Ontario (Ministry of Government and Consumer Services) v. Ivan’s Electric Limited, 2018 ONCJ 165

CITATION: Ontario (Ministry of Government and Consumer Services) v. Ivan’s Electric Limited, 2018 ONCJ 165 DATE: March 8, 2018 IN THE MATTER OF the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A . and Ontario Regulation 17/05 Between Her Majesty The Queen In Right Of Ontario As Represented By The Ministry of Government And Consumer Services prosecutor and Ivan’s Electric Limited, Ivan Valovic, Insight Electric Inc., and Peter Valovic (No. 2) defendants Ontario Court of Justice Brampton, Ontario Quon J.P. Reasons for Sentence Sentencing hearing held : December 13, 2017 Sentencing Judgment released : March 8, 2018

Counsel: G. Ludlow, counsel for the Ministry of Government and Consumer Services. T. Hein and J. Noonan, counsel for Ivan’s Electric Limited and Ivan Valovic P. Mergler, counsel for Insight Electric Inc. and Peter Valovic Cases Considered or Referred To: Ivan Valovic and Ivan’s Electric C. v. Director, Licensing and Certification (Electrical Safety Authority), 26 August 2011, NOAL 09-13and NOAL 09-14, ESA Review Panel. Ivan Valovic and Ivan’s Electric C. v. Director, Licensing and Certification (Electrical Safety Authority), 9 September 2011, NOAL 09-13 and NOAL 09-14, ESA Review Panel.

La Souveraine, Compagnie d'assurance générale v. Autorité des marchés financiers, [2013] S.C.J. No. 63 (S.C.C.). Lavin Agency Ltd. v. Blackhall & Co., [2004] O.J. No. 1287 (O.C.A.), per Simmons, Armstrong JJ.A. and Lane J. (ad hoc). Mayburry Inc. v. Ontario Electrical Safety Code, [2014] O.J. No. 4926 (Ont. Div. Ct.), per Hambly, Brown and Gilmore JJ. Ontario (Ministry of Government and Consumer Services) v. Ivan's Electric Ltd., [2017] O.J. No. 1707 (O.C.J.), per Quon J.P. R. v. Cirillo and 1614862 Ontario Inc., 10 February 2010, Central East Region, 999-07-0272, Newmarket, Ontario, Ont.

Ct. of Justice,per Favret J. R. v. Cotton Felts Ltd. (1982), (ON CA), 2 C.C.C. (3d) 287 (O.C.A.), per Martin, Zuber and Blair JJ.A. R. v. Belisle, [2011] O.J. No. 1326 (O.C.J.), per Legault J. R. v. Hatzipetrakos, 1674509 Ontario Ltd. and 1758658 Ontario Inc., 5 September 2017, Central East Region, 3811-999-10-639-01,Barrie, Ontario, Ont. Ct. of Justice, per Krelove J. R. v. Horowitz, 6 September 2017, Toronto, Ontario, Ont. Ct. of Justice, per Green J. R. v. Lesson, (BC CA), [1990] B.C.J. No. 833, 53 C.C.C. (3d) 365(B.C.C.A.). R. v. McLeod, (SK CA), [1992] S.J. No. 672 (Sask. C.A.).

R. v. Pellegrini, 2006 ONCJ 297 , [2006] O.J. No. 3369 (O.C.J.), per Quon J.P. R. v. Storey, [2016] O.J. No. 690 (O.C.J.), per Harris J. R. v. Valovic, [2006] O.J. No. 5564 (O.C.J.), per Allen J. R. v. Valovic, [2007] O.J. No. 2775 (O.C.J.), per Allen J. R. v. Valovic, [2009] O.J. No. 6494 (S.C.J.O.), per Belleghem J. R. v. Valovic, [2011] O.J. No. 1819 (O.C.A.), per Simmons, Rouleau and Karakatsanis JJ.A. R. v. Valovic, [2011] S.C.C.A. No. 285 (S.C.C.). R. v. Wholesale Travel Group Inc. (1991), (SCC), 67 C.C.C. (3d) 193, [1991] 3 S.C.R. 154, [1991] S.C.J. No. 79(S.C.C.). Schnarr v. Blue Mountain Resorts Ltd., [2017] O.J. No. 166 (S.C.J.O.), per Tzimas J. Woodhouse v. Snow Valley Resorts

(1987) Ltd., [2017] O.J. No. 232 (S.C.J.O.), per McCarthy J. Valovic v. Electrical Safety Authority Review Panel, (Ont. Div. Ct.), per Sachs, Thorburn andRicchetti JJ. Statutes, Regulations, and Bills Cited: Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A., ss. 117. Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 72 and 72(3)(a). Authorities Considered or Referred To:

Business Guide To Consumer Protection , online: Ministry of Government and Consumer Services website, “direct agreements”. Canadian Encyclopedic Digest: Sentencing: IV – Types of Sentence, 1 – Imprisonment, (a) - General Considerations (WestlawNest Canada: Thomson Reuters Canada Limited), s. 532. Canadian Encyclopedic Digest: Sentencing: II – Factors Considered in Passing Sentence, 6 – Trial, Criminal Process and Applicable Law, (e) - Mistake or Ignorance of Law (WestlawNest Canada: Thomson Reuters Canada Limited), s. 186. Drinkwalter, W.D. and Ewart, J.D.

Ontario Provincial Offences Procedure (Toronto, Canada: The Carswell Company Limited, 1980). Halsbury’s Laws of Canada, First edition (Markham, Ont.: Lexis Nexis Canada, 2011) at p. HCP 5. McNaughton, E. L. and Sabet, P. A Guide to the Ontario Consumer Protection Act, 2008 edition ( Markham, Ont: LexisNexis, 2007). Roach, K. Criminal Law, 2nd ed. (2000) (Toronto, Canada: Irwin Law Inc., 2000),

Chapter 4,

section 4(D) . Exhibits Entered: 11 exhibits were entered at the sentencing hearing. 1. BACKGROUND [ 1 ] This is the sentencing disposition of Ivan Valovic, Ivan's Electric Ltd., Peter Valovic, and Insight Electric Inc., who have been convicted for committing offences under the Consumer Protection Act, 2002 , S.O. 2002, c. 30, Sched. A (“ CPA 2002 ”) and its regulations.

The prosecution is seeking jail sentences while counsel for the convicted offenders argue that custodial sentences are not warranted or needed to achieve the objective of deterrence. [ 2 ] The trial of the four offenders had been held between October 9, 2014 and November 2, 2016, with the four offenders originally facing 103 charges set out in 46 counts in three separate informations. Of the 103 charges, 89 convictions were entered respectively against the 4 offenders while acquittals were entered for 14 of the charges. See Ontario (Ministry of Government and Consumer Services) v.

Ivan's Electric Ltd. , [2017] O.J. No. 1707 (O.C.J.) .

[ 3 ] Of the 89 convictions, Ivan Valovic was convicted of committing 25 offences; Ivan’s Electric Ltd. was convicted of committing 25 offences; Peter Valovic was convicted of committing 19 offences; and Insight Electric Inc. was convicted of committing 20 offences. [ 4 ] For each of them individually, the following are the particular counts and the particular type of offence that each of them had been convicted of committing: (

a) for the individual, Ivan Valovic (25 convictions) : - on Information #5731: counts #2, #4, #7, #8, #9, #11, #12, and #14 (8 convictions); - on Information #5740: counts #1, #2, #4 and #5 (4 convictions); and - on Information #8091counts #1, #5, #7, #9, #11, #13, #15, #17, #19, #21, #23, #25, and #27 (13 convictions) . (i) 11 of Ivan Valovic’s convictions were for failing to deliver to a consumer a direct agreement containing the information required by s. 35(1) of Ont.

