R. v. Euro International Performance Tours Inc., 2011 ONCJ 504

Citation: R. v. Euro International Performance Tours Inc. , 2011 ONCJ 504 IN THE MATTER OF the Travel Industry Act, 2002, S.O. 2002, c. 30, Sched. D Between Her Majesty the Queen in Right of Ontario (Travel Industry Council of Ontario) prosecutor and Euro International Performance Tours Inc. and Kimberly A. Greco defendants Ontario Court of Justice Brampton, Ontario Quon J.P. Reasons for Judgment Charge : acting or holding herself, himself, or itself out as being available to act as a travel agent without first being registered as a travel agent by the Registrar of the said Act, contrary to s. 4(1)(a), thereby committing an offence under s. 31(1) (

c) of the Travel Industry Act, 2002, S.O. 2002, c. 30, Sched. D . Trial held : March 2, March 3, and May 13, 2011. Judgment released : September 29, 2011.

Counsel: Sousanne Karas, counsel for the Travel Industry Council of Ontario. Rudy Covre, counsel for the defendants. Cases Considered or Referred To: Ontario (Travel Industry Council) v. Gray (c.o.b. All Sport Accommodations), 2010 ONCA 518 (O.C.A.), per Weiler, Goudge andSimmons JJ.A. R. v. Kirk, 2005 ONCJ 352 (O.C.J.), per Kukurin J. R. v. Kirk, 2006 ONCJ 22 (O.C.J.), per Kukurin J. R. v. Sault Ste. Marie (1978), (SCC), 40 C.C.C. (2d) 353 (S.C.C.). R. v. Saunders, (SCC), [1990] S.C.J. No. 22 (QL) (S.C.C.). Statutes, Regulations and Rules Cited: Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 47(3) and 81.

Travel Industry Act, 2002, S.O. 2002, c. 30, Sched. D, ss. 1(1), 4(1)(a), 31(1)(c), and 31(3). General Regulation (Travel Industry Act, 2002), O. Reg. 26/05, ss. 1(1) and 2(2). Exhibits entered: Exhibit "1" - Agreed statement of facts (3 pages). Exhibit "2" - Marlin Travel Markville invoice dated 02/06/09 invoiced to EUROINTERNATIONAL/[personal name removed],indicating reservation date 29/05/09 regarding Air France Flight for total of $46,418.50 in Canadian Dollars ($46,418.50 deposit and nilbalance) with agent named as Elisa Garisto for Toronto to Malaga, Spain trip from July 8 to July 19, 2009 (10 pages).

Exhibit "3" - Marlin Travel Markville invoice dated 28/05/09 invoiced to EUROINTERNATIONAL/[personal name removed],indicating reservation date 28/05/09 regarding Air Canada Flight for total of $4099.08 in Canadian Dollars ($4099.08 deposit and nilbalance) with agent named as Elisa Garisto for Toronto to New York City trip from July 13 to July 19, 2009 (6 pages). Exhibit "4" - Marlin Travel Markville file statement dated 13/01/10 and itinerary regarding Air Canada flights from HALIFAX to

NEW YORK CITY/LAGUARDIA and back to HALIFAX from August 1 to August 7, 2009, and INVOICES regarding EUROINTERNATIONAL/[personal name removed], and RECEIPTS, and INVOICE regarding Air Canada Flight complimentary tickets for Dance Power for total of $441.96 in Canadian Dollars ($441.96 deposit and nil balance) with agent named as Elisa Garisto, and RECEIPT dated 27/07/09 and indicating invoiced to EUROINTERNATIONAL/[personal name removed] (19 pages).

Exhibit "5" - Contract Agreement and Compensation Agreement with Appendix A, dated March 5, 2009, between Transat Distribution Canada Inc. and Kim Greco in regards to independent or outside sales agent agreement. Agreement was signed by Kim Greco and Cathy Hedderwick, Branch Manager (9 pages). Exhibit "6" - Candance brochure regarding Candance North America Convention & Competition 2009-10, showing Euro International Performance Tours advertisement and photographs (3 pages).

Exhibit "7" - email dated September 10, 2008, 10:59 a.m., from Troy Roper (Tracy Roper) to Brian Gallop forwarding email from Kim Greco to Troy Roper (Tracy Roper) dated 9/9/2008 for subject: Proposal New York 2009, for suggested dates August 3 to August 9, 2009 (3 pages). Exhibit "8" - email dated September 10, 2008, 11:00 a.m. from Troy Roper (Tracy Roper) to Brain Gallop, forwarding email from Kim Greco to Troy Roper (Tracy Roper), dated 9/10/2008, 10:17:36 a.m. for subject: Proposal New York 2009 (3 pages).

Exhibit "9" - Program or itinerary of what tour includes and what it does not include set out on Euro International Performance Tours Inc. letterhead, telephone number with Ontario Area Code 416-476-5423, email address of kimgreco@rogers.com , including reference to “ Global Travel International with website address of www.kgreco.globaltravel.com (1 page). Exhibit "10" - Euro International Performance Tours Inc.

Invoice No. 1, dated April 28, 2009 for client: Dance Power, 150 Campbell’s Road, Ball’s Creek, N.S., showing total amount due: 191,642.47 and total deposits received: 77,850.00, with balance owing of 113,792.47, and indicating booking date of November 7, 2008, and indicating 81 participants for “Learning on Location NYC August 1-7, 2009” and separate invoice for Rockette experience for $5,606.17 for 30 dancers and 45 observers (3 pages). Exhibit "11" - Euro International Performance Tours Inc. Invoice No.

Dance Power 5, dated June 29, 2009 for client: Dance Power, 150 Campbell’s Road, Ball’s Creek, N.S., showing total amount due: 190,608.26 and Total Group deposits received: 193,680.79, with invoice subtotals of 3,072.53, and invoice total of 3,072.53, indicating booking date of November 7, 2008, and indicating credit to be applied to Rockettes invoice, and indicating 80 participants for “Learning on Location NYC August 1-7, 2009”, and separate invoice for Rockette experience for $2,892.69 for 34 dancers and 40 observers (2 pages). Exhibit "12" - Euro International Performance Tours Inc.

Receipt # 507, dated June 9, 2009, to Dance Power, 150 Campbell’s Road, Ball’s Creek, N.S. showing 8 deposits received to date and totaling $188,497.87 for 81 participants; also Sydney Credit Union bank statement dated November 30, 2008 in regards to The CB School of the Arts Dance Troupe; also copies of 9 cheques issued by Cape Breton School of the Arts Dance Troupe payable to Euro International Performance Tours and showing they were deposited into TD Canada Trust bank account; and Mansfield Hotel List of rooms and travellers for each room (12 pages).

Exhibit "13" - E-tickets issued by Air Canada for flight from Halifax to New York LaGuardia and back and also indicating Marlin Travel Markville, with email cover page dated July 25, 2009, 3:33:02 PM from Kim Roper to Troy Roper (Tracy Roper) indicating Kim Roper – Marlin Travel (138 pages). Exhibit "14" - Mansfield Hotel List of rooms and travellers for each room (1 page). Exhibit "15" - Mansfield Hotel Bill (GUEST FOLIO) showing room number and amounts charged respectively for each room for Dance Power Group for July 31, 2009 to August 9, 2009 (2 pages).

Exhibit "16" - email to Felix Caraballo: ‘kimgreco’ from Mansfield Hotel dated August 27, 2009, 9:47 a.m., with subject line: RE: M Group Open Balance (1 page).

Exhibit "17" - email dated September 3, 2009, 11:41:08 AM ADT, from John Agosto of Mansfield Hotel to Kim Greco (2 pages). Exhibit "18" - email dated September 1, 2009, 10:57:33 PM ADT from Kim Greco to Brian Gallop (3 pages). Exhibit "19" - Corporation Profile Report from Ministry Government Services regarding Euro International Performance Tours Inc., Ontario Corporation Number 1188181, dated 2009/09/03, showing registered office address of 6623 Blackheath Ridge, Mississauga, Ontario and showing incorporation date of 1998/09/21 and showing Kimberly A.

