R. v. Rutenberg, 2013 BCSC 2215

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Rutenberg, 2013 BCSC 2215 Date: 20130621 Docket: 37349-2 Registry: Courtenay Regina v. Victoria Ann Rutenberg Before: The Honourable Mr. Justice Baird Oral Reasons for Judgment Counsel for Crown: B.D. Morrison Counsel for Defence: A.W. McGarvey, Agent for D.J. Marion Place and Date of Trial/Hearing: Courtenay, B.C. June 11,12,13,14,17 and 18, 2013 Place and Date of Judgment: Courtenay, B.C.

June 21, 2013 [ 1 ] THE COURT: The accused, Victoria Ann Rutenberg, is charged with three counts of defrauding the Ministry of Children and Family Development (and I will refer to it as the "Ministry" from now on in) of money in an amount over $5,000, contrary to s. 380(1) (

a) of the Criminal Code . [ 2 ] The evidence establishes that Ms. Rutenberg has, for a decade or more, been established in business as a licensed daycare provider in the Courtenay area. From as early as April 1, 2009, and perhaps earlier, she was eligible to receive payment from the Ministry in accordance with its Child Care Operating Funding Program (which from now on in I am going to refer to as "CCOFP"). [ 3 ] CCOFP is a childcare subsidy program under which the Ministry tops up the fees charged directly to parents by daycare service providers.

The amount of the top-up is determined by a tariff fixed from time to time by the Ministry based on the age of each child enrolled and the number of hours per day the child is in care. This tariff is included in every funding agreement between the Ministry and service providers. The goal of the program is to assist in defraying service providers' day-to-day operational costs across so that parents have access to affordable daycare for their children. [ 4 ] In June 2009, the accused was operating three CCOFP licensed daycare facilities in space leased from School District 71. These were as follows:

(1) After School Fun (Cumberland Elementary);

(2) Fun Club After School (Royston Elementary School);

(3) After School Fun Club (Courtenay Elementary School). There was evidence from the principals of each school and from others confirming that it was the accused, Ms. Rutenberg, who ran these daycares.

For ease of understanding and reference, I will refer to each of these daycare operations by location rather than name. [ 5 ] The Cumberland and Royston daycares were closed at the end of June 2009 after School District 71 decided that the space leased to them had to be used for other purposes. [ 6 ] Counts 1 and 2 on this indictment refer to the period between July 1, 2009, and May 31, 2011, during which, the Crown says, the accused continued to bill the Ministry and was paid for childcare services that she did not perform at the closed Cumberland and Royston facilities. [ 7 ] Count 3 refers to the Courtenay daycare, which remained in operation after June 30, 2009, but in respect of which the Crown alleges that between May 1, 2010, and May 31, 2011, the accused overbilled the Ministry by exaggerating the number of children in her care and by claiming that children were cared for at the facility during hours when it was not in operation. [ 8 ] Looking at the indictment, it may be seen that Counts 1 and 2 are identical in every particular and that Count 3 alleges the same criminal wrongdoing as Counts 1 and 2 but between different dates.

I queried counsel about this and confirmed their mutual understanding that Counts 1 and 2 are intended to refer to the alleged defalcations relating to the Royston and Cumberland daycares respectively, and Count 3 is intended to capture the alleged overbilling related to the Courtenay daycare.

My judgment will proceed on the basis of this understanding. [ 9 ] I am going to go into some background now. [ 10 ] In November 2007, in accordance with the Community Care and Assisted Living Act , the Vancouver Island Health Authority (which from now on I will refer to as "VIHA") issued an operating licence to the accused, Vicky Rutenberg, for each of her Cumberland, Royston, and Courtenay daycare facilities. On the face of these licences, Victoria Rutenberg is identified as the licensee with a mailing

address of Box 1146, Cumberland, B.C. The street address of each facility is set out. [ 11 ] For each of the years 2009, 2010, and 2011, the Ministry received applications for renewal of CCOFP eligibility from someone identifying herself as Vicky Rutenberg for each of the Cumberland, Royston, and Courtenay daycares. Each renewal application included the applicant's signature and specified the same addresses for each facility as appear on the licences issued by VIHA to Ms. Rutenberg. [ 12 ] At the top right-hand corner of each renewal application in the

section of the document entitled "Organization Information," which otherwise contains the service provider's name, contact details, and the address of the facility, there were ID numbers specified for each daycare as follows: Cumberland, G-03346-03347; Royston, G-03346-75532; Courtenay, G-03346-72459. [ 13 ] A review of all of the documents adduced at trial suggests clearly to me that the first number, 03346, is ascribed to the licensee or operator of the daycare, in this case, Vicky Rutenberg.

