CITATION: Ontario (Min. of Gov. and Con. Services) v. Ivan’s Electric Limited, 2017 ONCJ 227  
DATE: April 4, 2017  
(amended after judgment had been released)  
I
N 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  
defendants  
Ontario Court of Justice  
Brampton, Ontario  
Quon J.P.  
Reasons for Judgment  
Trial held:  
Oct. 9, 15, 16, 17, 29, 30 and 31, 2014;  
Nov. 12, 13, 19, and 20, 2014  
April 9, 22, and 23, 2015;  
May 13, 14, and 27, 2015;  
March 17, 23, and 24, 2016;  
Oct. 27 and Nov. 2, 2016.  
Judgment released: April 4, 2017.  
Counsel:  
G. Ludlow and J. Chiang, counsel for the Ministry of Government and Consumer  
Services.  
T. Hein and J. Noonan, counsel for the defendants.  
Charges:  
(1) failing to deliver to a consumer a direct agreement containing the information  
required by s. 35(1) of the O. Reg. 17/05, contrary to s. 42 of the CPA 2002,  
thereby committing an offence under s. 116(2) of CPA 2002 (13 counts totaling  
36 charges);  
(2) failing to take reasonable care, as a director of the corporation, in preventing the  
corporation from failing to deliver to a consumer a direct agreement containing  
the information required by s. 35(1) of the O. Reg. 17/05, contrary to s. 42 of the  
CPA 2002, and thereby committed an offence under s. 116(3) of CPA 2002 (8  
counts totaling 8 charges).  
(3) failing to 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, thereby  
committing an offence under s. 116(1)(b)(viii) of CPA 2002 (8 counts totaling 26  
charges);  
(4) failing to take reasonable care, as a director of the corporation, in preventing the  
corporation from failing to refund to 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, and thereby committed an offence under s. 116(3) of CPA 2002 (6 counts  
totaling 6 charges);  
(5) engaging in an unfair practice by making a false, misleading or deceptive  
representation to a consumer, contrary to s. 17(1) CPA 2002, thereby committing  
offence under s. 116(1)(b)(ii) of CPA 2002 (7 counts totaling 23 charges); and  
(6) failing to take reasonable care, as a director of the corporation, in preventing the  
corporation from engaging in an unfair practice by making a false, misleading or  
deceptive representation to a consumer, contrary s. 17(1) of the CPA 2002,  
thereby committing offence under s. 116(3) of CPA 2002 (4 counts totaling 4  
charges);  
Cases Considered or Referred To:  
Blue Mountain Resorts Ltd. v. Bok, [2013] O.J. No. 520 (O.C.A.), per MacPherson, Armstrong  
and Blair JJ.A.  
Boma Manufacturing Ltd. v. Canadian Imperial Bank of Commerce, [1996] 3 S.C.R. 727  
(S.C.C.).  
Country Cottage Living Inc. v. Heath, [2009] O.J. No. 4994 (QL) (S.C.J.O.), per Mulligan J.  
Fazari v. Simpson, [2011] O.J. No. 4573 (Ont. Div. Ct.), per Eberhard J.  
Matoni v. C.B.S. Interactive Multimedia Inc. (c.o.b. Canadian Business College), [2008] O.J.  
No. 197 (S.C.J.O.), per Hoy J.  
Memorial Gardens Ontario Ltd. v. Ontario, [1992] O.J. No. 98 (O.C.A.), per Brooke, Tarnopolsky,  
and Doherty JJ.A.  
Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031 (S.C.C.).  
i
Ontario (Ministry of Labour) v. Enbridge Gas Distribution Inc., 2010 ONSC 2013 (S.C.J.O.), per  
Bellamy J.  
Ontario (Ministry of Labour) v. Enbridge Gas Distribution Inc., 2011 ONCA 13 (O.C.A.), per Watt  
J.A.  
Ontario (Ministry of Labour) v. Hamilton (City) (2002), 58 O.R. (3d) 37 (O.C.A.), per Sharpe J.A.  
Ontario (Ministry of Consumer Services) v. K-Tech Building Systems Inc., [2012] O.J. No. 1764  
(O.C.J.), per Quon J.P.  
R. v. Briscoe, [2010] 1 SCR 411 (S.C.C.).  
R. v. Castro, 2010 ONCA 718 (O.C.A.), per Weiler, MacPherson and Armstrong JJ.A.  
R. v. Cotton Felts Ltd. (1982), 2 C.C.C. (3d) 287 (O.C.A.), per Martin, Zuber and Blair JJ.A.  
R. v. Devgan, [1999] O.J. No. 1825 (O.C.A.), per Labrosse, Charron and Feldman JJ.A.  
R. v. Elm Tree Nursing Home Inc., [1987] O.J. No. 491 (O.C.A.), per Goodman, Cory and  
Finlayson JJ.A.  
R. v. Hundal, [1993] S.C.J. No. 29 (S.C.C.).  
R. v. Hutchinson, [2014] 1 S.C.R. 346 (S.C.C.).  
R. v. Isaac, [1984] 1 S.C.R. 74 (S.C.C.).  
R. v. Jordan, 2016 SCC 27 (S.C.C.).  
R. v. Kienapple, [1975] 1 S.C.R. 729 (S.C.C.).  
R. v. Logeman (1978), 5 C.R. (3d) 219 (B.C.C.A.).  
R. v. McCague, 2006 ONCJ 208 (O.C.J.), per Trotter J.  
R. v. Prince, [1986] 2 S.C.R. 480, [1986] S.C.J. No. 63 (S.C.C.).  
R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, 40 C.C.C. (2d) 353 (S.C.C.).  
R. v. Thatcher, [1987] 1 S.C.R. 652 (S.C.C.).  
R. v. Valovic, [2009] O.J. No. 6494 (S.C.J.O.), per Belleghem J.  
R. v. Vu, [2012] S.C.J. No. 40 (S.C.C.).  
R. v. Wigglesworth, [1987] S.C.J. No. 71 (S.C.C.).  
Ramdath v. George Brown College of Applied Arts and Technology, [2013] O.J. No. 3151  
(O.C.A.), per MacPherson, Cronk and Rouleau JJ.A., affirming [2012] O.J. No. 5389  
(S.C.J.O.), per Belobaba J.  
Richard v. Time Inc., [2012] S.C.J. No. 8 (S.C.C.).  
Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27 (S.C.C.).  
ii  
Tamarack North Holdings Ltd. (c.o.b. Tamarack North Ltd.) v. Hallisey, [2007] O.J. No. 66  
(S.C.J.O), per Wood J.  
Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, [2003] S.C.J. No. 64  
(S.C.C.).  
Weller v. Reliance Home Comfort Limited Partnership, [2012] O.J. No. 2415 (O.C.A.), per  
Rosenberg, Juriansz, and Rouleau JJ.A.  
Cases on amending an information:  
Deaville v. Boegeman, [1984] O.J. No. 3403 (O.C.A.), per Mackinnon A.C.J.O., Zuber, and  
Tarnopolsky JJ.A.  
Ontario (Ministry of Labour) v. Ivaco Inc., [2001] O.J. No. 1329 (S.C.J.O), per Heeney J.  
Ontario (Ministry of Labour) v. NMC Canada Inc., [1995] O.J. No. 2545 (O.C.A.), per Finlayson,  
Abella and Laskin JJ.A.  
Ontario (Ministry of Labour) v. Rahnmet Inc., [2009] O.J. No. 5418 (O.C.J.), per Bubba J.P.  
R. v. J.F. Brennan & Associates Inc. (1981), 61 C.C.C. (2d) 1 (O.H.C.), per Osler J.  
R. v. Cote (1977), 33 C.C.C. (2d) 353 (S.C.C.).  
R. v. Doukas, [1996] O.J. No. 1705 (O.C.J. (Prov. Div.), per August J.  
R. v. Gunn, [1982] S.C.J. No. 23 (S.C.C.).  
R. v. Irwin, [1998] O.J. No. 627 (O.C.A.), per Catzman, Doherty and Austin JJ.A.  
R. v. Kimberly-Clark Canada Inc. (August 21, 1995) (Ont. Prov. Div.), per Bice J.  
R. v. Larizza, [2006] O.J. No. 5335 (O.C.J.), per Pelletier J.  
R. v. Lorenzo, [2002] O.J. No. 4850 (O.C.J.), per Quon J.P.  
R. v. McConnell, [2005] O.J. No. 1613 (O.C.A.), per Laskin, Rosenberg, and LaForme JJ.A.  
R. v. Paul Magder Furs Ltd., [1989] O.J. No. 531 (O.C.A.), per Lacourciere, Houlden and Morden  
JJ.A.  
R. v. Petrecca, [2013] O.J. No. 6160 (O.C.J.), per D.A. Harris J.  
R. v. Preston Sand & Gravel Co., [2009] O.J. No. 6399 (O.C.J.), per Frazer J.  
R. v. Roberts, [2001] O.J. No. 4645 (O.C.J.), per Jackson J.  
R. v. Salim; R. v. Escobar; R. v. Chung; R. v. Ferlisi, [2000] O.J. No. 507 (S.C.J.O), per  
MacKinnon J.  
R. v. Seenanan, [2004] O.J. No. 1121 (O.C.A.), per Abella, Goudge, and Gillese JJ.A.  
R. v. Silverstrone, [2007] O.J. No. 4855 (S.C.J.O.), per Whitten J.  
R. v. Thomas Fuller Construction Co., [2008] O.J. No. 4004 (O.C.J.), per Wake J.  
iii  
Thermoset Thermoplastic Custom Moulder Ltd. v. Ontario (A.G.), [1992] O.J. No. 2455 (Ont. Ct.  
(Gen. Div.)) per Caswell J.  
York (Regional Municipality) v. Talabe, [2011] O.J. No. 654 (S.C.J.O.), per Healey J.  
York (Regional Municipality) v. Winlow (2009), 99 O.R. (3d) 337 (O.C.A.), per Laskin, Gillese, and  
Rouleau JJ.A.  
Cases on obligation to cross-examine witness on point of contradiction before  
arguing witness is not credible  
R. v. Palmer, [1979] S.C.J. No. 126 (S.C.C.).  
R. v. Verney, [1993] O.J. No. 2632 (O.C.A.), per Finlayson, McKinlay and Abella JJ.A.  
R. v. G.P. (1996), 112 C.C.C. (3d) 263 (O.C.A.), per Laskin, Rosenberg and Moldaver JJ.A.  
Rule in Browne v. Dunn (1893) 6 R. 67 (H.L.).  
Cases on mistake of law as a defence  
La Souveraine, Compagnie d'assurance générale v. Autorité des marchés financiers, [2013]  
S.C.J. No. 63 (S.C.C.).  
R. v. Jorgensen, [1995] 4 S.C.R. 55 (S.C.C.).  
Statutes, Regulations, and Bills Cited:  
Bill 59, Putting Consumers First Act (Consumer Protection Statute Law Amendment) (An Act to  
enact a new Act with respect to home inspections and to amend various Acts with respect to  
financial services and consumer protection), 2017, 2nd Sess., 41st Leg., Ontario, 2017 (as of  
March 7, 2017, ordered for Third Reading), clause 16.  
Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A., ss. 1, 14, 14(1), 14(2), 14(2)(10),  
14(2)(13),14(2)(14), 14(2)(15), 14(2)(16), 15, 15(1), 15(2), 15(2)(b), 15(2)(g), 16, 17(1), 17(2),  
18(1), 18(3), 18(14), 20(1), 42, 43, 43(1), 43.1(1), 43(2), 88, 89(1), 91, 92, 92(1), 92(2), 92(3), 94,  
94(2), 95, 96(1), 96(1)(a), 98, 98(1), 99(1), 99(2), 116(1)(a), 116(1)(b)(ii), 116(1)(b)(vii),  
116(1)(b)(viii), 116(2), and 116(3).  
Electrical Safety Authority Regulation (Electricity Act, 1998), O. Reg. 89/99, s. 1.  
Electricity Act, 1998, S.O. 1998, C. 15, Sched. A.  
Evidence Act, R.S.O. 1990, C. E.23, ss. 20 and 21.  
General Regulation (Consumer Protection Act, 2002), O. Reg. 17/05, ss. 17, 34, 35, 35(1),  
35(1)(4), 35(1)(4)(i), 35(1)(6), 35(1)(9), 35(1)(11), 35(1)(13), 35(2), 79(1), 80(1), 83, 83(1),  
83(1)(a), 83(2), 83(2)(a), 83(4), and 84.  
General Regulation (Safety And Consumer Statutes Administration Act, 1996), O. Reg. 187/09, s.  
2.  
Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, s. 64.  
iv  
Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 34, 34(1), 34(2), 34(4), 34(4)(c), 34(4)(d),  
77(1), and 81.  
Safety and Consumer Statutes Administration Act, 1996, S.O. 1996, c. 19.  
