Court File and Parties
Court File No.: Central East Region - Newmarket 4960 09-2211 Date: 2013-02-27 Ontario Court of Justice
In the Matter of: An appeal under clause 116(2)(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended
Between:
Her Majesty the Queen Respondent
— And —
Paul Quinn Appellant
Before: Justice Glenn D. Krelove
Heard: November 5, 2012 and December 10, 2012 in Newmarket
Reasons for Judgment Released: February 27, 2013
Counsel:
- Mr. C. Gabriel, Agent for the Appellant
- Mr. R. Sidhu, Counsel for Respondent
On appeal from: Convictions by Justice of the Peace H. Radtke on February 19, 2010
KRELOVE J.:
Overview of the Facts
[1] The Appellant, Paul Quinn, appeals his convictions on two charges pursuant to the Consumer Protection Act, S.O. 2002, Chapter 30, as amended.
[2] Gennady Rudnitsky purchased a home at 19 Quail Run Boulevard in Maple, Ontario in July, 2006. He hired Paul Quinn to construct a swimming pool for him at his new residence. He met with Paul Quinn and a contract was signed on or about August 26, 2005. Paul Quinn signed the contract on behalf of Northern Pools. Mr. Rudnitsky paid Mr. Quinn a deposit of $17,022.00 toward the purchase price of $24,000.00. Mr. Quinn advised that the pool would be substantially completed by the time that Mr. Rudnitsky returned from his two week vacation.
[3] When Mr. Rudnitsky returned from his holiday, he found a roughed-in cement pool structure that was far from complete. Photographs filed at the trial as exhibits illustrate the problems with the "pool". Over the subsequent months, Mr. Rudnitsky made valiant efforts to get Mr. Quinn to come and complete the pool without success. Eventually, he lost contact with Mr. Quinn and had to hire another company to complete the work. Mr. Rudnitsky sued Paul Quinn successfully in Small Claims Court for his losses relating to a breach of the contract. Paul Quinn did not defend the action. Mr. Rudnitsky followed this suit up with a complaint with the Ministry of Consumer Services. They investigated and laid these charges.
[4] The trial was held on February 19, 2010 before Justice of the Peace Radtke. The trial proceeded on an ex parte basis as Paul Quinn did not attend. Paul Quinn was convicted on the two counts. Sentencing was completed on May 7, 2010. Paul Quinn was fined $2,500.00 on count 1 and placed on probation for two years with a term that he pay restitution of $17,000.00. On count 2, he was fined $2,500.00 and placed on probation for two years with a term that he pay compensation of $7,000.00.
[5] The charges that Paul Quinn was convicted of were:
Count 1: Paul Quinn holding himself out as Northern Integrity Pool Service at 338 North Taylor Mills Drive North in Richmond Hill, on or about the 26th day of August, 2005, in the City of Vaughan, in the Region of York, did commit the offence of fail to deliver to Gennady Rudnitsky, a consumer, a direct agreement containing information required under s. 35(1) of Ontario Regulation 17/05 of the Consumer Protection Act, 2002, ch. 30, as amended, and thereby committed an offence under s. 116(1)(a) of the said Act.
Count 2: Paul Quinn holding himself out as Northern Integrity Pool Service on or about the 26th day of August, 2005 in the City of Vaughan in the Central East Region did commit the offence of engage in an unfair practice in relation to Gennady Rudnitsky, a consumer, by making a false, misleading or deceptive representation to said consumer when having represented work contracted for would be completed, when such was not the case, contrary to s. 17(1) of the Consumer Protection Act, 2002, ch. 30, as amended, and thereby committed the offence under s. 116(1)(ii) of the said Act.
Grounds of Appeal
[6] The appellant has argued the following four grounds of appeal:
The Provincial Offences Court was barred from proceeding against Paul Quinn after the Small Claims Court already ruled on the same issues.
Was service perfected and did the Provincial Offences Court have jurisdiction to hear the matter?