The second number is obviously ascribed to the daycare facility itself, in this case, Cumberland, Royston, and Courtenay respectively. [ 14 ] Once received, the Ministry processed these renewal applications and in successive years produced funding agreements with the following numbers: C10CGP4978, C11CGP6044, and C12CGP1087. These funding agreements were dated April 1, 2009, April 1, 2010, and April 1, 2011 respectively. Each of these agreements purports to be between the Ministry and Vicky Rutenberg of P.O.

Box 1146, Cumberland, B.C., and each of them appears to have been signed by Vicky Rutenberg. [ 15 ] I was told that the Ministry generates thousands of these agreements per year, and the contents are the same in every one of them except for an appendix that refers specifically to the individual service provider and identifies each daycare facility by its name and ID number. [ 16 ] In the case of each funding agreement I have already referred to, the names listed, in order, were: After School Fun, Cumberland, ID number G-03346-03347; After School Fun Club, Courtenay, ID number G-03346-72459; and Fun Club After School, Royston, ID number G-03346-75532.

The appendix specifies the number and ages of children which the service provider is authorized to accommodate, the hours during which each daycare is permitted to operate, and the amount of the subsidy that may be charged for each child. [ 17 ] Once a funding agreement is prepared, the Ministry's standard business practice is to send it to the CCOFP service provider in the mail. The service provider then signs the agreement and mails it back to the Ministry where it is vetted by a member of staff before being passed along for signature to a senior civil servant.

This second signature completes the agreement with the service provider. Once completed, the agreement is "activated" and the service provider can start billing the CCOFP for childcare services rendered. [ 18 ] The person who, on behalf of the Ministry, signed the three funding agreements apparently counter-signed by Vicky Rutenberg was Connie Rebitt, the childcare coordinator for the CCOFP. She had no direct dealings with Ms. Rutenberg. [ 19 ] Ms.

Rebitt explained that daycare service providers participating in the CCOFP invoice or bill the Ministry by means of monthly "enrolment reports" which may be submitted online using a BCeID password and user name. For every month between July 1, 2009, and June 1, 2011, the Ministry received an online enrolment report for each of the Cumberland, Royston, and Courtenay daycares. All of these monthly enrolment reports were received in evidence.

At the top of each one, the identity of the contractor is set out as "3346 Vicky Rutenberg." The facility to which each report referred was either 75532 Fun Club After School (Royston), or 3347 After School Fun (Cumberland), or 72459 After School Fun Club (Courtenay). [ 20 ] Each report contained the notation "client entered," meaning that, in theory at least, the claims made in it were entered by the contractor or service provider.

These numbers are, of course, the same as those set out in the top right-hand corner of the annual funding renewal applications, apparently signed by Vicky Rutenberg, to which I have already referred. [ 21 ] Furthermore, the heading of each enrolment report specified the applicable funding agreement between the Ministry and Vicky Rutenberg for the month and year in which the report was submitted. That is C10CGP4978 for fiscal 2009, C11 CGP6044 for fiscal 2010, and C12CGP1087 for fiscal 2011.

It bears emphasis and repetition that both Cumberland and Royston daycares had been closed and the enrolment reports that purported to relate to them after June 30 of 2009 were completely and wholly false. [ 22 ] As for the Courtenay daycare, between the dates set out in Count 3 of the indictment - and to remind everyone that is between May 1, 2010, and May 31, 2011 - the Ministry received enrolment reports billing for numbers far in excess of the maximum 40 children permitted by the VIHA licence and the terms of the relevant funding agreements between the Ministry and Vicky Rutenberg for that facility.

According to these reports, as well, it was represented that many children stayed in care for over four hours per day, and that the facility was open five days per week, 52 weeks per year. [ 23 ] However, I heard evidence from Lindsay Jamieson, who worked in the Courtenay daycare from June 2010 to July 2011. She said that the facility was only open between 2:30 and 5:30 p.m. and, on average, only 10 children were in care on any given day, and sometimes fewer, although she allowed that on certain days it might have been as many as 15.

