2021 ONCJ 608, 2021 ONCJ 608

CITATION : Ontario (Ministry of Labour) v. Canadian Universal Network Solutions Incorporated , 2021 ONCJ 608 DATE : October 29, 2021 ONTAR IO COURT OF JUSTICE Toronto Region B E T W E E N Her Majesty the Queen in Right of Ontario represented by the The Ministry of Labour --and – Canadian Universal Network Solutions Incorporated, Wendy Thakur, and Antonietta Daneluzzi Before Justice of the Peace Esther N.

Daniel Reasons for Judgment released on October 29, 2021 TRIAL of the defendants for offences contrary to the Consumer Protection Act. ___________________________________________________________________________ J. Ludlow for the Crown K. Wright, Counsel for Antonietta Daneluzzi Y.

Rahamim, Counsel for Wendy Thakur Unrepresented ( Ex-Parte trial) – Canadian Universal Network Solutions Incorporated ______________________________________________________________________________ The Charges: [ 1 ] Canadian Universal Network Solutions ( hereinafter “CUNS”, hereinafter “the corporate defendant”), Antonietta Daneluzzi and Wendy Thakur ( hereinafter “the named defendants”) are charged with 42 offences of Unfair practice, 41 counts of fail to provide refunds and 60 counts of improper contracts all contrary to the Consumer Protection Act, 2002 ( S. O. 2002, Ch. 30 , Sched.

A) (“the CPA”) and its regulations (hereinafter “regulations”).

[ 2 ] There were 43 consumers or consumer couples that alleged the above offences. CUNS was unrepresented and proceeded on an ex- parte basis.

The charges were outlined in three informations 1) Information #4863 999 07 2555, a three count information sworn August 17 th 2007 - referred to as Information number 1 in these proceedings, Information #4863 999 07 2556, a 93 count Information sworn September 28 th 2007 referred to as Information number 2 during these proceedings, and finally Information #4863 999 09 300352 count Information sworn on May 21 st 2009 referred to during these proceedings as Information number 3. [ 3 ] The matters before this court primarily arise from complaints to the Ministry of Government Services where they were investigated, and a determination was made to lay charges.

References are made in this decision to an Investigator Paula Charles who is not only the informant for the three informations, but also collected various statements from the consumers after complaints were made. [ 4 ] During the course of the trial, many consumers referred to the ethnicity of the various CUNS representatives with whom the consumers had interaction leading up to and at the time they entered into the agreement. This decision uses the language that the consumers stated in their testimony and should be considered in the context of the time that they testified.

The evidence should also be considered in the context of the time that it was heard where cellphone and accessibility to the internet and social media was not as prevalent. Admissions [ 5 ] The parties have conceded to the following: i. At all material times CUNS was a corporation, incorporated in Ontario, Canada; ii. That at all relevant times the named defendants were the only officers and directors of CUNS; iii. The Crown concedes that all the parties were provided with copies of the contracts, and; iv.

The court should not consider any evidence with respect to the named defendants and appearing in Small Claims Court. [ 6 ] Mr. Rahim accepts all of the Mr. Ludlow’s submissions on behalf of his client Ms. Thakur. Overview of the Case [ 7 ] The charges before the court relate to accusations that parties committed the offences of

i) Improper contract in relation to Time Share Agreements and Future Performance Agreements, ii) Fail to Refund, and iii) and Unfair Practice. The applicable sections of the CPA were summarized in the Crown’s submissions in paras 4 through 24 of exhibit CCCC to these proceedings. Mr. Rahamim filed his submissions on behalf of Wendy Thakur marked as exhibit BBBB to these proceedings and Mr., Wright filed is submissions on behalf of Antonietta Daneluzzi marked as exhibit AAAA to these proceedings. [ 8 ] The Crown has provided detailed submissions in relation to the law and the evidence.

While defence counsel has provided similarly detailed submissions in relation to the law they were not able to provide in-depth submissions with respect to the evidence. As such, where the court finds it accurate based on the court’s own review of the evidence, portions of the Crown’s submissions as they relate to evidence, have been reproduced in the body of this decision. [ 9 ] No evidence was called by Ms. Daneluzzi and Ms.

Wendy Thakur, that is not to suggest that this is a requirement as it is clear in law that the burden of proof lies with the Crown to prove each count as particularized, beyond a reasonable doubt. CUNS was unrepresented and proceeded an ex-parte basis, the court entering a plea of not guilty on the corporation’s behalf. As such when arriving at a decision in relation to the ex-parte proceeding with respect to CUNS, the court acknowledges that by the nature of the proceedings that evidence to the contrary was not heard. Bankruptcy

[10] Counsel for the named defendants submit that CUNS is now bankrupt. The court finds that it is only relevant that CUNS existed asa corporation during the dates that the offences were alleged to have been committed and not when the informations were sworn. [11] The court agrees with Mr. Ludlow’s submission that no evidence was called to suggest that Antonietta Daneluzzi followed and metthe requirements of bankruptcy. The court only heard submissions regarding bankruptcy and the court is not able to take judicial noticeof any of the requirements of filing for bankruptcy.

Even if there were such evidence, the court finds what is relevant is that AntoniettaDaneluzzi was an officer and director during the dates that the offences were alleged to have been committed, and not when theinformations were sworn. Counsel for the named defendants have conceded that the defendants were, at all material times, officers anddirectors of CUNS and that at all relevant times the corporation entity of CUNS was in existence.

For purposes of this trial, the court isof the opinion that the issues of the timing and filing of CUNS’ bankruptcy has little or no weight with respect to the issue liability underthe CPA. The Consumer Protection Act, 2002, Generally: [12] The court finds that the

summary in the Crown’s submissions, outlined in paras 27 to 34, provides an accurate overview of thenature of the offences enumerated under the CPA. The CPA is a public welfare statute, drafted liberally, to cover all consumertransactions or the person engaging in the transaction with the consumer located in Ontario when the transaction takes place, see: s.2(1);and the enumerated exceptions to this statute are very limited, and clearly articulated under s.2(2). [13] In Seidel v.

TELUS Communications Inc., 2011 SCC 15 , [2011] 1 SCR 531, the majority of the Supreme Court of Canadaconsidered the wording of TELUS’s standard form contract under British Columbia’s Business Practices and Consumer Protection Act(“BPCPA”), particularly its confidential mediation and arbitration clause and a separate clause waiving the right to participation in a classaction, in the context of a class action alleging deceptive and unconscionable practices.

The cell phone corporation had obtained a stay ofproceedings under the Commercial Arbitration Act, but the BPCPA contained a provision that stated that agreements waiving orreleasing rights under the BPCPA are void. The majority of the Supreme Court of Canada held at paragraph 37: As to statutory purpose, the BPCA is all about consumer protection. As such, its terms should be interpreted generously in favour ofconsumers… [14] Similarly, in Schnarr v. Blue Mountain Resorts Ltd., [2017] O.J.

No. 166 (Q.L.), the Ontario Superior Court of Justice held atparagraph 89, “Moving to the specifics of the CPA, its specific and overriding objective is the protection of consumers.” [15] In another ski hill case under the CPA, the Ontario Superior Court of Justice held at paragraph 21 in Woodhouse v. Snow ValleyResorts

(1987) Ltd., 2017 ONSC 18 , [2017] O.J. No. 23 (Q.L.) that the intent and purpose of the CPA is as follows: Consumer protection legislation is inherently consumer-focused as its main objectives are: (

i) protecting consumers, (ii) restoring thebalance in the contractual relationship between suppliers and consumers, and (iii) eliminating unfair and misleading practices. [16] Most importantly, the consumers substantive and procedural rights cannot be waived s.7 of the CPA. Characterization of the types of offences [17] The court will use the term characterization of the offence to discuss the three groups of offences at issue: improper contract, unfairpractice and fail to refund. This is to avoid confusion in relation to the classification of the offences.

The court finds that the Crown’ssummary of the relevant sections, in paras. 3 through 26, and its characterization of the three types of offences is accurate. In fact, itwould appear based upon written and oral submissions, the characterization of the types of offences is not at issue. [18] The consumers who testified at this trial, entered into two types of agreements – time share agreements and future performanceagreements. The agreements are standardized business forms that contain the same (however not identical) standardized information.