Greco as President, Secretary, and as resident Canadian Director beginning on 1998/09/21 (7 pages). Exhibit "20" - Two Directors certificates pursuant to s. 38, dated September 18, 2009 and signed by Patricia Jensen, Director, indicating Euro International Performance Tours Inc. and Kimberly A. Greco are not registered and have never been registered as a Travel Agent or Travel Wholesaler under the Ontario Travel Industry Act, 2002 (2 pages).

Exhibit "21" - Memorandum dated September 3, 2009, from Mary-Ann Harrison to Doug Fritz regarding Euro International Performance Tours Inc. and a direction to investigate a complaint about a nonregistrant (1 page). Exhibit "22" - printouts of website of www.eurointernational.ca showing bio of Kim Greco, Director, including under heading “About Us”: bios, responsibilities, payment, contact use; under heading “tours”: Greece, Spain, Italy; Learn on Location: New York City, England; Gallery: Video gallery, Photos; and Products (36 pages).

Exhibit "23" - search warrant dated October 28, 2009, of TD Bank Financial Group for account number ****-***840 for period August 1, 2008 and September 15, 2009 (3 pages). Exhibit "24" - affidavit of authenticity of Rita Ventrone of Toronto Dominion Bank under s. 30 of Canada Evidence Act (1 page). Exhibit "25" - signature card and Toronto Dominion Bank Banking Agreement for account number ****-***840, dated February 22, 2000, for Euro International Performance Tours Inc., indicating nature of business as touring company, and showing signature of signing officer Kimberly A. Greco as sole owner (7 pages).

Exhibit "26" - photocopies of nine cheques issued by Cape Breton School of the Arts Dance Troupe payable to Euro International Performance Tours and showing they were deposited into TD Canada Trust bank account ****-***840 (9 pages). Exhibit "27" - search warrant dated October 28, 2009, of Canadian Imperial Bank of Commerce for account number ****-****213, for period December 1, 2008 and August 31, 2009 (3 pages).

Exhibit "28" - Affidavit of Connie Rampulla of CIBC with attached true copies of bank statements, small business account application and agreement for Euro International Performance Tours Inc. dated June 28, 2006, and signed by Kim Greco as President and Secretary; and copy of deposit slip and cheque issued by Cape Breton School of the Arts and debited on January 8, 2009 for $11,850.00 (9 pages).

Exhibit "29" - search warrant dated December 16, 2009, of Canadian Imperial Bank of Commerce for three VISA account numbers regarding application to open Visa account number and statements for period September 24, 2008 and October 31, 2009 (2 pages).

Exhibit "30" - Affidavit of Maria Bellomo of CIBC under s. 33 of Ontario Evidence Act with attached copies of microphotographic business records of two of Kim Greco’s CIBC VISA credit card accounts showing transactions from July 9, to August 8, 2009, of Air Canada, and Radio City Music Hall charges for $2706.76, and Hotel Mansfield charges for 2,464.07, 2371.84, 2371.84, all dated July 16, 2009, and Hotel Mansfield charges for 11,110.97, 16,666.45 and 4518.37 dated August 7, August 7 and August 10, 2009; and Hotel AJAY charges for $5,807.15, 637.88, and 1,154.79, dated respectively July 10, July 18, and July 18, 2009., 2009 (5 pages with VISA

card statements numbered at bottom with pages 41, 42, 43, and 46). Exhibit "31" - T.I.C.O. document entitled, “What you should know about outside sales representatives” (2 pages). Exhibit "32" - Notification letter of termination of contract sent to Kim Greco, dated November 13, 2009, on Marlin Travel letterhead, from Cathy Hedderwick, Manager, Marlin Travel, Markville Shopping Centre, Markham, Ontario (1 page). Exhibit "33" - Photocopy of Kimberly Greco’s Global Travel International travel agent identification card showing expiry date of 06/09 (1 page).

Exhibit "34" - Copy of three emails related to Euro International Performance Tours Inc. website from Kim Greco to Cathy Hedderwick, Manager, Marlin Travel, Markville Shopping Centre, Markham, Ontario, dated November 6, 2009, 4:12 AM, regarding adding link to Marlin Travel website and also referring to website www.worldstage.ca for selling cosmetics for dancers. (2 pages). Exhibit "35" - Printout from website www.worldstage.ca indicating trip to New York City and “learning on location summer 2010” with a sample New York City itinerary (6 pages). 1.

INTRODUCTION [ 1 ] It was the best of times and it was the worst of times for a group of aspiring dancers from Nova Scotia, who took a trip of a lifetime to New York City from August 1 to August 7, 2009, to learn, to take dance classes, and to experience life. And, for the parents and teachers of these dance students, who accompanied them, it started as the epoch of belief, but then it suddenly became the epoch of skepticism, considering what unfolded when the 80 members of this dance group returned to their homes in Nova Scotia.

In believing that their hotel rooms had been already paid for, 17 of that group received their credit card statements several weeks after they returned and were surprised to see that they were charged for the hotel rooms that they had previously paid for in full to Euro International Performance Tours Inc., a performance tour company based in Mississauga, Ontario.

The dance group had retained Kimberly Greco, the principal of this tour company, to coordinate and organize a trip to New York City and to also book and obtain for the dance group, return air transportation from Halifax to New York City, hotel accommodation in New York City, a harbor dinner cruise and ground transportation for the dinner cruise, MetroCards for one week to use on the New York City subway system, two Broadway shows, a Radio City Music Hall Rockettes experience, and five dance classes for the dancers at the Broadway Dance Centre. [ 2 ] Because of this dance group having paid in advance and in full for the rooms at the Hotel Mansfield in New York City to Euro International Performance Tours Inc., which then failed to fully pay or send the funds to the hotel to pay for the 28 rooms used by the dance group, and afterwards having the hotel room charges totalling $43,482.37 in U.S. dollars being charged on the credit cards of those unfortunate 17 members of the group, a complaint from this group was then made on September 3, 2009, to the Travel Industry Council of Ontario (“T.I.C.O.”). [ 3 ] The Ontario government has delegated to T.I.C.O. the responsibility to administer and enforce the Travel Industry Act, 2002 , S.O. 2002, c. 30, Sched.

D, which is provincial legislation that governs travel retailers and wholesalers. T.I.C.O. also has the mandate to promote a fair and informed marketplace where consumers can be confident in their travel purchases, as well as administering an industry-financed Travel Compensation Fund. However, consumers cannot make a claim against this fund unless the travel services that were purchased had been purchased from a travel agent or travel wholesaler that is registered with T.I.C.O. [ 4 ] Furthermore, Kimberly A.

Greco, the sole director of Euro International Performance Tours Inc., who had coordinated and arranged the trip to New York City for the dance group from Nova Scotia and who also booked and obtained airline tickets for the flights, the accommodation at the Mansfield Hotel, tickets for the Broadway shows, and also arranged for dance classes for the dancers, had not been registered as a travel agent with T.I.C.O.

Neither had the Mississauga-based company, Euro International Performance Tours Inc., been registered as a travel agent with T.I.C.O. [ 5 ] After an investigation by T.I.C.O. had been conducted into the complaint brought by the group from Nova Scotia, both Euro International Performance Tours Inc. and Kimberly A. Greco were charged on November 3, 2009, for acting or holding themselves out as being available to act as travel agents without first being registered as travel agents by the Registrar under the Travel Industry Act, 2002 , S.O. 2002, c. 30, Sched.

D., as prescribed by s. 4(1) (a), thereby committing an offence under s. 31(1)(

c) of that Act.

[ 6 ] The trial of the charges laid against both defendants was held over three days, on March 2, March 3 and May 13, 2011. After submissions were heard, judgment was reserved, and the matter was adjourned to September 29, 2011, for it to be rendered. These therefore are the written reasons for judgment: 2. THE CHARGE [ 7 ] Both defendants have been charged with committing the following offences: Kimberly Greco and Euro International Performance Tours Inc., 6623 Blackheath Ridge, Mississauga, Ontario, between 6 th day of November 2008 and the 8 th day of August 2009, did commit an offence under paragraph 31(1) (

c) of the Travel Industry Act, 2002, S.O. 2002,

Chapter 30,

Schedule D , by acting or holding themselves out as being available to act as travel agents without first being registered as travel agents by the Registrar of the said Act, to wit: by accepting $196,573.48 payment from the Cape Breton School of the Arts Dance Troup towards the payment of airfare for 81 passengers from Halifax to New York City and accommodations in New York City, contrary to Travel Industry Act, 2002, section 4(1) (a). 3.

