R. v. Roy, 1994 CanLII 1525 (ON CA)
In the case of the customers, the appellant generated a substantial secret profit for himself at their expense. These customers had every reason to believe that the appellant was acting as a representative of the dealership throughout the transaction. The appellant gave them no indication that the shipping arrangements he was providing were anything but an extension of the sale of the cars and no reason to suspect that they were paying him for this service in addition to his compensation from the sale or his salary. The appellant expressly led them to believe that the monies they paid him to ship the cars were simply the carrying charges of the shippers when, in truth, the appellant was generating substantial profits for his own account. On the appellant's own evidence, he made the shipping arrangements on behalf of his customers. Although the trial judge did not specifically characterize the appellant's relationship with his customers as such, his findings establish the factual basis for a relationship of agency. As an agent, the appellant had a duty to disclose the nature and amount of his personal benefit. Instead, the appellant dishonestly deceived his customers as to the true cost of the shipping arrangements. The dishonest deprivation in this case, therefore, consisted of the secret profit made by the appellant at his customers' expense by arranging these shipments without disclosing that he was receiving compensation for his services. I cannot accept the appellant's submission that his customers received the service they wanted for the price they had agreed to pay, because the customers were not in a position to make an informed choice owing to the appellant's material nondisclosure. Had the true cost of shipping been disclosed, they might well have decided to make their own arrangements.
In the case of the employer, the dishonest conduct of the appellant imperilled its economic interest by exposing it to liability to the shipping companies which, in fact, resulted in Trento Motors paying a sum in excess of $3,000 in order to protect its good name. Additionally, the president of Trento Motors testified that the appellant's conduct had given the dealership a bad reputation in the Estonian community because of the problems arising from the shipping charges. The appellant acted dishonestly towards his employer by engaging in a scheme to generate secret profits for his own account. He engaged in this scheme during the business hours that he was employed as Trento Motors' assistant sales manager, on Trento Motors' premises, with Trento Motors' customers and using Trento Motors' name to make the shipping arrangements. Under these circumstances, it would be reasonable for Trento Motors to expect that the business would be transacted on its behalf. I cannot accept the appellant's submission that Trento Motors suffered no loss from the appellant's conduct because it was not willing to undertake these arrangements on behalf of its customers as it clearly lost over $3,000 which it had to pay the shipping companies after the appellant left.
Accordingly, there was sufficient evidence upon which the trial judge was entitled to find beyond a reasonable doubt that the appellant had defrauded both his customers and his employer. I would dismiss the appeal.