CITATION: Ontario (Ministry of Labour) v. Canadian Universal

Network Solutions Incorporated, 2021 ONCJ 608

DATE: October 29, 2021

ONTARIO COURT OF JUSTICE

Toronto Region

B E T W E E N

Her Majesty the Queen in Right of Ontario represented by the

The Ministry of Labour

--and

Canadian Universal Network Solutions Incorporated, Wendy Thakur, and Antonietta Daneluzzi

Before Justice of the Peace Esther N. Daniel

Reasons for Judgment released on October 29, 2021

TRIAL of the defendants for offences contrary to the Consumer Protection Act.

___________________________________________________________________________

J. Ludlow for the Crown

K. Wright, Counsel for Antonietta Daneluzzi Y. Rahamim, Counsel for Wendy Thakur

Unrepresented (Ex-Parte trial) – Canadian Universal Network Solutions Incorporated

______________________________________________________________________________

The Charges:

[1]Canadian Universal Network Solutions ( hereinafter “CUNS”, hereinafter “the corporate defendant”), Antonietta Daneluzzi and Wendy Thakur ( hereinafter “the named defendants”) are charged with 42 offences of Unfair practice, 41 counts of fail to provide refunds and 60

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counts of improper contracts all contrary to the Consumer Protection Act, 2002 ( S. O. 2002, Ch. 30, Sched. A) (“the CPA”) and its regulations (hereinafter “regulations”).

[2]There were 43 consumers or consumer couples that alleged the above offences. CUNS was unrepresented and proceeded on an ex-parte basis. The charges were outlined in three informations 1) Information #4863 999 07 2555, a three count information sworn August 17th 2007 - referred to as Information number 1 in these proceedings, Information #4863 999 07 2556, a 93 count Information sworn September 28th 2007 referred to as Information number 2 during these proceedings, and finally Information #4863 999 09 300352 count Information sworn on May 21st 2009 referred to during these proceedings as Information number 3.

[3]The matters before this court primarily arise from complaints to the Ministry of Government Services where they were investigated, and a determination was made to lay charges. References are made in this decision to an Investigator Paula Charles who is not only the informant for the three informations, but also collected various statements from the consumers after complaints were made.

[4]During the course of the trial, many consumers referred to the ethnicity of the various CUNS representatives with whom the consumers had interaction leading up to and at the time they entered into the agreement. This decision uses the language that the consumers stated in their testimony and should be considered in the context of the time that they testified. The evidence should also be considered in the context of the time that it was heard where cellphone and accessibility to the internet and social media was not as prevalent.

Admissions

[5] The parties have conceded to the following:

i.At all material times CUNS was a corporation, incorporated in Ontario, Canada;

ii.That at all relevant times the named defendants were the only officers and directors of CUNS;

iii.The Crown concedes that all the parties were provided with copies of the contracts, and;

iv.The court should not consider any evidence with respect to the named defendants and appearing in Small Claims Court.

[6] Mr. Rahim accepts all of the Mr. Ludlow’s submissions on behalf of his client Ms. Thakur.

Overview of the Case

[7]The charges before the court relate to accusations that parties committed the offences of i) Improper contract in relation to Time Share Agreements and Future Performance Agreements, ii) Fail to Refund, and iii) and Unfair Practice. The applicable sections of the CPA were summarized in the Crown’s submissions in paras 4 through 24 of exhibit CCCC to these

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proceedings. Mr. Rahamim filed his submissions on behalf of Wendy Thakur marked as exhibit

BBBBto these proceedings and Mr., Wright filed is submissions on behalf of Antonietta Daneluzzi marked as exhibit AAAA to these proceedings.

[8]The Crown has provided detailed submissions in relation to the law and the evidence. While defence counsel has provided similarly detailed submissions in relation to the law they were not able to provide in-depth submissions with respect to the evidence. As such, where the court finds it accurate based on the court’s own review of the evidence, portions of the Crown’s submissions as they relate to evidence, have been reproduced in the body of this decision.

[9]No evidence was called by Ms. Daneluzzi and Ms. Wendy Thakur, that is not to suggest that this is a requirement as it is clear in law that the burden of proof lies with the Crown to prove each count as particularized, beyond a reasonable doubt. CUNS was unrepresented and proceeded an ex-parte basis, the court entering a plea of not guilty on the corporation’s behalf.

As such when arriving at a decision in relation to the ex-parte proceeding with respect to CUNS, the court acknowledges that by the nature of the proceedings that evidence to the contrary was not heard.

Bankruptcy

[10]Counsel for the named defendants submit that CUNS is now bankrupt. The court finds that it is only relevant that CUNS existed as a corporation during the dates that the offences were alleged to have been committed and not when the informations were sworn.

[11]The court agrees with Mr. Ludlow’s submission that no evidence was called to suggest that

Antonietta Daneluzzi followed and met the requirements of bankruptcy. The court only heard submissions regarding bankruptcy and the court is not able to take judicial notice of any of the requirements of filing for bankruptcy. Even if there were such evidence, the court finds what is relevant is that Antonietta Daneluzzi was an officer and director during the dates that the offences were alleged to have been committed, and not when the informations were sworn. Counsel for the named defendants have conceded that the defendants were, at all material times, officers and directors of CUNS and that at all relevant times the corporation entity of CUNS was in existence. For purposes of this trial, the court is of the opinion that the issues of the timing and filing of CUNS’ bankruptcy has little or no weight with respect to the issue liability under the CPA.

The Consumer Protection Act, 2002, Generally:

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

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[13]In Seidel v. TELUS Communications Inc., 2011 SCC 15 (*), [2011] 1 SCR 531, the majority of the Supreme Court of Canada considered the wording of TELUS’s standard form contract under British Columbia’s Business Practices and Consumer Protection Act (“BPCPA”), particularly its confidential mediation and arbitration clause and a separate clause waiving the right to participation in a class action, in the context of a class action alleging deceptive and unconscionable practices. The cell phone corporation had obtained a stay of proceedings under the Commercial Arbitration Act, but the BPCPA contained a provision that stated that agreements waiving or releasing rights under the BPCPA are void. The majority of the Supreme Court of Canada held at paragraph 37:

As to statutory purpose, the BPCA is all about consumer protection. As such, its terms should be interpreted generously in favour of consumers…

[14]Similarly, in Schnarr v. Blue Mountain Resorts Ltd., [2017] O.J. No. 166 (Q.L.), the Ontario Superior Court of Justice held at paragraph 89, “Moving to the specifics of the CPA, its specific and overriding objective is the protection of consumers.”

[15]In another ski hill case under the CPA, the Ontario Superior Court of Justice held at paragraph 21 in Woodhouse v. Snow Valley Resorts (1987) Ltd., [2017] O.J. No. 23 (Q.L.) that the intent and purpose of the CPA is as follows:

Consumer protection legislation is inherently consumer-focused as its main objectives are: (i) protecting consumers, (ii) restoring the balance in the contractual relationship between suppliers and consumers, and (iii) eliminating unfair and misleading practices.

[16]Most importantly, the consumers substantive and procedural rights cannot be waived s.7 of the CPA.

Characterization of the types of offences

[17]The court will use the term characterization of the offence to discuss the three groups of offences at issue: improper contract, unfair practice and fail to refund. This is to avoid confusion in relation to the classification of the offences. The court finds that the Crown’s summary of the relevant sections, in paras. 3 through 26, and its characterization of the three types of offences is accurate. In fact, it would appear based upon written and oral submissions, the characterization of the types of offences is not at issue.

[18]The consumers who testified at this trial, entered into two types of agreements – time share agreements and future performance agreements. The agreements are standardized business forms that contain the same (however not identical) standardized information. These agreements allow a “checkbox” section on the main page to indicate which services the consumer is interested in as well as an “Additional Terms and Conditions” where specific details

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to the agreement can be added. This is important as the court finds these agreements were entirely a product of CUNS that were distributed to these consumers, and not agreements where the parties who were present at the time of signing created from scratch, based upon their own discussions. This finding of fact is relevant when dealing with party liability in relation to some offences.

Improper Contract: deficiencies-not containing the information required

[19]Both time share, and future performance agreements are required to contain certain information as per the CPA.

Requirements of Time Share Agreements

[20]The requirements for times share agreements are found in s. 26 of the regulations (clauses 1 to 19). Compliance is mandatory as per s. 27 of the CPA and noncompliance constitutes an offence under s. 116(2) of the CPA. Failure to adhere to at least one requirement is all that is required to constitute non-compliance. Common deficiencies applicable to this case are, but not restricted to the following: the names of persons who solicited, negotiated, and concluded the agreement ( clause 4); specific indication of the place where the agreement was entered into ( clause 6); the recitations required by clause 6; the descriptions and details required by clauses 9,10, and 11; a fair and accurate description of the discounts, benefits (clause 12), pricing details required by clause 13 (i.e. – details regarding yearly fees); the agreement does not particularize the details and amounts of each of the services as per clauses 14 and 15); and details regarding terms and methods of payment of additional charges such as annual fee (clause 18). It is important to note that throughout the evidence produced in this case, particularly the exhibits that comprise the agreements entered, patent deficiencies exist that are separate and apart from any viva voce evidence.

[21]The court finds there is a difference between a header with the CUNS address visible and a line in the body of the agreement that designates the place where the contract was signed. Clause 6 of s.26 of the regulations require that the agreement contain “the date on which and the place where the agreement is entered into.” Letterhead customarily provides information where the main office of a particular company is located and not the place where an agreement is entered into. If there is an agreement where this is lacking the court is more likely to find non-compliance with clause 6 of the regulations.

[22]Many consumers received accompanying documentation at the time or after they entered the contract, some exhibits were marked as “glossy folder” which usually was a compilation of documents received by the consumer. The Crown relied on much of the accompanying documentation as there was not a consensus between the parties that the contents of the “glossy folder” did not comprise part of the agreement. It is important to note that some, if not all of the agreements, contain a paragraph that states that the membership agreement contains the complete and only Agreement and no other representations, outside of the

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terms and conditions outlined for the use of each product/service,( oral or written) has been made or relied upon by CUNS.

[23]In the absence of the agreement having a clear and direct appendix making clear reference to a separate and specific document, it would be difficult for the court to find that a separate and non-referenced documentation are part of a particular agreement. This may be more applicable to clauses 8,9,10, 11,12,13, 14, 15 and 19 which are all clauses that require the supplier to provide detailed information to the consumer.

[24]Clause 8 requires recitation language or “cancellation language” appear in the contract.

Clause 8 is specific in the size of font and location of the text that should appear (on the first page or reference in bold clearly on the first page where the text appears). S. 26 (2) of the regulations provides a standard script if you may, entitled “Your Rights under the Consumer

Protection Act, 2002”. A prima facie argument could be made that agreements that lack this language would be deficient and contravene the CPA. None of the agreements filed as an exhibit in this case contained the information required by clause 8.

Requirements of Future Performance Agreement

[25]The requirements for a future performance agreement are found in s. 24 of the regulations, compliance is mandatory as per s. 22 of the CPA and violation of this constitutes an offence under 116(2) of the CPA. The requirements for time share agreements are found in s. 24 of the regulations, clauses 1 though to 16.

Unfair Practice: Representations that are false, misleading or deceptive.

[26]If a representation is made that is false, misleading or deceptive then that person or entity has engaged in unfair practice as per s. 14(1) of the CPA. This is an offence as per section 17(1) of the CPA and constitutes an offence under section 116 (1)(b)(ii). Subsection 14 (2) outlines 17 circumstances (often referred to as subsections or clauses) that are deemed to be unfair practices. As it relates to the case before the court, primarily clauses 1, 11, and 13, the Crown alleges the CUNS engaged in unfair practice which is prohibited by s. 17. It is important to note that unfair practice can be found outside of the listed circumstances. The Crown must prove beyond a reasonable doubt that a representation was made by the supplier, that the representation was false misleading or deceptive as it either i) one of the 17 circumstances or ii) not articulated in the 17 circumstances under the CPA, but is considered to be false, misleading or deceptive.

[27]A supplier may find themselves in contravention of this section if they, amongst other things, represent that the goods and services have characteristics that they do not have, represent that a specific price advantage exists, when it does not, represent to the consumer that they are not entitled to a particular right, remedy or obligation when they are. Representations can be made verbally and in writing. The court has found in some

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circumstances that a representation can be made by virtue the environment and interactions that the consumer is exposed to that leads them to rely upon the perceived representation. In this case, some representations are found within the agreements themselves by the contradictory language used, as for example, purporting to provide a 10 day cooling-off period on the face of a document while in the same documents indicating that there is a zero- cancellation policy. Also purporting that there are no refunds and zero cancellations, in the body of the agreements, clearly violates the rights of consumers in the CPA.

[28]These representations are legally false, and were misleading or deceptive for consumers on their face, in clear violation of ss.14(2), clause 13 of the CPA, “A representation that the transaction involves or does not involve rights, remedies or obligations if the representation is false, misleading or deceptive.”

[29]According to Libman on Regulatory Offences in Canada, Earlscourt Legal Press Inc., looseleaf edition, at page6-27, engaging in an unfair practice by making a false, misleading or deceptive representation to a consumer is a strict liability offence, see: R. v. 984355 Alberta Inc. (The Fast Lane), 2016 ABPC 229, [2016] A.J. No, 1076 (QL).

[30]The court is not satisfied that any due diligence or other defence was advanced, to the charges of Unfair Practice, as they relate to providing the above-noted consumers with time share agreements that contain the zero cancellation and no refunds representations.

[31]The court must consider each count independently. R. v. Rankin, 2007 ONCA 127 (*) at para. 34.

[32]It is important to note that a consumer relies on the assumption that the supplier they enter into an agreement with will comply with the law. Mr. Ludlow provided the following example during his oral submissions:

There are situations where a supplier says to a consumer I will construct your deck by August 16th, but there is a monsoon and the if supplier can’t construct it, there will come a point where the supplier knows that they will not be able to fulfill their obligation. It is at this time, and it is my submission, that the supplier has an obligation to contact the consumer and say, I promised this to be done by the date, but I cannot do that. If the supplier fails to do that then the consumer carries on relying on the representation and the supplier, by allowing the consumer to do, is now allowing the consumer to carry on under an understanding that is false, misleading or deceptive. Something that could have been a legitimate or sincere promise at the outset may become a situation where the promise could not be honoured but when that happens - there is an obligation of the supplier to convey that it cannot be honoured so that the consumer is no longer relying upon the prior promise.

[33]The court does not agree with Mr. Wright’s oral submission that the “sincere promises” that could not be honoured would become offences under the CPA. The CPA provides the rules

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of engagement for suppliers if they wish to engage in business with consumers. That includes what the suppliers should do to honour their obligations to the consumer. As such the CPA does not seek to capture sincere or earnest promises that could not be met as there is an expectation that the supplier will take action in compliance with the CPA if met with unforeseen obstacles.

Unfair Practice – Broadness and Kienapple

[34]In relations to some counts involving unfair practice Mr. Wright argues in his submissions (paras. 79 and 80) that it i) relates to conduct if proved, would amount to be a separate offence under the CPA and the regulations, and ii) the scenario could amount to a Kienapple situation where the applicable counts should be stayed.

[35]The court agrees to an extent with Mr. Wright’s submissions in relation to the broadness of the legislation where a supplier could be caught by not only the contraventions of the regulations, but also could be culpable, based on a “factual nexus” of the evidence, under various parts of the CPA. The court does not agree however, that Kienapple Principle applies to any of the offences before the court.

[36]The Legislation Act, 2006, S.O. 2006, Ch. 21, Sched. F, provides for General Rules of Construction, particularly sections 64, states:

Rule of liberal interpretation

4(1) An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects. 2006, c. 21, Sched. F, s.64(1).

[37]In Kienapple v. R., [1975] 1 S.C.R. 729, Mr. Justice Laskin, for the majority, considered whether Mr. Kienapple could be found guilty of both rape and carnal knowledge of a female under the age of fourteen, at the same time, or if the jury should be instructed to treat the second count as an alternative charge, arising out of the same facts.

[38]Mr. Justice Laskin analyzed the principle of res judicata and the maxim nemo debet bis puniri pro uno delicto, tracing both the common law history and considering the matter under the principles of statutory interpretation, and concluded that the charges must be treated in the alternative, since there should not be multiple convictions for the same delict against the same victim, at page 745.

[39] The “Kienapple Principle” in Canadian criminal law today stands for the proposition that an accused cannot be convicted of multiple convictions for the same, single criminal act, provided there are not any “additional or distinct” elements differentiating between the two offences, see: R. v. Prince, 1986 * 40 (SCC), [1986] 2 SCR 480 at paragraph 34.

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[40]Kienapple may not apply if there are i) different societal interests, In R. v. Petrolo, 2021 ONCA 498 (*), ii)different victims to a violent offence, and different consequences, R. v. Prince, 1986 * 40 (SCC), [1986] 2 S.C.R. 480, at pp. 493 to 495 iii) and a continuing offence, R. v. Prince, 1986 * 40 (SCC), [1986] 2 S.C.R. 480, at pp. 493 to 495.

Continuing Offence:

[41]In R. v. Ramage, 2010 ONCA 488 (*), the Court of Appeal for Ontario considered the application of the Kienapple Principle for convictions for impaired driving causing death and dangerous driving causing death. The Court of Appeal upheld the trial judge, who had found that the impaired driving occurred when the accused entered his car and left the golf course, but the dangerous driving took place about half an hour later, when he drove across four lanes of traffic, and found at paragraph 66 that the trial judge was correct that Kienapple had no application, and that the criminal conduct could not be described as a single delict.

[42]Similarly, in R. v. Heaney, 2013 BCCA 177 (*), the Court of Appeal for British Columbia determined that the offence of criminal harassment in the case before it had been a continuing offence, taking place over a period of time, thus forming the factual matrix of the offence. The offence of uttering threats was included in the dates of the allegations of criminal harassment, and the offences were connected, since the uttering threats was part of the underlying offence of the other offence of criminal harassment, see: paragraph 31.

[43]Thus, in Heaney, the Court of Appeal for British Columbia concluded that there was a factual nexus between the two offences, but that it was not sufficient to apply Kienapple, because there must also be a legal nexus between the offences, see paragraph 32.

[44]The Act is remedial to ensure that the paramount concern is for the i) protection of the rights of the consumer and ii) preventing the supplier form benefiting from practices that are contrary to the CPA. The court finds that the counts that deal with unfair practice and fail to refund (as they relate to the 10- day cooling period and promises to provide a refund) and fail to refund should not be considered as the alternate of each other. Primarily, as will be seen with the counts, these types offences arise as an effort by CUNS to attempt to re- negotiate, mislead, misinform or to thwart the consumers attempts to effect theirs rights under the CPA in relation to receiving a full refund.

[45]The court finds this behavior is a “continuing offence”. Furthermore, some of the offences occurred over the course of several months, up to and including a year. The court finds that in these circumstances the conduct could not be considered as a “single delict” as it was ongoing as long as the supplier did not provide the consumer with the right or remedy they were entitled to. As well, the court finds the offences have “additional or distinct” elements differentiating between the two offences, and deal with different sections of the CPA which constitute the essential elements of the offence.

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Fail to Refund - The request to cancel and the rights engaged

[46]Sections 95 and 96 of the CPA are automatically engaged when a consumer requests to cancel the agreement. Section 95 emphasizes that cancellation operates to cancel the agreement itself, all related agreements, all guarantees regarding money payable, security given by the consumer or guarantor, and all credit agreements. Section 96 specifies that upon cancellation, it is mandatory to refund any payment made regarding the agreement or any related agreement. In the context of this case a supplier is in contravention of these sections if, upon request to cancel the agreement, instead the supplier provides a partial refund, engages in a renegotiation or counter- offer with the consumer, or retains any portion of the monies received under the guise of service or cancellation fees. The court cannot emphasize enough that a refund in the meaning of the CPA as it relates to the counts in this case, means a full refund.

[47]The consumer can convey their request to cancel in any way, it does not have to be in writing as per s 92 (2). Where the notice is in writing s. 92(4) asserts that when not served personally, the notice is deemed to be given when sent. The consumer “may send or deliver the notice” can be sent to the address of the agreement, to the address of the on file with the Ministry, or to an address of the supplier known by the consumer (s. 5(5)).

[48]The refund must be provided within 15 days of the request for cancellation, as per s. 79 (1) of the regulations. If the agreement is a time share agreement, there is a remedial provision which provides the right to cancel as per s. 28 (1) of the CPA within the 10 day cooling-off period and as per s. 28 (2), 1 year if the agreement does not comply with the requirements as per s. 26 of the regulations and contrary to s. 27 of the CPA (is “deficient”). If the agreement is a future performance agreement the consumer as per s. 23 the CPA, has a year to cancel if the agreement does not comply with the requirements as per s. 24 of the regulations contrary to s. 22 of the CPA (is “deficient”).

[49]Contrary to Mr. Wright’s oral submissions, the court does not find that the refund is a separate issue distinct from the cancellation. If the request to cancel is conveyed, then the money must be refunded- period. The refund is the manifestation of the cancellation. Without the refund, the cancellation of the agreement has little meaning. They may be two separate issues, but the refund gives effect to the cancelation which is why the right to a refund is triggered once a request to cancel is conveyed. To interpret otherwise would allow a supplier to retain the money received and have no legal obligation to fulfill the now “cancelled” contract.

[50]The court does not accept the oral submission of Mr. Wright on 23 March 2015 that when the refund is offered and the customer for his own reasons decides not to accept the refund, that this court would be hard pressed to convict anyone in those circumstances. It is important to note that, for some consumers, CUNS engaged in a “symbolic cancellation” of the agreement they entered into by promising to refund them the funds of one agreement while either i) inducing them to enter into a new agreement or ii) sign a Release and Non – Disclosure Agreement (also referred to as “Release”). The court uses the term “symbolic cancelation” as it

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operated to pacify the consumer into thinking that a refund was forthcoming but ultimately it was not.

[51]A supplier might find themselves in contravention of this section if they provide a partial refund as the court finds that a full and complete refund is what is meant by the right to a refund.

The Right to Cancel

[52]This right to cancel is a stand-alone right that is somewhat intertwined with not only the Unfair Practice and the Fail to Refund offences, but also does relate to the Release and Non – Disclosure Agreements that some consumers were asked to sign.

[53]The right to cancel is an integral part of the CPA as outlined above. In Weller v. Reliance Home Comfort Limited Partnership, 2012 ONCA 360 (*), the Court of Appeal for Ontario heard an appeal of a lawsuit, brought for a collateral purpose, in which a proposed amendment to a lease for a water heater (the “remote agreement”) did not comply with s.42(2)2 of

Regulation 17/05 under the Consumer Protection Act, 2002, since it did not give consumers the unconditional right to terminate the agreement if they did not accept the amendment.

[54]In Weller, Mr. Justice Rosenberg found that the principal issue was the right to amend the terms and conditions of an existing consumer contract, being a contract for rental of a water heater. This was a “remote agreement”, since the consumer entered into the agreement not in the presence of the supplier.

[55]In Weller, findings were made that a competitor had mounted a campaign to take consumers away from the respondent, by having the customer sign a document appointing it as the customer’s agent to carry out the termination of the contract with the respondent corporation, its rival.

[56]In response, the respondent corporation instituted a policy requiring customers wishing to terminate their rental agreements to first telephone the respondent to obtain a “Removal Reference Number”, in order to have an opportunity to speak directly to the customer before the customer terminated the contract. A customer of the respondent, who was also a Vice- President of its rival corporation, challenged this new policy.

[57]The trial judge dismissed the application. On appeal, Mr. Justice Rosenberg held at paragraph 15 of Weller, that the main objective of consumer protection legislation such as the CPA is to protect customers. The trial judge erred in holding that the agreement complied with the law because the conditions for termination were reasonable, since allowing the supplier to attach reasonable conditions would add a level of uncertainty. Mr. Justice Rosenberg concluded, therefore, at paragraph 16:

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I agree with the appellant that the right to terminate must be unconditional. An agreement that attaches conditions to the right to terminate does not provide the consumer with a true alternative to accepting the amendment. Depending upon the conditions for termination, the consumer could effectively be coerced into accepting the proposed amendment. Such an interpretation would be inconsistent with the consumer protection objective of the legislation. It follows that I agree with the appellant that the application judge erred in holding that the agreement complied with s.42(2)2 because the conditions for termination were reasonable. Allowing the supplier to attach reasonable conditions would add a level of uncertainty. The consumer would often not know for sure whether or not he or she was required to comply with the conditions imposed by the agreement as the cost of opting out of the proposed amendment. Such an interpretation would encourage litigation and undermine the consumer protection objectives of the provisions.

[58]I rely on Weller for the proposition that additional conditions, or in the case before me, a separate contract presented at the same time, created tremendous uncertainty for the consumers. When addressing consumer protection legislation, it is contrary to the purpose of such statutes “to adopt a technical approach in interpreting what a purchaser must do to notify the declarant of an intention to rescind…”, see: Harvey v. Talon International Inc., 2017 ONCA 267 (*) at paragraph 6.

Section 3 of the CPA – Interpreting two agreements as one

[59]Section 3 of the CPA, reads that “in determining whether this Act applies to an entity or transaction, a court or other tribunal shall consider the real substance of the entity or transaction and in so doing may disregard the outward form”. As the heading of this section of the CPA is entitled “Anti-avoidance” it is clear that the focus is to prevent suppliers from attempting to evade compliance with the CPA by, amongst other things, entering into multiple agreements for one transaction.

[60]In particular, s. 7(1) states that “the substantive and procedural rights given under this Act apply despite any agreement or waiver to the contrary”. The CPA seeks to protect the consumer by preventing suppliers from inducing consumers into waiving rights that i) they are aware they are entitled to, as well as, ii) waiving those rights which the consumers are not aware they have.

[61]In addition, s.9 (1) states “the supplier is deemed to warrant that the services supplied

under a consumer agreement are of a reasonably acceptable quality”. Here the CPA sets a basic level of expectation for suppliers to comply with. The goods and services must be of a reasonable acceptable quality.

[62]Crown counsel argued that a number of consumers were provided with two contracts, a time share agreement as well as a future performance agreement, at the same time and during the same transaction. This led to the assumption by many consumers that they were entering

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

[63]While representations were made verbally and on the face of the time share agreement that the 10 day cooling-off period applied, the court finds that these consumers were left: i) unaware that they had any such right at all, ii) believing the right was applicable to the total membership fee they were paying, and iii) that it applied to one agreement and not to the other agreement. To add, consumers either were not aware there were two agreements or, while being aware, it was not explained to them that the 10 day cooling-off period applied to the time share agreement only. The conflated time share, and future performance agreements related to the scope of the transactions, but left these consumers confused as they initially assumed that the supplier was within their rights to conduct their business in the manner that they were.

[64]The circumstances that would lead to such an assumption being made includes i) arranging the documents in a particular way at the time of signing that would suggest the papers were all one document, ii) the separate agreements contained the same invoice number, iii) rushing the consumer at the time of signing the agreement, iv) the use of numerous representatives at the time the paperwork was being prepared to sign, v) having consumers sign the agreement at a period of time where they were tired or exhausted, vi) providing deficient agreements so that there was a insufficient of information for the consumer to understand the differences in the documents and, vi) inducing the consumers to sign future performance agreements when they were only interested in time share agreements.

[65]The Crown further argues that the latter was done so that CUNS could i) retain the majority of the membership money paid, ii) make a more palatable argument that would pacify the consumer with a refund ( full or partial) of the time share agreement while convincing them that they were not entitled to a refund of the future performance agreement, and iii) convince the consumer that they would agree to a refund of the time share agreement “as a good will gesture”, while keeping the larger portion of the money for the future performance agreement and, iv) symbolically cancel or void the original agreement while inducing the consumer to either enter into a new agreement or sign a Release and Non- Disclosure Agreement.

[66]The Crown argued in paras 150 to 152 (in relation to consumers Safraj) of his submissions that s. 3 of the CPA should be applied and that both agreements should be interpreted as one agreement. The Crown repeated their position regarding many of the agreements where the “monetary inequity” in relation to the time share and future performance agreements existed.

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That is, that due to the monetary inequity between the two types of agreements, that the agreement should be read as one entire agreement , a times share agreement, and the rights of the consumer in relation to a time share agreement (namely the 10 day cooling-off period), should be applied to both agreements as one entity. As a result, the future performance agreement should be dismissed.

[67]Counsel for the named defendants were adamant that these contracts should not be read together and argue strenuously that they are separate agreements. In para 12 of Mr. Wright’s submissions, he argued that i) the Crown inappropriately seeks to apply the 10- day cooling-off period to a future performance agreement, ii) the CPA does not permit the application of s. 3 to combine two separate agreements into one, and iii) the CPA makes a distinction between the two agreements imposing different requirements thus distinguishing themselves from each other as they should be treated differently.

[68]When assessing “monetary inequity” in the context of the two agreements, the court does not wholly agree with the defence on the following points: i) that the court has no power to combine two contracts into one. The court finds substance over form is paramount in regulatory offences and even more so when dealing with the uninformed, unsophisticated and trusting consumer as against the supplier and , ii) The court could not disagree more with Mr. Wright’s oral submissions that what was put to the particular consumer should be considered in its context as opposed to what the court, having all the legal knowledge, would interpret the contract to be. What is put to a particular consumer and their understanding of what they were entering into is relevant however the context of such understanding cannot be at the expense of the consumers rights under the CPA. The differences in wording of the contracts and their legal significance may not be something the consumer could appreciate. Application of s. 3 of the CPA may be necessary to ensure that these rights are recognized and protected, iii) The power of the court to interpret two separate contracts is as stated: what the supplier attempts to benefit from the court, through the lens of the CPA, will attempt to make right in the interest of the consumer.

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

i)they share the same invoice number, ii) the time share agreement (entitled to the 10 day cooling-off period) membership fee was a significantly less than the future performance agreement membership fee, iii)the consumer was left with such limited information to the extent that they were confused as to whether or not they were entering into two separate contracts, and iv) where the court finds oral representations were made that would lead the consumer to believe that they were entering into one agreement. The fact that a consumer may have paid membership by virtue of more than one financial transaction in and of itself would not suggest that the consumer should have been aware that they were entering into more than one contract. There were various reasons why this occurred as per the evidence of the individual consumers. Where the facts support it, the interpretation of the court will move

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closer to a finding that the consumer entered into one agreement, that being a time share agreement. Agreements where the contents of which contain one or more of the above criteria could be interpreted as being devised to obfuscate their true purpose, and to render the CPA virtually meaningless.

[70]If viewed as one agreement, it should be the agreement that provides the consumer with the greater protection and rights. In the context of this case that would be a time share agreement. The substance over form analysis is necessary otherwise, it would i) allow CUNS to benefit by virtue of their nefarious approach in dealing with consumers and ii) would not uphold the principles and objectives of the CPA in protecting the consumers. The court also finds that, even where the consumer testified that they were aware they i) were entering into two separate agreements , or ii) the two agreement had different invoice numbers, this does not automatically support a conclusion that s. 3 analysis should not be applied in the manner argued by the Crown. Despite being aware of entering into two agreements some consumers i) were still unaware of the rights they had ,and ii) were mislead or induced into waiving or believing that they were not entitled to certain rights and remedies, all contrary to the CPA.

Classification of Regulatory Offences

[71]It is agreed that the related legislation is one of strict liability.

[72]In R. v. Wholesale Travel Group Inc., 1991 * 39 (S.C.C.), [1991] 3 S.C.R. 154, Mr. Justice Cory upheld the classification of offences as articulated under R. v. City of Sault Ste. Marie,

[1998] 2 S.C.R. 1299, “but this time in light of the Charter”, see: p. 24.

[73]Offences of strict liability only require the actus reus to be proven by the Crown and mens rea need not be established. It is then up to the defence to establish due diligence and a reasonable belief in a mistaken set of facts, as Mr. Justice Dickson held in Sault Ste. Marie, at page 1325.

[74]The CPA is public welfare legislation, which generally invokes strict liability for alleged offences. However, the classification of the regulatory offences alleged before the court varies depending upon the way liability potentially ensues.

[75]While most of the alleged offences in this matter are strict liability offences, there is a mens rea component, as well, for the reasons explored below in this judgment regarding party liability.

The Issue of Party Liability

[76]Defence counsel concede that Ms. Thakur and Ms. Daneluzzi, were the only officers and directors of CUNS from its inception, and at all material times.

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[77]Counsel for Ms. Thakur and Ms. Daneluzzi also submit that there is no evidence that their clients were shareholders of CUNS, nor is there any evidence of what remuneration, if any, they received from CUNS.

[78]Neither evidence of any receipt of remuneration nor any evidence of shareholder status in CUNS is required as a prerequisite to the potential liability of the officers and directors of CUNS. I am not aware of any authority in law to support this defence argument, and I find that such an outcome could lead to absurd results if read into public welfare statutes.

[79]The court agrees with Mr. Wright’s oral submissions that for a person to be found guilty of being a party to an offence the principle must first have been found culpable. Party liability culpability flows from a finding of culpability of the principle.

[80]Counsel for both Ms. Daneluzzi and Ms. Thakur both argue that their clients were never charged under ss. 116(3) of the CPA, which addresses the liability of officers and directors of a corporation, and as such, it is improper for them to be found guilty of the acts of the corporation through the application of s.77 of the POA.

[81]In written submissions filed by Mr. Ludlow (paras. 22 and 23), the Crown argued that by not only creating CUNS, but by allowing it to continue and not dissolving the company, the named defendants were acting for the purpose of assisting in the commission of the offence. He further submits that i) they could not have created CUNS to begin with and, ii) they could have shut it down. They did neither of those things during the relevant period of time.

[82]Crown counsel argued that the named defendants were the operating minds of CUNS, and that as such, they are also liable under s.77 of the Provincial Offences Act, R.S.O. 1990, c. P. 33, as amended (POA), which states:

77(1) Parties to an offence - Every person is a party to an offence who,

(a)actually commits it;

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

(c)abets any person in committing it.

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

[83]Counsel for both Ms. Daneluzzi and Ms. Thakur both argue that their clients were never charged under ss. 116(3) of the CPA, which addresses the liability of officers and directors of a corporation, and as such, it is improper for them to be found guilty of the acts of the corporation through the application of s.77 of the POA.

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[84]For all practical purposes, s. 77 of the POA is identical to s.21 of the Criminal Code, which states:

PARTIES TO AN OFFENCE / Common intention. 21.(1) Everyone is a party to an offence who

(a)actually commits it;

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

or

(c)abets any person in committing it.

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

[85]The POA includes an interpretative provision, as set out in s.2, as follows:

2.(1) Purpose of Act – The purpose of this Act is to replace the summary conviction procedure for the prosecution of provincial offences, including the provisions adopted by reference to the Criminal Code (Canada), with a procedure that reflects the distinction between provincial offences and criminal offences.

(2)Interpretation – Where, as an aid to the interpretation of provisions of this Act, recourse is had to the judicial interpretation of and practices under corresponding provisions of the Criminal Code (Canada), any variation in wording without change in substance shall not, in itself, be construed to intend a change of meaning.

[86)The Legislation Act, 2006, S.O. 2006, Ch. 21, Sched. F, provides for General Rules of Construction, particularly sections 63 and 64, which state:

Law always speaking

63 The law is always speaking, and the present tense shall be applied to circumstances as they arise. 2006, c. 21, Sched. F, s.63.

Rule of liberal interpretation

64(1) An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects. 2006, c. 21, Sched. F, s.64(1).

[87]Thus, I am relying on s.2(2) of the POA to rely upon the jurisprudence interpreting s.21 of the Criminal Code.

Statutory Interpretation Argument:

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

Corporation

(3)An officer or director of a corporation is guilty of an offence if he or she fails to take reasonable care to prevent the corporation from committing an offence mentioned in subsection (1) or (2). 2002, c. 30, Sched. A, s.116(3).

[89]In paragraphs 335 to 342 of his written submissions, Mr. Ludlow relies on s. 77 of the POA in relation to finding party liability. Mr. Wright relying upon (paras 15 -31) and Mr. Rahamim, (paras. 32 - 48) of their submissions argue that section 77 of the POA does not apply to these proceedings, that the defendants were not charged under this section as a party to the offence, and there was no analysis or authority to support the application of said section. They further argued that the defendants should have been but were not charged under section 116 (3) of the CPA which deals with the liability of officers and directions. In doing so they argued that,

“the liability of officers and directors of a corporation in very broad terms, and in a manner, which is inconsistent with the notion that such liability could rest upon the operation of section 77 of the POA” (Mr. Wright’s submissions para. 23). Defence counsel argued that the Crown erred in not charging the directors under s.116(3) of the CPA, and as such, Crown counsel cannot rely on s.77 of the POA in its place to prosecute the corporate officers and directors.

[90]The Supreme Court of Canada has repeatedly reaffirmed the modern approach to statutory interpretation, outlined by E.A. Driedger, Construction of Statutes, 2nd ed. (Toronto:

Butterworths, 1983), at p. 87 that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”, as per Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at paragraph 26; and Indalex Ltd., Re, 2013 SCC 6, [2013] 1 S.C.R. 271, at paragraph 136.

[91]The provisions of the CPA provide for broad categories of regulatory offences, and as such, this public welfare statute is not an exhaustive code. There are no provisions in the CPA that exclude the application of s.77 of the POA.

[92]While the provision of s.77 of the POA overlaps with s.116(3) of the CPA, these provisions are complimentary and not contradictory, and so there is no need for one to prevail over the other in order to uphold the rule of law. See: R. Sullivan, “Statutory Interpretation in a New Nutshell,” 2003 CanLIIDocs 108.

[93]Since the issue of party liability arises only under s.77 of the POA, as the directors were not charged under s.116(3) of the CPA, then there is no ambiguity to resolve, since the provisions do not need to be reconciled, nor does any provision need to be read down, since again, there is no ambiguity.

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[94]I rely upon R. v. McIntosh, [1995] 1 S.C.R. 686 at paragraph 18, where the majority held as follows:

In resolving the interpretative issue raised by the Crown, I take as my starting point the proposition that where no ambiguity arises on the face of a statutory provision, then its clear words should be given effect. This is another way of asserting what is sometimes referred to as the “golden rule” of literal construction: a statute should be interpreted in a manner consistent with the plain meaning of its terms. Where the language of the statute is plain and admits of only one meaning, the task of interpretation does not arise (Maxwell on the Interpretation of Statutes (12th ed. 1969), at p. 29).

[95 ] While the criminal jurisprudence in the application of section 21 has been of great assistance in developing the jurisprudence surrounding of party liability and regulatory offences (as seen in, Fell, Campbell and La Souveraine, analyzed in detail later in this judgment), it is important to note that s 77 of the POA has been applied directly to regulatory provincial offences.

[96]In R. v. Conestoga Rovers and Associates (2010) 102 W.C.B. (2d) 320, it resulted in acquittals under the Environmental Protection Act, where the party liability was not proven. This was upheld on appeal, at 2011 ONCJ 843. When deciding a motion for non-suit, Justice of the Peace Hoffman stated that since the wording of s. 77 of the POA and section 21 of the Criminal Code has the same wording , it was appropriate to consider s. 21 jurisprudence when analyzing party liability offences under the POA. Her Worship stated the following:

29Counsel have directed this court to legal authority regarding Section 21 of the Criminal Code which is, of course, applicable given the identical wording of the section to Section 77 of the Provincial Offences Act. Given the courts findings above I do not need to consider Section 77(1)(a). Conestoga Rovers and Associates did not actually commit the offence.