Reg. 17/05. (ii) 1 of Ivan Valovic’s convictions were for being a director of the corporation, Ivan’s Electric Ltd., who had failed to take reasonable care to prevent the corporation from failing to deliver to a consumer a direct agreement containing the information required by s. 35(1) of Ont. Reg. 17/05. (iii) 5 of Ivan Valovic’s convictions were for failing to provide a refund to a consumer within 15 days after the date the said consumer gave notice of cancellation, contrary to s. 96(1)(

a) of CPA 2002. (iv) 1 of Ivan Valovic’s convictions were for being a director of the corporation, Ivan’s Electric Ltd., who had failed to take reasonable care to prevent the corporation from failing to provide a refund a consumer within 15 days after the date the said consumer gave notice of cancellation, contrary to s. 96(1)(

a) of the CPA 2002. (v) 7 of Ivan Valovic’s convictions for were for engaging in an unfair practice by making a false, misleading or deceptive representation to a consumer, contrary to s. 17(1) of the CPA 2002. (

b) for the corporation, Ivan's Electric Ltd. (25 convictions) : - on Information #5731: counts #1, #3, #7, #8, #9, #11, #12, and #14 (8 convictions); - on Information #5740: counts #1, #2, #4 and #5 (4 convictions); - on Information #8091: counts #1, #5, #7, #9, #11, #13, #15, #17, #19, #21, #23, #25, and #27 (13 convictions) . (i) 12 of Ivan's Electric Ltd.’s convictions were for failing to deliver to a consumer a direct agreement containing the information required by s. 35(1) of Ont. Reg. 17/05. (ii) 6 of Ivan's Electric Ltd.’s convictions were for failing to provide a refund to a consumer within 15 days after the date the said consumer gave notice of cancellation, contrary to s. 96(1)(

a) of CPA 2002. (iii) 7 of Ivan's Electric Ltd.’s convictions were for engaging in an unfair practice by making a false, misleading or deceptive representation to a consumer, contrary to s. 17(1) of the CPA 2002.

(

c) for the individual, Peter Valovic (19 convictions) : - on Information #5731: counts #13 and #15 (2 convictions); - on Information #5740: counts #1, #2, #4 and #5 (4 convictions); and - on Information #8091: counts #2, #6, #8, #10, #12, #14, #16, #18, #20, #22, #24, #26, and #28 (13 convictions) . (i) 2 of Peter Valovic’s convictions were for failing to deliver to a consumer a direct agreement containing the information required by s. 35(1) of Ont.

Reg. 17/05. (ii) 7 of Peter Valovic’s convictions were for being a director of the corporation, Insight Electric Inc., who had failed to take reasonable care to prevent the corporation from failing to deliver to a consumer a direct agreement containing the information required by s. 35(1) of Ont.

Reg. 17/05. (iii) 4 of Peter Valovic’s convictions were for being a director of the corporation, Insight Electric Inc., who had failed to take reasonable care to prevent the corporation from failing to provide a refund a consumer within 15 days after the date the said consumer gave notice of cancellation, contrary to s. 96(1)(

a) of the CPA 2002. (iv) 2 of Peter Valovic’s convictions were for engaging in an unfair practice by making a false, misleading or deceptive representation to a consumer, contrary to s. 17(1) of the CPA 2002. (v) 4 of Peter Valovic’s convictions were for being a director of the corporation, Insight Electric Inc., who had failed take reasonable care to prevent the corporation from engaging in an unfair practice by making a false, misleading or deceptive representation to a consumer, contrary to s. 17(1) of the CPA 2002. (

d) for the corporation, Insight Electric Inc. (20 convictions) : - on Information #5731: counts #11, #12, and #14 (3 convictions); - on Information #5740: counts #1, #2, #4 and #5 (4 convictions); and - on Information #8091: counts #1, #5, #7, #9, #11, #13, #15, #17, #19, #21, #23, #25, and #27 (13 convictions) . (i) 9 of Insight Electric Inc.’s convictions were for failing to deliver to a consumer a direct agreement containing the information required by s. 35(1) of Ont. Reg. 17/05. (ii) 4 of Insight Electric Inc.’s convictions were for failing to provide a refund to a consumer within 15 days after the date the said consumer gave notice of cancellation, contrary to s. 96(1)(

a) of CPA 2002. (iii) 7 of Insight Electric Inc.’s convictions were for engaging in an unfair practice by making a false, misleading or deceptive representation to a consumer, contrary to s. 17(1) of the CPA 2002. (

A) AVAILABLE PENALTIES UNDER THE CPA 2002 THAT MAY BE IMPOSED

[ 5 ] Upon conviction for committing an offence under the CPA 2002 or under its regulations, Ivan Valovic and Peter Valovic, would be liable under s. 116(5) of that legislation 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 to both.

For Ivan's Electric Ltd. and Insight Electric Inc., both corporations would be both liable to a fine of not more than $250,000 upon conviction for committing an offence under the CPA 2002 or under its regulations: Penalties 116(5) 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. [ 6 ] Moreover, s. 117 of the CPA 2002 allows for a sentencing court to order a person convicted of committing an offence under the CPA 2002 to pay compensation or make restitution: Orders for compensation, restitution 117.

If a person is convicted of an offence under this Act, the court making the conviction may, in addition to any other penalty, order the person convicted to pay compensation or make restitution. [ 7 ] In addition, the restitution order may be included as a condition of a probation order issued under s. 72 of the Provincial Offences Act , R.S.O. 1990, c. P.33, by virtue of 72(3)(a) [ emphasis is mine below ]: Probation order 72

(1) Where a defendant is convicted of an offence in a proceeding commenced by information, the court may, having regard to the age, character and background of the defendant, the nature of the offence and the circumstances surrounding its commission, (

a) suspend the passing of sentence and direct that the defendant comply with the conditions prescribed in a probation order; (

b) in addition to fining the defendant or sentencing the defendant to imprisonment, whether in default of payment of a fine or otherwise, direct that the defendant comply with the conditions prescribed in a probation order; or (

c) where it imposes a sentence of imprisonment on the defendant, whether in default of payment of a fine or otherwise, that does not exceed ninety days, order that the sentence be served intermittently at such times as are specified in the order and direct that the defendant, at all times when he or she is not in confinement pursuant to such order, comply with the conditions prescribed in a probation order. Statutory conditions of order

(2) A probation order shall be deemed to contain the conditions that, (

a) the defendant not commit the same or any related or similar offence, or any offence under a statute of Canada or Ontario or any

other province of Canada that is punishable by imprisonment; (

b) the defendant appear before the court as and when required; and (

c) the defendant notify the court of any change in the defendant’s address. Conditions imposed by court

(3) In addition to the conditions set out in subsection (2), the court may prescribe as a condition in a probation order , (

a) that the defendant satisfy any compensation or restitution that is required or authorized by

an Act ; (

b) with the consent of the defendant and where the conviction is of an offence that is punishable by imprisonment, that the defendant perform a community service as set out in the order; (

c) where the conviction is of an offence punishable by imprisonment, such other conditions relating to the circumstances of the offence and of the defendant that contributed to the commission of the offence as the court considers appropriate to prevent similar unlawful conduct or to contribute to the rehabilitation of the defendant; or (

d) where considered necessary for the purpose of implementing the conditions of the probation order, that the defendant report to a responsible person designated by the court and, in addition, where the circumstances warrant it, that the defendant be under the supervision of the person to whom he or she is required to report. Form of order

(4) A probation order shall be in the prescribed form and the court shall specify therein the period for which it is to remain in force, which shall not be for more than two years from the date when the order takes effect. Notice of order

(5) Where the court makes a probation order, it shall cause a copy of the order and a copy of

section 75 to be given to the defendant. Regulations for community service orders

(6) The Lieutenant Governor in Council may make regulations governing restitution, compensation and community service orders, including their terms and conditions. Exception

(7) The court shall not make a probation order when an individual has been convicted of an absolute liability offence, unless the order is made in addition to a sentence of imprisonment imposed under

section 69 in default of payment of a fine.

When order comes into force 73

(1) A probation order comes into force, (

a) on the date on which the order is made; or (

b) where the defendant is sentenced to imprisonment other than a sentence to be served intermittently, upon the expiration of that sentence. Continuation in force

(2) Subject to

section 75, where a defendant who is bound by a probation order is convicted of an offence or is imprisoned in default of payment of a fine, the order continues in force except in so far as the sentence or imprisonment renders it impossible for the defendant to comply for the time being with the order. (

B) ARGUMENTS FOR WHY PARTICULAR SANCTIONS ARE BEING SOUGHT BY THE RESPECTIVE PARTIES:

(1) SANCTIONS SOUGHT BY THE PROSECUTION: [ 8 ] The prosecution submits that based on the circumstances, nature, and gravity of the offences committed by the four convicted offenders, the appropriate sentences that should be imposed should consist of the following: (

a) for the individual, Ivan Valovic (25 convictions) : [ 9 ] For Ivan Valovic, the prosecution is not seeking any monetary fines to be imposed for any of his 25 convictions, as the prosecution contends that even significant fines will not deter him from using “dishonesty and guile” in dealing with consumers in the future, since he, his wife, and his company, Ivan's Electric Ltd., had been already sentenced to pay a large fine totalling approximately $255,000 for tax evasion offences and that he had also been warned by the Electrical Safety Authority (ESA), which is the governing body regulating electrical safety and the licensing of master electricians and electrical contractors in Ontario, about his lack of integrity and honesty in dealing with consumers and that he had also been threatened with the suspension of his master electrician’s licence and the electrical contractor’s licence of his company, Ivan's Electric Ltd., yet large fines and warnings from the ESA has not specifically deterred Ivan Valovic from dealing unfairly with and taking advantage of vulnerable consumers. [ 10 ] As a result, the prosecution is seeking a total period of incarceration of 4½ months for Ivan Valovic.