BACKGROUND [ 8 ] The group of travellers from Nova Scotia who initiated the complaint against the defendants were originally comprised of 81 members who were associated with several dance schools and a dance troupe in Nova Scotia. There were 34 dancers and 47 family members that initially comprised this group. However, one member dropped out from going on the trip, which left 80 who did make the trip to New York City from August 1 to August 7 of 2009.

The 80 members who had travelled to New York City included dancers from the Cape Breton School of the Arts and other dance schools that made up the dance troupe called “Dance Power”, the parents of some of the dancers, the dance teachers, and Brian Gallop who is the director and office administrator for the Cape Breton School of the Arts. The ages of the dancers in the dance troupe ranged from 9 to 19 years and came from various dance troupes on Cape Breton Island.

The Cape Breton School of the Arts has been in existence for 42 years. [ 9 ] In previous years, Brian Gallop and the Dance Power troupe had made trips to Cuba, Wonderland in southern Ontario, and Disney World in Florida to perform or compete in dance competitions. Because of the success and the learning experience gained from those trips, the newest group of dance students had also wanted to do a similar trip so plans began in 2008 to organize such a trip or tour.

Tracy Roper, the owner of one of the dance schools, and Brian Gallop had come to learn about the services of Euro International Performance Tours Inc., a company that organized dance tours.

They had observed an advertisement in a Candance brochure (see Exhibit “6”) and also had recommendations from people associated with Candance about the services and expertise of Euro International Performance Tours Inc. in organizing tours associated with performing in dance competitions or festivals in places like Italy and Spain. [ 10 ] In addition, Euro International Performance Tours Inc. used or had their business address listed as 6623 Blackheath Ridge, Mississauga, Ontario and was incorporated in Ontario on September 21, 1998. Kimberly A.

Greco is registered as the President, Secretary, and the sole director of Euro International Performance Tours Inc. [ 11 ] In September 2008, Tracy Roper contacted Kimberly Greco of Euro International Performance Tours Inc. and inquired about arranging and coordinating a trip for their dance group.

Furthermore, Brain Gallop said he had believed that Euro International Performance Tours Inc. would be the appropriate coordinator to assist them in planning and organizing the trip, since Kimberly Greco had given him the impression that she knew what she was doing and that the tour company had the right contacts and knowledge about organizing these types of dance tours.

They were also attracted by the advertisement in the Candance brochure and information they observed on the Euro International Performance Tours Inc. website showing other dance groups who had made trips to Italy, Spain, Greece, and New York City, which had been organized and arranged by Euro International Performance Tours Inc. Examples of various all-inclusive itineraries to these locations were also displayed on the website that Euro International Performance Tours Inc. operated: www.eurointernational.ca (see Exhibit “22”).

Furthermore, Gallop said that Euro International Performance Tours Inc. and Kimberly Greco were more like a travel agency than a dance company that organized tours, and as such, they paid Euro International Performance Tours Inc. to facilitate their tour to New York City. Gallop also said they had used the Brennan Travel Agency before to book the previous trips for the dance troupe and that the payment schedules and invoicing used by Brennan Travel Agency were virtually the same as used by Kimberly Greco and Euro International Performance Tours Inc.

In addition, Gallop said he had no doubt in his mind that Greco’s company sold travel. [ 12 ] Before finalizing the details of the trip, emails were then set back and forth between Kimberly Greco of Euro International

Performance Tours Inc. and Tracy Roper for the dance group, discussing the amount of the budget for the dance group, the number of travellers, the types of activities the group wanted to do, the accommodation, the air transportation, seeing Broadway shows, MetroCards for the New York City subway, a New York City Harbour dinner cruise, and the “learning on vacation” activities that could be arranged by Euro International Performance Tours Inc, which involved taking dance classes at the Broadway Dance Centre and the Radio City Music Hall Rockettes experience that involved taking a workshop with the Rockettes. [ 13 ] When the types of activities, accommodation, air transportation, dates, and the number of nights in New York City were finally and contractually settled by the dance group with Euro International Performance Tours Inc., a cost for the package was then forwarded by Kimberly Greco to the dance group with an installment plan of eight payments, which also included a deposit.

Furthermore, Greco informed the dance group that she would not make any reservations for the dance group until the deposit had been paid. The total cost of the package set up by Kimberly Greco was for $196,573.48, which averaged out to $2,427 per person.

After the dance group paid the initial deposit of $30,450.00 by a cheque issued to Euro International Performance Tours Inc. and dated November 3, 2008, a block of airline seats with Air Canada and hotel rooms at the Hotel Mansfield were then reserved or arranged to be reserved by Kimberly Greco of Euro International Performance Tours Inc. [ 14 ] The dance group paid the eight installments through 10 cheques from the Cape Breton School of the Arts Dance Troupe’s bank account between November 3, 2008 and June 30, 2009, which fully paid for the air transportation, accommodation, Broadway shows and the other activities of their package arranged and organized by Kimberly Greco of Euro International Performance Tours Inc. for the dance group’s planned tour of New York City from August 1 to August 7 of 2009.

Besides the eight installment payments, the 10 cheques also covered additional charges. However, not all 80 members of the dance group had wanted to participate in the same activities or use the same air transportation. In fact, some arrived earlier in New York City and needed an extra night of accommodation, some did not want to participate in the Radio City Music Hall Rockettes experience, and some arranged for their own transportation to get to New York City. [ 15 ] All the cheques issued by the Cape Breton School of the Arts Dance Troupe were made payable to Euro International Performance Tours Inc.

Brian Gallop further testified that Kimberly Greco had never told him to make the cheques payable to Marlin Travel. In addition, Gallop said all the correspondence the dance group received regarding the New York City trip were from Euro International Performance Tours Inc., although he acknowledged that one email they received may have mentioned that Greco was involved with Marlin Travel (see Exhibit “13”).

However, that email sent from Kimberly Greco to Troy Roper (Tracy Roper) was dated July 25, 2009, 3:33:02 PM, which is a date that falls after the dance group had paid its last installment to Euro International Performance Tours Inc. Furthermore, Gallop said he did not know who Global Travel International is or whether Kimberly Greco is affiliated with it.

He also said he dealt only with Kimberly Greco directly. [ 16 ] In addition, Kimberly Greco testified that she had booked the 28 hotel rooms at the Hotel Mansfield for the dance group from Nova Scotia through her affiliation with Global Travel International, a Florida-based travel company, in which she would receive a commission for doing so. Greco also said she used her Global Travel International I.D. number when she booked the rooms on behalf of the dance group. However, Greco said that because of the problems that followed with the unauthorized credit card charges, she did not receive that commission.

Moreover, Global Travel International is not registered as a travel agent or travel wholesaler under the Travel Industry Act, 2002 . [ 17 ] Kimberly Greco also testified that she has been involved for 35 years in participating, teaching, and judging competitions in the dancing field and had operated her own dance studio for 19 years in Sault Ste Marie, which grew from 15 students to 300 students. She also said she sold the dance studio to a former student and then moved to southern Ontario 13 years ago.

Furthermore, she said she set up Euro International Performance Tours Inc. in 1998 to coordinate and organize dance tours in Europe for dancers to perform at festivals. She further said she has handled the company’s affairs herself, collected fees from the dance groups, and would set up a time frame for the groups to pay. Moreover, she said that Euro International Performance Tours Inc. has set up tours for 23 to 25 dance studios without any of them having difficulties or financial problems. In addition, she said of these 23 to 25 tours, she set up two of them for New York City.

She also said that these dance studios would contact her to set up the dance tours and then she would coordinate the events and a travel company would coordinate the logistics. Furthermore, she said she would ask for a certified cheque from the dance groups so that Euro International Performance Tours Inc. could pay the travel agency for services they provided. She also said Euro International Performance Tours Inc. would pay others who arranged the travel and accommodation.

Moreover, she said Euro International Performance Tours Inc. operated a website before it was shut down and the website did not contain any links in which flights or hotels could be booked and that nowhere in the website did it state that the company or she were travel agents. [ 18 ] Furthermore, Kimberly Greco said that she was unaware of T.I.C.O.’s involvement.

