R. v. Lamontagne, 2020 ONCJ 419

CITATION: R. v. Lamontagne, 2020 ONCJ 419 DATE: March 12, 2020 Information No. 1687/19 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. STEPHANIE LAMONTAGNE R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE MADAM JUSTICE H. MENDES on March 12, 2020, at SUDBURY, Ontario APPEARANCES S. Town Counsel for the Crown B. Butler Counsel for the Crown S. Lamontagne Self-Represented R E A S O N S F O R J U D G M E N T MENDES, J. (Orally): This matter is the case involving the accused, Ms.

Stephanie Lamontagne, also known as Stephanie Rees, the owner and operator ofApex Property Management, who is charged with one count of fraud over $5,000. The charge arises from 12 kitchen cupboard/homerenovation contracts between February 7th, 2017 and October 22nd, 2018. At trial, the Crown called as witnesses 16 complainants as well as a detective constable from the Greater Sudbury Police Service and alicensing enforcement officer from the Greater City of Sudbury. Ms. Lamontagne also gave evidence at trial and as such, the Court mustengage in the three-step analysis set out in the R. v.

W.(D.) (1991) (SCC), 63 C.C.C. (3d) 397 S.C.C. decision. The trial was heard over seven days between November 12th, 2019 and December 9th, 2019. Voluntariness of the statement made byMs. Lamontagne to Detective Constable St. Martin on July 18th, 2018 via telephone was conceded and the statement was admitted onconsent of Ms. Lamontagne at the first day of trial.

The issue before the Court is whether the Crown has proven beyond a reasonable doubt that Ms. Lamontagne intentionally used deceit, falsehood, or other fraudulent means to defraud one or more of the 16 complainants of any property, money, or valuable security by failing to complete the kitchen cupboard/home renovation contracts executed by Ms. Lamontagne and the complainants. The onus remains on the Crown throughout and never shifts. The first witness called at trial was Teresa Lacopo Labelle, who works for the City of Greater Sudbury as a licensing enforcement officer. Ms.

Labelle gave evidence that building renovators, a business such as Apex Property Management, owned and operated by Ms. Lamontagne, must be licensed with the city annually. If a license is granted, a paper copy of the license is received, sealed by herself or another licensing clerk of the city. The license is valid for one year at a time from January to December 31st. Apex Property Management was licensed by the city in 2014, 2015, and 2016. The license for Apex Property Management expired on December 31st, 2016, and no further license was granted to Apex Property Management or renewed after December 31st, 2016.

Reminders were sent by the licensing enforcement office to Apex Property Management and a phone call made to renew the license after December 31st, 2016. Addis Edwards resides in Skead, Ontario, which is part of the City of Greater Sudbury. Ms. Edwards met with Ms. Lamontagne on February 2nd, 2017 to obtain an estimate for a kitchen renovation. Ms. Edwards spoke to Ms. Lamontagne about her qualifications and was told that Ms. Lamontagne learned her trade from her father. Ms. Edwards also inquired if Ms. Lamontagne was licensed and Ms. Lamontagne confirmed same. She also reiterated to Ms.

Edwards in writing through Facebook Messenger that she was licensed both with the city as well as the province. On February 5th, 2017, Ms. Edwards signed a contract with Ms. Lamontagne for a kitchen cupboard renovation, or rehab, as noted in the contract: trim and casing installation, refinishing of steps to kitchen, and stairwell basement drywall to be finished. The contract was to commence on April 10th, 2017 and complete on approximately April 14th, 2017. Before paying the 50 percent deposit requested, Ms. Edwards expressed her concern to Ms.

Lamontagne about the deposit being so high two months prior to the contract commencing and offered a 10 percent deposit to hold her spot and then 50 percent closer to the commencement of the contract. Ms. Lamontagne stated through Facebook Messenger to Ms. Edwards that the 50 percent deposit was to ensure contracts were followed through with and that staff was ensured their 40-hour work weeks. Ms. Edwards was feeling rushed and again through Facebook Messenger, Ms. Lamontagne reassured Ms. Edwards that her company was reputable, licensed, bondable, and insured. Ms. Lamontagne also offered references for Ms.

Edwards to call regarding Ms. Lamontagne’s work. On February 7th, 2017, Ms. Edwards’ husband paid Ms. Lamontagne a 50 percent deposit of $2,147 by way of Interac transfer and same was accepted by Ms. Lamontagne that day into her Scotiabank account. The contract did not start on April 10th, 2017, as Ms. Lamontagne advised Ms. Edwards that she had injured herself and so the contract’s start date was delayed one week to commence on April 17th, 2017. On April 17th, 2017, Ms. Lamontagne delayed the contract start date a further date to April 18th, 2017. Ms. Edwards gave evidence that work was done by Ms.

Lamontagne and two gentlemen over two or three days. The cabinet doors were taken down and the cabinet base was painted. The stairs were fixed and the baseboards were removed. This was the extent of the work that was done. Ms. Lamontagne and her workers attended no more than three or four days at Ms. Edwards’ home. Ms. Lamontagne stopped attending at Ms. Edwards’ home and responding to messages. Ms. Edwards began to grow concerned. Ms. Edwards was provided with excuses as to why Ms. Lamontagne could not show up to complete work. Further dates would be planned and then delayed by Ms. Lamontagne. Ms.

Edwards was offered discounts for the delay in work by Ms. Lamontagne. Ms. Edwards was also offered additional services but she was not interested in same until the contracted work was completed. The work at Ms. Edwards’ home was never completed by Ms. Lamontagne or Apex Property Management. Ms. Edwards hired another

contractor to complete the renovations. At no time did Ms. Edwards receive her kitchen cupboard doors. She was not provided with any receipt for materials purchased with her deposit. She did not receive a breakdown of how her deposit was spent, nor did she receive any refund of her deposit. Ms. Edwards did commence a Small Claims Court action and received judgment against Ms. Lamontagne. Carole Bilodeau resides in the City of Greater Sudbury, Ontario. Ms. Bilodeau contracted with Ms. Lamontagne in or about 2014/2015 to reface her kitchen cupboards. She was pleased with Ms.