[97 ] It can be further argued that not only does s. 77 of the POA apply generally to the CPA, but also, that this court has a duty to put the accused’s liability to the jury as a “secondary offender” despite the Crown’s position that the accused is to be found “guilty

or not guilty” only as a principal offender. In R. v. Cousins (1997), 119 C.C.C. (3d) 432, 155 Nfld. & P.E.I.R. 169 (Nfld. C.A.), leave to appeal to S.C.C. refused 120 C.C.C. (3d) vii, 165 Nfld & P.E.I.R. 360n, 226 N.R. 399n, the Court found that party liability must be considered regardless of the position of the parties and prioritized over the prosecutorial discretion to take an alternate position. Gushue C.J.N. at para 10, stated the following:

In response, it is the position of the respondent that for the trial judge to assume the duty or responsibility to instruct on s. 21 in this matter, he would have had to ignore the position taken by the Crown. That would in effect amount to an interference with prosecutorial discretion. Counsel argues that while the trial judge has the discretion to instruct a jury on alternative theories of liability, the appellant has provided no

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authority or reasoned argument as to why this should amount to a duty. The respondent also raises the issue of estoppel, arguing that the Crown should now be foreclosed from raising on appeal a ground of liability which was not put forward at the trial level. The Crown pursued its case against the respondent at trial on the sole issue that he was the person who had committed the murder; the theory of joint liability not having been pursued at all, the Crown is not now entitled to raise new theories of liability for the purpose of obtaining a new trial. [emphasis added].

The Mens Rea of the Named Defendants (officers and directors of CUNS)

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

[99]The trial judge made two errors in acquitting Mr. Fell, according to Mr. Justice Martin for a unanimous court.

[100]First, where a company is liable under the identification doctrine, the director or other controlling officer will almost always be a co-perpetrator or accessory in the offence or commit a statutory offence.

[101]Secondly, Mr. Justice Martin held in Fell at para. 17:

.…even where the offence is one of strict liability insofar as the liability of the principal is concerned, the liability of an aider or abettor to be convicted of the offence requires the existence of mens rea on the part of the aider or abettor. Mens rea in this context means knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts. It was, of course, not necessary for the prosecution to prove that the respondent knew that those circumstances constituted an offence: see R. v. F.W. Woolworth Co. Ltd. (1974) 3 O.R. (2d) 629, 46 D.L.R. (3d) 345, 18

C.C.C.(2d) 23, and particularly at pp. 32 and 33-34.

[102]Crown counsel concedes that before the officers and directors of CUNS can be convicted by way of party liability, first it must be proven beyond a reasonable doubt that they had the mens rea required of parties to an offence, as per La Souveraine, Compagnie d’assurance generale v. Autorite des marches financiers, 2013 SCC 63, [2013] 3 S.C.R. 756.

[103]In La Souveraine, at paragraph 25, the majority held that the principles fashioned under criminal law regarding party liability were also relevant in the context of regulatory offences.

[104]Interestingly, the majority in La Souveraine went beyond the standard of proof of mens rea in the criminal context, as set out by the Ontario Court of Appeal in R. v. F.W. Woolworth

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Co. Ltd. (1974), 3 O.R. (2d) 629 and particularly as noted by the Supreme Court of Canada in R. v. Briscoe, 2010 SCC 13 at paragraph 17, where Madam Justice Charron stated:

As for knowledge, in order to have the intention to assist in the commission of an offence, the aider must know that the perpetrator intends to commit the crime, although he or she need not know precisely how it will be committed. That sufficient knowledge is a prerequisite for intention is simply a matter of common sense.

[105] In La Souvereine, at paragraphs 49 the majority held:

I agree with that comment in the criminal context and am of the opinion that s.21(1)(b) of the Criminal Code addresses these concerns by requiring proof of mens rea. However, I consider the situation to be quite different in the context of regulatory offences. Those who engage in regulated activities agree in advance to adhere to strict standards, and they accept that they will be rigorously held to those standards, which are typical of such spheres of activity. It is therefore not surprising in the regulatory context to find strict liability offences that encompass forms of secondary penal liability for the ultimate purpose of vigilantly ensuring compliance with a regulatory framework established to protect the general public.

[106]Under s.21(1) of the Criminal Code, a person is criminally liable, as a party to an offence, if that person, having the requisite intent, plays one of the three enumerated roles in the offence

– principal, aider or abettor. An individual will bear the same responsibility for the offence regardless of which particular role he or she played: R. v. Thatcher, [1987] 1 S.C.R. 652, at pp.689-90. As explained in R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, a person becomes a party to an offence when that person – armed with knowledge of the principal’s intention to commit the crime and with the intention of assisting the principal in its commission - does (or, in some circumstances, omits to do) something that assists or encourages the principal in the commission of the offence (paras. 14-18).

[107]In my view, the well-established principles of s.21(1) criminal liability apply with equal force to continuing offences that have been completed in law but not in fact. In particular, where an accused – with knowledge of the principal’s intention to see a continuing offence through to its completion – does (or omits to do) something, with the intention of aiding or abetting the commission of the ongoing offence, party liability is established.

[108]As officers and directors, Wendy Thakur and Antonietta Daneluzzi were responsible for the legality of the contracts proffered by CUNS to consumers. The regulatory offence was ongoing and began when CUNS solicited consumers to sign contracts that contained conditions clearly contrary to the CPA, meant to mislead consumers into believing that they could not, for example, rescind the contracts within the statutory 10-day cooling-off period. It was not “over and done with” at the moment of signing the agreements, it was an ongoing offence when the consumers efforts to cancel their agreements were delayed or thwarted.

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The Issue of Aiding and Abetting

[109]The issue of party liability of Wendy Thakur and Antonietta Daneluzzi for the liability of CUNS falls under the separate issue of aiding and abetting, and whether or not Crown counsel has proven the mens rea for same beyond a reasonable doubt.

[110]According to Black’s Law Dictionary, 11th ed., Thomson Reuters: St. Paul: 2019, at page 87, the definition of “aid and abet” is as follows:

aid and abet, vb. (17c) To assist or facilitate the commission of a crime, or to promote its accomplishment * Aiding and abetting is a crime in most jurisdictions. – Also termed aid or abet; criminal facilitation; counsel and procure. – aider and abettor, n.

[111]“The phrase ‘aid and abet’ and ‘aider and abettor’ seem unnecessarily verbose…[A]ny aid given with mens rea is abetment; hence to add the word ‘aid’ to the word ‘abet’ is not necessary and is sometimes misleading.” Rollin M. Perkins & Ronald N. Boyce, Criminal Law 724-25 (3d ed. 1982).

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

[113]In R. v. Briscoe, 2010 SCC 13, [2010] 1 SCR 411, the Supreme Court analyzed s.21(1) of the Criminal Code, and noted at paragraph 13 that Canadian criminal law does not distinguish between the principal offender and parties to an offence in determining criminal liability. It found that s.21(1) of the Criminal Code makes perpetrators, aiders, and abettors equally liable.

[114]As noted in Briscoe, at paragraph 13: The person who provides the gun, therefore, may be found guilty of the same offence as the one who pulls the trigger. The actus reus and mens rea for aiding and abetting, however, are distinct from those of the principal offence.

[115]The actus reus of aiding or abetting is doing, or in some circumstances, omitting to do, something that assists or encourages the perpetrator to commit the offence. Broadly speaking, to aid under s.21(1) of the Criminal Code means to assist or to help the actor, and to abet within the meaning of s.21(1) of the Criminal Code includes encouraging, instigating, promoting or procuring the crime to be committed, see: Briscoe at paragraph 14.

[116]At paragraph 15 of Briscoe, the Supreme Court held verbatim:

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Of course, doing or omitting to do something that resulted in assisting another in committing a crime is not sufficient to attract criminal liability. As the Court of Appeal for Ontario wrote in R. v. F.W. Woolworth Co. (1974), 3 O.R. (2d) 629, “one does not render himself liable by rending or loaning a car for some legitimate business or recreational activity merely because the person to whom it is loaned or rented chooses in the course of his use to transport some stolen goods, or by renting a house for residential purposes to a tenant who surreptitiously used it to store drugs” (p.640). The aider or abettor must also have the requisite mental state or mens rea. Specifically, in the words of s.21(1)(b), the person must have rendered the assistance for the purpose of aiding the principal offender to commit the crime.

[117]The mens rea component reflected in the word “purpose” under s.21(1)(b) of the Criminal Code has two components: intent and knowledge, see paragraph 16 of Briscoe.

[118]To establish intent, the Crown must prove that the accused intended to assist the

principal in the commission of the offence, but it is not required that the accused desired the offence to be successfully committed, as per paragraph 16 of Briscoe, citing R. v. Hibbert, [1995] 2 S.C.R. 973.

[119]For example, the perpetrator’s intention to kill the victim must be known to the aider or abettor; but it need not be shared, as per paragraph 18 of Briscoe, citing R. v. Kirkness, [1990] 3 S.C.R. 74.

[120]In R. v. Vu, 2012 SCC 40, [2012] 2 SCR 411, the issue of party liability under s.21(1) of the Criminal Code arose in a kidnapping case, which is a crime that is continuing until the victim is freed. The issue was the liability of Mr. Vu, who did not participate in the initial kidnapping, but became aware of it and while the victim was confined, and joined the kidnapping enterprise with the intent to aid the kidnappers and with the knowledge of the victim, or at a minimum, he was willfully blind to the fact.

[121]Mr. Justice Moldaver, for the Court, held that Mr. Vu took steps, of his own free will, to assist the kidnappers and further their objectives. Paragraphs 58 and 59 of this judgment are instructive.

[122]In other words, kidnapping is an ongoing offence until the victim is freed, so a person who chooses to participate in the victim’s confinement, after having learned the victim had been kidnapped, may be held responsible for the offence of kidnapping under s.21(1) of the Criminal Code, see: Vu, at paragraph 63.

Proof of knowledge of the true facts is necessary to prove the party liability of the named defendants

Direct involvement of Wendy Thakur and Antonietta Daneluzzi: In what manner can the court consider evidence, largely circumstantial evidence, to determine whether one or more of the

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named defendants had direct involvement in the business of CUNS as proof of the necessary mens rea or knowledge of the true facts?

[123]The Crown has requested, in footnote 76 of para. 345 of their submission, that the court engage in the presumption of regularity in relation to the letter of the consumer Pato, as well as other documents, submitting as follows:

With regard to this letter, and the other documents that either appear to bear Ms. Daneluzzi’s signature or bear a line reserved for Ms. Daneluzzi to sign, it is respectfully submitted that the Court may rely on the presumption of regularity. In the absence of any evidence to the contrary the Court may properly conclude that these documents were signed by Ms. Daneluzzi in the ordinary course of CUNS business and may further conclude that Ms. Daneluzzi held the position of “Authorized Signing Officer”.

[124]The court agrees with the written submissions of Mr. Wright (paras. 41 to 54) that great care must be taken when applying the presumption and the court is not prepared to apply it to the case at hand. The Crown provides no authority for their submission and the court finds that the presumption of regularity does not extend to the case before this court. No evidence has been tendered to support that the presumption of regularity applies to the two named defendants. The Crown was not able to establish the true signature of Antonietta Daneluzzi and the court did not receive sufficient evidence to conclude that the Antonietta Daneluzzi was seen signing the documents. The court cannot fairly infer this finding of fact in the absence of such evidence and declines to do so.

[125]To prove party liability for certain offences the court must consider all the evidence heard, including circumstantial evidence, to reach a determination of whether or not the Crown has proven beyond a reasonable doubt that the named defendants had direct involvement in the business of CUNS, namely to attempt to prove knowledge of the true facts.

[126]The following are examples of the types of evidence heard, and their classification, in relation of the named defendant(s), in this case:

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

-Viva voce evidence that the witness i) spoke to Wendy Thakur (direct evidence)

-Letter sent to CUNS cc’d to Wendy Thakur (circumstantial evidence)

-Typed names and title of Antonietta Daneluzzi on CUNS on documents without a signature (circumstantial evidence)

-Typed name of the Antonietta Daneluzzi on facsimile cover sheet and at bottom of letter sent to consumer with no signature (circumstantial evidence)

-Typed name of Antonietta Daneluzzi, where a signature appears above (The Release and Non -Disclosure Agreement) document (circumstantial evidence)

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Evidence Law Generally

[127] The Evidence Act, R.S.O. 1990, c. E.23, states in section 2:

Application of this Act

2 This Act applies to all actions and other matters whatsoever respecting which the Legislature has jurisdiction. R.S.O. 1990, c.E.23, s.2.

[128]The rules of evidence are the same for matters heard under the Provincial Offences Act, as for matters prosecuted criminally. As stated by Justice Ray in R. v. Egharevba, 2012 ONCJ 43 (*), at paragraphs 12 to 13:

(12)While the purpose of the Provincial Offences Act is to provide a procedure for the prosecution of provincial offences that reflects the distinction between such offences and criminal offences, the jurisprudence is well settled that the same rules of evidence do apply. Two authorities for this approach to evidence in provincial offences cases are cited in Murray D. Segal and Rick Libman’s The 2011 Annotated Ontario Provincial Offences Act (Toronto: Carswell, 2011) and they are R. v. Roberts [2001] O.J. No. 5654 (C.J.) and R. v. Bonnick (2003), 45 M.V.R. (4th) 129. The normal rules of evidence would apply then to the fact driven circumstances of whether or not a defendant permitted her motor vehicle to be driven without insurance, and a factfinder would be expected to consider all relevant evidence before the court. The evidence would sometimes be direct, sometimes circumstantial, and sometimes a combination of both.

(13)Facts in issue cannot always be proved by direct evidence alone. This is why the need arises for the prosecution to call circumstantial evidence, and for the courts to consider it. The use of circumstantial evidence does not mean that provincial offences will become a “trap for the unskilled and unwary” envisaged by the Ontario Court of

Appeal in R. v. Jamieson (1981) 1981 * 3223 (ON CA), 64 C.C.C. (2d) 550. It should not entail a complicated application of the rule in Hodge’s case, which was the subject of lengthy submissions before me in this case. The learned authors of The Law of Evidence in Canada (3rd ed) (Lexis-Nexis, 2009) have noted at page 68 of their book that the use of the rule in Hodge’s case has declined, and this has occasioned a parallel decline in the significance of the distinction between direct and circumstantial evidence.

Circumstantial evidence

[129] When considering circumstantial evidence, it is important for the court to:

i)consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (Ont. C.A.) , at pp. 205 and 211, per

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Middleton J.A., aff'd [1938] S.C.R. 396 (S.C.C.) ; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11 (B.C. C.A.) , at para. 20; R. v. Mitchell, [2008] QCA 394 (S.C.C.), at para. 35.

[130]However, when considering, ii) "other plausible theories" or "other reasonable possibilities", it must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. The basic question being whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty: R. v. Villaroman, 2016 SCC 37 and 38.

[131]Moreover, iii) Where proof of one or more essential elements of an offence with which an accused is charged depends wholly or substantially on circumstantial evidence, it is generally helpful to caution the jury about inferring guilt too readily. No specific word formula is required. A succinct and accurate way of delivering this message, which describes the relationship between circumstantial evidence and the standard of proof, is to instruct the jury that an inference of guilt drawn from circumstantial evidence must be the only reasonable inference that the evidence permits: Villaroman, at para. 30; also cited in Megill at para. 41.

[132]The court must consider whether, iv) a reasonable doubt may arise from the evidence adduced at trial or from an absence of evidence. The same holds true where the case for the Crown on an essential element or the offence, as a whole, falls to be established exclusively or substantially on the basis of circumstantial evidence. Inferences inconsistent with innocence need not arise from proven facts. And to require that inferences inconsistent with guilt be grounded on proven facts effectively imposes a burden on the accused to prove those facts. And that offends the principle that whether there is a reasonable doubt requires consideration of the whole of the evidence. In a circumstantial case, an inference other than guilt may arise from an absence of evidence, provided the non-culpable inference is reasonable, in light of the evidence and absence of evidence, assessed logically and on the basis of human experience and common sense. The trier of fact should consider "other plausible theories" and "other reasonable possibilities" inconsistent with guilt: Villaroman, at paras. 35-37, cited in Megill at para .42.

[133]When dealing with circumstantial It would appear that the court must consider the above, as well as i) the nature of the circumstantial evidence, ii) the relationship between proof by circumstantial evidence and the requirement that an accused's guilt be proven beyond a reasonable doubt (Megill, para. 37), and acknowledge that when dealing with circumstantial evidence that a reasonable doubt could be rise from i) evidence, ii) the absence of evidence, iii) the credibility of witnesses, and iv) the reliability of the evidence of witnesses ( Megill, para.

49). Considering Villaroman and Megill as cited above, the court must be cautious when dealing with circumstantial evidence and i) consider other plausible theories and reasonable possibilities that are “ based on logic and experience applied to the evidence or the absence of evidence, not on speculation, ii) an inference of guilt drawn from circumstantial evidence must be the only reasonable inference that the evidence permits, iii) a reasonable doubt may arise from the evidence adduced at trial or from an absence of evidence. Inferences inconsistent with innocence need not arise from proven facts and, iv) In a circumstantial case, an inference

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other than guilt may arise from an absence of evidence, provided the non-culpable inference is reasonable.

Handwriting purported to belong to Antonietta Daneluzzi

[134]At common law, the trier of fact is, in the absence of an expert, is permitted to compare handwriting samples:

i)to compare handwriting samples when a proved or admitted standard used for comparison with the disputed writing was already properly admitted as evidence for other purposes; or,

ii)where no document was admissible merely as a standard of comparison with the disputed writing ( R. v. Abdi (1997),116 C.C.C. (3d) 385 (Ont. C.A.), at para. 15, citing VII Wigmore on Evidence (Chadbourn Rev. 1978), §§1992-1994, at pp. 257-64. Cited in Megill 2021 ONCA 253 at para. 85)

[135]To add as an example, a witness might testify that they saw the act of writing. Or they might give evidence of the circumstances leading up to or pointing back to the act of writing. In a similar way, a qualified witness may testify about the style of the handwriting which requires a comparison between known and the disputed writing: VII Wigmore on Evidence (Chadbourn Rev. 1978), §1991, at pp. 252-57. (Cited in para 84 of Megill).

[136]It is important to note that in Abdi there was an example of the accused writing from a notebook that was being compared to a writing sample that was disputed as belonging to the accused. In Megill, a property management form was found during a search warrant which is required to be filled out by the owner if they wanted to rent out the unit. The names of the residents appeared on the document, one of the names was the accused. Also, there were “two indecipherable signatures or marks” - the property manager testified he did not know the accused and did not know who filled out the form.

[137]in Abdi, the court addressed the question of “whether or not, in light of this provision, the trier of fact is entitled to compare the disputed handwriting with the admitted or proved handwriting and form an opinion thereon in the absence of any witness testimony as to the genuineness or otherwise of the disputed writing” (Abdi at para. 16).

[138]It would appear from the law cited above that a trier of fact may draw inferences from handwriting if:

i)first the admitted or proved handwriting in documents is be properly entered into evidence (for other purposes), also;

ii)the trier of fact may compare disputed handwriting with admitted or proved handwriting in documents which are properly entered into evidence and draw inferences therefrom. In these

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circumstances, a trier of fact may make the comparison in the absence of witness testimony as to the genuineness or otherwise of the disputed writing. ( Abdi, at para. 22).

[139]The Release and Non-Disclosure Agreement for consumers King and Martin, Abad, Padhiar, Mayers, Doroja and Meyer all contain a signature above the typed name of Antonietta Daneluzzi, that is purported to belong to Antonietta Daneluzzi. With respect to consumers King and Martin, Abad, Padhiar, and Mayers, the statement of agreed facts proffered in evidence did not contain any evidence as who, other than the consumer(s), were present when document was signed. In relation to consumer Doroja, Mr. Doroja testified that he witnessed Antonietta Daneluzzi signing the Release document (direct evidence) while Mrs. Doroja testified that only Linda Gilmore and Mr. Doroja were present when the document was signed. In relation to consumer Meyer, the testimony did not reveal evidence that Antonietta Daneluzzi was present when the document was signed. Mr. Meyer testified that he never met Antonietta Daneluzzi.

[140]It is important to note that at no time during these proceedings was documentation purported to be the true signature of or handwriting of Antonietta Daneluzzi ever entered into evidence. The cases of Abdi and Megill, would support that the proper approach is for the court to consider the evidence heard and compare the signatures that appear on documents as mentioned. It is clear that counsel for all parties request that the court consider the evidence and arrive at a determination as to weight and consider all to determine whether the Crown has proven beyond a reasonable doubt that Antonietta Daneluzzi i) had direct involvement with the business of CUNS that would ii) assist in proving mens rea – that she had knowledge of the true facts- required to prove party liability.

The evidence of consumer Doroja and the purported direct involvement of Antonietta Daneluzzi in the business of CUNS

[141]Direct evidence was heard from Mr. Doroja that he witnessed Antonietta Daneluzzi sign the document while his wife, Mrs. Doroja who was present at the time she and her husband signed, testified it was only Linda Gilmore that was present and she did not witness anyone else sign the document. At its highest, as it relates to evidence of Antonietta Daneluzzi’s direct involvement with the business of CUNS, the Crown’s case is comprised of signatures that appear above her typed name on the Release document as it relates to the above consumers. It is the direct evidence of Mr. Doroja which supports the level of strength of the Crown’s case in this context. Of course, the court must assess the evidence of each case individually.

[142]However, when engaging in a comparison of the signatures, the court must first be satisfied that the Crown has proven their case beyond a reasonable doubt in relation to the Dorojas. This is necessary as a conclusion must first be reached that i) the signature has been proven beyond a reasonable doubt to belong to Antonietta Daneluzzi ii) whether the signatures are similar to the extent that the court is satisfied they were authored by the same person, so that iii) a comparison can be made regarding the signatures that appear on the Release and Non- Disclosure Agreements for consumers King and Martin, Abad, Padhiar, Meyers and Mayers to determine if they belong to Antonietta Daneluzzi. This court found in the

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case of consumers Doroja (see. Para 829) that the Crown could not prove their case beyond a reasonable doubt that the signature belonged to Antonietta Daneluzzi. The court further finds that the reasoning that follows is, that in the absence of such proof, even if the court were to consider the signatures were similar in nature to the extent that they were authored by the same person, the court could not then conclude that the signature was authored by Antonietta Daneluzzi.

Typed names appearing on documents – no signature

[143]This addressed by the weighing of circumstantial evidence as it relates to each consumer independently. It is a cumulative assessment of circumstantial and other evidence that ultimately will arrive at what weight will be given to aspects to the evidence and whether as a whole such evidence will support the Crown’s onus of proving the elements of the offence beyond a reasonable doubt, particularly knowledge of the true facts in relation to party liability. The appropriate weight will be given with respect to the evidence in this regard.

Identification evidence of direct interaction of consumers with the named defendants

[144]As the consumers in this case were not familiar with the named defendants, identification evidence must be considered, and caution must be taken as to the reliability of such evidence. It is important to note that the court is aware of testimonial frailties that exist with eyewitness evidence and attempts to identify persons without the appropriate checks and balances.

The court heard both direct and circumstantial evidence as it relates to identity. A lay person is permitted to give an “opinion as to the identity of another person” as an exception to the exclusionary rule barring the opinion evidence of a “non-expert” witness: R. v. Graat, [1982] 2 S.C.R. 819, 9 W.C.B. 21, 2 C.C.C. (3d) 365, 144 D.L.R. (3d) 267 .

[145]Identity of a name provides some evidence towards proof of identity but must be

considered along with other factors (relative distinctiveness of the name, or the fact that it is coupled with an address, or appears upon a licence or other document of significance), its weight is strengthened: R. v. Chandra, (1975), 29 C.C.C. (2d) 570 (B.C.C.A.) para 6.

[146]The types of evidence received by the court (in an attempt to prove the direct involvement of the named defendants in the business of CUNS and thus knowledge of the true facts required for party liability) have been identified above ( see para. 126).

[147]The court has also, received critical evidence, in the way of i) consumer agreements, ii) Release and Non – Disclosure Agreements and iii) facsimile cover sheet (in relation to consumers Pato and Ferdaus).

[148].Circumstantial evidence can be admitted at a POA trial, as noted by Justice Ray in Egharevba, but whether or if and what weight is given to such evidence is addressed individually under each count alleged, as a matter of fairness.

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[149]Through the testimony of the complainants, the court also heard hearsay evidence, relating to the circumstance under which consumers were not only enticed into attending seminars, but also how CUNS solicited them to enter into these agreements. Hearsay evidence can also be admitted, potentially, where the probative value of it carries greater weight than its prejudicial effect. As a matter of fairness, I will consider hearsay evidence (where necessary) in each count, individually.

Hearsay Evidence:

[150]In R. v. Baldtree, 2013 SCC 35 (*), [2013] 2 SCR 520, the Supreme Court of Canada considered the applicability of the hearsay rule, and the purposive approach, considering the principled analysis as well, of its necessity and reliability. In that case, while investigating a break-in at Mr. Baldtree’s apartment, police discovered a quantity of marijuana and cocaine, which they seized, along with a cell phone and cash. He was arrested and charged with drug trafficking. After he had been taken to the police station, his cell phone rang and one of the police officers answered it. The caller asked to speak to Baldtree, whom he identified by name.

The caller said he wanted an ounce of “weed”, and the officer asked how much Baldtree charged him, and the caller said $150. The officer told the caller he would deliver the drugs. The officer had no further contact with the caller, nor did he attempt to find him. The majority of the Supreme Court of Canada concluded that this evidence was an “implied assertion” that Mr.

Baldtree sells drugs.

[151]In Baldtree, the majority found that hearsay evidence is presumptively inadmissible as a matter of law, see: paragraph 2. It further found that this exclusionary rule applied to both express hearsay and implied hearsay, at paragraph 3. Ultimately, the majority applied the principled approach and found that the necessity requirement had not been met, because the police had not attempted to secure the evidence of the caller, and without cross-examination, the belief expressed in the single phone call was not sufficiently reliable.

Pattern of Conduct and Similar Fact Evidence

[152]In the context of the regulatory offence before this court and considering evidence of each count independently as it relates to establishing actus rea and mens rea of the named defendants, the court must be satisfied that the Crown has proven the individual count beyond a reasonable doubt. During these proceedings there was no application requesting the court consider similar fact evidence. The court agrees with Mr. Wright’s submissions at para. 34 and emphasizes that “ in the absence of a specific ruling to the contrary, the evidence led in support of one count in criminal trial, may not be relied upon for any purpose by the judge and jury , in support of any of the other counts”. This is a true rule of evidence in relation to this matter.

[153]The court has heard the testimony from various consumers as they relate to their experiences while at CUNS, such as, but not restricted to the following , i) being placed in large and small rooms, ii) being shadowed by various CUNS representatives , iii) the tag teaming of numerous CUNS representatives as against individual or coupled consumers, iv ) the length of

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hours attending at CUNS and the rush at the end to sign agreements, and v) aggressive sales pitches. The Crown in paras. 344 to 369 seeks to rely on some or all of such evidence (i.e. the conduct of the named defendants and of CUNS itself), to support i) the required mens rea to prove party liability, and ii) a “pattern of conduct” which was made clear in the Crown’s written submissions. I agree with the submissions of Mr. Wright (paras. 32 to 40) and Mr. Rahamim (para 63 to 70) that in the absence of an application to consider similar fact evidence it was improper to consider evidence across counts to determine guilt or innocence.

[154]In R v. Tsigirlash 2019 ONCA 650 2019, the appellant was the owner of Auto Enterprises Inc. a company with salvage yards located at 3 different locations. He was charged with 47 offences. Forty-four of the charges alleged possession of stolen property, and three alleged fraud over $5000. Fourteen of the stolen property charges involved possession of stolen vehicles, the balance alleged possession of stolen car parts. The fraud charges alleged the appellant had defrauded three different individuals by selling them automobiles that contained stolen parts.

[155]The judgement of Zarnett J.A in Tsigirlash provides a very helpful overview of the law of similar fact evidence (paras 22 to 41). The court found that the trial judge erred in using “evidence across counts as similar fact evidence” in the absence or a request to do so. Such evidence is presumptively inadmissible, and it was the prosecutor’s onus to satisfy the trial judge that it could be used across counts. There was no Crown request for similar fact treatment in any form and thus did not attempt to meet the onus it would have had; the defence had no opportunity to respond (at para. 43).

[156]In determining that there was no other means to correct the trial judge’s errors other than ordering a new trial Zarnett JA stated the following in paras 64 and 65:

64 In my view the error here was neither harmless nor trivial. The trial judge ought to have determined each count on the basis of the evidence that was led related to that count. Instead he decided each count on the basis of evidence related to that count and to 46 other counts. He failed to treat evidence that was presumptively inadmissible as such; instead he drew important conclusions from it and applied them to each count on which he recorded a conviction. Nor, in my view, can we be assured that the similar fact inferences drawn by the trial judge would have been available to him had a proper inquiry been undertaken. The range of evidence, the number and variation of the counts, and the absence of complete argument on the issue prevents us from making that determination.

65 Can it nonetheless be said that the evidence is so overwhelming that the trier of fact would inevitably have convicted? Naturally, in making this determination an appeal court must confine itself to the admissible evidence. Since we cannot resolve the admissibility of the similar fact evidence inferences, those inferences cannot be relied upon in assessing the inevitability of conviction. Without those inferences, the Crown cannot demonstrate that the case on each count was so overwhelming that the trier of fact would inevitably have convicted.

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[157] A new trial was therefore ordered.

Perception, Memory and Sincerity

[158]Despite the passage of time between the dates of offences and testimony in court, the court must be satisfied that the evidence of each consumer is credible, and that there are no concerns with respect to their perception, memory, or sincerity. Their recollection of the events should be clear, unambiguous, and they were unshaken in cross-examination.

The Legislation

[159]Section 3 of the CPA reads that “in determining whether this Act applies to an entity or transaction, a court or other tribunal shall consider the real substance of the entity or transaction and in so doing may disregard the outward form”. As the heading of this section is entitled “Anti-avoidance” it is clear that the focus is to prevent suppliers from attempting to avoid compliance with the CPA.

[160]Section 7(1) states that “the substantive and procedural rights given under this Act apply despite any agreement or waiver to the contrary”. The CPA seeks to protect the consumer by preventing suppliers from inducing consumers into waiving their rights that i) they are aware they are entitled to, as well as ii) waiving those rights which they are not aware they have.

[161]Section 9 (1) states “the supplier is deemed to warrant that the services supplied under a consumer agreement are of a reasonably acceptable quality”. Here the CPA sets a basic level of expectation for suppliers to comply with. The goods and services must be of a reasonable acceptable quality.

[162]I refer to the follow paragraphs of the Crown’s submissions as they provide a succinct summary of the relevant Legislation regarding the offences alleged, as follows:

The Unfair Practice Offence

4.The Unfair Practice offence is set out in Part III of the CPA. There, subsection 14(1) defines an unfair practice in these terms:

14(1) It is an unfair practice for a person to make a false, misleading or deceptive representation.

5.Subsection 14(2) lists seventeen circumstances which, without limiting the generality of the definition of unfair practice, are deemed to be unfair practices. Of those seventeen circumstances, the following three have application to this case:

1.A representation that the goods or services have sponsorship, approval, performance characteristics, accessories, uses, ingredients, benefits or qualities they do not have.

11.A representation that a specific price advantage exists, if it does not.

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13.A representation that the transaction involves or does not involve rights, remedies or obligations if the representation is false, misleading or deceptive.

6.Unfair Practices are prohibited by subsection 17(1):

17(1) No person shall engage in an unfair practice.

7.The word “practice” is clarified by subsection 17(2):

17(2) A person who performs one act referred to in section 14, 15, 16 shall be deemed to be engaging in an unfair practice.

8.Finally, engaging in an Unfair Practice is an offence contrary to subsection 116(2)(b)(ii) of the CPA:

116(1) A person is guilty of an offence if the person…

(b)contravenes or fails to comply with…

(ii) in respect of Part III, Unfair Practices, subsection 17(1)…

The Improper Contract Offence

9.The second category of offences with which the defendants are charged relates to providing consumers with contracts that do not comply with the regulations made pursuant to the CPA.

By virtue of subsection 116(2) of the CPA, failing to comply with the CPA’s regulations is an offence:

116(2) A person who contravenes or fails to comply with a provision of a regulation made under this Act is guilty of an offence.

10.The General Regulation made under the CPA is Ontario Regulation 17/05 (hereinafter “the regulation”). Among other things, the regulation sets out the requirements for various types of consumer agreements. For our purposes, two of these types of agreements are engaged.

11.The first type of consumer agreement that is relevant to this case is a “Future Performance Agreement”. This type of consumer agreement is defined by subsection 1 of the CPA as “a consumer agreement in respect of which delivery, performance or payment in full is not made when the parties enter the agreement.”

Improper Contract – Future Performance Agreement

The Regulated Requirements of a Future Performance Agreement

14.By operation of section 22 of the Act “every future performance agreement shall be in writing, shall be delivered to the consumer and shall be made in accordance with the prescribed requirements.”

15.The prescribed requirements for a Future Performance Agreement are set out in subsection

24of the regulation. They are:

1.The name of the consumer.

2.The name of the supplier and, if different, the name under which the supplier carries on business.

3.The telephone number of the supplier, the address of the premises from which the supplier conducts business, and information respecting other ways, if any, in which the

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supplier can be contacted by the consumer, such as the fax number and e-mail address of the supplier.

4.A fair and accurate description of the goods and services to be supplied to the consumer, including the technical requirements, if any, related to the use of the goods or services.

5.An itemized list of the prices at which the goods and services are to be supplied to the consumer, including taxes and shipping charges.

6.A description of each additional charge that applies or may apply, such as customs duties or brokerage fees, and the amount of the charge if the supplier can reasonably determine it.

7.The total amount that the supplier knows is payable by the consumer under the agreement, including amounts that are required to be disclosed under paragraph 6, or, if the goods and services are to be supplied during an indefinite period, the amount and frequency of periodic payments.

8.The terms and methods of payment.

9.As applicable, the date or dates on which delivery, commencement of performance, ongoing performance and completion of performance are to occur.

10.For good and services that are to be delivered,

i.the place to which they are to be delivered, and

ii.if the supplier holds out a specific manner of delivery and will charge the consumer for delivery, the manner in which the goods and services are to be delivered, including the name of the carrier, if any, and including the method of transportation to be used.

11.For services that are to be performed, the place where they are to be performed, the person for whom they are to be performed, the supplier’s method of performing them and, if the supplier holds out that a specific person other than the supplier will perform any of the services on the supplier’s behalf, the name of that person.

12.The rights, if any, that the supplier agrees the consumer will have in addition to the rights under the Act and the obligations, if any, by which the supplier agrees to be bound in addition to the obligations under the Act, in relation to cancellations, returns, exchanges and refunds.

13.If the agreement includes a trade-in agreement, a description of the trade-in arrangement and the amount of the trade-in allowance.

14.The currency in which amounts are expressed, if it is not Canadian currency.

15.Any other restrictions, limitations and conditions that are imposed by the supplier.

16.The date on which the agreement is entered into.

Improper Contract – Time Share Agreement

12.The second type of agreement engaged by this prosecution is a “Time Share Agreement” which is defined in subsection 20(1) of the CPA. There we find:

“time share agreement” means a consumer agreement by which a consumer,

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(a)acquires the right to use property as part of a plan that provides for the use of the property to circulate periodically among persons participating in the plan, whether or not the property is located in Ontario, or

(b)is provided with access to discounts or benefits for the future provision of transportation, accommodation or other goods or services related to travel.

13.Most of the agreements in this case are caught by subsection (b) of this definition. Only the eight agreements that involve RCI points trigger subsection (a).

The Regulated Requirements of a Time Share Agreement

16.Section 27 of the CPA requires that “every time share agreement shall be in writing, shall be delivered to the consumer and shall be made in accordance with the prescribed requirements.”

17.The requirements prescribed for a Time Share Agreement are set out in section 26 of the regulation, which states:

26.(1) For the purposes of section 27 of the Act, a time share agreement shall be signed by the consumer and the supplier and shall set out the following information:

1.The name of the consumer.

2.The name of the supplier, and if different, the name under which the supplier carries on business.

3.The telephone number of the supplier, the address of the premises from which the supplier conducts business, and information respecting other ways, if any, in which the supplier can be contacted by the consumer, such as the fax number and e-mail of the supplier.

4.The names of,

i.the person, if any, who solicited the consumer in connection with the agreement,

ii.the person, if any, who negotiated the agreement with the consumer, and

iii.the person who concluded the agreement with the consumer.

5.If the supplier has contracted with a property manager, other than an employee of the supplier, to manage the property that is the subject of the agreement, the name and telephone number of the property manager and information respecting other ways, if any, in which the property manager can be contacted by the consumer, such as the fax number and e-amil address of the property manager.

6.The date on which and the place where the agreement is entered into.

7.The commencement date and the term of the agreement including, if that is the case, that the term is indefinite.

8.A statement containing the text set out in subsection (2) and, if applicable, the additional text set out in subsection (3),

i.which shall be in at least 10 point type, except for the heading which shall be in at least 12 point bold type, and

ii.which shall appear on the first page of the agreement, unless there is a notice on the first page of the agreement in at least 12 point bold type indicating where in the agreement the statement appears.

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9.A fair and accurate description of the consumer’s rights in respect of the use of the property that is the subject of the agreement, including:

i.the precise location of the property,

ii.the precise suite or the type of suite that the consumer will have the right to occupy,

iii.the periods during or the dates on which the consumer will have the right to use the property,

iv.the goods and services, including facilities, that will be provided to the consumer or to which the consumer will have access, together with any conditions attached to, and any restrictions and limitations on, the use of or access to these goods and services, and

v.any conditions attached to, any restrictions and limitations on, the consumer’s right to dispose of the time share the consumer is acquiring under the agreement.

10.The details respecting the consumer’s right, if any, to use a different property in substitution for the property that is the subject of the agreement, including,

i.the times at which the right may be exercised,

ii.the method by which the right is to be exercised,

iii.the amounts payable by the consumer in connection with exercising the right, and

iv.the name of the individual or entity responsible for co-ordinating the substitution and information respecting the various ways in which the individual or entity can be contacted by the consumer, such as the telephone number, fax number and e-mail address of the individual or entity.

11.The details respecting the consumer’s right, if any, to exchange his or her right to occupy a precise suite or a type of suite for a right to occupy a different suite or type of suite, including,

i.the times at which the right may be exercised,

ii.the method by which the right is to be exercised.

iii.the amounts payable by the consumer in connection with exercising the right, and

iv.the name of the individual or entity responsible for co-ordinating the exchange and information respecting the various ways in which the individual or entity can be contacted by the consumer, such as the telephone number, fax number and e-mail address of the individual or entity.

12.A fair and accurate description of the access to be provided to the consumer with respect to discounts or benefits for the future provision of transportation, accommodation or other goods or services related to travel.

13.An itemized list setting out,

i.the amount of the one-time payment payable by the consumer upon entering into the agreement and the goods or services for which it is payable,

ii.the amount of each additional one-time payment payable by the consumer and the good or service for which is it payable, and

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iii.the amount and frequency of the periodic payments payable by the consumer and the good or service for which each payment is payable.

