Chartered Professional Accountants of Ontario v. Gujral, 2019 ONCJ 859

CITATION: Chartered Professional Accountants of Ontario v. Gujral , 2019 ONCJ 859 DATE : November 29, 2019 IN THE MATTER OF the Chartered Professional Accountants of Ontario Act, 2017 , S.O. 2017, c. 8, Sched. 3 , the Certified Management Accountants Act, 2010, S.O. 2010, c. 6, Sched. B , and the Chartered Accountants Act, 2010, S.O. 2010, c. 6, Sched. C . Between Chartered Professional Accountants of Ontario prosecutor and Joginder Singh Gujral defendant Ontario Court of Justice Brampton, Ontario Quon J.P.

Reasons for Judgment and rulings on Charter Applications Charges : 8 counts: Between March 1, 2017 and June 30, 2018 at the City of Brampton : (1) taking or using designations or initials or a description implying that he is a Certified Management Accountant, or otherwise holding himself out as a Certified Management Accountant, while not being a member of the Certified Management Accountants of Ontario, contrary to

section 26 of the Certified Management Accountants Act, 2010 ( 2 counts ); (2) taking or using designations or initials or a description implying that he is a Chartered Accountant, or otherwise holding himself out as a Chartered Accountant, while not being a member of the Institute of Chartered Accountants of Ontario, contrary to

section 27 of the Chartered Accountants Act, 2010 (2 counts) ; (3) taking or using designations or initials or a description implying that he is a Chartered Professional Accountant, Chartered Accountant, Certified Management Accountant, or Certified General Accountant, or otherwise holding himself out as a Chartered Accountant, while not being a member of the Chartered Professional Accountants of Ontario, contrary to

section 29 of the Chartered Professional Accountants of Ontario Act, 2017 ( 3 counts ) ; (4) practising as a Chartered Professional Accountant while not a member of the Chartered Professional Accountants of Ontario, contrary to section 29(1) (

d) of the Chartered Professional Accountants of Ontario Act, 2017 ( 1 count ).

Trial held: September 11, 2019. Judgment released: November 29, 2019. Counsel: Andrew Faith and Madeline Brown, Polley Faith LLP, counsel for the Chartered Professional Accountants of Ontario. Joginder Singh Gujral, unrepresented. Cases Considered or Referred To: Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 , [2009] S.C.J. No. 37 (S.C.C.). Black v Law Society of Alberta, (SCC), [1989] 1 S.C.R. 591 (S.C.C.). Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30 , [2007] S.C.J. No. 30 (S.C.C.). Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2 , [2011] S.C.J.

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Canada Business Corporations Act, R.S.C., 1985, c. C-44. Canadian Charter of Rights and Freedoms,

Part 2 of the Constitution Act, 1982,

Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11,R.S.C. 1985, App. II, ss. 1, 2(a), 2(b), 2(d), 6, 7, 11(a), 11(b), 11(g), 15(1), 24(1), 32, and, 52. Certified Management Accountants Act, 2010, S.O. 2010, c. 6, Sched. B, ss. 1, 14, 14(1), 15, 26, 26(1), 26(1)(d), 26(2), 26(2)(1),26(2)(1)(ii), 26(3), 26(6), and 27. Chartered Accountants Act, 2010, S.O. 2010, c. 6, Sched. C, ss. 1, 11, 12, 27, 27(1), 27(1)(d), 27(2), 27(2)(1)(ii), 27(3), 27(6), and 28.

Chartered Professional Accountants of Ontario Act, 2017, S.O. 2017, c. 8, Sched. 3, ss. 1, 5, 15(1), 15(3), 17, 18, 18(2), 29, 29(1),29(1)(d), 29(2), 29(2)(b), 29(3), 29(6), and 30. Canada Not-for-profit Corporations Act, S.C. 2009, c. 23. Provincial Offences Act, R.S.O. 1990, c. P.33, s. 81. Exhibits entered: Exhibit "1" - Charter application (undated) and filed by the defendant on August 18, 2019, by Joginder Singh Gujral (7 pages).

Exhibit "2" - copy of the Notice Under The Evidence Act (Business Records) dated August 30, 2019 (the 7 documents listed inSchedule “A” were previously provided to the defendant as part of the disclosure package on October 2, 2018) (4 pages). Exhibit "3" - copy of the Affidavit of Service of the affiant Nykhol Mancini, sworn on August 30, 2019, which is in respect to serviceof the Notice Under The Evidence Act (Business Records) dated August 30, 2019 on the defendant (7 pages). Exhibit "4" - copy of the “Member Profile – SE” of Joginder S.

Gujral dated Wednesday, September 26, 2018, with an e-mail addressof joginder95@gmail.com and indicating under the heading Informal: Jogi; under the heading “member: S / Student”; under the heading

“Membership Status: SDFC / Dereg – Fail CFE 3X”; under the heading “Join Date: 6/23/2015”; under the heading “Preferred Address: RESIDENTIAL”; and under the heading “Employment History: 9/9/2015 Experience Requirement Incomplete 9/7/2015 (2 pages). The telephone number indicated on the Member Profile which was provided to Student Services of CPA Ontario by Joginder S. Gujral was (647) 629-3508.

Exhibit "5" - copy of one page of the Republic of India passport issued to Joginder Singh Gujral issued on 03/02/2014 and expiring on 02/02/2024 containing the photograph and signature of the holder that had been filed with the Chartered Professional Accountants Association of Ontario (1 page). Exhibit "6" - copy of Document

Summary: Records pertaining to Joginder Singh Gujral as a student writing qualifications exams for membership in the Chartered Professional Accountants of Ontario, which contain a letter dated February 22, 2016 from John Murray, Registrar to Joginder Singh Gujral; a

summary of Joginder Singh Gujral experience and employment history for an exemption; an e-mail from Audrey Lubowitz dated January 18, 2016 to Joginder Singh Gujral; copy of Joginder Singh Gujral’s International Candidate Application Form; copy of Joginder Singh Gujral’s CPA Certificate Program: CPA Student Registration Form 6-1A; copy of document from the Institute of Chartered Accountants of India in respect to Joginder Singh Gujral’s membership dated May 13, 2015; copy of a letter dated June 23, 2015 from the Institute of Cost Accountants of India in respect to Joginder Singh Gujral’s membership as a Fellow Member; resume of Joginder Singh Gujral, CA, CMA; copies of 8 different Practical Experience Certificate Forms for Joginder Singh Gujral dated September 25, 2015 for 8 different companies; copies of 2 different Practical Experience Certificate Forms for Joginder Singh Gujral dated August 24, 2015 for 2 companies; copy of Practical Experience Certificate Form for Joginder Singh Gujral dated June 18, 2015 for a company; e-mails from Brenda Lun dated June 1, 2015 to Joginder Singh Gujral; e-mail from Alison Alderson, Office of the Registrar dated January 18, 2016 to Joginder S.

Gujral; and a copy of letter from T E Warner, Vice-President and Registrar dated June 2016, 2015 to Joginder Singh Gujral (94 pages). Exhibit "7" - copy of Certificate of Heidi Franken, Registrar for Chartered Professional Accountants of Ontario, dated September 28, 2019, stating that Joginder S. Gujral had been a registered student of CPA Ontario as of June 23, 2015 and that on February 12, 2018, he had been deregistered as a student of CPA Ontario as a result of his third unsuccessful attempt in the common Final Examination and that Joginder S.

Gujral has not been and is not a member of CPA Ontario and is therefore not authorized or entitled to use the designations, “Certified Management Accountant” or “CMA”, “Chartered Accountant” or “CA” or “Chartered Professional Accountant” or “CPA” nor to hold himself out as a member of CPA Ontario (2 pages). Exhibit "8" - copy of screenshot taken on March 23, 2017 by Karen Armstrong of Kijiji advertisement indicating date listed as 14- Feb-17 with an e-mail address of jogi@gujral.ca and telephone number of 647-629-3862 for contact.