Lamontagne’s work and so she re-contracted with Ms. Lamontagne on or about March 29th, 2017 to complete a renovation to her rec room, laundry room, and bathroom. The contract was to commence on June 5th, 2017 through to June 16th, 2017. Ms. Bilodeau was concerned about the two-week timeframe and was assured by Ms. Lamontagne, who determined the timeframe for the work, that the renovations would be completed as Ms. Bilodeau intended to list the home for sale in the summer of 2017. Ms. Bilodeau paid a 50 percent deposit of $8,475 to Apex Property Management by way of bank draft on March 30th, 2017. Ms.

Lamontagne and Ms. Bilodeau met in the parking lot to exchange the bank transfer, which Ms. Lamontagne deposited into her Scotiabank account. The contract did not commence on June 5th, 2017, as specified in the contract as Ms. Lamontagne was behind on another contract. On June 15th, 2017, an employee from Apex Property Management attended at Ms. Bilodeau’s home and completed the demolition on the rec room. In total, someone from Apex Property Management attended at the home five or six times and the total work completed to Ms. Bilodeau’s home was the demolition, some drywalling, and mudding. Ms.

Bilodeau’s contract was delayed into the summer of 2017 by Ms. Lamontagne’s failure to attend at the home when scheduled and her failing to reply to messages or inquiries from Ms. Bilodeau. Ms. Bilodeau was offered discounts on her final bill by Ms. Lamontagne as a result of the delays, however, Ms. Bilodeau simply wanted the work completed so that she could list the home for sale. The last occasion Ms. Lamontagne attended at Ms. Bilodeau’s house was in August 2017. Ms. Bilodeau sought to cancel the contract with Ms. Lamontagne and asked for an accounting of all the monies spent on her contract to date. Ms.

Lamontagne replied that she had to speak to her accountant regarding same. No reply was received by Ms. Bilodeau for the requested accounting, nor was she provided with any receipts for materials nor any part of her deposit returned. Eventually, Ms. Bilodeau hired another contractor to complete the renovations that were left unfinished by Apex Property Management. Ms. Bilodeau filed a Small Claims Court action and received a judgment against Ms. Lamontagne. Lisa Weldon resides in the City of Greater Sudbury, Ontario.

She signed a contract with Apex Property Management on or about November 4th, 2017 for kitchen cabinet refinishing; backsplash installation; bathroom vanity refinishing; tile removal and drywall; as well as new shelf refinishing; installation of bathroom floor tile; relocation of dishwasher; and kitchen island cabinet refinishing. Ms. Weldon met with Stephanie Rees, also known as Ms. Stephanie Lamontagne, on November 4th, 2017 and signed a contract with her and paid to her a 50 percent deposit of $4,274.60 by way of e-transfer, which was accepted into Ms. Lamontagne’s RBC bank account.

The contract dates were scheduled for December 4th, 2017 through to December 11th, 2017. Ms. Weldon was very specific with her request on the timelines for the contract as Ms. Weldon was moving into this home and wanted the work to be completed before her household contents were delivered. Ms. Weldon also indicated that she did not wish to sign the contract if the timelines could not be kept. The renovations did not commence as per the contract. Ms. Weldon and Ms.

Lamontagne modified the contract subsequently to remove the kitchen island work and add the installation, including wiring and plumbing, of the dishwasher as well as installation of flooring of all three bedrooms. Ms. Lamontagne advised Ms. Weldon that with these additions, a further week would be required to complete the contract. Ms. Lamontagne or someone from Apex Property Management attended at the home on three occasions to complete work. The extent of

the work completed included partial flooring in the master bedroom; the kitchen countertop and backsplash was removed; the kitchen cabinet doors were removed; and one or two coats of paint applied to the frame and the bathroom cabinet. Ms. Weldon made numerous attempts and requests of Ms. Lamontagne to have her cabinet doors returned from December 2017 to April 2018. Many of the messages and inquiries went unanswered by Ms. Lamontagne. Ms. Weldon asked that her doors be delivered. She offered to pick the doors up and she offered to meet Ms. Lamontagne at any location. Ms.

Weldon was finally successful in receiving the doors from Ms. Lamontagne on April 20th, 2018 but Ms. Weldon had to arrange for her partner and a friend to install the doors and complete the renovation. Ms. Weldon was offered discounts by Ms. Lamontagne for the delays, including additional work to be completed, but these offers were declined by Ms. Weldon as she simply wanted the contract work completed. Ms. Weldon did not receive any accounting of how her deposit was spent and, in her view, the total work completed by Ms. Lamontagne and Apex Property Management did not accord with the quantum of the deposit paid.

Ms. Weldon did agree that the plumbing bill for the installation of the dishwasher was paid by Apex Property Management but she was not provided with a copy of the invoice. Jeffrey Treleaven resides in the City of Greater Sudbury, Ontario and contacted Apex Property Management and arranged a consultation in early January 2018. Mr. Treleaven was seeking a kitchen cupboard refinish and small modification to accommodate new appliances. New kitchen counters were being installed by a separate contractor. A contract was signed in or about January 19th, 2018 with Ms.

Lamontagne and the contract was to commence on March 5th, 2018 with a completion date of four or five days. Mr. Treleaven was concerned about the completion date as he had a baby on the way. A 50 percent deposit was paid by Mr. Treleaven by e-transfer in the sum of $1,040.90 on January 19th, 2018 to Ms. Lamontagne which was deposited into her RBC account. Mr. Treleaven’s contract start date was pushed back from March 5th, 2018 to March 12th, 2018 and at that time, he reiterated the importance of the timeline to Ms. Lamontagne. On March 13th, 2018, an employee of Apex Property Management attended Mr.

