Ontario Court of Justice

Date: 2024 08 15 Court File No.: 1260-999-23-9036-01-02

Between:

ELECTRICAL SAFETY AUTHORITY

— AND —

TURANO’S HOME IMPROVEMENT LIMITED

Before: Justice Scott Latimer

Heard on: May 17, 2024 Reasons for Decision released on: August 15, 2024

Counsel:

Jillian Siskind, counsel for the Electrical Safety Authority Jenna Little, agent for the Electrical Safety Authority

LATIMER J.:

[1] A man ran a company. The company consisted of just the man. The man, and the company, offered home improvements to residents of the Greater Toronto Area.

[2] In 2018, the man – Vince Turano – agreed to build a new home in Burlington. It was alleged at trial that, at the time, Mr. Turano was acting on behalf of his company. The company’s name was Turano’s Home Improvement Ltd. The work he agreed to provide included electrical, however, for which neither he nor his company were licensed to provide. It was alleged that they provided electrical services all the same, and in so doing created a risk to future occupants of the home.

[3] The homeowner and Mr. Turano signed a contract. The document had a business name on the letterhead – Turano’s Home Improvement. Based on the absence of “Ltd” from the letterhead, the trial Justice became concerned that this may be some other business disconnected from this proceeding – different than Turano’s Home Improvement Ltd – and, as a result, acquitted the corporate defendant in this proceeding.

[4] The prosecuting agency, the Electrical Safety Authority, submits on appeal that the trial Justice erred in focusing solely on the letterhead, to the exclusion of the surrounding body of evidence which should have convinced him beyond a reasonable doubt that Turano’s Home Improvement Ltd. was involved in this illegal activity.

[5] For the reasons that follow, the appeal is granted.

I. Facts

(1) The Proceedings

[6] Despite having been charged and notified of the trial date, Mr. Turano did not appear in court for his multi-day trial. He neither appeared personally nor as agent for Turano’s Home Improvement Ltd, a corporation for which he was the lone director and employee. An ex parte trial began on August 23, 2023. The prosecution presented the following evidence:

1. Neither Mr. Turano nor his corporation were licensed to perform electrical work in the province of Ontario.
2. Mr. Turano entered into an agreement with a homeowner in Burlington to complete, among other things, electrical work during the construction of a new home.
3. The electrical work was completed by either Mr. Turano or an unlicensed agent.
4. The electrical work was of poor quality.

(2) Was Turano’s Home Improvement Ltd. involved?

[7] After hearing two days of evidence, the trial Justice reserved his decision until September 22, 2023. His oral reasons are well organized and clear. He was satisfied beyond a reasonable doubt of the above four evidentiary points and convicted Mr. Turano of operating an electrical contracting business without being the holder of an electrical contractor license (count 5). He was not convinced, however, that the corporate defendant was a party to the agreement with the homeowner. The “identity of the corporate defendant” had not been proven and, as a result, counts 1 through 4 on the information were dismissed.

[8] The following is the key passage in the trial Justice’s reasons:

I am not satisfied beyond a reasonable doubt that [the homeowner] contracted with the corporate defendant for the construction of the home and the electrical work included. I make that finding for the following reasons: the construction agreement as set out under the letterhead of Turano’s Home Improvements. There is no reference to any corporation as a party to the agreement. Vince Turano’s signature does not have any identifiers of corporate office or authority being set out. [The ESA investigator] asked Mr. Turano what his company name was, I heard no evidence that Mr. Turano intended that the contract [with the homeowner] was to be between [the homeowner] and the corporate defendant.

I am satisfied that Mr. Turano had the ability to carry out this contract through a corporation but there is no evidence that he did so.

I would note as an aside that when this issue arose the prosecutor was offered an opportunity to bring an application under section 34 of the Provincial Offences Act to amend the information and names of the defendants, that would be on notice to the defendant, and the adjournment offer was declined.

[9] In this last paragraph, the trial Justice was referencing events from earlier in the trial. During the homeowner’s testimony, the contract was produced and made an exhibit. Upon inspection, the trial Justice commented,

If you are relying upon this document as to the contract between the parties, there’s no evidence here that he contracted with a corporate defendant. I don’t know what Turano’s Home Improvement is but that’s the only way it’s styled, and it is clearly not styled as a corporation owned by the Ontario Corporation. And you may have a huge evidentiary problem with all of the counts, but count five, which as – this contract is not with a corporate entity, so Mr. Turano could not be charged as the director unless you have other evidence here. We’re going to take the morning recess; would you like to look at all of this?