For the term of 4 and ½ months of imprisonment for Ivan Valovic, the prosecution submits that the 4½ months of imprisonment (or 130 days of imprisonment in total) is to be served consecutively and can be divided among the following 13 of his convictions in the following way: (i) 10 days of imprisonment to be served consecutively for each of the 5 convictions for failing to provide a refund ( 50 days ); (ii) 10 days of imprisonment to be served consecutively for 1 conviction for being a director of the corporation, Ivan’s Electric Ltd., who had failed to take reasonable care to prevent the corporation from failing to provide a refund ( 10 days ); and (iii) 10 days of imprisonment to be served consecutively for each of the 7 convictions for engaging in an unfair practice ( 70 days ).

[ 11 ] As well, the prosecution is seeking that Ivan Valovic receive a higher sentence than Peter Valovic would receive. [ 12 ] In addition, the prosecution is requesting an additional sanction for Ivan Valovic to prevent Ivan Valovic from committing similar offences in the future by having Ivan Valovic placed on probation for a period of 2 years with the 3 statutory conditions set out under s. 72(2) of the Provincial Offences Act , R.S.O. 1990, c.

P.33, and that additional conditions be imposed in the probation order that prohibit Ivan Valovic from doing any electrical work in residential houses (except for his own residence or other property that he legally owns) and that Ivan Valovic is also required to pay the following amounts of monetary restitution to the following people: (

i) one-half of the amount of $855.73 to Denise Herold, (ii) the full amount of $885 to Boris Wolchak, (iii) one-half of the amount of $296.80 to Gladys Canadas, (iv) one-half of the amount of $1695 to Peter Christensen, (

v) one-half of the amount of $960.50 to Zaven Tahtadjian, (vi) one-half of the amount of $100 to Marjorie Riley. (

b) for the corporation, Ivan's Electric Ltd. (25 convictions) : [ 13 ] For Ivan's Electric Ltd., the prosecution is seeking fines totaling $65,000 for its 25 conviction, which would be comprised of the following: (

i) a $5000 fine for each of the 7 unfair practice convictions, that would total $35,000 . (ii) a $3000 fine for each of the 6 fail to refund convictions, that would total $18,000 . (iii) a $1000 fine for each of the 12 improper agreement convictions, that would total $12,000 . (

c) for the individual, Peter Valovic (19 convictions) : [ 14 ] For Peter Valovic, the prosecution is also not seeking any monetary fines to be imposed against Peter Valovic for any of his 19 convictions, but is instead seeking a custodial sentence for Peter Valovic that would total 80 days imprisonment , which could be served intermittently. [ 15 ] However, in respect to the 9 convictions Peter Valovic had received in respect to the improper contract offences, the prosecution is seeking a suspended sentence on each of them for Peter Valovic.

[ 16 ] For the 80-day term of imprisonment for Peter Valovic, the prosecution submits that the 80 days of imprisonment in total that are to be served consecutively can be divided among the remaining 10 convictions in respect to the unfair practices and fail to refund offences in the following way: (i) 10 days of imprisonment to be served consecutively for each of the 2 convictions for engaging in an unfair practice (total of 20 days ); (ii) 10 days of imprisonment to be served consecutively for each of the 4 convictions for being a director of the corporation, Insight Electric Inc., who had failed to take reasonable care to prevent the corporation from engaging in an unfair practice (total of 40 days ); and (iii) 5 days of imprisonment to be served consecutively for each of the 4 convictions for being a d irector of the corporation, Insight Electric Inc., who had failed to take reasonable care to prevent the corporation from failing to provide a refund (total of 20 days ). [ 17 ] In addition, the prosecution is also seeking an additional sanction for Peter Valovic in order to prevent Peter Valovic from committing similar offences in the future by having Peter Valovic placed on probation for a period of 2 years with the 3 statutory conditions set out under s. 72(2) of the Provincial Offences Act , R.S.O. 1990, c.

P.33, and with the additional condition that he also pay the following amounts of monetary restitution to the following people: (1) one-half of the amount of $855.73 to Denise Herold, (2) one-half of the amount of $296.80 to Gladys Canadas, (3) one-half of the amount of $1695 to Peter Christensen, (4) one-half of the amount of $960.50 to Zaven Tahtadjian, (5) one-half of the amount of $100 to Marjorie Riley. (

d) for the corporation, Insight Electric Inc. (20 convictions) : [ 18 ] For Insight Electric Inc. , the prosecution is seeking fines totaling $56,000 for the 20 convictions, which would be comprised of the following: (

a) a $5000 fine for each of the 7 “unfair practice” convictions, that would total $35,000 . (

b) a $3000 fine for each of the 4 “fail to refund” convictions, that would total $12,000 . (

c) a $1000 fine for each of the 9 “improper agreement” convictions, that would total $9,000 .

(2) THE PROSECUTION SUBMITS THAT CUSTODIAL SENTENCES ARE APPROPRIATE FOR IVAN VALOVIC AND PETER VALOVIC IN ORDER TO ACHIEVE THE SENTENCING OBJECTIVES OF DETERRENCE, DENUNCIATION, AND PROTECTION OF THE PUBLIC [ 19 ] The prosecution contends that similar to the nature, gravity, and circumstances of the offences that have been committed in other cases prosecuted under consumer protection legislation in which custodial sentences were handed out to convicted suppliers of goods and services, even for first time offenders, that custodial sentences would be appropriate and justified in the present circumstances and for the nature and gravity of the CPA 2002 offences committed by both Ivan Valovic and Peter Valovic.

Moreover, the prosecution submits that custodial sentences would send out the necessary message of “deterrence” to both Ivan Valovic and to Peter Valovic and to like-minded

persons, as well as to the public in general, so as to protect consumers and to allow the consumer economy to function, as well as toensure consumers that they may have confidence in calling suppliers and in placing a deposit with the supplier and that they would betreated fairly by suppliers, and along with the knowledge that if the suppliers do not act honestly and fairly, then the courts will imposeappropriate sanctions against these suppliers, that could include jail sentences. [20] In addition, the prosecution is seeking a higher and longer custodial sentence for Ivan Valovic in comparison to the custodialsentence requested for Peter Valovic because Ivan Valovic had been the one who had been the one that negotiated agreements with theconsumers and used “dishonesty and guile” and in dealing unfairly with vulnerable consumers in the offences committed; while PeterValovic, who had been aware of the nature of the CPA 2002 and had studied this particular legislation in his Master Electrician’s course,had failed to properly supervise Ivan Valovic when Ivan Valovic had been doing electrical work for Peter Valovic’s company, InsightElectric Inc. [21] Moreover, to justify the imposition of custodial sentences for both Ivan Valovic and Peter Valovic, the prosecution relies on thefollowing cases in which custodial sentences were imposed on suppliers who were convicted for committing offences under the CPA2002: (

a) In R. v. Cotton Felts Ltd. (1982), (ON CA), 2 C.C.C. (3d) 287 (O.C.A.), at pp. 294 to 296, the Court of Appealfor Ontario had recognized that for a very large extent the enforcement of public welfare offences is achieved through fines and that theamount of the fine will be determined by the need to enforce regulatory standards by “deterrence”.

In addition, the Court of Appeal heldthat the amount must be substantial and significant so that it will not be viewed as merely a licence for illegality, nor as a mere slap onthe wrist and that it should also serve as a warning to others who might be minded to engage in similar criminal activity that it would becostly for them to do so and that “general deterrence” was the paramount factor to be considered in arriving at an appropriate sentence.

Furthermore, the Court of Appeal held that the fine, without being harsh, must be substantial enough to warn others that the offence willnot be tolerated [emphasis is mine below]: The Occupational Health and Safety Act is part of a large family of statutes creating what are known as public welfare offences. The Acthas a proud place in this group of statutes because its progenitors, the Factory Acts, were among the first modern public welfarestatutes designed to establish standards of health and safety in the work place.

Examples of this type of statute are legion and cover allfacets of life ranging from safety and consumer protection to ecological conservation. In our complex interdependent modern societysuch regulatory statutes are accepted as essential in the public interest. They ensure standards of conduct, performance and reliabilityby various economic groups and make life tolerable for all. To a very large extent the enforcement of such statutes is achieved by finesimposed on offending corporations.