She also testified that she did not represent to any dance group or to the Dance Power group from Nova Scotia that she was a travel agent. [ 19 ] Moreover, Kimberly Greco said she had started using Elisa Garisto at Marlin Travel in 2004 to book her flights and it was Garisto who suggested that Greco become a travel agent so that she could get commissions. Greco then looked into becoming a travel agent and found Global Travel International where she signed up to take their course. She also said that Global Travel International then

set her up to operate as a home-based company in affiliation or in conjunction with Global Travel International. Furthermore, she said she is registered with Global Travel International as a home-based agent, which allows her to sell travel when registered with them. She also believes she started with Global Travel in July 2008. In addition, she said that once she joined Global Travel International she was allowed to use their logo. [ 20 ] Kimberly Greco also said she studied the T.I.C.O. manual for becoming a travel counselor and then wrote and passed the T.I.C.O. exam on February 26, 2009.

She said she then signed an agreement to become an outside sales agent with Marlin Travel on March 5, 2009 (see Exhibit “5”). She also said she booked the hotel rooms for the dance group from Nova Scotia at the Hotel Mansfield through Global Travel International and the air transportation with Air Canada had been booked through Marlin Travel.

In addition, she said Marlin Travel was aware that the dance groups would cut a cheque to her and then Marlin Travel would tell her when the deposit and final payment for the flights were due and she would then pay Marlin Travel for the deposit and final payment for the flights with her own credit card. She also said neither Elisa Garisto nor Cathy Hedderwick, the manager of the Marlin Travel location in Markham, Ontario complained about this method of payment nor about the Euro International Performance Tours Inc. website after they had viewed it.

She further said she put in a coordination fee into the event fees for the program and that would be her profit for organizing these tours. [ 21 ] In addition, Elisa Garisto, a travel counselor with Marlin Travel, testified that she only booked travel services for consumers and did not deal with travel agents or travel consultants or book travel services for them.

Garisto also said the deposit that airlines wanted could be paid by cheque or credit card and is a set amount the airlines needed to block space and that these airline deposits were only for blocking space and not as a payment towards fees or the airline tickets. She also said that once the tickets were paid for in full then the deposit on the credit card would be refunded back to the credit card or reversed. She further said that when a credit card is used to pay for an airline ticket with Marlin Travel then the airline becomes the merchant and the credit is paid to the airline.

Moreover, she said that an outside sales agent cannot deposit cheques directly into their own account and then pay Marlin Travel. [ 22 ] Furthermore, Garisto said the 49 tickets for the dance group from Nova Scotia were issued on June 30, 2009, which was when the final payment for the tickets with the airline had been due.

She also said the group from Cape Breton did not come to her and that she is not sure of the name of the group. [ 23 ] In addition, the amount that was charged on August 26, 2009, to the 17 who had their credit cards charged for the hotel rooms at the Mansfield Hotel, totalled $50,110.76 in Canadian dollars (or $43,482.37 in U.S. dollars).

The total bill for the six nights of accommodation for the 28 rooms at the Mansfield Hotel in New York City was for $72,482.37 in U.S. dollars, in which Euro International Performance Tours Inc. had only paid $29,000 in U.S. dollars through Greco’s personal credit cards, leaving unfortunately a shortfall of $43,482.37, which was then charged to the credits cards of the 17 members who had provided their credit cards to the hotel for incidentals and as security for any damage to the rooms.

Although Euro International Performance Tours Inc. had received the full amount from the dance group in advance for the 28 hotel rooms at the Mansfield Hotel and the accommodations had been guaranteed by Euro International Performance Tours Inc., neither Kimberly Greco nor Euro International Performance Tours Inc. forwarded or paid to the Mansfield Hotel the full amount for the hotel rooms from the funds that Euro International Performance Tours Inc. had received in full from the dance group, which is what caused the charges for the hotel rooms to be charged to the 17 credit cards. [ 24 ] Moreover, the shortfall of $50,110.76 in Canadian dollars for the Mansfield Hotel bill was not evenly split up among the 80 members of the group that stayed at the hotel and appeared to be arbitrarily and unevenly distributed and charged to the 17 credits cards that were put down for incidentals and security against damage to the rooms.

The amounts that were charged on the credit cards ranged from $1804.26 to $3193.26 in U.S. dollars. Brian Gallop also opined that only those who put their credit cards down were the ones affected, as the ones who did not have credit cards or that were not given to the hotel were not charged.

Furthermore, Gallop believes that the $29,000 in U.S. dollars that had been paid by Euro International Performance Tours Inc. to the hotel for the rooms were applied against the total cost for the 28 rooms from the top of the list and then down the list until the $29,000 was used up and the balance of the cost of the rooms further down the list that were not covered by the $29,000 then were applied to the credit cards that were put down respectively for those remaining rooms on the list until the balance of $43,482.37 in U.S. dollars was covered, which may also have depended on the credit limits of each individual credit card. [ 25 ] Brain Gallop also testified that when the dance group first arrived at the hotel to check in on August 1, 2009, the front desk clerk informed the group that the hotel rooms had not yet been paid for, but not to worry about it because that issue was between Hotel Mansfield management and Euro International Performance Tours Inc. [ 26 ] Furthermore, Brian Gallop testified that everything else about the trip went off without a hitch, except for some of the services they had expected to receive as part of the tour package were not received, such as the dance group did not receive the week-long MetroCard passes for the subway system, ground transportation was not provided for the dinner cruise of New York Harbour and that they had to fend for themselves to get back to the hotel when it was late in the evening and pitch dark, and the seats they got at the Broadway shows were the cheapest seats and were located at the back of the theatre and not in the middle of the theatre.

[ 27 ] However, those inconveniences seemed minor in comparison to the problems that began for Brain Gallop after the dance troupe returned to Nova Scotia. On August 28 or August 29, 2009, Gallop said he started receiving telephone calls from people who were on the New York City trip and who were irate that their credit cards had been charged for the hotel rooms, which they thought they had already paid for fully in advance.

Gallop was then under suspicion from some of these people about the money paid to him for the New York City trip and he had to show the people who had their credit cards charged that he had forwarded all the money for the rooms to Euro International Performance Tours Inc. and that it had been Euro International Performance Tours Inc. who did not pay Hotel Mansfield for the rooms.

In addition, Gallop said because of the problems with the credit cards, parents withdrew their children from the Cape Breton School of the Arts and some of the dancers who travelled to New York City quit the dance troupe, so that presently the dance troupe no longer exists. [ 28 ] And, after learning about the unauthorized credit card charges made by the Hotel Mansfield, Gallop attempted to contact Kimberly Greco by telephone and emails, but was only able to communicate with her on a couple of occasions, and then Gallop said that Greco stopped responding to his calls or emails. [ 29 ] Moreover, when the problem about the 17 credit cards being charged for the hotel rooms came to light, Kimberly Greco contacted Hotel Mansfield and had asked them for an extension of time to pay the total of the hotel bill for the rooms used by the dance group from Nova Scotia.

However, the hotel’s management replied that they would reverse the charges to those 17 credit cards when Euro International Performance Tours Inc. paid for the total hotel bill. Unfortunately, neither Kimberly Greco nor Euro International Performance Tours Inc. was able to pay off the Hotel Mansfield bill for the rooms. [ 30 ] Furthermore, the 17 members of the group who had their card cards charged also tried to stop the charges through the credit card companies by complaining that they did not authorize the hotel room charges, but the credit card companies did not reverse any of the charges.

However, some of the credit card companies were sympathetic and agreed not to charge any interest until the amounts were paid off. Hence, after not getting their money refunded either from the credit card companies or from Euro International Performance Tours Inc. or Kimberly Greco, a complaint against Euro International Performance Tours Inc. and Kimberly A. Greco was then filed by Brian Gallop on September 3, 2009, on behalf of the 17 members of the dance group from Nova Scotia with T.I.C.O.

Moreover, after the investigation into the dance group’s complaint was conducted by T.I.C.O., charges for acting or holding themselves out as being available to act as a travel agent without being registered as a travel agent were then laid against Euro International Performance Tours Inc. and Kimberly A. Greco. [ 31 ] Moreover, up to the present date, Kimberly Greco has failed to reimburse the dance troupe and the cardholders for those hotel room charges. After that New York City trip problem surfaced, Euro International Performance Tours Inc. went bankrupt and was dissolved about two years ago.