These agreements allow a “checkbox”

section on the main page to indicate which services the consumer is interested in as well as an “Additional Terms and Conditions” where specific details to the agreement can be added. This is important as the court finds these agreements were entirely a product of CUNS that were distributed to these consumers, and not agreements where the parties who were present at the time of signing created from scratch, based upon their own discussions. This finding of fact is relevant when dealing with party liability in relation to some offences.

Improper Contract: deficiencies-not containing the information required [ 19 ] Both time share, and future performance agreements are required to contain certain information as per the CPA. Requirements of Time Share Agreements [ 20 ] The requirements for times share agreements are found in s. 26 of the regulations (clauses 1 to 19). Compliance is mandatory as per s. 27 of the CPA and noncompliance constitutes an offence under s. 116(2) of the CPA. Failure to adhere to at least one requirement is all that is required to constitute non-compliance.

Common deficiencies applicable to this case are, but not restricted to the following: the names of persons who solicited, negotiated, and concluded the agreement ( clause 4); specific indication of the place where the agreement was entered into ( clause 6); the recitations required by clause 6; the descriptions and details required by clauses 9,10, and 11; a fair and accurate description of the discounts, benefits (clause 12), pricing details required by clause 13 (i.e. – details regarding yearly fees); the agreement does not particularize the details and amounts of each of the services as per clauses 14 and 15); and details regarding terms and methods of payment of additional charges such as annual fee (clause 18).

It is important to note that throughout the evidence produced in this case, particularly the exhibits that comprise the agreements entered, patent deficiencies exist that are separate and apart from any viva voce evidence. [ 21 ] The court finds there is a difference between a header with the CUNS address visible and a line in the body of the agreement that designates the place where the contract was signed.

Clause 6 of s.26 of the regulations require that the agreement contain “the date on which and the place where the agreement is entered into.” Letterhead customarily provides information where the main office of a particular company is located and not the place where an agreement is entered into.

If there is an agreement where this is lacking the court is more likely to find non-compliance with clause 6 of the regulations. [ 22 ] Many consumers received accompanying documentation at the time or after they entered the contract, some exhibits were marked as “glossy folder” which usually was a compilation of documents received by the consumer. The Crown relied on much of the accompanying documentation as there was not a consensus between the parties that the contents of the “glossy folder” did not comprise part of the agreement.

It is important to note that some, if not all of the agreements, contain a paragraph that states that the membership agreement contains the complete and only Agreement and no other representations, outside of the terms and conditions outlined for the use of each product/service,( oral or written) has been made or relied upon by CUNS. [ 23 ] In the absence of the agreement having a clear and direct appendix making clear reference to a separate and specific document, it would be difficult for the court to find that a separate and non-referenced documentation are part of a particular agreement.

This may be more applicable to clauses 8,9,10, 11,12,13, 14, 15 and 19 which are all clauses that require the supplier to provide detailed information to the consumer. [ 24 ] Clause 8 requires recitation language or “cancellation language” appear in the contract. Clause 8 is specific in the size of font and location of the text that should appear (on the first page or reference in bold clearly on the first page where the text appears). S. 26 (2) of the regulations provides a standard script if you may, entitled “Your Rights under the Consumer Protection Act, 2002”.

A prima facie argument could be made that agreements that lack this language would be deficient and contravene the CPA. None of the agreements filed as an exhibit in this case contained the information required by clause 8. Requirements of Future Performance Agreement [ 25 ] The requirements for a future performance agreement are found in s. 24 of the regulations, compliance is mandatory as per s. 22 of the CPA and violation of this constitutes an offence under 116(2) of the CPA. The requirements for time share agreements are found in s. 24 of the regulations, clauses 1 though to 16.

Unfair Practice: Representations that are false, misleading or deceptive. [26] If a representation is made that is false, misleading or deceptive then that person or entity has engaged in unfair practice as per s.14(1) of the CPA. This is an offence as per section 17(1) of the CPA and constitutes an offence under section 116 (1)(b)(ii). Subsection14 (2) outlines 17 circumstances (often referred to as subsections or clauses) that are deemed to be unfair practices.

As it relates to thecase before the court, primarily clauses 1, 11, and 13, the Crown alleges the CUNS engaged in unfair practice which is prohibited by s.17. It is important to note that unfair practice can be found outside of the listed circumstances.

The Crown must prove beyond areasonable doubt that a representation was made by the supplier, that the representation was false misleading or deceptive as it either i)one of the 17 circumstances or ii) not articulated in the 17 circumstances under the CPA, but is considered to be false, misleading ordeceptive. [27] A supplier may find themselves in contravention of this

section if they, amongst other things, represent that the goods and serviceshave characteristics that they do not have, represent that a specific price advantage exists, when it does not, represent to the consumerthat they are not entitled to a particular right, remedy or obligation when they are. Representations can be made verbally and in writing.The court has found in some circumstances that a representation can be made by virtue the environment and interactions that theconsumer is exposed to that leads them to rely upon the perceived representation.

In this case, some representations are found within the agreements themselves by the contradictory language used, as for example, purporting to provide a 10 day cooling-off period on theface of a document while in the same documents indicating that there is a zero-cancellation policy.

Also purporting that there are norefunds and zero cancellations, in the body of the agreements, clearly violates the rights of consumers in the CPA. [28] These representations are legally false, and were misleading or deceptive for consumers on their face, in clear violation of ss.14(2),clause 13 of the CPA, “A representation that the transaction involves or does not involve rights, remedies or obligations if therepresentation is false, misleading or deceptive.” [29] According to Libman on Regulatory Offences in Canada, Earlscourt Legal Press Inc., looseleaf edition, at page6-27, engaging in anunfair practice by making a false, misleading or deceptive representation to a consumer is a strict liability offence, see: R. v. 984355Alberta Inc. (The Fast Lane), 2016 ABPC 229, [2016] A.J.

No, 1076 (QL). [30] The court is not satisfied that any due diligence or other defence was advanced, to the charges of Unfair Practice, as they relate toproviding the above-noted consumers with time share agreements that contain the zero cancellation and no refunds representations. [31] The court must consider each count independently. R. v. Rankin, 2007 ONCA 127 at para. 34. [32] It is important to note that a consumer relies on the assumption that the supplier they enter into an agreement with will comply withthe law. Mr.

Ludlow provided the following example during his oral submissions: There are situations where a supplier says to a consumer I will construct your deck by August 16th, but there is a monsoon and the if supplier can’t construct it, there will come a point where the supplier knows that they will not be able to fulfill their obligation. It is atthis time, and it is my submission, that the supplier has an obligation to contact the consumer and say, I promised this to be done by thedate, but I cannot do that.

If the supplier fails to do that then the consumer carries on relying on the representation and the supplier, byallowing the consumer to do, is now allowing the consumer to carry on under an understanding that is false, misleading or deceptive.Something that could have been a legitimate or sincere promise at the outset may become a situation where the promise could not behonoured but when that happens -there is an obligation of the supplier to convey that it cannot be honoured so that the consumer is nolonger relying upon the prior promise. [33] The court does not agree with Mr.

Wright’s oral submission that the “sincere promises” that could not be honoured would becomeoffences under the CPA. The CPA provides the rules of engagement for suppliers if they wish to engage in business with consumers.That includes what the suppliers should do to honour their obligations to the consumer. As such the CPA does not seek to capture sincereor earnest promises that could not be met as there is an expectation that the supplier will take action in compliance with the CPA if metwith unforeseen obstacles.

Unfair Practice – Broadness and Kienapple [34] In relations to some counts involving unfair practice Mr. Wright argues in his submissions (paras. 79 and 80) that it

i) relates toconduct if proved, would amount to be a separate offence under the CPA and the regulations, and ii) the scenario could amount to aKienapple situation where the applicable counts should be stayed. [35] The court agrees to an extent with Mr. Wright’s submissions in relation to the broadness of the legislation where a supplier couldbe caught by not only the contraventions of the regulations, but also could be culpable, based on a “factual nexus” of the evidence, undervarious parts of the CPA.