14.An itemized list setting out,

i.each optional good and service, including a facility and a membership, that the supplier represents will be available to the consumer by virtue of the consumer entering into the agreement, and

ii.the amount that the consumer would have to pay for such good or service if the consumer decided to avail himself or herself of it.

15.If any of the amounts set out in the agreement is subject to change or if the consumer may be required to make a payment in addition to the payments set out in the agreement,

i.a statement to that effect,

ii.a description of the circumstances in which the amount may change or the additional payment may be required, and

iii.either,

A.what the changed amount or the additional payment will be, or

B.the objective standard that will be applied to determine the changed amount or the additional payment.

16.If the agreement includes a trade-in arrangement, a description of the trade-in arrangement and the amount of the trade-in allowance.

17.The currency in which amounts are expressed, if it is not Canadian currency.

18.With respect to every amount that is or may be payable by the consumer, as

referred to in paragraphs 10, 11, 13, 14 and 15, the terms and methods of payment.

19.The consequences of non-payment of any amount that is payable by the consumer.

(2) The statement mentioned in paragraph 8 of subsection (1) shall set out the following:

Your Rights under the Consumer Protection Act, 2002

You may cancel this agreement at any time during the period that ends ten (10) days after the day you receive a written copy of the agreement. You do not need to give the supplier a reason for cancelling during this 10-day period.

If the supplier does not make delivery within 30-days after the delivery date specified in this agreement or if the supplier does not begin performance of his, her or its obligations within 30 days after the commencement date specified in this agreement, you may cancel this agreement at any time before delivery or commencement of performance. You lose the right to cancel if, after the 30-day period has expired, you agree to accept delivery or authorize commencement of performance.

If the delivery date or commencement date is not specified in this agreement and the supplier does not deliver or commence performance within 30 days after the date this agreement is entered into, you may cancel this agreement at any time before delivery or commencement of performance. You lose the right

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to cancel if, after the 30-day period has expired, you agree to accept delivery or authorize commencement of performance.

In addition, there are other grounds that allow you to cancel this agreement. You may also have other rights, duties and remedies at law. For more information, you may contact the Ministry of Consumer and Business Services.

To cancel this agreement, you must give notice of cancellation to the supplier, at the address set out in the agreement, by any means that allows you to provide the date on which you gave notice. If no address is set out in the agreement, use any address of the supplier that is on record with the Government of Ontario or the Government of Canada or is known to you.

If you cancel this agreement, the supplier has fifteen (15) days to refund any payment you have made and return to you all goods delivered under a trade-in arrangement (or refund an amount equal to the trade-in allowance).

(3)If the consumer is to receive goods under the agreement, the statement mentioned in paragraph 8 of subsection (1) shall also set out the following:

If the supplier requests in writing repossession of any goods that came into your possession under the agreement, you must return the goods to the supplier’s address or allow one of the following persons to repossess the goods at your address:

The supplier.

A person designated in writing by the supplier.

If you cancel this agreement, you must take reasonable care of any goods that came into your possession under the agreement until one of the following happens:

The supplier repossesses the goods.

The supplier has been given a reasonable opportunity to repossess the goods and twenty-one (21) days have passed since the agreement was cancelled. You return the goods.

The supplier directs you in writing to destroy the goods and you do so in accordance with the supplier’s instructions.

The Fail to Refund Offence

18.The third type of offence engaged in this prosecution will be referred to as Fail to Refund. The obligation for a supplier to provide a consumer with a refund is triggered by a consumer’s cancellation of the underlying consumer agreement. When a consumer cancels a consumer agreement sections 95 and 96 of the CPA are engaged. In relevant part, these sections state:

95.The cancellation of a consumer agreement in accordance with this Act operates to cancel, as if they never existed,

(a)the consumer agreement;

(b)all related agreements;

(c)all guarantees given in respect of money payable under the consumer agreement;

(d)all security given by the consumer or a guarantor in respect of money payable under the consumer agreement; and

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(e)all credit instruments, as defined in Part VII, and other payment instruments, including promissory notes,

(i)extended arranged or facilitated by the person with whom the consumer reached the consumer agreement, or

(ii)otherwise related to the consumer agreement.

96.(1) If a consumer cancels a consumer agreement, the supplier shall, in accordance with the prescribed requirements,

(a)refund to the consumer any payment made under the agreement or any related agreement…

19.Subsection 79(1) of the regulation prescribes that a supplier who is required to provide a refund by a consumer by operation of subsection 96(1) of the Act must do so within 15 days of the date of the cancellation.

20.Under the Act, a consumer’s right to cancel a consumer agreement varies according to the type of agreement in question.

21.The right to cancel a Future Performance Agreement is defined by section 23 of the CPA which states:

23.A consumer may cancel a future performance agreement within one year after the date of entering into the agreement if the consumer does not receive a copy of the agreement that meets the requirements required by section 22.

22.The Act provides consumers with greater rights to cancel Time Share Agreements: 28.(1) A consumer may, without any reason, cancel a time share agreement at any time from the date of entering into the agreement until 10 days after receiving the written copy of the agreement.

(2) In addition to the right under subsection (1), a consumer may cancel a time share agreement within one year after the date of entering into the agreement if the consumer does not receive a copy of the agreement that meets the requirements under section 27.

23.By virtue of subsection 94(1) of the Act, a consumer may give notice of cancellation by complying with the notice requirements found in section 92 of the CPA. Section 92 states:

92.(1) If this Act requires a consumer to give notice to a supplier to request a remedy, the consumer may do so by giving notice in accordance with this section.

(2) The notice may be expressed in any way, as long as it indicates the intention of the consumer to seek the remedy being requested and complies with any requirements that may be prescribed.

(3) Unless the regulations require otherwise, the notice may be oral or in writing and may be given by any means.

(4) If notice in writing is given other than by personal service, the notice shall be deemed to be given when sent.

(5) The consumer may send or deliver the notice to the address set out in a consumer agreement or, if the consumer did not receive a written copy of a consumer agreement or the address was not set out in the written agreement, the consumer may send or deliver the notice,

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(a)to any address of the supplier on record with the Government of Ontario or the Government of Canada; or

(b)to an address of the supplier know by the consumer.

24.Per subsection 116(1)(viii) a supplier who fails to provide a consumer with a refund within fifteen days of the cancellation of a consumer agreement is guilty of an offence:

116.(1) A person is guilty of an offence if the person…

(b)contravenes or fails to comply with…

(viii)in respect of Part IX, Procedures for Consumer Remedies, subsections 96(1), 98(2) and 99(5).

The Trial Evidence

[163]Again, for reasons stated above, only the Crown has provided a summary of some of the evidence of witnesses. As such where the court finds it accurate and relies on the summary, I will indicate so and at times inserting additional segments of the evidence where relevant. The court will also clarify and add what other evidence it finds as relevant. It is also important to note, not that there is any obligation to do so, that the defence did not call any evidence.

Information number one

[164]This information was sworn by Ministry Investigator Paula Charles on 17 August 2007 and is a 3-count information.

Information number one - Counts 1 to 3 - Jianhu Amy Jia

[165]Paragraphs 36 to 57 of the Crown’s submissions relate to consumer Jianhu Jia and as such

I have reproduced the parts of the Crown submissions subject to the clarifications and additions below.

[166]The court heard evidence from Ms. Jia on 17 September 2014, with the assistance of the

Mandarin interpreter. The court accepts the following, set out in para.38 of the Crown’s submissions, as true:

38.Ms. Jia explained that she received an unsolicited call from a woman who spoke

Mandarin. Initially Ms. Jia thought that this was a friend, but it eventually became clear that the woman was calling on behalf of a company. Ms. Jia would learn that that company was CUNS. The caller invited Ms. Jia and her husband to a presentation but Ms. Jia said that her husband was in China. The caller replied that Ms. Jia could attend as a single. The caller told Ms. Jia that this was like a warehouse sale where goods, such as

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electronics and cars, were sold at very special, good prices. The caller made no mention of travel deals.

[167]On Saturday 30 July 2005 Ms. Jia and her daughter attended 3030 Orlando Drive in Mississauga, Ontario. She was met by an English-speaking woman who provided her with a questionnaire (requesting personal information) to fill out. The consumer was then taken to a large room for a presentation where many people were sitting in rows of chairs and a large screen. The presentation was a mixture of videos and screens and was about travelling and cruises around the world. A middle-aged woman conducted the presentation.

[168]After the presentation a young Korean man approached Ms. Jia. She could not recall his name, but he spoke to her about the terms cost and services of CUNS such as travelling, mortgages. Ms. Jia expressed it was too expensive at which point another person who was Chinese and spoke Mandarin who was sent in to speak to her. Ms. Jia explained her husband was in China and she was not sure how long she would stay in Canada. This person did not persist in attempting to sell and left, but then a middle-aged Korean man called William Kim came and spoke to her. He offered her a short-term membership. Ms. Jia insisted she was not interested but Mr. Kim was “nonstop” and “pushing” her. Ms. Jia testified she felt that she could not leave as he kept speaking to her. Ms. Jia signed the documents in Mr. Kim’ s presence and testified in chief that he did not make an attempt to explain what the documents were about.

[169]While Ms. Jia testified in chief that Mr. Kim took her to his office and pulled out agreement and papers. During cross-examination, Ms. Jia elaborated when asked by Mr.

Rahamim “was it just you and him in a room?”. Ms. Jia responded “many people…it’s actually a very large open area. There were many people”. Ms. Jia contradicted herself in cross- examination by Mr. Wright:

Q “you were in a room with many other people so you could have called out for help if you had a problem”?

A “actually this agreement was signed in this small office”.

[170]While this appears to be a slight ambiguity in her testimony on this point, the court accepts as true that Ms. Jia was in an office with Mr. Kim at which point, she entered into the agreement. I find that paragraph 48 of the Crown’s submission to be accurate:

Ultimately Ms. Jia entered into an agreement for three years of CUNS membership at a cost of $3,000. This price included a membership price of $2,304.74, a processing fee of $499.00. and GST of $196.26. Ms. Jia paid the $3,000 using her credit card and received a printout indicating the money had been paid to Affinity Marketing Group. Ms. Jia asked questions regarding Affinity Marketing Group, and was told that Affinity Marketing Group was a company with whom CUNS collaborated.

[171]The court finds as true that Ms. Jia entered into the agreement as characterized in para. 48 above. The 3-page agreement is dated 30 July 2005(ex. 75) with invoice #1816. It is a VIP

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membership for the world resort club, travel gallery as well as the value club which included auto benefits club, real estate advantage club and the premium buyers club. The court further finds true that on page 1, under the “Acknowledgement” section read, amongst other things, in bold that there is “zero cancellation”. Under the section “Additional terms and conditions” it reads the following: Included 3 years price freeze to upgrade a today’s prices. Included 1 Bonus Week off our Hot List up to 8 people for 7 days accommodations only. Valid for 3 years Maximum of $500 CDN. 1 Cruise from $199US per person + Taxes +port Charges, flight not included. Cruise is for 3 – 5 days. Total for 3 people. Annual fees not collected. Billed next year. [sic].

[172]The court finds as true that on Page 2 paras 3 it again states that there is “zero cancellation”. On page 3 at the top it refers to the agreement being “nonrefundable”. Also, on page 3 para 6 it states “no Refunds will be permitted by the company” [sic]. Ms. Jia paid the $3000 with Visa, (transaction receipt ex.78) which shows a payment to an Affinity Marketing Group at a Steeles Ave West address. When Ms. Jia was asked why the money was being paid to another company it was suggested that Affinity Marketing Group was in collaboration with

CUNS. Ms. Jia’s daughter remained with her as she signed the agreement.

[173]The same night she signed the agreement Ms. Jia spoke to her husband and it was decided the membership was not ideal for them. The court finds as true that on the next working day Ms. Jia telephoned CUNS, spoke to Mr. Kim and expressed her desire to cancel the contract. The court further finds as true that Ms. Jia testified, she returned to CUNS with a typed up a cancellation letter (she would later send it via fax as well) and took a hard copy to CUNS in an effort to cancel her contract. Ms. Jia explained that she wanted to cancel the contract and was looking for William Kim. Ms. Jia expressed she wanted to cancel her membership so someone at CUNS wrote on the back of the business card of Mr. Kim the following “August 5/05 at 12:30 p.m. Linda Gilmore” (ex. 80) so that she could speak with Linda Gilmore.

[174]The court finds as true that Ms. Jia sent a letter dated 4 August 2005 (with handwriting that it was faxed on the same date at 2:34 p.m. to the same number that appears on the CUNS letterhead ) requesting to cancel her membership via fax to CUNS ( ex. 82) and another letter dated 4 August 2005 to Visa (ex. 83) in an attempt to stop the payment however the payment ultimately went through a month later.

[175]Ms. Jia testified that she expected to receive a call form Linda Gilmore but instead, William Kim called at which time she requested a refund. Mr. Kim indicated he would think about it but called back on or about the 11th day of August 2005 and advised there would be no refund and if he did refund the money he would be fired.

[176]The court finds as true that Ms. Jia never used any of the services of CUNS and never received any money back. Ms. Jia never attempted to use the services, she wanted to cancel and didn’t even attempt to enter the website.

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Information number one Count 1 – Improper Contract

[177]As the agreement entered into was an agreement that provided, “access to discounts or benefits for the future provision of transportation, accommodation or other goods or services related to travel”, it falls within the CPA’s definition of a time share, s.20(1)(b). As a time share agreement, it must comply with the requirements as outlined in s.26 of the regulations. The court also agrees with para. 52 of the Crown’s submissions, in relation to the deficiencies in the agreement:

Improper Contract

52.The Time Share Agreement provided to Ms. Jia lacks several of the elements required of such agreements by section 26 of the regulation. Specifically, the Agreement lacks:

- The names of the people who solicited, negotiated, and concluded the Agreement with Ms. Jia as required by clause 4. On behalf of CUNS the agreement includes only two illegible signatures and the handwritten notation “William K”;

- A specific indication of the place where the Agreement was entered into, as required by clause 6;

- The recitations required by clause 6;

-The descriptions and details mandated by clauses 9, 10 and 11;

- A fair and accurate description of the access to be provided to the consumer with respect to discounts or benefits for the future provision of transportation, accommodation or other goods or services related to travel as required by clause 12; -The pricing details required by clause 13, particularly as this relates to the annual fees which, per the agreement, were not collected but will be collected in the next year; -The details and amounts required by clauses 14 and 16; and

-The details regarding the terms and methods of payment of additional charges, such as the annual fee, as required by clause 18.

[178]To be clear, only one deficiency as listed in s. 26 of the regulations, is required to contravene s. 27 of the CPA. The court will discuss clauses 4, 6 and 8 for purposes of illustration. It is also important to note that the agreement itself is patently deficient separate and apart from any viva voce evidence.

[179]The court finds that Ms. Jia interacted with three at least 3 people while at CUNS the night the agreement was entered: a young Korean man, a Chinese man, and a middle-aged

Korean who she testified was named William Kim. The court finds based upon Ms. Jia’s evidence, that the young Korean gentleman and Mr. Kim solicited, negotiated and concluded the agreement. I am not satisfied beyond a reasonable doubt that the Chinese man did so. However, all the required names do not appear on the agreement. The only names that appear

are i) Ms. Jia’s own signature which she identified in court, and ii) Mr. Kim’s. On the section line entitled “Manager” there is a signature line but also below, another line entitled “Name”.

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[180]Ms. Jia testified that she recognized the signature and that it was Mr. Kim’s signature as he signed in front of her. The court accepts Ms. Jia ‘s testimony on this point and does not agree with the Crown’s characterization of the agreement containing “two illegible signatures” as Ms. Jia identified her signature under oath. The court reviewing the agreement can see and so finds that the line set aside for “Name” reads “William K”.

[181]In any event, there should be at least one additional name on the contract, that of the young Korean gentlemen that was discussing CUNS with Ms. Jia. The court finds based upon the evidence heard and the contents of page one of the agreements (ex. 75) that clause 4 of s. 26 of the regulations was not complied with.

[182]As mentioned above, it takes only one deficiency to comprise non-compliance, the court agrees with the Crown’s submissions with respect to the remaining deficiencies that exist with the time share agreement. As the agreement does not make any reference to any appendices that should be referenced or specific reference to separate documents that should comprise part of the agreement the court finds it is bound by the contents of the agreement alone and not any supporting documentation. In addition, Page 3 of the agreement under “Terms and Conditions” state, amongst other things, the following: “…this Membership Agreement contains the complete and only Agreement between them and that no other representations, outside of the terms and conditions outlined for the use of each product/service, oral or written, including but not limited to suitability for a particular purpose, has been made or relied upon by Canadian Universal Network Solutions Inc…” As such, the court finds that any accompanying documentation such as materials in folders or otherwise, and despite being admitted into evidence, cannot be considered part of the agreement.

[183]While the letterhead has the Orlando address the agreement itself does not have an indication of the place where the agreement was entered into and therefore does not comply with clause 6. Business letterhead does not comprise the place where the agreement was entered. Finally, the cancellation language in clause 8 (the specific text of which is set out in s. 26 (1) of the regulations) is absent in the agreement, an additional deficiency with respect to the time share agreement.

[184]These deficiencies are all contrary to s. 27 of the CPA and an offence as per s. 116(2) of the CPA. Having heard no evidence to the contrary ( which is the case for all the counts against CUNS as the court is proceeding on an ex-parte basis), the court is satisfied that the Crown has proven beyond a reasonable doubt the case against CUNS and finds CUNS guilty of the offence of improper contract and therefore guilty of count 1 of information 1.

Improper contract – The liability of Wendy Thakur and Antonietta Daneluzzi

[185]The court having found CUNS guilty of this offence now must determine whether the Crown has proven, beyond a reasonable doubt, the case against the purported aiders and abettors – the named defendants.

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[186]Upon application of s. 77 of the POA and as discussed earlier in this decision, the Crown must prove the actus reus and mens rea of the named defendants beyond a reasonable doubt. That is, i) the actus reus - aided or abetted CUNS in committing the act by doing something or omitting to do something that assists or encourages CUNS to commit the offence, and ii) mens rea – did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts).

[187]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained on the face of their written agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that- the agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of these agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. . Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of improper contract and guilty of count 1 of information 1.

Count 2 - Fail to Refund

[188]The court finds that Ms. Jia, within 10 days of entering the contract both verbally (the next working day) and in writing faxed letter sent 4 July 2005 (ex. 82) requested to cancel her agreement. Since the agreement was deficient and did not contain the requirements as per s. 26 of the regulations, Ms. Jia was also entitled to cancel the time share agreement within 1 year. When a request for cancellation is made this automatically engages section 95 and 96 of the CPA and the consumer is entitled to a refund within 15 days of such request (s. 79(1) of the regulations). The court further finds that i) as the requests were made within 10 days of entering into the agreement ii) Ms. Jia had an unfettered right to cancel within 10 days ( s. 28

(1)of the CPA, as she iii) provided notice as required by s. 94 CPA , also iv) complied with the notice requirements in s. 92(1), and therefore v) was entitled to a refund within 15 days of the request to cancel (s. 79(1) of the regulations). As Ms. Jia did not receive a refund within 15 days this is contrary to s. 96 (1) of the CPA and an offence contrary to s. 116(1)(viii) of the CPA (as particularized in count 2 of information number 1) and is guilty of count 2 of information number 1. Having heard no evidence to the contrary, the court finds the Crown has proven the elements of the offence beyond a reasonable doubt and the court finds CUNS guilty of the offence of fail to refund.

Fail to refund - The liability of Wendy Thakur and Antonietta Daneluzzi

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[189]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the defendants aided or abetted CUNS in the offence of fail to refund by not providing a refund. That is, the Crown did not prove that i) the named defendants assisted or encouraged CUNS to not provide a refund, and ii) that the named defendants did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts). As such the court finds that Wendy Thakur and Antonietta Daneluzzi not guilty of the offence of fail to refund and therefore not guilty of count 2 of information number 1.

Count 3 - Unfair Practice

[190]Analyzing the written agreement (ex. 75), the court further finds true that page 1, under the acknowledgement section purports the agreement is subject to a “ zero cancellation” reading as follows: “By signing below I acknowledge and I agree to comply with Canadian

Universal Network Solutions Inc. zero cancellation policy in regards to my Membership Non- refundable and non-negotiable.” Page 2 paras 3 it again states that there is “zero cancellation”.

On page 3 at the top it refers to the agreement being “non-refundable”. The court further finds that on page 3 para 6 it states “no Refunds will be permitted by the company”[sic].

[191]The CPA clearly provides that consumers entering into a time share agreement have an unfettered right to cancel it within 10 days, as per s.28(1) of the CPA and prohibits waiver of substantive and procedural rights under s.7(1) of the CPA.

[192]These representations are false, misleading or deceptive and are unfair practice as s.14(2), clause 13 of the CPA, “A representation that the transaction involves or does not involve rights, remedies or obligations if the representation is false, misleading or deceptive.”

This is contrary to s. 17(1) of the CPA and an offence as per s. 116 (1)(b)(ii) of the CPA. The court therefore finds CUNS guilty of the offence of unfair practice and therefore guilty of count 3 of information number 1.

Unfair practice - The liability of Wendy Thakur and Antonietta Daneluzzi

[193]The court finds that the Crown has proven beyond a reasonable doubt the count as against the named defendants as they have proven knowledge of the true facts. The court finds that as the sole officers and directors of a CUNS the named defendants knew or ought to have known the content of the written agreement contained representations such as- “zero cancellation “and “no refunds” that were misrepresentations. That the named defendants i) had a responsibility to ensure the legality of the contracts however, ii) allowed the agreements with the content to be used by CUNS iii) for the purpose of assisting CUNS to commit the offence of unfair practice by allowing the content of the agreement to used and not correcting it. The court finds that that the named defendants engaged in unfair practice contrary to s.

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17(1) of the CPA and thereby committed an offence contrary to s. 116(1)(b)(ii) of the CPA. The court finds Wendy Thakur and Antonietta Daneluzzi guilty of count 3 on information number 1.

Information number 2

[194]This information was sworn by Ministry Investigator Paula Charles on 18 September 2007 and is a 93-count information.

Information number 2 - counts 1 and 2- Lucy Thomas

[195]Paragraph 59 of the Crown’s submissions relate to consumer Lucy Thomas and as such, I have reproduced the majority of it, as I find the summary of evidence to be accurate, subject to the clarifications and additions noted below:

59.Counts 1 and 2 – Consumer Lucy Thomas

On June 24, 2014, the court heard the evidence of Lucy Thomas. Like Ms. Jia, Ms. Thomas’ direct evidence was not shaken under cross-examination. As Ms. Thomas’ evidence was very similar to the experience described by Ms. Jia, only a point form review will be undertaken here.

-On August 2, 2005 Ms. Thomas received a cold-call from Linda Gilmore at CUNS. Ms. Gilmore said that Ms. Thomas was the lucky person to win $500. Ms. Gilmore also made mention of computers and vacations.

-To claim her prize, on August 4, 2005, Ms. Thomas and her daughter attended at a dinner hosted by CUNS’ 3030 Orlando Drive location in Mississauga.

-During dinner Ms. Thomas was approached by a woman named Cheryl. Cheryl spoke with Ms. Thomas about a vacation package. Ms. Thomas was not interested.

-Another lady took Ms. Thomas and her daughter to a large room with a big television. There were pictures of vacations and vacation sites. Cheryl continued to accompany them.

-Every couple entered the large room with a chaperone from CUNS. Cheryl, Ms.

Thomas’s chaperone, was black like Ms. Thomas. An Italian couple appeared, and they were given an Italian chaperone. An Indian couple was accompanied by an Indian chaperone.

-Every couple had something in common with their chaperone.

-A presentation was given by a lovely, tanned, blonde woman. This lasted until beyond 8 pm.

-Ms. Thomas had arrived at CUNS at 6 pm.

-During the presentation Ms. Thomas told Cheryl that she hoped there was no money involved with the presentation. Cheryl assured her there was not.

-Eventually the couples and chaperones disbursed to different rooms. In their room, Ms. Thomas and her daughter met George Marcus.

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-Ms. Thomas’ meeting with Mr. Marcus continued beyond 10 pm.

-Mr. Marcus told Ms. Thomas that she’d have to pay $32,000 for CUNS membership and asked for a down payment of $4,999.

-Ms. Thomas said that she couldn’t afford this.

-After midnight Peter, a finance person, joined the meeting. He told Ms. Thomas that he would take care of her regarding the $32,000.

-Ms. Thomas was mad and confused.

-Ms. Thomas’ daughter was asked about the $500 and the computer that they were told they won. In reply she was given a photocopied flyer and told she had to enter a draw.

-Later Ms. Thomas learned that the draw required a paper to be selected from a drum. The paper Ms. Thomas and her daughter drew said they won a vacation to Florida.

-Ms. Thomas was not given $500 or a computer. She never used the Florida vacation certificate.

-At some point after 1:00 am Ms. Thomas provided CUNS with a $500 deposit on an agreement with a total cost of $13,902.51.

-When Ms. Thomas went to the CUNS parking lot it was very quiet. She saw Cheryl leave CUNS but her hair was different. Cheryl had the same attire as before but, Ms. Thomas concluded, she had previously been wearing a wig. This concerned Ms. Thomas as Cheryl had built trust with her.

-The following day Ms. Thomas was stunned and wondered what she had gotten into. She began calling CUNS and Linda Gilmore saying she didn’t understand. She called so much that CUNS stopped answering the phone.

-Ms. Thomas initially told Ms. Gilmore that she wished to cancel the agreement on August 8, 2005. Subsequently she made several more attempts to cancel the agreement verbally before sending a written cancellation letter on August 25, 2005.

[196]To add, during cross-examination by Mr. Wright, Ms. Thomas was less sure about whether the “chaperones” that were paired up with other people were speaking those person’s languages.

Information number 2 count 1 – Improper Contract

[197]The court finds that i) the written agreement was a time share agreement as it was an agreement for future provision of transportation (s. 20 (1)(b) of the CPA). It is clear from the evidence that as per the membership agreement with CUNS (ex. 57), that it lacked certain contents that are required as per section 26 of the regulations such as, but not restricted to, clause 4, 6 and 8.

[198]For the record, the court finds Ms. Thomas testimony to be credible, as she testified that prior to Ms. Thomas attending the CUNS location she was called by Linda Gilmore who advised

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her of an opportunity (on August 2nd 2005), to win money and prizes as specified above. Ms. Thomas was chaperoned by a person by the name of Cheryl, when she was taken to a smaller room, she spoke to a person named George Marcus who Cheryl indicated was her husband.

George was speaking quickly telling Ms. Thomas about all the fabulous things about the product and services while Cheryl was also present. Ultimately a finance person named Peter Tyrovolas was brought into the room – only his name appears on the contract as a “Business Manager”.

[199]Contrary to Clause 4, The court finds that the consumer spoke to i) Cheryl, ii) George Marcus, and iii) Peter Tyrovolas as outlined above however only the (CUNS) name of Peter Tyrovolas appears on the agreement. This does not comply with the requirement that the names of persons who solicited, negotiated, and concluded the agreement should appear on the agreement itself.

[200]Contrary to clause 6, while there is a header on some pages of the agreement with the address of CUNS no where in the agreement does it indicate the place where the agreement was entered. Similarly:

-Contrary to clause 8 – the recitations which are specific text that are required as per ss (2) of regulation 26 namely the “cancellation language”.

-Contrary to clause 9 it the contract does not set out an accurate description of the consumer’s rights regarding use of property - in fact no specifics about the property is provided at all.

-Contrary to clause 10 no reference is made at all to the consumers right to use a different property.

-Contrary to clause 11 no reference is made to the consumer right to (if any) exchange his or her right to occupy a precise suite.

-Contrary to clause 12 no fair and accurate description of the access to be provided the consumer was made as it relates to discounts or benefits of future provision of transportation, accommodation or other goods or services related to travel, and;

- the agreement lacks the details and amounts required by clauses 14 and 15.

[201]It is important to note that other documents were provide to Ms. Thomas including a glossy folder (ex. 58) which had additional information and provided in a letter enclosed a website to visit. The regulations make it clear that the information that is required are to be set out in the time share agreement itself (an addendum or appendix would suffice) but that was not done here. In fact, clause 7 of the terms and conditions of the membership agreement indicate reliance cannot be made verbally or in writing outside of what is contained in the actual agreement.

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[202]Any one of the above failures to comply with regulation 26 would satisfy the offence of improper contract. These deficiencies are contrary to s. 27 of the CPA and an offence as per s. 116(2) of the CPA. The court finds the Crown has proven beyond a reasonable doubt that CUNS committed the offence of improper contract and is guilty of count one of information number 2.

Improper Contract - The liability of Wendy Thakur and Antonietta Daneluzzi.

[203]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained their written

agreements and had a responsibility to ensure the legality of the contracts ii) allowed the deficient agreements to be used by CUNS iii) for the purpose of assisting CUNS to recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that the deficient agreements would allow CUNS to gain paid memberships. The court finds that the defendants knew or ought to have known that the content of their agreement fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of improper contract and guilty of count 1 of information number 2.

Information 2 Count 2 – Fail to Refund

[204]The court finds that Ms. Thomas entered into a time share agreement on 4th August 2005 and was therefore entitled to the 10 day cooling-off period as per s. 28 (1) of the CPA. The court further finds that as the time share agreement was deficient Ms. Thomas had a right to cancel the agreement within one year as per s. 28 (2) of the CPA. The court further finds that Ms. Thomas verbally expressed her desire to cancel her contract on August 8th 2005 as referenced in her cancellation letter August 25, 2005 (ex. 59).Upon the request to cancel an agreement the court finds that sections 95 and 96 are automatically triggered and Ms. Thomas was entitled to a refund within 15 days as per s. 79 (1) of the regulations. The court further finds that Ms. Thomas did not receive a refund of her $500.00 and this is not only contrary to s. 96(1) of the CPA but also an offence as per s. 116 (1)(b)(viii) of the CPA. As such the court finds CUNS guilty of the offence of fail to refund and guilty of count 2 of information number 2.

Fail to Refund – The liability of Wendy Thakur and Antonietta Daneluzzi

[205]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the defendants aided or abetted CUNS in the offence of fail to refund by not providing a refund. That is, the Crown did not prove that i) the named defendants assisted or encouraged CUNS to not provide a refund, and ii) that the named defendants did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case,

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knowledge of the true facts). As such the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of fail to refund and therefore not guilty of count 2 of information number 2.

Information number 2 counts 3 and 4 – Carmela Huertas

The court heard testimony from Ms. Huertas on 12 March 2015.

[206]Ms. Huertas received a cold call to attend CUNS with the promise she had won a Caribbean vacation but had to attend a 90-minute presentation. When Ms. Huertas attended CUNS, with her husband Eid Huertas, at 3030 Orlando Drive location on August 7th, 2005 she was passed along to three different people.

[207]Ms. Huertas testified that she was first greeted by a woman whose name was Wendy, “I think her name is Wendy, the very first lady who greeted me.” Ms. Huertas could not remember if Wendy indicated her last name but testified that she believed this was the same person who had cold called her – a person named Wendy who she described as a Southeast Asian Indian Woman. “Wendy” was not there when they first arrived but then Ms. Huertas testified that “she (Wendy) introduced herself and she said she’s Wendy and she was the one who called me”. The following exchange occurred in chief:

Q:Wendy said that she was the person who called you and she was expecting you?

A:Yeah.

[208]She had an “agent” a different Indian lady (not Wendy) whose name she did not recall, who sat with her at a table after the approximately 30-minute presentation. This lady explained how things were and the term of the agreement as well as the nature. Neither the travel nor the period (25 years) of time of the agreement was appealing to Ms. Huertas.

[209]Then she met Mr. Kim who attempted to convince her to enter into a lengthy period of agreement which she refused as she made it abundantly clear over and over again and repeatedly that she was not interested in a travel membership. Mr. Kim lowered the membership from 25 years to 10 years stipulating different amounts for each membership. Then Mr. Kim suggested there were other services available including a line of credit and could offer a very good rate. This is what appealed to Ms. Huertas. Up to this point no one, not even during the presentation, mentioned the option of a line of credit. Ms. Huertas had a small mortgage on her home and a low interest rate of “one point something” at the time so used that as a means of comparison as to what she was looking for. Mr. Kim kept saying he could provide a better rate than her mortgage but refused to provide an exact amount indicating he could not give her that amount at that present time. This made Ms. Huertas skeptical.

[210]At this time Mr. Kim introduced them to his “manager – Peter”. Peter attempted to get them to fill out a form however Ms. Huertas insisted on knowing the exact interest rate, so

Peter referred her to George Pappas who he indicated was their “financial partner”.

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[211]Ms. Huertas testified she was at CUNS from 11:30 am for the 12:00 p.m. presentation and remained until 6:00 pm in the evening. Ms. Huertas testified that she and her husband were trying to leave as they were i) starving, and ii) emotionally stressed from being passed from one person to another. They said they wanted to leave several times. Aware that Mr. Huertas had been laid off one of his jobs, Peter asked them to let him help them as it would be good to have a line of credit to use. He ultimately lowered the membership to 5 years.

[212]Peter remained in the room while Ms. Huertas and her husband discussed what was being offered and decided to join the 5-year membership based upon the promises made to them.

[213]On that day Ms. Huertas paid $5000 by Visa (receipt exhibit 148) and on the next business day 9th August 2005 $1995 by cheque (ex. 149), a total of $6,995.00. Ms. Huertas asked exactly what the $6,995 was for, she was under the impression that it was the membership fee (Including lawyer, legal and other fees) to enjoy the use of the $235,000 line of credit.

[214]Ms. Huertas testified that no specific information was given as to the clubs of the membership were for (except for the Auto Benefits and the Real Estate Advantage Club) and when details were provided they were, according to her testimony, misleading or some blatantly untrue. Ms. Huertas testified that her and her husband “blindly initialed it because he said that we – he doesn’t have enough time for all this”, that George Papas would call us. Ms.

Huertas was to meet George Pappas not on this day but another day.

[215]Peter wrote up the papers and the membership was signed. When asked in chief whether she was signing up for the World Resort Club and the Travel Gallery (which are indicated on the written contract and are certainly not financial services) Ms. Huertas replied she was under the impression that they were affiliated with some dealership as that was what she was advised and the Real Estate Advantage Club she understood that to be something to do with the line of credit. It is clear from her testimony that representations were made that formed an inaccurate understanding of what the consumer was signing.

[216]Ms. Huertas testifying in chief about her attendance on the 7th of August 2005:

Q- And do you remember having some contact with people there?

A Well. After, after all that day, when we had given money to them-actually the money that we give (sic), it has nothing to do with a vacation. It has something to do with these other services that they offered us. That service is put the total amount of our mortgage into a line of credit.

Later, still in chief, Ms. Huertas testified:

Q: Tell us about that. What was it that you were signing up for there?

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A:Well they had – because we are a member now, they are considering us as a member, so this is not a full, full membership, the vacation. They said that you are allowed to use in case you go on a vacation, our World Resort Club. They were giving you a certain club that you can present to whichever hotel or condominium that you’re going to use, and then they will give you a certain discount, based on your membership.

[217]Ms. Huertas and her husband signed two sets of papers that look almost identical: Exhibit 145 and then exhibit 150 both on the same day. When asked in chief why there were two documents Ms. Huertas responded that they were photocopies and didn’t know why there were two of them. Upon further clarification in chief the Crown pointed out the difference between the two. Exhibit 145 in the bottom right corner when it refers to a down payment it indicates $6995.00 and a balance owing of zero while in exhibit 150 it indicates a down payment of $5000.00 and a balance owing of $1995.00. Ms. Huertas reasoned that exhibit 150 was written up as it was anticipated on August 7th, 2005 that they would return to pay the balance. Comparing the two documents and reading the “Additional terms and conditions” section of the notations would appear to support this premise. In all, according to the

membership agreement dated 7 August 2005 (exhibit 145) signed by Ms. Huertas, her husband Eid Huertas and Peter) the consumers joined 5 different clubs. On page one of the agreement, under the acknowledgement section reads “Zero cancellation” [sic] and the top of the second page reads “Members fully acknowledge and accept this membership as a Binding Contract, Which is Non Refundable and Non Negotiable” [sic]. Para 6 of page 2 also reads “No Refunds” [sic] while page 3 para. 3 reads “zero Cancellation policy that will be enforced” [sic]. The total reads $6995 and the down payment reads the same, $6995.00.

[218]It is important to note that neither of these exhibits referred to anything regarding a line of credit. Ms. Huertas requested and witnessed Peter fill out the form regarding the line of credit details (ex. 151) a one page document dated August 7th, 2005, (signed only by Ms.

Huertas and her husband) entitled “Request for financial services”. There is a subsection entitled “Line of credit” and an amount $250,000. Reference was made in exhibit 151 to a "secured PLC (personal line of credit) @best rate … otherwise membership to be refunded”.

[219]Exhibit 152 are various sheets that Ms. Huertas referred to as “work sheets”. These various work sheets were used by Mr. Kim to write down the various offers and financial details to convince them to enter the membership. In exhibit 153 is a package of sheets and a cover letter (signed by Linda Gilmore) to the couple dated March 7th 2006, referencing a conversation that occurred on that day and referring them to a Mr. Vince Fuda - Finance Manager as being the person to contact. There was a blank form “The Mortgage Centre” as well as two blank forms from CUNS entitled “request for financial services “with carbon. Ms. Huertas never filled in and submitted the forms, she testified to “calling them million times regarding, you know, trying to get my money back. cause I’ve learned that their office in Orlando is already gone”.

[220]Ms. Huertas was given 3 cards with the CUNS symbol (a flat world map) for the CUNS representatives William Kim, Peter Tyrovolas and Linda Gilmore. Exhibit 156 is a business card for Mr. George Papas given to Ms. Huertas when she returned to bring in her cheque on August

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9th, 2005. His company did not have CUNS on the card but a company entitled “AIP Group LTD”, for which he is title as “President”, and provides an address of 505-50 Gervais Dr Toronto On M3C- 1Z3 with landline cell and fax numbers as well as an email – photocopies of these cards are part of exhibit 155. On the same date, George Papas advised them that there would be an additional fee that they would have to pay that was over $3000.00 and suggested it was for lawyers’ fees , his own fees and had nothing to do with CUNS while at the same time indicating that he and CUNS were affiliated. Ms. Huertas testified this was not her understanding when she signed up. It seemed as though he was suggesting refinancing the mortgage which Ms. Huertas refused. After this last interaction made Ms. Huertas decide she was going to try to get her money back and not go through with the line of credit.

[221]She kept calling CUNS and advised them that she would like to get her money back to which she did not receive a response. Ms. Huertas believed them to be ignoring her calls as she would be informed that Peter was not there or that Mr. Kim was no longer there. Ms. Huertas testified that other than the first attendance at CUNS she met Wendy another time. Ms. Huertas attended CUNS unannounced and testified that “I spoke with her and was trying to ask her to get my, my money back. That’s the time she said that she can’t – it’s out of her hand”. Ms. Huertas testified that Wendy’s hair was a different colour – dark, a blackish colour. Wendy was not in an office at this time – she was welcoming people. Ms. Huertas further testified after purchasing a new home Wendy called again about two to three years later. It is important to note that Mr. Ludlow completed his questioning at this point and did not ask any further questions about this second call that was purported to have occurred years later.

[222]During cross-examination by Mr. Rahamim, Ms. Huertas testified that she met Wendy three times i) the day that she first attended CUNS, ii) when she attended CUNS unannounced to cancel her agreement, and iii) a couple years ago she saw her again.

