Breaking Fraud Cases from Canadian Courts
At Canadian Fraud News, we report on decisions issued by Canadian Courts related to fraud, that are not reported in the main stream media, and that contain legal issues the Canadian public and fraud recovery experts should be aware of. The following is one such story.
On September 14, 2017, the Ontario Superior Court of Justice in Toronto released its decision in in the criminal sentencing of John D’Souza and Peter D’Gama. There is a saying that he who represents himself has a fool for a client. This story chronicles the very unusual and extreme measures of a person who lost perspective in the context of his personal civil litigation, and is now serving three years in jail because of it.
The Underlying Civil Case
John D’Souza and Peter D’Gama were plaintiffs in an action against the vendors and purchasers of a property known as 49 Lake Crescent in Toronto. They have also sued lawyers and other entities associated with the sale of the Property.
In June of 2012 the defendants had pending motions for summary judgment seeking to dismiss the plaintiffs’ action. The motions were returnable on June 14, 2012. Various defendants had previously been noted in default. Some of them had already obtained orders setting aside the default. The defendant Woldanskas had a pending motion to set aside their default, on notice to the plaintiffs.
On June 14, 2012, C. Brown J. adjourned the motions for summary judgment as a result of the fact that material filed on the motions was not in the court file delivered to her before the return of the motion. A new return date was set for April 2013.
On June 19, 2012, the plaintiffs John D’Souza and Peter D’Gama brought a motion, without notice, returnable before Master Glustein for default judgment. There is no record of any disposition of that motion by Master Glustein.
June 19, 2012, was the date the forged judgment was issued. On this date, Justice Penny had been presiding in the Family Court, with a full docket, hearing family law matters. He had not been involved in any civil matters.
The Motion to Set Aside Judgment for Costs against John D’Souza and Peter D’Gama
Sometime later, the lawyer for the principal defendants, received a Judgment under cover letter from the Plaintiffs. The lawyer, recognizing its peculiar nature, took the unusual step of contacting
Justice Penny to ascertain if it was genuine. Justice Penny had the matter brought before him as an urgent motion.
The accused/plaintiffs consented to have the order set aside. The signature on the copy of the judgment appeared to be his. Justice Penny ordered the accused/plaintiffs to return at a later date with the original motion record bearing his endorsement, which would have been made by him on the backing page and the original entered judgment, which would have been returned to them by the court clerk. They were unable to do so.
On December 17, 2012, Justice Penney made the following findings:
1. this matter was never before me, in person or in writing;
2. I had never seen the plaintiffs’ motion record;
3. prior to July 31, 2012, I had never seen the plaintiffs before;
4. if I had seen the plaintiffs’ June 18, 2012, motion record and the requested form of judgment, under no circumstances would I ever have signed it. It grants extraordinary relief, such as exemplary damages, which I do not grant on an ex parte basis. It also grants highly unusual and prejudicial declaratory relief against other defendants in the action;
5. I did not sign the June 19, 2012 judgment;
6. no signed original of the June 19, 2012 judgment has been produced;
7. no signed endorsement on the original motion record has been produced;
8. I find that the plaintiffs, or one of them acting in concert with the other, falsified my signature on the June 19, 2012, judgment by cutting and pasting a copy of my signature from another order or endorsement (unknown) onto this form of judgment;
9. the plaintiffs sent copies of the fake June 19, 2012, judgment to the defendants, representing it to be an authentic, valid judgment of the court. They used the judgment to threaten serious consequences, including criminal proceedings;
10. the plaintiffs also sent copies of the fake June 19, 2012, judgment to three regulatory bodies in support of professional complaints, again, in each case, representing the judgment to be an authentic, valid judgment of the court, including:
a. the Law Society of Upper Canada in respect of a complaint against Linton;
b. the Real Estate Commission of Ontario in respect of a complaint against Helena Pawlowska, Karolina Gill’s mother; and
c. the Financial Services Commission of Ontario in respect of a complaint against Mr. Gill, who is a licensed mortgage broker subject to FSCO jurisdiction.