Treleaven’s home to remove the kitchen cupboard doors and the backsplash was also removed. Mr. Treleaven experienced ongoing delays with his contract, including a lack of timely responses from Ms. Lamontagne, and so he sought to cancel the contract with Ms. Lamontagne and requested his kitchen cupboard doors and deposit be returned. Ms. Lamontagne refused to acknowledge the cancellation of the contract or return Mr. Treleaven’s deposit, despite repeated requests. At one point, Mr. Treleaven was told that a refund would take 15 days by Ms. Lamontagne, as specified by her accountant. Mr.

Treleaven did receive his kitchen cupboard doors back from Ms. Lamontagne and they were in the same condition as when she took them. Mr. Treleaven did not receive any accounting of how his deposit was spent or any receipts for materials spent on his renovation. Angie Louie and David Louie reside in the City of Greater Sudbury, Ontario. They contracted with Apex Property Management on February 7th, 2018 when they signed a contract for a cabinet rehab or renovation with work to commence on April 23rd, 2018 and end on April 27th, 2018.

David Louie paid a 50 percent deposit on February 7th, 2018 in the sum of $775 by way of certified cheque, which was deposited by Ms. Lamontagne into her RBC bank account. The renovations did not commence on the contract start date of April 23rd, 2018 but rather same was pushed back by Ms. Lamontagne until May 1st, 2018 and a discount was offered for Mr. and Mrs. Louie’s patience.

On May 1st, 2018, the kitchen cupboards were removed and a primer coat was put on the cupboard frame. Ms. Lamontagne also reaffirmed to Ms. Louie that the contract would only take until the end of the week to complete. Delays ensued for the Louies and so discounts and additional services were offered as an offset by Ms. Lamontagne. These additional services were not accepted by the Louies as they simply wanted the kitchen cabinets completed. Financial discounts were also offered to the Louies by Ms. Lamontagne for the delays, and again, these were declined.

The Louies grew increasingly frustrated with the ongoing delays and excuses by Ms. Lamontagne and they sought to cancel the contract and requested that their cabinet doors be returned. The Louies even offered Ms. Lamontagne to keep the initial deposit of $775 and return the doors but Ms. Lamontagne did not reply, and instead claimed to Mrs. Louie that the majority of the work was done on their kitchen cabinet doors. These requests were ignored by Ms. Lamontagne and she stopped responding to requests and messages.

The Louies’ renovation was not completed and they did not receive their kitchen cupboard doors back from Ms. Lamontagne. The Louies did not receive any accounting as to how their deposit was spent by Ms. Lamontagne or confirmation that the deposit they paid was spent on their contract. In the end, the Louies hired another contractor to replace their kitchen cupboard doors and complete the renovation project at a cost of over $6,000. Bonnie McAdam resides in Minnow Lake, which is part of the City of Greater Sudbury. Ms.

McAdam contracted with Apex Property Management for a kitchen cabinet renovation on February 23rd, 2018. The contract was signed by Ms. McAdam and Ms. Lamontagne and the dates scheduled for the work were April 9th, 2018 to April 13th, 2018. Ms. McAdam paid a 50 percent deposit of $775 to Ms. Lamontagne on February 23rd, 2018 by way of e-transfer, which Ms. Lamontagne accepted through her RBC bank account. Ms. Lamontagne attended at Ms. McAdam’s home on April 9th, 2018 with another individual to remove the kitchen cabinet doors. No one attended at Ms.

McAdam’s home the balance of the week and the project was not completed by April 13th, 2018 as specified in the contract. Someone next attended at Ms. McAdam’s home in May 2018 to prime the cupboards and the frame was later painted. By the middle of May 2018, Ms. McAdam was concerned with the lack of correspondence from Ms. Lamontagne regarding the status of the project and she requested her kitchen cabinet doors back. The project continued to be pushed back and delayed by Ms. Lamontagne and by June 2018, the project was still not completed. Ms. McAdam was offered discounts by Ms.

Lamontagne for the delay in the project but Ms. McAdam simply wanted her cabinet doors returned. Neither Ms. Lamontagne nor anyone from Apex Property Management completed the contracted project and Ms. McAdam’s cupboard doors were not returned. Ms. McAdam did not receive any part of her deposit back, nor did she receive an accounting of how her deposit was spent or if her deposit was spent on her contract. Ms. McAdam had her boyfriend complete the renovation project as he is a carpenter. Alan Wita and Maureen Wita reside in the City of Greater Sudbury.

Alan Wita signed a contract on March 5th, 2018 with Apex Property Management for a kitchen cabinet refinishing with the contract to commence on April 16th, 2018 and end on April 20th, 2018. Maureen Wita paid a 50 percent deposit of $775 to Ms. Lamontagne by way of e-transfer to Ms. Lamontagne’s RBC bank account. On March 8th, 2018, Alan Wita signed a second contract with Apex Property Management for painting of the kitchen and installation of a backsplash, also to be completed between April 16th to April 20th, 2018. Alan Wita paid a further 50 percent deposit of $300 by way of e-transfer to Ms. Lamontagne.

The Witas did not have e-transfer set up and so Ms. Lamontagne assisted them with setting it up so that they could pay her the deposit. The Witas were to be out of town during the renovations and so they made arrangements with Ms. Lamontagne to pick up the key on April 11th, 2018 and they would send her the alarm code. The Witas’ trip was delayed and so they would not leave until April 16th, 2018. This was not an issue for Ms. Lamontagne in terms of them being home during the commencement of the renovation, however,

the contract did not start on April 16th, 2018. While the Witas were away on vacation, they received information from their daughter that the renovation had still not commenced. Mr. Wita contacted Ms. Lamontagne and was told that the contract was rearranged so that it would be completed while the Witas were away. Mr. Wita did not have a good feeling about the contract and so he cancelled the contract on April 23rd, 2018 and requested a return of his deposit. Ms. Lamontagne agreed to return the deposit to Mr. Wita both verbally and in writing through text message. Ms.