[223]Ms. Huertas testified through pre-paid legal services she retained a law firm to send a letter requesting a refund. Exhibit 157 is a letter from Mills & Mills law firm dated May 17th

2006 stating various including that the letter was a “ demand that that they be reimbursed the monies that they have paid to for this contract” – in other words, a request to refund. However, Ms. Huertas was never refunded her money.

Evidence of Wendy Thakur’s purported direct involvement with CUNS

[224]Ms., Huertas mentions a person by the name of Wendy when on the following occasions i) the person who cold called her home identified themself as Wendy, ii) the person who greeted her upon arriving at CUNS Ms. Huertas believed was the same person who had cold called her, iii) requested a refund from Wendy the same lady that received her the first night at CUNS.

[225]During cross-examination by Mr. Rahamim, Ms. Huertas testified that the person Wendy i) did not conduct the presentation nor was she involved in any negotiation in offering deals , ii) never communicated with M. Huertas in writing, and iii ) didn’t deal with any of the complaints

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that Ms. Huertas made regarding a refund. Ms. Huertas testified that all Wendy did was say hi or hello and she and never dealt with her directly on the transaction.

[226]Ms. Huertas did admit in cross-examination that she did not mention the name Wendy when making her statements to the investigator Charles (dated 11 September 2007) and the first time she mentioned the name Wendy was during her testimony. In fact, the name Wendy, was not mentioned in Ms. Huertas Consumer Alert (television show) complaint (dated 11 July 2006), the complaint to the Ministry (dated 17 July 2006). During cross-examination by Mr. Rahamim, Ms. Huertas confirmed i) that she did not mention Wendy’s name in her letter to

Mills and Mills (dated 15 May 2006 not marked as an exhibit) asking for assistance, and ii) was not given a card by Wendy despite her asking Wendy for a card upon their first meeting at CUNS.

[227]Ms. Huertas described Wendy as i) a Southeast Asian Indian Woman, ii) Indian, 5 foot 4, dark blonde hair (dark blonde with highlights), medium build, iii) while elaborating in cross- examination that she worked in the Middle East she has interacted with a lot of Indians and Pakistanis so she was certain Wendy was Indian.

[228]The court finds that some but not much weight can be placed on the testimony of Ms. Heurtas for the following reasons: i) she only mentioned the name Wendy for the first time while testifying, despite having at least 4 opportunities to do so beforehand as outlined above ii) Ms. Huertas during her in chief testimony was inconsistent as i) her language was unsure that the person she met at reception was indeed Wendy then moved towards testifying that the person introduced themselves as Wendy. Furthermore while Ms. Huertas testified that she directly asked for a refund from Wendy at CUNS the second time she met her, she contradicted herself in cross-examination by Mr. Rahamim when she testified that this woman purported to be Wendy didn’t deal with any of the complaints that Ms. Huertas made regarding a refund.

[229]For these reasons, the court places very little weight on the evidence as it relates to the purported direct involvement of Wendy Thakur with the business of CUNS. Of course, this piece of evidence must be considered in the totality of evidence to determine whether or not the Crown has proven their case beyond a reasonable doubt.

Count 3 information number 2 – Improper Contract

[230]It is clear that despite thinking or being persuaded to think that she was entering into an agreement for a line of credit that Ms. Huertas was indeed entering into a time share agreement. The court agrees with the Crown’s submissions as they relate to this, at para. 73, which state:

73.The membership agreement provided by CUNS to Ms. Huertas grants Ms. Huertas access to CUNS’ world resort club and travel gallery. As this agreement provides benefits for the future provision of transportation, accommodation or other goods or services related to travel, the agreement is a Time Share Agreement. As such, it must meet the

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statutory requirements for this type of agreement. As before, these requirements are not met. The Time Share Agreement provided by Ms. Huertas lacks:

-The names of the people who solicited, negotiated and concluded the Agreement.

-A specific indication of the place where the Agreement was entered into, as required by clause 6.

-The recitations required by clause 8.

-The descriptions and details mandated by clauses 9, 10 and 11.

-A fair and accurate description of the access to be provided to the consumer with respect to discounts or benefits for the future provision of transportation, accommodation or other goods or services related to travel as required by clause 12.

-The pricing details required by clause 13, particularly as this relates to the annual fees which, per the agreement, were not collected but will be collected in the next year. -The details and amounts required by clauses 14 and 15; and

-The details regarding the terms and methods of payment of additional charges, such as the annual fee, as required by clause 18.

[231]The court accepts as true that Ms. Huertas met with an unnamed agent – then was passed to Kim who ultimately passed her to Peter – all helped to solicit and negotiate the contract, but only Peter’s name appears on the agreement (having concluded the agreement) . The agreement has a heading with address, but the body of the agreement doesn’t specify the address the place where the agreement was entered into amongst the other deficiencies stated above. As such the agreement falls short of what is required in the section 26 of the regulations which is an offence as per s. 27 of the CPA and an offence as per s. 116(2) of the CPA. The court finds that the Crown has proven beyond a reasonable doubt the count 3 as it relates to CUNS. The court finds that CUNS is guilty of the offence of improper contract and guilty of count 3 of information number 2.

Improper Contract – The liability of Wendy Thakur and Antonietta Daneluzzi

[232]While Ms. Huertas testified to her interactions with a person purported to be “Wendy” the court finds that even in the absence of such direct evidence, that the Crown has proven their case against the named defendants beyond a reasonable doubt. The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that-the agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the written agreements fell short of the requirements of s. 26 of the regulations and was non- compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of improper contract, and guilty of information number 2 count 3.

Information number 2 count 4 – Fail to Refund

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[233]The court finds that, apart from repeated requests to cancel the agreement, the

consumer request to cancel their agreement via a legal letter from the law firm of Mills and Mills dated 17 May 2006 (ex. 157). This letter was sent within one year of the consumers entering into the agreement. Since the agreement was deficient as it did not contain one or more of the required information set out in s. 26 of the regulations, the consumers were entitled to cancel their contract within one year (s. 28(2) CPA). As such sections 95 and 96 of the CPA were triggered and Ms. Huertas was entitled to a refund within 15 days of the request s. 79(1) of the regulations. Mrs. Huertas testified she never received a refund. As such, the court finds CUNS guilty of the offence of fail to refund and therefore guilty of count 4 of information number 2.

Fail to Refund – The liability of Wendy Thakur and Antonietta Daneluzzi.

[234]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the defendants aided or abetted CUNS in the offence of fail to refund by not providing a refund. That is, the Crown did not prove that i) the named defendants assisted or encouraged CUNS to not provide a refund, and ii) that the named defendants did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts).

[235]As the court has discussed above (see paras. 224 to 229), the weight to be placed on the evidence of Wendy Thakur’s purported direct involvement with the business of CUNS, the court finds that despite this evidence the court has not proven their case as it relates to fail to refund beyond a reasonable doubt as it does not assist the Crown in proving knowledge of the true facts to prove party liability beyond a reasonable doubt. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of count 4 of information number 2.

Information number 2 – Counts 5 and 6 – Nadia Urosevic

[236]The agreed statement of facts for Nadia Urosevic was filed as exhibit 376 to these proceedings.

Count 5 information 2 – Improper Contract

[237]Tab A of exhibit 376 is the two-page agreement the consumer, Nadia Urosevic, entered on 9 August 2005. The agreement provides access to the world resort club and travel gallery as well as RCI. As such, the court finds that it is a time share agreement as it was an agreement as per s.20(1)(a) of the CPA (RCI) and must comply with the requirements as outlined in s.26 of the regulations. The agreement clearly is deficient as, amongst other things, by the absence of the following information:

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-a specific indication of the place where the Agreement was entered into, as required by clause 6.

-the recitations required by clause 8.

-the descriptions and details mandated by clauses 9, 10 and 11.

-A fair and accurate description of the access to be provided to the consumer with respect to discounts or benefits for the future provision of transportation, accommodation or other goods or services related to travel as required by clause 12; and

-the details and amounts required by clauses 14 and 15.

[238]This is contrary s. 27 of the CPA and an offence as to s. 116(2) of the CPA. The court finds CUNS guilty of the offence of improper contract and therefore guilty of count 5 of information 2.

Improper contract – The liability of Wendy Thakur and Antonietta Daneluzzi

[239]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their written agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that-the agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of improper contract and guilty of count 5 of information number 2.

Count 6 – Fail to Refund

[240] In para.78, the Crown submits the following:

78.Count 6 – Fail to Refund Ms. Urosevic

As the Time Share Agreement provided by CUNS to the Urosevics fails to meet the statutory requirements for agreements of this type, the Urosevics were entitled to cancel this contract for a period of one year. Therefore, the cancellation that the Urosevics communicated to CUNS by letter on October 13, 2006 triggered operation of subsection 96(1) of the Act. As a result, CUNS was lawfully required to provide the Urosevics with a refund of the money they paid to CUNS. CUNS failed to provide this refund and thereby committed the offence of Fail to Refund contrary to subsection 116(1)(viii) of the Act.

[241]The court finds, based upon the law discussed above, that the Crown has proven beyond a reasonable doubt the offence of fail to refund. While Ms. Urosevic did not request a refund

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within 10 days, i) the agreement was deficient as discussed above , ii) section s. 28 (2) of the CPA permits 1 year to cancel where an agreement is so deficient, iii) The consumers requested a cancellation of their agreement in a letter dated 13 October 2005 (ex. 376-Tab B), and iv) CUNS acknowledged receipt of said letter in an email chain where they responded on 20 October 2005. The court finds that once a consumer requests a refund sections 95 and 96 are automatically triggered and the consumer is entitled to a refund within 15 days as per s. 79 (1) of the regulations. As consumers did not receive a refund of the money paid to CUNS this is contrary to s. 96 (1) of the CPA and an offence as per s. 116 (1)(b)(viii) of the CPA. The court finds CUNS guilty of the offence of fail to refund and guilty of count 6 of information number 2.

Fail to refund - The liability of Wendy Thakur and Antonietta Daneluzzi

[242]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the defendants aided or abetted CUNS in the offence of fail to refund by not providing a refund. That is, the Crown did not prove that i) the named defendants assisted or encouraged CUNS to not provide a refund, and ii) that the named defendants did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts). As such, the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of the offence of fail to refund and therefore not guilty of count 6 of information number 2.

Information number 2 counts 7 to 8 - Colin King and Anne Marie Martin

[243]The evidence of facts Mr. King and Mrs. Martin were received by this court via a statement of agreed facts filed and marked as exhibit 377 to these proceedings.

The purported evidence of Antonietta’s Direct involvement in the business of CUNS

[244]Upon review of the Release and Non-Disclosure Agreement (ex.377-Tab G), a signature appears above the typed name of Antonietta Daneluzzi. This court’s decision in relation to consumers Doroja (see para. 828) refrains from engaging in a signature comparison, as it could not be proven beyond a reasonable doubt that Antonietta Daneluzzi authored the signature. What is left to consider in relation to consumers King and Martin is the typed name of Antonietta Daneluzzi on the Release document with a signature that the court is unable to conclude belongs to Antonietta Daneluzzi.

[245]In relation to consumers King and Martin, there is insufficient evidence surrounding the signing of the Release (ex. 380-Tab 1 Para 16) , that is i) whether the named defendant was at CUNS at the at the time the Release was signed, ii) whether the named defendant was in the office at the time the Release was signed, iii) whether the consumer met or spoke to the named defendant on or around the time the Release was signed, and iv) whether the consumer(s) witnessed the signature being made above the name of Antonietta Daneluzzi.

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[246]Considering the evidence in relation to consumers King and Martin, at its highest, the court is left with a typed name with a signature that the court is unable to conclude belongs to Antonietta Daneluzzi. There is no context as to who signed it. The court must be cautious when dealing with circumstantial evidence.

[247]As the signature and name on the Release is one piece of evidence, the court must consider all the evidence in relation to consumers King and Martin as it relates to each count. The court finds that little weight can be placed upon this piece of evidence with regards to proving the direct involvement of Antonietta Daneluzzi with the business of CUNS to prove knowledge of the true facts. The court would have to engage in speculation to find otherwise.

Count 7 information 2 - Improper Contract

[248]The court will reference the first agreement dated September 6th, 2005 as the original agreement (ex. 377-Tab A) invoice #1909 totaling $7640.50.

[249]The second agreement is dated 6 September 2005 (ex 377-Tab F) but actually, signed on 31 October 2005 (ex. 377-Tab1 para. 11)and did not contain any services as in the original agreement but was also for 7 years and had the same invoice number. The total sum of this contract was $5508.53. The second agreement did not include the travel and resort options, nor the cruise and bonus weeks included in the original agreement. It did however include services for Real Estate Advantage Club, Auto Benefits Clubs and Premium Buyers Club.

[250]Focusing on the first agreement, the court finds this agreement (ex. 377-Tab A) is a time share agreement as per the definition found in s. 20(1)(b) of the CPA. As such, it is required to contain the information as outlined in s. 26 of the regulations. The court finds that the agreement was deficient as it did not contain, but not restricted to the following: Clauses 6, 8, and 14. This is contrary to s. 27 of the CPA and an offence as per s. 116 (2) of the CPA. As such the court finds CUNS guilty of the offence of improper contract and guilty of count 7 of information number 2.

Improper Contract - The liability of Wendy Thakur and Antonietta Daneluzzi

[251]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their written agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that-the agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of improper contract and therefore guilty of count 7 of information number 2.

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Information number 2 count 8 – Fail to refund

[252]The court finds that the consumer made the following requests to cancel that agreement i) by calling Linda Gilmore at CUNS the day after signing the agreement (ex. 377-Tab 1 para.8), and ii) by virtue of a letter dated 10 September 2005 (ex. 377-Tab E).

[253]It is clear that the consumers paid the total membership with two separate payments, both credit card receipts dated 7 September 2005 (ex. 377-Tab B). The court further finds that not only did the consumers have an unfettered right to cancel their agreement within 10 days of entering the agreement as per s. 28(1) of the CPA, but also within a year of entering into the agreement as it was deficient as per s. 28(2) of the CPA. Once the request to cancel is made it engages sections 95 and 96 of the CPA and consumers King and Martin were entitled to a full refund within 15 days of such request as per s. 79 (1) of the regulations). A partial refund is not a refund as per the intention and meaning of s. 95 ss. a and b of the CPA, as the cancellation of the agreement operates to cancel as if it never existed, a) the consumer agreement, and b) all security given by the consumer or a guarantor in respect to of money payable under the consumer agreement.

[254]As King and Martin did not receive a full refund of the money paid to CUNS this was contrary to s. 96(1) of the CPA and an offence as per s. 116 (1)(b)(viii). The court therefore finds CUNS guilty of the offence of fail to refund and guilty of count 8 of information 2.

Fail to Refund - The liability of Wendy Thakur and Antonietta Daneluzzi

[255]The court above (paras. 224 to 229), in relation to these consumers King and Martin, has considered the circumstantial evidence of the signature above the typed name (of Antonietta Daneluzzi) on the Release document. In view of the minimal weight placed upon such evidence for the reasons discussed above, the court finds that even after considering such evidence the Crown has not proven the case against Antonietta Daneluzzi beyond a reasonable doubt. That is, the evidence does not assist the Crown in meeting the threshold of proof of her direct involvement with the business of CUNS in an attempt to support that Antonietta Daneluzzi had knowledge of the true facts of failing to provide a refund.

[256]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the defendants aided or abetted CUNS in the offence of fail to refund by not providing a refund. That is, the Crown did not prove that i) the named defendants assisted or encouraged CUNS to not provide a refund, and ii) that the named defendants did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts). As such the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of the offence of fail to refund and therefore not guilty of count 8 of information number 2.

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Information number 2 counts 9 to 10 – Chaitram Ramphal and Raywattie Ramphal.

[257]Raywattie (Shanta) and Chaitram Ramphal testified on June 23rd, 2014. Raywattie Ramphal is the wife of Chaitram Ramphal.

[258]Raywattie Ramphal testified she received what she referred to as a “telemarketing” cold call prior to attending CUNS location which was an invitation to attend a presentation and an opportunity to win a prize. They attended with their two children on September 25th, 2005 and were invited to sit down. A person named Nadia came in and chatted with them and told them about the promotion. When they were about to leave Nadia told them to wait so they were polite and waited. Ms. Ramphal described an “oriental” gentleman (the court acknowledges that Ms. Ramphal means East Asian) came over and approached them but she could not recall the name. Exhibit 21 is a photocopy of page 4 of the agreement, entitled “Why I became a Member of Canadian Universal Network Solutions Inc.” and makes reference to a salesperson by the name of “William”.

[259]The consumers entered into an agreement dated 25 September 2005 (ex. 21) with an invoice # 1957, for a 3 year membership with a yearly fee of $99.00. It is for the travel gallery, world resort club, and includes the value club of real estate advantage club, auto benefits club, and the premium buyers’ club. The total of the contract is $3500.00, and the name and position of Authorized Representative is Vygantas Kasiulis – Business Manager. There is a signature above his name. Nadia is indicated as the salesperson.

[260]During cross-examination by Mr. Rahamim, Mrs. Ramphal testified her, and her husband were pressured that evening. They attempted to get up several times and every time, the CUNS representatives were saying “no, no, no” and they kept speaking. They were with their children and were tired, felt exhausted, and were there much longer than anticipated. She further testified that there was a lot of pressure despite their intention not to purchase anything which was clearly stated at the onset.

[261]Ultimately, they entered into an agreement with CUNS (exhibit 21) and paid $3500.00 using a credit card. They had to go to another area to sign the agreement and she could not recall whose signature (other than her and her husband’s) appeared on the contract. They were served a lunch but were ultimately never given a prize.

[262]After leaving CUNS, Mrs. Ramphal tried to book something to see “to find out if it’s actually accurate, what was presented to us”. They were given passcodes and went on the

CUNS website and were able to get in but ultimately decided after doing some research ( they signed up for a Caribbean cruise and that was not what they were able to obtain) they decided that they no longer wanted to proceed as they felt that what they signed up for was not what they were being offered.

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[263]They wanted to cancel and sent a letter to cancel which was not admitted into evidence. However, a letter from CUNS dated January 30th, 2006 (ex. 22), including a “Release and Non - Disclosure” document from Linda Gilmore, would support the position that a telephone call had occurred the day before. The letter was accompanied by a 3-page document entitled “Release and Non -Disclosure”, Mrs. Ramphal indicated they did not sign the Release that was attached to the letter as they wanted a refund of the money paid first. It is important to note the typed name Antonietta Daneluzzi appears on the last page of the Release and Non -Disclosure (ex. 22) identifying her as the “Authorized Signing Officer”, there is no signature.

[264]Despite communicating their desire to cancel, they received a letter from CUNs dated February 21st, 2006 entitled “RE: Canadian Universal Inc. Membership (Invoice #1902)” exhibit 23 to these proceedings. It invited them to orientation appointment that they did not attend. When cross-examined by Mr. Wright regarding the contents of the agreement and the “zero cancellation” reference under the Acknowledgement section of the first page, Mrs. Ramphal testified in all the hours she was at CUNS she did not recall the issue of no cancelation being discussed.

[265]Chaitram Ramphal also testified and confirmed much of the above testimony of his wife that they received a call he added for an Italian dinner and “talk of getting a free cruise”. They entered through the back (to the dismay of one of the employees), were placed at a table, provided dinner, and were shown a video of cruises and vacations that lasted about 20 minutes. Afterwards someone (no recollection of the names) came to their table to give them a “sales pitch” to purchase a time share. When further questioned in chief as to what he meant by the words, “time share”, Mr. Ramphal responded, “you pay a certain amount of money, I think quite a bit, and you could reserve vacations through RCI and so forth, and cruises too.”

[266]He understood RCI to be the organization or club through which you could reserve a room at a resort where you could have a “time sharing kind of thing”. The sales pitch lasted for some time but not an inordinate amount of time, and ultimately he and his wife decided that they were going to buy, signed the contract and he paid the $3500 with his credit card (ex. 25 credit card receipt inside glossy folder). Mr. Ramphal testified that Peter Tryovolas looked after the payment, (his business card is part of ex. 25, inside glossy folder).

[267]Before reaching that point, he did tell the salesperson they were not going to buy and actually got up to leave and the salesperson said to wait a moment and someone else came. The other person who came was named William and he was in this late 20s or early 30s Chinese origin and well-dressed. William wanted to ask some questions before the consumers left, and

Mr. Ramphal agreed but did not expect it to “take the turn” that it did. The questions went on for a while and turned into a very hard sales pitch. Later during cross-examination by Mr. Wright when asked whether he was prevented from reading the paragraphs he had initialed, he responded that he lost track of time and was there for at least 4 hours up to the point when they started initialing.

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[268]When he stated he couldn’t afford it, William indicated he could work out the financials to suit them and ended up significantly reducing the agreement from $15,000.00 to $3500.00.

He and his wife ultimately agreed as Mr. Ramphal testified that he was “tired and worn down” and that the price reduction was a factor as well as the possibility of a cruise leaving from Montreal which would not require a flight, as well as an option to join a club similar to Costco. In cross-examination by Mr. Rahamim he indicated that he met Linda Gilmore on that day as well as Peter whom he referred to as “the guy who took the money”. Mr. Ramphal indicated that he never attempted to use the clubs as he concluded that the company was “fake” as on paper it appeared possible but when you “put these things into practice, it really doesn’t work”.

[269]Mr. Ramphal sent a cancellation letter (exhibit 24) to CUNS, addressed to Linda Gilmore, and sent it by registered mail (confirmation dated 28 September 2005 ex. 27) adding that he

“probably” faxed it as well. Mr. Ramphal testified their contact person at CUNS was Linda

Gilmore.

[270]CUNS responded in a letter dated October 25th, 2005 (ex. 26) from Linda Gilmore making reference to a meeting with the consumers on September 26th, 2005. This meeting, Mr. Ramphal noted, they attend after sending the cancelation letter to Linda Gilmore. The invitation, he thought, was to be a discuss a refund, however, was instead another sales pitch.

[271]It was during this meeting that Linda Gilmore requested a processing fee of $499. Later, in her letter dated October 25th, 2005 (ex. 26) it increased to $990. He did not pay any processing fee to CUNS.

[272]Mr. Ramphal had attempted to retrieve his money by disputing the transaction with CUNS via MasterCard and they were going to investigate. To avoid such an investigation, Linda Gilmore suggested that if he stopped it, that they could discuss the refund. This is the conversation which occurred on January 29th, 2006 and referenced in the letter from Linda Gilmore dated January 30th, 2006 (ex. 22). This letter also included the documents for the Release and Non-Disclosure Agreement.

[273]The exact date of the meeting and the date of receipt of the letter in relation the confirmation of receipt from Canada Post (September 28th, 2005) is unclear in relation to the order of when they actually attended. This was flushed out by Mr. Wright in his cross- examination of Mr. Ramphal and it appears that on Monday September 26th 2005 he spoke to Linda Gilmore on the phone and that Linda Gilmore was mistaken when she indicated he had a “meeting” on September 26th 2005 in exhibit 26. However, it is clear that there was a communication to cancel the agreement in the letter sent to CUNS within the 10 days cooling- off period.

[274]During cross-examination by Mr. Wright, Mr. Ramphal indicated he initialed the clauses on the contract but was tired. The business manager, Vygantas Kasiulis, made a lot of promises that were not included in the contract. Mr. Ramphal asked for notes where he had written

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things down but then they refused to give him a copy of the notes. Ultimately his recollection of the agreement with CUNS was significantly different from what was written down in the agreement. The Ramphals never received a refund; the money was never returned to them.

The purported direct involvement of Antonietta Daneluzzi in the business of CUNS

[275]While the typed name Antonietta Daneluzzi appears on the last page of the Release and Non -Disclosure (ex. 22) identifying her as the “Authorized Signing Officer” there is no signature that appears on the signature line. As per the viva voce of Mr. Ramphal, this document was sent to the consumers by Linda Gilmore on behalf of CUNS. It would appear the intention was for them to sign the document to expedite resolution of the conflict.

[276]After considering this piece of circumstantial evidence, the court finds that little weight can be placed on the appearance of the name on the document as i) it bears no signature and, unlike with other consumers, ii) it was not presented when the consumers attended the CUNS location. The court finds that this evidence does little to support the position that Antonietta Daneluzzi had direct involvement in the business of CUNS, however, this is one piece of evidence to consider as it relates to the Crown’s burden to prove their case beyond a reasonable doubt as it relates to knowledge of the true facts.

Information number 2 count 9- Improper Contract

[277]The court finds as true that the consumers entered a time share agreement dated 25th day of September 2005 (ex. 21). It is a time share agreement as it is for “access to discounts or benefits for the future provision of transportation, accommodation or other goods or services related to travel” (s. 21(1)(b) of the CPA). As a time share agreement, it is required to contain information as per s. 26 of the regulations. The court further finds that the agreement is deficient in that it did not contain one or more of the requirements that is , not restricted to, clauses 6,8, and 14. This is contrary to s. 27 of the CPA and an offence as per s 116(2) of the CPA. The court finds that the Crown has proven beyond a reasonable doubt that CUNS is guilty of the offence of improper contract and therefore guilty of count 9 on information 2.

Improper Contract - The liability of Wendy Thakur and Antonietta Daneluzzi

[278]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their written agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that-the agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. Therefore, the court finds Wendy Thakur and Antonietta

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Daneluzzi guilty of the offence of improper contract and therefore guilty of count 9 of information number 2.

Information number 2 Count 10 - Fail to Refund

[279]The court finds the consumers made a request to cancel in writing via an undated letter. A Canada post receipt shows a delivery date of September 28th, 2005 sent via Canada post (ex. 24). As the consumers entered into the agreement on 25 September 2005. The court further finds that i) CUNS received the request to cancel within the 10 day cooling-off period, and ii) the consumers never received a full refund of the money paid. While CUNS responded on 25 October 2005 with a membership cancellation proposal the consumers were clearly entitled to i) their full and complete refund as per s. 28 (1) of the CPA. The court finds upon a request to cancel sections 95 and 96 of the CPA are engaged, triggering an obligation for CUNS to provide a full refund withing 15 days of the request as per s. 79(1) of the regulations. AS the consumer did not receive a full refund this is contrary to s. 96(1) of the Act and an offence as per s. 116 (1)(b)(viii).The court therefore finds CUNS guilty of the offence of fail to refund and guilty of count 10 of information number 2.

Fail to Refund - liability of Wendy Thakur and Antonietta Daneluzzi

[280]While the typed name Antonietta Daneluzzi appears on the last page of the Release and Non -Disclosure (ex. 22) identifying her as the “Authorized Signing Officer” there is no signature. As discussed above (see. Paras. 275 and 276), the court does place much weight upon this evidence towards finding that Antonietta Daneluzzi had direct involvement with the business of CUNS to the extent that it proves she had knowledge of the true facts as it relates to this count.

[281]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the defendants aided or abetted CUNS in the offence of fail to refund by not providing a refund. That is, the Crown did not prove that i) the named defendants assisted or encouraged CUNS to not provide a refund, and ii) that the named defendants did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts). The court finds Wendy Thakur and Antonietta Daneluzzi not guilty of the offence of fail to refund and therefore not guilty of count 10 of information number 2.

Information number 2 counts 11 to 13 - Khaled Khaled and Maha Ahmed.

[282]The consumers’ evidence was received in the agreed statement of facts filed and marked as exhibit 378 to these proceedings.

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Information number 2 count 11 – Improper Contract

[283]The court finds that 1) the consumers entered into a time share agreement as it is an agreement where the consumer is “ provided with access to discounts or benefits for the future provision of transportation , accommodation or other goods or services related to travel” see: s. 20(1)(b) of the CPA. The court finds that the time share agreement is deficient as it does not comply with section 26 of the regulations and particularly, but not restricted to, the following clauses, clause 6 and 8. This is contrary to s. 27 of the CPA and an offence as per s. 116(2) of the CPA. The court therefore finds CUNS guilty of improper contract and guilty of count 11 of information number 2.

Improper Contract- liability of Wendy Thakur and Antonietta Daneluzzi

[284]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that-the agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of improper contract and guilty of count 11 of information number 2.

Count 12 – Fail to Refund

[285]The consumers entered into their agreement on the 13 November 2005 (ex. 378-Tab A). The court finds that as early as the end of March 2006 Mr. Khaled attended CUNS verbally requested to cancel the agreement (ex. 378-Tab 1 para. 11). A request to cancel was also made in writing on or about 20 October 2006. (letter and Canada Post Receipt found exhibit 378- Tab D).

[286]Despite being past the 10 day cooling-off period, as the agreement was deficient, the consumers were entitled to cancel within one year as per s. 28(2) CPA. The court finds that the request to cancel engages sections 95 and 96 of the CPA which requires a cancellation of the contract and a refund within 15 days as per s. 79(1) of the regulations. The court further finds upon a request to cancel the agreement the consumers were entitled to a full refund and not a partial refund. As a full refund was not received contrary to s. 96 (1) of the CPA and an offence as per s. 116 (1)(b)(viii) and as such, the court finds CUNS guilty of the offence of fail to refund and guilty of count 12 of information 2.

Fail to Refund - liability of Wendy Thakur and Antonietta Daneluzzi

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[287]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the defendants aided or abetted CUNS in the offence of fail to refund by not providing a refund. That is, the Crown did not prove that i) the named defendants assisted or encouraged CUNS to not provide a refund, and ii) that the named defendants did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts). As such the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of the offence of fail to refund and therefore not guilty of count 12 of information number 2.

Information number 2 count 13- Unfair Practice- discounts or benefits

[288]The court finds that, by virtue of the time share agreement itself (ex. 378-Tab A) a representation was made by CUNS that the consumers would be “provided with access to discounts or benefits for the future provision of transportation , accommodation or other goods or services related to travel”, as per s. 20(1)(b) of the CPA. The court further finds Mr. Khaled attempted to utilize the membership to acquire he benefit of a discount for plane tickets to Cairo and accepts the challenges he faced attempting to obtain discount travel tickets (ex. 378- Tab 1 para. 9 and 10).

[289]The court finds that i) CUNS made representations that by virtue of membership the consumer would obtain discounts and benefits as part of their membership ii) that these representations amounted to a promise of a price advantage ( a benefit – discounts for plane tickets) that did not exist and therefore was unfair practice as per s. 14 (2) ss 1 as it was a “ A representation that the goods and services have sponsorship, approval, performance characteristics, accessories, uses , ingredients, benefits or qualities they do not have”, and iii) the representation was false , misleading or deceptive as the consumers were unable to utilize the “ discount or benefit” that was promised. The court finds this is contrary to s. 17 (1) of the CPA and an offence as per s. 116 (1)(b)(ii) of the CPA. Therefore, the court finds that CUNS is guilty of the offence of unfair practice and therefore guilty of count 13 of information number 2.

Unfair practice - liability of Wendy Thakur and Antonietta Daneluzzi

[290]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the named defendants had knowledge of the true facts, that i) CUNS having made the representation, ii) that CUNS intended to commit the offence of not honouring the representation , and iii) the Crown could not prove that the named defendants did or omitted to do something to assist CUNS in committing the offence. As such, the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of unfair practice and therefore not guilty of count 13 on information number2.

Information number 2 – counts 14 and 15 – Wilma Terlizzi

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The court the evidence of Wilma Terlizzi on 26 March 2015.

[291]Ms. Terlizzi attended CUNS after receiving a cold call from an unknown person inviting her to have a meal, win a prize (T.V. cruise, trips including one to Florida) for listening to a 90- minute presentation. The consumer was permitted to bring her son. When they attended CUNS on November 12th, 2005, she was met by a friendly receptionist, provided a meal and then ushered her into a room for a presentation. There she met a representative named Akhtar then another person named Pina.

[292]Ms. Terlizzi already owned two-time shares but was interested in selling one and hoped that it could be made part of the deal. The CUNS representatives seemed interested. It was late in the day and Ms. Terlizzi did not have the paperwork for the time share she already owned so Pina suggested she return, have another free meal and, that they would give her prize (a draw) when she returned.

Return to CUNS to enter into the agreement-November 15th, 2005

[293]The consumer eventually reattended the CUNS office without her son on November 15th, 2005. Having attend after work, she ultimately was at CUNS until after 11:30pm, having been there for five and a half hours. Ms. Terlizzi “ran into” Pina again, but Pina was busy, so Ms. Terlizzi ate her meal by herself and testified that there were less people there on the weekdays. When she finished her meal, she asked for Pina and was ushered into her office. Pina was shown the time share paperwork and they negotiated from about 6:30 p.m. to 9:00 p.m. regarding the value of her current time share. The agreement with CUNS was signed at approximately 11:00 pm. They ultimately arrived at a consensus that her time share was worth $13,000. The consumer thought perhaps she could negotiate her current time share for just the $8000 membership with CUNS instead acquiring yet another time share but was unsuccessful. The consumer had paid $ 19,000 for her time share and was hoping to get close to that however Pina’s offers were low, starting at $9,000 or $10,000 until they finally arrived at $13,000. The agreement was that Ms. Terlizzi would transfer her time share to CUNS, and pay CUNS a total of $13,993.00 for the membership.

[294]When the negotiations were over a person named Peter, the financial person, was invited into the room by Pina. Ms. Terlizzi entered into an agreement dated November 15th, 2005 (ex. 194) for a total of $13,993.00. Via discussions with Peter, the consumer ultimately paid $5000 on her credit card (exhibit 195 receipt) and wrote two postdated cheques, one in the amount of $6,500 and the other for $2493.00 (receipts for cheques exhibits 196 and 197). A total amount of $13,993.00 was paid to CUNS. Ultimately those cheques were cashed, and the Ms. Terlizzi did not receive any of her money back.

[295]After signing the agreement, at approximately 11:30 p.m. Ms. Terlizzi was led to a back room where she rolled a drum and picked out a certificate number that corresponded with a prize for a spectacular Florida getaway (exhibit 199). She did not win a television. The trip was supposed to be free. Ms. Terlizzi did utilize the free vacation to Florida as well as Mexico. The

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Florida trip, according to Mrs. Terlizzi, was not a free trip as there were “all these hidden costs”. The hidden costs were on top of the airfare which she knew was not included, however, she also had to pay i) $82.74, ii) hotel taxes ($216.95 CSD) and iii)car rental ( $217.13 USD) all of which she thought were included in the cost of the membership. The Mexico trip she took with her son also incurred hidden fees. The “free” Florida trip ultimately cost her paid over $600.00. Ultimately Ms. Terlizzi realized that she would have probably received a comparable deal or less through CAA and cheaper flights and car rental elsewhere.

[296]While in Florida Ms. Terlizzi tried to find the company “Vacation of the Future LLC” that was indicated on the flyer (exhibit 199) under the heading “reservations request form”. Ms.

Terlizzi google searched the Lakewood Ranch Blvd address in Bradenton, Florida and drove there but it was a warehouse, and nobody was there. Mrs. Terlizzi called the telephone number listed on the flyer and no one answered. The consumer understood that the Travel Gallery was more of a travel agency and not a time share as she already was owner of another time share (she owned two). When asked in chief, Ms. Terlizzi was not aware based upon the transfer of the time share as well as the money already paid, what portion of the 20-year membership was going towards the travel gallery.

[297]Mrs. Terlizzi had underlined and highlighted issues she had with the written agreement including marking i) page 2 clause 6 of the of the agreement with a pink mark where it indicated

“ no refund” , and ii) page 3 clause 3, reference being made to other documents that were part of the contract but that she had not been provided with.

November 23rd, 2005 meeting at CUNS

[298]Ms. Terlizzi again returned to CUNS on November 23rd, 2005 in order to bring in papers proving that she had paid off her time share and related dues, as well as to attend the orientation where she received the “Welcome Aboard” package. Ms. Terlizzi ultimately met with Linda Gilmore (described in testimony as a white woman), on November 23rd, 2005 who strongly suggested that she begin using her free and other travel options. Ms. Gilmore provided her with member orientation package (ex. 200). Ms. Terlizzi followed Ms. Gilmore’s advice and met with Betty Dominguez there that same day to inquire about going to Mexico which was finalized. Ms. Terlizzi thought was provided with a good deal until she contacted CAA and realized she could have had a better deal if she booked herself. During cross-examination by Mr. Wright, an email dated July 2, 2006 that Ms. Terlizzi had sent to CAA was marked as exhibit 213. Ms. Terlizzi had attempted to obtain written confirmation that CAA could have provided better flight prices than CUNS did. This confirmation was not received and while the court has turned their mind towards this exhibit, little weight is placed upon it as it is not the central nor a direct issue related to the two counts before the court.

Return to CUNS – December 14th, 2005

[299]Ms. Terlizzi contacted her time share company (the one she traded in to CUNS for credit) and provided a form (dated 14th December 2005) for Linda Gilmore to sign to commence the

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transfer. Ms. Gilmore filled in and signed the bottom portion but left the top portion blank as. Ms. Gilmore explained, that CUNS was not aware of who they were selling the time share to and that it would take 3 months to process.

[300]Eventually through her own inquiries Ms. Terlizzi determined that CUNS had obtained both of her time shares contrary to the agreement where it was only one to be “traded in “. Ms.

Terlizzi was able to correct the situation. Through these inquiries she was able to obtain (on October 28th 2006) the completely filled out “Application for Transfer Geoholiday dedicated membership assigned to FairShare Plus” (ex. 205) from the company “Fairfield Title and Ownership Department” that they had received from CUNS on October 13th, 2006. It showed that the time share had been transferred to Frank Altomare, a person listed as a real estate representative of CUNS. CUNS was expected to send the documents once the transfer was complete but never did. When Ms. Terlizzi attempted to make inquiries, she was told by Linda Gilmore that the transfer was in process. In a letter dated November 4th, 2006 (ex. 209) Linda Gilmore would finally confirm the completion of the time share membership trade.

[301]Ms. Terlizzi sent a letter (in email format) dated August 15, 2006 (exhibit 206) to Linda Gilmore via Canada post registered mail (confirmation exhibit 207) requesting to cancel and or terminate her membership contract. In August 2006, the same month the letter was sent, Ms. Terlizzi had already filed a complaint with the Better Business Bureau.

Final meeting at CUNS with Linda Gilmore August 23rd, 2006

[302]When Ms. Terlizzi met with Linda Gilmore at CUNS after sending the request to cancel the agreement. Ms. Gilmore was adamant that the Ms. Terlizzi would not receive a refund and seemed upset that the Better Business Bureau and Consumer Protection had been contacted and she wanted Ms. Terlizzi to “quench that”. Ms. Terlizzi insisted that she wanted to cancel her membership and that she wanted her money back.

[303]A Further request for a refund was made in mid-October 2006 by Ms. Terlizzi to Linda Gilmore via telephone. Ms. Terlizzi was still hopeful that it would be granted but it was not as she never received any money back from CUNS and ultimately could not access her membership and the website sometime in December 2006. During cross-examination by Mr.

Wright it was the same day she met with investigator Charles that she determined she couldn’t access the CUNS website. Ms. Terlizzi also realized at this time CUNS telephone number had changed. In January 2007 or 2008, Ms. Terlizzi testified that she drove by the Orlando drive location there was no signage and no cars in the lot. During cross-examination by Mr. Wright,

Ms. Terlizzi agreed that at the time she last tried to access the website she didn’t have an interest in using the website to access the services of CUNS. This is of little or no weight in these proceedings in relation to the counts as charged.