The court does not agree however, that Kienapple Principle applies to any of the offences before the court. [36] The Legislation Act, 2006, S.O. 2006, Ch. 21, Sched. F, provides for General Rules of Construction, particularly sections 64, states: Rule of liberal

interpretation 4(1)

An Act shall be interpreted as being remedial and shall be given such fair, large and liberal

interpretation as best ensures theattainment of its objects. 2006, c. 21, Sched. F, s.64(1). [37] In Kienapple v. R., (SCC), [1975] 1 S.C.R. 729, Mr. Justice Laskin, for the majority, considered whether Mr.Kienapple could be found guilty of both rape and carnal knowledge of a female under the age of fourteen, at the same time, or if the juryshould be instructed to treat the second count as an alternative charge, arising out of the same facts. [38] Mr. Justice Laskin analyzed the principle of res judicata and the maxim nemo debet bis puniri pro uno delicto, tracing both thecommon law history and considering the matter under the principles of statutory

interpretation, and concluded that the charges must betreated in the alternative, since there should not be multiple convictions for the same delict against the same victim, at page 745. [39] The “Kienapple Principle” in Canadian criminal law today stands for the proposition that an accused cannot be convicted ofmultiple convictions for the same, single criminal act, provided there are not any “additional or distinct” elements differentiating betweenthe two offences, see: R. v. Prince, (SCC), [1986] 2 SCR 480 at paragraph 34. [40] Kienapple may not apply if there are

i) different societal interests, In R. v. Petrolo, 2021 ONCA 498 , ii)different victims toa violent offence, and different consequences, R. v. Prince, (SCC), [1986] 2 S.C.R. 480, at pp. 493 to 495 iii) and acontinuing offence, R. v. Prince, (SCC), [1986] 2 S.C.R. 480, at pp. 493 to 495. Continuing Offence: [41] In R. v. Ramage, 2010 ONCA 488 , the Court of Appeal for Ontario considered the application of the Kienapple Principlefor convictions for impaired driving causing death and dangerous driving causing death.

The Court of Appeal upheld the trial judge, whohad found that the impaired driving occurred when the accused entered his car and left the golf course, but the dangerous driving tookplace about half an hour later, when he drove across four lanes of traffic, and found at paragraph 66 that the trial judge was correct thatKienapple had no application, and that the criminal conduct could not be described as a single delict. [42] Similarly, in R. v.

Heaney, 2013 BCCA 177 , the Court of Appeal for British Columbia determined that the offence ofcriminal harassment in the case before it had been a continuing offence, taking place over a period of time, thus forming the factualmatrix of the offence.

The offence of uttering threats was included in the dates of the allegations of criminal harassment, and the offenceswere connected, since the uttering threats was part of the underlying offence of the other offence of criminal harassment, see: paragraph31. [43] Thus, in Heaney, the Court of Appeal for British Columbia concluded that there was a factual nexus between the two offences, butthat it was not sufficient to apply Kienapple, because there must also be a legal nexus between the offences, see paragraph 32.

[ 44 ] The Act is remedial to ensure that the paramount concern is for the

i) protection of the rights of the consumer and ii) preventing the supplier form benefiting from practices that are contrary to the CPA. The court finds that the counts that deal with unfair practice and fail to refund (as they relate to the 10- day cooling period and promises to provide a refund) and fail to refund should not be considered as the alternate of each other.

Primarily, as will be seen with the counts, these types offences arise as an effort by CUNS to attempt to re- negotiate, mislead, misinform or to thwart the consumers attempts to effect theirs rights under the CPA in relation to receiving a full refund. [ 45 ] The court finds this behavior is a “continuing offence”. Furthermore, some of the offences occurred over the course of several months, up to and including a year.

The court finds that in these circumstances the conduct could not be considered as a “single delict” as it was ongoing as long as the supplier did not provide the consumer with the right or remedy they were entitled to. As well, the court finds the offences have “additional or distinct” elements differentiating between the two offences, and deal with different sections of the CPA which constitute the essential elements of the offence. Fail to Refund - The request to cancel and the rights engaged [ 46 ] Sections 95 and 96 of the CPA are automatically engaged when a consumer requests to cancel the agreement.

Section 95 emphasizes that cancellation operates to cancel the agreement itself, all related agreements, all guarantees regarding money payable, security given by the consumer or guarantor, and all credit agreements.

Section 96 specifies that upon cancellation, it is mandatory to refund any payment made regarding the agreement or any related agreement. In the context of this case a supplier is in contravention of these sections if, upon request to cancel the agreement, instead the supplier provides a partial refund, engages in a renegotiation or counter- offer with the consumer, or retains any portion of the monies received under the guise of service or cancellation fees.

The court cannot emphasize enough that a refund in the meaning of the CPA as it relates to the counts in this case, means a full refund. [ 47 ] The consumer can convey their request to cancel in any way, it does not have to be in writing as per s 92 (2). Where the notice is in writing s. 92(4) asserts that when not served personally, the notice is deemed to be given when sent.

The consumer “may send or deliver the notice” can be sent to the address of the agreement, to the address of the on file with the Ministry, or to an address of the supplier known by the consumer (s. 5(5)). [ 48 ] The refund must be provided within 15 days of the request for cancellation, as per s. 79 (1) of the regulations.

If the agreement is a time share agreement, there is a remedial provision which provides the right to cancel as per s. 28 (1) of the CPA within the 10 day cooling-off period and as per s. 28 (2), 1 year if the agreement does not comply with the requirements as per s. 26 of the regulations and contrary to s. 27 of the CPA (is “deficient”). If the agreement is a future performance agreement the consumer as per s. 23 the CPA, has a year to cancel if the agreement does not comply with the requirements as per s. 24 of the regulations contrary to s. 22 of the CPA (is “deficient”). [ 49 ] Contrary to Mr.

Wright’s oral submissions, the court does not find that the refund is a separate issue distinct from the cancellation. If the request to cancel is conveyed, then the money must be refunded- period. The refund is the manifestation of the cancellation. Without the refund, the cancellation of the agreement has little meaning. They may be two separate issues, but the refund gives effect to the cancelation which is why the right to a refund is triggered once a request to cancel is conveyed.

To interpret otherwise would allow a supplier to retain the money received and have no legal obligation to fulfill the now “cancelled” contract. [ 50 ] The court does not accept the oral submission of Mr. Wright on 23 March 2015 that when the refund is offered and the customer for his own reasons decides not to accept the refund, that this court would be hard pressed to convict anyone in those circumstances. It is important to note that, for some consumers, CUNS engaged in a “symbolic cancellation” of the agreement they entered into by promising to refund them the funds of one agreement while either

i) inducing them to enter into a new agreement or ii) sign a Release and Non – Disclosure Agreement (also referred to as “Release”). The court uses the term “symbolic cancelation” as it operated to pacify the consumer into thinking that a refund was forthcoming but ultimately it was not. [ 51 ] A supplier might find themselves in contravention of this

section if they provide a partial refund as the court finds that a full and complete refund is what is meant by the right to a refund. The Right to Cancel

[52] This right to cancel is a stand-alone right that is somewhat intertwined with not only the Unfair Practice and the Fail to Refundoffences, but also does relate to the Release and Non – Disclosure Agreements that some consumers were asked to sign. [53] The right to cancel is an integral part of the CPA as outlined above. In Weller v.

Reliance Home Comfort Limited Partnership, 2012ONCA 360 , the Court of Appeal for Ontario heard an appeal of a lawsuit, brought for a collateral purpose, in which a proposedamendment to a lease for a water heater (the “remote agreement”) did not comply with s.42(2)2 of Regulation 17/05 under the ConsumerProtection Act, 2002, since it did not give consumers the unconditional right to terminate the agreement if they did not accept theamendment. [54] In Weller, Mr.

Justice Rosenberg found that the principal issue was the right to amend the terms and conditions of an existingconsumer contract, being a contract for rental of a water heater.

This was a “remote agreement”, since the consumer entered into theagreement not in the presence of the supplier. [55] In Weller, findings were made that a competitor had mounted a campaign to take consumers away from the respondent, by havingthe customer sign a document appointing it as the customer’s agent to carry out the termination of the contract with the respondentcorporation, its rival. [56] In response, the respondent corporation instituted a policy requiring customers wishing to terminate their rental agreements to firsttelephone the respondent to obtain a “Removal Reference Number”, in order to have an opportunity to speak directly to the customerbefore the customer terminated the contract.