Lamontagne indicated that it would be about 15 days for the deposit to be returned. Mr. Wita attempted to arrange to meet with Ms. Lamontagne to have his deposit returned and even agreed to meet her where she was working so not to take away from her other work or contracts. Ms. Lamontagne attempted to offer additional services to Mr. Wita at a reduced rate and to reduce his bill if the contract was to proceed and this was declined. The Witas did not receive their deposits back from Ms. Lamontagne or Apex Property Management. Ms. Lamontagne stopped responding to the messages from Alan Wita.

Isabella Caron resides in Chelmsford, which is part of the City of Greater Sudbury. Ms. Caron contracted with Apex Property Management to have her kitchen cupboards refinished and repainted and crown moulding installed. Ms. Caron signed a contract with Ms. Lamontagne, who Ms. Caron knew as Stephanie Rees, on March 11th, 2018 and she paid a 50 percent deposit of $675 by e-transfer to Ms. Lamontagne to her RBC bank account. Ms. Lamontagne indicated that she had open spaces and had a deal on for the kitchen cupboard refinishing at that time.

The contract start date was set for May 7th, 2018 through to May 11th, 2018. The contract dates were important to Ms. Caron as her husband was ill at the time and so she wanted to sell the home and move so that she was not burdened with the house. Ms. Caron’s project did not start on May 7th, 2018 as stipulated in the contract, however, on May 8th, 2018, an associate of Ms. Lamontagne’s attended at Ms. Caron’s home and removed all 34 cupboard doors.

The associate returned a few days later and removed the hinges and sanded where the hinges were stuck and left indicating that he would be back in a few days to begin priming and caulking. The renovation did not finish on May 11th, 2018, as per the contract and neither Ms. Lamontagne nor anyone from Apex Property Management attended at Ms. Caron’s home until September 2018. In September 2018, Ms. Lamontagne attended at the home to complete the caulking and priming. Ms. Lamontagne returned again in October 2018 to caulk, prime, and paint so that the only thing left to do was install the cupboard doors. Ms.

Caron made numerous requests to have her cupboard doors returned and she even offered to pick up the doors herself or meet with Ms. Lamontagne to exchange the doors. Ms. Lamontagne would make dates with Ms. Caron to deliver the doors, but the doors were never returned and Ms. Lamontagne stopped replying to messages from Ms. Caron. Ms. Lamontagne did offer for Ms. Caron to have 50 percent of her final bill removed, however, the project was never completed. Ms. Lamontagne also offered additional services to Ms. Caron but these services were declined as she did not require same.

Melody Martin and Derek Martin reside in Espanola, Ontario, which is part of the District of Sudbury. Ms. Martin signed a contract for services with Apex Property Management on March 19th, 2018 for a kitchen cabinet renovation. Mrs. Martin paid the 50 percent deposit of $775 to Ms. Lamontagne on March 19th, 2018 by way of e-transfer, which was deposited into Ms. Lamontagne’s RBC bank account. Ms. Lamontagne’s RBC bank account is located at 1879 Regent Street, Sudbury, Ontario, known as the Four Corners. The service dates for the contract were from April 9th, 2018 to April 13th, 2018.

The timeframes for the contract were important to Ms. Martin as they were having other work done in their kitchen by other contractors. Ms. Lamontagne attended with an employee on April 9th, 2018 to commence the renovation as per the contract. On April 9th, 2018, the doors were taken and Ms. Lamontagne indicated that she would be returning on Wednesday to paint the cabinetry.

Ms. Lamontagne did not attend on Wednesday as advised but did eventually return to apply two coats of paint to the existing cabinetry. Thereafter, delays ensued and messages were not replied to by Ms. Lamontagne with excuses being provided as to why she could not attend and why the cabinet doors could not be installed. Mrs. Martin tried to arrange pickup of the cabinet doors herself as other contractors were scheduled to attend the home to complete work. Mrs. Martin continued to ask for the return of the cabinet doors or to pick them up from May 2018 through to October 2018, but they were never returned. Ms.

Lamontagne did offer to discount their final bill for the delay and to do other work around the Martins’ home at no charge to make up for the delays, but the Martins simply wanted their kitchen cabinets returned. Kimberly Pacan and Matthew Pacan reside in Azilda, which is part of the City of Greater Sudbury. The Pacans contracted the services of Apex Property Management on or about April 5th, 2018 when they met with Ms. Lamontagne, whom they were introduced to as Stephanie Rees, at their home.

A contract was signed that day for a kitchen cabinet rehab or renovation and some additional work to the inside of the cabinets and the corner cabinet. A 50 percent deposit was paid to Ms. Lamontagne on April 5th, 2018 by Ms. Pacan in cash in the sum of $925. The contract specified a start date of April 23rd, 2018 through to April 27th, 2018. The project did not commence on April 23rd, 2018 as set out in the contract as Ms. Lamontagne was running behind on her other contracts. Someone from Apex Property Management attended on April 24th, 2018 and they started mudding and removing the kitchen cabinet doors.

No one returned until April 27th, 2018, when someone from Apex Property Management attended to prime the cupboards. The project was not completed on April 27th, 2018 as set out in the contract and delays ensued. That being said, a second contract was signed on May 2nd, 2018 for the painting of walls and patching the kitchen. A further 50 percent deposit was paid in cash in the amount of $180 by Mrs. Pacan. This contract was completed on June 4th, 2018, and Ms. Lamontagne was again paid cash in the sum of $170. By August 2018, the Pacans’ initial contract was not completed despite repeated assurances from Ms.

Lamontagne that she would be attending to complete the project. The Pacans also asked for the return of their kitchen cabinet doors and even asked to pick up the doors. These requests were ignored by Ms. Lamontagne. The Pacans received no accounting of how their 50 percent deposit was spent or if their deposit was used for their contract. The total extent for the work completed to the Pacans’ home was some priming and painting of the kitchen cupboards and drawers. Discounts and additional work were offered to the Pacans by Ms. Lamontagne for their continued delay and these offers were declined.