[304]There were some questions posed to Ms. Terlizzi by Mr. Wright regarding the amounts paid in “hidden fees” and entries on her credit cards. The court has turned their mind to the evidence however it has little weight with respect to the counts as charged.

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Count 14 – Improper Contract

[305]The court finds that i) Ms. Terlizzi entered into an agreement dated November 15th, 2005 (ex.194), ii) that this agreement was a time share agreement as it met the definition found in s. 20 (1) (b) of the CPA, and iii) as a time share agreement it must contain the necessary information as required by s. 26 of the regulations. The court further finds that the agreement was deficient in that it did not include, but not restricted to, the following information, clause 6, clause 8 and 14. The court further finds that the information noted under “ADDITIONAL

TERMS AND CONDITIONS” referring to the time share “trade in”, was insufficient and there were no details of extra fees or “hidden costs” that the consumer ultimately Incurred upon traveling.

[306]As the agreement was deficient this is contrary to s. 27 of the CPA and an offence as per s. 116 (2) of the CPA. The court finds CUNS guilty of the offence of improper contract and therefore guilty of count 14 of information number 2.

Improper Contract – the liability of Wendy Thakur and Antonietta Daneluzzi

[307]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that-the agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of improper contract and guilty of count 14 of information number 2.

Count 15 information 2 – Fail to Refund

[308]The court finds that Ms. Terlizzi made the following requests to cancel the agreement i) letter (in email format) dated 15 August 2006 ( ex. 206) to Linda Gilmore via Canada Post registered mail ( confirmation ex. 207), ii) verbally on 23 August, 2006 When Ms. Terlizzi met with Linda Gilmore at CUNS after sending the request to cancel the agreement, and iii) mid- October 2006 by Ms. Terlizzi to Linda Gilmore via telephone. As the agreement entered with CUNS was deficient Ms. Terlizzi had a right to cancel within one year as per s. 28 (2) of the CPA. Upon a request to cancel sections 95 and 96 of the CPA are engaged and the consumer has a right to a refund within 15 days as per s. 79(1) of the regulations. The court further finds that Ms. Terlizzi did not receive a refund of the $13,993.00 that she paid CUNS. To add, despite using some of her services the court further finds that Ms. Terlizzi was entitled to a full refund as the CPA does not exempt a supplier from providing a full refund under these circumstances. It is clear from the evidence that CUNS made no attempt at all to, at a minimum, provide any

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part of a refund to Ms. Terlizzi. This is contrary to s. 96(1) of the CPA and an offence as per s. 116 (1)(b)(viii), therefore the court finds CUNS is guilty of the offence of fail to refund and as such guilty of count 15 of information number 2.

Fail to refund - the liability of Wendy Thakur and Antonietta Daneluzzi

[309]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the defendants aided or abetted CUNS in the offence of fail to refund by not providing. That is, the Crown did not prove that i) the named defendants assisted or encouraged CUNS to not provide a refund, and ii) that the named defendants did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts). As such the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of the offence of fail to refund and therefore not guilty of count 15 of information number 2.

Information number 2 counts 16, to 18 – Tom Rathbone and Naomie Estreicher

[310]Ms. Estreicher testified before the court on 1 October 2015.

[311]Ms. Estreicher entered into the contract with her boyfriend at the time, Thomas Rathbone, on 2 December 2005 (exhibit 364). The membership agreement was signed by both the consumers, as well as a signature appearing below the “authorized representative” whose name is typed as Linda Gilmore Business Office.

[312]The court heard only from Ms. Estreicher who testified having received a cold call from a woman to attend CUNS for a chance to win a prize and a free dinner. Ms. Estreicher attended with her boyfriend, and arrived at approximately 8:00 pm, leaving the following morning

“exhausted” and “physically and emotionally drained”.

[313]When they arrived at an industrial building they were greeted by a receptionist (name not recalled) who directed them to a room with food and tables where they sat down amongst mainly couples that were there. A representative named Sujata sat down with them. They moved to another room where there was a presentation on a big video screen.

[314]People started speaking about the offerings and one was financial offering of receiving loans at a reduced rate. Ms. Estreicher that very evening discovered that Mr. Rathbone had a significant amount of debt which made the loan offering interesting to the consumers. CUNS indicated the consolidated loan could include the cost of the membership, so that any money that was fronted would be returned to Ms. Estreicher within about a month or so. Ms.

Estreicher understood this to mean that i) the money she would put on her credit cards for a membership fee would be added into Tom’s debt ii) would be consolidated into a loan that

CUNS would help put together, and iii) that she would get the money placed on the credit

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cards right back within a month or two. During these discussions CUNS staff would leave the room and return or indicate they would have to have a conversation then return. Ultimately, they indicated that the loan and membership scenario as stated above was agreeable. There were two people in the room with them. Ms. Estreicher understood that “we’d be receiving membership to the Canadian Universal Network and that that would provide us with, you know, savings on travel, savings on electronics, and the most important thing was this loan”. The consolidated load would have a number of fees attached to it and CUNS promised to cover half of those fees.

[315]Ms. Estreicher maxed out her Master Card credit card paying $4476.78 at 1:55a.m. December 2nd, 2005 and was provided a credit card printout (ex. 365). An attempt was made to add the remainder of the fee at this time (2:32 a.m.) but the $8518.22 transaction was not approved (failed transaction ex. 366). The next day Ms. Estreicher returned with her American Express credit card (ex. 367) to pay the balance of $8518.22. This was at 12:46 p.m. Ms. Estreicher also received handwritten receipt for the amount (exhibit 368) written out for them by Linda Gilmore. Ms. Estreicher was the co- signor and paid the money to join the membership. To be clear, the court finds that on page one of the agreement, that both consumers names appear as member/co member information and is signed by both consumers, Ms. Estreicher as a co-signer.

[316]It was conceded by counsel for the named defendants that “at the end of the day, Mr. Rathbone did not get a loan from Canadian Universal.” Ms. Estreicher wrote CUNS to cancel the membership in a letter dated November 10th, 2006 and marked as exhibit 370. Counsel for the named defendants conceded that the letter requesting cancellation was delivered and that the letter be admitted for that purpose and not for the factual assertions made within. While Mr. Rathbone paid Ms. Estreicher back “slowly over time” based upon the promissory note, she testified never having received any refund from CUNS nor any funds from anyone associated with CUNS.

Count 16 Information number 2 - Improper Contract

[317]The court finds that i) Ms. Estreicher entered into the agreement with her then boyfriend Thomas Rathbone on 2 December 2005 (ex. 364), ii) the agreement was a time share agreement, and iii) as a time share agreement it was required to contain information as per s. 26 of the regulations. The court further finds that the agreement was deficient in several ways including, but not restricted to, the absence of the required information in clauses 6, 8, 9 and

14 of s. 26 of the regulations. In fact, when asked in chief how much of the membership price went to the travel gallery, Ms. Estreicher responded “I don’t think- they’ve they separated that our for us. Like in terms of percentage, what goes to what”.

[318]The court has turned its mind towards the defence argument that somehow it was really Mr. Rathbone that was part of the contract with CUNS. The court finds that since Ms. Estreicher was co-signor to the agreement on behalf of Mr. Rathbone and paid the membership fees that she clearly is a consumer ( as per s. 1 of the CPA) and as such was also entitled to the

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protections of the CPA. The deficiencies are contrary to s. 27 of the CPA and thus an offence as per s. 116 (2) of the CPA. As such, the court finds CUNS guilty of the offence of improper contract and therefore guilty of count 16 of information number 2.

Improper Contract - The liability of Wendy Thakur and Antonietta Daneluzzi

[319]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their written agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that-the agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. As such, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of improper contract and therefore guilty of count 16 of information number 2.

Count 17 information number 2 – Fail to Refund

[320]The court finds that Ms. Estreicher requested a refund i) in writing in a letter dated November 10th, 2006 and marked as exhibit 370. As the agreement was deficient Ms. Estreicher had a year to cancel the agreement (s. 28 (2) CPA). Upon the request to cancel sections 95 and 96 of the CPA are engaged and requiring a refund within 15 days as per s. 79(1) of the regulations. The court further finds that Ms. Estreicher never received a refund from CUNS or anyone associated with CUNS. This is an offence as per s. 96 (1) of the CPA and an offence as per s. 116(1)(b)(viii) of the CPA.

[321]The court has considered the promissory note (exhibit 369) entered into between

Mr. Rathbone and Ms. Naomi Rae Estreicher drafted by Ms. Estreicher and signed by both parties at the CUNS office. The court finds the promissory note does not have any bearing upon offence before the court, neither does the fact that Mr. Rathbone reimbursed (in total) Ms. Estreicher over a period of time. It is the supplier that must refund the consumer and the obligations lye with the supplier as per the CPA.

[322]The court has turned its mind to the fact that, while in cross-examination by Mr. Wright, it was rightfully pointed out that there was no guarantee or promise of a loan. However, the court finds that money was paid as part of the agreement and that the consumer had a right to a refund of the money once there was a request to cancel. As well s. 95 of the CPA seeks to place the consumer in the position that they were before entering the agreement as it provides for all related agreements, monies paid, and security given to be cancelled. The promissory note was a personal one between the two consumers and therefore not subject to the CPA.

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[323]The court therefore finds that CUNS is guilty of the offence of fail to refund and guilty of count 17 of information number 2.

Fail to Refund - The liability of Wendy Thakur and Antonietta Daneluzzi

[324]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the defendants aided or abetted CUNS in the offence of fail to refund. That is, the Crown did not prove that i) the named defendants assisted or encouraged CUNS to not provide a refund, and ii) that the named defendants did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts). As such, the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of the offence of fail to refund and therefore not guilty of count 17 of information number 2.

Count 18 information number 2 – Unfair Practice – access to discounts and benefits

[325]The court finds that, by virtue of the agreement itself (2 December 2005 (exhibit 364), a time share agreement, that a representation was made by CUNS that the consumers would be “ provided with access to discounts or benefits for the future provision of transportation , accommodation or other goods or services related to travel”, as per s. 20(1)(b). To clarify, the court does not restrict a representation to a specific utterance or direct and clear representation. A representation can also be supported by the atmosphere, context and suggestions of the supplier which would lead the consumer to reasonably conclude that, as in this case, that the representation would be honoured. Furthermore, the offence of unfair practice is not restricted to the enumerated clauses of s. 14(2). The court finds that a false, misleading or deceptive representation can be a representation that certain services and savings will be enjoyed by the consumer, particularly to induce them into entering into the paid membership, and then not fulfilling the representation by not providing the services and/or savings as promised. The court finds that the facts of the representations made best fit s. 14 (2) ss 1 of the CPA as it was a “ A representation that the goods and services have sponsorship , approval, performance characteristics, accessories, uses , ingredients, benefits or qualities they do not have”.

[326]The court finds that the following representations, regarding the services and savings of CUNS, were made to the consumers i) by the appealing to the particular need of the consumer ( the debt of Mr. Rathbone), CUNS representatives lead Ms. Estreicher to enter into the agreement with the understanding that approval of the loan would not be an issue, ii) that the loan would be provided at a reduced rate, iii) the representation of providing the loan was deceitful and also bundled together with other aspects of the agreement, iv) the verbal representations and the negotiation tactics of entering in and out of the room provided an air of legitimacy that the issue of loan approval was being flushed out and discussed and, iv) Ms. Estreicher was lead to believe that loan and membership scenario as stated above was agreeable.

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[327]If an offer to provide a loan for the purposes of consolidating the debt of Mr. Rathbone while at the same time incorporating the fees that were paid by Ms. Estreicher had not been made, would the consumers have entered into that agreement? Likely not. It is important to note as well, that from examining the agreement it clear that nowhere does it appear that a loan was part of the agreement, albeit a brief reference to “ 50 % Total of consolidation fees to be paid by CU” under the “Additional Terms and Conditions” section of the agreement. This demonstrates the importance of advising consumers in writing of what they are entering into, as opposed to making verbal representations. The supplier should not and cannot be permitted to rely nor benefit from the fact that they were not fulsome with written information to the consumer, that is, were false, misleading or deceptive.

[328]The court finds that the result of the representations made that i) a loan at a reduced rate was available and ii) this loan was forthcoming and had approval, the court accepts Ms.

Estreicher‘s testimony as true, that she was comfortable that the approval of the loan at a discounted rate ( as a benefit of joining CUNS) was a formality, to the extent that she placed the entire amount of the membership fee on her credit cards with the expectation that it would be paid off in a month or two. However, CUNS did not provide the service and/or benefit they represented they would.

[329]The defence raised the issue that when applying for a loan, there is no guarantee that the loan will be approved. The nature of the representation is best explained by virtue of Ms. Estreicher’s testimony in cross-examination by Mr. Wright:

“…this was a very serious problem and he was being offered help. So, I felt compelled emotionally to see whatever I could do to be of service to help him get through this. So, I mean I feel that they took that opportunity, the debt that he was in, and pressured us into a contract that wasn’t suitable. I mean they could have -obviously they could not promise that this consolidated loan was going to go through, but they certainly made it appear that way. They certainly made it seem like that’s the way it was going to happened, so much so that even in the contract it says that 50 per cent of the fees would be covered.”

[330]As the court finds the representations amounted to unfair practice contrary to s. 17 (1) of the CPA, as the representations were false misleading or deceptive, they were an offence as per s. 116 (1)(b)(ii) of the CPA. As such the court finds CUNS guilty of the offence of unfair practice and guilty of count 18 of information number 2.

Unfair Practice - The liability of Wendy Thakur and Antonietta Daneluzzi

[331]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the named defendants had knowledge of the true facts, that i) CUNS having made the representation, ii) that CUNS intended to commit the offence of not honouring the representation , and iii) the Crown could

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not prove that the named defendants did or omitted to do something to assist CUNS in committing the offence. The court finds Wendy Thakur and Antonietta Daneluzzi not guilty of unfair practice and therefore not guilty of count 18 on information number 2.

Information number 2-Counts 19 and 20 – Abdirizak Husein.

[332]The testimony of Mr. Husein was heard on 18th September 2014.

[333]Mr. Husein received a cold call in November 2005, to attend CUNS as he had an opportunity to win one of four prizes ($5000,42 inch TV, two trips including one to Florida). He did not have to buy anything and all he had to do was attend for 90 minutes.

[334]Mr. Husein attended the Orlando drive location of CUNS alone, on Saturday 3 December

2005 the appointment was at 3:00 pm but he arrived almost half an hour early. He was welcomed by reception and while there he noticed many vacation photos down the corridors as he made his way to the hall. Mr. Husein testified that it looked like a real business however, in hindsight however, Mr. Husein testified that he considered this as an intention to mislead people.

[335]He went into a hall where there were 20 to 30 people mainly couples. There he met a lady who gave a presentation where a video played. A woman referred to the attendees as “all winners” and said they could all become members of the organization and save money with mortgages, cars, buying furniture and discounts. The vacations pictures where all over the place in the hall as well.

[336]After the presentation the attendees were separated and offered food and non-alcoholic drinks. A male staff member whom he described as Pakistani spoke about the advantages of being a member (saving percentages on mortgages, acquiring loans, buying furniture) that everything he needed he could get a discount. Mr. Husein indicated he was only interested in the mortgage. Mr. Husein was offered a 15 year term for $17,000 or something to that respect which he indicated that he didn’t like. He and the representative “argued back and forth”.

[337]The first and second person that spoke to Mr. Husein switched spots and the first person went to speak to someone else. The second person was an Indian person with a Caribbean accent. The paper the first person was writing on was left on the desk and the second person started to write on a piece of paper what was being discussed with person # 2. The second person offered a new deal of 3 years contract. Mr. Husein testified that he was skeptical but indulged the representatives as he believed that he still had the opportunity to win a prize. The salesperson narrowed in on the mortgage issues as he realized it interested Mr. Husein and referred him to his “boss”. Mr. Husein was then taken to a small office and introduced to Hani

(Hani Diab as per exhibit 93, a business card bearing the full name).

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[338]Hani was a “Middle Eastern guy” who indicated he was from either Egypt or Lebanon and made a point of mentioning that he is from “that area” as Mr. Husein is from Somalia. Mr. Hani focused in on the mortgage issue (as he was aware Mr. Husein was interested), and convinced Mr. Husein that he was on his side as Hani emphasized his connections to Somali culture and language. Mr. Husein found Hani to be a very cool and convincing guy. At this point in time it was almost 7:00 p.m. and Mr. Husein was tired. Mr. Husein was not sure that he was going to sign but was convinced he would save a percentage on his mortgage. The amount of the membership made sense that he would be saving money.

[339]Mr. Husein was also influenced by the cultural connection with Hani and ultimately signed the agreement (ex. 87), entered into a 3-year agreement and paid CUNS $2995.00 through his Visa (transaction slip exhibit 88). The agreement was for the VIP membership which included the Travel Gallery, World Resort and Value Club which included: real estate advantage club, auto benefits clubs, and premium buyers club. Under the heading “Additional terms and conditions” it stated that: “CU guarantee less than 5.9 % interest rate by 1 % O.A.C. CU pays Max 500 Cnd towards Penalties on refinance Mortgage one time only and member will pay the difference”. The payment was put though at 21:10 hours, and Mr. Husein had arrived at CUNS at about 2:30 p.m. for the 3:00 p.m. presentation. Mr. Hani indicated they had a mortgage office at the location and that once they were finished that he would receive an introduction to the mortgage guy which did not occur. In cross-examination by Mr., Wright, Mr. Husein testified that despite what was written on the agreement regarding, “CU guarantee less than

5.9 interest rate” that his expectation that there was a mortgage office at the location and he would address the mortgage issue right away. Ultimately, they never took him to that office.

[340]Mr. Husein testified “That’s why, that’s why I exhausted. I was like prisoner over there”. In cross-examination by Mr. Rahamim, he stated that “ well nobody forcing me to stay there, but I staying there because I was expecting to get something and I didn’t want to leave without that , you know…without the prize”. Mr. Husein also was provided with a black bag with the

CUNS logo and also signed a form entitled “Additional Members” (ex. 90), a membership card (ex. 92), and also signed an authorization for automatic debits to be taken from his credit card (ex. 91).

[341]After Mr. Husein signed all the documents he was led to the entryway where a lady

showed him a container. He placed his hand inside to draw and see if he had won anything. He didn’t win anything. He was the last person walking out of the location at approximately 9:30 p.m. Mr. Husein testified that by the time he had left that evening that he had decided to cancel the agreement.

[342]Mr. Husein called Visa the Monday morning after (December 5th, 2005) he had signed the contract but was advised the money was already withdrawn the same night. He then called CUNS and reception referred him to Linda. He testified that he told Linda that he wanted to

cancel and she set up an appointment with Hani afterwork at 2:00 pm. Mr. Husein met again with Hani and spent an hour and a half trying to get out of the agreement while Hani tried to convince him to stay in. Mr. Husein insisted that he wanted to cancel, and Hani indicated he

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would contact him soon. Hani arranged an appointment and Mr. Husein met with Hani on December 15th, 2005. Hani claimed he had called and sent an email to Mr. Husein. Mr. Husein in response asked Hani if he was telling the truth. Hani then offered Mr. Husein a discount to deduct approximately $900 from the agreement and return the rest of the amount. Mr. Husein refused the partial refund and mentioned that I had a right to cancel the contract within 10 days. Mr. Husein conveyed his request to cancel the agreement in an email chain dated December 6th, 2005 where Lina responded that Hani would be contacting Mr. Husein soon regarding his request (ex. 94). Mr. Hussein sent a cancellation letter via Canada Post. He indicated that he checked the tracking and believed that CUNS received it. While a copy of the letter was not tendered into evidence the Canada Post receipt dated December 8th, 2005 was marked as exhibit 95. Mr. Diab responded with a letter refusing to cancel the agreement in a letter dated January 19th, 2006 and marked as exhibit 96. CUNS offered a partial refund and a reduction of years of membership. Mr. Husein never received any part of his $2995 back from CUNS.

Count 19 Information number 2 – Improper Contract

[343] The court finds that i) the agreement entered into an agreement dated 3 December 2005 (ex. 87), ii) that it was a time share agreement as defined by section 20(1) (b) of the CPA, and iii) as a time share agreement it is required to contain information as per s. 26 of the regulations. The court further finds that the agreement did not contain, but not restricted to, the following information: clauses: 6, 8,12 and 14. This is contrary to s. 27 of the CPA and an offence as per s. 116 (2) of the CPA. As such the court finds CUNS guilty of the offence of improper contract and guilty of count 19 of information number two.

Improper Contract - The liability of Wendy Thakur and Antonietta Daneluzzi.

[344]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their written agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that-the agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of improper contract and guilty of count 19 of information number 2.

Count 20 Information number 2 – Fail to Refund

[345]The court finds that Mr. Husein made the following attempts to cancel the agreement i) verbally by calling CUNS on 5 December 2005 an speaking to Linda Gilmore, ii) by attending CUNS later that same day and meeting with Hani, iii) during another meeting with Hani on 15

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December 2005, iv) via email dated December 6th 2005 where Linda responded that Hani would be contacting Mr. Husein soon regarding his request ( exhibit 94) and via a registered letter Canada Post receipt dated December 8th 2005 ( ex. 95).

[346]The court finds as Mr. Husein entered into the agreement on 3 December 2005, he was well within the 10 day cooling-off period and had a right to cancel and a refund as per s. 28(1) of the CPA when he requested to cancel the first two attempts to cancel. In any event, as the agreement was deficient Mr. Husein had a right to cancel the time share agreement within a year of entering said agreement as per s. 28 (2) of the CPA. Once there was a request to cancel sections 95 and 96 of the CPA were engaged and the court further finds that Mr. Husein was entitled to a full refund within 15 days of the request as per s. 79 (1) of the regulations. A refund is not a partial refund. Instead CUNS refused the request and attempted to renegotiate. As the court further finds that Mr. Husein did not receive a refund this is contrary to s. 96(1) of the CPA and an offence as per s. 116 (1)(b)(viii) of the CPA and the court finds CUNS guilty of the offence of fail to refund and therefore guilty of count 20 on information number two.

Fail to Refund – The liability of Wendy Thakur and Antonietta Daneluzzi.

[347]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the defendants aided or abetted CUNS in the offence of fail to refund. That is, the Crown did not prove that i) the named defendants assisted or encouraged CUNS to not provide a refund, and ii) that the named defendants did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts). As such, the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of the offence of fail to refund and therefore not guilty of count 20 of information number two.

Information number 2- Counts 21 to 23 – Mario Manserra

[348]Mr. Manserra was contacted via several cold calls around December 4th, 2005 from CUNS.

These calls suggested that he had been a ‘lucky recipient of a prize” and that he could collect said prize, after a 5 to 10-minute presentation, by attending their offices. The prizes promised ranged from a television to $5000 in cash. Ultimately no prize was ever received.

[349]Mr. Manserra (alone) attend an Orlando Street location on December 4th, 2005. He walked into a lobby with a huge display of a globe that was flattened out. He checked in the receptionist, showed identification, and was escorted back into a lunch area to wait for the presentation. There he met a person named Rob Di Biasi who worked for CUNS. Mr. Di Biasi first engaged in small talk, a general conversation.

[350]The presentation room was down a hallway and was conducted by a lady named Pina. Pina spoke for 10 minutes about the various aspects of the business, what it could do for him in providing opportunities for travel, for purchase of items and many areas where he could save

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money. After the presentation a 15-minute video was shown, essentially outlining what was in what was contained in the presentation - how CUNS could help save money when purchasing items like vehicles, televisions, and other items. Mr. Manserra was interested in the auto savings and was led to believe by these presentations he could ultimately save up to $4000 on the purchase of a car.

[351]Mr. Manserra returned to the lunchroom where loud music was playing. Mr. Manserra had pasta while Mr. Di Biasi sat down with him again and engaged in general conversation. Mr. Manserra was asked to proceed into a smaller quieter area (little private room) and asked to fill out a survey about the areas of interest with CUNS. Mr. Di Biasi conducted the hour-long survey and Mr. Manserra indicated he was interested in travelling and purchasing a car.

[352]During the survey, various people stopped by to say hello, shake hands and introduce themselves. Pina was one of these people. Pina entered engaged in a sales presentation to Mr. Manserra advising of the terms of purchase for 25 years (approximately $25,000), 15 years, down to 5 years. Pina elaborated about the long-term benefits of membership including purchasing a car, going on vacations and taking advantage of the company’s benefits. The cost for membership generally seemed to be about $1000 per year and upwards depending on the number of years.

[353]At one point in time Mr. Manserra met the manager of business accounts George Markus who was in the same room at the same time as Pina. Other managers were there as well when Mr. Manserra finally agreed to sign and was met with congratulatory handshakes. Before signing, Mr. Manserra asked for clarification about how much he could expect to save on the purchase of a car. Mr. Manserra indicated “if you give me the quote and it’s accurate, I’ll buy a membership, no question about it”. Mr. Manserra testified that before he signed the agreement, he was advised he could save up to $4000 however they would not condense this representation in writing. Mr. Manserra pressed for a quote and was ultimately told he could not be provided with a quote as the manager in the auto division was not in on Sundays and it would have to wait until Monday. Mr. Manserra testified that he was made a clear promise that he could save a minimum of $1000 on a car purchase which ultimately lead to him signing the contract. All present (George, Pina, Rob Di Biasi and business manager Peter Tyrovolas) assured Mr. Manserra that that if they could not honour the $1000 off that he would be granted a refund. At Mr. Manserra’ s request the agreement contained, amongst other notations, the following text under the Additional Terms and Conditions: “Canadian Universal guarantees to save minimum of $1000 on purchase of 2006 Acura”.

[354]Mr. Manserra eventually signed a 5 year contract (exhibit 299 ) and made two transactions by Visa that night – the first for $500 at 20:36 hours ( Mr. Manserra was advised this amount was the five years annual fees paid up front), and the second for $5988.79 at 22:21 hours (both marked as exhibit 300). At this time, he had been at CUNS for four and a half hours total, he was tired and wanted to leave. He signed up for the VIP MEMBERSHIP with a yearly fee of $99, travel gallery and world resort. He understood both to be an opportunity to go on different trips with groups. He also signed for the VALUE CLUB: Real estate advantage,

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auto benefits club and premium buyers club (to purchase large T.V., stereos). He was not advised of what the individual costs of the memberships were.

[355]Present when he signed the contract was someone by the name of Peter Tyrovolas who was dealing with the accounting part. Mr. Manserra noticed the agreement didn’t mention anything about being refunded his money if CUNS could not provide him the savings as promised. Mr. Manserra testified he was led to believe he could rely upon the handshake and the honesty of the persons he was dealing with.

[356]As Mr. Manserra left CUNS he was reminded about his “gift” which was reference to the prize. He was led down a hall towards the exit and ultimately realized that, contrary to the cold call, he was not able to choose his prize but was to draw a piece of paper out of a bowl. Mr.

Manserra was “disgusted “and walked out of the location.

[357]The next day Mr. Manserra contacted the manager of auto division named Frank at CUNS who referred to a person named “AJ”. AJ was an actual dealer at an auto dealership (Mississauga /Brampton area) provided him with a quote of $42,670 to purchase an Acura TL2000 and subsequently a quote to lease ($626 per month) was obtained by Mr. Manserra through CUNS. To determine if the quote was a good one Mr. Manserra contacted Terrace Gate dealership at his own initiative and was provided was provided with a quote to purchase $41,220 (marked as exhibit 303) and a quote to lease ($447.79 per month marked as exhibit 304). Mr. Manserra testified that, the quote to purchase was clearly better than the one offered to Mr. Manserra by CUNS.

Price Quotes to purchase and lease

[358]As it relates to the quote to lease (ex. 304), there was some discussion with respect to its admissibility. Mr. Manserra testified that handwriting that appears, and the price of “613.56” were written by Jeff Wang a salesman from Terrace Gate Motorcar. There was handwriting that didn’t seem consistent with Mr. Manserra’s testimony – the court’s ruling made it clear that the document was relevant as it supported that the quote lease payment per month that was quoted by CUNS was greater than the quote Mr. Manserra received on his own form Terrace Gate Motorcar. However – the court acknowledges that there were some discrepancies in Mr. Manserra’s testimony regarding the document in terms of what comprised the total quote of $613.56. Furthermore, when asked in chief whether or not he saved any money with CUNS help he responded, “no.” When he was asked in chief whether he saved money on a car with Canadian Universal at all, Mr. Manserra indicated “No.” In fact, I could have done better without them”. Ultimately it was clear from Mr. Manserra’s testimony that he did use CUNS to lease a vehicle as he received an offer that was acceptable regarding the purchase of the vehicle. Mr. Manserra testified that, when confronting CUNS with his independent quotes, the

issue was re-negotiated. CUNS offered him a rebate of $800 for his vehicle and a reduction of $26.00 in his lease payment. Mr. Manserra testified in cross-examination that “it was the $800 plus $13.56 per month off. You add that all up, it’s, I guess it’s over $1000”.

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[359]During cross-examination by Mr. Wright, the following exchange occurred:

Q:…You’re content that at the end of the day, plus or minus a few cents, you saved $1000. I think you just said maybe or even saved more than $1000.

A:Yeah, that’s not the point. The point is I got at least $1000, if not more, on the original amount of money. This was after several offers, which I’m not interested in the several offers.

[360]Mr. Manserra ultimately agreed that despite other issues with CUNS, that CUNS ultimately complied with saving him a minimum of $1000.

[361]After receiving the quotes Mr. Manserra called George Markus who invited him back to CUNS to meet with himself as well as Peter Tyrovolas on Wednesday December 7th, 2005. At that meeting Mr. Manserra showed them the quotes and advised that since CUNS he obtained a lower quote on his own and that they could not uphold their agreement and save him $1000 on the purchase of the car. George reacted in disbelief and asked for 48 hours to “investigate”.

Mr. Manserra was not agreeable to 48 hours and requested that CUNS honour the representation they made to him that they would refund the money if they could not provide a car for $1000 less. Mr. Markus provided a letter dated December 7th, 2005 (ex. 302) confirming he had 24 hours to investigate the quotes to reach a resolution however did not put the promise to refund in the letter. Mr. Manserra testified he declared “I want my money back… and I said that 100 times, I want a refund” as he was promised. Mr. Markus offered to write a $1000 cheque which Mr. Manserra refused and requested a refund and was refused by Mr. Markus and offered again to write a $1000 cheque.

[362]Mr. Manserra testified clearly that he did not receive a call from Mr. Markus within the next 24 hours and on December 8th, 9th, 10th, 11th, 12th 2005 he called the office several times leaving numerous messages that he wanted to speak to him and that he had promised to call back. Mr. Manserra drafted and sent a handwritten letter dated Saturday December 10th 2005 to George Markus and CUNS requesting , amongst other things, a full refund of his membership fees and a termination of the membership contract ( exhibit 305) confirmed by the Canada Post registered mail receipt dated December 12th 2005 ( exhibit 306).

[363]Mr. Markus eventually returned his call on the 13th or 14th of December – a Monday, Mr. Manserra was not sure of the exact date. Mr. Markus wanted to meet so Mr. Manserra once again attended the CUNS office where he was proposed with a counter-offer which Mr. Manserra refused and again requested a refund which was denied. Mr. Markus brought in an older person named Hani who was a manager at CUNS who also proposed a counteroffer, offered to buy him dinner and asked for 48 hours. Mr. Markus had left the room but returned and again denied Mr. Manserra’s request for a refund. Mr. Manserra left the building and Hani contacted him within 24 hours to return to the CUNS office which Mr. Manserra agreed to, with the condition that there would be no further discussions with Mr. Markus.

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[364]Mr. Manserra met with Hani who offered again, to pay Mr. Manserra $1000 which Mr. Manserra refused. Mr. Manserra again requested a refund. In a letter written to Mr. Manserra from George Markus dated December 16th, 2005 exhibit 307 to these proceedings. The letter confirmed the purchase of a 2006 Acura TL for $600 per month over lease 48 months and $900 cash on delivery which includes the first monthly payment … and that Mr. Manserra would receive a cheque for $800 as a rebate for his vehicle with no further fees. Mr. Manserra eventually did lease a car using the services of CUNS as he was satisfied with what they had offered after pursuing them for about a month. The rebate cheque cashed and cleared. I accept Mr. Manserra’s testimony as true that despite requesting for a refund on numerous occasions verbally and in writing, Mr. Manserra testified that he never received a refund.

Count 21 information number 2 – Improper Contract

[365]The court finds that i) Mr. Manserra entered into an agreement (ex. 299) , ii) it was a time share agreement as per s. 20 (1)(b) of the CPA, and iii) the agreement did not contain the information required as per s. 26 of the regulations including, but not restricted to the following: clauses 6, 8, 9 and 10. This is contrary to s. 27 of the CPA and an offence as per s.

116 (2) of the CPA. As such the court find CUNS guilty of the offence of improper contract and therefore guilty of count 21 of information number 2.

Improper Contract – The liability of Wendy Thakur and Antonietta Daneluzzi

[366]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their written agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that-the agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of improper contract and therefore guilty of count 21 of information number 2.

Count 22 information number two – Fail to Refund

[367]The court finds that Mr. Manserra requested a refund numerous times including i) during the 7 December 2007 meeting at CUNS, ii) by sending a handwritten letter dated Saturday December 10th 2005 to addressed to George Markus and CUNS ( exhibit 305) confirmed by the Canada Post registered mail receipt dated December 12th 2005 ( exhibit 306), iii) verbally over the telephone to Mr. Markus on either the 13th or 14th of December2005, iv) during his meeting with Mr. Hani.

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[368]Despite requesting his money to be refunded well within the 10 day cooling-off period Mr. Manserra was not provided with the refund he had a right to as per s. 28 (1) of the CPA. He requested a refund “many times” and indicated in his testimony that if he had said he asked

100 times that would be underestimating. This was done verbally and in writing as indicated above. Mr. Manserra had an unrestricted right to a refund during the 10 day period and up to a year as the time share agreement was deficient (s. 28 (2) of the CPA). Once this request was made, sections 95 and 96 of the CPA were engaged and Mr. Manserra was entitled to receive his refund within 15 days as per s. 79(1) of the regulations. Mr. Manserra did not receive a refund, and this is contrary to s. 96(1) of the CPA and an offence as per s. 116 (1)(b)(viii). As such, the court finds that CUNS committed the offence of fail to refund and is therefore guilty of count 22 of information number 2.

Fail to Refund – the liability of Wendy Thakur and Antonietta Daneluzzi

[369]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the defendants aided or abetted CUNS in the offence of fail to refund. That is, the Crown did not prove that i) the named defendants assisted or encouraged CUNS to not provide a refund, and ii) that the named defendants did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts). As such the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of the offence of fail to refund and not guilty of count 22 of information number 2.

Count 23 – Unfair Practice- discounts or benefits

[370] The count is particularized as follows:

23) AND FURTHER THAT:

CANADIAN UNIVERSAL NETWORK SOLUTIONS INC., WENDY THAKUR AND ANTONIETTA DANELUZZI, on or about the 4th day of December, 2005, in 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 in relation to Mario Manserra a consumer, by making a false, misleading or deceptive representation to said consumer, that he could obtain discounts or benefits for future transportation services, accommodation or other goods or services, contrary to section 17(1) of the CONSUMER PROTECTION ACT, S.O. 2002, c.30, as amended, and thereby committed an offence under section 116(1)(b)(ii) of the said Act;

[371]The count as particularized suggests a representation was made to Mr. Manserra that was false, misleading or deceptive as it was represented to him that “he could obtain discounts or benefits for future transportation services, accommodation or other goods or services” by entering into the time share agreement and joining CUNS. It is important to note the very definition of a time share agreement embodies the representation that by entering into the agreement, the consumer is “provided with access to discounts or benefits for the future

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provision of transportation, accommodation or other goods or services related to travel” as per s. 20(1)(b) which provides the definition of what a time hare agreement is.

[372]There are two separate issues here i) representations made to Mr. Manserra that he would obtain discounts as particularized by count 23 and ii) a representation being made that if he could find a better price that CUNS would refund him his membership.

[373]It is clear that Mr. Manserra did eventually obtain the services of CUNS to lease the Acura vehicle. It is also clear that it was quite the ordeal. However, CUNS did ultimately provide him with a “discount or benefit” that was consistent with what he was promised (to save at least $1000). This is how the count is particularized.

[374]The court does finds that the following representations were made to Mr. Manserra: i) if

CUNS could not honour a savings of at least $1000 on a purchase of a 2006 Acura” that he would be granted a refund, and ii) that he could obtain a savings of “up to” $4000 in relation to purchasing a car. A strong argument can be made that since Mr. Manserra did lease a vehicle and ultimately did save $1000, that the representations by CUNS were not false, misleading or deceptive.

[375]The court finds, for the reasons illustrated above, the Crown has not proven the offence of unfair practice, as particularized, beyond a reasonable doubt. While representations were made ultimately, (according to the testimony heard) they were honoured, despite the difficulty in obtaining the discounts and benefits promised. Reference is made in the Crown submissions to the unfair practice offence of consumer Jia (information one count 3) however that count was not particularize to the same specificity as count 23 in relation to Mr. Manserra.

[376]While the means by which CUNS arrived at providing Mr. Manserra his savings of at least $1000 was circumspect – the representation made to Mr. Manserra was not necessarily specific as to the means by which CUNS would uphold the representation. Again, the Crown must prove the offence as particularized and the court finds that they have failed to do so beyond a reasonable doubt. To add, the court finds that the promise to win a prize, while clearly a lure to attract Mr. Manserra to CUNS and perhaps engage his interest in remaining at CUNS, did not fall within the count as particularized.

[377]Therefore, the court finds CUNS not guilty of the offence of unfair practice and therefore not guilty of count 23 of information number 2.

Unfair Practice – The liability of Wendy Thakur and Antonietta Daneluzzi

[378]As CUNS has been found not guilty of the offence the court dismisses the count 23 as against Wendy Thakur and Antonietta Daneluzzi.

Information number 2- Counts 24 to 26 – Susan Galang

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[379]Ms. Galang testified before the court on 10 September 2016

[380]Ms. Galang and her husband attended CUNS on December 16th, 2005 after her husband received a cold call on December 12th, 2005. Both attended CUNS for dinner and a presentation of CUNS services. Both the entered into a contract (exhibit 288) with CUNS dated December 16th, 2005. Ms. Galang testified while the contract was dated December 16th it was entered into on 18th of December 2005 when her and her husband re-attended the office. In cross- examination by Mr. Wright it was determined CUNS provided a one-page document on initial meeting date that was afterwards “Voided”, and the document was never made part of the evidence.

[381]The agreement dated 16 December 2005 was for 10-year V.I.P. Membership for a yearly fee of $99.00 including the travel gallery and world resort club. Ms. Galang understood these features to mean she could use the membership for a boat cruise, travelling to places in the world, you could receive a discount for hotels). Ms. Galang also signed up for the Value Club:

Real Estate Advantage club, the auto benefits club and the premium buyer’s club. Ms. Galang understood the real estate advantage club to be you could apply for a mortgage. She also requested financial services by way of a loan for a term of 60 months interest rate of 29.90 % with a monthly payment of $352.06 to commence on January 30th, 2006 and to end on 30 December 2011. They were promised a mortgage at a favourable rate. The details of the loan are listed under “Billing Details” on the first page of the contract as well as pages 6,7, and 8. The consumers also signed a request for financial services dated December 18th, 2005 marked as (ex. 289).