This evidence was corroborated by the school principal, Kyle Timms, who never saw more than 10 children in the daycare, and a VIHA inspector named Paula Avender, who inspected the facility approximately five times between September 2010 and June 2011 and said she saw between two and 10 children on-site on each visit. Ms. Jamieson also testified that not long before she was laid off in 2011, Ms.

Rutenberg said to her, "If anyone calls asking about our hours, tell them that we open earlier in the day and close later in the evening." [ 24 ] Despite the fact that the Cumberland and Royston facilities had closed and that obviously inflated sums were being billed for the Courtenay facility, month after month the Ministry approved the enrolment reports and paid the sums claimed for all three daycares. The reports were received by a CCOFP program administrator named Tom Krol before being approved for payment by Connie Rebitt. Mr. Krol works in Victoria and never met Ms.

Rutenberg, but spoke on the phone to someone identifying herself by that name, he said, approximately four times per year, usually about whether her enrolment reports had been approved for payment.

[ 25 ] Payment was made by means of a single monthly cheque for all three enrolment reports. In the 23-month interval between July 1, 2009, and May 31, 2011, I was told that four of these monthly cheques were withheld and the amounts were paid directly to Ms. Rutenberg's creditors. This happened in July and August of 2009 and January and March of 2010. The other 19 cheques were made out to Victoria Rutenberg, P.O. Box 1146, Cumberland, B.C., and delivered by mail to that address.

Other than the cheque for October 2009 which, for some unexplained reason included a small overpayment of $425.75, the Ministry cheques issued for each month were made out in precisely the amounts claimed in the related enrolment reports apparently filed by contractor 3346, Vicky Rutenberg. [ 26 ] During the material time, Ms. Rutenberg did her banking at the CIBC at its Cliffe Avenue branch here in Courtenay. From 2008 until 2012, this branch was managed by Ms. Sheri Serafini. Ms. Serafini knew Ms. Rutenberg by sight and dealt with her personally on a number of occasions. It was Ms.

Serafini who eventually blew the whistle on Ms. Rutenberg in June 2011 by alerting VIHA, the Ministry, and the local RCMP to her suspicious banking activities and behaviour. [ 27 ] Before things got to that point, however, Ms. Serafini testified that for "months and months and months" Ms. Rutenberg had been coming to the branch with large government cheques. When asked what she meant by this, Ms. Serafini clarified that Ms. Rutenberg's dealing with such cheques had been going on since not long after she took over as branch manager in 2008. Ms.

Serafini said that tellers sometimes sought her approval to cash these cheques because they were in amounts, usually over $20,000, that exceeded the tellers’ cash limits. In a manner which Ms. Serafini now candidly concedes might have been negligent, she authorized her tellers to cash these cheques on occasion. [ 28 ] Eventually, however, Ms. Serafini began to be concerned about what Ms. Rutenberg was up to. She began to notice a pattern in which Ms.

Rutenberg would attend the branch with a large cheque, endorse it to cash, deposit a small sum in her own bank account, and use the remainder to negotiate a bank draft payable to an outfit called "Backyard Environment." A couple of days later, Ms. Rutenberg would return to the branch with the same draft. She would cash it, take an amount of money from the proceeds, and negotiate a second draft with the balance made payable to the same payee.

She would return on subsequent days and repeat this procedure until all the money from the original Ministry cheque was used up. [ 29 ] On December 14, 2010, and again on January 10, 2011, Ms. Serafini dealt with Ms. Rutenberg directly and authorized this manner of dealing with two government cheques. The first of these was dated December 7, 2010, in the amount of $20,832.30. The second one was dated January 7, 2011, in the amount of $22,826.44.

I will repeat that these are the exact amounts invoiced to the Ministry in the enrolment reports submitted electronically by contractor 3346, Vicky Rutenberg, for childcare services ostensibly provided at the Cumberland, Royston, and Courtenay daycare facilities during the months of November and December of 2010 respectively. [ 30 ] On each of these occasions, Ms. Rutenberg endorsed the cheque with her signature and Ms. Serafini initialled it, indicating that she had witnessed the signature and approved the cashing of the cheque and the negotiation of a bank draft.