Authorities Considered or Referred To:  
Black's Law Dictionary, 4th ed. (St. Paul, Minn.: West Publishing, 1968), p. 17, “abet”.  
Business Guide To Consumer Protection, online: Ministry of Government and Consumer Services  
website <<http://www.sse.gov.on.ca/mcs/en/Pages/business_guide.aspx>>, “direct agreements”.  
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).  
Sullivan, R. Statutory Interpretation (Toronto, Ontario: Irwin Law Inc., 1997).  
Waddams, S.M. The Law of Contracts, Fourth Edition (Toronto: Canada Law Book Inc., 1999).  
Exhibits Entered: 37 exhibits were entered.  
v
Table of Contents  
Page No.  
1. INTRODUCTION  
(A) Position Of The Parties.  
2. THE CHARGES  
(A) Categories Of Charges.  
3. BACKGROUND  
(A) Summary of the proceedings.  
(B) The Defendants.  
(1) The defendant Ivan Valovic,  
(2) The corporate defendant Ivan’s Electric Ltd.  
(3) The defendant Peter Valovic.  
(4) The corporate defendant Insight Electric Inc.  
(C) The Consumers Who Filed Complaints Against The Defendants.  
(D) The Nature Of The Consumers’ Complaints To The Ministry Of Government  
And Consumer Services.  
(E) How Are The Defendants’ Fees or Prices For Their Electrical Services  
Determined?  
(F) Fees That The Electrical Safety Authority Charges For Electrical Inspections  
Are Passed Onto The Consumer.  
(G) Ivan Valovic’s Master Electrician’s Licence Had Lapsed On June 18, 2010,  
And Would Not Be Renewed By The ESA Unless He Rewrote and Passed  
The Master Electrician Examination.  
(H) Ivan’s Electric Ltd. Could Not Operate As An Electrical Contractor Without A  
Licenced Master Electrician.  
(I) After ESA Informs Ivan Valovic On April 16, 2012, That Ivan's Electric Ltd.  
Had To Immediately Stop Operating, Ivan Valovic Goes To Work For His  
Son’s Company, Insight Electric Ltd.  
(J) Ivan Valovic And Ivan’s Electric Ltd. Began Passing On Jobs To Insight  
Electric Ltd. After The ESA Informed Ivan Valovic That Ivan's Electric Ltd. Had  
To Immediately Stop Operating.  
(K) Which of the 11 Consumers Had Entered Into Agreements With The  
Defendants After April 16, 2012, The Date When Ivan Valovic Had Been  
Informed By The ESA That Ivan's Electric Ltd. Had to Immediately Stop  
Operating?  
(L) Ivan Valovic Continued To Use The Ivan's Electric Ltd. Red Van At  
ConsumersHomes After ESA Had Told Ivan Valovic on April 16, 2012, To  
Immediately Stop Operating Ivan's Electric Ltd.  
(M) The ESA Revokes Ivan's Electric Ltd.’s Electrical Contractor’s Licence On  
March 14, 2013, Due To Safety Concerns.  
4. ANALYSIS AND DECISION  
vi  
(A) SHOULD THE CROWN’S APPLICATION UNDER S. 34 OF THE P.O.A.  
TO AMEND THE STATUTORY PROVISION FOR THE OFFENCE FROM  
116(1)(b)(vii) to 116(1)(b)(ii) ON 6 PARTICULAR COUNTS (TOTALLING  
20 CHARGES) BE GRANTED?  
(1) Can the amendments be made to the 6 counts set out in two of the three  
informations during the defendants’ closing arguments stage of the trial?  
(2) Discussion of the s. 34(4) factors.  
(a) Has Any Evidence Been Adduced At Trial?  
(b) What Are The Circumstances In This Case?  
(c) Has The Variance, Error, Or Omission Misled Or Prejudiced The  
Defendants?  
(i) Is there presumed prejudiceto the defendants just because  
the application for the proposed amendment had been  
brought by the prosecution at the closing arguments stage of  
the trial?  
(ii) Would allowing the proposed amendment of substituting one  
statutory provision for another statutory provision actually  
change the offence in those 6 counts to a different offence for  
the defendant to defend and to make full answer and  
defence?  
(d) Having Regard To The Merits Of The Case, Can The Proposed  
Amendments Be Done Without Injustice To The Defendants?  
(3) Conclusion  
(B) WERE  
THE  
AGREEMENTS  
NEGOTIATED  
BETWEEN  
THE  
DEFENDANTS AND THE 11 CONSUMERS “DIRECT AGREEMENTS”  
WITHIN THE MEANING OF THE CONSUMER PROTECTION ACT, 2002?  
(a) The definition of a “direct agreement” in the CPA 2002.  
(b) Public welfare legislation is to be generously interpreted in a  
manner that is in keeping with the purposes and objectives of the  
legislative scheme  
(i) What is the legislative goal of the CPA 2002?  
(ii) There has been a paradigm shift in the merchant-consumer  
relationship brought about by consumer protection legislation  
that changes the relationship that had been based on the  
maxim “caveat emptor” -- let the buyer be aware, to a  
relationship now based on the maxim “caveat venditor” -- let  
the supplier be aware.  
(iii) Should direct agreements only be interpreted narrowly so as  
to apply to only door-to-door sales and not to situations where  
a consumer calls an electrician to attend at the consumer’s  
residence for a service call?  
(c)  
Academic writers in defining a direct agreement have only  
provided examples of “direct agreements” which include  
transactions related to door-to-door sales.  
(d) Bill 59 makes reference to the “direct agreement” provisions in the  
Consumer Protection Act, 2002, applying to situations or  
transactions where the consumer calls the supplier to attend at the  
consumer’s residence.  
(e) The agreements between the defendants and the 11 consumers  
are “direct agreements” within the meaning of the CPA 2002.  
vii  
(C) IN RESPECT TO THE RULE IN BROWNE AND DUNN, DID THE  
DEFENDANTS HAVE TO PUT ANY PROPOSED CONTRADICTION TO  
THE CROWN WITNESSES IN CROSS-EXAMINATION BEFORE THE  
DEFENDANTS COULD SUGGEST THAT THE CROWN WITNESSES HAD  
NOT BEEN CREDIBLE IN THEIR CLOSING ARGUMENTS?  
(1) Is the Rule In Browne And Dunn a legal principle or a rule of fairness in  
Canada?  
(2) Have the testimony of the consumers been credible?  
(3) Have the testimony of the defendants been credible?  
(D) HAS THE PROSECUTION PROVEN BEYOND A REASONABLE DOUBT  
THAT THE DEFENDANTS HAVE COMMITTED THE ACTUS REUS OF  
THE OFFENCES THEY HAVE BEEN RESPECTIVELY CHARGED WITH?  
(1) Were Ivan Valovic and Peter Valovic party to an offence committed  
by Ivan's Electric Ltd. and Insight Electric Inc.?  
(2) The “Improper ContractCharges.  
(a) The Nature Or Contents Of The Defendants’ Written Direct  
Agreements That Were Provided To The Consumers.  
(i) Did the defendants’ agreements given to the 11 consumers  
comply with the CPA 2002 and its regulations in respect to the  
information that is required to be provided to consumers?  
(A) What information is required to be contained in a direct  
agreement?  
(ii) Did the agreements or forms used by other electricians in the  
industry comply with the requirements of the CPA 2002?  
(iii) Did the prosecution prove the actus reus of the offence of  
failing to provide a proper agreement to a consumerbeyond a  
reasonable doubt?  
(3) The “Fail To RefundCharges  
(a) When Are The Defendants Obligated To Make A Refund To A  
Consumer?  
(i) Are the defendants legally entitled to ask a consumer for a 30%  
deposit or to include a 30% cancellation fee term or condition in  
the direct agreement?  
(ii) If the defendants are required to make a refund to a consumer,  
what is reasonable compensation” that the defendants can  
deduct from the refund amount that would have to be refunded  
to the consumer?  
(b) Under What Situations May  
Agreement?  
A
Consumer Cancel A Direct  
(i) Cancelling the direct agreement during the 10-day cooling off  
period.  
(ii) Cancelling the direct agreement if the supplier fails to provide a  
direct agreement containing the required information prescribed  
under s. 42.  
(iii) Cancelling the direct agreement when the supplier has engaged  
in an unfair practice.  
(c) Was Proper Notice By The Consumers Requesting A Refund Given  
To The Defendants?  
(d) Did the prosecution prove beyond a reasonable doubt the actus reus  
of the offence of failing to provide a refund to a consumer within 15  
days of receiving notification?  
viii  
(4) The “Unfair PracticeCharges  
(a) What is an unfair practice within the meaning of the CPA 2002?  
(b) What were the false, misleading or deceptive representations made  
by the defendants to the consumers?  
(c) The prosecution does not have to prove that the consumers had  
relied on the defendants’ false, misleading or deceptive  
representations before entering into the agreement with the  
defendants in order to establish that there has been an unfair  
practice.  
(d) Did the prosecution prove the actus reus of the offence beyond a  
reasonable doubt that the defendants respectively engaged in an  
unfair practice by making false, misleading or deceptive  
representations to the consumers?  
(i)  
Is there evidence that the defendants have grossly over-  
charged the consumers so as to make it an unfair practice?  
(A) Prices of what Nigel Avery, a master electrician, would  
charge for his services.  
(B) Opinion of Joe Peragine, an ESA inspector, on how  
much an electrical job should cost.  
(ii) By analogy, is the omission of informing the consumers that  
they are buying a $10 hamburger instead of a $3 hamburger  
an unfair practice?  
(iii) Is the 30% cancellation fee imposed on the consumers in the  
agreement an unfair practice?  
(A) Is the 30% cancellation fee legally permitted to be a  
condition in a direct agreement under the CPA 2002?  
(iv)  
When a consumer calls Ivan's Electric Ltd.’s telephone  
number to hire an electrician and the defendants omit to  
inform the consumer that Ivan's Electric Ltd. is no longer  
operating and then Insight Electric Inc. arrives at the  
consumer’s residence to do the job be an unfair practice?  
(A) Was there anything improper about Ivan Valovic and  
Ivan’s Electric Ltd. passing on jobs to Insight Electric  
Inc.?  
(B) Is the failure to disclose that Ivan's Electric Ltd. is no  
longer operating and that Ivan's Electric Ltd. or Ivan  
Valovic had passed the job to Insight Electric Inc., who  
then arrives at the consumer’s residence to do the job,  
a material fact that has to be disclosed to the consumer  
during the initial telephone call made by the consumer  
to Ivan's Electric Ltd. or Ivan Valovic to provide the  
consumer a service?  
(C)  
Were the consumers confused about who they had  
called to be their electricians when Insight Electric Inc.  
appeared at the consumer’s residence instead of Ivan's  
Electric Ltd. who had been called by the consumers to  
provide the service?  
(v) Is omitting to inform the consumer during the initial telephone  
call what the defendantsrates are for emergency service  
calls or that they will charge the consumer a service charge  
for attending at the consumer’s residence an unfair practice?  
(vi)  
Did the defendants commit an unfair practice by not  
providing a detailed breakdown of the work involved and the  
cost of the labour and parts in their agreements with the  
ix  
consumers?  
(E) HAVE THE DEFENDANTS RESPECTIVELY ESTABLISHED THE  
DEFENCE OF DUE DILIGENCE ON A BALANCE OF PROBABILITIES?  
(1) Does having a reasonable mistake of law establish a due diligence  
defence for a strict liability offence?  
(2) Due diligence for the improper contract charges.  
(3) Due diligence for the fail to refund charges.  
(4) Due diligence for the unfair practice charges.  
(5)  
Due diligence for the charges against Ivan Valovic and Peter  
Valovic in their capacity as directors of their respective  
corporations.  
(6)  
Can the defendants rely on the ESA’s missteps or confusion  
caused by the ESA in dealing with the renewal of Ivan Valovic’s  
Master Electrician’s Licence or Ivan's Electric Ltd. electrical  
contractor’s licence as a due diligence defence?  
(F) DEFENDANTS’ CHARGES IN RESPECT TO EACH OF THE 11  
CONSUMERS  
(i) Denise Herold  
(ii) Gladys Canadas  
(iii) Catherine Telford  
(iv) Peter Christensen  
(v) Terry Bardeau  
(vi) Boris Wolchak  
(vii) Eva Patterson  
(viii) Nigel Lundie  
(ix) Sandra Castator  
(x) Marjorie Riley  
(xi) Zaven Tahtadjian  
5. DISPOSITION  
x
1.  
INTRODUCTION  
[1]  
During the great ice storm that struck southern Ontario in late December of 2013,  
hundreds of thousands of homes were left without power and electricity for many  
days.1 The inclement weather had caused many downed power lines, and for the  
people whose homes were without heat, the temperatures outside were frigidly cold  
and below freezing. During this crisis, some politicians even publicly pleaded for  
suppliers of goods and services not to gouge or take advantage of people who were  
vulnerable and severely affected by the ice storm.2 However, not all heeded that  
request. For likely reasons of greed and profit, some did take advantage of the  
misfortune of others and from the chaos caused by the ice storm to gouge their  
customers and to line their pockets.  