[382]During their first day at CUNS, they met with a person by the name of Arun, and a woman named Felicia. Both persons ultimately took them to a room to meet a man named Peter Tyrovolas. In that room the documents were signed, and the couple were rushing as they had to leave to pick up their daughter and Mr. Galang had to go to work. On the way out they had a raffle draw for the chance to win their prize which was a two-night stay at a hotel but didn’t ever bother to use the prize.

[383]The Galangs could not stay to finalize the contract that day but Susana Galang did pay a deposit of $300 on December 16th, 2005 on her MasterCard on that day and returned on December 18th, 2005 to pay $2700. Both transactions are marked as exhibit 291. It was the evening of December 16th, 2005 when they returned home, they both decided they did not want to proceed with the agreement. It would appear to the court based upon Ms. Galang’s testimony that the one page document she signed lead her to believe there was some obligation owed to CUNS. This one-page document was ultimately voided. The court reaches this determination as when the consumers returned to CUNS on December 18th, 2005 Ms. Galang requested to cancel her contract.

[384]Ms. Galang told Mr. Tyrovolos during the December 18th, 2005 meeting that she wanted to cancel the agreement. Ms. Galang conveyed that she did not want to join CUNS unless she was approved for the mortgage. Ms. Galang testified that she was confused and rushed when

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she signed the contract. Ms. Galang testified that Mr. Tyrovolos denied the request and threatened to initiate collections. He counter offered that if they paid down $3000 and the mortgage was not approved then they could receive a refund. Ms. Galang testified this led her to enter into the agreement (ex. 288) and pay the additional $2700 (exhibit 291) which she testified was instead of agreeing to refund. The request for financial services document (exhibit

289)noted in the comments section that “membership is fully refundable if mortgage is not approved”, Ms. Galang confirmed in her testimony Mr. Tyrovolos wrote the contents of this section signing below the comment section. The Galangs further attempted to obtain a refund via a letter sent to CUNS dated 22 December 2005 (ex. 294) via Canada Post registered mail (ex.

[385]Ms. Galang was given the impression that CUNS was going to help her renew the mortgage. they never received a mortgage form CUNS. The Galangs never received any of their money back. Neither did she use any of the CUNS travel services.

[386]The following excerpt from the Crown’s submissions are reproduced as the court finds them to be an accurate account of the testimony:

108.The Galangs spent several hours at CUNS on December 18, 2005. They were again promised a mortgage and were told they could see Vince Fuda, the mortgage specialist, if they paid another $2,700. CUNS also told the Galangs that they would receive a refund of their money if the mortgage didn’t come through. This enticed the Galangs to complete the CUNS membership agreement (ex. 288) and pay the further $2,700.

109.Although they did meet with Mr. Fuda, they never received a mortgage from CUNS. On December 22, 2005, within the statutory ten-day cooling off period, the Galangs sent a registered cancellation letter (ex. 294) to CUNS.

110.When no refund was provided, the Galangs continued their efforts to cancel the CUNS agreement. These efforts resulted in a meeting at CUNS on February 6, 2006. The details of that meeting are set out in the February 7, 2006 letter from CUNS to the Galangs (ex. 296). CUNS presented the Galangs with two options, the first of which would have required the Galangs to pay CUNS an additional $6,000 plus fees and taxes to reduce their membership from ten to seven years, while the second option required the Galangs to pay CUNS a further $300 to cancel their membership. CUNS threatened legal action if the Galangs rejected these offers. Nevertheless, the Galangs rejected both options.

111.On February 28, 2006 CUNS sent another letter to the Galangs (ex.298). This letter confirmed receipt of the Galangs’ cancellation letter of December 22, 2005 but indicated that the CPA did not apply to the Galangs. The letter invited the Galangs to make use of their CUNS membership.

Count 24 Informaton number 2 – Improper Contract

[387]The court finds that i) Ms. Galang entered into an agreement on 18 December 2005 (ex. 288), ii) the subject matter of the agreement dealt with future travel accommodations and

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therefore was a time share agreement as defined by s. 20 (1)(b) of the CPA, and iii) the agreement did not contain the information that is required as per s. 26 of the regulations, such as, but not restricted to, clauses 6 and 8. This is contrary to s. 27 of the CPA and an offence as per s. 116 (2) of the CPA. As such the court finds CUNS guilty of the offence of improper contract and guilty of count 24 of information number 2.

Improper Contract – the Liability of Wendy Thakur and Antonietta Daneluzzi

[388]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that-the agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of improper contract and therefore guilty of count 24 of information number 2.

Count 25 Information number 2 - Fail to Refund.

[389]The court finds that the consumers made the following attempts to cancel the agreement, i) by advising Mr. Tyrovolas that she wanted to cancel the contract at their second meeting on December 18th 2005, and ii) letter sent to CUNS dated 22 December 2005 (ex. 294) via Canada Post registered mail ( ex. 295).

[390]While some parts of Ms. Galang’s testimony was a bit confusing, during cross- examination it would appear that the Galangs were provided a document to sign on their first meeting at CUNS, on December 16th 2005 that was then voided and when they entered into the agreement on the 18th day of December 2005. The court finds whether one accepts that the contract was entered into on the 16th or the 18th of December, both dates were within the 10 day cooling-off period.

[391]It is clear from the evidence and, the court finds that i) Ms. Galang had a right cancel within 10 days of entering into the agreement as per s. 28 (1) fo the CPA, ii) as the agreement was deficient, since she had a right to cancel within a year as per s. 28(2) fo the CPA , and iii) she made request to cacnel within 10 days of entering into the agreement. The court further finds that once the request was made sections s. 95 and 96 of CPA were engaged and the consumer was were entitled to a refund within 15 days of requesting as per s. 79(1) of the regulations. As. Ms. Gallang did not receive a refund this is contrary to section 96(1) of the CPA and an offence as per s. 116 (1)(b)(viii) fo the CPA. As such, the court finds CUNS guilty of the offence of fail to refund and therefore guilty of count 25 on information number 2.

Fail to Refund -the Liability of Wendy Thakur and Antonietta Daneluzzi

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[392]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the defendants aided or abetted CUNS in the offence of fail to refund. That is, the Crown did not prove that i) the named defendants assisted or encouraged CUNS to not provide a refund, and ii) that the named defendants did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts). As such the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of the offence of fail to refund and therefore not guilty of the count 25 information number 2.

Information number 2 – counts 26 and 27 - Navteg and Punit Duggal

[393]Mr. and Mrs. Duggal both testified at trial on March 11th, 2015.

[394]Mr. Navteg Duggal testified that he received a cold call advising they had won one of 5 prizes due to a ballot at the mall. To claim the prize, he must attend a presentation. Mr. Duggal and his wife Punit Duggal attended CUNS on Orlando Drive on December 22nd, 2005. Upon arrival they checked in with reception, provided identification, then were guided to a small room where dinner was being served.

[395]They met with a person named Sukh who sat with them through dinner and spoke Punjabi. Once finished dinner they were escorted to a hall for the presentation. A woman identified herself as “Antonella Daneluzzi” and addressed the crowd.

[396]The presentation, which detailed CUNS services, lasted for about 20 to 30 and Sukh

showed them the mortgage and bulk buying rooms. They ultimately entered a small hall where all three of them sat at a table whereas Sukh was took notes where he wrote the consumers names down and started asking them questions. The topic of mortgages arose, and this interested Mr. Duggal as it was suggested CUNS could provide a cheaper mortgage rate. He also explained about the bulky buying club and showed them colourful brochures which was not of interest to them.

[397]At this time, it was almost 8:00 pm and Mr. Duggal testified he had to return to the Sikh temple where he left his very young son and elderly mother. Sukh made an offer for a lifetime membership at $16,000 for the vacation club, times hares, auto club and premium buyer’s club. Sukh lowered the membership to 10 years as Mr. Duggal found the price expensive. And then again later to 3-year membership at $3500.00 – the latter offer was agreeable to Mr. Duggal. There was also a discussion about financing the $3500. He told Sukh and his manager Mr. George Markus that he was in hurry and had to leave. Mr. Duggal was advised by Sukh that the deal was valid until midnight, so Mr. Duggal signed the paper notebook with a rough estimate and an announcement was made that they had become members.

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[398]At Sukh’s suggestion the Duggals used a Mastercard credit card to pay the $3500 instead of financing which is an option they would have preferred. Sukh took the Mastercard, who passed it to Linda Gilmore, who was acting as customer service manager. Mr. Duggal was escorted into her office by Sukh. There were one or two other administrative assistants in the room as well - in this room he met Ms. Gilmore. Mr. Duggal observed Ms. Gilmore proceed to make a copy of his Mastercard at which time he objected. The credit payment was processed by Ms. Gilmore and Mr. Duggal insisted he leave but was asked to wait 3 minutes. They printed up a single sheet and had himself and his wife sign. It took another 20 minutes (approximately) to print up and have the rest of the document signed. Mr. Duggal testified he was only able to read the first page of the agreement and didn’t have time to read the rest of the document despite his initials that appear. Mr. Sukh switched to speaking in Punjabi and urged them to initial “in good faith”. At the time Mr. Duggal and his wife were new immigrants to Canada and he testified he believed it to be a good country, so he signed “in good faith”.

[399]Mr. and Mrs. Duggal entered into a membership agreement with CUNS dated December

22nd, 2005 (exhibit 129) for a 3-year term for world resort club, travel gallery, and Value Club: auto benefits, real estate advantage club and premium buyer’s club. He also paid the total of $3500 on his Mastercard (exhibit 144).

[400]When leaving Linda Gilmore took them to a big drum which she turned, and Mrs. Duggal was asked to pick out a slip for a prize which was a two- or three-day nights vacation (exhibit 139) which they never used. They both left the building and Mr. Duggal testified that his

“mood was off” in terms of how they were dealt with by CUNS, not allowing them to return to sign the documents the next day, as well as being rushed.

[401]Mr. Duggal came to the realization that he had made the wrong decision in joining CUNS.

About four days later Linda Gilmore called and invited the Duggals’ to an orientation session. Mr. Duggal sent a letter requesting a refund via regular mail dated December 29th, 2005 (Mr. Duggal testified he put 2006 in error) and also a cancellation email letter (sent on December

30th, 2005), both to Linda Gilmore (ex. 131). It is important to note that Mr. and Mrs. Duggal at no point in time ever received a refund form CUNS. Mr. Duggal testified that he received a temporary membership card (exhibit 128) but never attempted to use it as he wanted a refund and to cancel his membership.

[402] Mrs. Gilmore invited the Duggals to return to CUNS on January 5th, 2006 where they also met George Markus. The made a counteroffer to deduct the administration fee and provide a $500 credit for furniture. The Duggals never received any furniture or a mortgage from CUNS. Mr. Duggal repeated his request for a refund and Mr. Markus responded he would “investigate” and get back to the Duggals the next day. He did not.

[403]There was an exchange of emails which led to the Duggals being invited back to CUNS on January 25th, 2006. In an email chain and in separate emails dated January 11th, 2006 and January 20th, 2006, Mr. Duggal explained that he was still waiting to hear back about from

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someone about the cancellation of the membership. In an email dated 23 January 2006 from Linda Gilmore he is advised first that that Mr. Diab then Mr. Markus was handing his file (email chain collectively marked as ex. 133).

The Duggals return to CUNS on 25 January 2006.

[404]Ultimately the Duggals were invited back to the CUNS on January 25th, 2006 where they met with Hani Diab. Mr. Duggal again requested a refund and expressed his loss of faith in CUNS. Mr. Duggal was given the impression that there would be an investigation and Mr. Diab would contact Mr. Duggal by February 10th, 2006. In an email exchanged dated 29th January 2006, (exhibit 134). It is important to note that in chief testimony Mr. Duggal it seemed that things were happening through Linda Gilmore who facilitating things.

[405]The Duggals returned to CUNS yet another time on February 20th, 2006 where Hani made a counteroffer to reimburse Mr. Duggal $ 1100 via a certified cheque and enter into a new contract to keep the Duggals as clients. Mr. Duggal rejected this offer as he never changed their mind about wanting a refund and to cancel their membership. Mr. Duggal referred to the counteroffer and his refusal of it in an email sent to Hani dated 27th February 2006 (exhibit

136). This email chain again contained a request to cancel the contract and for a full refund. Later on, George Markus joined the meeting and when it was complete, they both escorted the

Duggal’s out of the office. This was the last meeting the Duggal’s entertained with CUNS.

[406]Despite receiving items such as a glossy folder with documents (exhibit 140) and a “welcome aboard “letter from Linda Gilmore (exhibit 141), the Duggals did not activate their membership as they wanted to be refunded their money.

[407]Mr. Duggals’ testimony remained consistent in cross-examination by counsel for the defence. Mrs. Duggals testimony on the whole mirrored that of her husband however she testified that “Wendy “came to the stage whereas Mr. Duggal testified it was Antonietta Daneluzzi. Mrs. Duggal added that the person named “Sukh” was Indian. Mrs. Duggal further added that “they have like plenty of people there who could speak different languages”. From her observations she testified that there were 5 or 6 other couples in the dining area, and it appeared people were being paired up with other peopled speak their mother tongue.

Evidence regarding Small Claims Court

[408]] In paragraph F of Mr. Wright’s submissions, it is argued that the court should not consider the identification evidence relating to Small Claims Court as it would infringe section 13 ( self-incrimination) of The Canadian Charter of Rights and Freedoms (Part 1 of the Constitution Act , 1982 , being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 13 ( hereinafter “ the Charter”). The Crown in oral submissions requested that the court not rely on any of the evidence heard with respect to Small Claims Court proceeding and possible identification regarding the individual defendants. The court therefore does not rely on such evidence.

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Evidence as it relates to the purported direct involvement of Wendy Thakur and Antonietta Daneluzzi in the business of CUNS

[409]It is important to note that the following evidence was heard in relation to Wendy Thakur.

First, Mrs. Duggal testified “Wendy “conducted the CUNS presentation. Second, during cross- examination by Mr. Rahamim, Mrs. Duggal testified that she knew it was “Wendy” as the person introduced themself. Third, Mrs. Duggal added that she thought her last name was

“Thakur” explaining that “Indians also have that last name”. Fourth, Mrs. Duggal described

Wendy as a chubby, well-dressed lady looked like she was from Southeast Asia. However, during cross- examination by Mr. Rahamim, it was clear that when Mrs. Duggal provided her statement to investigator Charles on May 6th 2007 she did not mention Wendy’s name and didn’t contact investigator Charles in the time since to advise her she recalled Wendy’s name.

Mrs. Duggal also testified that she recalled the name the same day she was testified in chief. Upon further cross-examination by Mr. Rahamim, Mrs. Duggal admitted that the weekend before her testimony, she had discussed with her husband the identity of the person giving the presentation and he mentioned it was Wendy. She finally agreed that the only reason she recalled the name Wendy as being the person who gave the presentation was because her husband told her as much.

[410]Mr. Duggals’ testimony remained consistent in cross-examination by counsel for the defence. Mrs. Duggal’s testimony on the whole mirrored that of her husband however she testified that “Wendy “came to the stage (to conduct the presentation) whereas Mr. Duggal testified it was Antonietta Daneluzzi. This is the only direct evidence that was heard from the witness regarding the involvement of Antonietta Daneluzzi. The court finds that little weight can be placed on this evidence as it relates to Antonietta Daneluzzi as it was not corroborated and there lacked insufficient follow up questions to make it reliable.

[411]The court also finds that little weight can be placed upon the direct evidence of the “direct involvement“ of Wendy Thakur in the business of CUNS as being a presenter at CUNS as the evidence is unreliable due to i) Mrs. Duggal’s discussion with her husband and ii) the name never being previously mentioned in statement to the investigator. The court, however, must consider all the evidence in relation to each count to determine whether the crown has proven their case in relation to the named defendants having knowledge of the true facts.

Count 26 Information number 2 –Improper Contract

[412]The court finds that i) the Duggals entered into an agreement dated December 22nd 2005 (exhibit 129), ii) the agreement was a time share agreement as it meets the definition of such as per s. 21(b) of the CPA as it provides for “discounts and benefits … services related to travel”, and iii) the agreement did not contain the required information required by s. 26 of the regulations including, but not restricted to , clauses 6 and clause 8. As such the agreement is contrary to s. 27 of the CPA and an offence as per s. 116(2) of the CPA. The court finds CUNS

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guilty of the offence of improper contract and therefore guilty of count 26 of information number two.

Improper Contract – the liability of Wendy Thakur and Antonietta Daneluzzi

[413]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their written agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that-the agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. It is important to clarify that little weight is given to the evidence heard from the Duggals in arriving at this conclusion. Rather, the court is relying primarily upon the agreements entered as exhibits. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of improper contract and therefore guilty of count 26 of information number 2.

Count 27 information number 2 – Fail to Refund

[414]The court finds that the Duggals requested to cancel the agreement i) via a letter Mr. Duggal sent requesting a refund via regular mail dated December 29th 2005 ( Mr. Duggal testified he put 2006 in error) and a cancellation email letter ( sent on December 30th 2005) both to Linda Gilmore (both marked as exhibit ex. 131), ii) verbally during the January 5th 2006 meeting at CUNS where Mr. Duggal repeated his request for a refund, and iii) verbally during the January 25th 2006 meeting where the consumers met Hani Diab. Mr. Duggal again requested a refund and expressed his loss of faith in CUNS, and iv) via an email sent to Hani dated 27th February 2006 (exhibit 136). This email chain again contained a request to cancel the contract and for a full refund.

[415]The court finds that as the consumers entered into the agreement on 22 December 2005 the requested a refund within the 10 day cooling- off period and had a right to a refund as per s.28.(1) of the CPA. Upon the request to cancel sections 95 and 96 of the CPA were engaged and CUNS had an obligation to refund the consumers within 15 days of their request as per s. 79(1) of the regulations. The court further finds that the Duggals did not receive a refund and this is contrary to s. 96 (1) of the CPA and an offence as per s. 116 (1)(b)(viii) of the CPA. To emphasize, once a request is made, the consumers have a right to their refund and not a renegotiation of the terms or the agreement by the supplier. As such the court finds that CUNS is guilty of the offence of fail to refund and therefore guilty of count 27 of information number 2.

Fail to Refund – the liability of Wendy Thakur and Antonietta Daneluzzi

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[416]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the defendants aided or abetted CUNS in the offence of fail to refund. That is, the Crown did not prove that i) the named defendants assisted or encouraged CUNS to not provide a refund, and ii) that the named defendants did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts).

[417]Despite the viva voce evidence heard in relation Wendy Thakur and Antonietta Daneluzzi, little weight that is placed upon it as discussed above (see para. 409 to 491). The court finds this evidence does little to assist the Crown in meeting its obligation to prove this count beyond a reasonable doubt as the Crown has not proven the direct involvement of the named defendants in the business of CUNS. That is, if great weight was placed on the evidence, at its highest it would place the named defendants as making a presentation to a general audience, before the agreement was entered. Such evidence at its highest would still fall short of assisting the Crown in proving that the named defendants had knowledge of the true facts. As such, the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of the offence of fail to refund and therefore not guilty of count 27 of information number 2.

Information number 2 – Counts 28 and 29 – Guneswary Tharmaratnam

[418]Ms. Tharmaratnam testified on June 25th, 2014.

[419]On March 29th, 2006 Ms. Tharmaratnam attended CUNS at 3030 Orland Drive in Mississauga, after having received a cold call the day before suggesting she had won a 42-inch T.V. Ms. Tharmaratnam attended with husband and then 16-year-old son who was excited about the television. When she arrived, she first met someone she described as an Indian Lady named Siny who suggested CUNS could offer a reduced interest rate on her mortgage. There was dinner, a presentation and then Siny then took Ms. Tharmaratnam to the manager’s room whose name is Peter however, she could not recall his last name. In cross-examination by Mr. Rahamim it was determined that Siny was of Indian background while Ms. Tharmaratnam herself is from Sri Lanka.

[420]Peter offered to provide a better mortgage rate than the one that Ms. Tharmaratnam had with ING as a benefit of the CUNS membership. The offer for the membership was $23,000 plus an additional $15,000 (total $38,000). Ms. Tharmaratnam had advised them that her husband was not working, and she had 2 jobs. When she refused the i) amount dropped, ii) CUNS offered her a membership for a lesser sum of money iii) which would include a mortgage immediately upon signing the membership and pay off an existing loan. Ms. Tharmaratnam only had her bank card and they suggested she pay a small amount today and they would have an escort follow her home so that she could provide a cheque to them.

[421]Ms. Tharmaratnam was introduced a male named Lynheller (not Linda) who took her to

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another room but would not allow her son to accompany her. First attempted to process her bank account for $8000, and then $4000- both attempts were declined she did not have the available funds. Finally, CUNS were able to process $2000 which she paid. Four debit card receipts were marked collectively as exhibit 47, with the first three attempts showing they were cancelled ($8993, $4000.00, $2000.00) and the last amount of $2000 was approved. Ms. Tharmaratnam testified that she advised Lynheller to process only $500 but he ignored her, suggested she relax, and processed the $2000. Ms. Tharmaratnam had agreed to pay them $8000 in total and was led to believe that she could cancel in 15 days which led her to sign the agreement. Ms. Tharmaratnam has already put her mind to cancelling the contract. CUNS suggested they send an escort that night to accompany her to collect a cheque for the remainder and Ms. Tharmaratnam suggested instead that she could return tomorrow. Lynheller would not let her do so and insisted she be accompanied by an escort back to her house.

[422]The escort followed in a separate car as her and her family drove home. This was approximately 11:00 pm. Ms. Tharmaratnam could not recall the escort’s name. Ultimately the escort suggested it was not in Ms. Tharmaratnam’s best interest to sign the cheques but pleaded with her not to mention his name to CUNS as it was his only source of employment. Ms. Tharmaratnam conveyed her plan to cancel the agreement the next day and the escort suggested to give him the cheques unsigned which is what Ms. Tharmaratnam ultimately did.

[423]To clarify, Ms. Tharmaratnam testified that on 29 March 2006 that she signed the first agreement that was ultimately torn up the next day. The second agreement dated 30 March 2006 (ex. 44) was a term of 4 years with an annal fee of $99 for real estate services, financial service, auto benefits and premium buyers. In the additional terms and conditions section it states, amongst other things, “membership commence on March 29, 2006”. It is for a total of $6112.00 and signed by Ms. Tharmaratnam and Peter Tyrovolas as business manager. The name of Shiny appears a salesperson.

[424]Ms. Tharmaratnam testified she didn’t really want to sign this new agreement but i) was pressured into it, despite asking to cancel the earlier first agreement and ii) had already paid the $2000 the night before. During cross-examination by Mr. Rahamim Ms. Tharmaratnam testified that she realized they wanted to trick her into signing the agreement. In cross- examination by Mr. Wright it was further clarified that i) the first agreement was for $8993.00, ii) returning the day after CUNS tore up the first contract and Ms. Tharmaratnam entered the second agreement ( ex. 44) for a total of $6112, iii) CUNS lowered the agreement by $2881.00 – understanding that she had already paid $2000.00 and iv) Ms. Tharmaratnam wrote a cheque for $4112 on 30 March 2006 ( ex. 54). Ultimately Ms. Tharmaratnam stopped payment on the cheque for $4112 dated March 30th, 2006, (TD letter dated June 18, 2007 confirming this (marked as exhibit 55).

[425]On March 30th, 2006, Ms. Tharmaratnam returned to CUNS with her husband to speak to Peter arriving at 9:00 am but were told to return at 2:30pm. They both waited until 2:30 in front of the CUNS location. At 2:30 Ms. Tharmaratnam met with Peter. Ms. Tharmaratnam testified she was crying and wanted to i) cancel the agreement she signed the day before, wanted her

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money back, and iii) did not want to enter into a new agreement that she ultimately signed. Ms. Tharmaratnam testified referring to the second agreement, that “before signing that documents at that day, I told them to cancel, please, all of them. I don’t want anything”. Her request was denied. Ms. Tharmaratnam ultimately signed the second agreement as they reduced the price to $2000 which she had already paid the day before.

[426]Ms. Tharmaratnam sent an undated letter addressed to Linda Gilmore (Canada Post registered letter receipt dated 7th April 2006 (ex. 50) requesting that her membership be cancelled and requesting a full refund of the $2000 paid. As mentioned above she stopped payment on the cheque for $4112.00. At one point in time Ms. Tharmaratnam testified that Peter and Linda called her and threaten legal proceedings and to commence collections against her, insisting that she had to pay the remainder of the balance. Exhibit 49 are three separate letters dated June 12, 2006, July 31, 2006, and March 24, 2007 where representatives of CUNS in each letter that her account is overdue, she should contact CUNS and failure to respond may led to further legal action been (sic) taken.

[427]Ms. Tharmaratnam testified he never received the television but testified in cross- examination by Mr. Rahamim, that she was given a CUNS bag, a telephone (which she brought to court and testified she never used) and a flyer for a spectacular Florida Getaway

(ex. 53). Ms. Tharmaratnam never received her $2000 back.

Count 28 – Improper Contract – Future Performance Agreement.

[428]The consumer did not have a copy of the first agreement dated 29 March 2006 and therefore it was not admitted into evidence. The court finds that i) the consumer entered into a second agreement dated 30 March 2006 (ex. 44) , ii) this agreement was for real estate services, financial services, auto benefits and premium buyers and is future performance agreement as it is a “ consumer agreement in respect of which delivery , performance or payment in full is not made when the parties enter the agreement” (s. 1 CPA). The court further finds that second agreement is deficient as it does not comply with one or more requirements of s. 24 of the regulations including, but not restricted to the following: i) clause

4 “a fair and accurate description of goods and services and services to be supplied to the consumer, including the technical requirements, if any related to the use of the goods or services, and ii) clause 5 – “an itemized list of the price at which the goods and services are to be supplied to the consumer, including taxes and shipping charges”. This is contrary to s. 22 of the CPA and therefore committing an offence pursuant to section 116 (2) of the CPA. The court therefore finds CUNS guilty of the offence of improper contract and guilty of count 28 of information number 2.

Improper Contract – The liability of Wendy Thakur and Antonietta Daneluzzi

[429]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their written agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the

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deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that-the agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 24 of the regulations and was non-compliant with s. 22 of the CPA and therefore an offence pursuant to s. 116 (2) of the Act. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of improper contract and guilty of count 28 of information number 2.

Count 29 information number 2 – Fail to Refund

[430]The court finds that; Ms. Tharmaratnam i) based upon her viva voce evidence, entered into an agreement on March 29th 2006 and paid $2000 ii) this first agreement was torn up when she attended CUNS next day iii) based upon her viva voce evidence CUNS ignored Ms.

Tharmaratnam’s requests to cancel the 29 March 2006 agreement during her meeting with

Peter at CUNS on March 30th 2006, iv) there was no refund and Ms. Tharmaratnam entered into a second agreement, a future performance agreement on 30th March 2006, and v) Ms. Tharmaratnam sent an undated letter addressed to Linda Gilmore (Canada Post registered letter receipt dated April 7th , 2006 (ex. 50) requesting that the second membership be cancelled and requesting a full refund. The court finds this request was made within one year of entering into the agreement.

[431]Since agreement number two has been admitted into evidence (ex. 44) this is the agreement that we must analyze. The court does not have a copy of the first agreement and therefore cannot determine whether or not it complied with the requirements of the regulations.

[432]The second agreement is a future performance agreement, where the right to cancel is governed by s. 23 of the CPA. This section provides that where the agreement is deficient, as is the case here, the consumer has a right to cancel within one year of entering into the agreement. As the request to cancel was made within 1 year of entering into the agreement the court finds that sections 95 and 96 are triggered and the consumer was entitled to a refund within 15 days as per s. 79(1) of the regulations. The 10 day cooling-off period does not apply to future performance agreements.

[433]The Court finds as the consumer was not provided with a full refund s contrary to s. 96(1) of the CPA and an offence as per s. 116(1)(b)(viii) of the CPA. It is important to note that

a full refund means, amongst other things, the right to all the money paid to be returned. This does not mean an opportunity for the supplier to re-negotiate, intimidate, pressure or threaten the consumer. Sections 95 and 96 of the CPA make it clear with respect to what the supplier’s obligations are. As Ms. Tharmaratnam was entitled to her refund which she did not receive, CUNS is guilty of the offence of fail to refund and therefore guilty of count 29 of information number two.

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Fail to Refund – the liability of Wendy Thakur and Antonietta Daneluzzi

[434]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the defendants aided or abetted CUNS in the offence of fail to refund. That is, the Crown did not prove that i) the named defendants assisted or encouraged CUNS to not provide a refund, and ii) that the named defendants did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts). As such, the Court finds Wendy Thakur and Antonietta Daneluzzi not guilty of the offence of fail to refund and therefore not guilty of count 29 of information number 2.

Information #2 – counts 30 to 33 – Josephine Pato

[435]The evidence of the consumer Josephine Pato was received by this court by virtue of the agreed statement of facts filed and marked as exhibit 379 to these proceedings.

Evidence of the purported direct involvement of Antonietta Daneluzzi with CUNS

[436]Exhibit 379-Tab H is comprised of a facsimile cover sheet and a letter both dated 3 October 2006). Both are purported to be from Antonietta Daneluzzi (her typed name appears on both) to “France Abergel” of the “Ministry of Government Services”. The letter appears to be in response to the Ministry investigation of CUNS. No signature appears above the typed named of Antonietta Daneluzzi – not on the facsimile cover sheet, nor in the allotted space for a signature above the typed name in the body of the letter. However the typed name of Antonietta Daneluzzi appears on i) the facsimile cover sheet after the word “from”, ii) on this same facsimile cover sheet under the comments sections reads as follows “ As requested: Timeline of events with regards to Ms. Pato and her RCI purchase”. The letter at the bottom signature line of the actual letter it reads “Ms. Antonietta Daneluzzi President “and the contents of the letter outline, from CUNS perspective, their dealings with the consumer in relation to her attempting to access her RCI membership. The letter acknowledges that the author is aware of the letter sent from Ms. Pato to CUNS dated 8 August 2006 - this would be the request to cancel letter referenced above. In particular, the court acknowledges that i) the heading of the facsimile page shows that the letter was faxed from the CUNS fax number that appears on the company’s agreements, ii) both the cover sheet and the letter is addressed to France Abergel – a specific person’s name, iii) the author makes reference to a specific conversation with France Abergel on 29th September (as the letter is dated 3 October 2006 the court deducts that the 29 September date refers to the same year, 2006).

[437]The evidence above is circumstantial evidence which the court is permitted to consider. The court must be cautious of considering circumstantial evidence however the court places significant weight on this evidence as it i) a very specific response to an inquiry made by a branch of the government, and includes a Ministry employee’s name within ii) makes reference to a specific request that was made from the Ministry, and iii) makes specific reference to the 8

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August 2006 request to cancel letter. These two pieces of evidence will be considered and given the appropriate weight in considering whether the Crown has proven i) direct involvement of Antonietta Daneluzzi in the business of CUNS and ii) true knowledge of the facts in relation to party liability. While the court is not relying upon the details of the letter for the truth of their contents, the details within the letter leads to no other reasonable conclusion other than the author of the letter would have had intimate knowledge of the circumstances in relation to consumer Pato.

Information number 2 counts 30 and 31 – Improper Contract

[438]Ms. Pato entered what is referred to the original contract dated 16 September 2005 (ex. 379-Tab A) and the new CUNS agreement dated 7 April 2006 (ex. 379- Tab C). The both have the same invoice number # 1920.

[439]In relation to the agreement dated 16 September 2005 (ex. 379-Tab A) , and count 30 of information number 2 , the court finds that the contract is for RCI points, and as such is a time share agreement where a consumer “ acquires to use property as part of a plan that provides for the use of the property to circulate periodically among persons participating in the plan whether or not the property is located in Ontario…”s. 20 (1) (a) CPA. The agreement is one page long and does not contain the information required by s. 26 of the regulations, including, but not restricted to, the cancellation language required in clause 8. This does not comply with s. 27 of the CPA and an offence contrary to s. 116 (2) of the CPA. As such, the court finds CUNS guilty of improper contract and therefore guilty of count 30 of information 2.

Improper Contract -Count 30 information 2 - The liability of Wendy Thakur and Antonietta Daneluzzi

[440]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that- the written agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of improper contract and guilty of count 30 on information number 2.

[441]In relation to count 31 of information number 2 the new time share agreement dated 7 April 2006 (ex. 379-Tab C) The court applies the same reasoning to count 30. The written agreements are two separate agreements that existed at two different times and relied upon by the consumer. This agreement is also deficient as it does not contain, amongst other information, the requirements in s. 26 of the regulations. Not only does it not include the

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required text in clause 8 but also does not contain the date and place where the agreement was entered into as per clause 6. This does not comply with s. 27 of the CPA and an offence contrary to s. 116 (2) of the CPA. As such, the court finds CUNS guilty of improper contract and therefore guilty of count 31 of information 2.

Improper Contract -Count 31 information 2 - The liability of Wendy Thakur and Antonietta Daneluzzi

[442]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their written agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that-the agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of improper contract and guilty of count 31 on information number 2.

Information number 2 count 32 – Fail to Refund

[443]The court finds that Ms. Pato requested to cancel her RCI agreement in a letter dated 8 August 2006 (ex. 379 Tab F). The court already finding that the RCI time share agreement (ex. 379-Tab A) was deficient, Ms. Pato was entitled to cancel her agreement within 1 year from date the agreement was entered. The request to cancel engages sections 95 and 96 of the CPA and Ms. Pato was entitled to a refund within 15 days of the request. As Ms. Pato never received a refund this was contrary to s. 96 (1) of the CPA and an offence as per s. 116(1)(b)(viii) of the CPA. It is important to note count 32 as particularized refers the offence having been committed on or about the 25th of August 2006. As such the court finds that it relates to the RCI time share agreement as it was that agreement that the consumer requested to cancel. The court finds CUNS guilty of the offence of fail to refund and therefore guilty of count 32 of information 2.

Fail to refund - The liability of Wendy Thakur

[444]The court finds that the Crown has not proven the case against Wendy Thakur beyond a reasonable doubt as the Crown has not proven that Wendy Thakur aided or abetted CUNS in the offence of fail to refund. That is, the Crown did not prove that i) Wendy Thakur assisted or encouraged CUNS to not provide a refund, and ii) that Wendy Thakur did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts). As such, the court finds Wendy Thakur not guilty of the offence of fail to refund and therefore not guilty of count 32 of information number 2.

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Fail to Refund - The liability of Antonietta Daneluzzi

[445]The court finds that considering the circumstantial evidence as outline and discussed above(see pars 436 to 437, the Crown has proven that i) Ms. Antonietta had knowledge of Ms. Pato’s request to cancel the agreement and ii) as such had knowledge of the true facts as it relates to the count of fail to refund. As mentioned in paras. 436 to 437 above, and weighing all the evidence, including the circumstantial evidence, the court finds this evidence raises the Crown’s case to the level where the court is satisfied that the Crown has proven their case beyond a reasonable doubt in relation to this count and this defendant.

[446]The court finds that the Crown has proven that Antonietta Daneluzzi had direct involvement in the business of CUNS as it relates to this count to the extent that she, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts) and as such aided and abetted CUNS of committing he offence. As such the court finds Antonietta Daneluzzi guilty of the offence of fail to refund and therefore guilty of count 32 of information number 2.

Count 33 information number 2 – Unfair Practice- discounts and benefits

[447] The Crown submits the following in their written submissions:

136.Count 33 – Unfair Practice as it Relates to Ms. Pato

When Ms. Pato initially entered into an agreement with CUNS she was told she would access to her time share within two to three months. Seven months later, when she was still unable to access the time share that she was promised, CUNS offered to give Ms. Pato even greater time share access rights. CUNS again told Ms. Pato that access to the time share would be available in two to three months. Despite this, four months later, Ms. Pato remained unable to access the time share program that she had contracted for. As such, CUNS’ representations to Ms. Pato regarding access to a time share program, and the time when that access would be available were false, misleading or deceptive and make out the offence of Unfair Practice.

[448]The court finds that the following representations were made to CUNS i) at the time of signing the original agreement (dated 16 September 2005), CUNS representative Linda Gilmore represented that Ms. Pato would be able to use her RCI points within 2 to 3 months ( ex. 379- Tab 1 para.4), and ii) when Ms. Pato entered into an new CUNS agreement (dated 7 April 2006) that Ms. Pato would be able to use her RCI points within 2 to 3 months ( ex. 379-Tab 1 para.7).

[449]However, it is important to note that count 23 of information number 2 is particularized as follows:

33)AND FURTHER THAT:

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CANADIAN UNIVERSAL NETWORK SOLUTIONS INC., WENDY THUAKUR AND ANTONIETTA DANELUZZI, on or about the 15th day of September, 2005, in the City of Mississauga in the Central West Region and elsewhere in the Province did commit the offence of engage in an unfair practice in relation to Josephine Pato, a consumer, by making a false, misleading or deceptive representation to said consumer, that she could obtain discounts or benefits for future transportation services, accommodation or other goods or services, contrary to section 17(1) of the CONSUMER PROTECTION ACT, S.O. 2002, c.30, as amended, and thereby committed an offence under section 116(1)(b)(ii) of the said Act;

[450]At first glance it would appear that the Crown has not proven the case as particularized

as:

First, Section 20 (1) reads as follows:

“time share agreement” means a consumer agreement by which a consumer,

(a)acquires the right to use property as part of a plan that provides for the use of the property to circulate periodically among persons participating in the plan, whether or not the property is located in Ontario, or

(b)is provided with access to discounts or benefits for the future provision of transportation, accommodation or other goods or services related to travel. (“convention de multipropriété”) 2002, c. 30, Sched. A, s. 20 (1); 2006, c. 34, s. 8 (3).

Second, as per para. 12 of the Crown’s submissions, the RCI agreement would trigger subsection

(a) of this section, however count 33 as particularized makes reference to subsection (b).

However, section 1 of the CPA defines “services” as follows:

“services” means anything other than goods, including any service, right, entitlement or benefit;

[451]Reading all these sections together, the court finds that “services” includes “rights, entitlements and benefits”. As the definition of the RCI agreement as per s. 20(1)(a) involves

the “right to use property”, the court finds that the Crown has proven the case as particularized beyond a reasonable doubt.

[452]As the consumers were not able to use the RCI points as represented (ex. 379- Tab 1, paras. 6 and 9), CUNS never honoured the representation made for either agreement. Thus, the representation was false misleading or deceptive as it was, “a representation that the transaction involves or does not involve rights , remedies or obligations if the representation is false, misleading or deceptive” as per s. 14 (2) ss 13 of the CPA. This amounted to unfair practice which is contrary to s. 17(1) of the CPA and an offence as per s. 116 (1)(b)(ii) of the CPA. The court therefore finds the Crown has proven the case beyond a reasonable doubt and CUNS is guilty of the offence of unfair practice and therefore guilty of count 33 of information number 2.

Unfair Practice – discounts and benefits - The liability of Wendy Thakur and Antonietta Daneluzzi

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The Liability of Wendy Thakur

[453]The court finds that the Crown has not proven the case against Wendy Thakur beyond a reasonable doubt as the Crown has not proven that the Wendy Thakur had knowledge of the true facts, that i) CUNS having made the representation, ii) that CUNS intended to commit the offence of not honouring the representation , and iii) the Crown could not prove that the Wendy Thakur did or omitted to do something to assist CUNS in committing the offence. As such, the court finds Wendy Thakur not guilty of the offence unfair practice and not guilty of count 33 of information number 2. The court does not arrive at the same decision in relation to Antonietta Daneluzzi.