The ad also states that “I am qualified CPA, CA(Canada Candidate), CMA (USA), CA(I), CMA(I), MBA(IIM-

B) and CS(I)”. A website of website of www.gujraltutor.com is also listed in the ad (1 page). Exhibit "9" - copy of screenshot taken on March 23, 2017 by Karen Armstrong of website page of “http://gujraltutor.com/about” with the heading “Why choose Gujral Tutor” states “Our offices are located in Ontario, Canada. My name is Jogi Gujral and I have 25 years experience in accounting and taxation … My firm proves the following professional services to broad range of small or medium sized entrepreneurial clients.

I am serving the Greater Toronto Are including Brampton, Mississauga, Toronto, Thornhill, Richmond Hills, Scarborough, North York and Etobicoke. My aim is to provide Accounting and Tax Services at reasonable rates to clients and to exercise due car[e] and to exercise due diligence in my work in creating various accounting solutions for you and your company, which may improve your standing with the federal revenue government. … My sixth designations CPA(Certified Public Accountant), CA(Chartered Accountant) (Candidate) from CPA Canada” (1 page).

Exhibit "10" - copy of letter from Tom Litzgus, Associate General Counsel of Chartered Professional Accountants of Ontario, dated March 30, 2017 to Joginder Gujral informing Gujral that Gujral had been identifying himself to the public in Ontario as a CPA, CA and CMA while a student enrolled with the Chartered Professional Accountants of Ontario and not a member of CPA Ontario or with the Certified Management Accountants of Ontario.

The letter also enclosed copies of two website pages (website: http://gujraltutor.com/about and the Kijiji advertisement) showing the use of those initials for accounting designations. In addition, the letter contained a page entitled Canadian trade-mark data which states that as of 2017-03-28 the prohibited Mark; Official Mark (Word) of “CPA” was the registered mark of The Institute of Chartered Accountants of Ontario”.

The letter also states ”Under the provisions of the Chartered Accountants Act, 2010 , (the “ Act ”) only members of CMA Ontario may take or use the designation “Chartered Accountant” or the initials “C.A.”, or “CA”, alone or in combination with other words or abbreviations, or take or use any term, title, initials, designation or description implying that the individual is a Chartered Accountant.

Similarly, under the Certified Management Accountants Act, 2010 , only members of CMA Ontario may take or use the designation “Certified Management Accountant” or the initials “CMA.”, or “C.M.A.”, alone or in combination with other words or abbreviations, or take or use any term, title, initials, designation or description implying that the individual is a Certified Management Accountant, or otherwise hold himself out as such in Ontario. In addition, “CPA” is protected as an official mark held by CPA Ontario and may only be used with our permission. Proof of ownership is enclosed for your reference.

Individuals are permitted to reference designations earned from accounting bodies outside Ontario only in the limited circumstances described in subsections 27(2) and (3) of the Act . Adding “Candidate” or the jurisdiction from which a foreign accounting designation was obtained is not sufficient to avoid the requirements noted above. We seek your cooperation in respecting the provisions of the Act and our proprietary rights in the official mark. Accordingly, we require that you remove all

references to “CPA”, “CA”, and “CMA” all on documents, business cards, letterhead, websites, e-mails, social media or other advertising or communication materials. Please respond to this letter by April 14, 2017 confirming that you have taken these steps.” (4 pages). Exhibit "11" - copy of e-mail chain between Joginder Singh and Tom Litzgus from April 3, 2017 to April 5, 2017.

Joginder Singh Gujral informs Tom Litzgus by e-mail on April 3, 2017, that Gujral had received Litzgus’ letter dated March 30, 2017; that Gujral had always mentioned the jurisdiction of India after his designations; that because Gujral is a student with CPA Ontario he had always mentioned “Candidate” as Gujral had seen this was the practice being used by all the students of CPA Ontario, which can be observed on LinkedIn and on other social media.

In addition, Gujral informed Litzgus in that e-mail that he had removed it all together and to cooperate with CPA Ontario, Gujral had modified his advertisement in Kijiji and that Gujral further promised to abide by all the guidelines and respect the provisions of the Act . Litzgus then acknowledged the defendant’s e-mail on April 3, 2017 at 4:41 PM and further explained to Gujral that a qualifying statement, “ I am not a member of Chartered Professional Accountants of Ontario (CPA Ontario) and I am not governed by CPA Ontario.

My services have not been approved or endorsed by CPA Ontario. ” must be included wherever the defendant described his foreign professional accounting designations to indicate the defendant’s educational background. Gujral then responded to Litzgus by e-mail on April 5, 2017, stating that the defendant would abide by Litzgus’ instructions.

Exhibit "12" - copy of screenshot taken on March 20, 2018 by Karen Armstrong of the LinkedIn profile page for Joginder Gujral FCA, FCMA, CMA (USA), Fellow Chartered Accountant, that makes mention of Gujral Finance Inc., Canada USA and India, Chartered Professional Accountants of Ontario … Toronto, Canada Area … and testimonials from previous employers. Under the heading “Education” is listed Chartered Professional Accountants of Ontario (CPA Canada), CPA, CA (Candidate), Finance, Strategy, Assurance, 2015-2016, Chartered Accountant … (3 pages). Exhibit "13" - copy of e-mail from Joginder S.

Gujral to Richard Piticco dated March 02, 2018 2:23 PM in respect to an appeal of Joginder Gujral’s deregistration as a student with CPA Ontario. Attached to the letter was Joginder Gujral’s 3-page resume (5 pages). Exhibit "14" - copy of screenshot taken on March 20, 2018 by Karen Armstrong of the website “ www.gujralaccounting.ca ” with the title page stating “Welcome To The Gujral Finance inc.” On this page is also logos for CMA USA, CPA Chartered Professional Accountants [CPA Ontario logo], CMA The Institute of Cost Accountants of India and CA Chartered Accountants of Canada.

The second page contains the “About Us” page that also contains the CPA Chartered Professional Accountants Ontario logo and states “Our offices are located in Ontario, Canada. My name is Jogi Gujral and I have 25 years experience in accounting and taxation … My firm provides the following professional services to broad range of small or medium sized entrepreneurial clients. I am serving the Greater Toronto Are including Brampton, Mississauga, Toronto, Thornhill, Richmond Hills, Scarborough, North York and Etobicoke.

My aim is to provide Accounting and Tax Services at reasonable rates to clients and to exercise due car[e] and to exercise due diligence in my work in creating various accounting solutions for you and your company, which may improve your standing with the federal revenue government. … My sixth designations CPA(Certified Public Accountant), CA(Chartered Accountant) (Candidate) from CPA Canada” (2 pages).

Exhibit "15" - copy of screenshot taken on March 20, 2018 by Karen Armstrong of the Toronto Overseas Centre of Cost Accountants of India webpage under the website “ http://home.icmai-canada.org/ ” containing a photograph of Joginder Gujral and the title underneath the photograph of “Joginder Gujral Director, Corporate Development”. The page also contains the statements, “Joginder has been CMA member since 1995 and is also CMA from USA. He is also Chartered Accountant from India and Candidate CPA, CA, Canada. He has successful career, spanning over 20 years with Fortune 500 companies …” (1 page).

Exhibit "16" - copy of summons in respect to Information #7488 (withdrawn on April 8, 2019) that was issued to Joginder Singh Gujral of 18 Tustin Road, Brampton, Ontario L6P 3K9 on June 22, 2018 by the Ontario Court of Justice informing the defendant to appear in court on October 2, 2018 at 9:00 AM in courtroom #B2.

Exhibit "17" - copy of Affidavit Of Service Of Summons sworn on July 16, 2018, by Carlyle Murray, process server, indicating that the summons issued to Joginder Singh Gujral of 18 Tustin Road, Brampton, Ontario L6P 3K9 on June 22, 2018 by the Ontario Court of Justice informing the defendant to appear in court on October 2, 2018 at 9:00 AM in courtroom #B2 was served personally on the defendant, Joginder Singh Gujral at 5 Keystone Drive, Brampton, Ontario.