A customer of the respondent, who was also a Vice-President of its rival corporation,challenged this new policy. [57] The trial judge dismissed the application. On appeal, Mr. Justice Rosenberg held at paragraph 15 of Weller, that the main objectiveof consumer protection legislation such as the CPA is to protect customers. The trial judge erred in holding that the agreement compliedwith the law because the conditions for termination were reasonable, since allowing the supplier to attach reasonable conditions wouldadd a level of uncertainty. Mr.

Justice Rosenberg concluded, therefore, at paragraph 16: I agree with the appellant that the right to terminate must be unconditional. An agreement that attaches conditions to the right toterminate does not provide the consumer with a true alternative to accepting the amendment. Depending upon the conditions fortermination, the consumer could effectively be coerced into accepting the proposed amendment. Such an

interpretation would beinconsistent with the consumer protection objective of the legislation. It follows that I agree with the appellant that the application judgeerred in holding that the agreement complied with s.42(2)2 because the conditions for termination were reasonable. Allowing thesupplier to attach reasonable conditions would add a level of uncertainty. The consumer would often not know for sure whether or not heor she was required to comply with the conditions imposed by the agreement as the cost of opting out of the proposed amendment. Suchan

interpretation would encourage litigation and undermine the consumer protection objectives of the provisions. [58] I rely on Weller for the proposition that additional conditions, or in the case before me, a separate contract presented at the sametime, created tremendous uncertainty for the consumers. When addressing consumer protection legislation, it is contrary to the purposeof such statutes “to adopt a technical approach in interpreting what a purchaser must do to notify the declarant of an intention torescind…”, see: Harvey v. Talon International Inc., 2017 ONCA 267 at paragraph

Section 3 of the CPA – Interpreting two agreements as one [59]

Section 3 of the CPA, reads that “in determining whether this Act applies to an entity or transaction, a court or other tribunal shallconsider the real substance of the entity or transaction and in so doing may disregard the outward form”. As the heading of this

section ofthe CPA is entitled “Anti-avoidance” it is clear that the focus is to prevent suppliers from attempting to evade compliance with the CPAby, amongst other things, entering into multiple agreements for one transaction. [60] In particular, s. 7(1) states that “the substantive and procedural rights given under this Act apply despite any agreement or waiver tothe contrary”. The CPA seeks to protect the consumer by preventing suppliers from inducing consumers into waiving rights that

i) theyare aware they are entitled to, as well as, ii) waiving those rights which the consumers are not aware they have.

[ 61 ] In addition, s.9 (1) states “the supplier is deemed to warrant that the services supplied under a consumer agreement are of a reasonably acceptable quality”. Here the CPA sets a basic level of expectation for suppliers to comply with. The goods and services must be of a reasonable acceptable quality. [ 62 ] Crown counsel argued that a number of consumers were provided with two contracts, a time share agreement as well as a future performance agreement, at the same time and during the same transaction. This led to the assumption by many consumers that they were entering into one agreement.

As discussed above, the rights and remedies available to the consumer differs depending on the type of agreement entered into. A time share agreement provides the consumer with an unrestricted right to cancel the agreement within the 10 day cooling-off period. This right, however, does not apply to the future performance agreement. The important distinction is that the time share agreements that were subject to the 10 day cooling-off period often had membership totals that were significantly lower than the amounts on the future performance agreements.

This would allow CUNS to uphold the 10 day cooling-off period and retain the lion’s share of the monies paid by the consumers. [ 63 ] While representations were made verbally and on the face of the time share agreement that the 10 day cooling-off period applied, the court finds that these consumers were left:

i) unaware that they had any such right at all, ii) believing the right was applicable to the total membership fee they were paying, and iii) that it applied to one agreement and not to the other agreement. To add, consumers either were not aware there were two agreements or, while being aware, it was not explained to them that the 10 day cooling-off period applied to the time share agreement only.

The conflated time share, and future performance agreements related to the scope of the transactions, but left these consumers confused as they initially assumed that the supplier was within their rights to conduct their business in the manner that they were. [ 64 ] The circumstances that would lead to such an assumption being made includes

i) arranging the documents in a particular way at the time of signing that would suggest the papers were all one document, ii) the separate agreements contained the same invoice number, iii) rushing the consumer at the time of signing the agreement, iv) the use of numerous representatives at the time the paperwork was being prepared to sign,

v) having consumers sign the agreement at a period of time where they were tired or exhausted, vi) providing deficient agreements so that there was a insufficient of information for the consumer to understand the differences in the documents and, vi) inducing the consumers to sign future performance agreements when they were only interested in time share agreements. [ 65 ] The Crown further argues that the latter was done so that CUNS could

i) retain the majority of the membership money paid, ii) make a more palatable argument that would pacify the consumer with a refund ( full or partial) of the time share agreement while convincing them that they were not entitled to a refund of the future performance agreement, and iii) convince the consumer that they would agree to a refund of the time share agreement “as a good will gesture”, while keeping the larger portion of the money for the future performance agreement and, iv) symbolically cancel or void the original agreement while inducing the consumer to either enter into a new agreement or sign a Release and Non- Disclosure Agreement. [ 66 ] The Crown argued in paras 150 to 152 (in relation to consumers Safraj) of his submissions that s. 3 of the CPA should be applied and that both agreements should be interpreted as one agreement.

The Crown repeated their position regarding many of the agreements where the “monetary inequity” in relation to the time share and future performance agreements existed. That is, that due to the monetary inequity between the two types of agreements, that the agreement should be read as one entire agreement , a times share agreement, and the rights of the consumer in relation to a time share agreement (namely the 10 day cooling-off period), should be applied to both agreements as one entity.

As a result, the future performance agreement should be dismissed. [ 67 ] Counsel for the named defendants were adamant that these contracts should not be read together and argue strenuously that they are separate agreements. In para 12 of Mr. Wright’s submissions, he argued that

i) the Crown inappropriately seeks to apply the 10- day cooling-off period to a future performance agreement, ii) the CPA does not permit the application of s. 3 to combine two separate agreements into one, and iii) the CPA makes a distinction between the two agreements imposing different requirements thus distinguishing themselves from each other as they should be treated differently. [ 68 ] When assessing “monetary inequity” in the context of the two agreements, the court does not wholly agree with the defence on the following points:

i) that the court has no power to combine two contracts into one. The court finds substance over form is paramount in regulatory offences and even more so when dealing with the uninformed, unsophisticated and trusting consumer as against the supplier and , ii) The court could not disagree more with Mr. Wright’s oral submissions that what was put to the particular consumer should be considered in its context as opposed to what the court, having all the legal knowledge, would interpret the contract to be.

What is put to a particular consumer and their understanding of what they were entering into is relevant however the context of such understanding cannot be at the expense of the consumers rights under the CPA. The differences in wording of the contracts and their legal significance may not be something the consumer could appreciate.

Application of s. 3 of the CPA may be necessary to ensure that these rights are recognized and protected, iii) The power of the court to interpret two separate contracts is as stated: what the supplier attempts to benefit from the court, through the lens of the CPA, will attempt to make right in the interest of the consumer.

[69] As a matter of law, I find that time share agreements and future performance agreements that have one or more of the followingcharacteristics should be interpreted as forming one agreement:

i) they share the same invoice number, ii) the time share agreement (entitled to the 10 day cooling-off period) membership fee was asignificantly less than the future performance agreement membership fee, iii)the consumer was left with such limited information to theextent that they were confused as to whether or not they were entering into two separate contracts, and iv) where the court finds oralrepresentations were made that would lead the consumer to believe that they were entering into one agreement.