The amount of the fine will be determined by a complex of considerations, including the size of thecompany involved, the scope of the economic activity in issue, the extent of actual and potential harm to the public, and the maximumpenalty prescribed by statute. Above all, the amount of the fine will be determined by the need to enforce regulatory standards bydeterrence: see R. v. Ford Motor Co. of Canada Ltd. (1979), (ON CA), 49 C.C.C. (2d) 1 at p. 26, 5 M.V.R. 237, perMacKinnon A.C.J.O., Nadin-Davis, Sentencing in Canada (1982), p. 368 and cases therein cited.

In conclusion, I feel that a fine that is more than nominal, but which is not harsh, would be appropriate in this case. The amount must besubstantial and significant so that it will not be viewed as merely a licence for illegality, nor as a mere slap on the wrist. The amountmust be one that would be felt by this defendant.

It should also serve as a warning to others who might be minded to engage in similarcriminal activity that it will be costly for them to do so even if they do not succeed in their illegal aims. [page295] The sentence was upheld by this court, (ON CA), 62 C.C.C. (2d) 118 at pp. 160-1, 125 D.L.R. (3d) 607, 33 O.R. (2d)10, where my brother Martin said: A careful examination of those reasons satisfies me that he considered that general deterrence was the paramount factor to be consideredin arriving at an appropriate sentence. Another example is provided by this court's decision in R. v.

K-Mart Canada Ltd. (1982), (ON CA), 66 C.C.C. (2d)329, 28 C.R. (3d) 271. In that case the court increased a fine of $25,000 to $100,000 for a company convicted of conspiring to interferewith the formation and operation of a trade union, contrary to the Labour Relations Act, R.S.O. 1970, c. 232, now R.S.O. 1980, c. 228. Inso doing Chief Justice Howland had this to say at p. 332: In our opinion, the fine imposed did not adequately reflect the gravity of the offence and was an error in principle.

The fine must not betantamount to a licence fee to commit illegal activity, but must be sufficiently substantial to warn others that such illegal activity will notbe tolerated.

The main factors in the computation of a fine expressed in these decisions are the same as those expressed by Judge Dnieper. Withoutbeing harsh, the fine must be substantial enough to warn others that the offence will not be tolerated. It must not appear to be a merelicence fee for illegal activity. With reference to these offences, deterrence is not to be taken only in its usual negative connotation of achieving compliance by threat ofpunishment. Recently my brother Zuber in R. v.

Ramdass, a judgment pronounced on November 17, 1982 [since reported (ON CA), 2 C.C.C. (3d) 247] referred to deterrence in a more positive aspect. There he was dealing with a driving offence and hequoted an earlier unreported decision of this court in R. v. Roussy, unreported, released December 15, 1977 [summarized 2 W.C.B. 72]where the court stated: But in a crime of this type the deterrent quality of the sentence must be given paramount consideration, and here I am using the termdeterrent in its widest sense. A sentence by emphasizing community disapproval of

an act, and branding it as reprehensible has a moralor educative effect, and thereby affects the attitude of the public. One then hopes that a person with an attitude thus conditioned to regardconduct as reprehensible will not likely commit such

an act. This aspect of deterrence is particularly applicable to public welfare offences where it is essential for the proper functioning of oursociety for citizens at large to expect that basic rules are established and enforced to protect the physical, economic and social welfare ofthe public. We are, therefore, satisfied that the learned trial judge took [page296] into account the considerations relevant to the amount of the fineand that the fine was in all respects a fit sentence. Even if we might have been disposed to impose a lesser or a greater fine, we would nothave done so for the reason given by Mr.

Justice Schroeder in R. v. St. Lawrence Corp. Ltd. and 19 other corporations, (ON CA), [1969] 3 C.C.C. 263 at p. 288, 5 D.L.R. (3d) 263, [1969] 2 O.R. 305 at p. 327 where he said that a fine is "peculiarly in thediscretion of the trial Judge -- a discretion with which an appellate Court should not lightly interfere". This principle has been affirmedby this court in other cases: see R. v. Armco Canada Ltd. and 9 other corporations (1976), (ON CA), 30 C.C.C. (2d)183 at p. 198, 70 D.L.R. (3d) 287, 13 O.R. (2d) 32, per Houlden J.A. and R. v. Hoffmann-LaRoche Ltd., supra, per Martin J.A. at p. 161C.C.C., p. 243 C.R. (

b) In Woodhouse v. Snow Valley Resorts

(1987) Ltd., [2017] O.J. No. 232 (S.C.J.O.), at paras. 20 and 21, McCarthy J. had noted thatconsumer protection legislation is all about consumer protection and that its terms should be interpreted generously in favour ofconsumers. Moreover, McCarthy J. explained that consumer protection legislation is inherently consumer-focused as its main objectivesare: (

i) protecting consumers, (ii) restoring balance in the contractual relationship between suppliers and consumers, and (iii) eliminatingunfair and misleading practices [emphasis is mine below]: Intent and Purpose of the CPA Consumer protection legislation is all about consumer protection. As such, its terms should be interpreted generously in favour ofconsumers: Seidel v. TELUS Communications Inc., 2011 SCC 15, [2011] 1 S.C.R. 531, at para. 37. Consumer protection legislation is inherently consumer-focused as its main objectives are: (

i) protecting consumers, (ii) restoringbalance in the contractual relationship between suppliers and consumers, and (iii) eliminating unfair and misleading practices:Ramdath v. George Brown College of Applied Arts and Technology, 2012 ONSC 6173, 113 O.R. (3d) 1531, at para. 36; affirmed inRamdath v. George Brown College of Applied Arts and Technology, 2013 ONCA 468, 307 O.A.C. 196; referring to Richard v. Time Inc.,2012 SCC 8, [2012] 1 S.C.R. 265, at para 50. (

c) In Schnarr v. Blue Mountain Resorts Ltd., [2017] O.J. No. 166 (S.C.J.O.), at paras. 85 to 90, 93 to 95, and 103, Tzimas J. explainedthat the

definitions for consumers, consumer agreements, services and suppliers, are cast in the broadest terms possible and that allconsumers are entitled to the benefits of the protections afforded by the Consumer Protection Act and all suppliers are bound by theobligations defined by the Consumer Protection Act. Moreover, Tzimas J. held that the legislation’s specific and overriding objective is

the protection of consumers so that the substantive and procedural rights under the Act apply "despite any agreement or waiver to thecontrary" [emphasis is mine below]: Turning to the CPA, I begin with the observation that, contrary to the defendant's submission that the CPA be interpreted narrowly toapply to unscrupulous supplier and fraudsters and scam artists, the

definitions for consumers, consumer agreements, services andsuppliers, are cast in the broadest terms possible. There are no qualifying sections or

definitions to limit the ambit of the CPA to asegment of the market, such as fraudsters and scam artists. The concerns to regulate e-commerce and to protect consumers may havebeen the triggering concern to introduce the legislation, but all consumers are entitled to the benefits of the protections afforded by theCPA and all suppliers are bound by the obligations defined by the CPA. Support for this conclusion lies in the legislative history to the CPA. The CPA was first read by the Ontario Legislature on September 26,2002, and was introduced as Bill 180.

The legislation received Royal Assent on December 13, 2002 and came into force on July 30,2005. One of the legislative purposes was to create a single piece of consumer protection legislation by combining six overlappingconsumer protection statutes: the Business Practices Act, R.S.O. 1990, c. B.18, the Consumer Protection Act, 2002, S.O. 2002, c. 30, theConsumer Protection Bureau Act, R.S.O. 1990, c. C.32, the Loan Brokers Act, 1994, S.O. 1994, c. 22, the Motor Vehicle Repair Act,R.S.O. 1990, c. M.43, and the Prepaid Services Act, R.S.O. 1990, c. P.22.

As the Bill worked its way through the various readings, there were references to the need to introduce legislation that would protectconsumers from changes in the economy and the various ways of doing business, particularly as those related to e-commerce andinternet transactions, see Ontario, Legislative Assembly, Official Report of Debates (Hansard), 37th Parl., 3rd Sess., No. 49B (28October 2002) at 2527, and No. 58A (19 November 2002) at 3024, 3025.

Although the Hansard is not received as evidence of legislativeintent and should not be given undue weight, both the Hansard and the Explanatory Notes to Bill 180 are relevant to both thebackground and purpose of the legislation, see R v. Morgentaler, (SCC), [1993] S.C.J. No. 95, at para. 28. Specifically with respect to Consumer Rights and Warranties, in

Part II of the explanatory notes included in Bill 180, it was noted thatnothing in the CPA is to be interpreted to limit any right that services are of a reasonably acceptable quality, or remedy related to suchright, and that ambiguities in any consumer agreement ought to be interpreted in favour of the consumer. Moving to the specifics of the CPA, its specific and overriding objective is the protection of consumers. Section 7(1) recognizes that thesubstantive and procedural rights pursuant to the CPA apply despite any agreement or waiver. It relates to the protection of rightsanticipated only by the CPA.

