R. v. Fitzgibbon, (1990) 107 N.R. 281 (SCC)

• Judge: Dickson, C.J.C., Lamer, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 23, 1990
• Jurisdiction: Canada (Federal)
• Citations: (1990), 107 N.R. 281 (SCC);55 CCC (3d) 449;10 WCB (2d) 111;[1990] 1 SCR 1005;78 CBR (ns) 193;75 OR (3d) 673;107 NR 281;JE 90-803;40 OAC 81;[1990] ACS no 45;76 CR (3d) 378;1990 CanLII 102 (SCC);[1990] SCJ No 45 (QL)

R. v. Fitzgibbon (1990), 107 N.R. 281 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Claude Douglas Fitzgibbon v. Her Majesty The Queen and The Law Society of Upper Canada

(19489)

Indexed As: R. v. Fitzgibbon

Supreme Court of Canada

Dickson, C.J.C., Lamer, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin, JJ.

May 17, 1990.

Summary:

A lawyer defrauded 26 clients. The clients were partially compensated by the Law Society of Upper Canada. The lawyer pleaded guilty to charges involving 19 of the clients. When the lawyer was sentenced, a client and the Law Society applied for an order of restitution under s. 725 of the Criminal Code. The client claimed $45,000.00 in addition to the $25,000.00 paid by the Law Society. The Law Society asked for compensation in the amount of $359,204.28. The trial judge granted the application. The lawyer appealed. The lawyer submitted that because he was an undischarged bankrupt, the order was invalid because the trial judge failed to obtain leave from the bankruptcy court before making the order.

The Ontario Court of Appeal, in a decision not reported in this series of reports, dismissed most of the appeal. The lawyer appealed.

The Supreme Court of Canada dismissed the appeal.

Bankruptcy - Topic 3626

Creditors - General - Claims - General - What constitutes a provable claim - Fraud - [See second Criminal Law - Topic 5792].

Criminal Law - Topic 5791

Punishments (sentence) - Restitution - General - Bankrupts - A lawyer pleaded guilty to fraud - As part of the sentence, the court made a restitution order under s. 725 of the Code - The lawyer was an undischarged bankrupt with minimal assets - The Supreme Court of Canada affirmed the order - The court stated that the claims of the victims of fraudulent acts should be paramount - While the means of the accused person should be taken into account when the court is considering making an order, it should not be the controlling factor - The court also noted that claims arising from a fiduciary's fraudulent conduct survived the discharge - See paragraphs 20 and 21.

Criminal Law - Topic 5792

Punishments (sentence) - Restitution - When appropriate - Section 725 of the Criminal Code, R.S.C. 1985, c. C-46, allowed a court to make a restitution order as part of the sentence - The Supreme Court of Canada adopted the observation of Laskin, C.J., in R. v. Zelensky, [1978] 2 S.C.R. 940; 21 N.R. 372, and stated that the provision could only be used "when the amount can be readily ascertained, and only when the accused does not have an interest in seeing that civil proceedings are brought against him in order that he might have the benefit of discovery procedures and the production of documents" - See paragraph 13.

Criminal Law - Topic 5792

Punishments (sentence) - Restitution - When appropriate - Bankrupts - Section 725(1) of the Code allowed the court to make a restitution order as part of a sentence - The accused (an undischarged bankrupt) submitted that the order made against him was invalid because the court failed to obtain leave from the bankruptcy court as required by s. 49(1) of the Bankruptcy Act - The Supreme Court of Canada affirmed the order - The court observed that leave from the bankruptcy court was only required when the beneficiary sought to enforce the order under s. 725(2) by filing with the Superior Court - See paragraphs 21 to 30.

Criminal Law - Topic 5794

Punishments (sentence) - Restitution - Person aggrieved - Section 725 of the Criminal Code allowed the court to order an accused to compensate a "person aggrieved" who makes application for restitution - The Law Society of Upper Canada compensated clients defrauded by their lawyer - The Law Society applied for a restitution order when the lawyer was sentenced - The Society claimed it was subrogated to the rights of "aggrieved persons" both at common law and under the Law Society Act - The Supreme Court of Canada affirmed the trial court's decision to grant the Law Society's application - See paragraphs 32 to 35.

Cases Noticed:

R. v. Zelensky, [1978] 2 S.C.R. 940; 21 N.R. 372, refd to. [para. 12].

R. v. Scherer (1984), 5 O.A.C. 297; 15 C.C.C.(3d) 30, refd to. [para. 17].

Lévis Automobiles Inc., Re; Gingras v. Cour des Sessions de la Paix, [1973] C.A. 670; 12 C.C.C.(2d) 182, refd to. [para. 29].

Statutes Noticed:

Bankruptcy Act, R.S.C. 1970, c. B-3, sect. 49(1) [paras. 4, 6, 22, 25, 27]; sect. 148 [paras. 7, 21].

Criminal Code, R.S.C. 1970, c. C-34, sect. 49 [para. 4]; sect. 653 [paras. 4, 5, 26, 27, 30, 32].

Criminal Code, R.S.C. 1985, c. C-46, sect. 69, sect. 725 [para. 4].

Law Society Act, R.S.O. 1980, c. 233, sect. 52(7) [paras. 5, 34].

Authors and Works Noticed:

Duncan and Honsberger, Bankruptcy in Canada (3rd Ed. 1961), p. 4 [para. 23].

Law Reform Commission of Canada, Restitution and Compensation, Fines, Working Paper No. 5 (1974), p. 7 [para. 16].

Counsel:

Peter-Paul E. Du Vernet, for the appellant;

Brian Gover, for the respondent;

Stephen E. Traviss and Heather A. Werry, for the intervenor.

Solicitors of Record:

Peter-Paul E. Du Vernet, Toronto, Ontario, for the appellant;

Attorney General for Ontario, Toronto, Ontario, for the respondent;

Law Society of Upper Canada, Toronto, Ontario, for the intervenor.

This appeal was heard on January 23, 1990, before Dickson, C.J.C., Lamer, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin, JJ., of the Supreme Court of Canada. The decision of the Supreme Court of Canada was delivered on May 17, 1990, in both official languages, by Cory, J.