Debbie Langlois resides in the City of Greater Sudbury, Ontario. Ms. Langlois contracted with Apex Property Management to have her kitchen cabinets refinished and additional mahogany sheeting to be added to the damaged areas. Ms. Langlois met with Ms. Lamontagne at her home and executed a contract on April 15th, 2018 and paid a 50 percent deposit in the sum of $825 by way of e-transfer, which was accepted by Ms. Lamontagne in her bank account at RBC. The contract dates were set for May 21st, 2018 through to approximately May 25th, 2018. Ms. Langlois attempted to confirm her contract dates with Ms.

Lamontagne on a number of occasions and she was advised that Ms. Lamontagne was only one day behind. Ms. Langlois continued to attempt to confirm her contract dates and Ms. Lamontagne offered Ms. Langlois a $200 discount if she could push her contract back one week. The contract continued to be delayed and so Ms. Langlois cancelled her contract on May 28th, 2018 and requested a return of her deposit. Ms. Langlois’ deposit was not refunded by Ms. Lamontagne, despite multiple requests and confirmation of same by Ms. Lamontagne. Correspondence to Ms. Lamontagne by Ms.

Langlois subsequently ceased and any messages from Ms. Langlois went unanswered. Tristen MacNeil resides in Dowling, Ontario, which is part of the City of Greater Sudbury. Ms. MacNeil signed a contract with Apex Property Management on April 17th, 2018 for a cabinet rehab with the project to commence on May 14th, 2018 and to be completed

approximately on May 18th, 2018. Ms. Lamontagne indicated to Ms. MacNeil the reason for the approximately completion time was because it would depend on the absorbency of the paint. Ms. MacNeil expressed to Ms. Lamontagne that she wished to list the home for sale in June 2018 so the completion date was important. On April 17th, 2018, Ms. MacNeil paid a 50 percent deposit to Ms. Lamontagne via e-transfer in the sum of $775 which was accepted by Ms. Lamontagne into her RBC bank account. Ms.

MacNeil was having second thoughts about proceeding with the contract as she had seen poor reviews about the company on social media and she raised her concerns to Ms. Lamontagne and wished to cancel the contract. Ms. MacNeil was assured by Ms. Lamontagne that this was her ex-partner’s ex-girlfriend making comments on social media about the business and that the delays were as a result of staffing issues that were now rectified. Ms. MacNeil again confirmed the timeframe and she was reassured by Ms. Lamontagne that at the most, there would be a delay of two days depending on absorbency.

On May 14th, 2018, the start date of the contract, neither Ms. Lamontagne nor anyone from Apex Property Management attended to commence the project. On May 28th, 2018, Ms. Lamontagne attended to take the cupboard doors and apply one coat of paint to the cupboards. Ms. Lamontagne returned on May 30th, 2018, to apply a second coat of paint to the cupboards. At that time, Ms. MacNeil indicated that she wanted to do a whole kitchen renovation but decided just to do the cupboards. Ms. Lamontagne and she discussed a counter refinish and a backsplash, which would be an add-on at no cost to Ms. MacNeil. Ms.

Lamontagne applied a coat of paint to the counter and a stick-on backsplash. This is the extent of the work that was done on Ms. MacNeil’s contract. Ms. MacNeil attempted to contact Ms. Lamontagne regarding the completion of the contract and she was met with excuses as to why she could not attend. Ms. Lamontagne offered to discount the balance of the bill, however, the project was not completed and Ms. MacNeil’s cupboard doors were not returned. Despite repeated requests, messages went unanswered by Ms. Lamontagne. Ms.

MacNeil did not receive any part of her deposit back, nor proof of how her deposit was spent and no accounting of how the deposit was spent in relation to the work done at her home. The lead investigating officer in this matter was Detective Constable Chantal St. Martin from the Criminal Investigations Fraud Unit, Financial Crimes. Detective Constable St. Martin first became involved with the matter involving Ms. Lamontagne on or about May 14th, 2018 when she received information from one of the complainants, Addis Edwards. Detective Constable St. Martin initially contacted Ms.

Lamontagne via telephone on July 18th, 2018 and confirmed to Ms. Lamontagne that she was in the process of investigating the matter and that 14 complainants at that time had come forward stating one of three complaints:

(1) The complainants have asked Ms. Lamontagne to do work for them and it has not been done;

(2) Ms. Lamontagne has their cupboard doors;

(3) The complainants have paid Ms. Lamontagne to do work and requested a refund and she has not given the money back. Detective Constable St. Martin did not provide Ms. Lamontagne with the names of the complainants but indicated that Ms. Lamontagne should check her records. Detective Constable St. Martin was leaving for holidays and would be back on July 31st, 2018, and when she got back from holidays, Detective Constable St. Martin would determine which matters were settled as she advised the complainants to contact her if their matter was settled. Thereafter, she would be in touch with Ms.

Lamontagne in early September 2018 to follow up. During the course of her investigation, Detective Constable St. Martin received information from the complainants who testified at trial that they all signed contracts with Ms. Lamontagne between February 2017 to April 2018. Detective Constable St. Martin gave evidence that her standard procedure for investigating fraud complaints is to receive reports and investigate. In this case, her grounds were formed after a great deal of investigation which included meeting with Ms. Lamontagne on two occasions. Detective Constable St.

Martin gave evidence that her grounds were not formed from a review of any social media platforms and unverified individuals.

Ms. Lamontagne was first arrested on October 3rd, 2018, with a promise to appear on November 14th, 2018, and then a subsequent arrest on February 12th, 2019 as further information was received and other complainants came forward after October 3rd, 2018. Ms. Lamontagne testified at trial that she started her company in her basement. She was married at the time and so her ex-husband helped with things in the background, such as the books. Ms. Lamontagne testified that her marriage ended in or about 2016 because it was abusive. The abuse in the marriage resulted in criminal charges being laid against Ms.

Lamontagne’s ex-husband in or about September 2016 and the separation issues took two years to resolve. Ms. Lamontagne dove into her work during this time, working 16 to 17 hours a day. Ms. Lamontagne’s doctor wanted her to take time off but she could not do that to her clients. Ms. Lamontagne stated she lost everything she worked for in December 2018, such as her home and vehicle, but she refused to claim bankruptcy. Ms.