Greco also declared bankruptcy in the fall of 2009 and has since been discharged from that bankruptcy. Furthermore, Greco said she believes the Euro International Performance Tours Inc. website was closed before the Fall of 2009.

In addition, Greco testified that her company’s problems had resulted from the slow economy and cash flow problems in the company because money that was supposed to have come from other dance groups booking tours did not come in because of cancellations. [ 32 ] In addition, the information charging both Kimberly Greco and Euro International Performance Tours Inc. with committing an offence under the Travel Industry Act, 2002 , had been sworn and laid on November 3, 2009.

A summons was then issued and served ordering the defendants to appear in court on January 5, 2010, to answer to their respective charge. [ 33 ] On January 5, 2010, an appearance was made by an agent acting for the defendants. The matter was then adjourned to March 2, 2010, to be spoken to. On March 2, 2010, counsel appeared for the defendants and the matter was set down for a judicial pre-trial conference to be held on May 25, 2010. On May 25, 2010, the matter was adjourned for a second judicial pre-trial conference to be held on August 24, 2010.

Then on August 24, 2010, the matter was adjourned to September 7, 2010, so the matter could be set down for a two-day trial. On September 7, 2010, the matter was set for a two-day trial to be held on March 2 and March 3, 2011. [ 34 ] The trial, however, eventually took three days to complete and was held on March 2, March 3, and May 13, 2011. At the trial, four witnesses testified: three for the Crown and one for the defence. The Crown witnesses were:

(1) Elisa Garisto, a travel counsellor at Marlin Travel;

(2) Brian Gallop, the office administrator for the Cape Breton School of the Arts Dance Troupe; (3) and Doug Fritz, the investigator for T.I.C.O. For the defence, the defendant, Kimberly Greco, testified. [ 35 ] After submissions from both the prosecution and the defence were completed, judgment was reserved and the matter adjourned to September 29, 2011, for judgment to be rendered.

4. APPLICABLE LAW [ 36 ] The defendants have been charged for committing an offence under s. 31(1) (

c) the Travel Industry Act, 2002 , S.O. 2002, c. 30, Sched. D, for not complying with s. 4(1)(

a) of that Act. Section 4(1) (

a) prohibits a person from acting as a travel agent or holding himself, herself or itself out as being available to act as a travel agent unless the person is registered as a travel agent under the Act [ emphasis is mine below ] : Prohibition against acting as a travel agent or travel wholesaler unless registered 4(1) No person shall act or hold himself, herself or itself out as being available to act , (

a) as a travel agent unless the person is registered as a travel agent under this Act ; or (

b) as a travel wholesaler unless the person is registered as a travel wholesaler under this Act. [ 37 ] Section 31(1)(

c) of the of the Travel Industry Act, 2002 provides that a person is guilty of an offence i f they contravene or fail to comply with any

section of the Act [ emphasis is mine below ] : Offence 31(1) A person is guilty of an offence who , … (

c) contravenes or fails to comply with any

section of this Act or the regulations made under this Act, other than a code of ethics established by the Minister under

section 42. [ 38 ] The general penalty

section in the Travel Industry Act, 2002 is contained in s. 31(3) of the Act, which provides that an individual is liable to a maximum fine of $50,000 or to imprisonment of not more than two years less a day or to both if convicted of an offence under the Act.

On the other hand, a corporation, if convicted of an offence under the Act is liable to a maximum fine of $250,000: Penalties 31(3) An individual who is convicted of an offence under this Act is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than two years less a day, or both, and a corporation that is convicted of an offence under this Act is liable to a fine of not more than $250,000. [ 39 ] Furthermore, a “travel agent” is defined in s. 1(1) of the Travel Industry Act, 2002 , which states that: “travel agent” means a person who sells, to consumers, travel services provided by another person; [ 40 ] In addition, “travel services” is defined in s. 1(1) of the Travel Industry Act, 2002 , which states that [ emphasis is mine below ]:

“travel services” means transportation or sleeping accommodation for the use of a traveller , tourist or sightseer or other services combined with that transportation or sleeping accommodation; [ 41 ] Moreover, “sales in Ontario” is defined in s. 1(1) of the General Regulation , O. Reg. 26/05 , which states that [ emphasis is mine below ]: “sales in Ontario”, when used in reference to a period of time, means, (

a) in the case of a registered travel agent, the amount paid or to be paid to or through the travel agent for all travel services sold in Ontario during the relevant period, or (

b) in the case of a registered travel wholesaler, the amount paid or to be paid to or through the travel wholesaler for all travel services sold in Ontario during the relevant period. [ 42 ] Furthermore, s. 2(2) of the General Regulation , O. Reg. 26/05 , sets out the classes of persons, who are not otherwise acting as travel agents or travel wholesalers, which are exempt from the Travel Industry Act, 2002 or the General Regulation , O.

Reg. 26/05: Exemptions 2(1) Persons in the classes listed in subsection (2) who do not otherwise act as travel agents or travel wholesalers are exempt from the Act and this Regulation. (2) Subsection (1) applies to: 1. A person who, in connection with the business of being an end supplier of accommodation, also provides other local travel services that are purchased from another person. 2.

A person (other than a person who operates an airline, cruise line or bus line) who, in connection with the business of being an end supplier of travel services, also provides local travel services that are purchased from another person, but does not accept payment of more than 25 per cent of the cost of the travel services sold to any customer more than 30 days before the travel services are to be provided. 3. A public carrier who sells scheduled transportation. 4. An agent, appointed by a public carrier holding an operating licence under the Public Vehicles Act, who sells bus travel services. 5.

A public carrier who sells one day tours. 6. A person who sells guide services or sightseeing services in Ontario. 7. A person who is employed to teach in an elementary or secondary school, university or college of applied arts and technology and who,

i. arranges one-day tours for the students of that school, university or college as part of the curriculum or arranges other travel services through a registered travel agent as part of the curriculum, ii. has the approval of the appropriate board, principal or other governing body or official to make the arrangements for the travel services, and iii. receives no direct or indirect gain or profit from arranging for the travel services other than participating in the travel services. 8.

The members of a religious organization, amateur sports team or unincorporated association who provide overland travel services, if the following conditions are satisfied: i. The travel services are provided only to members of the organization, team or association. ii. The organization, team or association exists primarily for educational, cultural, religious or athletic purposes and the travel services are provided for those purposes. iii. Any funds received for the travel services are deposited into a trust account and disbursed to pay the suppliers of the travel services or a travel agent. iv.

The organization, team or association, its members and employees receive no direct or indirect gain or profit from the provision of the travel services other than participating in the travel services. v. The travel services do not include a destination located more than 2,000 kilometres from the departure point. vi. The vehicle that is used for transportation remains at the destination to ensure that return transportation is available. 9.

A not-for-profit corporation without share capital, operating as a club, that provides overland travel services to members of the club, if the following conditions are satisfied: i. The travel services are provided only to members of the club. ii. The corporation exists primarily for educational, cultural, religious or athletic purposes and the travel services are provided for those purposes. iii. Any funds received for the travel services are deposited into a trust account and disbursed to pay the suppliers of the travel services or a travel agent. iv.

The corporation, its members, officers, directors and employees receive no direct or indirect gain or profit from the provision of the travel services other than participating in the travel services. v. The travel services do not include a destination located more than 2,000 kilometres from the departure point. vi. The vehicle that is used for transportation remains at the destination to ensure that return transportation is available.

