



COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Formosi, 2012
    ONCA 485

DATE: 20120706

DOCKET: C55080

Laskin, Cronk and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Vincent R. Formosi

Appellant

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.