…. You may have much more evidence to give me but if this is the contract that you are relying upon on its face the best I can conclude is that it is a trade name for a proprietor.

[10] The prosecution advised they would consider the matter over the morning recess. Later in the day, a discussion arose about amending the count, although the Justice noted that would be a “fundamental” amendment, as it would be “a completely different party”. He also stated that “there is nothing to prevent you from proceeding as is, I’m just alerting you to what I see is pretty much a fatal issue on counts one through four”.

[11] After deliberation, the prosecution decided to continue with the charges as laid.

II. The Standard of Review

[12] This appeal is governed by sections 116 to 134 of the Provincial Offences Act. Section 121 sets out that a POA appellate court may either dismiss or allow the appeal and, upon allowing, order a new trial or enter a finding of guilt if, “in its opinion, the person [or corporation] who has been accused of the offence should have been found guilty”. The appellant seeks this latter finding.

[13] The appellant submits that the trial Justice committed legal error in failing to consider the totality of the evidence with regard to the corporation’s role. The Justice’s narrow focus on the letterhead denied the appellant a fair consideration of the entirety of the evidence adduced, in particular:

(1) A witness, Mr. Zafar, testified that Mr. Turano’s business was Turano’s Home Improvement Ltd., and that it was common for the shorter form “Turano Homes” to be used in discussions regarding the construction project. (2) Mr. Turano told the ESA investigator, on two occasions, that his company was Turano’s Home Improvement Ltd. (3) Documentary evidence established the ongoing corporate existence of Turano’s Home Improvement Ltd., and the prior expiry of two separate sole proprietorships named “Turano’s Home Improvement”.

[14] I agree with the appellant that the trial Justice, in his Reasons, viewed the letterhead in isolation from the totality of the evidence. It was the sole piece of evidence he cited while explaining why the corporate defendant’s identity had not been proven beyond a reasonable doubt. It was a conclusion foreshadowed by his earlier critique of the exhibit upon receiving it. His statement in open court – before hearing much of the evidence – that the absence of “Ltd” on the document’s letterhead was “fatal” to the prosecution of the corporate defendant demonstrates his flawed approach to the evidence. The contract was a piece of evidence, not the entire case. The prosecution’s ability to prove that the corporate defendant was a party to the agreement was not confined to the four corners of the document itself. The trial Justice’s failure to consider the entirety of the evidence presented on this issue amounts to legal error.

III. Remedy

[15] I am aware that it is not my role as an appellate court to re-try cases. A trial court has a front-row ticket to the evidence adduced and is normally in the best position to weigh that evidence and come to conclusions regarding whether the prosecution has satisfied its burden. My perspective comes from transcripts, not viva voce evidence.

[16] In this case, however, despite being a step removed, I am satisfied that I am capable of resolving this matter without the order of a new trial. I am of the respectful view that, had the trial Justice not unduly focused on the text of the letterhead to the exclusion of the powerful surrounding circumstantial evidence, he would have come to the same conclusion I do here – that Mr. Turano’s actions were done in concert with his corporate entity, Turano’s Home Improvement Ltd. The corporation and he were effectively co-principals. It is the only available inference when one considers a) the use of the company name, b) Mr. Turano’s statements to Mr. Zafar, c) Mr. Turano’s statements to the ESA investigator, d) the documentary evidence demonstrating that Turano’s Home Improvement was no longer in existence, and e) the application of logic and common sense. Nothing in this case suggests Mr. Turano was a particularly diligent businessman. The use of letterhead that lacked “Ltd”, in the context of the evidence as a whole, is a minor detail undeserving of the attention it received from the trial Justice. The suggestion that Turano’s Home Improvement was an ongoing, separate entity is an implausible theory on the whole of the evidence. The prosecution, in aid of proving its case, does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R v Bagshaw, [1972] SCR 2, at p.8.

IV. Disposition

[17] Ending where I started, the evidence adduced at trial firmly established, beyond any doubt, that Vince Turano was operating a business named Turano’s Home Improvement Ltd., and that he and the business were essentially one and the same. It was in this context that he performed illegal electrical work at the new home build in Burlington. I am satisfied that the evidence established that his corporation was liable for the actions taken on its behalf by Mr. Turano, and that counts 1 through 4 are proven beyond a reasonable doubt.

[18] I direct that the appellant contact the Trial Coordinator to set a hearing date before me to address sentence.

Released: August 15, 2024 Justice Scott Latimer