Exhibit "18" - copy of letter from Richard Piticco, Vice President of Student Services of the Chartered Professional Accountants of Ontario, 69 Bloor Street East, Toronto, Ontario M4W 1B3, dated February 18, 2018, to Joginder S. Gujral of 5 Keystone Drive, Brampton, in respect to Joginder Singh Gujral deregistration as a CPA student effective February 9, 2018 because of the third unsuccessful attempt of any module of the CPA Professional Education Program or the Common Final Examination, or upon denial of the appeal of results. Joginder S.

Gujral was also informed in the letter about the consequences of deregistration including loss of any student rights and privileges with CPA Ontario and also on his appeal rights (2 pages).

Exhibit "19" - copy of e-mail train from Joginder S. Gujral of 5 Keystone Drive, Brampton, Ontario, dated March 21, 2018 to the Membership Committee of CPA Ontario with attachments of Joginder S. Gujral’s Certificate of Contents of the Appeal Book – Form 24C dated March 20, 2018 and the Notice of Appeal – Form 24A dated February 12, 2018. Exhibit "20" - copy of screenshot taken on September 20, 2018 by Karen Armstrong of the LinkedIn profile page for Joginder Gujral CMA (USA), FCA (India), FCMA (India), … and testimonials from previous employers.

Under the heading “Education” is listed Chartered Professional Accountants of Ontario (CPA Canada), CPA, CA (Candidate), Finance, Strategy, Assurance, 2017-2018, CA, Accounting and Finance, Fellow of the Institute of Chartered Accountants of India (FCA) 1991-1995 … There is also the CPA Canada logo on the second age beside the reference to Chartered Professional Accountants of Ontario (CPA Canada) CPA, CA (Candidate), Finance, Strategy, Assurance, 2017-2018 (3 pages).

Exhibit "21" - copy of screenshot taken on September 20, 2018 by Karen Armstrong for Toronto Overseas Centre of Cost Accountants of India webpage under the “ http://home.icmai-canada.org/ ” website containing the statements, “Joginder has been CMA member since 1995 and is also CMA from USA. He is also Chartered Accountant from India and Candidate CPA, CA, Canada. He has successful career, spanning over 20 years with Fortune 500 companies …” with a title underneath the statements of “Joginder Gujral Director, Corporate Development”. (1 page).

Exhibit "22" - copy of document dated 2018-07-19 with the title, “Federal Corporation Information – 979689-4” with the heading “Corporate Name: Gujral Finance Inc.”: with the heading “Status: Active”; with the heading “Registered Office Address” 5 Keystone Drive, Brampton, ON L6Y 3L2 Canada”; and under the heading “Directors: Joginder Singh Gujral, 5 Keystone Drive, Brampton ON L6Y 2L2 Canada”; and under the heading “ Type of Corporation: Non-distributing corporation with 50 or fewer shareholders” (2 pages).

Exhibit "23" - copy of letter dated April 4, 2018 from Tom Litzgus, Vice-President, Associate General Counsel of Chartered Professional Accountants of Ontario to Joginder Gujral of 18 Tustin Road, Brampton regarding misuse of designations and unauthorized use of official marks.

The letter also informs Joginder Gujral that no individual other than a member of CPA Ontario may take or use the designation “Chartered Accountant”, or the initials “F.C.A.”, “F.C.M.A.”, “C.M.A.”, “C.P.A.” or “C.A.” (with or without periods) and that using the official marks owned by CPA Ontario without permission on the website: www.gujralaccounting.ca was an infringement of the rights of the Chartered Professional Accountants of Ontario under the Trade-marks Act of Canada (3 pages). 1.

INTRODUCTION [ 1 ] Like many foreign-trained professionals who emigrate to Canada, Joginder Singh Gujral (“the defendant”), a Chartered Accountant from India with several profes​sional accounting designations, had wanted to live the Canadian dream and continue his profession in Canada.

However, to be able to continue and be legally able to practice as a Chartered Accountant or professional accountant in Ontario, the defendant had been required to have his work experience and credentials assessed, and if not exempted, then he had been required to enroll in and complete classes as a professional accounting student and pass the qualification exam set by the Chartered Professional Accountants of Ontario (formerly the Institute of Chartered Accountants of Ontario), the governing and licensing body of Chartered Accountants in Ontario at that time, before he would be legally authorized to practice as a Chartered Accountant or as a professional accountant in Ontario.

Although there is an exemption from having to enroll in classes as a student or from having to write the qualification exam, the defendant was not exempted by the Chartered Professional Accountants of Ontario (“CPA Ontario”) and had been required to enroll as a student with CPA Ontario and take certain courses, and to also write the qualification exam known as the “Common Final Exam”.

The purpose in requiring foreign-trained professionals in such fields as medicine, law, dentistry, architecture, engineering, accounting and other trades, to undergo accreditation of their experience and education and to complete courses and pass licensing exams before they can continue in their profession or trade in Ontario, is to ensure that they have a minimum level of education, competence, and experience in their respective fields before they can practice in their chosen fields, which is necessary for the safety and protection of the Canadian public. [ 2 ] At the time the defendant was enrolled as a student and studying for his qualification exam, there were 3 governing bodies for the 3 different professional accounting designations in Ontario of Certified Management Accountant (or Registered Industrial Accountant), Chartered Accountant, and Certified General Accountant.

The three governing accounting bodies in Ontario were known as the “Institute of Chartered Accountants of Ontario”, which governed and regulated Chartered Accountants in Ontario; the “Certified Management Accountants of Ontario”, which governed and regulated Certified Management Accountants and Registered Industrial Accountants in Ontario, and the “Association of Certified General Accountants of Ontario”, which governed and regulated Certified General Accountants. There were also 3 Ontario statutes at that time which governed each of those 3 professional accounting

designations: the Certified General Accountants Act, 2010 , S.O. 2010, c. 6, Sched. A .; the Certified Management Accountants Act, 2010 , S.O. 2010, c. 6, Sched. B ; and the Chartered Accountants of Ontario Act, 2010 , S.O. 2010, c. 6, Sched. C .

However, sometime in 2014 the 3 professional accounting designations and the 3 governing accounting bodies in Ontario were amalgamated under one governing professional accounting body, known as the Chartered Professional Accountants of Ontario (“CPA Ontario”), and on May 17, 2017, the 3 governing statutes were repealed on May 17, 2017, and a new statute, the Chartered Professional Accountants of Ontario Act, 2017 , S.O. 2017, c. 8, Sched. 3 ., came into force to regulate all professional accountants in Ontario. [ 3 ] But more importantly, while being a student preparing for the qualifying exam and licensure, and before being accepted as a member of CPA Ontario, the governing professional accounting body in Ontario, the defendant was prohibited by provincial legislation from using publicly in Ontario his foreign professional accounting designations and their corresponding initials or descriptions that he had obtained from India and the United States, under the three governing professional accounting statues in Ontario that were applicable to the defendant (the Certified Management Accountants Act, 2010 , the Chartered Accountants Act, 2010 , and the Chartered Professional Accountants of Ontario Act, 2017 ), until he became a member of CPA Ontario or one of the governing professional accounting bodies in Ontario.