Criminal Sentencing
The Criminal Court made the following statements as part of its Reason for Sentence:
Mr. John D’Souza is 63. He has been employed as a paralegal since 2010, although suspended by the Law Society of Upper Canada since being charged.
He has a criminal record from January 1997 of attempted fraud, personation with intent, attempt to utter a forged document and forgery. The offences involved him having presented a forged order under the signature of a court registrar for the release of $1.5 million from the court. He was unsuccessful and received a sentence on conviction of 2 years’ incarceration.
Also, he was convicted of fraud and forgery on February 19, 1997, involving an attempted fraud on a bank. Even though Mr. D’Souza received an administrative record suspension, formerly referred to as a pardon, his counsel conceded that by the application of s. 7.2 of the Criminal Records Act, R.S.C. (1985), c. C-47 it ceased to have effect as a result of him being convicted subsequently of an offence under the Criminal Code of Canada.
He was born in Pakistan the youngest of eight siblings and came to Canada with his parents in 1973.
Peter D’Gama, 54 has no criminal record. In the pre-sentence report it indicates he was born in Pakistan and immigrated to Canada with his family in 1970.
Mr. D’Gama has a university education and been employed mainly in the area of technology and customer service. However, he has also been involved in providing immigration and paralegal consultations. His last position held was as a real estate agent.
It is the position of the Crown that Mr. D’Souza should receive a sentence of five years incarceration and Mr. D’Gama three years to emphasize the sentencing objectives of denunciation and deterrence.
Counsel for Mr. D’Souza submits that the appropriate sentence for Mr. D’Souza would be two years less a day, which would be sufficient to meet the sentencing objectives of deterrence and denunciation. He also suggested tht the court should consider a conditional sentence.
Counsel for Mr. D’Gama submits that he should be sentenced to 18 months custody however, as a conditional sentence subject to house arrest conditions.
The most aggravating aspect of the offences committed by the accused is that in forging a judicial officer’s signature and making use of it as it were genuine it was an act that would have served to undermine the public’s trust in the integrity of the administration of justice. Just as perjury undermines the administration of justice, so too or perhaps even more so, does the uttering of a forged judgment. It undermines the trust of the community in the administration of justice
Mr. D’Souza and Mr. D’Gama acted on calculated scheme to manipulate the civil proceedings in their favour, motivated by a desire for personal gain. I note as well that the offenders had the forged order entered by clerks of the court who would have had no reason to consider the signature of Justice Penny to have been forged. In effect the offenders manipulated the system by relying on the trust that parties and court staff have in the litigants to act honourably.
The offenders conduct also added to the costs of the defendants in the civil action by requiring them to bring a motion to challenge the authenticity of the order and to have it set aside. Although costs were ordered against the offenders by Justice Penny, the payment of costs has never occurred
It is an aggravating factor that the accused in a calculated and mean spirited act sought to intimidate the defendants through the spurious declarations of fraud and threatened criminal proceedings in the context of the civil action they initiated. Further, when they submitted the forged judgment to the Real Estate Council of Ontario it was clearly an attempt to jeopardize the professional standing of a non-party to their civil claim
It is an aggravating factor that he was a licensed paralegal and officer of the court, with obligations to the court at the time the offences were committed
Peter D’Gama is sentenced to a term of two years less a day in custody on all counts to be served concurrently as a conditional sentence in the community.
John D’Souza is sentenced to a period of three years in the penitentiary on all counts to be served concurrently.
Full Reasons for Judgment
For the full reasons for judgment, see R. v. D’Souza and D’Gama, 2017 ONSC 5176, Joseph AKA John D’Souza and Peter D’Gama v. Ritchie James Linton, et al. 2013 ONSC 70, and R. v. D’Souza, 2017 ONSC 2231.
Inquiries
For further information on this case, or any other fraud recovery inquiry, contact Canadian Fraud News Inc. at Devin@Canadianfraudnews.com.
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