud based on the facts of this case, should not also have been found guilty of theft. Mrs. Heath intended to part with her money; she was induced to do so “by other fraudulent means”; she was induced to act to her detriment by giving the appellant money in circumstances where she would not have done so but for the course of action he followed.

[18] For these reasons the appeal is allowed to the extent of setting aside the finding of guilt in relation to the count of theft. In relation to the count of fraud, the appeal is dismissed and the conviction upheld.

“K. M. Weiler J.A.”

“M. Tulloch J.A.”

“K. van Rensburg J.A.”

[^1]: Note that in R v. Vallilee, (1974), 1974 CanLII 687 (ON CA), 2 O.R. (2d) 409 (C.A.) Martin J.A., in referring to this passage from Lake, clarified that, when the Criminal Code refers to one who “by deceit, falsehood or other fraudulent means” defrauds a person “of any property” the reference to “property” refers to the thing or chattel that is transferred and not an ownership interest.