[2]  
At this time, there are no “price gouging” laws in Ontario to protect consumers  
during times of declared emergencies. As such, suppliers of goods and services  
are not prohibited from charging any amount they wish during a natural disaster or  
other emergency. However, supporters of price gouging laws argue that taking  
advantage of people during a disaster or crisis by increasing prices excessively or  
exorbitantly is morally wrong and that those guilty of the practice should face  
criminal or quasi-criminal charges, while those opposing such laws maintain that in  
circumstances when consumers are willing to pay the price asked for certain goods  
or services, then the supplier cannot be blamed.  
1
The Canadian Press,National PostStaff and Jake Edmiston,'Catastrophic ice storm' slams into Toronto, strands  
travellers across the province”, National Post (December 22, 2013/Last Updated: Jan 25 6:32 AM ET),  
nationalpost.com website, online: <<http://news.nationalpost.com/news/canada/canada-ice-storm-travel-chaos-  
power-outages-as-massive-storm-hits-ontario-quebec-and-maritimes>>:  
At the peak of the storm’s impact Sunday, hundreds of thousands of households were without power —  
approximately300,000 in Toronto alone. Bylate Sunday night, Toronto Hydro was still working to restore power to  
254,000 customers. Southern Ontario, Quebec and the Maritimes saw as much as 30 mm of ice blanket roads  
and trees, sending broken branches into power lines.  
“It truly is a catastrophic ice storm that we have had here, probably one of the worst we’ve ever had,” Toronto  
Hydro CEO Anthony Haines said Sunday. The worst hit parts of Toronto are the neighbourhoods near the 401,  
stretching the city from Etobicoke to Scarbourough.  
Kuhn said because temperatures were expected to remain below freezing in the wake of the storm, there would  
be little melting of the ice caked on tree branches. Coupled with briskwinds the chances of branches following on  
to powerlines was likely to continue.  
2
Joe Warmington, “Councillor Doug Ford Accuses Tree Removal Companies Of Gouging”, Toronto Sun  
(Wednesday,January 01, 2014 02:56 Pm Est/Updated: Wednesday, January 01, 2014 03:29 Pm Est), Toronto Sun  
Website,  
Online:  
<<Http://Www.Torontosun.Com/2014/01/01/Councillor-Doug-Ford-Takes-Chainsaw-To-  
Constituents-Fallen-Tree>>:  
A ruthless storm sometimes churns up despicable profiteering.  
Concerned that some diving into the newly-needed tree removal business are “gouging people,”  
Councillor Doug Ford is urging caution.  
And the councillor for Etobicoke North (Ward 2) is also strongly discouraging enterprising entrepreneurs from  
taking advantage of vulnerable people.  
“There are some great tree removal companies for sure but I think some of these tree guys are gouging people,”  
said Ford. “After everything these people have already been through, it’s just not right.”  
1
[3]  
On the other hand, even during times when a declared public state of emergency or  
disaster does not exist, suppliers of services and goods in Ontario may potentially  
face prosecution in lesser circumstances of public crisis under the Consumer  
Protection Act, 2002, S.O. 2002, c. 30, Sched. A (“CPA 2002”), for committing an  
“unfair practice” under s. 15(2)(b) when they make an unconscionable  
representation in which the price for goods or services would grossly exceedthe  
price at which similar goods or services are readily available to like consumers.  
This is what many consumers in this regulatory prosecution contend had occurred  
to them when they hired the defendants, Ivan's Electric Ltd., Ivan Valovic, Insight  
Electric Inc., and Peter Valovic, as electrical contractors and electricians to attend  
their residences to find and fix their electrical problems. For the most part, these  
consumers had complained to the Ministry of Government and Consumer Services  
that the defendants had excessively overcharged them when compared to what  
other electricians would have charged them.  
[4]  
[5]  
Coincidentally, two of the consumers who had filed complaints against the  
defendants had indeed lost power to their homes as a result of that ice storm that  
had occurred in late December of 2013. These two consumers had also been  
adamant that they had been taken advantage of by the defendants in the  
circumstances and had believed that they had excessively overpaid the defendants  
to fix and restore electrical service to their homes.  
For this regulatory prosecution, 12 consumers had filed complaints about the  
defendants with the Ministry after the defendants had completed electrical work at  
the consumers’ residences for which the defendants had been called in to do, or in  
two instances when consumers had paid substantial deposits to the defendants for  
future electrical work to be done by the defendants, but then subsequently cancelled  
the jobs and had asked for a return of their deposits. However, these two  
consumers did not receive a full refund from the defendants after they had cancelled  
the jobs, which then led to them complaining to the Ministry. As well, some of the  
consumers who had their electrical work completed by the defendants had also  
demanded a refund after realizing or believing that they had grossly overpaid the  
defendants for the work that they had hired the defendants to do. The consumers  
had also complained to the Ministry about having other concerns about the  
defendants, including that Ivan's Electric Ltd. or Ivan Valovic not being properly  
licensed to do electrical work; that the defendants had charged them for new parts  
and materials but had instead provided them with used parts or materials; that the  
defendants had charged them for electrical inspections by the Electrical Safety  
Authority (“ESA”) that were never carried out; that payment had been taken upfront  
by the defendants and charged to their credit cards before the work had even  
commenced; and that the defendants had misled the consumers about the  
seriousness of the consequences or danger of the electrical problem at their  
residences in order to get the job or about the availability of parts or materials.  
These events and transactions between the consumers and the defendants had  
2
occurred during a period covering about 32 months between May 27, 2011 and  
January 15, 2014.  
[6]  
After investigating these consumer complaints, the Ministry of Government and  
Consumer Services then charged Ivan Valovic, who had been licensed as a master  
electrician; Ivan Valovic’s company named “Ivan's Electric Ltd.”; Ivan Valovic’s son,  
Peter Valovic, who also is a licenced master electrician; and Peter Valovic’s  
company named “Insight Electric Inc.”, with committing 103 offences respectively  
under the CPA 2002. In addition, Ivan Valovic, is the President and director of  
Ivan's Electric Ltd. while Peter Valovic is the President and director of Insight  
Electric Inc.  
[7]  
The 103 charges laid against the four defendants are set out in 46 counts that are  
contained in three separate informations, which were sworn respectively on  
February 25, 2013 (#5731), on November 4, 2013 (#8091), and on March 6, 2014  
(#5740). Furthermore, these 103 charges can be grouped into the following types  
of offences:  
(1) there are 13 separate counts (totaling 36 charges) for the offence of  
failing to deliver to a consumer a direct agreement containing the  
information required by s. 35(1) of the O. Reg. 17/05, contrary to s. 42  
of the CPA 2002, and, thereby committing an offence under s. 116(2) of  
the CPA 2002;  
(2) there are 8 separate counts (totaling 8 charges) for the offence of failing  
to take reasonable care, as a director of the corporation, in preventing  
the corporation from failing to deliver to a consumer a direct agreement  
containing the information required by s. 35(1) of the O. Reg. 17/05,  
contrary to s. 42 of the CPA 2002, and thereby committed an offence  
under s. 116(3) of the CPA 2002;  
(3) there are 8 separate counts (totaling 26 charges) for the offence of  
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, thereby committing an offence under s. 116(1)(b)(viii) of  
CPA 2002;  
(4) there are 6 separate counts (totaling 6 charges) for the offence of failing  
to take reasonable care, as a director of the corporation, in preventing  
the corporation from 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 the CPA 2002, and thereby, committed an  
offence under s. 116(3) of CPA 2002;  
(5) there are 7 separate counts (totaling 23 charges) for the offence of  
engaging in an unfair practice by making a false, misleading or  
3
deceptive representation to a consumer, contrary to s. 17(1) of the CPA  
2002, thereby committing an offence under s. 116(1)(b)(vii) [or  
116(1)(b)(ii) if the proposed amendment is granted] of the CPA  
2002; and  
(6) there are 4 separate counts (totaling 4 charges) for the offence of failing  
to take reasonable care to prevent the corporation, as a director of 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, thereby committing an offence under s. 116(3)  
of the CPA 2002.  
[8]  
And, of the 12 consumers who had filed complaints against the defendants that led  
to the 103 charges at bar, only 11 of the 12 consumers had appeared at trial to  
provide testimony. Also, during the prosecution’s part of the trial and after it was  
evident that some of the consumers had not provided any evidence in respect to  
particular charges, the prosecution had asked that 14 of the 103 charges laid  
against the defendants be dismissed, since there had been no evidence adduced  
that the defendants had committed those specific offences. Therefore, in respect to  
Information #5731, counts #5, #6, and #10 totaling 6 charges were dismissed; in  
respect to Information #8091, counts #3 and #4 totaling 4 charges were dismissed;  
and in respect to Information #5740, count #3 totaling 4 charges was dismissed.  
[9]  
As a result, only 89 charges in 40 separate counts of the original 103 charges in 46  
counts remain for consideration.  
(A) The Position of The Parties  
[10] The prosecution contends that for the remaining 89 charges they have met their  
burden in proving beyond a reasonable doubt that all the defendants have  
committed their respective charges of the 89 charges and that the defendants  
have failed to prove on a balance of probabilities a defence of due diligence, which  
would prevent them from being convicted of committing those 89 offences.  
Accordingly, the prosecution submits that for the 89 charges the defendants have  
been respectively charged with committing, that they should have convictions  
entered against them respectively for committing those offences.  
[11] However, for the engaging in an unfair practicecharges the prosecution is not  
relying on the consumers’ complaints and testimony that the defendants had  
excessively overchargedfor their work and services as the basis for committing  
that offence, but contends that the defendants had still engaged in unfair practices  
in other ways towards the consumers. The prosecution submits that the defendants  
had engaged in the following false, misleading, or deceptive representations in  
respect to the 11 consumers:  
(1) by including a 30% cancellation fee term in the written agreements with  
4
the consumers, which the prosecution submits is not legally  
permissible in a “direct agreement” under the CPA 2002;  
(2) by also taking a 30% deposit from a consumer and then when the  
consumer cancels the direct agreement to refuse to provide a refund  
and keep the deposit as the 30% cancellation fee;  
(3) by also promising to give the consumers a one-year warranty on parts  
and labour, but then did not include that promised guarantee in the  
written agreements entered into with the consumers;  
(4) by also not informing particular consumers who called Ivan's Electric  
Ltd. or Ivan Valovic for service that Ivan's Electric Ltd. was no longer  
operating and that Insight Electric Inc. would be attending to do the  
work;  
(5) by also informing the consumer, who had originally called Ivan's  
Electric Ltd. to do the job, that Insight Electric Inc. was doing the work  
when the defendants arrived at the consumer’s residence, but that the  
defendants’ van that would appear at the consumer’s residence would  
have the business name, the logo, and the telephone numbers of  
Ivan's Electric Ltd;  
(6) by also informing the consumer, who had originally called Ivan's  
Electric Ltd. to do the job, that Insight Electric Inc. was doing the work  
when the defendants arrived at the consumer’s residence, but then the  
consumer would be given direct agreements, proposals, or written  
agreements, business cards, and stickers that would contain the name,  
logo, telephone numbers, and electrical contractor’s licence number for  
Ivan's Electric Ltd.;  
(7) by also informing the consumer, who had originally called Ivan's  
Electric Ltd. to do the job, that that Insight Electric Inc. was doing the  
work when the defendants arrived at the consumer’s residence, but  
then charging the consumer’s credit card to Ivan's Electric Ltd.’s  
account;  
(8) by also not telling the consumer who had called Ivan's Electric Ltd. for  
service that the consumers would be charged a $180 service call  
charge or a $360 emergency service call charge just for the  
defendants to drive to the consumer’s home, or to inform the consumer  
that their emergency, after-hours, holidays, and week-end rates are  
double the regular rate of $180 an hour for each electrician that  
attends the consumer’s house; and  
(9) by also displaying or providing the electrical contractor’s licence  
5
number for Ivan's Electric Ltd. to the consumer when the electrical  
contractor’s licence for Ivan's Electric Ltd. had been revoked by the  
ESA.  
[12] Now, in defending against these remaining 89 charges in the 40 separate counts,  
the defendants have made three distinct arguments for why they should not be  
found guilty beyond a reasonable doubt or be convicted of committing the remaining  
89 charges.  
[13] First of all, the defendants submit that for 20 of the remaining 89 charges set out in  
6 separate counts that pertain to the offences in respect of “engaging in an unfair  
practice by making a false, misleading or deceptive representation to a consumer”,  
the defendants contend that the prosecution has not adduced any evidence in  
respect to committing the offence set out in s. 116(1)(b)(vii) in respect to matters of  
“leasing” prescribed under ss. 88 and 89(1) of Part VIII of the CPA 2002. However,  
when this argument was made by the defendants during their closing argument, the  
prosecution immediately brought an application under s. 34 of the Provincial  
Offences Act, R.S.O. 1990, c. P.33 (“P.O.A.”), seeking an order to amend the  
statutory provision from “section 116(1)(b)(vii)” that is stated in those 6 counts  
pertaining to those 20 charges (which refers to matters of “leasing” in respect to ss.  