In addition, the defendant was not permitted to practice as, or to publicly to hold himself out as, or imply that he was a Chartered Accountant, a Certified Management, or a Chartered Professional Accountant in Ontario, until such time as he became a member of CPA Ontario or one of the governing professional accounting bodies in Ontario. [ 4 ] Before coming to Canada and enrolling as a student of CPA Ontario in 2015, the defendant had obtained in India the professional designations of “Chartered Accountant (“C.A.”)”, “Fellow Chartered Accountant” (“F.C.A.”), “Cost And Management Accountant” (“C.M.A.”), “Fellow Cost And Management Accountant” (“F.C.M.A.”), and from the United States the professional accounting designation of “Certified Management Accountant” (“C.M.A. (U.S.A.)”) [ 5 ] However, under the 3 professional accounting statutes of Ontario which were applicable to the defendant, the defendant was not legally permitted to use his foreign accounting designations of “Chartered Accountant, Fellow Chartered Accountant, Cost And Management Accountant, Fellow Cost And Management Accountant, and Certified Management Accountant”, or any initials representing those foreign designations such as “CA, C.A., FCA, F.C.A., CMA, C.M.A., FCMA, F.C.M.A.”, in the public sphere, when he had not be accepted as a member of one of the professional accounting bodies in Ontario before May 17, 2017, and by CPA Ontario after May 17, 2017, and while as a student preparing for the qualification exam.

In addition, the defendant would only be legally permitted to use his foreign accounting designations and their corresponding initials or descriptions after the defendant had passed his qualification exam and became a full-fledged licensed member of one of the 3 professional bodies governing and regulating the practice of professional accounting in Ontario. Before May 17, 2017, the defendant was governed by the Certified Management Accountants of Ontario and the Institute of Chartered Accountants of Ontario.

After May 17, 2017, when all the professional accounting bodies in Ontario were amalgamated under the umbrella of one governing professional accounting body, the defendant was governed and regulated by the Chartered Professional Accountants of Ontario (“CPA Ontario”), the professional body which presently governs and regulates all professional accountants in Ontario.

To reiterate, the purpose behind this prohibition against the taking or use of these foreign professional accounting designations or their corresponding initials or descriptions publicly in Ontario was for ensuring that the public was not confused or misled that the person using those foreign professional accounting designations, initials or descriptions was indeed an actual member of one of the governing accounting bodies in Ontario, the Certified Management Accountants of Ontario, the Institute of Chartered Accountants of Ontario, or the Chartered Professional Accountants of Ontario , and was being regulated by one of them and authorized by one of them to practice as a Certified Management Accountant, Chartered Accountant or Chartered Professional Accountant in Ontario. [ 6 ] On the other hand, there are 3 statutory exceptions provided by the Ontario Legislature where the defendant would be permitted to use his foreign professional accounting designations, initials, or descriptions in the public sphere in Ontario without the defendant having to be a member of one of the 3 Ontario accounting bodies of the Certified Management Accountants of Ontario, the Institute of Chartered Accountants of Ontario, or the Chartered Professional Accountants of Ontario (CPA Ontario).

Those 3 exceptions are identical in all 3 of the professional accounting statutes applicable to the defendant (the Certified Management Accountants Act, 2010 , Chartered Accountants Act, 2010 , and the Chartered Professional Accountants of Ontario Act, 2017 ).

Those 3 exceptions would allow accounting professionals who are not members of one the governing professional bodies in Ontario to use their foreign professional accounting designations and their corresponding initials or descriptions in the following circumstances: (1) in a speech or other presentation given at a professional or academic conference or other similar forum; (2) in an application for employment or a private communication respecting the retainer of the individual’s services, if the reference is made to indicate the individual’s educational background, and the individual expressly indicates that he or she is not a member of the Certified Management Accountants of Ontario, a member of the Institute of Chartered Accountants of Ontario, or a member of CPA Ontario; or (3) in a proposal submitted in response to a request for proposals, if the reference is made to demonstrate that the individual meets the requirements for the work to which the request for proposals relates. [ 7 ] After an investigation of the defendant had been conducted by Karen Armstrong of the General Counsel’s office of CPA Ontario, the defendant was originally charged with committing 8 offences between March 30, 2017 and June 21, 2018, on an information numbered #7488 sworn on June 22, 2018.

However, Information #7488 was later withdrawn by the prosecution on April 8, 2019, and replaced with an information numbered #5539, that was sworn on January 24, 2019, which also charged the defendant with committing the same 8 offences but for a different time period between March 1, 2017 and June 30, 2018. The replacement Information #5539 is the information that will govern this proceeding. The 8 counts on Information #5539 are for the following types of offences:

- 2 counts under s. 26 of the Certified Management Accountants Act, 2010 , for the offence of taking or using designations or initials or a description implying that he is a Certified Management Accountant, or otherwise holding himself out as a Certified Management Accountant, while not being a member of the Certified Management Accountants of Ontario; - 2 counts under s. 27 of the Chartered Accountants of Ontario Act, 2010 , for the offence of taking or using designations or initials or a description implying that he is a Chartered Accountant, or otherwise holding himself out as a Chartered Accountant, while not being a member of the Institute of Chartered Accountants of Ontario; - 3 counts under s. 29 of the Chartered Professional Accountants of Ontario Act, 2017 , for the offence of taking or using designations or initials or a description implying that he is a Chartered Professional Accountant, Chartered Accountant, Certified Management Accountant, or Certified General Accountant, or otherwise holding himself out as a Chartered Accountant, while not being a member of the Chartered Professional Accountants of Ontario, contrary to s. 29 of the Chartered Professional Accountants of Ontario Act, 2017 ; and - 1 count under s. 29(1) (

d) of the Chartered Professional Accountants of Ontario Act, 2017 , for the offence of practising as a Chartered Professional Accountant while not a member of the Chartered Professional Accountants of Ontario. [ 8 ] In particular, the prosecution contends that the defendant had been using his foreign professional accounting designations, initials, or descriptions in the public sphere in Ontario and which were not exempted by one of the three statutory exceptions for their use in Ontario, as well as practicing as a Certified Management Accountant or as an Chartered Accountant or as a Chartered Professional Accountant while not being a member of one of the 3 Ontario accounting bodies of the Certified Management Accountants of Ontario, the Institute of Chartered Accountants of Ontario, or the Chartered Professional Accountants of Ontario (CPA Ontario). [ 9 ] On March 23, 2017, after receiving a complaint about the defendant, CPA Ontario conducted an internet and Google search of the defendant and found that the defendant had unlawfully used his foreign professional accounting designations, initials, or descriptions on two websites that were readily accessible by the public in Ontario, which were on a website containing a Kijiji advertisement and on the website “http://gujraltutor.com”.

In addition, the defendant had been using the designation or description, “CPA, CA(Candidate)” on the Kijiji website and the designation or description, “CPA(Certified Public Accountant), CA(Chartered Accountant) (Candidate) from CPA Canada” on the website “http://gujraltutor.com”, when there is no such designation containing the word “Candidate” that is issued by CPA Ontario and that the designation “CPA” is a proprietary mark belonging to CPA Ontario, and as such, the designation “CPA” cannot be used without authorization or permission from CPA Ontario.

Furthermore, the defendant had being using the logos for CPA Ontario and for CPA Canada inappropriately to suggest his affiliation with CPA Ontario or with CPA Canada without having obtained CPA Ontario or CPA Canada’s permission or authorization.

Moreover, CPA Ontario or CPA Canada only allows firms to use the CPA Ontario or CPA Canada logo in advertisements or in other places through a licensing agreement with CPA Ontario or CPA Canada. [ 10 ] In addition, Tom Litzgus, Associate General Counsel of CPA Ontario, had sent a “cease and desist” letter dated March 30, 2017, by registered mail to the defendant advising the defendant to stop using his foreign professional accounting designations, initials, or descriptions publicly in Ontario and to also stop using the designation CPA which is a protected mark belonging to CPA Ontario, and to remove all references to “CPA”, “CA”, and “CMA” all on documents, business cards, letterhead, websites, e-mails, social media or other advertising or communication materials, since the defendant was not a member of CPA Ontario or a member of the Certified Management Accountants of Ontario.

In addition, Tom Litzgus, informed the defendant in an e-mail dated April 3, 2017, that if the defendant was not providing accounting services to the public, but only teaching, tutoring or providing other services, then it was permissible for the defendant to describe his foreign professional accounting designations to indicate the defendant’s educational background, but to avoid confusion by the public that the defendant had to expressly include the statement, “ I am not a member of Chartered Professional Accountants of Ontario (CPA Ontario) and I am not governed by CPA Ontario.