The waiver provisions of section 7(1) are directed at protecting a consumer's substantive and proceduralrights under the Act. The particular right at issue on this motion is the deemed warranty that a consumer shall receive services of a"reasonably acceptable quality" as articulated in section 9(1). It is expressly noted that section 7(1) does not seek to look behind the existence of a waiver. The

section says the substantive andprocedural rights under the Act apply "despite any agreement or waiver to the contrary". In other words, however an agreement or awaiver came to be and by implication, whatever the intentions of the parties in question might have been, the rights under the CPA willsurvive. This approach is in keeping with the CPA's overriding legislative objective to protect consumers.

Whether or not consumersconsider the implications of signing off on a waiver, they will be extended a level of protection as defined by the deemed warranty. … These sections do not speak of a waiver but rather of terms within an agreement. They offer guidance on how a warranty is to bepreserved in the event that a term of an agreement seeks to cancel it out. In either instance the focus is on preserving the deemedwarranty.

It is noted that these sections do not contemplate the voiding of a waiver but rather identify ways of addressing or isolatingthose terms to an agreement that would otherwise undermine the deemed warranty. This is significant because in a waiver such as thedefendant's, which references multiple potential causes of action, in effect there are multiple waivers. Those specific waivers that do nottouch on the CPA protections would not be affected by any remedy designed to protect the CPA's deemed warranty. The goal would be toaddress those terms in the waiver that concern the protections afforded by the CPA.

Section 93 is also instructive in that it identifies the circumstances where a consumer agreement would survive a challenge even if itoffended aspects of the CPA. It is noteworthy that the deemed warranty is not referenced. It is also significant that this

section imports,once again, the notion of severability as it speaks of a consumer being bound by all or a portion or portions of a consumer agreement. Finally, under section 93(2), the circumstances where a court might decide that a consumer be bound by an agreement despite anythingin the CPA are limited to instances where it would be inequitable for the consumer not to be bound. To date, the cases that have

considered the application of this

section have related to instances where consumers received the full benefits of a service or goods and then refused to pay the supplier. Reliance on the protections of the CPA would result in a windfall to the consumer, something that was never anticipated by the legislation . In the case before this court, there is no windfall to the plaintiff from the services he accessed at Blue Mountain. Even though the defendant suggested that this

section might assist the court, it has no application to my analysis. … When considering an appropriate remedy, it is important to note that the CPA does not contemplate the outright voiding of a waiver in its totality . In section 7(1), the protections offered by the CPA survive despite the existence of a waiver. If the complete waiver were to fall, the drafters of the legislation could have said so . Similarly, in sections 9(3) and 9(4), the drafters focused on the particular terms of an agreement and the implications for those terms if they offended the substantive and procedural protections of the CPA.

The approaches of voiding or severing out terms of an agreement to preserve the CPA protections are instructive in that they identify remedies that would serve to isolate the offending terms of an agreement from the balance of the agreement. Technically, if the whole agreement had as its only content the negation of the protections under the CPA, there would be nothing to sever and the whole agreement would be void. But a waiver that seeks to protect an occupier from a multitude of claims amounts to multiple waivers and must be approaching in that way with respect to the identification of an appropriate remedy. (

d) Furthermore, in the unreported decision of Favret J. in R. v. Cirillo and 1614862 Ontario Inc. , 10 February 2010, Central East Region, 999-07-0272, Newmarket, Ontario, Ontario Court of Justice, which concerned the appeal of a custodial sentence that had been imposed under the Consumer Protection Act . In that case, Cirillo had entered into contracts with consumers to provide decking, building of sidewalks, installation of pools and fountains, landscaping, and electrical and wiring. Contracts had been provided to the consumers upon cash deposits being advanced by the consumers.

The jobs, however, were not satisfactorily completed and no funds had been returned to the consumers where jobs were not completed. The consumers had to also hire other contractors to redo or complete the required work. Some of the work provided by Cirillo had also caused unsafe situations. As a result of consumer complaints to the Ministry and a subsequent investigation, Cirillo had been charged for contravening sections of the Consumer Protection Act . Cirillo was subsequently found guilty in absentia and had been sentenced to imprisonment, probation, and to pay restitution.

Cirillo then appealed his custodial sentence. However, Cirillo had paid an amount of $35,000 in restitution back to the affected consumers before the appeal was heard, with approximately $13,000 still outstanding to be paid back to the affected consumers at the time of the sentencing hearing. Favret J. had emphasized, at pp. 6 to 9 of R. v. Cirillo and 1614862 Ontario Inc. , that in these types of transactions consumers rely on the word of contractors that they will and can deliver a safe product in a timely fashion.

In addition, Favret J. noted that protection of the public and the interest of the three victims must also be reflected in any sentence that is imposed. After considering the objectives of the Consumer Protection Act , the aggravating and mitigating factors, the seriousness of the offences, and that the offences had occurred in the same time period, the principles of sentencing including general and specific deterrence, denunciation, reparation to victims, and rehabilitation of Mr. Cirillo, as well as Mr.

Cirillo’s background, Favret J. concluded that a fit sentence would include a custodial sentence in the range of 21 to 45 days followed by a period of 18 months’ probation [ emphasis is mine below ]: Although Her Worship found Mr. Cirillo ran the landscaping business and had a criminal record involving similar offences , I accept that Her Worship did not have the benefit of any information concerning Mr. Cirillo’s personal circumstances as presented by counsel for the Appellant and written submissions filed here. For example, she did not know that Mr.

Cirillo had been in business successfully providing work to many consumers for years, or that he had a substance abuse problem at the time of the event at issue here. The Respondent accepts these facts. … The written submissions do not address the seriousness of the offences and Mr. Cirillo’s criminal record relating to November 14 th , 2005. … The offences are serious . Consumers rely on the word of contractors that they can deliver a safe product in a timely fashion .

Protection of the public and the interest of these three victims must be reflected in any sentence imposed in this case . … Having regard to the objectives of the Consumer Protection Act referred to by counsel, the aggravating and mitigating factors, the seriousness of the offences, and that they occurred in the same time period, the principles of sentencing including general and specific deterrence, denunciation, reparation to victim, and rehabilitation of Mr. Cirillo, as well as Mr.

Cirillo’s background, a fit sentence includes a custodial sentence in the range of 21 to 45 days followed by a period of 18 months probation.

(

e) Additionally, in R. v. Belisle , [2011] O.J. No. 1326 (O.C.J.) , which was also an appeal of a custodial sentence of 75 days for convictions for offences under the Consumer Protection Act , Legault J. had been of the view that a total sentence of 45 days in jail would be a fit sentence for Belisle. In the circumstances of that case, Hubert Belisle had preyed upon a very vulnerable older couple in defrauding them of $29,000 for renovations and repairs of their home that were not completed. Belisle’s victim, Mr. Earl, was eighty- three years of age and suffering from Alzheimer's.

In addition, Belisle had convinced the elderly couple that repairs had been required for their home when in fact they were not. Moreover, the repairs and renovations to the couple’s home were not carried out in a timely manner in light of the significant amount of money that had advanced to Belisle. At paras. 1 and 16 to 30 of R. v. Belisle , Legault J. had held that the finding made by the trial judge that Mr.

Belisle was a predator, who had preyed upon vulnerable people and whose motive had been to take advantage of consumers for Belisle’s own benefit had been supported by the evidence that had been presented at trial.

After considering all the circumstances and the primary objectives of general and specific deterrence in sentencing, Legault J. had been of the view that a total sentence of 45 days in jail would be a fit sentence for Belisle [ emphasis is mine below ]: Hubert Belisle was convicted of three counts of making false, misleading or deceptive representations, contrary to s. 17(1) of the Consumer Protection Act and one count of failing to provide a written agreement containing the information agreed upon , contrary to s. 42 of the same Act. He appeals the total sentence of 75 days in jail imposed by the trial judge .

He is not appealing the probation order imposed requiring him to make restitution in the amount of $29,643. … The facts of this matter warranted the imposition of a jail sentence for the following reasons : Mr. Belisle, in conducting a cold call, preyed upon a very vulnerable older couple, as Mr. Earl, eighty-three years of age, was suffering from Alzheimer's. He convinced them that repairs were required to their home when in fact they were not . The repairs and renovations to the home were not carried out in a timely manner in light of the significant amount of money advanced to him .