88 and 89(1) of Part VIII of the CPA 2002), to the statutory provision of “section  
116(1)(b)(ii)”, which the prosecution submits properly describes offences in respect  
to “unfair practices” mentioned under s. 17(1) of Part III of the CPA 2002, so as to  
coincide with the evidence adduced at trial in respect to offences committed by the  
defendants related to “engaging in unfair practices by making false, misleading, or  
deceptive representations. The defendants objected to the application to amend  
the statutory provision for those 6 counts, arguing that it would prejudice the  
defendants since the proposed amendment would create a new offence and it  
would be unjust to grant the amendment since the limitation period for laying the  
charge has already expired.  
[14] Ergo, if the prosecution’s application under s. 34 of the P.O.A. is not granted to  
amend those 6 counts pertaining to those 20 charges from “section 116(1)(b)(vii)” to  
“section 116(1)(b)(ii)”, then acquittals will have to be necessarily entered for the  
defendants on those 6 specific counts, since there has been no evidence adduced  
by the prosecution in the trial about matters of leasingin respect to ss. 88 and  
89(1) of Part VIII of the CPA 2002 in respect to any of the consumers.  
[15] For their second argument, the defendants submit that in deciding whether 62 of the  
remaining 89 charges that are set out in 29 separate counts have been respectively  
committed by the defendants beyond a reasonable doubt, it will necessarily be  
contingent on whether the agreements entered into between the 11 consumers and  
the defendants are “direct agreements” within the meaning of the CPA 2002. Those  
62 charges are for the offences in respect to the 42 charges associated with the  
offences of failing to deliver to a consumer a direct agreement containing the  
information required by s. 35(1)of the O. Reg. 17/05, which is contrary to s. 42 of  
6
the CPA 2002 and for the 20 charges associated with the offences of failing to  
provide a refund to a consumer within 15 days after the date the said consumer  
gave notice of cancellationwhich is contrary to s. 96(1)(a) of the CPA 2002.  
[16] For their argument that the agreements with the 11 consumers are not direct  
agreements, the defendants contend that the “direct agreement” provisions of the  
CPA 2002, such as the 10-day cooling-off period to cancel an agreement, are not  
meant to apply to situations, such as here, where a consumer calls an electrician or  
a plumber, for example, to attend at the consumer’s house for a service call.  
Instead, the defendants contend that the “direct agreement” provisions of the CPA  
2002 are only meant to apply to door-to-door salespersons who arrive at a  
consumer’s house unexpectedly, and then solicits, pressures, or convinces the  
consumer to enter into a contract to purchase a good or a service such as a water  
heater or a vacuum cleaner or lawn-cutting service. Moreover, the defendants also  
contend that they themselves had reasonably believed that their agreements with  
consumers were not direct agreements for the purposes of the CPA 2002 based on  
their lawyer having had advised them that their agreements with consumers for  
electrical work were not “direct agreements”, since the defendants had not solicited  
the consumer as door-to-door salespeople, but had been instead solicited by the  
consumer to attend the consumer’s house to provide goods and services.  
Furthermore, the defendants also contend that the Review Panel of the Electrical  
Safety Authority (“the ESA”), the governing body of electrical contractors and master  
electricians in Ontario, had in a hearing involving the defendants had found logic in  
their lawyer’s argument that direct agreements do not apply to situations in which a  
consumer calls an electrician to attend at the consumer’s house to provide their  
services.  
[17] On the other hand, the prosecution refutes the defendant’s argument that the  
defendants’ agreements with consumers are not direct agreements and submits that  
the definition of a “direct agreement” under s. 20(1) of the CPA 2002, which defines  
a direct agreement as a consumer agreement that is negotiated or concluded in  
person at a place other than, at the suppliers place of business, or at a market  
place, an auction, trade fair, agricultural fair or exhibition, is to be interpreted  
broadly so that it would include the situation where a consumer calls a supplier to  
attend at the consumer’s house to provide goods and services, and therefore, would  
make the defendants’ agreements direct agreements, since the agreements  
between the defendants and the consumers in this proceeding had not been signed  
at the supplier’s place of business or at a trade show.  
[18] Consequently, if the agreements between the consumers and the defendants are  
not found to be direct agreements” within the meaning of the CPA 2002, then the  
provisions in the CPA 2002 and its regulations governing direct agreements, such  
as the requirement to provide specific information in the agreement that is provided  
to the consumer; the 10-day cooling off period which permits a consumer to cancel  
the agreement for any reason during that 10-day period or the consumer’s right to  
cancel the agreement within one year of signing the agreement if the agreement  
7
does not contain the required information; and the obligation of the supplier to  
provide a refund to the consumer any payment made under the agreement within 15  
days of being notified the agreement has been cancelled, would not apply to those  
particular agreements with the 11 consumers, and acquittals will also necessarily  
have to be entered for the respective defendants for those particular 62 charges  
associated with the offences of “failing to provide a proper agreement to a  
consumer” and the offences of “failing to provide a refund to a consumer within 15  
days of being notified of the cancellation”.  
[19] And, for their third argument for the dismissal of the remaining 89 charges, the  
defendants argue in the alternative, that if the prosecution’s application to amend  
the statutory provision in those 6 counts pertaining to those 20 charges from  
“section 116(1)(b)(vii)” to “section 116(1)(b)(ii)” is granted and if the agreements  
entered into between the 11 consumers and the defendants are found to be “direct  
agreements” within the meaning of the of the CPA 2002 in respect to the 29 counts  
containing 62 charges, and the prosecution has proven beyond a reasonable doubt  
the actus reus of the offences for the remaining 89 charges, then the defendants  
contend that they have nevertheless proven on a balance of probabilities that they  
had acted with due diligence and had taken all reasonable care or steps in  
preventing or avoiding committing those remaining 89 charges.  
[20] Furthermore, the trial of the 103 charges had commenced on October 9, 2014, and  
finally concluded on November 2, 2016. The trial had taken 22 separate trial days  
to complete and had involved the testimony of 15 witnesses. Thirteen of the 15  
witnesses had testified for the prosecution, while two witnesses, the defendants,  
Ivan Valovic and Peter Valovic, had testified for the defence.  
[21] After closing arguments and submissions were heard on October 27 and November  
2, 2016, judgment was reserved and adjourned to April 4, 2017, for judgment.  
These therefore are the written reasons for judgment:  
2.  
THE CHARGES  
[22] The defendants, Ivan Valovic, Ivan's Electric Ltd., Peter Valovic, and Insight Electric  
Inc., have been jointly or individually charged with committing 103 offences set out  
in 46 counts in three separate informations under the CPA 2002 or under its  
regulations.  
(A) Categories Of Charges  
[23] The 103 charges that were laid respectively against the defendants can be  
categorized into three general categories. They may referred to as:  
(1) the improper contractoffences ;  
(2) the fail to provide a refundoffences; and  
8
(3) the unfair practicesoffences.  
[24] But more particularly, the four defendants, Ivan Valovic, Ivan's Electric Ltd., Peter  
Valovic, and Insight Electric Inc., have been charged respectively with committing  
these three categories of offences in respect to particular consumers, which are the  
following:  
(1) failing to deliver to a consumer a direct agreement containing the  
information required by s. 35(1) of the O. Reg. 17/05, contrary to s. 42  
of the CPA 2002, and thereby committing an offence under s. 116(2) of  
the CPA 2002.  
(2) 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 the CPA 2002, and thereby committing an offence under s.  
116(1)(b)(viii) of the CPA 2002.  
(3) 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, and thereby committing offence under s. 116(1)(b)(ii) of the  
CPA 2002.  
[25] However, for the “engaging in an unfair practice by making a false, misleading or  
deceptive representation” charges, there had been 7 counts of these charges set  
out in the 3 informations, in which the prosecution has brought an application to  
amend the statutory provision of the offence set out in 6 of the 7 counts from the  
statutory provision of section 116(1)(b)(vii)to the statutory provision of section  
116(1)(b)(ii). For the 7th count, the prosecution did not seek it to be amended,  
since the statutory provision already states “section 116(1)(b)(ii).  
[26] In addition, the defendants, Ivan Valovic and Peter Valovic, were charged in their  
roles or capacity as directors of their respective corporations for failing to prevent  
the corporate defendants, Ivan's Electric Ltd. and Insight Electric Inc., from  
committing two particular categories of offence in relation to particular consumers.  
Ivan Valovic was charged as a director of Ivan's Electric Ltd. and Peter Valovic was  
charged as a director of Insight Electric Inc., for failing to prevent their respective  
corporate defendants from committing the offences of:  
(1) failing 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 O. Reg. 17/05, contrary to s. 42 of the CPA  
2002, and thereby committed an offence under s. 116(3) of the CPA  
2002;  
9
(2) failing to take reasonable care to prevent the corporation from failing to  
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,  
and thereby, committed an offence under s. 116(3) of the CPA 2002.  
[27] Additionally, the defendant, Peter Valovic, has been charged in his role or capacity  
as a director of Insight Electric Inc. for committing a third type of offence, namely:  
(3) failing to 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, and thereby, committed an offence contrary to s. 116(3) of  
the CPA 2002.  
3.  
BACKGROUND  
[28] Ivan Valovic and Peter Valovic are licenced journeyman electricians. Ivan Valovic is  
the father of Peter Valovic. Before becoming a licenced electrician, Peter Valovic  
apprenticed with his father and then worked for his father’s company as an  
electrician until he decided to start his own company. Both were also licensed by  
the Electrical Safety Authority (“ESA”) as master electricians. However, Ivan  
Valovic’s master electrician’s licence lapsed on June 18, 2010, and would not be  
renewed by the ESA unless Ivan Valovic rewrote and passed the master electrician  
examination. Peter Valovic is still licenced as a master electrician by the ESA.  
They both had run their businesses as electricians through corporate entities. Ivan  
Valovic ran his electrician business through Ivan’s Electric Ltd. and is the  
owner/principal shareholder and one of the two directors of that corporation. Peter  
Valovic started his own company on February 24, 2010, and runs his electrician  
business through Insight Electric Inc. where he is the owner/principal shareholder  
and sole director of the corporation. Both are companies incorporated in Ontario.  
Both corporations are still active, although Ivan's Electric Ltd. had its residential  
electrical contractor’s licence revoked by the ESA on March 14, 2013. Insight  
Electric Inc. still has its residential electrical contractor’s licence.  
[29] The defendants provide electrical installation and repair services to mainly  
residential customers and do not generally bid for electrical work for commercial  
projects. The defendants also provide emergency after-hours services, but charge  
a much higher hourly rate or premium for their services, usually double their regular  
rate of $180 an hour. In addition, the defendants charge consumers a service call  
charge of $180 just to appear at the consumer’s house and a minimum of one hour  
labour at $180 for working in the consumer’s house, such as troubleshooting the  
electrical problem at the consumer’s residence. In other words, the defendants  
hourly rate for after hours, statutory holidays, weekends, or for emergency work is  
charged to the consumer at the rate of $360 per electrician for making the service  
call and an additional $360 for trouble-shooting the electrical problem before any  
repairs or electrical work or installation is commenced.  
10  
[30] To legally operate as an electrical contractor in Ontario, an electrical contractor’s  
licence has to be issued to that electrical contracting business by the ESA. And, in  
order to obtain that electrical contractor’s licence, the electrical contracting business  
must have a designated licenced master electrician to supervise and be responsible  
for the electrical work. Furthermore, all licensed electricians who wish to obtain a  
master electrician’s licence for carrying out electrical work on behalf of an electrical  
contractor are also governed by the ESA, a body authorized by the Ontario  
Government to regulate, licence, and govern master electricians and electrical  
contractors in Ontario. The ESA was granted administrative authority under the  
Safety and Consumer Statutes Administration Act, 1996, S.O. 1996, c. 19 and the  
Electricity Act, 1998, S.O. 1998, c. 15, Sched. A, and by s. 1 of the Electrical Safety  
Authority Regulation, O. Reg. 89/99 (Electricity Act, 1998), after the ESA entered  
into an agreement dated March 11, 1999 with the Ontario government. The ESA  
commenced its mandate on April 1, 1999. Its present authority is also governed by  
provisions set out the General Regulation enacted under the Safety and Consumer  
Statutes Administration Act, 1996, O. Reg. 187/09.  
[31] When the trial commenced on October 9, 2014, there were 48 individual counts in  
the three separate informations, containing 103 charges altogether. Initially, the  
defendants were charged individually with committing the following number of  
offences under the CPA 2002 or its regulations:  
(1) Ivan Valovic was charged with committing 30 offences,  
(2) Ivan's Electric Ltd. was charged with committing 30 offences,  
(3) Peter Valovic was charged with committing 21 offences, and  
(4) Insight Electric Inc. was charged with committing 22 offences.  