5. ISSUES [ 43 ] The following issues have arisen in this proceeding and need to be resolved: (

a) Do the activities of the defendants in providing an itinerary; collecting money from the dance group from Nova Scotia to cover accommodation, air transportation, and other services; and depositing the group’s money into the corporate defendant’s bank account; and in coordinating and booking hotel rooms, air transportation, two Broadway shows, and a dinner cruise in New York City Harbour; and also for arranging an experience with the Radio City Music Hall Rockettes and dance classes in New York City; the type of activities of or services normally provided by a travel agent? (

b) Were the defendants acting or holding themselves out as being available to act as a travel agent? (

c) If the defendants were acting or holding themselves out as being available to act as a travel agent, do the defendants have to register as a travel agent if they are acting under the auspices of Global Travel International, a United States-based travel company, in booking and arranging for the hotel accommodation at the Hotel Mansfield in New York City? (

d) Did the defendant, Kimberly Greco, in signing an agreement to act as an outside sales agent for Marlin Travel fall under the umbrella of Marlin Travel for the air transportation Greco had booked and obtained for the dance group from Nova Scotia, so as to exempt Kimberly Greco from having to register as a travel agent under the Travel Industry Act, 2002 , since Marlin Travel had been registered as a travel agent under that Act? (

e) Has the prosecution proven the defendants breached s. 4(1) (

a) beyond a reasonable doubt by acting or holding themselves out as being available to act as a travel agent without being registered as a travel agent with the Registrar under the Travel Industry Act, 2002 ? (

f) Since the charges in the information had been particularized and refers to the defendants accepting a payment of $196,573.48 from the Cape Breton School of the Arts Dance Troup towards the payment of airfare for 81 passengers from Halifax to New York City and accommodations in New York City, has the prosecution failed to prove the charge if the evidence shows the $196,573.48 was not only for air transportation and accommodation, but included Broadway shows, the Rockettes experience, and the dinner cruise, as well as there were only 80 travellers in the group who took the tour, instead of 81 members? (

g) If the prosecution has proven the defendants breached s. 4(1) (

a) beyond a reasonable doubt, then have the defendants proven on a balance of probabilities that they took all reasonable care for the circumstances to avoid committing their respective offences or that they had held a reasonable mistake of fact that would make their actions or omissions innocent, which would entitle them to an acquittal? 6.

ANALYSIS [ 44 ] In this proceeding, both defendants have been charged with committing a strict liability offence under the Travel Industry Act, 2002 , by acting or holding themselves out as being available to act as travel agents in Ontario without first being registered as travel agents under that Act, contrary to s. 4(1) (a). [ 45 ] To decide whether the defendants have breached this section, it has to be first determined whether the activities the defendants were engaged in with the dance group from Nova Scotia and the services provided by the defendants to the dance group were the type of activities engaged in by a typical travel agent and services that are normally considered to be travel services provided by a typical travel agent.

However, determining whether the services provided are travel services is only one factor in determining whether s. 4(1) (

a) has been breached, since atypical services may still be sold by someone acting or holding themselves out as a travel agent. Therefore, if those activities and services are the activities of or are travel services provided by a typical travel agent, it will then have to be decided if the defendants were acting or holding themselves out as being available to act as travel agents in Ontario. If they were not, then the charges against both defendants will be dismissed. However, if they were, it will then have to be decided whether the defendants were required to be registered as travel agents under s. 4(1) (

a) of the Travel Industry Act, 2002 , as certain situations are exempted from that

registration requirement, and if the defendants fall within one of these exempted situations then the defendants will not have to be registered.

On the other hand, if the defendants are not exempt from the registration requirement and the prosecution proves they were not registered as travel agents under the Act beyond a reasonable doubt, then the defendants will have to meet their onus of proving a defence of due diligence on a balance of probabilities for not complying with the requirements under s. 4(1)(a), in order to be acquitted of committing the offence. [ 46 ] Furthermore, the defence in their closing submissions contend that for the transactions between the dance group from Nova Scotia and the defendants, Kimberly Greco and Euro International Performance Tours Inc., neither of the defendants had been required to register as a travel agent under the Travel Industry Act, 2002 for two reasons.

First, in regards to booking and arranging for the dance group’s accommodation at the Hotel Mansfield in New York City, it is contended that the defendants had booked this hotel accommodation through Global Travel International, a travel services company based out of the United States, which it contends is not required to be registered in Ontario under the Travel Industry Act, 2002 , since the booking occurred in the United States through a company based in the United States.

For their second reason for not being required to be registered under s. 4(1) (a), the defendants contend that since Kimberly Greco had entered into a written contract to act as an home-based outside sales agent or travel counselor for Marlin Travel, a company that had been registered as a travel agent under the Travel Industry Act, 2002 , then the defendants do not have be registered as a travel agent in Ontario if Marlin Travel is registered as a travel agent, and therefore, the air transportation for the dance group that had been arranged or booked by the defendants falls under the Marlin Travel umbrella. [ 47 ] In response, the prosecution submits that the defendants are not exempt from the registration requirement as they were not acting under the umbrella of either Global Travel International or Marlin Travel in their dealings with the dance group from Nova Scotia.

In particular, the prosecution submits that the defendants did not direct or ask for the cheques issued by the dance group from Nova Scotia to be made out to either Global Travel International or to Marlin Travel; nor did the defendants expressly and clearly inform the dance group that Kimberly Greco or Euro International Performance Tours Inc. had been acting under the auspices of Global Travel International or Marlin Travel; nor did any of the invoices that had been sent by the defendants to the dance group refer to Global Travel International or to Marlin Travel.

Instead, the invoices that were sent to the dance group, as well as virtually all the communications and documents given to the dance group had only referred to Kimberly Greco and Euro International Performance Tours Inc., although there had been a couple of references to Global Travel and Marlin Travel on two documents given to the dance group, but these references were not sufficient to give the impression to the dance group or to Brian Gallop, a director of the Cape Breton School of the Arts, that the defendants were acting under the Global Travel International or Marlin Travel umbrella or on behalf of Global Travel International or Marlin Travel.

Furthermore, the prosecution submits that the dance group believed they were dealing only with Euro International Performance Tours Inc. or Kimberly Greco and that Brian Gallop did not have any knowledge of Global Travel International or Marlin Travel's involvement in their transactions for arranging their trip to New York City. [ 48 ] In addition, this proceeding is not about recompensing the losses suffered by the 17 members of the dance group, but it is for determining whether the defendants committed an offence under s. 31(1) (

c) of the Travel Industry Act, 2002 , by breaching s. 4(1)(

a) of the Act. A.

Were The Defendants Providing And Selling Travel Services To The Dance Group Associated With The Cape Breton School Of The Arts? [ 49 ] The prosecution contends the defendants were involved in or had taken action in providing or selling travel services, namely sleeping accommodation, transportation, and other related services, and had entered into a contractual relationship with the dance group from Nova Scotia for the provision of these travel services. [ 50 ] As defined in s. 1(1) , travel services for the purposes of the Travel Industry Act, 2002 , means “transportation or sleeping accommodation for the use of a traveller, tourist or sightseer or other services combined with that transportation or sleeping accommodation”.

In this case, the dancers and travellers associated with the Cape Breton School of the Arts and the dance troupe called Dance Power had contracted with and paid moneys totalling $196,573.48 to Euro International Performance Tours Inc. for Kimberly Greco to coordinate, arrange, obtain, and book the following: air transportation from Halifax, Nova Scotia to New York City from August 1 to August 7, 2009; hotel accommodation in New York City for six nights; tickets for two Broadway shows; ground transportation; subway passes for one week; a dinner cruise in New York City Harbour; dance classes; and a Radio City Music Hall Rockettes experience. [ 51 ] Ergo, providing and booking the air transportation and the hotel rooms and taking money from the dance group for the transportation and accommodation would be the type or nature of services that fall within the definition of travel services set out in s. 1(1).

[ 52 ] Consequently, the dance group in contracting with Euro International Performance Tours Inc. for Kimberly Greco to coordinate, provide, arrange for, and book air transportation with Air Canada, accommodation at the Hotel Mansfield, a dinner cruise in the New York City Harbour, two Broadway plays, and the Radio City Music Hall Rockettes workshop, and in taking full payment from the dance group for these bookings or services are the sort of activities that are normally provided for, engaged in, and conducted by travel agents in Ontario. B.

Were The Defendants Acting Or Holding Themselves Out As Being Available To Act As Travel Agents? [ 53 ] The defendants submit that they did not hold themselves out as being a travel agent or orally tell the dance group from Nova Scotia that they were travel agents, nor did any of their documentation or their website expressly state or refer to themselves as travel agents.

However, despite the defendants not explicitly telling the dance group they were travel agents, are there any actions or indicia that could be construed from the defendants’ conduct towards the dance group or in the circumstances, which shows the defendants were indeed acting or holding themselves out as being available to act as a travel agent? [ 54 ] In Ontario (Travel Industry Council) v. Gray (c.o.b.