I pause to note that of all the cheques apparently created by the Ministry and issued to Vicky Rutenberg during the time period covered by the indictment, there were seven in addition to these two that appear to have been endorsed by the same signature. The remainder of the cheques were unendorsed. [ 31 ] During her dealings with Ms. Rutenberg on January 10, 2011, Ms. Serafini asked her, "Why are you doing this?" referring to her practice of using the cheques to purchase bank drafts. Ms. Rutenberg responded that there was a postal strike on and she needed to pay her mortgage. This explanation seemed odd to Ms.

Serafini because the postal strike had been in progress only for a couple of weeks and Ms. Rutenberg had been handling large government cheques in this way for months. [ 32 ] Later on, in June of 2011, Ms. Serafini saw Ms. Rutenberg panhandling on the street. She appeared to be intoxicated. Ms. Serafini knew that Ms. Rutenberg was in the business of running daycares and was concerned about her fitness to do so. She also considered Ms.

Rutenberg's recent unusual banking activities and decided that she had better raise the alarm, which she did by telephoning VIHA, the Ministry, and eventually the police. [ 33 ] An investigation was initiated by Constable Biollo of the Courtenay RCMP. He set about the business of speaking with Ministry officials, taking witness statements, collecting and analyzing the funding applications, funding agreements, enrolment reports, and the cheques issued to Ms. Rutenberg that I have already referred to.

He was assisted in these tasks by Susan Coyle, the manager of the Ministry's Verification and Audit office. [ 34 ] By October 18, 2011, Constable Biollo felt that he had enough evidence to arrest Ms. Rutenberg. He went to her house. He told her he was going to arrest her for fraud relating to her daycare businesses. Ms. Rutenberg's young child was at home at the time, so Constable Biollo arranged for Ms. Rutenberg to come to the Courtenay RCMP station to be dealt with later. This happened on October 25, 2011, when Ms.

Rutenberg was arrested, booked, fingerprinted, photographed, and released. [ 35 ] Between those two dates, on October 21, 2011, at approximately 12 noon, Tom Krol, the CCOFP program administrator, received the following message on his office phone, which was recorded, transcribed, and submitted in evidence. It went as follows: Hi Tom, It's Vicky Rutenberg speaking. It's Friday it's ah 12 o'clock. Umm (inaudible) maybe you're out for lunch.

Anyway I'm finally, I'm finally reaching ya I kind of you know (inaudible) get myself in some trouble here Tom so I want to try resolve with you and and hopefully I can pay back some money and ah all will be well. I pray.

Umm anyway I am hoping it hasn't gone too far and I appreciate if you can phone me [the numbers are given] and ah hopefully I can just make payment arrangements and ah and resolve this ah issue before [it] goes any further, umm and I apologize Tom and hopefully you're not in trouble and ah and anyway let's ah lets get in touch and figure something out for me that would be great if I could do that. (inaudible) I appreciate it. Thanks bye bye. Mr. Krol passed this message along to Susan Coyle. Ms. Coyle directed that any future communication from Ms.

Rutenberg should be referred to her. [ 36 ] On the same day, October 21, 2011, just before 4 o'clock, a phone call was transferred to Ms. Coyle from a person identifying herself as Vicky Rutenberg. Ms. Coyle made notes of this conversation as soon as she hung up, and those notes were typed and produced in evidence. They say as follows:

Friday, October 21, 2011 3:59PM I received a telephone call from a person who identified herself as Vicky Ruteberg [sic]. I identified myself as the Acting Manager of Verification and Audit for MCFD Child Care Programs and asked how I could help her. She said she was trying to call Tom but they transferred the call. I told Vicky that I instructed the staff in the Child Care Operating Funding Program to transfer any phone calls from her, directly to me. Vicky said, "I did wrong", "I am sorry". "I got myself into a pickle and I am hoping and praying you can help me get out of it".

"I took the money and shouldn't have and I want to set up a repayment plan with you so you can help make it go away." I asked her "Did you speak with Dean Biollo from the RCMP?" She said "yea, but I want to pay it back; I don't have it all but I will pay it if it takes forever". "I want you to help me get out of this pickle." I told Vicki [sic] that the file has been referred to the RCMP and is a criminal investigation; I also said that she could speak with Dean Biollo or crown counsel. I told her that we would be seeking restitution and that the file will be sent to Crown Counsel for charge approval by the RCMP.