He sought significant amounts of additional money from the Earls without justification, attending the bank with Mrs. Earl, aged eighty- one, and requesting bank drafts in his own name rather than in his company's name. His inaction interfered with the enjoyment of the property by the homeowners . He secured over $29,000 from the Earls within a two-week period for four days of work, having provided no proof of the purchase of repair or renovation materials as discussed between them . The primary objectives of sentencing in these circumstances are general and specific deterrence . I am advised that Mr.

Belisle has repaid $8,000 to the Earls as required by his probation order. I am further advised that his business has failed and that he is declaring bankruptcy. These are factors unknown to the trial judge at the time of sentencing. The trial judge concluded that Mr. Belisle was a predator who preyed upon vulnerable people and that his motive was to take advantage of the consumer for his own benefit . These findings are supported by the evidence presented at trial . Furthermore, the trial judge did not fail to consider a relevant factor and did not overemphasize an appropriate factor.

Partial restitution had not been paid at the time of sentencing. I have not been persuaded that the sentence imposed at the time of the trial was demonstrably unfit on the basis of the information the

judge had at that time. Rather the trial judge who imposed the sentence requested by the prosecution was of the opinion that the jailsentence suggested "might even be going a little light with Mr. Belisle." I am mindful of the considerable deference I must accord the sentencing judge. However, Mr. Belisle has repaid over a quarter of therestitution since his conviction. This demonstrates that he respects the judicial process and accepts the financial consequences of hisactions on the Earls. As stated, he has not appealed the order of restitution. In R. v.

Bogart, (2002) (ON CA), 167 C.C.C. (3d) 390, the Ontario Court of Appeal considered the payment ofrestitution between sentencing and the appeal a factor, amongst others, which can justify a reduction in the sentence. Taking all these considerations into account, I am of the view that a total sentence of 45 days in jail is a fit sentence. All counts form partof the same series of events between the 5th and the 18th of July, 2007. Therefore, I am varying the 15 days in jail consecutive imposedon counts three and four to 15 days concurrent to count one and to each other.

The sentence appeal is therefore allowed in part and thesentence is varied to a total of 45 days in jail. The sentence was imposed on counts one and two are upheld. (

f) And, in another unreported decision of R. v. Hatzipetrakos, 1674509 Ontario Ltd. and 1758658 Ontario Inc., 5 September 2017,Central East Region, 3811-999-10-639-01, Barrie, Ontario, Ontario Court of Justice, the convicted supplier, Hatzipetrakos, had beencontracted to renovate and expand a cottage for a consumer for the amount of $96,000. The consumer had provided Hatzipetrakos withthree payments totalling $75,000. However, neither Hatzipetrakos nor any of his companies did any work on the cottage except to gut it.

In addition, neither Hatzipetrakos nor either of his two companies had returned to the cottage to do any further work after it had beengutted. In considering the appeal of Hatzipetrakos’s sentence for his conviction for committing an unfair practice under the ConsumerProtection Act, Krelove J. had stated that he had agreed with the words of Justice Favret in the unreported decision dated September 5,2017 of R. v.

Cirillo and 1614862 Ontario Inc. and 1758658 Ontario Inc., in which Favret J. had adopted the principles of sentencingthat have to be considered with respect to a Consumer Protection Act offence, which would be general and specific deterrence,denunciation, reparation to victims and rehabilitation to the offender. Krelove J. then held that a period of custody of 60 days forHatzipetrakos would adequately balance these relevant sentencing principles [emphasis is mine below]: The facts that were accepted in support of the convictions included the following: Mr.

Hatzipetrakos was the sole officer and director ofthe two corporate Respondents. On August 31, 2008, Teresa Digennaro, a consumer, contracted with the three Respondents to renovateand expand her cottage. The contract was valued at $96,000. Ms. Digennaro provided three payments to the Respondents totalling$75,000. Work was to commence in September 2008, but nothing was done by the Respondents until about January of 2009 when theygutted the existing cottage. Ms. Digennaro contacted Mr. Hatzipetrakos weekly asking why work was not progressing. Mr.Hatzipetrakos regularly provided excuses for the lack of work.

In November 2008 Mr. Hatzipetrakos promised to complete the work. The Respondents never returned to do any further work on the cottage after it was gutted. From the date the cottage was gutted to thedate of the plea on November 17, 2011 Ms. Digennaro was unable to use her cottage. At the time of the plea Ms. Digennaro wascontinuing to repay her bank for the loan she used to pay the Respondents. … I agree with the words of Justice Favret set out in the Ontario Court of Justice decision R. v.

Cirillo and 1614862 Ontario Inc., which isan unreported decision dated February 10th, 2010 that the principles of sentencing to be considered with respect to a ConsumerProtection Act offence are general and specific deterrence, denunciation, reparation to victims and rehabilitation to the offender. … In my view, the period of custody suggested by counsel for the Appellant of 60 days would adequately balance these relevant sentencingprinciples. This sentence could be served intermittently. … … Since the sentencing hearing [made by the trial judge] Mr.

Hatzipetrakos has substantially complied with the terms of his probationover some 24 months. He has paid more restitution. He has performed the 80 hours of community service work dictated by theprobation order. Therefore, I find that it would be unjust and unfair to impose the jail sentence on Mr. Hatzipetrakos at this point intime, even though it was initially warranted.

… The suspended sentences imposed upon the two corporate Respondents were clearly deficient and failed to recognize the relevant sentencing principles . These sentences will be varied to be fines of $10,000 per corporate Respondent with 30 days to pay . (

g) Moreover, in R. v. Storey , [2016] O.J. No. 690 (O.C.J.) , which was another case involving a sentence appeal of custodial sentences imposed on convictions for offences under the Consumer Protection Act . In that case Storey and Cordeiro, who were jointly involved in the business of remodeling kitchens, had been both charged with a number of offences contrary to the Consumer Protection Act in relation to 5 consumers. The 5 consumers had provided substantial deposits and received little or nothing in return.

Both Storey and Cordeiro had been sentenced to custodial sentences after they were convicted of committing these offences, even though both had no criminal record, other convictions, or a record under the Consumer Protection Act .

Harris J. on granting the sentence appeal had held, at paras. 3 to 11 and 20 to 27, that for Storey, who had been the one who had made exaggerated pitches to the consumers and who had struck agreements with them, the appropriate sentence for him would be for a period of imprisonment of 30 days for each of the 5 counts in respect to committing unfair practices to be served concurrently, as well as 15 days for each of the other 5 counts for failing to provide refunds to be served concurrently, but consecutive to the first 30 days for a total of 45 days (which could be served intermittently), probation for two years, and to comply with a standalone restitution order; while for Cordeiro, who had been an officer and director of the company and who had failed to prevent the offences from occurring, the appropriate sentence would be 15 days of imprisonment for each count to be served concurrently, probation for two years, and a standalone restitution order [ emphasis is mine below ]: Mr.

Storey appealed against his convictions and against the sentences . This appeal has been the subject of a judicial pretrial, involving counsel for the Ministry of Consumer Services and counsel for Mr. Storey. Counsel have proposed a resolution with respect to this appeal and I am satisfied that the resolution is eminently reasonable in the circumstances. With respect to all counts, the appeal against a finding of guilt and in the appropriate cases, conviction, is dismissed.

With respect to the appeals against sentence, the sentence of imprisonment for 30 days of jail with respect to counts 1, 6, 11, 16 and 21, are to be varied to direct that they be served concurrently and on an intermittent basis . The sentences of imprisonment for 15 days, with respect to counts 3, 8, 13, 18 and 23, shall be amended to direct that they be served concurrently to each other, but consecutively to the 30 days mentioned above . In addition, Mr. Storey will be bound by the two year probation order that continues in existence, but it will commence today .

With respect to the intermittent portion of the sentence, Mr. Storey will be taken into custody today and held in custody until January 24, 2016 at 12:00 noon, whereupon he shall be released from custody. He will return to the jail on February 2, 2016, at 6:00 a.m., and he will remain there until the sentence is completed. There will be standalone restitution orders made in the amounts of $2,500 in favour of Bruce Barnes, $1,253.50 in favour of Moussa, Faddoul, $12,366.25 to Lorne Garlough and $2,246.53 to Ann Tekatch .

With respect to the probation order, I will note that the restitution or payment term in that order shall be varied, to require that Richard Storey pay no less than $500 in restitution each month in consecutive months, commencing on the first day of the month, following his release from custody and continuing on the first day of each month, for the duration of the probation order or until a total restitution of $18,366.28 is paid, whichever should occur first.