All Sport Accommodations) , 2010 ONCA 518 , at para. 18 , Goudge J.A., writing for the Court of Appeal for Ontario, noted that the purpose of the Travel Industry Act, 2002 is to regulate the travel industry in the interest of the travelling public: First, the clear purpose of the Act is to regulate the travel industry in the interest of the travelling public. In that sense, it is consumer protection legislation.

Pursuant to companion legislation - The Safety and Consumer Statutes Administration Act 1996, S.O. 1996, c. 19 - the Travel Industry Council of Ontario has been designated by the Crown to carry out the regulation of the travel industry. [ 55 ] Also, in Ontario (Travel Industry Council) v. Gray (c.o.b.

All Sport Accommodations) , at paras. 16, 17, and 21 to 25 , Goudge J.A. held that t he statutory language used in this public welfare legislation or consumer protection legislation should not to be interpreted too narrowly so as not to achieve the legislation’s intended purpose, and as such, a travel agent includes a person who contracts on his own behalf to sell travel services to consumers and one who sells travel services to consumers as agent for the provider of those services [ emphasis is mine below ]: Both courts approached this question implicitly assuming that the statutory definition of "travel agent" is limited to circumstances in which the person sells as a principal.

In other words, only one who contracts on his own behalf to sell travel services to consumers meets the definition. With respect, I think that is too narrow an approach . In my view, the definition also encompasses one who sells travel services to consumers not as principal, but as an agent for the provider of those services.

I say this for several reasons. … In my opinion, to confine such a comprehensive regulatory regime to the sale of travel services by a person acting as a principal and to exclude the sale of such services by a person acting on behalf of the service provider is to interpret the statutory language too narrowly to achieve its intended purpose . Put another way, since the evidence was clear that many travel agents engage in both kinds of sales, a narrow reading of the statutory definition would provide, at best, only a partial regulation of the travel industry. This would fall short of the legislative intention.

It would exclude sales of travel services to consumers by persons acting on behalf of the service provider, in the course of which those persons would perform the very activities that the Act seeks to regulate. Second, there is the statutory language itself. The Act defines a travel agent as a person who sells "travel services provided by another person". This language is consistent with the travel agent selling those services on behalf of the provider of those services.

In addition the very description of the seller as a "travel agent" suggests a legislative intention to encompass within the definition a person who sells travel services as agent for the service provider. Finally, the task of statutory

interpretation can be assisted by examining O. Reg 26/05 , which was made pursuant to the Act. The Regulation complements the legislative regime by, for example, detailing the kind of information that must be supplied to a customer before payment for travel services can be accepted. The Act and the Regulation form an integrated scheme for the regulation of the travel industry in the interests of the travelling public. In such circumstances, the Regulation can assist in ascertaining the legislature's

intention with regard to a particular matter: see Monsanto Canada Inc. v. Ontario (Superintendant of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152, at para. 35. In this case, that matter is what is meant by "selling travel services".

Section 1 of the Regulation defines "sales in Ontario" of travel services by a registered travel agent as "the amount paid or to be paidthrough the travel agent for all travel services sold in Ontario." This clearly includes both sales where the travel agent sells as aprincipal and receives payment from the consumer in return, and sales where the travel agent effects the sale on behalf of a serviceprovider, where payment is made later to the service provider. The broader

interpretation of the statutory definition of "travel agent"ensures conformity between the legislation and the regulation that together form this integrated regulatory scheme. I therefore conclude that the proper

interpretation of "travel agent" in the Act includes a person who sells travel services to consumersas agent for the provider of those services. [56] Most important, s. 4(1)(

a) does not restrict or limit the registration requirement to persons that had expressly stated to aconsumer that they were travel agents or that the documentation provided to the consumer or contained in their website expresslyspecified or indicated they were travel agents. Rather, s. 4(1)(

a) captures any person “acting” as a travel agent besides ones that holdthemselves out as being available to act as a travel agent whether by expressly stating so or by providing information which can bereasonably inferred that they are holding themselves out as a travel agent. [57] In this case, the dance group from Nova Scotia approached Euro International Performance Tours Inc. and Kimberly Greco andthen contracted with them to coordinate, arrange, obtain, and book for them a “learn on location” tour of New York City.

EuroInternational Performance Tours Inc. then collected payment in full from the dance group and in exchange provided and sold the dancegroup an itinerary of travel services, which included air transportation, hotel accommodation, Broadway shows, a dinner cruise, danceclasses, and a Radio City Music Hall Rockettes experience. [58] Therefore, despite the absence of the specific or actual words “travel agent” being used by the defendants in any of theirdocumentation, website, advertisement, or orally to the dance group, the defendants in their conduct in providing and selling travelservices to the dance group is evidence they were “acting” or “holding themselves out as being available to act as a travel agent”.

Furthermore, as it was similarly seen in the present case, when a person or company uses specific words on their documentation,websites, or orally to a consumer, such as the person or company does “booking”, “coordinating”, or “arranging” “tours” or“transportation” or “accommodation”, or uses sample “itineraries” and photographs of foreign locations, or provides a link on theirwebsite to book transportation or accommodation, or sells services related to transportation and accommodation, and collects fees orpayments for these services, a reasonable member of the public could reasonably infer or believe that they were dealing with someonethat would be providing them with travel services.

Hence, this would be indicia that would show the person or company in question hadbeen acting or holding themselves out as being available to act as a travel agent, despite the words “travel agent” not being used. [59] Furthermore, Kimberly Greco testified that she did not book the hotel accommodation for the Mansfield Hotel in New YorkCity through Marlin Travel because she said that if she booked it through her Global Travel International affiliation then she wouldreceive a commission. This is certainly

an act of a travel agent even though the dance group may not have been aware of the actualdetails Greco had used in booking the rooms in the Hotel Mansfield. [60] Moreover, it is also one of the situations described by the Court of Appeal for Ontario in Ontario (Travel Industry Council) v.Gray (c.o.b. All Sport Accommodations) that meets the definition of travel agent for the purposes of the Travel Industry Act, 2002, inwhich a person contracts on their own behalf to sell travel services to consumers. Therefore, both Euro International Performance ToursInc. and Kimberly A.

Greco were acting as travel agents or holding themselves out as being available to act as a travel agent to the dancegroup from Nova Scotia. C. Were The Defendants Required To Register As A Travel Agent Under S. 4(1)(a)? [61] The defendants argue that they are not required to be registered as a travel agent under s. 4(1)(

a) for two reasons. First, thedefendants submit they were acting under the umbrella of Global Travel International, a Florida-based travel agency, when the hotelrooms were reserved and booked at the Mansfield Hotel in New York City. And, because they were acting under the auspices of GlobalTravel International, they contend they are exempt from registering since Global Travel International is not required to be registered inOntario for the reason that Global Travel International does not operate in Ontario. And secondly, in regards to arranging for the airlinetickets for the dance group from Nova Scotia, the defendants submit that Kimberly Greco had signed a contract to be a home-based

outside sales agent for Marlin Travel, which is registered as a travel agent under the Travel Industry Act, 2002 , and therefore, since Marlin Travel is registered as a travel agent in Ontario the defendants would be exempt from the registration requirement under s. 4(1) (a). [ 62 ] In reply to the defence argument that the defendants are exempt from the registration requirement under s. 4(1)(a), the prosecution submits they are not exempt because everyone who operates in Ontario as a travel agent is required to register under the Travel Industry Act, 2002 .

In addition, the prosecution contends the defendants were not acting under the protection of either Global Travel International or Marlin Travel in their dealings with the dance group from Nova Scotia. [ 63 ] Furthermore, the defendants have the onus to prove that they fall within an exception or exemption to the requirement that they have to be registered as a travel agent under s. 4(1)(

a) when they sold travel services to the dance group from Nova Scotia, according to s. 47(3) of the Provincial Offences Act , R.S.O. 1990, c. P.33: Burden of proving exception, etc. 47(3) The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information.

(1) Were the defendants acting under the auspices or umbrella of Global Travel International, the Florida-based travel company, to exempt them from the registration requirement? [ 64 ] The defendants contend that they are not required to be registered pursuant to s. 4(1)(a), since they were acting under the auspices of Global Travel International, a Florida-based travel agency, when the hotel rooms were reserved and booked at the Mansfield Hotel in New York City, and as such, would be exempt from registering since Global Travel International is not required to be registered in Ontario because of the fact that Global Travel International does not operate in Ontario, and therefore, does not fall under the jurisdiction of T.I.C.O. [ 65 ] However, this defence argument is based on an incorrect premise.