She said what should I do? I told her that I couldn't tell her what to do other than that she might want to seek legal advice. She said she was so sorry. Then she said, "Why didn't you come to me right away, in the beginning?" I didn't answer that question, but redirected her to speak with the RCMP. The conversation was short, I said "good luck Vicky", she said "bye." [ 37 ] When Ms. Rutenberg was arrested, she was fingerprinted. She signed a document confirming that the fingerprints were hers. This document was examined by a forensic handwriting expert from Ottawa named Susan McInnis. She compared Ms.

Rutenberg's signature on the fingerprint sheet to those appearing on eight of the nine endorsed cheques and to those found opposite Ms. Rutenberg's name on funding agreements C10CGP4978, C11CGP6044, and C12CGP1087. In Ms. McInnis's opinion, it was "probable" or "likely" that the signatures on the cheques and funding agreements were signed by the same person who signed the fingerprint sheet. In the absence of a larger sample, she said she could not be more precise than that. [ 38 ] The defence called no evidence. [ 39 ] In his closing submission on behalf of Ms. Rutenberg, Mr.

Marion conceded that the Crown had proved beyond a reasonable doubt that Ms. Rutenberg was involved in the management and operation of the Cumberland, Royston, and Courtenay daycares; that the Ministry cheques referred to in evidence were issued to Ms. Rutenberg; that the cheques were for amounts based on false information contained in the monthly enrolment reports referable to those daycare facilities; that the various CCOFP funding applications and funding agreements were probably signed by Ms. Rutenberg; and that Ms. Rutenberg had probably negotiated the cheques, though Mr.

Marion noted and emphasized the absence of any evidence adduced about Ms. Rutenberg's bank account activity during the material time showing deposits, withdrawals, and so on. [ 40 ] However, Mr. Marion argued, the Crown adduced no evidence to show that Ms. Rutenberg had registered for a BCeID user name or password, or had access to the CCOFP billing system, or that, if she had, she inputted the information set out in the fraudulent enrolment reports, or instructed anyone to do so on her behalf, or that access to the system was exclusive to Ms.

Rutenberg and not available to people working with or for her. [ 41 ] Mr. Marion argued that there were other people who may have submitted the fraudulent enrolment reports. He made specific reference to Louis Bortoletto and Kristina Lagadyn, who are named in Ms. Rutenberg's VIHA licences as managers of the Courtenay and Royston daycare facilities respectively. He also emphasized the evidence of Lindsay Jamieson, Ms. Rutenberg's employee at the Courtenay daycare, who testified that she had received a favourable response from Ms. Rutenberg when she expressed an interest in learning how to do the billings. Ms.

Jamieson also testified that someone named Brandi did some of the billings. [ 42 ] Mr. Bortoletto, or "Bud" as he was often referred to by witnesses, was clearly in business with Ms. Rutenberg. Through Ms. Coyle of the Ministry, a document was produced in evidence indicating that as far back as 2001, Ms. Rutenberg and Mr. Bortoletto ran a Courtenay daycare called "After School Fun with Vicky and Bud." They were also in a marriage-like relationship which produced, I was told, a son named Gage. [ 43 ] A number of witnesses agreed that Mr. Bortoletto was actively involved in Ms. Rutenberg's businesses. Ms.

Jamieson, for example, sometimes referred to the couple collectively when talking about her employment. For example, she said, "I asked them if I could learn how to do the billings," and, "They laid me off." As far as she was concerned, the Courtenay daycare was Ms. Rutenberg's business, but Mr. Bortoletto was clearly a part of it. [ 44 ] On the subject of Mr. Bortoletto, another important witness was Chuck Morris, who was director of operations for School District 71 from 2007 to 2011. He confirmed that Ms. Rutenberg was in business with Mr.

Bortoletto and that when the School District took the decision to close down the Royston daycare, Mr. Bortoletto came up with the idea of creating new space for it by building a portable facility to be dropped on the Royston Elementary School grounds. The District agreed to this proposal and the portable building was duly constructed and delivered. [ 45 ] Having made all this effort, however, months passed without any effort by Ms. Rutenberg or Mr. Bortoletto to re-establish the Royston daycare. The portable building stood empty for as long as 18 months, Mr. Morris told me. Eventually, Mr.