The Liability of Antonietta Daneluzzi

[454]As the court has found that the representation was made that Ms. Patio could use her RCI within 2 to 3 months (see para.448), and the finding of Antonietta Daneluzzi’s guilt in relation to count 32 (see. Para. 445), the court turns its attention to the exhibit 379-Tab 4, the letter in response to the Ministry of Government Services. For party liability there must be knowledge of the circumstances that make up or constitute the offence, that is, knowledge of the true facts but it is not necessary for the prosecution to prove that the respondent knew that those circumstances constituted an offence (see para. 101). The court finds that the Crown has proven beyond a reasonable doubt that in relation to count 33, Antonietta Daneluzzi had knowledge of the true facts. While not relying specifically upon the contents of the detailed CUNS response letter to the Ministry of Government Services, a reasonable inference can be made that Antonietta Daneluzzi had knowledge of the true facts. That is, was aware that i) consumer PATO despite efforts had not been able to use her RCI points, to the extent that ii) a complaint to the was made to the Ministry of Government Services, and iii) to the respond to the complaint would have or should have investigated the details of such complaint. As such, the court finds that the Crown has proven this count as against Antonietta Daneluzzi beyond a reasonable doubt. The court therefore finds Antonietta Daneluzzi guilty of count 33 of information number 2.

Information number 2 – Counts 34 to 38 – Mohamed and Bibi Safraj

[455]Mr. Safraj testified on the 16 and 17th of September 2014.

[456]Mr. Safraj was at work when his wife received a cold call from CUNS and was advised they won a prize. The specific prize was not mentioned however the reception provided an ID number and confirmed they could attend the next day on the weekend.

[457]Mr. Safraj and his wife Bibi both attended CUNS before 10:00 am as advised on Saturday April 22nd, 2006 to the Orland Drive address in Mississauga. They also followed instructions not to bring their children. When they arrived Mr. Safraj provided his drivers license, identification

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and confirmed the ID number previously given. They were approached by a lady named Pina and were taken to a room where they met a young lady by the name of Shini. The had coffee and after the entered with about 8 couples who were all seated.

[458]In this room Pina and Shini sat with Mr. and Mrs. Safraj throughout the session. Shini seemed to be of Indian descent and spoke English well. There was a presentation of a video during which Pina had a conversation with the Safrajs. After the presentation both Pina and Shini: i) explained how to become members, and ii) the low cost to travel various places. Mr. Safraj testified he made it clear they were not interested in vacations. Shini then advised of other services including mortgages and debt consolidation. Mr. Safraj testified that at this point nothing was mentioned about interest rates. Mr. Safraj expressed his interest in the mortgage services. Mr. Safraj testified he suspected at this point that Shini had called Pina back as she reappeared. Pina asked question about Mr. Safraj’s debt and he informed her it was over $14,000 in debt. Pina promised that CUNS could take over and consolidate it and that he would not have to pay as much money. Mr. Safraj understood this to mean that the debt would be less, however, again nothing was mentioned about he interest rate but the Safrajs were promised they could obtain a mortgage without a down payment. This promise made Mr. Safraj very interested as he and his wife were renting at that time and owning a home was something they wanted. Pina explained that they had to become members first. Mr. Safraj testified that he and Mr. Safraj wanted to privately discuss with his wife the issue however Shini and Pina accompanied them outside so they could not have a discussion with each other, so they stopped talking.

[459]When the Safraj’s returned to the room they were introduced to a male named V.K. (who was business manager Vygantas Kasiulis that signed the “Re: Cancellation of Membership Contract (invoice 2314)” which is exhibit 70 to these proceedings and discussed in more detail below). V.K. asked them to sit as he started to draft paperwork. Mr. Safraj understood that the agreement had to deal with a mortgage. V.K. made an offer of $8000 and Mr. Safraj refused indicating he could not afford that amount. VK mentioned an interest rate of 29.9% percent for loan consultation of $14,000 which was high to M. Safraj. He asked them to sign

“the paper “and they both did. The Safraj’s did not pay any money but did sign two separate membership agreements with Canadian Universal Network Solutions. Both clearly identified Invoice #2314.

[460]The first membership agreement ( Ex. 64) is a 7 page membership agreement (there is no page 4) dated 22 April 2006 which included a VIP TRAVEL SERVICE for 5 years, services including: Travel gallery, World Resort Club, Cruise club, Hot List Resort Vacations, and Hotlist cruise vacations. The agreement also stated billing details outlining a term of 60 months at an interest rate of 29.9 % with a monthly payment of $55.26 to commence 1 June 2006 and end 1 May 2011. It further states the membership price total Including fees and tax at $1711.79. Under the “Acknowledgement” section on page one of the agreement reads, amongst other things, in bold, “I also fully understand the consumer protection act of 2002 stating the 10 day cooling off period for Travel Services only” [sic]. Page 3 para. 3 reads “zero Cancellation policy”

[sic].

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[461]The second membership agreement is 4 pages, dated 22 April 2006 (ex. 65) and membership details include VIP VALUE SERVICE for 5 years with a yearly feed of $99.00 that included Real Estate Services, Financial Services, Auto Benefits, and Premium Buyers. Under the heading “ADDITIONAL TERMS AND CONDITIONS” Annual renewal fee not collected…to be billed next month. # Year price freeze to upgrade to a 15-year membership at $16,995.00

CND”. The agreement also stated billing details outlining a term 0f 60 months at an interest rate of 29.9 % with a monthly payment of $221.05 to commence 1 June 2006 and end 1 May 2011. It further states the membership price total Including fees and tax at $6845.00. Under the acknowledgement section reads “zero cancellation”, page 2 para. 6 reads “No Refunds” [sic], and page 3 para 3 “zero Cancellation policy” [sic].

[462]At the top of page 2 of both agreements (exhibits 64 and 65) reads the following “…this membership as a Binding Contract, which is non-refundable and non-negotiable [sic]. It is important to note that the total of both membership prices is $$8556.79 which is the “cash and services” total on page 6 of the Consumer Purchase that is part of the agreement (ex. 64).

[463]The Safraj’s left that day without paying any money and without having received a copy of the documents they had signed. Mr. Safraj’s testified that once he was able to have a discussion with this wife (in the car) the both determined the agreement to be a “rip off”. Upon leaving CUNS that day they were met with a crowd of people outside shouting that they wanted their money back.

[464]During cross-examination by Mr. Wright, Mr. Safraj testified that at the time he was signing documents he was not aware he was signing a contract but realised such when he had an opportunity to speak with his wife. When asked by Mr. Wright what happened between leaving the office and speaking to his wife that lead him to believe that the documents were a contract, Mr. Safraj testified that he wanted to speak to his wife privately while at CUNS but could not as “I was not allowed because two people were following us and they were standing right near to us”. He further testified that when he asked Pina and Shini for some privacy they responded that they “had to be there”. Ultimately in cross-examination, Mr. Safraj agreed that after signing the “Credit Application” (ex. 66), which he acknowledge would lead to money being taken from his account, he had a better understanding that he had entered into an agreement before he spoke to his wife privately. Mr. Safraj testified that nothing about the details of the either agreement was explained to them until they attend the next morning. The were advised by VK to return with a payment of $4000 but they did not. Mr. Safraj testified that he had no idea the first day what the documents were all about. The Safrajs told VK that they wanted to cancel the contract but were told that they could not as the documents had already been processed. VK mentioned that the Safrajs could make an appointment with someone by the name of Peter TYROVOLAS (business card ex. 67).

[465]During cross-examination by Mr. Wright, Mr. Safraj further testified that i) he attempted to meet with Peter on Tuesday and he was not available, ii) was able to meet with Peter on the Wednesday April 26th, 2006, and iii) along with his wife met with VK on 29 April 2006. During

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this meeting Mr. Safraj testified that they discussed the interest rate and Mr. Safraj again stated that did not want to go through with the agreement. Peter explained he could not cancel their contract and insisted that they pay for their contract. When cross-examined by Mr. Wright, Mr. Safraj admitted he could not recall if he met with one person (Peter only) or two people (Peter and Markus), but that the request for a payment of $2588 was made. Mr. Safraj testified that when he expressed his desire to cancel the contract, he was advised that if he did not proceed with the agreement, that it would adversely affect their credit rating. The threat of a negative credit rating worried the Safrajs as it would adversely impact their chances of obtaining a mortgage in the future.

April 29th, 2006 – return to CUNS and meeting with VK

[466]Mr. and Mrs. Safraj attended CUNS on April 29th, 2006 when Mr. Safraj wrote a cheque CUNS for $2588.00 dated 29 April 2006 (ex. 68) and were provided a receipt by CUNS (exhibit 69). Mr. Safraj in his testimony did confirm that the cheque was deposited, and proof was tendered to the court via confirmation of TD bank (ex. 74). The original agreement appeared to have been cancelled. It was marked “voided”, there was a slash placed through the agreement and the slash was dated 29 April 2006. There was also a signed letter confirming CUNS would keep $2588.00 as “liquidated damages (both marked as ex. 70). They were provided with a copy of the credit application they had signed (ex. 66) on this same day.

[467]They were provided with a letter from VK on behalf of CUNS, signed by Mr. and Mrs. Safraj along with an 11-page document attached (exhibit 70). The bottom of the cover page was signed by VK as well as the consumers. The heading of the letter reads “Re: Cancellation of Membership Contract (invoice 2314)”. The 11-page document seems to be the two membership agreements with 2 slashes, the word “VOID” in block letters and the date 29th April 2006 noted as well as initials “VK”. The letter “serves as confirmation that their membership cancellation with Canadian Universal Network Solutions Inc, is completed”. It further stated that CUNS will retain the $2588.00 Cnd paid by Mr. And Mrs. Safraj as “liquidated damages”. The letter also refers to a signed “Release and Non-Disclosure agreement” being attached however no such document was made an exhibit. During cross-examination by Mr. Wright, Mr. Safraj would testify that: i) he paid the $2588 as he thought it was the cost of cancelling the agreement, and ii) he never received a copy of a “Release and Non-Disclosure Agreement. It was also confirmed that no such document was included in any of the documents that investigator Charles had in her possession nor any of the documents that the consumer brought with him to court. Mr. Safraj did confirm however, that he was given the voided documents as well as a copy of the original credit application (ex. 66) but voided in similar fashion as above. This voided credit application was filed as ex. 71. The court finds that their testimony was unclear whether Mr. Safraj did indeed sign a Release and Non-Disclosure agreement.

[468]It would appear, as flushed out in cross-examination, that Mr. And Mrs. Safraj met with VK ( Vygantas Kasiulis) on April 29th 2006 and signed the front cover letter of exhibit 70 and were provided with the void contracts all as a package ( ex. 70). They also received the voided

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credit application (ex. 71). Mr. Safraj testified in chief that he understood that to mean his contract was terminated and he would not have to make any ‘further” payments. It would also appear that in cross- examination, Mr. Safraj understood that the $2588 that was requested by either Peter or Mr. Kasiulis was to cancel the contract and not to enter into a new contract and no one ever asked him to sign a new contract. As such, there were some minor inconsistencies between the statement that Mr. Safraj provided to investigator Charles and his testimony regarding July 5th, 2006, and his return to CUNS and meeting with Linda Gilmore.

[469]After the 29 April 2006 meeting Mr. and Mrs. Safraj focused on attempting to have their money refunded. On July 5th, 2006 they returned to CUNS and met with Linda Gilmore and requested a refund from CUNS. They did not conduct business with nor did they receive anything from CUNS. Ms. Gilmore indicated that they had paid for services and the documents. During cross- examination by Mr. Wright, Mr. Safraj agreed that he relied upon what he was told by Linda Gilmore and did not know if Linda Gilmore in fact spoke to Markus or whether anybody named Markus existed.

[470]Mr. Safraj testified that during the various interactions that no one mentioned a cooling- off period. He further testified that he never i) received or use any goods or service ii) never received the prize, iii) nor did he or his wife ever received any money back.

The application section 3 of the CPA.

[471]Paragraphs 141 to 150 of the Crown’s submissions characterizes the nature of the contacts entered as follows:

141.Later that evening Mr. Safraj and his wife signed membership documents with a total cost of $8,556.70. Of this cost, 20% was allocated to a five-year membership in the CUNS VIP travel service, while the remaining 80% was attached to the five-year membership that included real estate, financial, auto, and premium buyers’ services.

148.The documents provided by the Safrajs purport to be two separate agreements. One of these documents, purportedly the Travel membership, grants the Safrajs five years of membership in CUNS’ VIP Travel Service, including the travel gallery, world resort club, cruise club, hot lists for resort and cruise vacations, and waives the yearly fee associated with the vacation on line. The membership cost associated with document is $1,399.80, plus an additional $200 processing fee. The second document, purportedly the VIP Value Service membership, grants the Safrajs five years of membership in the VIP Value Service, including services for real estate, financial, auto benefits and premium buyers, with an associated cost of $5,599.20 and a processing fee of $798.00. Before tax, the total cost to the Safrajs was $6,999.00 in membership fees plus $998 in processing fees.

149.Twenty percent of both the total membership cost and the processing fees were allocated to the Travel aspect of the membership; the portion of the agreement to which a 10-day statutory cooling off period applies; while the remaining 80% of the amount charged to the Safrajs was allotted to the Value Service membership, where no

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cooling off period is applicable. Both documents, however, bear invoice number 2314, and the total of both amounts is included in the financing documents prepared for the Safrajs.

150.By arranging the documents as they have, CUNS has attempted to circumvent the 10-day cooling off period associated with Time Share Agreements while allowing CUNS to insist on the payment of the lion’s share of any purchase price. Yet all services were sold via a single sales pitch, by the same sales personnel, and all membership documents were signed simultaneously. It is also notable that the Safrajs were clear that they did not want to take out a travel membership, yet CUNS has provided them with that very membership along with the membership that purports to give the financial services benefits that the Safrajs did desire.

[472]The Crown in para. 151 of their submissions has invited this court, upon application of s. 3 of the CPA, to consider the substance over form of the agreements. As discussed in paragraphs 59 to 70 earlier in this decision, the court agrees that the substance over the form of the agreement should always be considered when dealing with consumer agreements. To not do so would i) allow suppliers to benefit from their nefarious approach in dealing with consumers , ii) would not uphold the principles and objectives of the CPA in protecting the consumers, and iii) would permit suppliers to benefit from such behaviour, to the detriment of the consumer. For those reasons and reasons discussed earlier in this decision the court finds: i) that the consumer entered into one agreement, a time share agreement and the court therefore dismisses count 35 of information number 2 as against CUNS, Wendy Thakur and Antonietta Daneluzzi.

Count 34 information number 2 – Improper Contract

[473]The court finds that i) the Safrajs’ entered into one agreement, a time share written agreement as it meets the definition as per s. 20 (1)(b) of the CPA, that was dated 22 April 2006, ii) the agreement is deficient as it did not include the required information required by s. 26 of the regulations, iii) this includes, but not restricted to, clause 8 ( the text regarding the consumer’s rights), and clause 14 ( itemized list of prices to be paid by the consumer for each good and service). As such the court finds the deficiencies in the agreement are contrary to section 27 of the CPA and therefore an offence as per s. 116 (2) of the CPA. The court finds CUNS guilty of the offence of improper contract and guilty of count 34.

Improper Contract – The Liability of Wendy Thakur and Antonietta Daneluzzi

[474]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that-the written agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence

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pursuant to s. 116 (2) of the Act. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of count 34 of information number 2 and therefore guilty of the offence of improper contract.

Count 36 – Unfair Practice – discounts or benefits

[475]Count 36 of information number 2 particularizes the allegation as follows:

36) AND FURTHER THAT:

CANADIAN UNIVERSAL NETWORK SOLUTIONS INC., WENDY THAKUR AND ANTONIETTA DANELUZZI, on or about the 29th day of April, 2006, in the City of Mississauga in the Central West Region and elsewhere in the Province of Ontario did commit the offence of engage in unfair practice in relation to Mohamed Safraj and Bibi Safraj, consumers, by making a false, misleading or deceptive representation to said consumers, that they could obtain discounts or benefits for future transportation services, accommodation or other goods or services, contrary to section 17(1) of the CONSUMER PROTECTION ACT, S.O. 2002, c.30, as amended, and thereby committed an offence under section 116(1)(b)(ii) of the said Act;

[476] The Crown has argued the following regarding this count:

154.Counts 36 and 37 – Unfair Practice as it relates to the Safrajs

Many of the representations made by CUNS to the Safrajs were false, misleading, or deceptive. These include CUNS’ attempt to mislead the Safrajs into thinking they had two separate membership agreements, failing to notify the Safrajs of the right to cancel, failing to give effect to this right, and insisting on payment to cancel their agreement with CUNS, despite the fact that the Safrajs enjoyed a 10-day cooling off period and other statutory rights to cancel. All of which is, of course, to say nothing about the fact that the clubs in which CUNS purported to grant membership to the Safrajs simply did not exist. Accordingly, CUNS ought to be convicted of the Unfair Practice charges set out in counts 36 and 37.

[477]It is important to note that section 1 of the CPA defines “services” as follows:

“services” means anything other than goods, including any service, right, entitlement or benefit.

[478] Reading all these sections together, I find that “services” includes “rights, entitlements and

benefits”.

[479]The count as particularized suggests a representation was made to the Safraj’s that was false, misleading or deceptive as it was “represented to them that “ they could obtain discounts or benefits for future transportation services, accommodation or other goods or services” by entering into the time share agreement and joining CUNS. It is important to note the very definition of a time share agreement provides the representation that by entering into the agreement that the consumer is “provided with access to discounts or benefits for the future

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provision of transportation, accommodation or other goods or services related to travel” as per s. 20(1)(b) which provides the definition of what a time share agreement is. There are three separate issues here i) what representations were made to The Safrajs’ , ii) do they amount to unfair practice, and iii) has the Crown proven beyond a reasonable doubt that they were false, misleading or deceptive as particularized in count 36.

[480]The court finds that the Safrajs’ moved directly from signing the agreement to attempting to cancel the agreement while met with opposition from CUNS. Within a span of 7 days the consumers cancelled their agreement and focused on retrieving the money they had paid. It would appear from the day they signed the agreement their intention was to cancel it. Mr. Safraj testified that he never i) received or use any goods or service ii) never received a prize, although when Mr. Safraj received the cold call no specific prize was mentioned iii) nor did he or his wife ever received any money back.

[481]Upon careful review the court finds that the following representations were made verbally to the Safrajs’ i) they could consolidate her debt at a lower interest rate, ii) that they could obtain a mortgage without a down payment iii) they had to become members first to benefit from these services iv) when the Safrajs’ requested to cancel they were told that they could not as the documents had already been processed, v) when requesting to cancel at CUNS was told by Peter he could not cancel their contract and were advised that if he did not proceed with the agreement, that it would adversely affect their credit rating.

[482]The court further finds that the following representations were made within the documentation marked as exhibits i) the representations already identified in the agreements that refer to 10 day cooling-off period, no refunds and no cancellations ( ex. 64 and 65) and ii) the letter from CUNS (ex 73) referencing a meeting of July 5th 2006 and referring the consumers matter to the legal department if they decided to “ proceed with any actions” that were contrary to the terms of the Release and Non-Disclosure.

[483]While para. 154 of the Crown’s submissions does point out scenarios that would amount to misrepresentation – again – the Crown must prove the count as particularized, and the count has been particularized in specific manner as noted above.

[484]At first glance it would appear that the Crown had fallen short of their burden of proof however considering that the count is particularized as “ …or other goods or services ” and, the definition of “services” includes “rights, entitlements, and benefits”, the court finds that when the Safrajs’ attempted to cancel their agreement that the verbal representations made that i) they could not do so as the documents had already been processed, and ii) were advised by Peter that he could not cancel their agreement amounted to unfair practice as per s. 14(2) ss. 13 as it was a “representation that the transaction involves or does not involve rights , remedies or obligations if the representation is false, misleading or deceptive”.

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[485]This is contrary to s. 17 (1) of the CPA and an offence as per s. 116(1)(b)(ii) of the CPA. As such the court finds CUNS guilty of the offence of unfair practice and therefore guilty of count 36 of information number 2.

Unfair Practice – discounts or benefits –The liability of Wendy Thakur and Antonietta Daneluzzi

[486]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the named defendants had knowledge of the true facts, that i) CUNS having made the representation, ii) that CUNS intended to commit the offence of not honouring the representation , and iii) the Crown could not prove that the named defendants did or omitted to do something to assist CUNS in committing the offence. The court finds Wendy Thakur and Antonietta Daneluzzi not guilty of unfair practice and therefore not guilty of count 36 of information number 2.

Count 37 – Unfair practice- 10-day Cooling-off period

[487]The court finds the following representations were made in the body of the agreements: i) At the top of page 2 of both agreements ( exhibits 64 and 65) reads the following “ …this membership as a Binding Contract, which is non-refundable and non-negotiable [sic], ii ) exhibit 64 reads , “ I also fully understand the consumer protection act of 2002 stating the 10 day cooling off period for Travel Services only” [sic] while at the same time, on page 3 para. 3 reads “zero Cancellation policy” [sic] and exhibit 65 reads, under the acknowledgement section,

zero cancellation”, page 2 para. 6 reads “No Refunds” [sic], and page 3 para 3 reads “zero Cancellation policy” [sic].

[488]The court further finds that the consumers made the following requests to cancel their agreement within the 10 day cooling-off period i) during Mr. Safraj’s meeting Peter at CUNS on the Wednesday April 26th 2006, ii) during a meeting with VK on 29 April 2006

where they signed the front cover letter of exhibit 70 and were provided with the voided the agreements all as a package (ex. 70) while also receiving exhibit 71 the voided credit application. The court further finds: i) consumers had an unrestricted right to cancel their time share agreement during the 10 day cooling-off period as per s.28(1) of the CPA, ii) despite requesting to cancel their agreement CUNS did not honour their representation contained in their agreements as outlined above as, iii) the consumers did not receive a full refund.

[489]The court finds that CUNS engaged in unfair practice as per section 14 (2) of the CPA ss. 13 as they made “A representation that the transaction involves or does not involve rights, remedies or obligations if the representation is false, misleading or deceptive” which is unfair practice. The representation was false, misleading, or deceptive as CUNS did not honour it by providing a refund. This is contrary to section 17 (1) of the CPA and an offence as per s. 116 (1)(b)(ii) of the CPA. The court therefore finds CUNS guilty of the offence of unfair practice and therefore guilty of count 37 of information number 2.

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Unfair Practice – 10 day cooling-off period –The liability of Wendy Thakur and Antonietta Daneluzzi

[490]The court finds that the Crown has proven beyond a reasonable doubt the count as against the named defendants as they have proven knowledge of the true facts. The court finds that as the sole officers and directors of a CUNS the named defendants i) knew or ought to have known the content of the written agreement contained representations, ii) that these representations indicated the consumers were entitled to certain remedies, such as a 10 day cooling-off period, while at the same time indicating that there were “no refunds” and “zero cancellation”. That the named defendants i) had a responsibility to ensure the legality of the

contracts however, ii) allowed the agreements with the content to be used by CUNS iii) for the purpose of assisting CUNS to commit the offence of unfair practice by allowing the content of the agreement to used and not correcting it. The court therefore finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of unfair practice and therefore guilty of count 37 of information number 2.

Count 38 -Fail to Refund

[491]In addition to the efforts made by the consumers to cancel their agreement within the 10 ay cooling-off period, the court also finds that on July 5th, 2006 the consumers again requested to cancel their agreement by requesting a refund when they returned to CUNS and met with Linda Gilmore. As the agreement was deficient, the consumers had 1 year to cancel as per s. 28 (2) of the CPA. Upon requesting to cancel an agreement the court finds that sections 95 and 96 of the CPA and the consumers are entitled to a full refund within 15 days of such request as per s. 79(1) of the CPA. As the consumers did not receive a refund this is contrary to s. 96(1) of the CPA and an offence as per s. 116(1)(b)(viii) of the CPA. The court therefore finds CUNS guilty of the offence of fail to refund and guilty of the count 38 of information number 2.

Fail to Refund – The liability of Wendy Thakur and Antonietta Daneluzzi

[492]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the defendants aided or abetted CUNS in the offence of fail to refund. That is, the Crown did not prove that i) the named defendants assisted or encouraged CUNS to not provide a refund, and ii) that the named defendants did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts). As such the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of the offence of fail to refund and therefore not guilty of count 38 of information number two.

Counts 39 to 42 of information number 2 – Regina and Stephen Lepcha

[493]The court finds no evidence was heard and therefore all counts as against all the defendants are dismissed.

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Information number 2 -counts 43 to 45 – Kastor and Irena Qatipi

[494]On June 19th, 2015 the court heard testimony from Irena Qatipi and Kastor Qatipi.

[495]A few days before attending CUNS Irene Qatipi testified she received a cold call from CUNS inviting her and her husband to the Orland Drive location to attend a presentation and then they were to be given a prize. They both attended on 6 July 2006, checked in with reception (showing their drivers licenses) and proceeded to a room where they showed a time share presentation. After the presentation they attended a hall where tables were set up and couples were seated, and it was there they met person named Rada. Ms. Qatipi asked Rada questions about the time share. Rada quoted a membership cost of $25,00 which Ms. Qatipi found expensive, so she called over another sales representative.

[496]A young Korean Canadian male around 30 years, named Charles came to sit with them. They engaged in a conversation and mentioned, there was a trial product called RCI a time share that CUNS has access to and the cost would be $5000 for 30,000 points a year and for three years 90,000 points. The points correspond the value and location of the resort you can stay at (i.e. Spain vs. Ontario). Ms. Qatipi interest was contingent upon the financial agreement and Charles suggested there would be loans available less than prime which was of interest to Ms. Qatipi. The Qatipis were then taken to Catharine LaBrie’s office.

[497]In Ms. LaBrie’s office the consumers were given a prize of a DVD. Ms. LaBrie explained the RCI procedures and gave them a red folder with 2 RCI catalogues (ex 268) of products. It was explained that a payment was required immediately and the she would negotiate with a broker through CUNS for the remaining to be paid through a loan. The Qatipis agreed to the RCI product however their membership was never activated. They signed the agreement with CUNS, and Ms. LaBrie signed business manager. George Markus signature appears at the bottom right corner of page 8 under the heading “name of authorized official”.

[498]The consumers entered into an agreement dated 6 July 2006 (ex. 270), which included VIP Travel service with RCI membership for 3 years and points amounting to 3000, RCI yearly fee – zero. The term was for 60 months at an interest rate of 29.9 % and monthly payments of $136.72 the loan to start 1 August 2006 and end 1 July 2011. On page one of the agreement under “Acknowledgement” appears in bold “I also fully understand the consumer protection dated 6 July 2006 of 2002 stating the 10 day cooling off period for Travel Services only”.

[499]The consumers applied for financing as per the “request for financial services form” (ex. 272). This was a loan for $16,000 line of credit. After the section “please specify type” there is notation that reads as follows: “Membership conditional upon financing terms acceptable to members or membership cancelled OAC at best rate”.

[500]The Qatipis’ never received a loan through CUNS and ultimately secured their own loan independent of CUNS. A broker named Vince Fuda was arranged through CUNS and worked at

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TD bank. Ms. Qatipi testified that she was surprised when he requested that once the loan was secured that a cheque for approximately $4200 should be forwarded for the remainder of the membership fee and a cheque for $2000 should be made out to him personally for brokerage fees.

[501]On September 1st,2006, CUNS was provided with a cheque dated 8 September 2006 for $4220.83 towards the membership (receipt ex. 273) which CUNS cashed and was cleared (clearance confirmation ex. 287). Both received a cover letter dated 1 September 2006 (ex. 278) which referred to the CUNS website and enclosed plastic membership cards (ex. 275) with information to access the website. Various email chains and letters outline the consumers efforts to have the RCI membership activated.

[502]As early as the 26th of September 2006, in an email chain to Justin Spray of CUNS, (ex 280) Ms. Qatipi made inquires as to how she was to use her RCI points as there was insufficient information on the CUNS website. Mr. Spray’s responding email dated 29 September 2006 included the following sentence “ Once the RCI registration is complete, which I hope is very soon, they will send you a password to their website ,at which time you will see how to use your points for booking resorts” and further states “ just remember that the RCI trial package that you purchased has nothing to do with the Canadian Universal program”. Ms. Qatipi followed up with an additional email to Mr. Spray dated 2 October 2006 (ex 281) which she indicated was when she was advised by RCI that she required a specific RCI ID number (different from the CUNS ID number) and requested that he follow up. In an email dated 12 October 2006 from Ms. Qatipi to Justin Spray (ex 282) she explains that CUNS must set up an account for her to access her RCI. Despite signing the agreement on the 6 July 2006 that Ms. Qatipi was not able to access her RCI membership.

[503]Ms. Qatipi in her testimony referred to several meetings and conversations surrounding her request to cancel her agreement and receive a refund prior to her written request dated March 27, 2007 (exhibit 283).

[504]Ms. Qatipi testified that in the beginning of November 2006 she attempted to contact CUNS to cancel her agreement and received a refund. She did get through to someone at CUNS and requested to cancel the agreement as she could not access her RCI. During her testimony she did not provide the name of who she spoke to. On November 6th, 2006 Ms. Qatipi testified that she spoke to someone who identified themselves as Linda Gilmore and Ms. Qatipi requested her money back. This was not within 10 days of the signed agreement. Ms. Gilmore invited the Qatipis to meet with her, so they attended CUNS sometime in middle of November.

[505]Mr. and Mrs. Qatipi both attended and met with Linda Gilmore at CUNS, the purpose of the meeting was to obtain a refund. George may have also been attendance, but Ms. Qatipi was not sure. Ms. Qatipi explained that the RCI had never been activated and she wanted a refund and Ms. Gilmore and then attempted to get her to opt for another service and they were offered $500 as a good will gesture. The consumers refused.

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[506]In a letter dated 27 March 2007 (ex. 283) and sent via Canada post registered mail

(receipt marked ex. 284) from Mr. and Mrs. Qatipi to Linda Gilmore of CUNS stated “today we are requesting to cancel our membership agreement. Our account for the time share with RCI was never activated from Canadian Universal.” The consumers also requested a refund. Ms.

Qatipi continued to seek a refund and the next person she spoke to via phone was Wanda Hann who her husband was able to locate around the beginning of December 2006. Ms. Qatipi requested a refund from Wanda Hann who indicated she had to speak to the Board of Directors and would get back to her. Ms. Hann did call back half an hour later offering a reimbursement of $1058 but CUNS would keep the rest of the money as cost for CUNS service. Ms. Qatipi refused. In a letter from Linda Gilmore to the consumers dated 15 June 2007 (ex. 285) Ms. Gilmore confirms a meeting with the consumers and denies their request for cancellation as

“you have utilized the programme for purposes of Financial Services”. Ms. Gilmore adds that they have approved the termination of the contract with a refund of $1476.23 + G.S.T.

[507]Kastor Qatipi testified i) they never received a refund, ii) at the end of November 2006 on a Saturday, he called managed to get through to speak to someone at CUNS named Hector who connected him with George then he passed the phone to his wife to speak, iii) he attend CUNS location alone on the 2 December 2006 and met with a manager named Wanda Hann when and requested a refund, and iv) Ms. Hann personally counter offered to return $1058 and Mr. Qatipi refused.

[508]The following evidence was clarified during the cross-examination of Ms. Irena Qatipi:

-as per exhibit 277 it appears that CUNS waived the annual dues and the consumer did not recall whether she actually paid them.

-the only funds paid to CUNS was the $1058.51 deposit the day the agreement was signed and the $4220.83( receipt ex 273) and then two bank withdrawals of $136.72, one of which was reversed ( CUNS had made a mistake as outlined in letter 6 September 2006- ex 278). No RCI yearly fee was paid to CUNS.

-that she did not want to cancel the service due to not liking it, but because she was not delivered the service that she persistently asked for

-it was a “big fog” with the financial dealings with CUNS which lead her to wanting to cancel the contract defined by i) Vince Fuda’s request for a $2000 brokerage fee ii) the fact the Korean gentleman at the first meeting represented that she would receive a loan for lower than prime, iii)the fact the bank advised her that there was no need to enter into an agreement with CUNS to get a loan with the same bank she already had a relationship with iv) the withdrawal (in error) of the $136.72 amount.

-2 months after signing the contract the consumer was still interested which lead her to sign the cheque dated 8 September 2006 which cleared (ex. 287)

-the main complaint the consumer had was that CUNS agreed to provide a membership in R.C.I. and 30,000 points as well as a loan of $16,000 on terms acceptable to members or “membership cancelled”.

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-during her emails with Justin Spray in September and even December, she continued to contact the 1-800 number he provided her for RCI to see if anything had changed with the membership, and nothing had changed.

-CUNS never confirmed with her that the RCI membership was not available to her, instead they tried to persuade her with other offers of services which led to her distrusting the company

Count 43 of information number two – Improper Contract

[509]The court finds that the agreement is a time share agreement, as it is an RCI agreement that falls under s. 20(1)(a) of the CPA - a consumer agreement by which a consumer “acquires the right to use property as part of a plan that provides for the use of the property to circulate periodically among persons participating in the plan, whether or not the property is located in

Ontario“.

[510]The court also finds i) the time share agreement did not contain the required information as per section 26 of the regulations including, but not restricted to, clause 6 (place where the agreement was entered into), and clause 8 (cancellation language). As the agreement is deficient it is contrary to s. 27 of the CPA and an offence as per s. 116 (2) of the CPA. Therefore, the court finds CUNS guilty of the offence of improper contract and therefore guilty of count 43 of information number 2.

Improper Contract – The Liability of Wendy Thakur and Antonietta Daneluzzi

[511]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their written agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that- agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of improper contract and therefore guilty of count 43 of information number 2.

Count 44 of information number 2- unfair practice – 10 day cooling-off period

[512]As per the Crown request in para. 167 of submissions there was no evidence heard that there was an attempt to cancel the agreement with the 10 day cooling-off period as such, count 44 is dismissed as against all the defendants.

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Count 45 information number 2 – Fail to Refund

[513]The court finds that the Qatipis requested to cancel their agreement numerous times verbally also in a letter to CUNS dated on March 27th, 2007 (ex. 283) and sent via Canada post registered mail (receipt filed as ex. 284). This request was within one year of entering the agreement and since the agreement was deficient the Qatipis’ had a right to cancel with in one year as per section 28(2) of the CPA. Once the request was made sections 95 and 96 of the CPA were engaged and the consumers had a right to a refund within 15 days as per s. 79(1) of the regulations. The court finds that the consumers did not receive a refund of the money paid to CUNS (ex. 273 and 287) therefore, the court finds CUNS guilty of fail to refund and guilty of count 45 of information number 2.

Fail to Refund – The liability of Wendy Thakur and Antonietta Daneluzzi

[514]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the defendants aided or abetted CUNS in the offence of fail to refund. That is, the Crown did not prove that i) the named defendants assisted or encouraged CUNS to not provide a refund, and ii) that the named defendants did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts). As such the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of fail to refund and therefore not guilty of count 45 of information number 2.

Information number 2 Counts 46 to 49 – Timothy Sales, counts 50 to 53 – Roy Bristow, and Counts 54 to 57 – Gundamaraja Rao and Vijayabai Gundamaraju.

[515]On 27 September 2017 the counts on information number 2, in relation to the following consumers were dismissed (upon request) as no evidence was heard in relation to these consumers:

Counts 46 to 49 – Timothy Sales

Counts 50 to 53 – Roy Bristow

Counts 54 to 57 – Gundamaraja Rao and Vijayabai Gundamaraju

Information number 2 – counts 58 to 62 - Mauricio Abad

[516]The evidence regarding Mauricio Abad can be found in the statement of agreed facts filed and marked as exhibit 380 to these proceedings.

The evidence of Antonietta Daneluzzi’s direct involvement in the business of CUNS.

[517]Upon review of the Release and Non-Disclosure agreement (ex.t 380-Tab I), a signature appears above the typed name of Antonietta Daneluzzi. Considering the court’s discussion

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regarding the signature purported to belong to Antonietta Daneluzzi (see. paras 139 to 142), and this court’s ruling as it relates to consumers Doroja (see para 828) the court cannot engage in a signature comparison. Further, no reliable evidence linking Ms. Daneluzzi to this signature

[518]There is insufficient evidence of the circumstances surrounding the signing of the Release (ex. 380-Tab 1 Para 16) that is, i) whether the named defendant was at CUNS at the time the Release was signed, ii) whether the named defendant was in the office at the time the Release was signed, iii) whether the consumer met or spoke to the named defendant on or around the time the Release was signed, and iv) whether the consumer(s) witnessed the signature being made above the name of Antonietta Daneluzzi.

[519]At its highest, what is before the court is a Release and Non-Disclosure document that has a name and signature with no context as to who signed it. The court must be cautious in when dealing with circumstantial evidence. The court finds that little weight can be placed upon this piece of evidence in proving the direct involvement of Antonietta Daneluzzi with CUNS to prove knowledge of the true facts. To find otherwise would require the court to engage in speculation.

[520]As the signature and name on the Release is one piece of evidence, the court must consider all the evidence in relation to each count. The court finds that what is left to consider is the typed name of Antonietta Daneluzzi which little weight can be placed upon to establish that Antonietta Daneluzzi had direct involvement with the business of CUNS. However, this is only one piece of the evidence that is to be weighed to determine whether the Crown has met their burden as it relates to party liability.

Count 58 information number 2 – Improper Contract

[521]Considering paragraph 177 of the Crown’s submissions, and applying s. 3 of the CPA and interpreting the substance of the agreement over the form, the court finds that Mr. Abad entered into one agreement, a time share agreement as i) they both have the same invoice number, ii) the agreement that carries the 10 day cooling-off period ( ex. 380-Tab D) is for a lower amount ( $1482.94) while the other agreement does not (ex. 380-Tab E) and is for a significantly larger total of membership fee ($5929.64). The court will interpret the two agreements as one agreement therefore count 59 related to future performance agreement is dismissed as against all defendants.

[522]The court finds that i) the time agreement does not contain the required information in s. 26 of the regulations particularly, but not restricted to, clauses 6 and 8. As such it is contrary to s. 27 of the CPA and therefore an offence as per s. 116 (2) of the CPA. CUNS is therefore guilty of the offence of improper contract and guilty of count 58 on information 2.

Improper Contract - count 58- The liability of Wendy Thakur and Antonietta Daneluzzi

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[523]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their written agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that-the agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of improper contract and guilty of count 58 on information number 2.

Count 60 of Information number 2 - Fail to Refund

[524]The Crown requests that the court dismiss Count 60 as Mr. Abad had not made a payment towards the CUNS membership at the time the count is particularized. As the evidence to support a conviction on this count is lacking, the count 60 is dismissed as against all defendants.