The fact that a consumermay have paid membership by virtue of more than one financial transaction in and of itself would not suggest that the consumer shouldhave been aware that they were entering into more than one contract. There were various reasons why this occurred as per the evidenceof the individual consumers. Where the facts support it, the

interpretation of the court will move closer to a finding that the consumerentered into one agreement, that being a time share agreement. Agreements where the contents of which contain one or more of theabove criteria could be interpreted as being devised to obfuscate their true purpose, and to render the CPA virtually meaningless. [70] If viewed as one agreement, it should be the agreement that provides the consumer with the greater protection and rights. In thecontext of this case that would be a time share agreement. The substance over form analysis is necessary otherwise, it would

i) allowCUNS to benefit by virtue of their nefarious approach in dealing with consumers and ii) would not uphold the principles and objectivesof the CPA in protecting the consumers. The court also finds that, even where the consumer testified that they were aware they

i) wereentering into two separate agreements , or ii) the two agreement had different invoice numbers, this does not automatically support aconclusion that s. 3 analysis should not be applied in the manner argued by the Crown. Despite being aware of entering into twoagreements some consumers

i) were still unaware of the rights they had ,and ii) were mislead or induced into waiving or believing thatthey were not entitled to certain rights and remedies, all contrary to the CPA. Classification of Regulatory Offences [71] It is agreed that the related legislation is one of strict liability. [72] In R. v. Wholesale Travel Group Inc., (S.C.C.), [1991] 3 S.C.R. 154, Mr. Justice Cory upheld the classification ofoffences as articulated under R. v. City of Sault Ste.

Marie, [1998] 2 S.C.R. 1299, “but this time in light of the Charter”, see: p. 24. [73] Offences of strict liability only require the actus reus to be proven by the Crown and mens rea need not be established. It is then upto the defence to establish due diligence and a reasonable belief in a mistaken set of facts, as Mr. Justice Dickson held in Sault Ste.Marie, at page 1325. [74] The CPA is public welfare legislation, which generally invokes strict liability for alleged offences.

However, the classification ofthe regulatory offences alleged before the court varies depending upon the way liability potentially ensues. [75] While most of the alleged offences in this matter are strict liability offences, there is a mens rea component, as well, for the reasonsexplored below in this judgment regarding party liability. The Issue of Party Liability [76] Defence counsel concede that Ms. Thakur and Ms. Daneluzzi, were the only officers and directors of CUNS from its inception, andat all material times. [77] Counsel for Ms. Thakur and Ms.

Daneluzzi also submit that there is no evidence that their clients were shareholders of CUNS, nor isthere any evidence of what remuneration, if any, they received from CUNS. [78] Neither evidence of any receipt of remuneration nor any evidence of shareholder status in CUNS is required as a prerequisite to thepotential liability of the officers and directors of CUNS. I am not aware of any authority in law to support this defence argument, and I

find that such an outcome could lead to absurd results if read into public welfare statutes. [ 79 ] The court agrees with Mr. Wright’s oral submissions that for a person to be found guilty of being a party to an offence the principle must first have been found culpable. Party liability culpability flows from a finding of culpability of the principle. [ 80 ] Counsel for both Ms. Daneluzzi and Ms.

Thakur both argue that their clients were never charged under ss. 116(3) of the CPA, which addresses the liability of officers and directors of a corporation, and as such, it is improper for them to be found guilty of the acts of the corporation through the application of s.77 of the POA . [ 81 ] In written submissions filed by Mr. Ludlow (paras. 22 and 23), the Crown argued that by not only creating CUNS, but by allowing it to continue and not dissolving the company, the named defendants were acting for the purpose of assisting in the commission of the offence. He further submits that

i) they could not have created CUNS to begin with and, ii) they could have shut it down. They did neither of those things during the relevant period of time. [ 82 ] Crown counsel argued that the named defendants were the operating minds of CUNS, and that as such, they are also liable under s.77 of the Provincial Offences Act, R.S.O. 1990, c. P. 33 , as amended ( POA ), which states: 77(1) Parties to an offence - Every person is a party to an offence who, (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it.

(2) Common purpose - Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to the offence. [ 83 ] Counsel for both Ms. Daneluzzi and Ms.

Thakur both argue that their clients were never charged under ss. 116(3) of the CPA, which addresses the liability of officers and directors of a corporation, and as such, it is improper for them to be found guilty of the acts of the corporation through the application of s.77 of the POA . [ 84 ] For all practical purposes, s. 77 of the POA is identical to s.21 of the Criminal Code , which states: PARTIES TO AN OFFENCE / Common intention. 21.

(1) Everyone is a party to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. R.S., c. C- 34, s. 21. [ 85 ] The POA includes an interpretative provision, as set out in s.2 , as follows:

(1) Purpose of Act – The purpose of this Act is to replace the

summary conviction procedure for the prosecution of provincial offences, including the provisions adopted by reference to the Criminal Code (Canada) , with a procedure that reflects the distinction between provincial offences and criminal offences.

(2) Interpretation – Where, as an aid to the

interpretation of provisions of this Act, recourse is had to the judicial

interpretation of and practices under corresponding provisions of the Criminal Code (Canada) , any variation in wording without change in substance shall not, in itself, be construed to intend a change of meaning. [ 86 ) The Legislation Act , 2006, S.O. 2006, Ch. 21, Sched. F , provides for General Rules of Construction, particularly sections 63 and 64, which state: Law always speaking 63 The law is always speaking, and the present tense shall be applied to circumstances as they arise. 2006, c. 21 , Sched. F, s.63. Rule of liberal

interpretation 64

(1) An Act shall be interpreted as being remedial and shall be given such fair, large and liberal

interpretation as best ensures the attainment of its objects. 2006, c. 21 , Sched. F, s.64(1). [ 87 ] Thus, I am relying on s.2(2) of the POA to rely upon the jurisprudence interpreting s.21 of the Criminal Code . Statutory

Interpretation Argument: [ 88 ] Counsel for the named defendants both argued that their clients, as directors, were not charged under s.116(3) of the CPA, which states: Corporation

(3) An officer or director of a corporation is guilty of an offence if he or she fails to take reasonable care to prevent the corporation from committing an offence mentioned in subsection (1) or (2). 2002, c. 30 , Sched. A, s.116(3). [ 89 ] In paragraphs 335 to 342 of his written submissions, Mr. Ludlow relies on s. 77 of the POA in relation to finding party liability. Mr. Wright relying upon (paras 15 -31) and Mr. Rahamim, (paras. 32 - 48) of their submissions argue that

section 77 of the POA does not apply to these proceedings, that the defendants were not charged under this

section as a party to the offence, and there was no analysis or authority to support the application of said section. They further argued that the defendants should have been but were not charged under section 116 (3) of the CPA which deals with the liability of officers and directions. In doing so they argued that, “the liability of officers and directors of a corporation in very broad terms, and in a manner, which is inconsistent with the notion that such liability could rest upon the operation of

section 77 of the POA ” (Mr. Wright’s submissions para. 23). Defence counsel argued that the Crown erred in not charging the directors under s.116(3) of the CPA, and as such, Crown counsel cannot rely on s.77 of the POA in its place to prosecute the corporate officers and directors. [ 90 ] The Supreme Court of Canada has repeatedly reaffirmed the modern approach to statutory

interpretation, outlined by E.A. Driedger, Construction of Statutes , 2 nd ed. (Toronto: Butterworths, 1983), at p. 87 that “the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”, as per Bell ExpressVu Ltd. Partnership v. Rex , 2002 SCC 42 , [2002] 2 S.C.R. 559 at paragraph 26 ; and Indalex Ltd., Re , 2013 SCC 6 , [2013] 1 S.C.R. 271, at paragraph 136 . [ 91 ] The provisions of the CPA provide for broad categories of regulatory offences, and as such, this public welfare statute is not an exhaustive code.

There are no provisions in the CPA that exclude the application of s.77 of the POA . [ 92 ] While the provision of s.77 of the POA overlaps with s.116(3) of the CPA, these provisions are complimentary and not

contradictory, and so there is no need for one to prevail over the other in order to uphold the rule of law. See: R. Sullivan, “StatutoryInterpretation in a New Nutshell,” 2003 CanLIIDocs 108. [93] Since the issue of party liability arises only under s.77 of the POA, as the directors were not charged under s.116(3) of the CPA,then there is no ambiguity to resolve, since the provisions do not need to be reconciled, nor does any provision need to be read down,since again, there is no ambiguity. [94] I rely upon R. v.

