CITATION: R. v. Gaurino, 2017 ONSC 544
COURT FILE NO.: 13-R2027
DATE: 2017-01-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
Grace Go Gaurino
Accused
Bruce Lee-Shanok, for the Crown
Shannon Robinson for the Accused
HEARD AT OTTAWA: September 6, 8 and 9, 2016
REASONS FOR JUDGMENT
Madam Justice B. R. Warkentin
[1] Ms. Gaurino is charged with one count of fraud over $5,000.00 contrary to s. 380(1)(a) and one count of theft over 5,000.00 contrary to s. 334(a) of the Criminal Code. These are counts 1 and 3 on the indictment, count 2 having been stayed.
[2] Ms. Gaurino is alleged to have defrauded and stolen funds from her employer, a 98 year old woman, Eileen Rennie, between December 2012 and February 2013. Ms. Gaurino was one of six employees who provided 24 hour caregiving services for Ms. Rennie. Two of the caregivers were full time employees and four were part time employees. Ms. Gaurino was a part time employee and had been employed as one of Ms. Rennie’s caregivers for approximately 3 months prior to December 2012.
[3] Ms. Gaurino was paid $22.00 per hour. Between December 2012 and February 2013, her shortest shift was five hours and her longest shift was 19.5 hours. On average she worked 7 or 8 hour shifts and her hours were typically the night shift between 7 pm and 6 am.
[4] Between December 7, 2012 and February 10, 2013, the period during which the alleged theft/fraud occurred, Ms. Gaurino earned $4,515.50 in income. During that same period, cheques were written to Ms. Gaurino totaling $21,145.46 being $16,629.96 more than her salary.
[5] In total there were 19 cheques the Crown alleges that comprise these offences. A book of documents that included the cheques formed part of the Crown’s case. The defence admitted that these 19 cheques were written by the accused. There was no admission as to who signed the cheques.
Relevant Facts
[6] Ms. Rennie was completely independent until approximately August 2012 when a prior hip replacement failed and she could no longer drive or manage in her home on her own. Ms. Rennie consulted a close family friend, Allan Place, who was her Attorney for Personal Care pursuant to a Power of Attorney to that effect about her circumstances. Mr. Place was not only a close family friend, he considered Ms. Rennie to be a family member and was the one who assisted her with her lawn maintenance, house repairs and was a regular visitor in her home.
[7] Because Ms. Rennie wished to remain in her home, she and Mr. Place decided to hire caregivers to provide 24 hour care to Ms. Rennie. Mr. Place hired the caregivers and set up a daily log where the caregivers made notes about Ms. Rennie’s daily activities.
[8] The caregivers were required to log what Ms. Rennie ate, when she slept, note anyone who visited including the time and length of the visit, log health concerns and all medication that was provided to her. The log was used by all the care givers to review prior shifts as well as by Mr. Place when he visited to ensure that she was being well cared for.
[9] Ms. Rennie had named her lawyers, Hewitt, Hewitt, Nesbit and Reid as her Attorneys for Property pursuant to a Power of Attorney to that effect. Notwithstanding these Powers of Attorney, Ms. Rennie remained mentally competent. She had turned over the overall management of her finances to her lawyers and estate managers; however, she maintained control over her chequing account with the BMO and with National Bank.
[10] She relied on an estate manager from the law firm, Mr. Hewitt to transfer funds from her various investments into the BMO account as required. Ms. Rennie used the BMO account to pay the caregivers.
[11] In addition to the daily activity log, Mr. Place had also set up a system where the part-time caregivers logged their work hours as well as a petty cash log. Ms. Rennie would add up the hours for the part-time employees and write cheques to them based upon their rate of pay and hours worked. The two full-time employees were paid a regular salary.
[12] By December 2012, Ms. Rennie was in increasing pain from her failed hip replacement and her physicians increased and changed her pain medication from Oxycodone to Morphine. Mr. Place testified that by December 2012 Ms. Rennie, while capable of engaging in discussions, was becoming forgetful and at times vague in her interactions with him.
[13] At some point around December 2012, Ms. Rennie had also changed the manner in which she was paying the caregivers such that she would have them write out the content of the cheques for their salary and Ms. Rennie would sign the cheques. Ms. Rennie was still counting the hours and instructed the caregivers what the amount of the cheque should be.
[14] Mr. Place had also set up a petty cash system where the caregivers would be reimbursed for expenses incurred such as groceries or other items purchased for Ms. Rennie; although Mr. Place typically purchased and delivered groceries to the home. Expenses incurred by the caregivers were logged on a separate petty cash log with receipts supporting the expense.
[15] It was Mr. Place’s evidence that there would not have been expenses that Ms. Gaurino incurred for Ms. Rennie outside of the petty cash system.
[16] Both Mr. Place and Mr. Hewitt reviewed the monthly bank statements for the BMO account to monitor Ms. Rennie’s accounts and to ensure she had sufficient funds to pay her expenses.
[17] It was when the bank statements for December 2012 were reviewed sometime in January 2013 that some discrepancies in spending were noticed. During the next few weeks, both Mr. Hewitt and Mr. Place collected information about the hours worked by the caregivers and reviewed all the cheques that had been written on both the BMO and National Bank accounts. They ascertained that Ms. Gaurino had been receiving substantial payments in addition to her salary totaling $16,629.96; approximately four times what she had earned for the hours she had worked during the period in question.