The justice erred by not providing sufficient reasons for the defence to understand the basis of the conviction.
The learned justice of the peace erred by accepting evidence of identification.
Analysis
[7] This is an appeal against conviction pursuant to s. 116 of the Provincial Offences Act. Section 120 of the Act sets out the powers of this court in such appeals.
[8] I will deal with each of the grounds of appeal in the order that I have set them out.
[9] The first ground of appeal deals with the issue of estoppel. The Appellant submits that these charges should not have proceeded against Paul Quinn because Gennady Rudnitsky obtained a judgment in Small Claims Court based on the same contract and circumstances which gave rise to the Consumer Protection Act charges. In support, the Appellant refers to Angle v. M.N.R., [1975] 2 S.C.R. 248.
[10] I disagree with this assertion. As the Angle case indicates, there are three requirements of issue estoppel including that the same question has been decided and that the same parties are involved in the proceedings. It is clear from reading the two charges that they were not the same issues in the civil proceedings. As well, Her Majesty the Queen is a party to these charges but was obviously not a party to the civil proceedings. In addition, it is unclear what the issues were in the civil proceedings. I do not find that there is any merit to this ground of appeal.
[11] The second ground of appeal relates to whether there was proper service upon Paul Quinn of the summons in this matter. It was agreed that for the purposes of this appeal the document entitled "Anticipated Statement of Tammy Watson" found at tab 4 of the Appellant's Factum was to be considered.
[12] Tammy Watson also gave some evidence at the trial concerning the issue of service. From a review of this evidence, I am satisfied that service and notice has been established. Paul Quinn had sufficient notice of the proceedings and did not attend. The learned justice of the peace was entitled to proceed with the trial.
[13] I will deal with the third and fourth grounds of appeal together. At the conclusion of the evidence in the trial, the learned justice of the peace gave the following reasons for judgment:
The court, based on the totality of the evidence before me, submissions, the queries, which I was completely satisfied with, the court is satisfied a prima facie case has been proven in regards to both counts in the case against Mr. Paul Quinn holding himself out to be Northern Integrity Pool Services. There will be convictions on both charges.
[14] The Respondent accepts that the learned justice of the peace gave reasons in a vague and cursory manner. The Respondent further agrees that the learned justice of the peace was in error when he referred to a "prima facie case" rather than proof beyond a reasonable doubt. However, the Respondent submits that based on the reasoning set out in R. v. Sheppard, 2002 SCC 26, this court is entitled on appeal to review the trial evidence and to determine whether all of essential elements of each of the charges has been established beyond a reasonable doubt.
[15] I agree with the Respondent's interpretation of R. v. Sheppard. However, when I review the evidence, I have many concerns including:
The charges allege offences on August 26, 2005. However, the evidence of Gennady Rudnitsky was that the contract was entered into with Paul Quinn after he moved into his new house in July, 2006. The contract, filed as Exhibit 2 has a date of August 26, 2005.
The contract, Exhibit 2, shows the parties to the contract are "Northern Pools" and Gennady Rudnitsky. There is no evidence who or what Northern Pools is. Is it the same entity as Northern Integrity Pool Service?
There seems to be a dearth of evidence that the Paul Quinn who was served with the summons and given notice of those proceedings is the same Paul Quinn who dealt with Gennady Rudnitsky.
[16] After reviewing all of the evidence presented at the trial of this matter, I am not satisfied that all of the essential elements of each of the charges has been established. I am prepared to find that the reasons provided by the learned justice of the peace in this matter are inadequate and that this court cannot be satisfied that the convictions should stand.
[17] In my view, this is a case where I should allow the appeal and order a new trial on both counts.
Conclusion
[18] The conviction appeals are allowed and a new trial ordered. This matter shall return to the Provincial Offences Court for a trial before another justice of the peace.
Released: February 27, 2013
Signed: "Justice G.D. Krelove"
Justice G.D. Krelove, O.C.J.