McIntosh, (SCC), [1995] 1 S.C.R. 686 at paragraph 18, where the majority held as follows: In resolving the interpretative issue raised by the Crown, I take as my starting point the proposition that where no ambiguity arises on the face of a statutory provision, then its clear words should be given effect. This isanother way of asserting what is sometimes referred to as the “golden rule” of literal construction: a statute should be interpreted in amanner consistent with the plain meaning of its terms. Where the language of the statute is plain and admits of only one meaning, the task of

interpretation does not arise (Maxwell on the

Interpretation of Statutes (12th ed. 1969), at p. 29). [95 ] While the criminal jurisprudence in the application of

section 21 has been of great assistance in developing the jurisprudencesurrounding of party liability and regulatory offences (as seen in, Fell, Campbell and La Souveraine, analyzed in detail later in thisjudgment), it is important to note that s 77 of the POA has been applied directly to regulatory provincial offences. [96] In R. v. Conestoga Rovers and Associates (2010) 102 W.C.B. (2d) 320, it resulted in acquittals under the Environmental ProtectionAct, where the party liability was not proven. This was upheld on appeal, at 2011 ONCJ 843. When deciding a motion for non-suit,Justice of the Peace Hoffman stated that since the wording of s. 77 of the POA and

section 21 of the Criminal Code has the samewording , it was appropriate to consider s. 21 jurisprudence when analyzing party liability offences under the POA. Her Worship statedthe following: 29 Counsel have directed this court to legal authority regarding

Section 21 of the Criminal Code which is, of course, applicable giventhe identical wording of the

section to

Section 77 of the Provincial Offences Act. Given the courts findings above I do not need toconsider Section 77(1)(a). Conestoga Rovers and Associates did not actually commit the offence. [97 ] It can be further argued that not only does s. 77 of the POA apply generally to the CPA, but also, that this court has a duty to put theaccused’s liability to the jury as a “secondary offender” despite the Crown’s position that the accused is to be found “guiltyor not guilty” only as a principal offender. In R. v. Cousins (1997), (NL CA), 119 C.C.C. (3d) 432, 155 Nfld. &P.E.I.R. 169 (Nfld.

C.A.), leave to appeal to S.C.C. refused 120 C.C.C. (3d) vii, 165 Nfld & P.E.I.R. 360n, 226 N.R. 399n, the Courtfound that party liability must be considered regardless of the position of the parties and prioritized over the prosecutorial discretion totake an alternate position. Gushue C.J.N. at para 10, stated the following: In response, it is the position of the respondent that for the trial judge to assume the duty or responsibility to instruct on s. 21 in thismatter, he would have had to ignore the position taken by the Crown. That would in effect amount to an interference with prosecutorialdiscretion.

Counsel argues that while the trial judge has the discretion to instruct a jury on alternative theories of liability, theappellant has provided no authority or reasoned argument as to why this should amount to a duty. The respondent also raises the issueof estoppel, arguing that the Crown should now be foreclosed from raising on appeal a ground of liability which was not put forward atthe trial level.

The Crown pursued its case against the respondent at trial on the sole issue that he was the person who had committed themurder; the theory of joint liability not having been pursued at all, the Crown is not now entitled to raise new theories of liability for thepurpose of obtaining a new trial. [emphasis added]. The Mens Rea of the Named Defendants (officers and directors of CUNS) [98] In R. v.

Fell, (1982), (ON CA), 34 O.R. (2d) 665 (ONCA), the Ontario Court of Appeal considered a caseinvolving an officer and director of two corporations, with whom he was co-accused of six counts of making false or misleadingrepresentations to the public, contrary to the Combines Investigation Act. Mr. Fell was not charged in his role as an officer or director ofthe defendant corporations, but as having made the false or misleading representations himself.

[99] The trial judge made two errors in acquitting Mr. Fell, according to Mr. Justice Martin for a unanimous court. [100] First, where a company is liable under the identification doctrine, the director or other controlling officer will almost always be aco-perpetrator or accessory in the offence or commit a statutory offence. [101] Secondly, Mr.

Justice Martin held in Fell at para. 17: .…even where the offence is one of strict liability insofar as the liability of the principal is concerned, the liability of an aider or abettorto be convicted of the offence requires the existence of mens rea on the part of the aider or abettor. Mens rea in this context meansknowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts. It was, ofcourse, not necessary for the prosecution to prove that the respondent knew that those circumstances constituted an offence: see R. v.F.W. Woolworth Co.

Ltd. (1974) (ON CA), 3 O.R. (2d) 629, 46 D.L.R. (3d) 345, 18 C.C.C. (2d) 23, and particularly atpp. 32 and 33-34. [102] Crown counsel concedes that before the officers and directors of CUNS can be convicted by way of party liability, first it must beproven beyond a reasonable doubt that they had the mens rea required of parties to an offence, as per La Souveraine, Compagnied’assurance generale v.

Autorite des marches financiers, 2013 SCC 63, [2013] 3 S.C.R. 756. [103] In La Souveraine, at paragraph 25, the majority held that the principles fashioned under criminal law regarding party liability werealso relevant in the context of regulatory offences. [104] Interestingly, the majority in La Souveraine went beyond the standard of proof of mens rea in the criminal context, as set out by theOntario Court of Appeal in R. v. F.W. Woolworth Co. Ltd. (1974), (ON CA), 3 O.R. (2d) 629 and particularly as notedby the Supreme Court of Canada in R. v.

Briscoe, 2010 SCC 13 at paragraph 17, where Madam Justice Charron stated: As for knowledge, in order to have the intention to assist in the commission of an offence, the aider must know that the perpetratorintends to commit the crime, although he or she need not know precisely how it will be committed. That sufficient knowledge is aprerequisite for intention is simply a matter of common sense. [105] In La Souvereine, at paragraphs 49 the majority held: I agree with that comment in the criminal context and am of the opinion that s.21(1)(

b) of the Criminal Code addresses these concerns byrequiring proof of mens rea. However, I consider the situation to be quite different in the context of regulatory offences. Those whoengage in regulated activities agree in advance to adhere to strict standards, and they accept that they will be rigorously held to thosestandards, which are typical of such spheres of activity.

It is therefore not surprising in the regulatory context to find strict liabilityoffences that encompass forms of secondary penal liability for the ultimate purpose of vigilantly ensuring compliance with a regulatoryframework established to protect the general public. [106] Under s.21(1) of the Criminal Code, a person is criminally liable, as a party to an offence, if that person, having the requisiteintent, plays one of the three enumerated roles in the offence – principal, aider or abettor. An individual will bear the same responsibilityfor the offence regardless of which particular role he or she played: R. v.

Thatcher, (SCC), [1987] 1 S.C.R. 652, atpp.689-90. As explained in R. v.

Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, a person becomes a party to an offence when that person –armed with knowledge of the principal’s intention to commit the crime and with the intention of assisting the principal in its commission - does (or, in some circumstances, omits to do) something that assists or encourages the principal in the commission of the offence(paras. 14-18). [107] In my view, the well-established principles of s.21(1) criminal liability apply with equal force to continuing offences that have beencompleted in law but not in fact.

In particular, where an accused – with knowledge of the principal’s intention to see a continuing offencethrough to its completion – does (or omits to do) something, with the intention of aiding or abetting the commission of the ongoingoffence, party liability is established.

[108] As officers and directors, Wendy Thakur and Antonietta Daneluzzi were responsible for the legality of the contracts proffered byCUNS to consumers. The regulatory offence was ongoing and began when CUNS solicited consumers to sign contracts that containedconditions clearly contrary to the CPA, meant to mislead consumers into believing that they could not, for example, rescind the contractswithin the statutory 10-day cooling-off period.

It was not “over and done with” at the moment of signing the agreements, it was anongoing offence when the consumers efforts to cancel their agreements were delayed or thwarted. The Issue of Aiding and Abetting [109] The issue of party liability of Wendy Thakur and Antonietta Daneluzzi for the liability of CUNS falls under the separate issue ofaiding and abetting, and whether or not Crown counsel has proven the mens rea for same beyond a reasonable doubt. [110] According to Black’s Law Dictionary, 11th ed., Thomson Reuters: St.