[18] Ms. Rennie died in January 2014 at the age of 100 years approximately 10 months after the overpayments to Ms. Gaurino were discovered. Ms. Rennie was never questioned about the payments that had been made to Ms. Gaurino.
Evidence of Grace Gaurino
[19] Ms. Gaurino testified in her defence with the assistance of a Tagalog interpreter. She claimed that the $16,629.96 in funds payable to her above her $4,515.50 salary between December 2012 and February 2013 included funds that Ms. Rennie had given to her as gifts and also included money that Ms. Rennie had given to her in order that she, Ms. Gaurino could purchase specific items for Ms. Rennie and also provide Ms. Rennie with cash on hand.
[20] Ms. Gaurino denied that she had stolen from or defrauded Ms. Rennie and claimed that the gifts to her were because Ms. Rennie had learned that Ms. Gaurino’s mother had developed breast cancer and that she wanted to help.
[21] Ms. Gaurino denied that Ms. Rennie was having memory problems and insisted that all the additional payments that had been provided to her were intended to be provided to her.
[22] Ms. Gaurino also claimed that she had asked Ms. Rennie to speak with Mr. Place about the additional money that she was being paid because she did not want to get into trouble. She was not certain if Ms. Rennie had ever spoken to Mr. Place. Ms. Gaurino never told Mr. Place about the additional funds she was receiving.
[23] In cross-examination, many of the cheques that were written to Ms. Gaurino between December 2012 and February 2013 were put to her. In addition, Ms. Gaurino’s personal bank statements were put to her where they showed the cheques having been cashed and the withdrawals and payments made from her personal bank account. There was no indication that any of the funds had been used to pay for medical expenses for Ms. Gaurino’s mother.
[24] When asked to explain how each of these cheques, often for one thousand dollars more than she was owed for the hours she had worked came about, Ms. Gaurino claimed that she could no longer recall but believed that they were gifts to her and her family.
[25] It became apparent in close examination of the cheques that almost all of the cheques to Ms. Gaurino had been altered. For example, on December 28, 2012 Ms. Gaurino was entitled to a salary of $176.00 for 8 hours of work ($22.00 x 8 = $176.00). This corresponds to her work log for the period in question. It was the position of the Crown that Ms. Rennie had signed a cheque written by Ms. Gaurino for $176.00 but that Ms. Gaurino later altered the cheque by changing the 1 to a 7 and adding the written amount of “seven” into the cheque.
[26] In another example on December 31, 2012, Ms. Gaurino’s salary for 20 hours worked was $440.00. The cheque she received was for $1,440.00. The Crown put to Ms. Gaurino that she had added a “1” before the 440.00 and then altered the written line by adding “teen” after the “four” thus changing the amount from “four hundred” to “fourteen hundred”.
[27] The Crown went through all of the cheques that were the subject of this fraud/theft trial and asked Ms. Gaurino to justify how her regular salary was augmented in this fashion. In each case, the Crown demonstrated his theory of how the cheque had originally been written for the correct salary and then presumably altered after Ms. Rennie had signed the cheque.
[28] In mid-January 2013, on both the 18th and the 21st, Ms. Rennie appears to have signed two cheques on each of those days payable to Ms. Gaurino. All four of those cheques have the same hallmarks of having been altered by adding an additional thousand to the original amount.
[29] In addition to the cheques that the Crown alleged had been altered, there were two cheques, one on January 7 and the second on February 1, 2013 for $200.00 each. Ms. Gaurino claimed that these cheques were written to her by Ms. Rennie for the purpose of replenishing the petty cash.
Analysis and Conclusion
[30] In considering the evidence and the submissions of the Crown and defence, I accept the position of the Crown that Ms. Gaurino altered the cheques after they were written and signed by Ms. Rennie. I also find that when there was more than one cheque written on the same day, that Ms. Gaurino used the fact that Ms. Rennie was forgetful to have her pay her twice for the same work hours.
[31] I do not accept Ms. Gaurino’s evidence that Ms. Rennie wanted to provide her with additional money because of Ms. Gaurino’s sick mother, nor do I accept that Ms. Gaurino was purchasing items at Ms. Rennie’s request or to provide her with cash on hand or replenish the petty cash in the home.
[32] Ms. Gaurino was a part-time employee who had worked only about 3 months for Ms. Rennie when the additional funds started flowing to her. Ms. Gaurino worked primarily on the night shift from 7 pm until 6 am or thereabouts.
[33] None of the other care givers had been provided with “gifts” in excess of their regular salaries.
[34] The additional funds to Ms. Gaurino began to flow after Ms. Rennie’s medication changed to morphine and she was more forgetful.
[35] I do not therefore accept Ms. Gaurino’s explanation that she was receiving additional funds because of Ms. Rennie’s generosity. This is not credible in light of all of the evidence. Ms. Gaurino’s bank statements, the petty cash and employment logs all support the Crown position.
[36] I therefore accept the Crown theory that the cheques for Ms. Gaurino’s salary were altered after they had been written and that on some occasions, Ms. Gaurino convinced Ms. Rennie to provide her with additional funds to which she was not entitled.
[37] I therefore find Ms. Gaurino guilty of the offences charged.
Madam Justice B. R. Warkentin
Released: January 23, 2017
CITATION: R. v.Gaurino, 2017 ONSC 544
COURT FILE NO.: 13-R2027
DATE: 2017-01-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
GRACE GO GAURINO
REASONS FOR JUDGMENT
Warkentin RSJ.
Released: January 23, 2017