My services have not been approved or endorsed by CPA Ontario ”.

However, the prosecution contends that the defendant did not include that required statement on the website for the Kijiji advertisement or for the “http://gujraltutor.com” website. [ 11 ] The defendant in response to Tom Litzgus’s “cease and desist letter” had stated in an e-mail dated April 3, 2017, that the defendant had removed the references to “Candidate” all together and would cooperate with CPA Ontario, and that the defendant had modified his advertisement in Kijiji, and that the defendant further promised to abide by all the guidelines and respect the provisions of the Act . [ 12 ] However, a year later, CPA Ontario received a second complaint about the defendant, and on March 20, 2018, CPA Ontario did another internet and Google search of the defendant and found three websites in which the defendant had been unlawfully taking or using his foreign professional accounting designations, initials or descriptions on three websites which were readily accessible by the public in Ontario, which were on a website containing the defendant’s LinkedIn profile page, on the website www.guralaccounting.ca, and on the

Toronto Overseas Centre of Cost Accountants of India webpage under the website http://home.icmai-canada.org/.

In addition, the defendant had been holding himself out as or implying that he was a Certified Management Accountant, Chartered Accountant or Chartered Professional Accountant by using on those websites the designation or description, “CPA, CA(Candidate)”, “CPA(Certified Public Accountant), CA (Chartered Accountant) (Candidate) from CPA Canada” when there is no such designation containing the word “Candidate” that is issued by CPA Ontario and that the designation “CPA” is a proprietary mark belonging to CPA Ontario, and as such, the designation “CPA” cannot be used without authorization or permission from CPA Ontario.

Furthermore, the defendant had being using the logos of CPA Ontario and CPA Canada inappropriately to suggest his affiliation with CPA Ontario or CPA Canada without CPA Ontario or CPA Canada’s permission or authorization. [ 13 ] In addition, the defendant was charged for practicing as a Chartered Professional Accountant or holding himself out as or implying that he was a Chartered Professional Accountant, Certified Management Accountant, or Chartered Accountant, while not a member of the Chartered Professional Accountants of Ontario, by stating publicly on his websites that he and his firm provided professional accounting and taxation services at reasonable rates to his clients from a broad range of small or medium sized entrepreneurial clients and that the defendant was serving the Greater Toronto Area including Brampton, Mississauga, Toronto, Thornhill, Richmond Hills, Scarborough, North York and Etobicoke from his offices in Ontario, alongside his professional accounting designations, initials or descriptions and the CPA Ontario and CPA Canada logos and the CPA designation. [ 14 ] In his defence, the defendant brought a Charter application claiming that 9 of his Charter rights and freedoms had been violated by the actions of CPA Ontario or that the legislation applicable to the defendant which governs and regulates professional accountants in Ontario, by its purpose or effect, had infringed the defendant’s rights and freedoms.

Those 9 violations of the Charter claimed by the defendant are that: (1) the defendant’s freedom of conscience and religion under s. 2(

a) has been infringed because CPA Ontario has prevented the defendant from practicing his religion as CPA Ontario is biased and hand-picking on the defendant; (2) the defendant’s freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication under s. 2(

b) has been infringed because CPA Ontario is not allowing the defendant to publish his professional accounting designations and corresponding initials he has obtained from India and the United States on his Linkedln profile page or in other media; (3) the defendant’s freedom of association under s. 2(

d) has been infringed by CPA Ontario because of his association or membership in the Institute of Chartered Accountants of India, the Institute of Cost Accountants of India, and the Toronto Overseas

Chapter of Cost Accountants of India; (4) the defendant’s right to move to and take up residence in any province and to pursue the gaining of a livelihood in any province under s. 6(2) has been infringed by CPA Ontario by preventing the defendant from using and displaying his international qualifications and from writing the professional accounting initials FCA (India) and FCMA (India) with the defendant’s name on the defendant’s LinkedIn profile page which prevents the defendant from pursuing the gaining of a livelihood in Ontario; (5) the defendant’s right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice under s. 7 has been infringed because the pre-trial justice of the peace was biased and did not give the defendant time to be heard or to talk during the judicial pre-trial conference had therefore infringed his right to liberty; (6) the defendant’s right to be informed without unreasonable delay of the specific offence under s. 11(

a) has been infringed by CPA Ontario, since the defendant had only been informed on February 2, 2019, of an alleged offence which had taken place on March 30, 2017, which is 23 months after the date of the alleged offence. (7) the defendant’s right to be tried within a reasonable time under s. 11(

b) has been infringed by CPA Ontario, since the defendant’s trial was set for September 11, 2019 for an alleged offence which had taken place on March 30, 2017, which is over 30 months after the date of the alleged offence. (8) the defendant’s right not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations under s. 11(

g) has been infringed, since the defendant contends that the defendant had only omitted to include a particular

statement that CPA Ontario had wanted the defendant to include with his professional accounting qualifications and their corresponding initials when he was publicly using his professional accounting qualifications and their corresponding initials. (9) the defendant’s right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability under s. 15 has been infringed because CPA Ontario has discriminated against the defendant for being of the Sikh religion and for being a member of an ethnic group and not from the white race, since hundreds of people from the white community are writing their professional accounting designations and their corresponding initials on LinkedIn and the internet and that CPA Ontario is specifically picking on the defendant for being a turban-clad Sikh. [ 15 ] In respect to the defendant’s Charter infringement claims, the defendant has failed to prove on a balance of probabilities that his Charter rights and freedoms guaranteed by ss. 2(a), 2(d), 6(2) , 7, 11(a) , 11(b) , 11(g) , and 15 , have been infringed by the actions of CPA Ontario or by the purpose or effect of s. 26 of the Certified Management Accountants Act, 2010 , s. 27 of the Chartered Accountants Act, 2010 , or s. 29 of the Chartered Professional Accountants of Ontario Act, 2017 .

However, the defendant has proven on a balance of probabilities that his “freedom of expression” guaranteed by s. 2(

b) has been infringed by s. 26 of the Certified Management Accountants Act, 2010 , s. 27 of the Chartered Accountants Act, 2010 , or s. 29 of the Chartered Professional Accountants of Ontario Act, 2017 , which prohibits the defendant from taking or using publicly in Ontario his foreign professional accounting designations, initials, or descriptions, but s. 26 of the Certified Management Accountants Act, 2010 , s. 27 of the Chartered Accountants Act, 2010 , or s. 29 of the Chartered Professional Accountants of Ontario Act, 2017 are reasonable limits on the defendant’s freedom of expression and saved by s. 1 of the Charter .

As such, all of the defendant’s Charter infringement claims are dismissed. [ 16 ] In regards to the 8 counts on Information #5539, the prosecution has proven beyond a reasonable doubt that the defendant has committed the actus reus of the respective offences set out in the 8 counts.

However, the defendant has not met his burden in proving on a balance of probabilities the defence of due diligence in respect to those respective 8 offences, and as such, convictions will be entered against the defendant on all 8 counts on Information #5539. [ 17 ] The Charter application and the trial of the 8 counts on Information #5539 was held on September 11, 2019. After submissions were heard in respect to both the Charter application and on the 8 counts, ruling on the Charter application and judgment on the 8 counts was reserved, and the matter was adjourned to November 29, 2019, for it to be rendered.

These, therefore, are the written reasons for the ruling on the Charter application and the written reasons for judgment on the 8 counts: 2. BACKGROUND (

a) Amalgamation of the 3 statutes governing accounting professionals in Ontario, as well as the unification 3 professional bodies governing professional accountants in Ontario [ 18 ] Prior to 2017, there were three statutes that governed different categories of accounting professionals in Ontario. For Chartered Accountants in Ontario they were regulated and licenced under the Chartered Accountants Act, 2010 , S.O. 2010, c. 6, Sched. C by the Institute of Chartered Accountants of Ontario.