Paul: 2019, at page 87, the definition of “aid and abet” is asfollows: aid and abet, vb. (17c) To assist or facilitate the commission of a crime, or to promote its accomplishment * Aiding and abetting is acrime in most jurisdictions. – Also termed aid or abet; criminal facilitation; counsel and procure. – aider and abettor, n. [111] “The phrase ‘aid and abet’ and ‘aider and abettor’ seem unnecessarily verbose…[A]ny aid given with mens rea is abetment; henceto add the word ‘aid’ to the word ‘abet’ is not necessary and is sometimes misleading.” Rollin M. Perkins & Ronald N.

Boyce, CriminalLaw 724-25 (3d ed. 1982). [112] “In connection with the principal in the second degree or accessory before the fact, the terms ‘aid’ and ‘abet’ are frequently usedinterchangeably, although they are not synonymous. To ‘aid’ is to assist or help another. To ‘abet’ means, literally, to bait or excite, as inthe case of an animal. In its legal sense, it means to encourage, advise, or instigate the commission of a crime.” 1 Charles E. Torcia, Wharton’s Criminal Law 29, at 181 (15th ed. 1993). [113] In R. v.

Briscoe, 2010 SCC 13, [2010] 1 SCR 411, the Supreme Court analyzed s.21(1) of the Criminal Code, and noted atparagraph 13 that Canadian criminal law does not distinguish between the principal offender and parties to an offence in determiningcriminal liability. It found that s.21(1) of the Criminal Code makes perpetrators, aiders, and abettors equally liable. [114] As noted in Briscoe, at paragraph 13: The person who provides the gun, therefore, may be found guilty of the same offence as theone who pulls the trigger.

The actus reus and mens rea for aiding and abetting, however, are distinct from those of the principal offence. [115] The actus reus of aiding or abetting is doing, or in some circumstances, omitting to do, something that assists or encourages theperpetrator to commit the offence.

Broadly speaking, to aid under s.21(1) of the Criminal Code means to assist or to help the actor, andto abet within the meaning of s.21(1) of the Criminal Code includes encouraging, instigating, promoting or procuring the crime to becommitted, see: Briscoe at paragraph 14. [116] At paragraph 15 of Briscoe, the Supreme Court held verbatim: Of course, doing or omitting to do something that resulted in assisting another in committing a crime is not sufficient to attract criminalliability. As the Court of Appeal for Ontario wrote in R. v. F.W.

Woolworth Co. (1974), (ON CA), 3 O.R. (2d) 629,“one does not render himself liable by rending or loaning a car for some legitimate business or recreational activity merely because theperson to whom it is loaned or rented chooses in the course of his use to transport some stolen goods, or by renting a house for residentialpurposes to a tenant who surreptitiously used it to store drugs” (p.640). The aider or abettor must also have the requisite mental state ormens rea.

Specifically, in the words of s.21(1)(b), the person must have rendered the assistance for the purpose of aiding the principaloffender to commit the crime.

[117] The mens rea component reflected in the word “purpose” under s.21(1)(

b) of the Criminal Code has two components: intent andknowledge, see paragraph 16 of Briscoe. [118] To establish intent, the Crown must prove that the accused intended to assist the principal in the commission of the offence, but itis not required that the accused desired the offence to be successfully committed, as per paragraph 16 of Briscoe, citing R. v. Hibbert, (SCC), [1995] 2 S.C.R. 973. [119] For example, the perpetrator’s intention to kill the victim must be known to the aider or abettor; but it need not be shared, as perparagraph 18 of Briscoe, citing R. v.

Kirkness, (SCC), [1990] 3 S.C.R. 74. [120] In R. v. Vu, 2012 SCC 40, [2012] 2 SCR 411, the issue of party liability under s.21(1) of the Criminal Code arose in a kidnappingcase, which is a crime that is continuing until the victim is freed. The issue was the liability of Mr. Vu, who did not participate in theinitial kidnapping, but became aware of it and while the victim was confined, and joined the kidnapping enterprise with the intent to aidthe kidnappers and with the knowledge of the victim, or at a minimum, he was willfully blind to the fact. [121] Mr. Justice Moldaver, for the Court, held that Mr.

Vu took steps, of his own free will, to assist the kidnappers and further theirobjectives. Paragraphs 58 and 59 of this judgment are instructive. [122] In other words, kidnapping is an ongoing offence until the victim is freed, so a person who chooses to participate in the victim’sconfinement, after having learned the victim had been kidnapped, may be held responsible for the offence of kidnapping under s.21(1) ofthe Criminal Code, see: Vu, at paragraph 63.

Proof of knowledge of the true facts is necessary to prove the party liability of the named defendants Direct involvement of Wendy Thakur and Antonietta Daneluzzi: In what manner can the court consider evidence, largely circumstantialevidence, to determine whether one or more of the named defendants had direct involvement in the business of CUNS as proof of thenecessary mens rea or knowledge of the true facts? [123] The Crown has requested, in footnote 76 of para. 345 of their submission, that the court engage in the presumption of regularity inrelation to the letter of the consumer Pato, as well as other documents, submitting as follows: With regard to this letter, and the other documents that either appear to bear Ms.

Daneluzzi’s signature or bear a line reserved for Ms.Daneluzzi to sign, it is respectfully submitted that the Court may rely on the presumption of regularity. In the absence of any evidence tothe contrary the Court may properly conclude that these documents were signed by Ms. Daneluzzi in the ordinary course of CUNSbusiness and may further conclude that Ms. Daneluzzi held the position of “Authorized Signing Officer”. [124] The court agrees with the written submissions of Mr.

Wright (paras. 41 to 54) that great care must be taken when applying thepresumption and the court is not prepared to apply it to the case at hand. The Crown provides no authority for their submission and thecourt finds that the presumption of regularity does not extend to the case before this court. No evidence has been tendered to supportthat the presumption of regularity applies to the two named defendants. The Crown was not able to establish the true signature ofAntonietta Daneluzzi and the court did not receive sufficient evidence to conclude that the Antonietta Daneluzzi was seen signing thedocuments.

The court cannot fairly infer this finding of fact in the absence of such evidence and declines to do so. [125] To prove party liability for certain offences the court must consider all the evidence heard, including circumstantial evidence, toreach a determination of whether or not the Crown has proven beyond a reasonable doubt that the named defendants had directinvolvement in the business of CUNS, namely to attempt to prove knowledge of the true facts. [126] The following are examples of the types of evidence heard, and their classification, in relation of the named defendant(s), in thiscase:

- Viva voce evidence that the consumer met the named defendant (direct evidence) - Viva voce evidence that the witness

i) spoke to Wendy Thakur (direct evidence) - Letter sent to CUNS cc’d to Wendy Thakur (circumstantial evidence) - Typed names and title of Antonietta Daneluzzi on CUNS on documents without a signature (circumstantial evidence) - Typed name of the Antonietta Daneluzzi on facsimile cover sheet and at bottom of letter sent to consumer with no signature(circumstantial evidence) - Typed name of Antonietta Daneluzzi, where a signature appears above (The Release and Non -Disclosure Agreement) document(circumstantial evidence) Evidence Law Generally [127] The Evidence Act, R.S.O. 1990, c. E.23, states in

section 2: Application of this Act 2 This Act applies to all actions and other matters whatsoever respecting which the Legislature has jurisdiction. R.S.O. 1990, c.E.23, s.2. [128] The rules of evidence are the same for matters heard under the Provincial Offences Act, as for matters prosecuted criminally. Asstated by Justice Ray in R. v. Egharevba, 2012 ONCJ 43 , at paragraphs 12 to 13:

(12) While the purpose of the Provincial Offences Act is to provide a procedure for the prosecution of provincial offences that reflectsthe distinction between such offences and criminal offences, the jurisprudence is well settled that the same rules of evidence do apply.Two authorities for this approach to evidence in provincial offences cases are cited in Murray D. Segal and Rick Libman’s The 2011Annotated Ontario Provincial Offences Act (Toronto: Carswell, 2011) and they are R. v. Roberts [2001] O.J. No. 5654 (C.J.) and R. v. Bonnick (2003), 45 M.V.R. (4th) 129.