(A) Summary Of The Proceedings  
[32] Information #5731 which contained 15 counts (27 charges) was sworn on  
February 25, 2013. Information #8091 which contained 28 counts (56 charges)  
was sworn on November 4, 2013. And, Information #5740 which contained 5  
counts (20 charges) was sworn on March 6, 2014.  
[33] The trial of the 103 charges commenced on October 9, 2014, and after 22  
separate trial dates concluded on November 2, 2016. Before arraignment, the  
prosecution sought to have amendments made to the three informations. The  
defendants consented to those amendments being made on the informations.  
Moreover, additional amendments on consent were also subsequently made to the  
informations. Altogether, about 15 amendments had been made and consented to  
by the defendants.  
[34] There had been 15 witnesses who had testified in the trial. Thirteen of the 15  
witnesses were called by the prosecution. Eleven of the 13 prosecution witnesses  
11  
were the consumers who had entered into agreements with the defendants for  
electrical work at the consumers’ residences. The prosecution had also called one  
witness who was an electrician and who had provided a cost estimate for electrical  
work to be done for the consumer where the defendants had already completed  
the electrical work. In addition, the prosecution also called an inspector with the  
ESA who had informed one of the consumers that the electrical work completed by  
the defendants could have been done at a much lower price. In addition, both the  
defendants, Ivan Valovic and Peter Valovic, had testified at the trial in their own  
defence.  
[35] At the commencement of the trial there had been 12 consumers who had made  
complaints to the Ministry of Government and Consumer Services and who had  
either had worked done by the defendants or who had entered into an agreement  
to have future electrical work done by the defendants. However, only 11 of the  
complainants appeared and testified at the trial.  
[36] In addition, during the prosecution’s case, the prosecution had invited the dismissal  
of 14 of the 103 charges, as there had been no evidence adduced during the  
prosecution’s case in respect to those 14 charges. As such, those 14 charges  
contained in 6 separate counts were then dismissed and recorded as acquittals.  
(B) The Defendants  
(1) The defendant Ivan Valovic  
[37] The defendant, Ivan Valovic, had been 64 to 66 years old during the period that  
covers the 11 consumersdealings with the defendants between May 27, 2011  
and January 15, 2014. He had emigrated to Canada in 1968 after escaping from  
Czechoslovakia. In Czechoslovakia, he had trained to be an electrical mechanic  
and received his licence in 1965. In Canada, he was able to pass his electrician’s  
exams in 1975. He then obtained a master electrician’s licence in 1978. To obtain  
a master electrician’s licence, he said he took courses and passed exams. He  
then opened his Ivan's Electric company first as a sole proprietorship and then  
incorporated the company as Ivan's Electric Limited in 1979. He also took  
advance estimating courses from George Brown College.  
[38] Ivan Valovic had initially worked as an electrician for the Etobicoke General  
Hospital, but eventually opened a sole proprietorship business in 1975 and  
eventually incorporated that business in 1979. His company took on both  
commercial and industrial jobs. His company also employed 12 to 14 electricians  
on some projects during the 1980s, until a recession occurred at the end of the  
1980s and the business climate changed in Canada when he had to downsize his  
business and lay off his employees. He also indicated that the North American  
Free Trade Agreement had caused this change in his business, as many  
manufacturing companies had moved their businesses south of the border. He  
then decided to switch his company’s focus and decided that it would specialize in  
12  
residential electrical work and in providing 24-hour emergency services where he  
would be available at all times of the day, as well as being available on weekends  
and on holidays. To obtain work and customers, he bought large ads in the Yellow  
Pages advertising that his company provided 24-hour emergency services. Ivan's  
Electric Ltd. became one of the largest advertisers of electrical services in the  
Yellow Pages. In addition, Ivan's Electric Ltd. through his daughter’s urging and  
assistance, also began an internet advertising campaign with the Yellow Pages.  
[39] Ivan Valovic further contends that many of the consumer complaints had been the  
result of misinformation that the consumers had received about him not being a  
licenced electrician. Ivan Valovic testified that at all material times and when he  
had dealt with and done electrical work for the 11 consumers he had always been  
a licensed electrician. However, since Ivan Valovic’s master electrician’s licence  
had lapsed or expired on June 18, 2010, the ESA would not renew Ivan Valovic’s  
master electrician’s licence until he rewrote and passed the master electrician  
examination. Even though his master electrician’s licence had expired, Ivan  
Valovic could still do work as a licenced electrician.  
[40] Subsequently, consumers started to complain to the ESA about their dealings with  
him and his company, Ivan's Electric Ltd. Ivan Valovic also testified that in his 30  
some years as an electrician he had only received 3 or 4 complaints.  
[41] Ivan Valovic also testified that he is not computer literate and does not use a  
computer in his business and generally writes out everything that he provides to  
his customers.  
(2) The corporate defendant, Ivan’s Electric Ltd.  
[42] The corporate defendant, Ivan’s Electric Limited was incorporated as an Ontario  
corporation on June 18, 1979. Its registered office address is 44 Pearson Road in  
Brampton, Ontario. It is also the corporation’s principal place of business. Ivan  
Valovic said he is a shareholder in Ivan’s Electric Ltd. and has 55% of the  
corporation’s shares while his wife has 45% of the corporation’s shares. He is also  
listed as one of its two directors and its President and Secretary, since its  
inception.  
[43] In addition, Ivan’s Electric Limited had been licensed by the ESA as a residential  
electrical contractor until it’s electrical contractor’s licence had been revoked by  
the ESA on March 14, 2013, due to it not having a licenced master electrician,  
since Ivan Valovic’s master electrician’s licence had lapsed on June 18, 2010.  
[44] In addition, Ivan Valovic testified that Ivan's Electric Ltd. still exists but is now  
dormant since the ESA had revoked its residential electrical contractor’s licence.  
(3) The defendant Peter Valovic  
13  
[45] The defendant, Peter Valovic, was 30 to 32 years old during the period that covers  
the 11 consumersdealings with the defendants between May 27, 2011 and  
January 15, 2014. He is the son of Ivan Valovic and had apprenticed as an  
electrician under his father. To become a licenced electrician in Ontario, he  
started his apprenticeship with his father’s company, Ivan's Electric Ltd. After  
completing his five-year apprenticeship and writing the licensing exams, Peter  
Valovic received his electrician’s licence in 2005. He then took further courses for  
a master electrician’s licence, wrote the requisite licensing exams, and received  
his master electrician’s licence in 2008. He also said he had received some  
instruction in his master electrician course on the Consumer Protection Act, 2002.  
[46] After becoming a licenced electrician in 2005, Peter Valovic had continued working  
for his father’s company until he started his own electrical contractor’s business,  
named Insight Electric Inc., on February 24, 2010. However, after Ivan Valovic’s  
master electrician’s licence had elapsed and after Ivan Valovic had been informed  
by someone from the ESA that Ivan's Electric Ltd. had to immediately stop  
operating on April 16, 2012, Ivan Valovic and Ivan's Electric Ltd. began passing  
jobs to Peter Valovic’s company, Insight Electric Inc. and Ivan Valovic went to work  
for Insight Electric Inc. sometime after April 16, 2012.  
[47] Peter Valovic also testified that he participates in chat rooms for electricians and  
discusses issues that arise in the industry. He also testified that he had adopted to  
use the same forms in running his business that had been used by his father,  
since he said that his father’s forms were the best of the forms from what forms  
that he had observed that other electricians would use in their electrician  
businesses.  
(4) The corporate defendant Insight Electric Inc.  
[48] The corporate defendant, Insight Electric Inc., was incorporated as an Ontario  
corporation on February 24, 2010. Its registered corporate address is 44 Pearson  
Road, in Brampton, Ontario. However, its principal place of business is presently  
at 22 Mercer Drive in Brampton, Ontario.  
Peter Valovic is the principal  
shareholder of Insight Electric Inc. He is also listed as its sole director and its  
President and Secretary since the corporation’s inception on February 24, 2010.  
(C) The Consumers Who Filed Complaints Against The Defendants  
[49] Eleven of the twelve consumers who had made complaints against the defendants  
testified at the trial about their respective dealings with the defendants. The 11  
consumers who testified in the trial are the following, with the date or the range of  
the dates covering the period of when the alleged offences had occurred in respect  
to that consumer:  
(1) Denise Herold, from June 12, 2011 to June 29, 2011.  
14  
(2) Gladys Canadas, from September 19, 2011 to October 12, 2011.  
(3) Catherine Telford, from December 8, 2011 to January 6, 2012.  
(4) Peter Christensen, from June 1, 2012 to October 14, 2012.  
(5) Terry Bardeau, on or about December 16, 2012.  
(6) Boris Wolchak, from December 21, 2012 to February 8, 2013.  
(7) Sandra Castator, from January 14, 2013 to February 15, 2013.  
(8) Marjorie Riley, from January 31, 2013 to February 26, 2013.  
(9) Zaven Tahtadjian, from April 16, 2013 to May 3, 2013.  
(10) Eva Patterson, from December 26, 2013 to January 15, 2014 (as a  
result of the ice storm).  
(11) Nigel Lundie, on or about December 27, 2013 (as a result of the ice  
storm).  
[50] A 12th complainant, Anthony Collin, did not appear in court to testify and the 4  
charges in respect to that consumer set out in counts #5 and #6 in Information  
#5731 were then dismissed.  
[51] Ergo, the dealings and transactions between the 11 consumers and the  
defendants and the alleged offences had occurred between June 12, 2011 and  
January 15, 2014.  
[52] Furthermore, Ivan Valovic’s master electrician’s licence had expired on June 18,  
2010, while Ivan's Electric Ltd. electrical contractor’s licence had been revoked by  
the ESA as of March 14, 2013.  
[53] Moreover, the electrical work contracted to be done between the 11 consumers  
and the defendants had been completed for 9 of the 11 consumers, while for two  
of the consumers, Denise Herold and Boris Wolchak, they had entered into an  
agreement for electrical work to be done in the future, but had not been completed  
since the two consumers had notified the defendants that they were cancelling the  
contracted work with the defendants and had demanded the return of the deposits  
that they had paid to the defendants. As part of their agreements with the  
defendants, Herold and Wolchak had paid deposits to the defendants of  
approximately 30% of the value of the contracted electrical work to be done by the  
defendants, but did not receive any refund of their deposits from the defendants for  
a long period of time after the consumers had asked the defendants for a refund of  
15  
their deposits.  
Eventually, the defendants provided refunds to those two  
consumers, but not for the full amount that the two consumers had paid to the  
defendants.  
(D)  
The Nature Of The Consumers’ Complaints to the Ministry of  
Government and Consumer Services  
[54] For these 11 consumers, they had filed complaints with the Ministry of  
Government and Consumer Services because they had for the most part believed  
that the defendants had excessively overcharged them as compared to what other  
electricians would have charged and that some of them had demanded that the  
defendants return back part of the consumer’s payment that had been paid to the  
defendants. As well, some of the other complaints about the defendants that were  
made to the Ministry included the belief that Ivan Valovic was not a licenced  
electrician; that the defendants had failed to refund to some of the consumers the  
deposits that had been paid to the defendants for agreed upon electrical work after  
the work had been cancelled by the consumers and a request had been made to  
the defendants for the return of their deposits; that the defendants had installed  
used parts or materials when the defendants had charged the consumers for new  
parts or materials; and that the defendants had exaggerated the seriousness of the  
electrical problem and the consequences of the hazard and danger to the  
consumer so that the defendants would be hired to do the work.  
(E) How Are The Defendants’ Fees Or Prices For Their Electrical Services  
Determined?  
[55] Ivan Valovic testified that in order to survive competitively as an electrical  
contractor, the fees or prices he would charge consumers would have to take into  
account his advertising costs, his insurance, his costs to run his van, and the  
expenses associated with running his electrical contractor’s business, otherwise  
his business would not survive. He also said that his prices could not be too high  
or he would not get any jobs.  
[56] Furthermore, he said he calculates into his proposals his travel time to and back  
for the job, the number of persons and hours required to do the job, the cost of  
minor parts, the cost of ESA inspections, and the cost of wiring and other supplies  
in his proposal. He also said he charges the consumers a flat fee and does not  
charge more if it takes longer to do the job or if the ESA inspection fee is more  
than he had estimated.  
[57] Ivan Valovic also said that he does not list every screw or small part on his  
proposals because it would take too long to write up and that he would then have  
to charge that extra time to the consumer to prepare a full parts list on his proposal  
provided to the consumer.  
16  
[58] However, for unforeseen problems that arise and require additional work and  
materials that the original agreement did not account for, then Ivan Valovic said  
that he would inform the consumer about the need to do this additional work, or to  
get additional parts or materials, and then prepare a second or even a third  
proposal and present it to the consumer to accept or reject.  