Morris arranged a meeting with Vicky Rutenberg and Bud Bortoletto and told them that if they were not going to use the portable building, the District would buy it from them. Apparently, Ms. Rutenberg did not want to do this, preferring to reopen the daycare. Mr. Bortoletto, on the other hand, was keen on selling, and he tried to drive a pretty hard bargain, too, asking $90,000 for the building. Eventually, Ms. Rutenberg acquiesced in Mr. Bortoletto's plan, and the building was sold for $50,000. [ 46 ] The other significant evidentiary flourish touching upon Mr. Bortoletto was this: once Mr.

Krol, the CCOFP program administrator down in Victoria, was notified that the RCMP had opened an investigation concerning Ms. Rutenberg's businesses, he performed a review of her enrolment reports and came to the conclusion, at long last, that things did not add up. Ms. Rutenberg seemed to be charging for more children in her Courtenay operation than was permissible under her funding agreement. Mr. Krol spoke with Ms.

Rutenberg, or a person identifying herself as Ms. Rutenberg, about this on the telephone, probably in early July 2011. I would emphasize that this phone call was initiated by Ms. Rutenberg, whose reason for calling was to ask why the fees in her most recently submitted enrolment reports had not been paid. Mr. Krol took the opportunity to mention his concern about the numbers, and Ms. Rutenberg passed the phone directly to Mr. Bortoletto because, she told Mr. Krol, “Bud was the numbers expert." This was not the first time Mr. Krol had spoken to Bud, by the way. Mr. Krol asked Mr.

Bortoletto for a detailed breakdown of the number of children attending the Courtenay daycare, and Mr. Bortoletto agreed to provide it. [ 47 ] On July 15, 2011, Mr. Krol received a facsimile transmission at his office, which I find as a fact was handwritten by Mr. Bortoletto. It read as follows: Att: Tom. I apologize for any mix ups. I hope that this will help better to explain our enrolement [sic] during our hours of operation. If this helps clarify our enrolement please let us know A.S.A.P. Our enrolement report will be submitted shortly. Thanks for your patience and understanding.

Bud & Vicky. [phone number given] PS: Have a great vacation. On the second page of this facsimile, there was a document which purported to be an enrolment profile for the Courtenay daycare which, given the evidence of Ms. Jamieson and others, is almost comically fraudulent. [ 48 ] Mr. Marion submitted that there was no direct evidence that Ms. Rutenberg herself made false statements to the Ministry by means of the bogus enrolment reports.

There was no evidence, he said, to suggest that she knew these claims were false when they were made or that she knew she was not entitled to the monies sent to her via cheque every month by the Ministry. [ 49 ] While Mr. Marion acknowledged that the two phone calls to Mr. Krol and Ms. Coyle on October 21, 2011, whose contents I have just read, probably came from Ms. Rutenberg, these fall short of any admission of wrongdoing. They were just as consistent, he argued, with the utterances of an innocent person who recognized that someone associated with her had done wrong and who wanted to make things right.

He placed particular emphasis on the question that Ms. Rutenberg asked of Ms. Coyle: "Why didn't you come to me right away in the beginning?" [ 50 ] In sum, Mr. Marion argued that this was a circumstantial Crown case and that inferences other than the guilt of the accused can and should be drawn from all of this evidence including, most importantly, that Bud Bortoletto was the true villain of the piece. Mr. Marion relied, in making this submission, on the recent decision of Bennett J.A. in R. v. Sunshine , [2013] B.C.J. No. 431 .

I have reminded myself that the Crown's burden in this case is to satisfy me beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts. I have not the least hesitation in saying that the Crown has done this. [ 51 ] I begin with the uncontested fact that after June 30, 2009, the Cumberland and Royston daycares were closed, and only the one in Courtenay remained in operation. Ms. Rutenberg was not permitted to have more than 40 children in her Courtenay daycare facility at any one time.

The maximum daily rate that she was permitted to charge under the CCOFP tariff set out in each of the three funding agreements for 2009, 2010, and 2011 was $5.48 per day child and then only if the child was in care for longer than four hours. She was only permitted to operate five days per week. [ 52 ] The average amount of money that the Ministry sent to Ms. Rutenberg on a monthly basis for the period of time covered by the indictment was over $20,000, meaning over $240,000 per year, and over $900 per business day.

For the Courtenay daycare to have produced revenues of this magnitude, it would have had to accommodate over 160 children at the maximum subsidy for four hours or more every day. [ 53 ] On the evidence of Ms. Jamieson, Ms. Avender, and Mr. Timms, I conclude that it would be generous to suppose that, on average, 10 children were enrolled in the Courtenay daycare. Once again, the highest rate chargeable per child under the CCOFP would have $5.48, but only if each child remained in care for four hours or more.

