



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. Heaths 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. Heaths 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 appellants 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 Crowns 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 appellants 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
    appellants 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 judges
    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 judges 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] 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
    complainants son. The trial judge conducted a
voir dire
into Mr.
    Mulders 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 judges 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 appellants
    property. There was no conversion of Mrs. Heaths property simply because the
    work was thereafter not performed.

[16]

In
R. v. Lake,
[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), 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.