For Certified Management Accountants in Ontario, they were regulated and licenced under the Certified Management Accountants Act, 2010 , S.O. 2010, c. 6, Sched. B , by the Certified Management Accountants of Ontario. And, for Certified General Accountants, they were regulated and licenced under the Certified General Accountants Act, 2010 , c. 6, Sched. A, by the Certified General Accountants of Ontario. [ 19 ] On June 26, 2013, the members of both the Institute of Chartered Accountants of Ontario and members of the Certified Management Accountants of Ontario voted in favour of the unification of their two bodies.

On April 2, 2014, the Chartered Professional Accountants of Ontario (formerly the Institute of Chartered Accountants of Ontario) and the Certified Management Accountants of Ontario signed a Unification Agreement which allowed members of the Certified Management Accountants of Ontario to become members of the newly formed Chartered Professional Accountants of Ontario (CPA Ontario). On June 18, 2014, members of the Certified Management Accountants of Ontario voted their approval to join the Chartered Professional Accountants of Ontario.

On October 2, 2014, all 3 professional accounting bodies in Canada were united under one organization known as Chartered Professional Accountants of Canada. [ 20 ] However, even though CPA Ontario became the governing body of all professional accountants in Ontario in 2014, the 3 statutes in Ontario governing the 3 professional accounting designations of Chartered Accountant, Certified Management Accountant, and

Certified General Accountant (C.A., C.M.A. and C.G.A.) had not yet been amalgamated under one statute, so that CPA Ontario still regulated the 3 categories of professional accountants in Ontario under the 3 professional accounting statutes. [ 21 ] On May 17, 2017, the 3 professional accountant statues ( Chartered Accountants Act, 2010 , Certified Management Accountants Act, 2010 , and Certified General Accountants Act, 2010 ) that governed and regulated the different categories of professional accountants in Ontario were repealed and the Chartered Professional Accountants of Ontario Act, 2017 came into force, which now regulated and governed all the professional accountants in Ontario under one statute and under the umbrella of CPA Ontario. [ 22 ] Ergo, the Chartered Professional Accountants of Ontario (“CPA Ontario”) was the body that governed and regulated the defendant, as a non-member of CPA Ontario, prior to and after May 17, 2017 for the period between March 1, 2017 and June 30, 2018.

However, before, May 17, 2017, the defendant, as a non-member of CPA Ontario, was governed and regulated by both the Chartered Accountants Act, 2010 and the Certified Management Accountants Act, 2010 ; while after May 17, 2017, the defendant, as a non-member of CPA Ontario, was governed and regulated by only the Chartered Professional Accountants of Ontario Act, 2017 . [ 23 ] Before the amalgamation, the three separate governing bodies of professional accountants in Ontario would grant membership in their specific professional accounting bodies once an accounting professional met the education, experience, competence, character, and exam requirements for membership in their respective bodies. [ 24 ] Once qualified for membership in one of the three specific professional accounting bodies in Ontario prior to May 17, 2017, the qualified accounting professionals were entitled to use professional designations and initials to inform the public of their professional qualifications and membership in their specific professional body in Ontario and to practice as a Certified Management Accountant, Chartered Accountant, or Certified General Accountant.

For qualified Chartered Accountants in Ontario, they could use the term “Chartered Accountant” or “Fellow Chartered Accountant” and the initials “C.A.”, “CA”, “F.C.A.” or “FCA” to designate their specific professional accounting qualification and membership in the Institute of Chartered Accountants of Ontario. And, for qualified Certified General Accountants in Ontario, they could use the term “Certified General Accountant” and the initials “C.G.A.” or “CGA” to designate their professional qualification and membership in the Certified General Accountants of Ontario.

And for qualified Certified Management Accountants in Ontario, they could use the term “Certified Management Accountant” or “Fellow Certified Management Accountant” and the initials “C.M.A.”, “CMA”, “F.C.M.A.”, or “FCMA” to designate their specific professional qualification and membership in the Certified Management Accountants of Ontario. After May 17, 2017, the three separate designations for the three categories of accounting designations were kept, including a new designation of “Chartered Professional Accountant”.

However, they were now all governed under one umbrella by one professional accounting body known as the Chartered Professional Accountants of Ontario (“CPA Ontario”). [ 25 ] As for the use of logos belonging to and trademarked by CPA Ontario and CPA Canada, only an accounting firm could display either of the professional accounting body’s trademarked logo on the firms’ business cards, websites or advertisements for which authorization from the applicable professional accounting body and a licencing arrangement and licencing fees agreement were concluded and arranged.

Anyone who did not enter into a licencing agreement to use or display CPA Ontario or CPA Canada’s trademarked logos would be improperly using the logos and infringe on those trademarked logos. (

b) The defendant [ 26 ] The defendant was 48 years old at the time of the trial. He was born in India. In addition, the defendant is of the Sikh religion. He attended university in India and graduated with a Bachelor of Commerce degree. He also completed a Master of Business Administration degree in India.

Furthermore, the defendant has approximately 25 years of experience working as a Chartered Accountant (C.A.) or Cost and Management Accountant (C.M.A.) with international companies in India, before he was accepted as a student of CPA Ontario on June 23, 2015. [ 27 ] However, no evidence was provided at trial on whether the defendant is a citizen or permanent resident of Canada, although Exhibit #5 is a copy of a page of the defendant’s Indian Passport which shows that the defendant is a citizen of India. [ 28 ] In order to complete the required CPA Ontario courses and to write the Common Final Exam, the defendant was residing in the Province of Ontario.

He resided at several addresses in Ontario and had provided Student Services of CPA Ontario with different addresses in Brampton, Ontario. He had also provided and used in his communication with Tom Litzgus, Associate General Counsel of Chartered Professional Accountants of Ontario and with other CPA Ontario officials, different addresses in Brampton in which mail could be sent to.

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c) The defendant had obtained several professional accounting designations from India and the United States [ 29 ] The defendant had received the professional accounting designation of “Chartered Accountant” (C.A.) from the Institute of Chartered Accountants of India in 1995. He was also granted in 2012 by the Institute of Chartered Accountants of India the designation of “Fellow Chartered Accountant (F.C.A.). In addition, the defendant had received the designation “Cost and Management Accountant (C.M.A.)” from the Institute of Cost Accountants of India in 2002.

He also received the designation from the Institute of Cost and Management Accountants of India of “Fellow Cost and Management Accountant (F.C.M.A.)” in 2012. Furthermore, the defendant received the designation of “Certified Management Accountant (CMA)” from the Institute of Management Accountants (IMA) of the United States (date it was obtained is unknown). (

d) The defendant was not a member of CPA Ontario [ 30 ] The defendant had been registered as a student of CPA Ontario on June 23, 2015. He had commenced the application process to become a student of CPA Ontario while he was working and residing in Cape Town, South Africa. [ 31 ] The defendant, if not exempted by CPA Ontario from the education, examination and experience requirements of the qualification program of CPA Ontario for foreign qualified professional accountants, then the defendant would have been required to successfully complete those requirements to qualify for admission as a member of CPA Ontario.

After the defendant was assessed, CPA Ontario granted the defendant an exemption from having to complete the academic prerequisites except for a course in Canadian business law, and also exempted from having to complete the first 4 modules of the CPA Prerequisite Education Program (PEP), and also exempted from having to fulfill the experience requirement as the defendant had 23 years of professional accounting experience. However, the defendant was not exempted from having to write the Common Final Exam (CFE).

CPA Ontario also had required the defendant to complete the Capstone 1 Module and the Capstone 2 Module education courses.

If the defendant were to successfully complete those specific requirements, then the defendant would be awarded upon admission to CPA Ontario the “Chartered Professional Accountant” designation and the entitlement to use the initials “C.P.A.” or “CPA”. [ 32 ] However, the defendant had been deregistered by CPA Ontario as a student of CPA Ontario on February 12, 2018, after his third attempt and failure in passing the Common Final Exam (CFE). [ 33 ] But more importantly, students enrolled with CPA Ontario are not members of CPA Ontario for the purpose of being legally permitted to use their foreign professional accounting designations and their corresponding initials or descriptions in the public realm in Ontario, which members of CPA Ontario are legally permitted to do.