The normal rules of evidence would apply then to the fact driven circumstances of whether or not adefendant permitted her motor vehicle to be driven without insurance, and a factfinder would be expected to consider all relevantevidence before the court. The evidence would sometimes be direct, sometimes circumstantial, and sometimes a combination of both.

(13) Facts in issue cannot always be proved by direct evidence alone. This is why the need arises for the prosecution to callcircumstantial evidence, and for the courts to consider it. The use of circumstantial evidence does not mean that provincial offences willbecome a “trap for the unskilled and unwary” envisaged by the Ontario Court of Appeal in R. v. Jamieson (1981) (ON CA), 64 C.C.C. (2d) 550. It should not entail a complicated application of the rule in Hodge’s case, which was the subject of lengthy submissions before me in this case.

The learned authors of The Law of Evidence in Canada (3rd ed) (Lexis-Nexis, 2009) havenoted at page 68 of their book that the use of the rule in Hodge’s case has declined, and this has occasioned a parallel decline in thesignificance of the distinction between direct and circumstantial evidence. Circumstantial evidence [129] When considering circumstantial evidence, it is important for the court to:

i) consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: R. v. Comba, (ON CA), [1938] O.R. 200 (Ont. C.A.) , at pp. 205 and 211, per Middleton J.A., aff'd (SCC), [1938] S.C.R.396 (S.C.C.) ; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11 (B.C. C.A.) , at para. 20; R. v. Mitchell, [2008] QCA 394 (S.C.C.), atpara. 35. [130] However, when considering, ii) "other plausible theories" or "other reasonable possibilities", it must be based on logic andexperience applied to the evidence or the absence of evidence, not on speculation.

The basic question being whether the circumstantialevidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accusedis guilty: R. v. Villaroman, 2016 SCC 37 and 38. [131] Moreover, iii) Where proof of one or more essential elements of an offence with which an accused is charged depends wholly orsubstantially on circumstantial evidence, it is generally helpful to caution the jury about inferring guilt too readily. No specific wordformula is required.

A succinct and accurate way of delivering this message, which describes the relationship between circumstantialevidence and the standard of proof, is to instruct the jury that an inference of guilt drawn from circumstantial evidence must be the onlyreasonable inference that the evidence permits: Villaroman, at para. 30; also cited in Megill at para. 41. [132] The court must consider whether, iv) a reasonable doubt may arise from the evidence adduced at trial or from an absence ofevidence.

The same holds true where the case for the Crown on an essential element or the offence, as a whole, falls to be establishedexclusively or substantially on the basis of circumstantial evidence. Inferences inconsistent with innocence need not arise from provenfacts. And to require that inferences inconsistent with guilt be grounded on proven facts effectively imposes a burden on the accused toprove those facts. And that offends the principle that whether there is a reasonable doubt requires consideration of the whole of theevidence.

In a circumstantial case, an inference other than guilt may arise from an absence of evidence, provided the non-culpableinference is reasonable, in light of the evidence and absence of evidence, assessed logically and on the basis of human experience andcommon sense. The trier of fact should consider "other plausible theories" and "other reasonable possibilities" inconsistent with guilt:Villaroman, at paras. 35-37, cited in Megill at para .42. [133] When dealing with circumstantial It would appear that the court must consider the above, as well as

i) the nature of thecircumstantial evidence, ii) the relationship between proof by circumstantial evidence and the requirement that an accused's guilt beproven beyond a reasonable doubt (Megill, para. 37), and acknowledge that when dealing with circumstantial evidence that a reasonabledoubt could be rise from

i) evidence, ii) the absence of evidence, iii) the credibility of witnesses, and iv) the reliability of the evidence ofwitnesses ( Megill, para. 49). Considering Villaroman and Megill as cited above, the court must be cautious when dealing withcircumstantial evidence and

i) consider other plausible theories and reasonable possibilities that are “ based on logic and experienceapplied to the evidence or the absence of evidence, not on speculation, ii) an inference of guilt drawn from circumstantial evidence mustbe the only reasonable inference that the evidence permits, iii) a reasonable doubt may arise from the evidence adduced at trial or froman absence of evidence.

Inferences inconsistent with innocence need not arise from proven facts and, iv) In a circumstantial case, aninference other than guilt may arise from an absence of evidence, provided the non-culpable inference is reasonable. Handwriting purported to belong to Antonietta Daneluzzi [134] At common law, the trier of fact is, in the absence of an expert, is permitted to compare handwriting samples:

i) to compare handwriting samples when a proved or admitted standard used for comparison with the disputed writing wasalready properly admitted as evidence for other purposes; or, ii) where no document was admissible merely as a standard of comparison with the disputed writing ( R. v. Abdi (1997), (ON CA), 116 C.C.C. (3d) 385 (Ont. C.A.), at para. 15, citing VII Wigmore on Evidence (Chadbourn Rev. 1978), §§1992-1994, at pp. 257-64. Cited in Megill 2021 ONCA 253 at para. 85) [135] To add as an example, a witness might testify that they saw the act of writing.

Or they might give evidence of the circumstancesleading up to or pointing back to the act of writing. In a similar way, a qualified witness may testify about the style ofthe handwriting which requires a comparison between known and the disputed writing: VII Wigmore on Evidence (Chadbourn Rev.1978), §1991, at pp. 252-57. (Cited in para 84 of Megill). [136] It is important to note that in Abdi there was an example of the accused writing from a notebook that was being compared to a

writing sample that was disputed as belonging to the accused. In Megill , a property management form was found during a search warrant which is required to be filled out by the owner if they wanted to rent out the unit. The names of the residents appeared on the document, one of the names was the accused.

Also, there were “ two indecipherable signatures or marks” - t he property manager testified he did not know the accused and did not know who filled out the form. [ 137 ] in Abdi , the court addressed the question of “whether or not, in light of this provision, the trier of fact is entitled to compare the disputed handwriting with the admitted or proved handwriting and form an opinion thereon in the absence of any witness testimony as to the genuineness or otherwise of the disputed writing” ( Abdi at para. 16 ). [ 138 ] It would appear from the law cited above that a trier of fact may draw inferences from handwriting if:

i) first the admitted or proved handwriting in documents is be properly entered into evidence (for other purposes), also; ii) the trier of fact may compare disputed handwriting with admitted or proved handwriting in documents which are properly entered into evidence and draw inferences therefrom.

In these circumstances, a trier of fact may make the comparison in the absence of witness testimony as to the genuineness or otherwise of the disputed writing. ( Abdi , at para . 22 ). [ 139 ] The Release and Non-Disclosure Agreement for consumers King and Martin, Abad, Padhiar, Mayers, Doroja and Meyer all contain a signature above the typed name of Antonietta Daneluzzi, that is purported to belong to Antonietta Daneluzzi.

With respect to consumers King and Martin, Abad, Padhiar, and Mayers, the statement of agreed facts proffered in evidence did not contain any evidence as who, other than the consumer(s), were present when document was signed. In relation to consumer Doroja, Mr. Doroja testified that he witnessed Antonietta Daneluzzi signing the Release document (direct evidence) while Mrs. Doroja testified that only Linda Gilmore and Mr. Doroja were present when the document was signed. In relation to consumer Meyer, the testimony did not reveal evidence that Antonietta Daneluzzi was present when the document was signed. Mr.

Meyer testified that he never met Antonietta Daneluzzi. [ 140 ] It is important to note that at no time during these proceedings was documentation purported to be the true signature of or handwriting of Antonietta Daneluzzi ever entered into evidence. The cases of Abdi and Megill , would support that the proper approach is for the court to consider the evidence heard and compare the signatures that appear on documents as mentioned.

It is clear that counsel for all parties request that the court consider the evidence and arrive at a determination as to weight and consider all to determine whether the Crown has proven beyond a reasonable doubt that Antonietta Daneluzzi

i) had direct involvement with the business of CUNS that would ii) assist in proving mens rea – that she had knowledge of the true facts- required to prove party liability. The evidence of consumer Doroja and the purported direct involvement of Antonietta Daneluzzi in the business of CUNS [ 141 ] Direct evidence was heard from Mr. Doroja that he witnessed Antonietta Dan

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