Lamontagne indicated that she finished 47 projects herself with no staff because she knew she had to keep pushing through and individuals depended on her, such as the low income families she was working for for free. Ms. Lamontagne stated that it was difficult for her to go through everything she had to endure, deal with, and move past, while nothing happened to her ex-husband. Ms. Lamontagne’s children were ridiculed at school. There was a Facebook page made about her, which included Detective Constable St. Martin’s extension for people to call about her business.

People were calling her a crook and comments were being made that the police would take care of her. Ms. Lamontagne could not provide dates of significance to the Court as she cannot recall dates unless she writes them down. Ms. Lamontagne was hospitalized for a week in the intensive care unit as she attempted to take her own life on or about March 18th or 19th, 2018. This date was corrected by Ms. Lamontagne to be March 22nd, 2018 as she was able to find a screenshot of her hospital wrist band with the picture date being March 22nd, 2018. Ms.

Lamontagne did have a business account for Apex Property Management at Scotiabank in 2017 and she closed this account and opened a subsequent bank account with RBC in 2017 through to 2018, and this was a personal account in which she cashed or deposited the 50 percent deposits for her contracts. Ms. Lamontagne gave evidence that she was taught that 50 percent deposits were the standard in the business. Further, she kept on taking on new contracts despite multiple contracts being outstanding at the time to keep the flow of work consistent. Ms.

Lamontagne agreed that the prices she offered for her services were well under the industry standard by 25 to 40 percent and she would lose money on the contracts because the contracts took longer than the five days she quoted. Further, the contracts were costing her more in product as the paint was not absorbing for some of the doors and in other situations, doors would be moved around the shop, resulting in damage and having to be repainted. As such, Ms. Lamontagne was barely making any profit or taking a salary from the business for herself as she would pay staff and material costs first. Again, Ms.

Lamontagne did not provide any record by way of e- transfer, payroll, or otherwise to confirm payments to staff. Records or receipts to show payment for materials were not provided other than a few transactions contained within Ms. Lamontagne’s banking records. Ms. Lamontagne indicated that she rented a shop in Garson, Ontario, which is part of the City of Greater Sudbury, so that she could work on multiple kitchen cabinet door contracts at a time rather than one contract at a time, as was the case when she worked in her basement. Ms.

Lamontagne did not provide the address of the shop to any of the complainants when requested as other individuals, who were not contractors with insurance, could not attend at this location as directed to her by the owner of the shop. The address of the shop was not provided by Ms. Lamontagne at trial, although she did indicate that it was near the Total Car Centre towards the end of Falconbridge. Ms. Lamontagne stated that she did not have a specific accountant for Apex Property Management but she did get help from a friend from time to time and would speak to people through other friends to obtain information.

Ms. Lamontagne’s release order after being charged came into effect on October 3rd, 2018, and then a second undertaking was given on February 12th, 2019, wherein she could no longer complete the work on the outstanding contracts given the no contact order with the complainants. Ms. Lamontagne stated throughout her evidence that she had no intention of not completing her contracts or returning the outstanding

deposits and she still intends to do so. Further, she sees this matter as a civil matter and not a criminal matter. Moving to the legislation and case law, s.380(1)(

a) of the Criminal Code states: “Everyone who, by deceit, falsehood, or other fraudulentmeans, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not,of any property, money, or valuable security or any service, {

a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding 14 years, where the subject-matter of the offenceis a testamentary instrument or the value of the subject matter of the offence exceeds five thousand dollars; or {

b) is guilty (

i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or (ii) of an offence punishable on

summary conviction, where the value of the subject matter of the offence does not exceed five thousanddollars.” The case of R. v. Théroux (SCC), [1993] 2 S.C.R. 5, 79 C.C.C. (3d) 449; R. v. Zlatic (SCC), [1993] 2S.C.R. 29 as well as R. v. Olan (SCC), [1978] 2 S.C.R. 1175 are the leading cases with respect to addressing the essentialelements of fraud. In R. v. Olan, Justice Dickson sets out the following principals: (

i) The offence has two elements: dishonest act and deprivation; (ii) The dishonest act is established by proof of deceit, falsehood, or “other fraudulent means”; (iii) The element of deprivation is established by proof of detriment, prejudice, or risk of prejudice to the economic interests of thevictim, caused by the dishonest act. In R. v. Théroux, Justice McLachlin, for the Court, sets out: “These doctrinal observations suggest that the actus reus of the offence of fraud will be established by proof of:

(1) The prohibited act, be it

an act of deceit, a falsehood, or some other fraudulent means; and

(2) Deprivation, caused by the prohibited act, which may consist in actual loss or the placing of the victim’s pecuniary interests at risk. Correspondingly, the mens rea of fraud is established by proof of:

(1) Subject knowledge of the prohibited act;

(2) Subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which deprivation may consistin knowledge that the victim’s pecuniary interests are put at risk). Where the conduct and knowledge required by these

definitions are established, the accused is guilty whether he actually intended theprohibited consequence or was reckless as to whether it would occur.

The definition of fraud has been held to mean that “to defraud is to deprive by deceit: it is by deceit to induce a person to act to his or herinjury” or “that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action.” The meaning of falsehood is “for a person to promise to pay cash for the purchase of an item without any intention of honouring thepromise.” The term “other fraudulent means” was held to include mere omission where, through silence, an individual hides from the other personfundamental and essential information.

The silence or omission must be such that it would mislead a reasonable person. This was setout in the case of R. v. Emond (1997), (QC CA), 117 C.C.C. 3d 275 (Que. C.A.) leave to appeal to S.C.C. refused117 C.C.C. (3d) vi. Turning to the analysis, in looking to the elements that the Crown is required to prove, all of the complainants had a written contractexecuted with Ms. Lamontagne on behalf of Apex Property Management for home renovations with the exception of Mr. Treleaven, who

signed a contract but could not locate same. The contracts were all executed in the City of Greater Sudbury with the exception of the Martins, who reside in Espanola, Ontario, which is part of the District of Sudbury, and the deposit paid to Ms. Lamontagne was deposited into her RBC bank account located in Sudbury, Ontario. All 16 complainants identified the accused, as either Ms. Stephanie Lamontagne or Ms. Stephanie Rees, as the person with whom they met and contracted with on behalf of Apex Property Management. All 16 of the complainants paid 50 percent deposits to Ms.