Only when a student of CPA Ontario successfully completes the required courses, fulfills the experience requirement and passes the qualifying exam, is the person then entitled for admission and to become a member of CPA Ontario. [ 34 ] Moreover, the word “student” is defined in s. 1 of the Certified Management Accountants Act, 2010 , with the following meaning: “student” means an individual registered as a student of the Corporation in accordance with the by-laws. [ 35 ] Furthermore, the word “student” is also defined in s. 1 of the Chartered Accountants Act, 2010 , with the following meaning: “student” means an individual registered as a student of the Institute in accordance with the by-laws. [ 36 ] In addition, the word “student” is also defined in s. 1 of the Chartered Professional Accountants of Ontario Act, 2017 , with the following meaning:

“student” means an individual registered as a student of CPA Ontario in accordance with the by-laws. [ 37 ] None of those

definitions for the term “student” in those three statutes defines a “student” of CPA Ontario to be a “member” of the Certified Management Accountants of Ontario, the Institute of Chartered Accountants of Ontario, or the Chartered Professional Accountants of Ontario (CPA Ontario). (

e) Chronology of the proceeding against the defendant [ 38 ] In March of 2017 (before the amalgamation of the 3 different professional accounting bodies and the 3 governing statutes on May 17, 2017), the Chartered Professional Accountants of Canada (CPA Canada) had made a complaint to CPA Ontario that the defendant, Joginder Singh Gujral, may be contravening Ontario’s professional accounting legislation. Karen Armstrong, a law clerk in the General Counsel’s Office of CPA Ontario, was then assigned to investigate the defendant.

Armstrong first confirmed that the defendant was a student of CPA Ontario and who had been taking courses provided by CPA Ontario to prepare for the qualification exam (Common Final Exam) in order to be accepted as a member of CPA Ontario. [ 39 ] On March 23, 2017, Karen Armstrong did internet and Google searches in respect to the defendant.

On that day, Armstrong found two different items in her search which were associated with the defendant, Joginder Singh Gujral, and which indicated to Armstrong that the defendant had contravened provisions of the Chartered Accountants Act, 2010 and the Certified Management Accountants Act, 2010 , as the defendant had been using publicly in Ontario his foreign professional accounting designations and their corresponding initials or descriptions, when the defendant was not a member of any of the 3 Ontario accounting bodies of the Institute of Chartered Accountants of Ontario, the Certified Management Accountants of Ontario, or the Chartered Professional Accountants of Ontario. [ 40 ] Armstrong then forwarded to Tom Litzgus, Associate General Counsel of CPA Ontario, the webpages she had found on her internet and Google searches that were linked to the defendant and which contained evidence that the defendant was using his foreign professional accounting designations and their corresponding initials or descriptions in the public realm, when he was not a member of the Institute of Chartered Accountants of Ontario, the Certified Management Accountants of Ontario, or the Chartered Professional Accountants of Ontario, and which were not legally allowed under the Chartered Accountants Act, 2010 and the Certified Management Accountants Act, 2010 . [ 41 ] Tom Litzgus then sent a “cease and desist” letter dated March 30, 2017 (Exhibit 10), by registered mail to the defendant which informed the defendant, that the defendant as a student of CPA Ontario was not legally permitted to use his foreign professional accounting designations and their corresponding initials or descriptions in the public realm in Ontario, since the defendant was not yet a member of CPA Ontario, nor was he permitted to use any of the CPA Ontario marks or logos which are trademark protected, and that he was to cease and desist this unlawful activity.

In addition, the letter informed the defendant that he could only use his foreign professional accounting designations and their corresponding initials or descriptions in 3 limited exceptions, which included a requirement to expressly state that the defendant was not a member of CPA Ontario and that the defendant was not being regulated by CPA Ontario. [ 42 ] The defendant then responded to Tom Litzgus by an e-mail dated April 3, 2017, in which the defendant had stated that he had received Litzgus’ letter dated March 30, 2017; that he had always mentioned the jurisdiction of India after his designations; that because he is a student with CPA Ontario he had always mentioned “Candidate” as he had seen this was the practice being used by all the students of CPA Ontario, which he noted can be observed on LinkedIn and on other social media.

In addition, the defendant informed Litzgus in that e-mail that he had removed it all together and that he would cooperate with CPA Ontario, and that the defendant had modified his advertisement in Kijiji and that he further promised to abide by all the guidelines and respect the provisions of the Act (see Exhibit #11). [ 43 ] Karen Armstrong also testified that she believed the defendant was cooperative and going to comply with the “cease and desist” letter of March 30, 2017, based on the defendant’s e-mail to Litzgus, so it was decided at that time that there would be no further action taken against the defendant by CPA Ontario. [ 44 ] On May 17, 2017, the Chartered Accountants Act, 2010 and the Certified Management Accountants Act, 2010 were repealed and

replaced with the Chartered Professional Accountants of Ontario Act, 2017 , the legislation that would from that point on govern all the professional accountants of Ontario. [ 45 ] However, on February 12, 2018, CPA Ontario deregistered the defendant as a student of CPA Ontario because the defendant had failed the Common Final Exam 3 times. The defendant then appealed his deregistration and included a copy of his resume in his appeal to CPA Ontario, which included the express use of the defendant’s foreign professional accounting designations and their corresponding initials.

Because the defendant publicly used his foreign professional accounting designations and their corresponding initials or descriptions by sending his resume with his appeal, which did not fall within one of the 3 statutory exceptions for their use in Ontario, the defendant’s action would be in contravention of s. 29 of the Chartered Professional Accountants of Ontario Act, 2017 . [ 46 ] A second complaint about the defendant’s misuse of his foreign credentials in Ontario was then brought to the attention of Karen Armstrong, who then reopened the investigation into the defendant nearly a year after the first complaint.

On March 20, 2018, Armstrong did an internet and Google search of the defendant and found 3 websites, which included his LinkedIn profile page, in which the defendant had been publicly using his foreign professional accounting designations and their corresponding initials or descriptions and advertising that the defendant had offices in Ontario in which he and his accounting firm, “Gujral Accounting”, provided accounting and taxation services as a Chartered Professional Accountant to small and medium-sized entrepreneurial clients in the GTA area of Ontario for reasonable rates when the defendant was not a member of CPA Ontario, which would be in contravention of s. 29 of the Chartered Professional Accountants of Ontario Act, 2017 . [ 47 ] Then subsequently on June 22, 2018, a

Part III information (Information #7488) containing 8 counts for regulatory offences committed between March 30, 2017 and June 21, 2018, was sworn and laid against the defendant. A summons was also issued by the Ontario Court of Justice on June 22, 2018, commanding the defendant to appear in court on October 2, 2018, to answer to the 8 charges. [ 48 ] The defendant was then served with the information and the summons on July 11, 2018. [ 49 ] On October 2, 2018, the defendant made an appearance through his legal representative, Harpreet Luthra, who appeared in court on behalf of the defendant.

Because of the defendant’s legal representative’s unavailability, the defendant’s matter was adjourned to February 5, 2019, which was four months later. [ 50 ] On February 5, 2019, the defendant appeared, but Harpreet Luthra was no longer representing the defendant.

Also, on February 5, 2019, counsel for CPA Ontario, Madeleine Brown, sought and obtained a judicial pre-trial conference date of March 26, 2019, which was one of the earliest dates that was available. [ 51 ] Because of defects in the charges on Information #7488, which was sworn on June 22, 2018, a second information (Information #5539) was then sworn on January 24, 2019, which also charged the defendant with committing the same 8 offences as set out in Information #7488, but between the period from March 1, 2017 and June 30, 2018. [ 52 ] The judicial pre-trial conference presided over by Amenta J.P. was then held on March 26, 2019.