[59] The defendants also contend that their pricing scheme is not unlike the pricing  
scheme utilized by the ESA and the fees that the ESA charges for electrical  
inspections. In particular, the ESA charges more for inspections conducted during  
holidays, weekends, and for after hours, as well as for same day and for  
emergency service, that is not unlike how the defendants would charge higher  
rates for work that is required to be done outside the normal working hours from  
Monday to Friday. And, for after hours, statutory holidays, weekends, or for  
emergency work, the defendants said they would charge double their normal  
hourly rate. In addition, when a consumer informs the defendants that it is  
emergency work that requires the defendants to attend right away, then the  
emergency rate would apply even if it occurs during regular or normal working  
hours from Monday to Friday, since the defendants would have to drop everything  
to accommodate the consumer’s emergency. Moreover, the defendants would  
charge a consumer the emergency rate if the consumer says it is an emergency or  
when the work is required to be done after hours, or on holidays, or on weekends.  
[60] For example, the defendants would charge double their normal rates of $180 an  
hour for each electrician for emergency work and for work to be done on holidays,  
after hours, and on weekends. So for emergency work, the defendants would  
charge the consumer $360 per hour.  
[61] In addition, the defendants charge the consumer a service call charge of $180 just  
for the defendants to appear at the consumer’s house, which the defendants  
explain covers the time and gas to drive to a consumer’s house, since the  
defendants service the Greater Toronto Area and it could take an hour in rush hour  
traffic to get to the consumer’s house as well as the time to get back home, which  
also includes using a tank of gas to go there and back. Then after arriving at the  
consumer’s dwelling, the defendants said that they would charge the consumer a  
minimum of 1 hour to do any type of work at the consumer’s house. Hence, to just  
troubleshoot and prepare a “proposal” for the projected work to be provided to the  
consumer, the defendants would charge the consumer $360, which would  
comprise $180 for the service call charge and another $180 for troubleshooting the  
problem.  
(F)  
Fees That The Electrical Safety Authority Charges For Electrical  
Inspections Are Passed Onto The Consumer.  
[62] The defendants contend that the fees for ESA inspections are not unlike what the  
defendants would charge a consumer for an emergency or for working after-hours,  
or on holidays and weekends. In addition, all electricians when preparing quotes  
17  
or estimates have to include these ESA inspections fees in calculating what it  
would cost the consumer to do the job. For example, from the ESA Fee Schedule  
located at pp. 76 to 106 in the Joint Book of Documents, s. 2.11 of the Fee  
Schedule indicates that the ESA charge for a scheduledinspection that would  
have to be done outside the normal working hours from Monday to Friday, would  
be a fee of $199 per hour or fraction thereof (at a minimum of 2 hours) up to a  
maximum of $597 (for the first 4 hours) plus $149 per hour or fraction thereof in  
addition to the fee payable for the inspection service.  
However, for an  
unscheduledinspection outside normal working hours, the ESA charges $597 for  
the first 4 hours plus $149 per hour or fraction thereof in addition to the fee  
payable for the inspection service.  
Therefore, if an emergency inspection  
(unscheduled) is required after-hours, then the ESA inspection fee would be $597  
(not including HST) in addition to the fee payable for the inspection service, even if  
the inspection only took 10 to 15 minutes.  
[63] An example of that $597 fee that had been charged for an emergency  
unscheduled ESA inspection can be seen in what the ESA had actually charged  
Insight Electric Inc. in respect to electrical work done for the consumer, Zaven  
Tahtadjian, where the electrical inspection had been conducted by ESA inspector  
Joe Peragine in the evening of April 16, 2013, at about 9:30 p.m. which had only  
lasted about 15 to 20 minutes (see p. 144 of the Joint Book of Documents).  
(G) Ivan Valovic’s Master Electrician’s Licence Had Lapsed On June 18,  
2010, And Would Not Be Renewed By The ESA Unless He Rewrote And  
Passed The Master Electrician Examination.  
[64] To renew his master electrician’s licence, Ivan Valovic said he had been informed  
by the ESA to submit a completed form and the annual fees to the ESA. However,  
Ivan Valovic said that he could only submit the renewal form if the ESA actually  
sent him the renewal form. However, Ivan Valovic contends that the ESA had  
failed to send him the renewal forms prior to his master electrician’s licence  
expiring, despite his many telephone calls and efforts to obtain the renewal forms  
or to have the ESA sent him the renewal forms.  
[65] Furthermore, Ivan Valovic said that his master electrician’s licence had been due  
to expire on June 18, 2010. He also said that the master electrician’s licence  
could be renewed every two years or renewed annually. He also said that usually  
the ESA would send out the renewal application forms in April or May, two months  
prior to his master electrician’s licence expiring. However, he said that since he  
had not received the application forms for renewing his master electrician’s  
licence, he had called the ESA licensing department on June 16 or 17, 2010, and  
left a message inquiring about obtaining the application forms for renewing his  
master electrician’s licence. He also said that a female person from the ESA  
called him on June 17 and told him that they had sent the application forms by fax  
to him, but he explicitly stated that he did not actually get the forms. He then said  
18  
that he had called the ESA again at the end of June in 2010 requesting the  
renewal forms, but again he did not receive the renewal forms from the ESA.  
[66] Then Ivan Valovic testified that he had received a letter dated July 22, 2010, from  
the ESA (see Exhibit #34), in which the ESA notified him that his master  
electrician’s licence had expired, but that he could still renew his licence if he did  
so within one year with a late fee if the licence had been expired for more than 14  
days, but that if he did not renew his licence within the one year, then any  
application submitted after one year would be treated by the ESA as a new  
application. He also said that he had noticed a contradiction in the letter, which  
had stated that the date of expiry of his master electrician’s licence was on June  
18, 2011, that would have been still nearly a year away. However, Ivan Valovic  
said that the ESA had referred to that contradiction as an error caused by a  
computer glitch.  
[67] In addition, Ivan Valovic said that he had been aware that he had a grace period of  
one year to renew his master electricians licence, and that normally, he would  
have had to simply just pay a penalty to renew his licence after it had expired.  
[68] Moreover, Ivan Valovic said he had continued to call the ESA about obtaining the  
renewal forms for his master electrician’s licence, and it was not until March of  
2012 that a woman from the ESA licencing department had informed him over the  
telephone that because his master electrician’s licence had lapsed in 2010, that he  
would only be issued a master electrician’s licence if he rewrote the exams  
required for obtaining a master electrician’s licence, even though he had been a  
licenced master electrician for 35 years.  
[69] On the other hand, Ivan Valovic said that he did get renewal forms from the ESA in  
the mail, but that they had been for renewing Ivan's Electric Ltd.’s electrical  
contractor’s licence.  
(H) Ivan’s Electric Ltd. Could Not Operate As An Electrical Contractor  
Without A Licenced Master Electrician.  
[70] The ESA had issued an electrical contractor’s licence to Ivan's Electric Ltd. to carry  
on business in Ontario as a “licenced electrical contractor” from July 1, 2006 to June  
18, 2012 (see Ex. #24). But once Ivan Valovic’s master electrician’s licence had  
lapsed on June 18, 2010, then Ivan's Electric Ltd. would be without a master  
electrician.  
[71] But more importantly, Ivan Valovic said that if he could not renew his master  
electrician’s licence, then his company Ivan's Electric Ltd. would not be allowed to  
operate as a licenced residential electrical contractor in Ontario without employing  
or having a licenced master electrician. However, when he submitted the renewal  
forms and the renewal fees for Ivan's Electric Ltd.’s electrical contractor’s licence on  
or about August 5, 2010, he said that the ESA had renewed the licence even though  
19  
it did not have a master electrician. Moreover, a Notice of Expired Licence sent to  
Ivan's Electric Ltd. dated May 15, 2015, indicates that Ivan's Electric Ltd.’s electrical  
contractor’s licence had expired on May 14, 2015 (see Exhibit #35).  
[72] However, Ivan Valovic said the ESA had informed him that the renewal of Ivan's  
Electric Ltd.’s electrical contractor’s licence had been done in error.  
[73] In addition, the defendants submit that the ESA had continued to inspect the  
electrical work of Ivan's Electric Ltd. and still continued to issue permits in Ivan's  
Electric Ltd.’s name in 2010, 2011, and 2012, even after Ivan Valovic’s master  
electrician’s licence had expired on June 18, 2010, and Ivan's Electric Ltd. had been  
without a licenced master electrician.  
(I) After ESA Informs Ivan Valovic On April 16, 2012, That Ivan's Electric Ltd.  
Had To Immediately Stop Operating, Ivan Valovic Goes To Work For His  
Son’s Company, Insight Electric Ltd.  
[74] On April 2, 2012, Angela Jackson, the Statutory Director of the ESA, issued a  
Notice of Proposal to Revoke Ivan's Electric Ltd.’s electrical contractor’s licence for  
safety concerns since it did not have a licenced master electrician (see Exhibit  
#26), but the revocation of the licence would be automatically stayed if an appeal  
was filed within 15 days of receipt of the Notice of the Proposal. However, Ivan  
Valovic said that Patience Cathcart from the ESA had called him and informed him  
on April 16, 2012, that his company, Ivan's Electric Ltd., had to immediately stop  
operating as an electrical contractor in Ontario. Although Ivan Valovic testified that  
Ivan's Electric Ltd. did not have to stop operating since there would be an  
automatic stay of the revocation of the licence while the Director’s Proposal to  
revoke the electrical contractor’s licence was winding its way through the appeal  
process, including a further appeal to the Ontario Divisional Court. However,  
because Patience Cathcart from the ESA had told him that Ivan's Electric Ltd.  
could no longer operate as of April 16, 2012, Ivan Valovic said he was forced to go  
to work for his son’s company, Insight Electric Inc. shortly after that  
pronouncement. In addition, Ivan Valovic said that he had asked Patience  
Cathcart to send him the specific legislation which would require Ivan's Electric  
Ltd. to stop operating immediately even before the appeal of the Notice of  
Proposal to Revoke the electrical contractor’s licence had been heard and  
decided. However, Ivan Valovic said he did not receive such information from the  
ESA. He also went to the Ombudsperson, but said that the Ombudsperson was  
too busy to help.  
[75] Furthermore, Ivan Valovic said that the ESA did not inform him that his son, Peter  
Valovic, who is a licenced master electrician, could have been the licenced master  
electrician for two separate companies at the same time for a maximum period of  
one year. This, he said, would have allowed Ivan's Electric Ltd. to continue  
operating for another year without having to immediately cease operations.  
20  
(J) Ivan Valovic And Ivan’s Electric Ltd. Began Passing On Jobs To Insight  
Electric Ltd. After The ESA Informed Ivan Valovic That Ivan's Electric Ltd.  
Had To Immediately Stop Operating.  
[76] As a result of being told that Ivan's Electric Ltd. had to stop operating, Ivan Valovic  
said that after April 16, 2012, he would pass jobs he had received on the  
telephone for Ivan's Electric Ltd. to Insight Electric Inc. However, this information  
that the job was being passed from Ivan's Electric Ltd. to Insight Electric Inc. would  
not be initially provided to the consumer on the initial telephone call and the  
consumer would only be informed when the defendants arrived at the consumer’s  
house.  
[77] When Ivan's Electric Ltd. was operating, the shirt worn by Ivan Valovic while doing  
work for Ivan's Electric Ltd. was red in colour while the shirt he would eventually  
wear while working for Insight Electric Inc. would be blue in colour. Moreover,  
Insight Electric Inc. had a different designed logo, a different telephone number,  
and a different ESA contractor’s licence number from that of Ivan's Electric Ltd.  
[78] But, even though Ivan's Electric Ltd. had a different corporate logo than the one  
used by Ivan's Electric Ltd., the prosecution contends that despite the different  
company names, different corporate logos and colours, ostensibly the defendants  
were in conjunction really only operating as the “Valovic’s electrical company” with  
Ivan Valovic running the show and without Peter Valovic really having any say or  
control over Ivan Valovic’ activities with the consumers.  
[79] Ivan Valovic also testified that he would not tell the consumer their prices or fees  
on the telephone unless the consumer had asked for them.  
[80] In addition, Ivan Valovic said he would not tell the consumer that Ivan Electric Ltd.  
was not operating, nor that the job was being passed to Insight Electric Inc. on the  
telephone, and only tell the consumer that Insight Electric was doing the job at the  
consumer’s house after Ivan Valovic and Peter Valovic arrived at the consumer’s  
house.  
(K) Which of the 11 Consumers Had Entered Into Agreements With The  
Defendants After April 16, 2012, The Date When Ivan Valovic Had Been  
Informed By The ESA That Ivan's Electric Ltd. Had to Immediately Stop  
Operating?  
[81] Three of the 11 consumers had entered into direct agreements with the  
defendants before April 16, 2012:  
(1) Denise Herold, from June 12, 2011 to June 29, 2011.  
(2) Gladys Canadas, from September 19, 2011 to October 12, 2011.  