It is not the location of where a particular person or company operates that triggers the registration requirement; rather it is triggered by where the travel services are sold. In the present case, the travel services sold by Euro International Performance Tours Inc. to the dance group were sold in Ontario, which triggered the registration requirement under s. 4(1)(

a) and the jurisdiction of the Travel Industry Act, 2002 . [ 66 ] Furthermore, on the Euro International Performance Tours Inc. website and in their advertisements the defendants gave an Ontario address. The dance group from Nova Scotia in contracting with the defendants for the supply of travel services sent the funds or their payments by cheque for the travel services to Euro International Performance Tours Inc. at its Mississauga business address. The cheques were not sent to Global Travel International or to any address in the United States.

Therefore, the contract between the dance group from Nova Scotia and Euro International Performance Tours Inc. was formed in Ontario for the sale of travel services and the travel services were therefore sold in Ontario which triggers the requirement to be registered as a travel agent under s. 4(1)(a).

Also, the Euro International Performance Tours Inc. website stated that cheques would have to be made payable to Euro International Performance Tours Inc. and not to Global Travel International or Marlin Travel. [ 67 ] Moreover, “travel services sold in Ontario” is not restricted to just travel services that would be used in Ontario, such as a hotel room in Ontario, but it includes travel services sold by a person in Ontario that would be used outside Ontario. [ 68 ] Therefore, since the dance group purchased the travel services from Euro International Performance Tours Inc. and the funds were sent to a business address located in Mississauga, Ontario, then Euro International Performance Tours Inc. had sold the travels services in Ontario, and as such, Euro International Performance Tours Inc. had to be registered as a travel agent before they could sell those travel services to the dance group from Nova Scotia. [ 69 ] Furthermore, even if the defendants had been acting under the auspices of Global Travel International when the defendants

booked the hotel rooms for the dance group, the travel services provided to the dance group, which included booking the hotel rooms, were nevertheless sold from the business address in Mississauga. And, since the registration requirement under s. 4(1)(

a) is triggered when travel services are sold in Ontario then Global Travel International (which holds up the umbrella for the defendants) would also fall within the ambit of the Travel Industry Act, 2002 and be required to register as a travel agent.

And, if Global Travel International were hypothetically registered as a travel agent under the Act, then for the defendants to fall within the exemption of not having to be registered on account of being an outside sales agent for Global Travel International it would call for the defendants to provide proof of that outside sales agent agreement between them. [ 70 ] However, there is no evidence that Global Travel International is registered as a travel agent or travel wholesaler under the Travel Industry Act, 2002 (see Agreed Statement of Facts entered as Exhibit “1”).

As such, it does not matter whether the defendants were acting under the umbrella of Global Travel International, since Global Travel International had not been registered as travel agent under the Act when the defendants were dealing with the dance group from Nova Scotia. [ 71 ] Furthermore, the documentation entered in this proceeding indicates that the hotel rooms were booked and invoiced in the name of Euro International Performance Tours Inc. and not in the name of Global Travel International.

Therefore, very little weight can be placed on there being a legitimate connection between the hotel rooms booked at the Hotel Mansfield for the dance group and Global Travel International. [ 72 ] Consequently, the defendants first reason for being exempted based on the hotel rooms being booked under the auspices of Global Travel International is not applicable and the defendants were not exempted from registering under s. 4(1)(a).

(2) Were the defendants acting as an outside sales agent under the auspices or umbrella of Marlin Travel, a registered travel agent, to exempt the defendants from the registration requirement? [ 73 ] In regards to the second reason why the defendants are exempt from registering as a travel agent under s. 4(1)(a), for the contention they had been acting under the auspices of Marlin Travel when they booked and purchased the airline tickets for the dance group from Nova Scotia, the argument is that because Kimberly Greco had signed a contract to be a home-based outside sales agent for Marlin Travel, which is registered as a travel agent under the Travel Industry Act, 2002 , then the defendants are exempt from having to register as a travel agent under that Act. [ 74 ] First of all, the outside sales agent agreement entered as Exhibit “5” was only between Kimberly Greco and Marlin Travel, and not between Marlin Travel and Euro International Performance Tours Inc.

Therefore, even if Kimberly Greco's transactions with the dance group from Nova Scotia fall under the umbrella of Marlin Travel to exempt her from the registration requirement under s. 4(1)(a), Euro International Performance Tours Inc. was not part of that outside sales agent agreement, and therefore, would not be protected under the Marlin Travel umbrella. [ 75 ] In respect to whether Kimberly Greco falls under the Marlin Travel umbrella, the dance group from Nova Scotia had paid the first installment to Euro International Performance Tours Inc. for the New York City trip in November 2008 and the money had been deposited into Euro International Performance Tours Inc.’s bank account, before Kimberly Greco had even entered into the outside sales agent agreement with Marlin Travel on March 5, 2009.

Therefore, the defendants were already in breach of s. 4(1)(

a) about four months before Greco would have even come under the umbrella of Marlin Travel. [ 76 ] Furthermore, the Marlin Travel name was not printed, indicated, or shown on the invoices or documentation given to the dance group by Kimberly Greco or Euro International Performance Tours Inc., nor did Kimberly Greco ask the dance group that the cheques issued by the dance group were to be made payable to “Marlin Travel in trust”, nor did the Marlin Travel name appear on the Euro International Performance Tours Inc. website. [ 77 ] Although there had been one email that Kimberly Greco had sent to the dance group from Nova Scotia that contained a reference to Marlin Travel, the dance group had already paid the final installment for the New York City trip to Euro International Performance Tours Inc. on June 30, 2009, and the email in Exhibit “13” in which “Marlin Travel” is typed after Kim Greco’s name was only sent on July 25, 2009, which is a date that is subsequent to the time when all the money for the New York City trip had been already paid by the dance group to Euro International Performance Tours Inc.

Hence, this particular use of the words “Marlin Travel” on that email carries no weight in proving that Kimberly Greco was acting under the umbrella of Marlin Travel and would have been insufficient notice, in any event, to the dance group that they would be dealing with Marlin Travel as its travel agent.

[ 78 ] Moreover, Marlin Travel did not invoice the dance group from Nova Scotia directly, but invoiced the airline tickets to Euro International Performance Tours Inc., which further indicates that Marlin Travel was not acting as the dance group’s travel agent. This is also evidenced in Exhibits “2”, “3” and “4”.

Furthermore, Elisa Garisto, an employee of Marlin Travel, said the dance group’s airline tickets were paid for by Kimberly Greco’s credit card and not a credit card from any of the travellers. [ 79 ] In addition, Elisa Garisto testified that she does not book for travel agents or travel consultants, but only books for customers. Garisto also said that the Cape Breton group did not come to her and is not even sure of their name.

However, she did deal individually with travellers involved with the dance groups that Euro International Performance Tours Inc. had arranged tours for, when the individual travellers wanted to extend hotel stays and trips and Garisto would then have to obtain credit card information from these individuals directly and arrange for the airline tickets and extension of hotel rooms with these particular travellers’ credit cards. In addition, if a credit card is used to pay for the airline tickets reserved by Marlin Travel then the airline becomes the merchant.

Garisto also said that an outside sales agent acting for Marlin Travel cannot deposit a customer’s payment directly into the agent’s own bank account and then pay Marlin Travel. [ 80 ] In addition, the cheques issued by the dance group were made payable to Euro International Performance Tours Inc. and not to Marlin Travel. Although the E-tickets or booking of the airline tickets indicated Marlin Travel, these documents do not indicate that Euro International Performance Tours Inc. or Kimberly Greco was acting for Marlin Travel.

Furthermore, Brain Gallop testified that he did not have the impression that the dance group were dealing with or contractually bound to Marlin Travel in paying for the package of services provided for by Euro International Performance Tours Inc. Gallop also testified he only believed the dance group had been dealing with Euro International Performance Tours Inc. and Kimberly Greco. [ 81 ] In sum, there is virtually no evid

[…]