Lamontagne for contracts with Apex Property Management ranging from $300 to $8,475 between February 7, 2017 to April 2018. The transfer of the monies were traced from the complainants’ bank accounts to Ms. Lamontagne’s bank account with Scotiabank or RBC, with the exception of the Pacans, who paid cash to Ms. Lamontagne and same was acknowledged on the contract. The deposits that were received by Ms. Lamontagne in 2017 were deposited into her Scotiabank account. Thereafter, the deposits that were received in 2017 and 2018 by Ms.

Lamontagne were deposited into her RBC personal account as she did not set up a business account. It is clear from the transactions, after cross-examination, in both the Scotiabank account and RBC bank account that while there were transactions that could be associated with the renovation business, there were numerous transactions that were for food; coffee; entertainment; clothing; and personal care items such as haircuts. At no time did Ms.

Lamontagne provide her clients or the Court with an accounting of what part of the deposits that she received from the complainants was used towards their contracts and/or the work that was completed at their homes. All 16 complainants did not have their signed contracts with Apex Property Management completed by Ms. Lamontagne or anyone from Apex Property Management. The complainants did not have their property returned to them, despite requests, and the complainants did not receive a refund of their deposits or a portion of same from Ms. Lamontagne. Ms.

Lamontagne failed to keep appointments made with the complainants to complete their projects and she would not reply to inquiries from them in a timely manner. Furthermore, Ms. Lamontagne was not the person initiating the communications with the complainants to update them or move their projects forward and she eventually stopped responding to inquiries from the complainants about their projects. In applying the evidence heard by the witnesses at trial to this case, Ms.

Lamontagne offered her services for kitchen cupboard “rehabs” or renovations to be completed within one week, or other renovations to be completed within a certain timeframe. The contracts were all executed with specified timeframes as dictated by Ms. Lamontagne and the booking of the contract dates would only be confirmed when the 50 percent deposit was paid, which was due when the contract was signed. Ms.

Lamontagne assured and reassured the complainants who required the contracts to be completed within specified times, despite her knowledge otherwise, which she withheld, that she was behind on multiple contracts at the time of signing and taking on new contracts. All of the contracts in question had taken considerably longer than the anticipated five-day timeframe which she continued to quote. Ms.

Lamontagne testified to the Court that five days for a kitchen cupboard renovation was typical and that she had many satisfied customers whose renovations were completed within the specified contract times, but she was unable to provide any names of these customers. The Court heard no evidence from other customers to demonstrate that these 12 contracts in question before the Court were anomalies. Ms. Lamontagne provided no evidence to the Court about how her business ran and how it operated to give the Court an understanding of why these 12 contracts were not fulfilled.

No evidence was given about the number of contracts that were annually completed by Ms. Lamontagne’s company in 2014, 2015, or 2016, prior to the contracts in issue in 2017 and 2018. As such, I find these statements by Ms. Lamontagne were a fraudulent deceit by falsehood to induce a state of mind so that the

complainants would sign the contracts with her and pay to her the 50 percent deposit. The problem with Ms. Lamontagne’s evidence as a whole is that it lacked any sense of believability as she could not provide any sort of timeline or timeframe in context with the contracts in question. For example, Ms. Lamontagne did state in her evidence that she was hospitalized on or about March 18th or 19th and that she was in the intensive care unit for a week as she attempted to take her own life.

However, on March 19th, she attended and met with Melody Martin and Jeff Martin in Espanola and executed a contract for services and took their 50 percent deposit of $775. Ms. Lamontagne subsequently provided a screenshot dated March 22nd, 2018 of her hospital wristband, which had a notation of “GEN intensive,” but again, there was very little detail provided by Ms. Lamontagne regarding the diagnosis, prognosis, and follow-up. Ms. Lamontagne also gave evidence that after this incident, her memory was affected and so she cannot provide dates or specifics to the Court.

Again, no diagnosis or prognosis was provided to the Court to suggest that this incident affected her long-term or short-term memory in order for the Court to accept these statements as to why her evidence was so broad and general. The evidence given by the city by-law enforcement officer, Ms. Labelle, provided context for the Court in that Apex Property Management was licensed with the city as a business renovator between 2014 to 2016, but failed to renew its business license for 2017, 2018, or currently. Ms.

Lamontagne testified that her ex-husband was the person who ran the “business side” of Apex Property Management and she was responsible for the actual renovations and labour. As such, she simply forgot to renew her license and she did not know how to run a business, despite reminders and phone call to renew from the city’s licensing enforcement office. This explanation does not excuse the fact that Ms. Lamontagne was the sole owner and operator of the business and so the responsibility of renewing the license fell to her. That being said, the issue of Ms.

Lamontagne failing to renew the license does not constitute a fraudulent act, except for the fact that when faced with a direct question from one of the complainants, Addis Edwards, in their discussions prior to Ms. Edwards contracting Ms. Lamontagne’s services about whether or not the business was licensed, Ms. Lamontagne assured her that she was in fact licensed in both the city and the province and attempted to provide references for Ms. Edwards. This goes to the heart of the definition of fraud, which is that by deceit, one induces a person to act to his or her injury. Ms.

Lamontagne essentially blames her personal life for the downward spiral of events with these specific contracts. However, the timeframe of when her personal issues arose was generally in 2016 when she and her husband separated and this was a year to two years prior to the issues arising with the contracts in question from 2017 to 2018. Ms.