But since the hours of operation of the Courtenay daycare were only 2:30 to 5:30, that is, under four hours, the maximum daily amount of subsidy per child that could have been billed according to the CCOFP tariff was $2.47, or the princely sum of $24.70 per day, $123.50 per week, $533 per month, $6,396 per year. [ 54 ] I will now turn to the Ministry cheques issued to Vicky Rutenberg and emphasize, first of all, that Ms. Rutenberg endorsed two of them with her signature while dealing directly with Ms. Serafini at the bank. This establishes beyond any shadow of a doubt that on two successive occasions, Ms.

Rutenberg attended the bank to deal with cheques payable to her in amounts in excess of $20,000, amounts to which she could never conceivably have considered herself entitled. [ 55 ] Secondly, as there is no doubt that Ms. Rutenberg signed these two cheques, I have compared them to rest of the endorsed cheques, and have no qualms in saying that the signatures on all of them look much the same. Add to this the obvious fact that the cheques were made out to Ms.

Rutenberg, were sent to her mailing address, and are related to the supposed activities of businesses which she alone was licensed to run, and I can think of no reason whatsoever to doubt that she signed each and every one of them. [ 56 ] The endorsed cheques are for daycare operations ostensibly performed -- the endorsed cheques, that is, the cheques that she signed herself -- are for daycare operations ostensibly performed in September and November 2009, April, July, August, September, November, and December 2010, and February 2011. It follows that I am satisfied beyond peradventure that Ms.

Rutenberg was involved in this caper from early on and was consistently involved throughout. Respecting the cheques that were not endorsed, there is no doubt that they were issued to Ms. Rutenberg and there is no basis that is not speculative for supposing that they were not received by her and dealt with in the same way for her own profit. [ 57 ] In respect of the argument that Ms. Rutenberg did not know that she was not entitled to the money from the Ministry, I would merely observe, once again, that throughout the period of time covered by the counts in the indictment, Ms.

Rutenberg dealt with monthly cheques averaging over $20,000 when she knew very well that she was only due a few hundred dollars. That is a significant fraud, even if I were to accept the possibility that someone else might have completed some or even all of the enrolment reports.

[ 58 ] I find as a fact that it was Ms. Rutenberg who submitted the funding applications and signed the funding agreements for the three daycares in each of 2009, 2010, and 2011. It would be strange if I did not, given the defence concession that Ms.

Rutenberg was involved in the daily operation and management of those facilities when they were running, combined with the fact that she was the VIHA licensee of those same businesses, her mailing address was on them, and the signatures on the documents look much the same as those that appear on all of the cheques. [ 59 ] The 2010 and 2011 renewal applications were in themselves fraudulent as they requested funding for daycare facilities that the accused knew very well had been closed down.

I am totally satisfied that these were wrongly and deceitfully submitted in furtherance of a fraud of which the accused was fully aware and in which she fully participated. I do not for a second doubt that Mr. Bortoletto was deeply involved in this swindle, but this does not in any way limit Ms. Rutenberg's liability. [ 60 ] Regarding the enrolment reports, they were issued in the accused's name under her contractor ID. They identified her facility identification numbers, and referred to businesses that she alone was licensed to run.

Every month for almost two years she accepted large cheques in amounts between $18,000 and $23,000 to which there is no possible way she could ever have considered herself entitled. She did so without any scruple or question. There is no doubt in my mind whatever that Ms. Rutenberg knew precisely what was going on, and whether she, Mr. Bortoletto, or somebody else actually completed the online enrolment reports and pressed send is entirely beside the point. It was all done with Ms. Rutenberg's active involvement, connivance, and approval. [ 61 ] Stand up, Ms.

Rutenberg. [ 62 ] I find you guilty on Count 1 of defrauding the CCOFP of approximately $118,000 by billing for childcare services not performed at the Royston daycare. [ 63 ] I find you guilty on Count 2 of defrauding the CCOFP of approximately $118,000 by billing for childcare services not performed at Cumberland daycare. [ 64 ] I find you guilty on Count 3 of defrauding the CCOFP of approximately $120,000 by overbilling for childcare services at the Courtenay daycare. [ 65 ] Thank you. You may be seated. [ 66 ] That is my judgment. “Baird J.”