Following the judicial pre-trial conference, Amenta J.P. attempted to set a date for trial by instructing the defendant to attend at the trial coordinator's office with Madeleine Brown, counsel for CPA Ontario, to obtain a trial date. The trial coordinator advised counsel for CPA Ontario and the defendant that there were no available dates in July and August of 2019.

The defendant in response to the attempt by the presiding pre- trial conference justice to set the trial on an available date up to the end of June, refused to agree to any available dates on account of the defendant’s purported travel plans for that time period.

Upon being informed of the defendant’s refusal to agree to a trial date before the end of June of 2019, Amenta J.P. ordered the defendant to return on April 8, 2019, with proof of his travel plans. [ 53 ] On April 8, 2019, the defendant produced to Amenta J.P. airline tickets that the defendant had actually purchased on April 3, 2019, as "proof' of his travel plans. The airline tickets were for the departure date of April 20, 2019 and the return date of July 1, 2019.

On receiving this “proof” of the defendant’s travel plans, Amenta J.P. discovered that the defendant had only purchased his airline tickets on a date after Amenta J.P. had tried to set the matter down for trial on March 26, 2019. Amenta J.P. then asked the defendant to move his travel plans. However, the defendant refused to change his travel plans.

Consequently, Amenta J.P. then scheduled the defendant’s trial for September 11, 2019, which was one of the first available dates after the defendant’s scheduled trip from April 20, 2019 to July 1, 2019 would be completed. [ 54 ] In addition, on the April 8, 2019 court appearance, Information #7488 which had been sworn on June 22, 2018, was withdrawn

by the prosecution.

As such, the prosecution was proceeding with the second information (Information #5539), that had been sworn on January 24, 2019, which also charged the defendant with committing the same 8 offences, but for a different period from March 1, 2017 to June 30, 2018. [ 55 ] Although the defendant’s trial for September 11, 2019, had been set on April 8, 2019, the defendant brought a motion on August 19, 2019, in an attempt to adjourn the scheduled trial, on the grounds that there was a settlement conference scheduled on the same date in an unrelated Small Claims Court matter that had been scheduled to commence on a date after the September 11, 2019 trial date.

At the hearing of the motion on August 19th, the defendant through his agent had introduced a new theory as to why the defendant’s adjournment ought to be granted, which was that the defendant’s father was ill. However, Bonas J.P. who heard the Motion for Adjournment dismissed the defendant’s application to adjourn the defendant’s trial, calling the defendant’s grounds and motion "frivolous" and "lacking in truthfulness". [ 56 ] The defendant’s Charter application and the trial was then heard and held on September 11, 2019. At the trial, two witnesses testified: one for the prosecution and one for the defence.

The prosecution witness was Karen Armstrong, a law clerk in the General Counsel’s Office of the Chartered Professional Accountants of Ontario; while for the defence, the defendant, Joginder Singh Gujral, had testified. [ 57 ] After submissions on the 8 charges and the Charter Application from both the prosecution and the defendant were completed, judgment was reserved and the matter adjourned to November 29, 2019, for the ruling on the Charter Application and for judgment on the 8 charges to be rendered. (

f) Withdrawal by the prosecution of the first Information laid against the defendant [ 58 ] Two

Part III Informations were actually laid against the defendant. The first information (Information #7488) was sworn on June 22, 2018. The second information (Information #5539) which had corrected errors on the first information was sworn on January 24, 2019. The prosecution withdrew the first information on April 4, 2018. For the purposes of s. 11(

b) of the Charter the commencement of the proceedings against the defendant would be the date in which the first Information was sworn, which is June 22, 2018. (

g) Students of CPA Ontario are not members of CPA Ontario [ 59 ] Students of CPA Ontario are not members of the Institute of Chartered Accountants of Ontario, the Certified Management Accountants of Ontario, or the Chartered Professional Accountants of Ontario under the Chartered Accountants Act, 2010 , the Certified Management Accountants Act, 2010 and the Chartered Professional Accountants of Ontario Act, 2017 , the 3 statutes that are applicable in this proceeding. (

h) Judicial Pre-Trial Conferences are not courts of competent jurisdiction for the purposes of granting a remedy for an infringement of the Charter [ 60 ] The defendant contends that the presiding justice in the judicial pre-trial conference had violated his rights by not listening to the defendant and by only listening to the prosecution, by not spending enough time to discuss the defendant’s charges during the judicial pre-trial conference, and by not dismissing his charges at the judicial pre-trial conference. [ 61 ] However, Judicial Pre-Trial Conferences are not courts of competent jurisdiction for the purposes of granting a remedy for an infringement of the Charter .

Moreover, a Judicial Pre-Trial Conference, which is a meeting held between a judicial officer, a prosecutor, and an accused (if self-represented) or the accused’s legal representative to discuss the accused’s case, to resolve procedural issues, to determine the number of witnesses to be called for the trial, and to determine the amount of time required to complete the trial including whether there are any pre-trial motions or Charter applications or experts being called as witnesses. A Judicial Pre-Trial Conference can also help narrow the issues and resolve disclosure issues.

Judicial Pre-Trial Conferences are also a mandatory step where the trial is expected to take up a significant amount of court time. [ 62 ] Moreover, Judicial Pre-Trial Conferences may only last 15 to 30 minutes and are not formal trials involving the presentation of evidence or the cross-examination of witnesses testifying under oath. The concerns of the presiding justice conducting the Judicial Pre-

Trial Conference may have been on matters related to determining the number of witnesses to be called and the amount of time required to complete the defendant’s trial and not a discussion on whether the defendant had committed the offences that the defendant was charged with, which may have been the specific concern of the defendant. As such, the defendant may have misunderstood the purpose of the Judicial Pre-Trial Conference and it may have not been appropriate for the presiding justice to even consider dismissing the defendant’s charges when the procedural meeting was not for the purposes of determining guilt or innocence. (

i) There is no evidence that Karen Armstrong who investigated the defendant was biased towards the defendant [ 63 ] The defendant contends that Karen Armstrong is biased towards the defendant, but there is no credible evidence adduced that Karen Armstrong is biased towards the defendant or that there is any acrimony between Armstrong and the defendant.

Moreover, Armstrong had no personal contact or communication with the defendant prior to the trial and that Armstrong’s investigation consisted only of internet and Google searches of the defendant and accessing information about the defendant that was already in CPA Ontario’s records and did not involve questioning the defendant or taking a statement from the defendant during her investigation of the defendant. In addition, there is no evidence that Armstrong knows the defendant personally or had investigated the defendant previously on other charges. (

j) Karen Armstrong is not required to be a cyber expert in order to testify about taking screenshots of webpages pertaining to the defendant that she had observed and found on the internet [ 64 ] The defendant contends that Karen Armstrong is required to be a cyber expert in order to testify about taking screenshots of webpages pertaining to the defendant that she had observed and found on the internet. Armstrong had testified that she had used the Microsoft Office Suite application on her computer to take a screenshot of the defendant’s webpages and then had saved those webpages as a PDF file.

The method of recording the defendant’s webpages for a particular point in time does not appear to be complicated and needing of specialized computer and technical knowledge, skill, experience or expertise, and that anyone with a basic knowledge of computers, the internet, and the Microsoft Office Suite application could undertake the task of taking a screenshot of the defendant’s webpages and saving the webpage as a PDF file. [ 65 ] Moreover, Armstrong also took care by erasing her cache memory on her computer to ensure that any previous screenshots that she had made of the defendant’s webpages on March 23, 2017, were not by default the same screenshots of the defendant’s webpages that would have been stored in her computer for the defendant’s webpages she had found on March 20, 2018. [ 66 ] In addition, the defendant suggested that a better method could have been used to capture and to authenticate the defendant’s webpages, but did not offer or state what this better method would be. (

k) There is no evidence of selective prosecution of the defendant by CPA Ontario [ 67 ] The defendant contends that CPA Ontario has

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