21  
(3) Catherine Telford, from December 8, 2011 to January 6, 2012.  
[82] The other 8 consumers had entered into direct agreements with the defendants  
after April 16, 2012:  
(4) Peter Christensen, from June 1, 2012 to October 14, 2012.  
(5) Terry Bardeau, on or about December 16, 2012.  
(6) Boris Wolchak, from December 21, 2012 to February 8, 2013.  
(7) Sandra Castator, from January 14, 2013 to February 15, 2013.  
(8) Marjorie Riley, from January 31, 2013 to February 26, 2013.  
(9) Zaven Tahtadjian, from April 16, 2013 to May 3, 2013.  
(10) Eva Patterson, from December 26, 2013 to January 15, 2014 (as a  
result of the ice storm).  
(11) Nigel Lundie, on or about December 27, 2013 (as a result of the ice  
storm).  
[83] In addition, only 3 consumers, Zaven Tahtadjian, Nigel Lundie, and Eva  
Patterson, had dealings with the defendants after March 14, 2013, when the  
Review Panel of the ESA released its decision to uphold the Director’s Notice of  
Proposal to revoke the electrical contractor’s licence of Ivan's Electric Ltd. and to  
lift the stay of that revocation order.  
(L) Ivan Valovic Continued To Use The Ivan's Electric Ltd. Red Van At  
ConsumersHomes After The ESA Had Told Ivan Valovic on April 16, 2012,  
To Immediately Stop Operating Ivan's Electric Ltd.  
[84] The prosecution contends that the defendants had made a false, misleading, or  
deceptive representation to the consumers in several ways, including Ivan Valovic  
appearing at the consumer’s house in his red van which still had the name, logo,  
and telephone numbers for Ivan's Electric Ltd., as well as the electrical contractor’s  
licence number for Ivan's Electric Ltd. displayed on the side of the van even  
though the defendants had told the consumers once they arrived that they were  
Insight Electric Inc. and that Insight Electric Inc. was doing the job, and even  
though the consumer had originally called Ivan's Electric Ltd. to attend the  
consumer’s house.  
[85] However, Ivan Valovic did not immediately change the wording on his red van  
which had indicated the electrical contractor’s business name of “Ivan's Electric  
22  
Ltd.” and the electrical contractor’s licence number for Ivan's Electric Ltd. Ivan  
Valovic testified that he did not want to spend the money to repaint his red van or  
to have the name of the electrical contactor’s business name on his red van and  
electrical contractor’s licence number changed due to the cost involved and due to  
his outstanding appeals.  
[86] Then sometime after doing the job at the consumer Zaven Tahtadjian’s house on  
April 16, 2013, or sometime before, Ivan Valovic said he had decided to remove  
the ESA electrical contractor’s licence number for Ivan's Electric Ltd. and put the  
ESA electrical contractor’s licence number for Insight Electric Inc. onto his van.  
He also said that he did repaint his van to remove the Ivan's Electric Ltd.’s name,  
logo, and telephone numbers in January 2014, which is a time after his dealing  
with the 11 consumers in this matter.  
(M) The ESA Revokes Ivan's Electric Ltd.’s Electrical Contractor’s Licence  
On March 14, 2013, Due To Safety Concerns.  
[87] Ivan's Electric Ltd. appealed the ESA Director’s Notice of Proposal of April 2,  
2012, to revoke the electrical contractor’s licence of Ivan's Electric Ltd. for safety  
concerns, on the basis that Ivan's Electric Ltd. no longer had a designated  
licenced master electrician.  
[88] Normally, after the Notice of Proposal is issued, the revocation of the licence  
would be automatically stayed if Ivan's Electric Ltd. appealed the Notice of  
Proposal. However, the ESA had directed Ivan's Electric Ltd. to stop operating as  
a licenced electrical contractor immediately on April 16, 2012, since it did not have  
a licenced master electrician.  
[89] Consequently, on March 14, 2013, the three-member Review Panel of the ESA  
released its decision on the appeal and upheld the Director’s decision to revoke  
the electrical contractor’s licence for Ivan's Electric Ltd., as well as to lift the  
automatic stay of the revocation of Ivan's Electric Ltd.’s electrical contractor’s  
licence.  
[90] But more importantly, Ivan Valovic has filed an appeal with the Divisional Court of  
Ontario to challenge the ESA’s decision not to renew his master electrician’s  
licence and to also challenge the Review Panel’s decision of March 14, 2013, to  
uphold the revocation of Ivan's Electric Ltd.’s electrical contractor’s licence and to  
lift the stay.  
[91] Therefore, after the ESA Review Panel’s decision had been released on March 14,  
2013, Ivan's Electric Ltd. could no longer operate as an electrical contractor in  
Ontario.  
4.  
ANALYSIS AND DECISION  
23  
[92] In order to decide this case, it will first have to be decided if the prosecution’s  
application should be granted under s. 34 of the P.O.A. to amend the 6 counts on  
two of the three informations, in relation to 6 of the 7 unfair practices charges. If  
the amendments are not granted then the prosecution concedes that the charges  
contained in those 6 counts will not be made out by the prosecution and those 6  
counts will have to be dismissed.  
[93] After the prosecution’s application to amend those 6 counts is decided, then it will  
have to be determined if the agreements governing the transaction between the 11  
consumers and the defendants are direct agreementswithin the meaning of the  
CPA 2002. This determination is crucial as it affects the determination of whether  
the prosecution has proven the actus reus of the offences in respect to both the  
“improper contract” charges and the “fail to provide a refund” charges, since the  
obligations to provide agreements to the consumers containing the required  
information set out in s. 35(1) of O. Reg. 17/05 for direct agreements as prescribed  
under s. 42 of the CPA 2002 is contingent on whether the agreements in question  
are governed by the direct agreement provisions of the CPA 2002.  
[94] Moreover, if the agreements in question are governed by the direct agreement  
provisions, then the consumers who entered into those agreements with the  
defendants can rightfully cancel their respective agreements with the defendants  
without reason within 10 days of entering the agreement with the defendants (the  
10-day cooling off period) under s. 43(1) of the CPA 2002; or cancel the  
agreement within one year after entering the agreement under s. 43(2) of the CPA  
2002, if the defendants have failed to provide a proper contract to the consumers  
containing the information required to be contained in a direct agreement set out in  
s. 35(1) of O. Reg. 17/05, as prescribed under s. 42 of the CPA 2002; or cancel  
the agreement within one year after entering the agreement under s. 18(3) of the  
CPA 2002, where the defendants had engaged in an unfair practice towards the  
consumers. And, if the consumers had cancelled their direct agreements as  
permitted under the CPA 2002, and notified the defendants of their cancellation of  
the agreement, the defendants are then legally obligated under the CPA 2002 to  
provide a refund of any payment made by the consumer under the direct  
agreement to the consumer within 15 days after the defendants are notified of the  
cancellation of the agreement by the consumer or a request for a refund is made  
to the defendants, according to s. 96(1)(a) of the CPA 2002.  
[95] On the other hand, if it is decided that the transactions between the 11 consumers  
and the defendants are not governed by the direct agreement provisions of the  
CPA 2002, then those charges related to the “improper contract” charges and the  
“fail to provide a refund” charges will necessarily have to be dismissed and  
acquittals will be entered on behalf of the respective defendants who had been  
charged with those particular charges. However, if it is determined that the direct  
agreement provisions do apply to the transactions between the 11 consumers and  
the defendants, then because the charges in this regulatory prosecution are strict  
liability offences, it will have to be first determined whether the prosecution has  
24  
proven beyond a reasonable doubt that the respective defendants have committed  
the actus reus of those offences set out in the “improper contract” charges, the “fail  
to provide a refund” charges, the “engaging in an unfair practice” charges, and the  
charges in respect to the defendants in their capacity as a director of the  
corporations for failing to prevent their respective corporations from committing  
those acts or omissions prohibited under the CPA 2002. And, if the prosecution  
has met their burden in proving the actus reus of the offences beyond a  
reasonable doubt, then it will have to be determined if the defendants have made  
out the defence of due diligence on a balance of probabilities in order that they not  
to be convicted of their respective charges. Therefore, if the defendants are able  
to prove that they took all reasonable care in the circumstances to prevent or avoid  
committing the offences in their respective charges then they would be acquitted  
of those offences: R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, 40 C.C.C. (2d) 353  
(S.C.C.).  
(A) SHOULD THE CROWN’S APPLICATION UNDER S. 34 OF THE P.O.A.  
TO AMEND THE STATUTORY PROVISION FOR THE OFFENCE FROM  
116(1)(b)(vii) to 116(1)(b)(ii) ON 6 PARTICULAR COUNTS (TOTALLING 20  
CHARGES) BE GRANTED?  
[96] Although during the first few days of the trial approximately 15 separate  
amendments of the 3 informations had been sought by the prosecution and  
agreed upon and consented to by the defendants, the defendants do not consent  
to the application brought by the prosecution under s. 34 of the P.O.A. during the  
final arguments or submissions stage of the trial to the proposed amendments to 6  
separate counts on 2 of the informations. The 6 separate counts are for charges  
related to “engaging in unfair practices”. Specifically, the prosecution seeks to  
have the statutory provision describing the offence set out in counts #7, #11, #17,  
and #23 on Information #8091 and in counts #1 and #4 on Information #5740  
amended from “section 116(1)(b)(vii)” to “section 116(1)(b)(ii)”, so as to conform to  
the evidence given at trial in respect to the offence of engaging in an unfair  
practice by making false, misleading, or deceptive representations. Subsection  
34(2) of the P.O.A. permits the court to amend the information during the trial as  
may be necessary “if the matters to be alleged in the proposed amendment are  
disclosed by the evidence taken at the trial”.  
[97] In total, there were 7 counts in the three informations that had charged the  
defendants with committing the same “engaging in an unfair practice” offence.  
The seventh count in respect to engaging in an unfair practiceis contained in  
Count #11 on Information #5731. However, that statutory provision for count #11  
had stated the statutory provision for the “engaging in an unfair practice” offence  
as section “116(1)(b)(ii)”, which is the same proposed amendment that the  
prosecution is now seeking to be made to the other 6 counts in question:  
Count #11 on Information #5731:  
25  
Ivan's Electric Ltd. and Ivan Valovic and Insight Electric Inc. between the 1st day of  
June 2012 and the 14th day of October 2012 at the Town of Oakville in the Central  
West Region and elsewhere in the Province of Ontario did commit the offence of  
engage in an unfair practice by making false, misleading or deceptive  
representation in relation to Peter Christiansen, a consumer, respecting electrical  
work, contrary to section 17(1) of the CONSUMER PROTECTIONACT, 2002, S.O.  
2002, Chapter 30, Schedule A, as amended, and, thereby, committed an offence  
under section 116(1)(b)(ii) of the said Act;  
[98] However, the 6 counts in which the prosecution seeks to have the statutory  
provision amended presently state the following:  
(1) Count #7 on Information #8091:  
AND FURTHER THAT  
Insight Electric Inc. and Ivan's Electric Ltd. and Ivan Valovic on or about 16th day of  
December 2012 at the City of Brampton in the Central West Region and  
elsewhere in the Province of Ontario did commit the offence of engage in an unfair  
practice by making false, misleading or deceptive representation in relation to Terry  
Bardeau, a consumer, contrary to section 17(1) of the Consumer Protection Act,  
2002, S.O. 2002, Chapter 30, Schedule A, as amended, and, thereby, committed  
an offence under section 116(1)(b)(vii) of the said Act;  
(2) Count #11 on Information #8091:  
AND FURTHER THAT  
Insight Electric Inc. and Ivan's Electric Ltd. and Ivan Valovic on or about 31st day  
of January 2013 at the City of Toronto in the Toronto Region and elsewhere in the  
Province of Ontario did commit the offence of engage in an unfair practice by  
making false, misleading or deceptive representation in relation to Marjorie Riley, a  
consumer, contrary to section 17(1) of the Consumer Protection Act, 2002, S.O.  