Lamontagne referenced an issue with staff as a reason why these contracts were delayed, however, she again provided no evidence about how many employees she typically employed; when the staffing issues arose; how the staffing issues specifically impacted the contracts in question, in order for the Court to link the issue with staff to the timing of the contracts being entered into, starting, or delayed. Furthermore, Ms.

Lamontagne continued to engage and sign contracts for new kitchen cupboard renovations on a five-day timeframe knowing that she did not have the staff to support the existing projects which were already well delayed, let alone complete the upcoming and new contracts she was signing and accepting 50 percent deposits towards. Ms. Lamontagne failed to provide specific details to the complainants as to when their projects would be completed. She failed to keep dates and appointments that she stated she would attend.

She failed to return property when repeated requests for same were made, claiming that she wished to return a completed product. Even when the property was asked to be returned in whatever condition it may be in, she failed to do so. Offers were made by the complainants to retrieve their property at their own time and expense and same was refused by Ms. Lamontagne with claims that the storage location facility was not insured for other individuals to attend. Ms.

Lamontagne believed that she kept her clients abreast of any issues that arose during the course of the renovations and she offered to do additional work at no cost and to discount their final bill. These offers were not accepted by the complainants and it does not negate

any wrongdoing on the part of Ms. Lamontagne. All of the above actions collectively by Ms. Lamontagne apply directly to the actus reus in this case in that Ms. Lamontagne caused deprivation to the complainants through a prohibited act by deceit, falsehood, or other fraudulent means. It does not matter that Ms. Lamontagne states that she intended to complete the contracts or still intends to do so. The fact is, and I find that Ms.

Lamontagne did say and do things that amount to deceit, falsehood, and other fraudulent means and knew that by making these statements and giving these assurances to the complainants that she would or potentially could put the complainants’ financial interest and property at risk, which meets the test of the mens rea in this case. During cross-examination when faced with very specific questions by the Crown, Ms. Lamontagne was evasive and vague and simply did not answer the questions put to her. Further, Ms.

Lamontagne was combative and argumentative in her replies and quite frankly did not provide any reliable evidence to the Court for consideration. All in all, Ms. Lamontagne was an extremely poor historian and despite the Court emphasizing the importance of understanding the timeframe and timeline in this case in connection with the contracts with the 16 complainants, Ms. Lamontagne did not provide any detail. For the reasons already referenced above, I do not believe the evidence of Ms. Lamontagne when applying the first prong of the test as set out in W.(D.) . I do not accept the evidence of Ms.

Lamontagne and I find that her evidence was neither credible nor trustworthy. I have considered whether the evidence of Ms. Lamontagne raises a reasonable doubt about her guilt and I find that it does not. I find that all of the Crown witnesses in this case were credible, specifically in regard to the 16 complainants. They answered all questions put to them by both the Crown and Ms. Lamontagne in a straightforward manner with detailed knowledge and a solid recollection of their involvement and subsequent lack of involvement with Ms. Lamontagne and Apex Property Management.

In all cases, the complainants first met with Ms. Lamontagne from Apex Property Management and they were assured by Ms. Lamontagne that she had been doing kitchen cupboard renovations for a while. They were provided with the standard contract completion time of about five days, but there may be a slight delay of a day or two depending on absorption. Ms. Lamontagne determined the specific contract dates.

She requested a 50 percent deposit the day of signing of the contract in order to hold their spot for the renovation and these commencement dates were typically a month or two in advance of the contract start date. Ms. Lamontagne would also assure the complainants that she or her staff would attend to complete the project but that she oversaw the entire project. The complainants would not hear from Ms. Lamontagne until close to the commencement of the contract and it was typically them reaching out to Ms. Lamontagne to confirm that the contract was still going to proceed.

The start date of the contract was typically delayed. Ms. Lamontagne or her staff would eventually attend and on the first day, whenever that day came, they would remove the cupboard doors and would not show up again to complete work on dates indicated to the complainants. Each of the complainants were able to produce conversation histories between them and Ms. Lamontagne either via text or Facebook Messenger and these conversations were filled with the complainants asking Ms.

Lamontagne when she would be attending; what would be happening next with their project; and when they can expect it to be completed as they were well beyond the anticipated five or so days to complete the project. These conversations eventually turned into the complainants asking for their property back in whatever state it was, or cancelling the contract with a request for the return of their deposit. The evidence of each complainant is accepted beyond a reasonable doubt independent of each other.

I find that the evidence of all of the complainants was credible and reliable and I accept their evidence as to what transpired in their interactions with Ms. Lamontagne. On the totality of the evidence that I do accept, I find that I am not left with a reasonable doubt as to the guilt of Ms. Lamontagne.

Ms. Lamontagne’s replies, if there were any sent by her, were classified by her as being reasons for delay to keep the complainants advised of the process, such as problems with absorption rates of paint or humidity; staffing; or personal circumstances such as being injured, flat tires, and being hospitalized; or having to speak to her accountant to refund a deposit or offering discounts on the final bill or additional services. The Court finds beyond a reasonable doubt that these classifications are simply excuses and diversions by Ms.

Lamontagne to continue to mislead the complainants and induce them to act in a certain manner as contemplated in the commission of a fraud. Ms. Lamontagne claims that this is a case about a female-run company in a male-dominated industry and her attempt to satisfy clients to the company’s own detriment. This is not, in fact, the case before the Court. The issue before the Court is whether Ms.

Lamontagne intentionally used deceit, falsehood, or other fraudulent means to defraud one or more of the 16 complainants of any property, money, or valuable security by failing to complete the kitchen cupboard/home renovation contracts executed by her and the complainants. Ms. Lamontagne submits that the charge is unconstitutional and violates her rights as it requires her to prove that she acted without a guilty mind. No application was brought for the Court’s consideration in this regard and if it had been put forward, I see no merit in such an application.

The burden of proof rests strictly with the Crown beyond a reasonable doubt. For all of the reasons set out above, I am satisfied that the Crown has proven the case beyond a reasonable doubt and I find Ms. Stephanie Lamontagne guilty. ... M A T T E R A D J O U R N E D