Restitution payments made by him are in satisfaction of the terms of probation or otherwise, shall be prorated and credited against the standalone restitution orders. …

Mr. Cordeiro has appealed against both the convictions and the sentences . This matter has been the subject of judicial pretrial. The appeal against conviction will be dismissed on consent. The appeals against sentence will be allowed on consent. With respect to the period of imprisonment, I note that counsel for the Ministry asked for imprisonment for 15 days per count, to be served on a concurrent basis. The presiding Justice of the Peace, for some reason, imposed sentences on a consecutive basis. There is no apparent justification for this departure from the position that was taken by counsel for the Ministry.

It is agreed that the sentence originally imposed was unreasonable and to allow it to stand would bring the administration of justice into disrepute. Mr. Cordeiro did, in fact, serve some 11 days in custody. With credit for remission to which he was entitled, this would have been the equivalent of at least the 15 day sentence. Accordingly, on consent, the sentence with respect to each of the counts will be varied to time served, 11 days presentence custody credited as 15 days . The probation for two years will continue.

There will be standalone restitution orders in the amount of $2500, in favour of Bruce Barnes. $1,253.50 in favour of Moussa Faddoul, $12,366.25 to Lorne Garlough and $2,246.53 to Ann Tekatch . The probation order will be varied to the extent that the restitution/payment term will be varied to require that Peter Cordeiro pay no less than $430 per month, restitution, each month in consecutive months commencing on the 1st day of February, 2016 and continuing on the first day of each month following for the duration of the probation order or until total restitution of $18,366.28 is paid, whichever occurs first.

Restitution payments made by him are in satisfaction of the terms of probation or otherwise, shall be prorated and credited against the standalone restitution orders. (

h) Furthermore, in another unreported decision of R. v. Horowitz , 6 September 2017, Toronto, Ontario, Ontario Court of Justice, which was also an appeal of the custodial sentence that had been originally imposed on Horowitz for committing 15 offences under the Consumer Protection Act . Horowitz had contracted with three home owners regarding repairs, renovations, and construction projects attaching to their properties. None of the projects was completed, at least not to the satisfaction of the homeowners and each of the homeowners had suffered substantial losses.

Horowitz’s work was incomplete and substandard, and he had also represented himself as having been insured and licenced in manners that were not true. At the time of the trial for those 15 offences, Horowitz was a 71 or 72- year old first-time offender (similar to Ivan Valovic’s present age and personal circumstances), who had no prior conflicts with the law and apart from his business interest, had been a contributing member of society.

Green J. subsequently decided in that sentence appeal that the appropriate sentence for Horowitz would be 90 days for each of 6 counts to be served intermittently and concurrently even though Horowitz was a 71 or 72-year old first-time offender [ emphasis is mine below ]: Marvin Horowitz, appeals against the sentence . The sentence he received following his trial in 2012, I believe, for offences he was found to have committed in 2010 and 2011, pursuant to the Consumer Protection Act. He was [charged] with and convicted of some 15 offences. Mr.

Horowitz was in the business of , what I will call, for want of a better word, general contracting, and he contracted with three consumers, home owners, regarding repairs, renovations, construction projects attaching to their properties. None of the projects was completed, at least not to the satisfaction of the consumers. Each of the three consumers suffered substantial losses , as found by the trial judge. And Mr.

Horowitz, in effect, was alleged to have made false representations to the consumers, the complainants, that induced them to participate in the contractual arrangement, to excuse his underperformance, and to maintain their payments to him in circumstances that in the end at trial have been found to amount to unfair practices. … Mr. Horowitz represented himself at trial. He appeared then as a 71 or 72-year old first offender. He had no prior conflicts with the law.

He was, apart from his business interest, a contributing member of society , having devoted himself to members involved in the, in Alcoholics Anonymous for many years. He had, in all three cases, performed some amount of the work he had undertaken to complete, in one case, approximately 60 percent, as found by an auditor, His work, in any event, was incomplete, substandard, and he represented himself as having been insured and licenced in manners that were, in fact, simply untrue . … …

… In my view, the appropriate disposition here would be one of 90 days concurrent with respect to those offences for which he received sentence of imprisonment at his trial. So that’s 90 days, I believe, times six but to be served concurrently.

The sentence will be served intermittently. [ 22 ] And, even though the cases relied upon by the prosecution to support custodial sentences for both Ivan Valovic and Peter Valovic may appear to be significantly different to the present case because little or no work had been provided by those convicted suppliers to their consumers after the consumers had paid large deposits for the contracted work, as opposed to the present circumstances involving Ivan Valovic and Peter Valovic, in which their electrical work had been completed as had been contracted for and had passed Electrical Safety Authority inspection (except for the two consumers Denise Herold and Boris Wolchak who had paid deposits for future work and then cancelled their jobs and had received partial refunds of their deposits), the prosecution contends that those cases are not that different to the present case in the sense that the offenders in those cases had sought to take advantage of the consumer’s situation, preyed on their weakness, and had exploited the power imbalance and treated the vulnerable consumers unfairly. [ 23 ] In addition, the prosecution submits that both Ivan Valovic and Peter Valovic lead a comfortable, wonderful, and idyllic life.

Moreover, the prosecution contends that their conduct in this case had not resulted from addiction, gambling, or a death of a family member that would have caused them from being able to cope with conducting their respective personal affairs and businesses properly. In other words, the prosecution submits that there had been nothing that had thrown Ivan Valovic or Peter Valovic’s life into disarray, so that the only reasonable explanation for them committing these offences is one of “greed”.

Moreover, the prosecution submits that they both had worked together to benefit themselves financially and in doing so, they had not treated consumers fairly and had taken advantage of the consumers’ situation. As such, the prosecution contends that this egregious conduct, especially their unfair practices, must be denounced by imposing custodial sentences on both of them. (

a) for the individual, Ivan Valovic [ 24 ] Specifically for Ivan Valovic, the prosecution submits that because Ivan Valovic had been previously convicted of tax evasion in the amount of approximately $128,000 for approximately $300,000 of unreported income over the last half of the 1990s (see R. v. Valovic , [2006] O.J. No. 5564 (O.C.J.) ), which is an offence of dishonesty, and which are similar in nature to the offences in the present case that he had committed under the CPA 2002, which also involve dishonest and unethical behavior towards the 11 consumers in the present case.

In addition, the prosecution contends that since he, his wife, and his company, Ivan's Electric Ltd., has had to pay fines jointly in the amount of $255,000.00 for their convictions for the tax evasion charges and also because Ivan Valovic had already been given warnings by the Electrical Safety Authority about his unethical and dishonest dealings with consumers, that simply imposing significant fines on Ivan Valovic would not deter him from doing similar acts comprising of “dishonesty and guile” or engaging in unfair practices with consumers in the future.

And, that the only sanction that will act as a deterrence for Ivan Valovic engaging in similar conduct and practices in the future would be to impose a custodial sentence. [ 25 ] In respect to the consumers in the present case, the prosecution submits that Ivan Valovic had used the same “dishonesty and guile” in his dealings with them as he had been recognized in doing previously with the Canada Revenue Agency by Allen J. in R. v. Valovic , [2006] O.J. No. 5564 (O.C.J.) , when Ivan Valovic had committed the tax evasion offences.

In other words, the prosecution submits that Ivan Valovic is like a leopard who does not change its spots.

Only this time the prosecution contends, it is better camouflaged and Ivan Valovic had been able to stalk easier prey. [ 26 ] Moreover, the prosecution submits that there is also an absence of mitigating circumstances present and that the Pre-Sentence Report for Ivan Valovic had indicated that Ivan Valovic had lacked remorse for his conduct in respect to the consumers in this case, although the lack of remorse is not an aggravating factor. [ 27 ] In addition, the prosecution submits that Ivan Valovic has a record while Peter Valovic does not. [ 28 ] But more importantly, the prosecution submits that Ivan Valovic has had ample warnings about his lack of integrity and honesty with the Canada Revenue Agency and with consumers from the Electrical Safety Authority, his governing body, but that the warnings from the Electrical Safety Authority have not deterred him from using “dishonesty and guile” with consumers, and as such, fines would not deter him from continuing to commit offences under the CPA 2002 and that only a custodial sentence would actually achieve the objective of deterrence.