2002, Chapter 30, Schedule A, as amended, and, thereby, committed an offence  
under section 116(1)(b)(vii) of the said Act;  
(3) Count #17 on Information #8091:  
AND FURTHER THAT  
Insight Electric Inc. and Ivan's Electric Ltd. and Ivan Valovic on or about 16th day  
of April 2013 at the City of Toronto in the Toronto Region and elsewhere in the  
Province of Ontario did commit the offence of engage in an unfair practice by  
making false, misleading or deceptive representation in relation to Zaven  
Tahtadjian, a consumer, contrary to section 17(1) of the Consumer Protection Act,  
2002, S.O. 2002, Chapter 30, Schedule A, as amended, and, thereby, committed  
an offence under section 116(1)(b)(vii) of the said Act;  
(4) Count #23 on Information #8091:  
AND FURTHER THAT  
26  
Insight Electric Inc. and Ivan's Electric Ltd. and Ivan Valovic on or about 21st day  
of December 2012 at the City of Brampton in the Central West Region and  
elsewhere in the Province of Ontario did commit the offence of engage in an unfair  
practice by making false, misleading or deceptive representation in relation to Boris  
Wolchak, a consumer, contrary to section 17(1) of the Consumer Protection Act,  
2002, S.O. 2002, Chapter 30, Schedule A, as amended, and, thereby, committed  
an offence under section 116(1)(b)(vii) of the said Act;  
(5) Count #1 on Information #5740:  
Ivan's Electric Ltd. and Ivan Valovic and Insight Electric Inc. and Peter Valovic  
28 Malvern Court, Brampton, Ontario L6W 1H1  
on or about 26th day of December 2013 at the City of Mississauga in the Central  
West Region and elsewhere in the Province of Ontario did commit the offence of  
engage in an unfair practice by making false, misleading or deceptive  
representation in relation to Eva Patterson, a consumer, contrary to section 17(1)  
of the Consumer Protection Act, 2002, S.O. 2002, Chapter 30, Schedule A, as  
amended, and, thereby, committed an offence under section 116(1)(b)(vii) of the  
said Act;  
(6) Count #4 on Information #5740:  
AND FURTHER THAT  
Ivan's Electric Ltd. and Ivan Valovic and Insight Electric Inc. and Peter Valovic  
on or about 27th day of December 2013 at the City of Brampton in the Central West  
Region and elsewhere in the Province of Ontario did commit the offence of engage  
in an unfair practice by making false, misleading or deceptive representation in  
relation to Nigel Lundie, a consumer, contrary to section 17(1) of the Consumer  
Protection Act, 2002, S.O. 2002, Chapter 30, Schedule A, as amended, and,  
thereby, committed an offence under section 116(1)(b)(vii) of the said Act;  
[99] To reiterate, the statutory power to make amendments to an information is set out  
in s. 34 of the Provincial Offences Act, R.S.O. 1990, c. P33. (P.O.A.), which is the  
procedural statute that governs regulatory proceedings in Ontario. Section 34  
provides that the court may at any stage of the proceeding amend the information  
as may be necessary, if it appears that the information fails to state or states  
defectively anything that is requisite to charge the offence, is in any way defective  
in substance or in form, or if the matters to be alleged in the proposed amendment  
are disclosed by the evidence taken at the trial. However, in considering whether  
or not an amendment should be made, consideration of the evidence taken on the  
trial, the circumstances of the case, whether the defendant has been misled or  
prejudiced in the defendant’s defence by a variance, error or omission, and  
whether, having regard to the merits of the case, the proposed amendment can be  
made without injustice being done [emphasis is mine below]:  
Amendment of information or certificate  
27  
34(1) The court may, at any stage of the proceeding, amend the information or  
certificate as may be necessary if it appears that the information or  
certificate,  
(a) fails to state or states defectively anything that is requisite to charge  
the offence;  
(b) does not negative an exception that should be negatived; or  
(c) is in any way defective in substance or in form.  
Idem  
(2) The court may, during the trial, amend the information or certificate as may  
be necessary if the matters to be alleged in the proposed amendment are  
disclosed by the evidence taken at the trial.  
Variances between charge and evidence  
(3) A variance between the information or certificate and the evidence taken  
on the trial is not material with respect to,  
(a) the time when the offence is alleged to have been committed, if it is  
proved that the information was laid or certificate issued within the  
prescribed period of limitation; or  
(b) the place where the subject-matter of the proceeding is alleged to  
have arisen, except in an issue as to the jurisdiction of the court.  
Considerations on amendment  
(4) The court shall, in considering whether or not an amendment should be  
made, consider,  
(a) the evidence taken on the trial, if any;  
(b) the circumstances of the case;  
(c) whether the defendant has been misled or prejudiced in the  
defendant’s defence by a variance, error or omission; and  
(d) whether, having regard to the merits of the case, the proposed  
amendment can be made without injustice being done.  
Amendment, question of law  
(5) The question whether an order to amend an information or certificate  
should be granted or refused is a question of law.  
Endorsement of order to amend  
28  
(6) An order to amend an information or certificate shall be endorsed on the  
information or certificate as part of the record and the trial shall proceed as  
if the information or certificate had been originally laid as amended.  
[100] In their argument for making the proposed amendments, the prosecution submits  
that substituting the statutory provision for the offence of section 116(1)(b)(ii)for  
the present stated provision in those 6 counts of section 116(1)(b)(vii)can be  
made in regards to the merits of the case without injustice being done, since the  
evidence disclosed at trial coincides with the offence related to ”engaging in an  
unfair practice by making false, misleading or deceptive representations”; that the  
charges are serious and relate to the protection of consumers; and that the  
defendants have not been misled or prejudiced by the error or variance, since the  
defendants ability to make full answer and defence had not been thwarted or  
undermined, and that the defendants throughout the trial had been putting up a  
defence to and treating the offences in those 6 counts as the offence of engaging  
in an unfair practice, and had not be treating those 6 counts as offences  
whatsoever related to matters of leasing” with the consumers in respect to ss. 88  
and 89(1) of the CPA 2002.  
[101] However, in their response to the prosecution’s application to amend the 6 counts  
in question, the defendants submit that it is now too late in the proceeding to make  
those proposed amendments without prejudice and injustice to the defendants, as  
there is a presumption of prejudicethe later in the proceeding that an  
amendment under s. 34 of the P.O.A. is sought. The defendants submit that at  
paras. 27 to 30 in Ontario (Ministry of Labour) v. Rahnmet Inc., [2009] O.J. No.  
5418 (O.C.J.), Bubba J.P. had recognized and adopted the principle of a  
presumption of prejudice to an accused the later in the proceeding in which an  
application to amend the information is brought [emphasis is mine below]:  
With respect to the issue of prejudice, it is established that the expiry of the  
limitation period creates a presumption, however slight in some cases, of  
prejudice to the Defendant. It may be that the mere recitation of the facts and  
history of the case make it clear that there is no prejudice to the Defendant and it  
can be inferred that he knew, within the limitation period, of the case, and the  
nature of the claim now being made against him.  
Alternatively, the Defendant may file material which establishes prejudice. If  
matters are left in balance, the usual rules apply and the Applicant upon whom  
the burden lies, has not discharged the burden.  
Deaville v. Boegeman (1984), 48 O.R. (2d) 725, @ 729-730  
In summary, in every instance of a proposed amendment, in addition to the  
existence of special circumstances, the Plaintiff also bears the onus of  
establishing that amending a pleading to add a claim or to change the name of a  
party outside of an applicable limitation period will not result in irreparable  
29  
prejudice to the Defendant. While the question of prejudice and the presence of  
special circumstances will frequently overlap, our courts have been clear that the  
Plaintiff must establish the presence of both elements in order to obtain the relief  
setting aside the limitation period and being permitted to amend the claim.  
Golic v. ING Insurance Co. Of Canada (2009), 94 O.R. (3d) 446 @ 452  
(Superior Court)  
Justice Arbour, speaking for the Ontario Court of Appeal in Swain has further  
affirmed the onus upon the moving party in stating that where there are special  
circumstances and a lack of prejudice established, the court has a general  
discretion to add Defendants to an existing action after the expiry of a limitation  
period, however, no single factor, neither the lack of real prejudice, nor any one  
of the special circumstances would have, in itself displaced the Defendant's  
entitlement to rely on the Limitation Period.  
Swain Estate et al [1992] O.J. No. 1358  
(1) Can the amendments be made to the 6 counts set out in two of  
the three informations during the defendants’ closing  
arguments stage of the trial?  
[102] First, it should be noted that s. 34(1) of the P.O.A. permits the court to amend the  
information or certificate “at any stage of the proceeding”.  
[103] In R. v. Larizza, [2006] O.J. No. 5335 (O.C.J.), Pelletier J. held that an amendment  
can be at any time by virtue of the P.O.A., even after the prosecution has closed  
its case [emphasis is mine below]:  
Following the close of The Crown's case, Justice Beck made a finding that The  
Crown's evidence had not proved the location of the offences as identified on the  
certificates of offence; that is, Highway 11-17, and dismissed the charges. The  
Crown attempted to amend the certificates of offence and Justice Beck refused  
that order on the basis that The Crown's case was closed. The issue on appeal is  
whether the Justice of the Peace erred in failing to grant an order amending the  
certificates.  
Section 34(1) of the Provincial Offences Act governs the amendments of  
information or a certificate. It states, "The court may at any stage of the  
proceeding amend the information or certificate as may be necessary, if it  
appears that the information or certificate fails to state or states defectively  
anything that is requisite to charge the offence" or (c) "is in anyway defective in  
substance or form." Further, s. 34 states that court shall in considering whether  
or not an amendment should be made consider (a) the evidence taken on the  
trial if any, (b) the circumstances of the case, (c) whether the defendant has been  
misled or prejudiced in the defendant's defence by a variance, error or omission  
and (d) whether having regard to the merits of the case, the proposed  
amendment can be made without injustice being done. Pursuant to s. 34(1) the  
court has discretion at any stage of the proceedings to amend the information or  
30  
certificate. The scope of the remedial amending provision is quite broad. The  
general rule concerning amendments of certificates and informations is that there  
is a bias in favour of amending.  
There is plenty of jurisprudence on this issue stating that the overall philosophy  
of the Provincial Offences Act is to ensure that technical objectives do not  
impede the arrival of a verdict on the merits. Further, the jurisprudence states  
that an information or certificate must identify the offence charge and must give  
the defendants reasonable information with respect to the act and transaction.  
R. v. Doukas, [1996] O.J. No. 1705, [1996 CarswellOnt 1790 (Ont. Prov. Div.)]  
provides some assistance to the court. It is an appeal of a Justice of Peace's  
decision to quash three certificates of offence on the basis that the times were  
not properly set out on the certificates. The Ontario Court of Justice set aside the  
quashing and stated, "It is therefore clear that defects in language do not make  
information and certificates void. The only basis for quashing an information or  
certificate is a failure to relate to an offence known to law or amendment that  
would cause prejudice to the defendant that cannot be removed whether by  
adjournment or other means." Referring to the defect Doukas states, "If it relates  
to an offence but simply mis-describes it or leaves out one or more essential  
elements or is duplicitous an information, certificate is defective, but is not a  
nullity. It can and must be amended".  
In reviewing the factors under subsection 34(2) the circumstances of the case  
must be considered. The Crown's evidence is that the accused knewthe location  
of the offences. Inspector Houlder gave the evidence that he directed Mr. Larizza  
pursuant to s. 82 to drive the commercial motor vehicle from Garden Avenue to  
the south scales at Highway 11-17 where the inspection was carried out.  
According to The Crown's evidence Mr. Larizza attended at Highway 11-17 in  
accordance with the direction. It was at this location that Mr. Larizza was charged  
with sections 110(7) and 64(7) of the Highway Traffic Act. This is not a situation  
where Mr. Larizza did not know of the location, never attended the location or  
had an alibi that he was not at that location on that date.  
In light of these circumstances it cannot be said that an amendment would  
mislead or prejudice Mr. Larizza's defence. For these reason I would allow the  
appeal, grant on order to amend the certificate and order a new trial.  
[104] On the other hand, in R. v. Roberts, [2001] O.J. No. 4645 (O.C.J.), in which the  
prosecution did not bring a motion to amend the Informations during the trial to  
reflect the correct description of the property, although it had been clear from the  
evidence that the prosecution were aware of the error, they had instead requested  
an amendment in their written submissions.  
In denying the prosecution’s  
application to amend the Informations, Jackson J. held, at paras. 19 and 20, that  
even though s. 34 of the Provincial Offences Act gives the court jurisdiction at any  
stage of the proceeding to amend the Information, the prosecution’s motion is  
denied by reason of the fact that it was not made in a timely fashionand it will not  
cure the many deficiencies in the prosecution's case [emphasis is mine below]:  
31  
The charges before the court are regulatory in nature and therefore strict liability  
offences. The prosecution must prove the essential elements of the charges  
beyond a reasonable doubt. One of the essential elements is the location of the  
alleged offence. The prosecution did not bring a motion to amend the  
Informations during the trial to reflect the correct description of the property,  
although it was clear from the evidence that they were aware of the error.  
Instead, they requested an amendment in their written submissions. Although  
section 34 of the Provincial Offences Act gives the court jurisdiction at any stage  
of the proceeding to amend the Information, the motion is denied by reason of  
the fact that it was not made in a timely fashion and it will not cure the many  
deficiencies in the prosecution's case.  
The purpose of the Provincial Offences Act is to provide a procedure for the  
prosecution of provincial offences which reflects the distinction between such  
offences and criminal offences. Mr. Watson has asked the court not to get caught  
up in technicalities but to deal with the matter on its merits. However, the rules of  
evidence do apply and the prosecution must prove their case beyond a  
reasonable doubt. Notwithstanding that there is some evidence of infractions,  
when and where they were committed has not been proven, nor has the actual