This, the prosecution submits, is supported by the following findings made by other adjudicative bodies about Ivan Valovic’s propensity to use “dishonesty and guile” with consumers in the following decisions involving Ivan Valovic:

(

i) In R. v. Valovic , [2007] O.J. No. 2775 (O.C.J.) , which had been the case in which Ivan Valovic had been convicted for tax evasion by failing to report income of $300,000, Allen J. had noted, at paras. 5 to 10, that there had been aggravating circumstances, which included that the Valovics (Ivan and his wife Dagmar) had extensive contact with the agency concerning their tax affairs relating to the first half of the nineties, resulting perhaps in reassessments, and certainly in Ivan Valovic signing an undertaking to keep proper books and records.

However, this undertaking by the Valovics had been dishonoured, Allen J. had believed, to facilitate the crimes related to tax evasion over a period of 5 years, consisting of almost daily acts of conscious dishonesty. Allen J. also noted that while there was no prior conviction for the Valovics, they had still received a very clear warning and that the violations under the Income Tax Act had been brazen. Moreover, Allen J. commented that the Valovics’ actions were not a one off failure to report a windfall nor had it been wilful blindness to their obligations as citizens.

In addition, Allen J. had held that there had been no remorse or contrition from the Valovics nor mitigation in the sense of any need, such as expensive medical treatment, nor was there any drug or gambling habit which might, to some extent, explain the behavior related to evading the payment of taxes.

In addition, Allen J. noted that the Valovics went into the period in question doing very well financially and appeared to have a net worth of over two million dollars with a home, a cottage in Muskoka, and rental properties largely unencumbered and that the proceeds of their crimes had merely enhanced an already comfortable lifestyle, and that their motive had been unadorned greed [ emphasis is mine below ]: … Dealing first with the corporation, I suspect there's little likelihood of any fine being paid.

I'm unaware of any assets the corporation has, and it would be a simple matter for the Valovics to walk away from the corporation. Nonetheless, the appropriate penalty for the corporation, in my view, is a hundred and fifty percent of the tax evaded, which is to say, $75,961.43 . The defence does not contest the calculations but rather the result. The corporation can have six months to pay . With respect to the Valovics, there's a variety of factors to take into account.

In mitigation they have no records; they're both productive members of society, Ivan through his trade, Dagmar through her involvement in the business and through her charitable work . They have raised three children. While they put the Crown to the strict proof of the case as is their absolute right, they did not seek to mislead the court, indeed offered no evidence in their own defence.

In aggravation, while the Valovics are without criminal record, they had extensive contact with the agency concerning their tax affairs relating to the first half of the nineties, resulting perhaps in reassessments, and certainly in Mr. Valovic signing an undertaking to keep proper books and records . This undertaking was dishonoured, I can only conclude, to facilitate these crimes . So while there was no prior conviction, there was a very clear warning and these violations of the Act are brazen.

And further, this is not a one off failure to report a windfall nor was it wilful blindness to their obligations as citizens; these crimes were ongoing over five years, consisting of almost daily acts of conscious dishonesty . Further, there is no mitigation in the sense of any need, such as expensive medical treatment, nor was there any drug or gambling habit which might, to some extent, explain the behaviour . The Valovics went into this period with a home, a cottage in Muskoka, and rental properties largely unencumbered.

The proceeds of these crimes merely enhanced an already comfortable lifestyle, and the motive was unadorned greed . Finally, they are without remorse or contrition . Sentencing generally is a function of the circumstances of the particular case. Precedent provides parameters only, and no precise formula for arriving at a particular result. Historically there has been a distinction between tax cases which sometimes attracted a jail sentence and welfare or employment insurance fraud, which historically, frequently did.

This may be the result of class bias, or it may rest on an implicit assumption that a tax payer has some residual right to their tax dollars that is based on the notion that our taxation is fundamentally illegitimate, that we are over taxed, a perspective promoted vigorously by some politicians. Neither of these is a legitimate basis for differentiating the cases. The defence suggests minimum fines are appropriate. The Crown seeks higher fines and four to six months jail for each of the individual accused.

I am advised the Valovics are doing very well financially and appear to have a net worth of over two million dollars . The consequence of even the elevated fine suggested by the Crown would require them to sell one of their rental properties, and otherwise have virtually no impact. I am of the view that given the ongoing brazen nature of these offences, and the absence of any evidence of contrition on the fact that the crimes were motivated by greed to enhance an already comfortable lifestyle, some incarceration is called for .

Taxes pay for the schools our children go to, the roads we drive on, the hospitals we take our parents to, the police who protect us, everything from the picking up of the trash to the defence of the country. Tax fraud is a refusal to pay your fair share of the public services which we all benefit from; it is a theft from every Canadian . Mr. and Mrs. Valovic will be fined a hundred percent of the taxes evaded personally and in their capacity as directors of corporations for a total of $90,702.98 for Mr. Valovic, and $88,204.72 for Mrs. Valovic, they can have six months to pay those .

With respect to the appropriate length of a jail sentence, I am of the view that the Crown's range is not unreasonable; however, I am aware of the conditions in our jails and I have no doubt that the experience will be a shock to the Valovics, and that any time spent in custody will be very difficult for them. I mean to deter them personally and to denounce their conduct; this can best be achieved through a short sharp jail sentence. They will each be sentenced to forty-five days in custody, concurrent on all of the personal charges .

That's the disposition. (ii) Furthermore, in Ivan Valovic and Ivan’s Electric C. v. Director, Licensing and Certification (Electrical Safety Authority) , 26 August 2011, NOAL 09-13 and NOAL 09-14, the Review Panel of the Electrical Safety Authority had noted at para. 2(

c) of their

decision that the Director of Licensing and Certification for the Electrical Safety Authority had issued a Notice of Proposal to suspend Ivan Valovic’s Master Electrician’s licence for 6 months and to suspend the Electrical Contractor’s licence of Ivan’s Electric Limited for 90 days for several reasons, including the conduct of Ivan Valovic which had afforded reasonable grounds for the belief that the Ivan Valovic or Ivan's Electric Ltd. would not conduct themselves with honesty and integrity or in accordance with the principle of protecting consumers.

In addition, the Review Panel had found that Ivan Valovic in respect to one consumer had significantly exaggerated the inspection fees and that this had amounted to a false representation and that it had spoken to Ivan Valovic’s lack of honesty and that the conduct of Ivan Valovic had been egregious and had demonstrated a complete lack of honesty and integrity. Moreover, the Review Panel had found in another case that Ivan Valovic had been intentionally vague to a consumer in order to mislead the consumer as to the actual cost of repairs.

The Review Panel had also heard from a number of consumers and had found that Ivan Valovic had clearly not acted with honesty and integrity on a number of occasions [ emphasis is mine below ]: [1] The Director of Licensing and Certification , (the ‘Director’) of the Electrical Safety Authority (the ‘ESA’) issued two Notices of Proposal pursuant to

section 113.2(2) of the Electricity Act, 1998 (the ‘Act’) on November 5, 2009. One was a Notice of Proposal to suspend the Master Electrician’s licence of the Applicant Ivan Valovic for a period of 6 months or until Mr. Valovic successfully completes, the Master Electrician examination, whichever period is longer. The suspension was to commence November 30th, 2009. The other Proposal was to suspend the Electrical Contractor licence of Ivan’s Electric Limited (‘IEL’) for a period of ninety days commencing November 30th, 2009. [2] The reasons for the two Proposals were identical and were stated as follows : (

a) The conduct of the applicant or licence holder affords reasonable grounds for belief that the applicant or licence holder will not carry out the activities of the licence in accordance with the law. (

b) The conduct of the applicant or licence holder affords reasonable grounds for belief that the applicant or licence holder will not safely carry out the activities of the licence. (

c) The conduct of the applicant or licence holder affords reasonable grounds for the belief that the applicant or licence holder will not conduct themselves with honesty and integrity or in accordance with the principle of protecting consumers ; (

d) The applicant or licence holder failed to comply with or to meet a requirement of the Electricity Act, 1998,

Part VIII, Ontario Regulation 570/05 , associated regulations, or an Order issued by ESA. … … the Review Panel finds on the evidence that Mr. Ivan Valovic significantly exaggerated the inspection fees and this amounted to a false representation and this speaks to Mr. Valovic’s honesty . … [38] The explanation by Mr. Valovic as to the $720 emergency service call, that the weather was terrible, is dubious given that the photographic evidence provided of the day appears to contradict this.

However, the explanation for the $950 fee for ‘permits, inspections and arrangements’ is simply not accepted as a reasonable explanation or justification. The inspection fee charged to IEL was less than $60, indicating that neither emergency or after hours additional fees were applicable. The Review Panel finds that the fee for a permit and to arrange an inspection was grossly exaggerated and was a false, misleading representation to the consumer. In this particular case the Review Panel finds that the conduct of the Mr.

Valovic was egregious, and demonstrated a complete lack of honesty and integrity . … [76] The manner in which

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