Count 61 –Information number 2 - Unfair Practice – representation that payments were required to cancel a contract – future performance agreement

[525]The court finds that representations were made that to permit Mr. Abad and his wife Marina Rodriguez to cancel their agreement, Mr. Abad would have to pay a cancellation fee (ex. 380-Tab 1 para. 14) and in a letter from CUNS dated 19 September 2006 (ex. 380-Tab G). This is unfair practice as it is a representation “that the transaction involves or does not involve rights, remedies or obligations if the representation is false, misleading or deceptive” (s. 14(2) clause 13). The court also finds that a consumer is not required to pay a penalty to cancel an agreement under the CPA and as such the representation was false, misleading, or deceptive. This is contrary to s. 17(1) of the CPA and an offence as per s. 116 (1)(b)(ii) of the CPA. The court therefore finds CUNS guilty of the offence of unfair practice and therefore guilty of count 61 of information number 2.

Count 61 - Information 2 – Unfair Practice- representation that payments were required to cancel a contract – future performance agreement- The liability of Wendy Thakur and Antonietta Daneluzzi

[526]The court finds that the Crown has not proven beyond a reasonable doubt that the named defendants had knowledge of the true facts.

[527]It is important to note that the representation in the letter dated 19 September 2006 (ex. 380-Tab G) did not include Antonietta Daneluzzi’s name anywhere and, the Release and Non - Disclosure document dated 22 December 2006 (a different and later date) which contained Antonietta Daneluzzi’s name, does not contain the representation. As such, the court finds this evidence does not raise the Crown’s case to the level where it proves beyond a reasonable

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doubt that the named defendants had knowledge of the true facts. As such, the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of the offence of unfair practice and therefore not guilty of count 61 of information number 2.

Count 62 – unfair practice - 10 day cooling-off period - did not honour

[528]The court further finds that Mr. Abad made an attempt to cancel his agreement within the 10- day cooling-off period verbally (ex. 380-Tab 1 para.10 ) when Mr. Abad returned to CUNS the day after entering into the agreement (10 September 2006) by speaking to the Spanish speaking advisor. Instead, as per ex. 380- Tab 1 para. 11 their efforts to cancel within the 10 day cooling-off period were thwarted by CUNS when CUNS i) indicated they required an appointment to cancel the agreement and ii) offering an appointment outside of the 10- day cooling-off period. Furthermore, the court finds that representation was made on the face of ex.380-Tab D, that a 10- day cooling off period was available. The acknowledgement section on page one contains the following text: “I also fully understand the consumer protection act of 2002 stating the 10 day cooling off period for Travel Services only” [sic]. At the same time at the top of page two it reads “Members fully acknowledge and accept this membership as a Binding Contract, which is non-refundable and non-negotiable” [sic], and page 3 para. 3 reads “a zero

Cancellation policy will be enforced” [sic].

[529] The court finds the representation was this representation, as per s. 14 (2) ss. 13 as it was a “representation that the transaction involves or does not involve rights, remedies or obligations if the representation is false, misleading or deceptive”. The representation is false, misleading, or deceptive as CUNS did not honour it but instead CUNS thwarted the consumer’s attempt to receive a refund. This is contrary to s. 17 (1) of the CPA and an offence as per s. 116 (1)(b)(ii) of the CPA. The court finds CUNS guilty of the offence of unfair practice and therefore guilty of count 62 on information 2.

Information 2 count 62 – Unfair Practice – 10 day cooling-off period - the liability of Wendy Thakur and Antonietta Daneluzzi

[530].The court finds that the Crown has proven beyond a reasonable doubt the count as against the named defendants as they have proven knowledge of the true facts. The court finds that as the sole officers and directors of a CUNS the named defendants i) knew or ought to have known the content of the agreement contained representations, ii) that these representations indicated the consumers were entitled to certain remedies, such as a 10 day cooling-off period, while at the same time indicating “non-refundable and “zero cancellation”. That the named

defendants i) had a responsibility to ensure the legality of the contracts however, ii) allowed the agreements with the content to be used by CUNS iii) for the purpose of assisting CUNS to commit the offence of unfair practice by allowing the content of the agreement to used and not correcting it. The court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of unfair practice and therefore guilty of count 62 of information number 2.

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Counts 63 and 64 – consumer Cynthia Mitchell

[531]On 27 September 2017 the charges were dismissed (upon the Crown’s request) as no evidence was heard in relation to this consumer.

Information number 2 - Counts 65 to 68 Janice Louis

[532]Janice Louis testified before this court on September 18th, 2014.

[533]Ms. Louis received a cold call advising her that she won one of three prizes and to claim the prize she would have to attend CUNS and attend a meeting and look at a video. A few days after the call, on October 19th, 2006, alone, she attended CUNS. Upon arrival Ms. Louis was received at reception, showed a piece of ID, and was offered a meal. While eating her meal a gentleman joined her (cannot recall the name) and she watched a video presentation. Ms. Louis could only recall a trip to New York for $50 being part of the content of the presentation. When the gentleman met with her, he explained about the benefits program of CUNS and then the video played then he returned after the video and provided details about the membership. He quoted a price that she could not afford then offered 20, 10 and finally 3 years membership with differing amounts of membership cost higher with the number of years of membership.

[534]The two contracts the consumer entered on October 19th, 2006 were marked exhibit 97 (time share) and exhibit 98 (future performance agreement) and both bearing the same invoice number “2602”. At the top of page two of each agreement reads the following “Members fully acknowledge and accept this membership as a Binding Contract, which is non- refundable and non-negotiable [sic]. The 3-page time share agreement was for 3 years and included a yearly fee of $99.00 and services included the travel gallery, world resort club, cruise club, and hotlist

– resort vacation, hotlist-cruise vacations. Under the “Acknowledgement” section in bold it stated: “I also fully understand the consumer protection act of 2002 stating the 10 day cooling- off period for Travel Services only” (sic). Page 3 para. 3 reads “zero Cancellation policy” [sic], It indicated a total price of $979. 02 and signed by the consumer as well as Frank Altomare.

[535]The 4-page Future Performance agreement (ex. 98) was also for 3 years with a yearly fee of $99.00 and included a VIP value service for Real estate services, financial services, auto benefits and premium buyers. Page 2 para. 6 reads “No Refunds “[sic], page 3 para. 3 reads “zero Cancellation policy” [sic] It indicates a total amount of $3913.98 and signed by the consumer as well as Frank Altomare. Her appointment was for 7:30pm and she left at about 10:30pm.

[536]Ms. Louis also signed the “request for financial services” (ex. 101) which was a request for a loan amounting of $15,000 and under the heading “please specify type” the following text appears: consolidation of credit cars and membership package. Member is aware of 10% included in loan”. It is signed by the consumer. At the end of the evening she pulled a prize flyer form a basket (ex. 100).

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[537]Various methods of paying for the membership were made available on 19 October 2006, including VISA, where CUNS representatives assisted this consumer in calling for a credit increase however that request was declined. The second attempt was withdrawing money with her debit card from a nearby automatic teller, while escorted by a CUNS representative but that was also unsuccessful. The third attempt was writing cheques that ultimately were processed one for $900 (ex. 102) and another for $3993 (ex. 104).

[538]Ms. Louis testified that she was in shock of what she had done. Ultimately, she requested to cancel via a letter dated October 25th, 2006 (ex. 107) “the entire contract” including the travel selections and all other services. The consumer also requested a complete refund. The letter was addressed “The President of Canadian Universal Network Solutions” bearing the

Orlando Drive addressed and sent via registered mail on October 26th, 2006 (ex.108). The consumer received a letter from Ms. Linda Gilmore dated November 1st, 2006 (ex. 109) acknowledging the receipt of the letter dated October 25thth 2006 and mentioning they attempted to contact her.

[539]The consumer received a letter dated June 14th, 2007 (ex. 110) from Linda Gilmore responding again to her letter dated October 25th, 2006 which was sent approximately 8 months earlier. CUNS refers to a reimbursement of $979.02 “for the cancellation of the travel service contract”. The consumer was reimbursed this amount with a cheque from CUNS a copy of which is marked (exhibit 111.) Ms. Louis never received a full refund.

[540]In chief Ms. Louis testified to the following:

-She never tried to use any of the services of CUNS neither did she receive a loan.

-as early the morning after signing the contracts she realised she had made a mistake including the fact the $15,000 loan she requested could not cover her debt.

-She called CUNS and spoke to someone and they offered to increase the loan.

-when she signed and initialed the contracts, she did not have a complete understanding of the terms and conditions of the contract as it was late, she didn’t have time to read it carefully -she felt as thought she was forced and pressured into signing the documents and entering the membership as she had no money and therefore could not afford it and was made to attempt various methods to obtain money.

[541] Ms. Louis testified to the following in cross-examination by Mr. Wright:

-She did not get a chance to read the agreements or documents including exhibit 98 and page 4 in detail and was prodded to “sign here and initial here”.

-It was a very late night and she was asked to initial here and initial there

-It was late in the evening and she was very exhausted

-Agreed that she had not asked them to stop so she could read it

-She was distracted as the person asking her to sign kept repeatedly talking, repeating about the program, and asking her to sign while distracting her

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-agreed she could have got up and left if she wanted to as no one had locked or trapped her into the room

-she was refunded all her money for the travel part

-she never received neither tried to use any of CUNS services

-when efforts to pay via credit card were unsuccessful, she was accompanied by a CUNS representative to attempt to withdraw cash from a green machine but was not able to withdraw money

-they ultimately paid the money via two cheques and she never made any attempt to stop the payment for the cheques. Ms. Louis further explained that the next day she thought about stopping payment of the cheques, but she thought they might take her to court as she had signed a contract.

Count 65 -Information number 2 – Improper Contract

[542]The court agrees with para. 185 of the Crown’s submissions and finds that as i) both agreements have the same invoice number, and ii) the time share agreement which is subject to a 10 day cooling-off period, had a fee substantially larger than the future performance agreement. As the court considers the protection of the consumer and the importance that the supplier should not be permitted to benefit from engaging in nefarious tactics in dealing with the consumer, the court therefore finds that the consumer entered into one agreement, a time share agreement. The court therefore dismisses, against all defendants count 66, that relates to a future performance agreement.

[543]The court finds that the time share agreement did not include the information required by s. 26 of the regulations including, but not restricted to, clause 6 and clause 8. This is contrary to s. 27 of the CPA and an offence as per s. 116(2) of the CPA. The court therefore finds CUNS guilty of the offence of improper contract and guilty of count 65 of information number 2.

Count 65 – Improper Contract- The liability of Wendy Thakur and Antonietta Daneluzzi

[544]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that-the agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of improper contract and therefore guilty of count 65 of information number 2.

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Count 67 – Unfair practice – 10 day- cooling- off period.

[545]The court finds that the following representations were made in the body of the agreements i) At the top of page two of both agreement reads the following “ Members fully acknowledge and accept this membership as a Binding Contract, which is non- refundable and non-negotiable [sic], ii) in relation to exhibit 97 Under the Acknowledgement section in bold it stated: “I also fully understand the consumer protection act of 2002 stating the 10-day cooling off period for Travel Services only” [sic], and Page 3 para. 3 reads “zero Cancellation policy”

[sic]. Exhibit 98-page 2 para. 6 reads “No Refunds “[sic], and page 3 para. 3 reads “zero

Cancellation policy” [sic].

[546]CUNS also represented, in a response letter dated 1 November 2006, that “The terms and conditions stipulate zero cancellation of the VIP Value Services and then (10) day cooling off period for Travel Services only, as per the Consumer Protection Act 2002”. (ex.109)

[547]The court finds that Ms. Louis requested to cancel “the entire contract including the travel sections” within 10 days in the letter sent to CUNS dated October 25th, 2006 (ex. 107) which CUNS acknowledged receiving. As. Ms. Louis did not receive a refund, CUNS did not honour the 10 day cooling-off period, the representation was false, misleading, or deceptive. This is unfair practice as per s. 14(2) ss. 13 “a representation that the transaction involves or does not involve rights, remedies or obligations if the representation is false, misleading or deceptive”. This is contrary to s. 17(1) of the CPA and an offence as per s. 116 (1)(b)(ii) of the CPA. The court therefore finds CUNS guilty of the offence of unfair practice and therefore guilty of 67 of information number 2.

Unfair Practice – The liability of Wendy Thakur and Antonietta Daneluzzi

[548]The court finds that the Crown has proven beyond a reasonable doubt the count as against the named defendants as they have proven knowledge of the true facts. The court finds that as the sole officers and directors of a CUNS the named defendants i) knew or ought to have known the content of the written agreement contained representations, ii) that these representations indicated the consumer were entitled to certain remedies, such as a 10 day cooling-off period, while at the same time indicating that there were “no refunds” and “zero cancellation”. That the named defendants i) had a responsibility to ensure the legality of the

contracts however, ii) allowed the agreements with the content to be used by CUNS iii) for the purpose of assisting CUNS to commit the offence of unfair practice by allowing the content of the agreement to used and not correcting it. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of unfair practice and therefore guilty of count 67 of information number 2.

Count 68 -Information number 2 – Fail to Refund

[549]As the court has found above that within 10 days of entering into the agreement the

consumer requested a refund “the entire contract including the travel sections” (letter dated 25

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October 2006 -ex. 107). The court finds that only a partial refund was given after the request to cancel (ex., 111 cheque dated 17 August 2007) and the consumer was not provided a full refund. The court finds that once a request to cancel was made that sections 95 and 96 of the CPA were engaged and the consumer was entitled to a full refund within 15 days (s. 79(1) of the regulations. As only a partial refund was received this was contrary to s. 96(1) of the CPA and an offence as per s. 116 (1)(b)(viii) of the CPA. As such, the court finds that CUNS committed the offence of fail to refund and is guilty of count 68 of information number 2.

Fail to Refund – the liability of Wendy Thakur and Antonietta Daneluzzi

[550]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the defendants aided or abetted CUNS in the offence of fail to refund. That is, the Crown did not prove that i) the named defendants assisted or encouraged CUNS to not provide a refund, and ii) that the named defendants did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts). As such, the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of the offence of fail to refund and not guilty of count 68 of information number 2.

Information number 2 – counts 69 to 72 – Mark Podhorski

[551]Mr. Podhorski testified on September 30th, 2015.

[552]Mr. Podhorski received a cold call from CUNS asking if he liked to ravel, to purchase things cheaper as well as other things. The mentioned about a prize for $5000, a TV or a trip. In fact, Mr. Podhorski received an invitation emailed from CUNS dated 18 October 2006 (ex 342) which promised him he would receive on of three draw prizes which included 3 night stay, $50000 in cash or a 42 inch T.V. This lead Mr. Podhorski attended CUNS with his wife and baby on 21 October 2006.

[553]They attended Orlando Drive and where met at reception and were led to a big room where a woman made an announcement and they were shown a movie about travelling buying cars and furniture, or a house. The consumers were sat around tables. A young man named Affan sat with Mr. Podhorski and his family. There were announcements about new members, and people started moving to another room. Mr. Podhorski could no recall the name of any of the other people.

[554]Affan sat with them stated discussing great deals such as cruises for $100. Mr. Podhorski did not say much during this time however they moved to another room and another person joined them. At this time, they started giving proposals for membership to CUNS. They quoted prices that were too much for example a 10-year membership for $10,000, they offered $1000 off a week to Paris.

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[555]Eventually Mr. Podhorski agreed to be a member at about 3:00 p.m., he had already been there for 5 hours and described the experience as “surreal”. He explained that if he or his wife wanted to go to the washroom someone would escort them. There were at least 5 different people coming and going into a room. Mr. Podhorski recalls a dark-skinned lady, perhaps Caribbean, attempting to retrieve payment by first asking him if he had a line of credit, she asked for his car and called his bank so he could transfer money.

[556]Mr. Podhorski and his wife Anna signed two contracts on 21 October 2006 both having the same invoice number of “2605” and Linda Gilmore appears as the authorized representative. At the top of page two of both agreements reads the following “Members fully acknowledge and accept this membership as a Binding Contract, which is non- refundable and non-negotiable [sic]. Mr. Podhorski also signed a request for financial services (ex. 345). The first agreement ( ex. 343) is 3 pages was for a 10 year VIP travel service membership, no yearly fee, and included Services such as travel gallery, world resort club, cruise club, hot list – resort vacation, and hot list-cruise vacations. It was for a total of $2399.42 with a deposit of $600.

Under the “Additional Terms and Condition” section it states “$1000 .00 Travel Credit Valid for 36 months”. Under Billing details, it states a term of 60 months, interest rate of 29.9% monthly payment 58.0 loan start 15 November 2006 and loan end 15 October 2011. Under the

Acknowledgement section it states in bold: “I also fully understand the consumer protection acct of 2002 stating the 10 day cooling off period for Traver Services only” [sic.] and page 3 para. 3 reads “zero Cancellation policy will be enforced” [sic]. While the total for this agreement was $2399.42, Mr. Podhorski testified that he was not aware of the portion for which he paid for the travel gallery service and could not tell from the document itself.

[557]The second agreement ( ex. 344) is eight pages is for a 10 year term with a yearly fee of $99.00 and is for real estate services, financial services, auto benefits, and premium buyers

Under the Additional Terms and Conditions, it states, amongst other things, “Member to pay balance of membership by cheque Oct 21st in the among of $8995.00”. Under billing details, it states term 60 months, interest rate 29.9% monthly payment $232.38 loan start 15 November 2006 loan end 15 October 2011. The total is $9595.59 with a deposit of $2400.00. Under acknowledgement it read in bold, amongst other things “zero cancellation policy”, page 2 para. 6 reads “No Refunds” [sic], and page 3 para. 3 reads “a zero Cancellation policy that will be enforced[sic]. Page 8 of the agreement Mr. Podhorski testified that he recognized the signature of Georg Markus as one of the people who had spoken to him. Despite what was written on the contracts Mr. Podhorski recalls many oral promises being made about the services. Mr. Podhorski never used any of the services as a few hours after leaving CUNS that evening he had already decided he wanted nothing to do with the company.

[558]Before Mr. Podhorski left that evening, he was asked for cheques to pay the balance of the membership. CUNS eventually sent a man to pick up a cheque from his home, from Mr. Podhorski himself, about 30 minutes after he arrived home. Mr. Podhorski testified he provided a cheque in the amount of $8995 and was given a receipt (ex. 347). Mr. Podhorski also signed a request for financial services (ex. 345). Mr. Podhorski stopped payment for the

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cheque and ultimately the cheque was never cashed, however, Mr. Podhorski paid $3000 to CUNS.

[559]Mr. Podhorski sent various correspondence to CUNS including, but not restricted to the following:

-a cancellation letter signed by the consumers, dated 23 October 2006 to Linda Gilmore at Canadian Universal Network Solutions (ex 348). When Mr. Podhorski spoke to Linda Gilmore after sending the initial cancellation letter an attempt was made to make a counter-offer but never agreed to cancel.

-a cancellation letter dated signed by the consumers dated 27 October 2006 to Linda Gilmore at CUNS (ex. 349)

-a letter dated 9 November 2006 to Linda Gilmore at CUNS (ex. 350) confirming no refund had been received and advising a complaint would be registered against the company.

-He received a counter-offer in response in an unsigned letter dated 14 November 2006 from CUNS addressed to the consumers. Mr. Podhorski indicated he did not like the counter-offer as he didn’t want to have any involvement with the company.

[560]Mr. Podhorski also received an invoice for membership fee from CUNS dated 20 November 2006 for an amount of $104.94 which was the annual fee. Mr. Podhorski did not pay the amount.

[561]In cross-examination, Mr. Podhorski testified to the following:

-When shown a copy of the debit receipt ex. 346) he was unsure if he paid the $3000 via a debit transaction or cash but ultimately agreed with Mr. Wright that it was a debit and non- cash transaction. He was certain that a that the CUNS representative called his bank and gave him the phone

-He recalls a lady perhaps of Caribbean descent, assisting him filling out the request for financial services (ex.345)

-He agrees that he signed two separate contracts that day but at the time when sending the first cancellation letter (ex. 348) he didn’t’ know he had signed two agreements, he thought he had signed one big one. His intention was to cancel both contracts.

-He never paid any further money on his loan agreement as he stopped payment on the cheque

Count 69 of information number 2 – Improper Contract

[562]The court agrees with the Crown’s submissions at para. 192. As i) both agreements have the same invoice number and ii) the agreement that has the 10 day cooling off period is for a significantly smaller amount than the future performance agreement, the court finds that there was one agreement that was entered, a time share agreement. The court must consider substance over form. The legislation directs the court to prioritize the interests of the consumer and not allow the supplier to benefit from nefarious practices. Upon application of s 3 of the

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CPA, the court dismisses count 70 which relates to the future performance agreement as against all defendants.

[563]As the time share agreement did not contain the required information as per s. 26 of the regulations including, but not restricted to clause 8 and clause 13, this is contrary to s. 27 of the CPA and an offence as per s. 116(2) of the CPA. The court therefore finds CUNS guilty of the offence of improper contract and guilty of count 69 of information number two.

Improper Contract – the liability of Wendy Thakur and Antonietta Daneluzzi

[564]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their written agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that-the agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of improper contract and guilty of count 69 of information number 2.

Count 71 – unfair practice – 10 day cooling-off period

[565]The court finds that in the bodies of the agreements the following representations were made i) at the top of page two of both agreement reads the following “Members fully acknowledge and accept this membership as a Binding Contract, which is non- refundable and non-negotiable [sic], ii) Under the Acknowledgement section it states in bold: “ I also fully understand the consumer protection act of 2002 stating the 10 day cooling-off period for Travel

Services only” [sic.] and page 3 para. 3 reads “zero Cancellation policy will be enforced” [sic]

(ex. 343), while at the same time under the acknowledgement section it reads, amongst other things, “zero cancellation policy”, page 2 para. 6 reads “No Refunds” [sic], and page 3 para. 3 reads “a zero Cancellation policy that will be enforced (ex. 344).

[566]The court further finds that Mr. Podhorski requested a refund within the 10 day cooling- off period by sending the 23 October 2006 request to cancel marked as exhibit 348 to these proceedings. CUNS did not provide him with the refund of the $3000 he paid. As CUNS represented that the consumer was entitled to a 10 day cooling-off period, they did not honour the representation made therefore the representation was false, misleading, or deceptive. This is unfair practice as per s. 14(2) ss. 13 of the CPA “A representation that the transaction involves or does not involve rights, remedies or obligations if the representation is false, misleading or deceptive”, contrary to s. 17(1) of the CPA, and an offence as per s. 116(1)(b)(ii) of the CPA. As such the court finds that CUNS guilty of the offence of unfair practice and guilty of count 71 of information number 2.

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Unfair Practice –10 day cooling-off period - The liability of Wendy Thakur and Antonietta Daneluzzi

[567]The court finds that the Crown has proven beyond a reasonable doubt the count as against the named defendants as they have proven knowledge of the true facts. The court finds that as the sole officers and directors of a CUNS the named defendants i) knew or ought to have known the content of the agreement contained representations, ii) that these representations indicated the consumers were entitled to certain remedies, such as a 10 day cooling-off period, while at the same time indicating that there were “no refunds” and “zero cancellation”. That the named defendants i) had a responsibility to ensure the legality of the contracts however, ii) allowed the agreements with the content to be used by CUNS iii) for the purpose of assisting CUNS to commit the offence of unfair practice by allowing the content of the agreement to used and not correcting it. The court finds Wendy Thakur and Antonietta Daneluzzi guilty of unfair practice and guilty of count 71 of information number 2.

Count 72- Information number 2- Fail to Refund

[568]The court has already found that i) the consumer requested a refund and ii) he was not provided a refund of the $3000 he paid. Upon a request to cancel, sections 95 and 96 of the CPA were engaged and the consumer is entitled to a full refund within 15 days of the request to cancel (s. 79(1) of the regulations). As the consumer did not receive a refund, this is contrary to s. 96 (1) of the CPA and an offence as per s. 116(1)(b)(viii) of the CPA. As such, the court finds CUNS guilty of the offence of fail to refund and therefore guilty of count 72 on information number 2.

Fail to Refund - the liability of Wendy Thakur and Antonietta Daneluzzi

[569]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the defendants aided or abetted CUNS in the offence of fail to refund. That is, the Crown did not prove that i) the named defendants assisted or encouraged CUNS to not provide a refund, and ii) that the named defendants did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts). As such, the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of the offence of fail to refund and therefore not guilty of count 72 of information number 2.

Information number #2- Counts 73 to 76 – John White and Susan Powers-White

[570]Dr. and Mrs. White testified on March 25th, 2015.

[571]They attended the CUNS LOCATION on 22 October 2006 after receiving a call advising that they won a big flat screen T.V. Mrs. Powers-White first had to discuss this call with her husband and then called back to confirm an appointment.

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[572]When they arrived at the CUNS location near Pearson International Airport and entered they were met with a colourful display of pictures of resorts, Caribbean music playing. The had lunch and then went to a presentation room. They were introduced to a youngish woman then a Caucasian woman. The first young lady led them into another a theatre style room. In this room where a video was shown. They sat down with a young woman (second young lady) who had a legal sized piece of paper and “interviewed “them taking notes and asking questions about how often they travelled and about our finances.

[573]They were taken to another area where they sat and spoke to another lady who Mr.

White testified was named “Amera”. Amera offered a membership for 10 years at $1,000 per year. Mrs. Powers- White testified that she and her husband did not agree with the initial quote. The evidence was not clear, however. According to Mrs. Powers-White testimony Amera offered to speak to her manager and returned and offered the consumers 5 years.

[574]The consumers made it clear that the reason they attended was to collect their prize. In chief Mrs. Power- White testified that there was always someone around and at one time and at one point in time when she attempted to speak to her husband she was told not talk – not to speak to each other. There was a total of three women and at one point the “middle” (also referred to as the “third woman”), of Caribbean decent, who seemed to be in charge, an ample woman wearing a large gold cross. All three women were very strong willed and engaged in closing the deal by working together. Mrs. Powers-White was not entirely sure that this third woman was Linda Gilmore but does recall her emphasizing that the membership was non- refundable, and you could not unjoin. Despite this Mrs. Powers-White was quite sure “in the back of her mind” that there would be a period of grace and suspected that the representation might have might have been a marketing ploy or scare tactic.

[575]Dr. White testified in chief that he believed that the woman who signed the contracts, Linda, was also one of the women in the room and that it was never explained to them that there was a different section of the membership fee for travel or for other items. Dr. White testified that he was not aware that there were two contracts until it was pointed out to him by investigator Charles. Then when he requested a day to look at the contracts the request was denied. When asked in chief about the breakdown in payment amounts in the contracts, he could not explain as there was no breakdown.

[576]Dr. and Mrs. White entered into two agreements both dated the 22 October 2006 with the same invoice number # 2607 and signed by the consumers as well as Linda Gilmore as the authorized representative. At the top of page two of both agreement reads the following Members fully acknowledge and accept this membership as a Binding Contract, which is non- refundable and non-negotiable [sic]. The first contract ( ex. 181) was for a 5 year membership with services including travel gallery, world resort club, cruise club, hot list – resort vacations, hot list-cruise vacations and stated at the bottom under the Acknowledgement section, in bold “ I fully understand the consumer protection act of 2002 stating the 10 day

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cooling off period for Travel Services only” and page 3 para. 3 reads “zero Cancellation policy will be enforced” [sic].

[577]Under the Additional terms and conditions section it sated “$1000 Travel Credit Valid 36 months”. The total contract was for 1399.02. it is important to note that Mrs. Powers-White did not sign the bottom of the first and third page however initialed various clauses. The second agreement (ex 182) is for VIP value service membership with a yearly fee of $99.00 and services including real estate, financial services, auto benefits and premium buyers. The total is $9595.59 with a deposit of $2400.00. Under acknowledgement it read in bold, amongst other things “zero cancellation policy”, page 2 para. 6 reads “No Refunds” [sic], and page 3 para. 3 reads “a zero Cancellation policy that will be enforced[sic]. It is for a total of $5593.98. Before leaving that day, Mr. White signed a cheque dated 22 October 2006 to CUNS in the amount of $6993 (ex185) which was cashed as confirmed by the statement form CIBC line of credit dated 27 October 2006 (ex. 191).

[578]Upon leaving CUNS that evening the consumers were led to a cylinder-shaped raffle drum that rotated and was full of pieces of paper or tickets. Mrs. Power- White drew a piece paper and they won a prize for a vacation of 3 nights and 4 days in the Muskoka/Bracebridge area but Mrs. Powers-White advised the CUNS representatives that they we would not be using it. The were promised a TV and “invited us into a totally different situation for a completely different reason”. Dr. White testified he left CUNS, “utterly crest fallen and thinking we’d been had”.

[579]The following correspondence was sent by the consumers:

-Request for cancellation and refund letter dated 31 October 2006 (ex 187) addressed to CUNS (unsigned). The exhibit is two pages and include a copy of the letter with fax confirmation header (dated 1 November2006) and a Canada Post registered mail receipt attached dated October 31, 2006. This exhibit also includes a copy of the receipt for the cheque that was provided, and the receipt is dated 22 October 2006.

-Request for cancellation and refund letter dated 6 November Ms. 2006 (ex 188) to CUNS to the attention of Linda Gilmore. This was in response to a telephone message that was left for the consumers from Linda Gilmore and confirmed Ms. Gilmore received the earlier letter (ex. 187).

-CUNS responded with a letter dated 21 November 2006 (ex. 189) accompanied by a cheque for $1399.02, to the consumers from CUNS dated 28 November 2006 (ex. 190). The cheque was not deposited until7 February 2007, approximately three months later.

[580] During cross-examination Dr. White testified to the following:

- While in chief he testified more than once that he had reviewed the documents in cross- examination he could not recall if he read parts of the agreement ( ex. 181) as two people were sitting with them and he and his wife were felt under pressure to sign

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-he confirmed part of his statement to investigator Charles describing the visit to CUNS “like a pressure cooker”, “boiler house” and “being brainwashed” and insisted the description was not an exaggeration

-when he left that day, he was under the impression that he had signed one contract as he was “so confused and muddled up in the head” that he felt “scrambled up in the head” and “brainwashed”.

-a couple during the middle of the proceedings decided to leave and they were escorted off the property

-that he and his wife were never left alone

[581] Mrs. Powers- White testified to following in cross-examination:

-while at CUNS on the evening the agreement was signed there was always someone sitting with them, interrupting, and asking that questions be directed towards them. Mrs. Power- White felt as though she was not being permitted to speak to her husband

-Immediately upon leaving CUNS the same evening her first thought was “we had just been taken for a ride” and that still believes that they were

-When she received the letter (ex. 189) with the cheque (ex. 190) she was surprised as she thought they had signed one contract and she didn’t know it was broken down into sections.

-Described the CUNS location as a “very oppressive area” and that her and her husband were “almost captive”

-Contracts were placed one on top of each other and for that reason, amongst others, she was not aware that two contracts were being signed, they had them all together.

-She signed partly because she wanted to “get out of there”.

-She was under the impression she was signing a contract with a 10-day grace period

-She did not attempt to stop payment on the cheque used to pay for the membership as she thought she had a ten days grace period

[582]Despite some inconsistencies pointed out between her testimony and the statement she provided to Investigator Charles, Mrs. Powers -White was stood firm in her testimony during cross-examination that she was under the impression she was signing one contract with CUNS.

Count 73 of information number 2 – Improper Contract

[583]The court agrees with para. 199 of the Crown’s submissions. As the agreement that was subject to the 10 day cooling-off period was for a significantly lower amount than the future performance agreement the court finds, upon application of s. 3 of the CPA, that the Mr. and Mrs. White entered into one agreement, a time share agreement. As such the court acquits on count 74 as against all defendants, as it relates to a future performance agreement.

[584]The agreement did not contain the required information as set out in s. 26 of the regulations, including, but not restricted to, clause 8 the cancellation language and clause 13- it lacks an itemized list of goods and services including the prices or each service. The deficiencies are an offence contrary to s. 27 of the CPA and an offence as per s. 116 (2) of the CPA. The

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court therefore finds CUNS guilty of the offence of improper contract and therefore guilty of count 73 of information number 2.

Improper Contract – the liability of Wendy Thakur and Wendy Daneluzzi

[585]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their written agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts-that the agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of improper contract and therefore guilty of count 73 of information number 2.

Count 75 – Unfair Practice -10 day cooling-off period- did not honour

[586]The court finds i) a representation was made to the consumers on page 1 (the agreement marked exhibit 181) that the consumers were entitled to a 10 day cooling-off period while at the same time on page 3 para. 3 reads “zero Cancellation policy will be enforced”. At the top of page two, of both agreements reads the following “Members fully acknowledge and accept this membership as a Binding Contract, which is non- refundable and non-negotiable [sic]. Exhibit

182 reads under acknowledgement, in bold, amongst other things “zero cancellation policy”, page 2 para. 6 reads “No Refunds” [sic], and page 3 para. 3 reads “a zero Cancellation policy that will be enforced[sic]. The court finds that the consumers had a right to cancel their agreement within 10 days as per s. 28 (1) of the CPA and as the agreement was deficient, they also had up to 1 year as per. 28 (2) of the CPA.

[587]The consumer requested to cancel their agreement, within the 10 day cooling-off period,

by sending a letter to CUNS dated 31 October 2006 via fax and registered mail (ex 187) and

iii)CUNS responded with in a letter dated 21 November 2006 (ex. 189) accompanied by a cheque dated 28 November 2006 for $1399.02, to the consumers (ex. 190). The consumer paid a total $6993 by cheque dated 22 October 2006 (ex185). The court further finds that the representation made was false, misleading, or deceptive as the CUNS did not honour the 10 day cooling-off period by providing a refund. This amounted to unfair practice as per s. 14(2) ss. 13 and contrary to s. 17 (1) with the CPA and an offence as per s. 116 (1)(b)(ii) of the CPA. The court finds CUNS guilty of unfair and practice and guilty of count 75 of information number 2.

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Unfair Practice – 10 day cooling-off period - the liability of Wendy Thakur and Antonietta Daneluzzi

[588]The court finds that the Crown has proven beyond a reasonable doubt the count as against the named defendants as they have proven knowledge of the true facts. The court finds that as the sole officers and directors of a CUNS the named defendants i) knew or ought to have known the content of the written agreement contained representations, ii) that these representations indicated the consumers were entitled to certain remedies, such as a 10 day cooling-off period, while at the same time indicating that there were “no refunds” and “zero cancellation”. That the named defendants i) had a responsibility to ensure the legality of the

contracts however, ii) allowed the agreements with the content to be used by CUNS iii) for the purpose of assisting CUNS to commit the offence of unfair practice by allowing the content of the agreement to used and not correcting it. The court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of unfair practice and guilty of count 75 of information number 2.

Count 76-Information number 2- – Fail to Refund

[589]The court has considered the testimony regarding the $1399.02 cheque (ex 190) that CUNS sent the consumers. It was clear from the evidence of Mrs. Powers-White that she held onto the cheque for almost three months as she i) didn’t think there was an urgency to cash as she was under the impression she had up to 6 months to do so, ii) she was relying upon advice not to cash the cheque as it would be some type of acceptance of the payment terms. The court finds that the cheque did not bounce but the account was closed. The court further finds that the delay in cashing the cheque is a non- issue. Even if the cheque were cashed and cleared and funds received by consumers, the court finds that the amount of the cheque from CUNS would not have amounted to the full refund to which the consumers were entitled. Furthermore, the cheque was dated more than 15 days of being given notice that the consumers requested to cancel their agreement which is also contrary to subsection 79 (1) of the of the regulations.

[590]The court has found above that the consumer made clear requests to cancel their agreement. The court further finds that upon a request of a refund sections 95 and 96 of the CPA were engaged and the consumers were entitled to a full refund within 15 days as per s. 79(1) of the regulations. As the consumers did not receive a full refund this was contrary to s. 96(1) of the CPA and an offence as per s. 116 (1)(b)(viii) of the CPA. The court therefore finds CUNS guilty of the offence of fail to refund and therefore guilty of count 76 of information number 2.

Fail to Refund – The liability of Wendy Thakur and Antonietta Daneluzzi

[591]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the defendants aided or abetted CUNS in the offence of fail to refund. That is, the Crown did not prove that i) the named

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defendants assisted or encouraged CUNS to not provide a refund, and ii) that the named defendants did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts). As such the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of the offence of fail to refund and not guilty of count 76 of information number 2.

Information number 2 – Counts 77 to 81 – Brenda Ward and Darryl Ward

[592]Brenda and Darryl Ward testified before the court on 23 March 2015.

[593]Mr. Ward received a call from CUNS that if they attended their office and participated in a presentation that they would receive a digital camera. The Wards attended the CUNS location

Orlando Drive in Mississauga with their children and Mrs. Ward’s niece, on Saturday 18

November 2006.

[594]Upon their arrival, Mr. Ward testified they took down their names and addresses and were offered breakfast when a woman named Wanda sat down with them and conducted a survey. Wanda asked about travel plans, appliances, furniture, and cars. Mr. and Mrs. Ward both made it clear they were not seeking those services or products. There were other couples seated around the room with their “guides”. Mr. Ward described these guides as very friendly. The children after breakfast were taken to another room Mr. Ward described as a “playroom”.

[595]They then moved to a room with the other couples, where a man made a presentation. This man was asking the audience whether they had heard of CUNS before or searched about them online. The Wards made it very clear to Wanda that neither her nor her husband were interested in using it for themselves as they are were not travellers. The presenter then began to speak about other services CUNS services such as buying a car and financing mortgages. Wanda was with them at the time.

[596]After the presentation they went to another room with Wanda and it appeared in this room there were others seated at different tables with their “representatives” with them as well. Wanda sat at the table with them and at times she would leave and someone else would sit down. Mrs. Ward testified it seemed that her and her husband were never alone although Mr. Ward testified that at one moment that they decided to join that there were alone to briefly discuss.

[597]Mrs. Ward advised Wanda about her brother in Alberta who liked to travel, also her father-in-law who liked to travel to Puerto Rico. Mrs. Ward also mentioned her family in Nova Scotia and Wanda confirmed she was also from there. This made Mrs. Ward feel as though she would be understood and that they had something in common. Mrs. Ward mentioned that the only people that could use the membership would be members of her family in Nova Scotia and Wanda advised that CUNS was all over Canada. Mrs. Ward told Wanda that her parents required a second mortgage and her sister required a new car. It was then, according to Mr.

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Ward’s testimony that Wanda advised that the couple could add 5 people to the membership as family members and that her family members in Nova Scotia could use the services. Under the “Additional terms and conditions” section of the VIP Value Service contract, it states, amongst other things, “Five additional members at no additional cost” (ex. 172).

[598]Mrs. Ward repeatedly asked this question to confirm if her family in Nova Scotia could use the membership. Wanda and was advised each time that her family could use the membership. Mrs. Ward wanted to make sure as that would be the main reason she would consider joining.

Wanda quoted them a 3-year membership price of $5000 which Mr. Ward refused. Wanda kept reminding her to think about her parents and suggested they would recoup the membership price by just buying a car. Wanda then pulled out a calculator and started working out calculations to determine how much her family members would have to pay each month. Ultimately this was the deciding factor that lead the Wards to join CUNS.

[599]Once the decision was made there was an announcement and clapping. Mrs. Ward

testified Wanda led them into another room where they met a “big set” woman, “I think it was Wendy”. Mrs. Ward was advised that she was not permitted to speak to nor ask Wanda questions while in the room with Wendy. In this room were the consumers, Wanda, and Wendy. At one point in time Linda Gilmore was present and the membership agreement was signed. It is also important to note that Mrs. Ward also testified in chief that, “I get Wanda and

Wendy mixed up”.

[600]Mr. Ward testified that after announcing they would join: i) they were shown two contracts and were advised by Wendy that she had to split them into a travel contracts and the product contract, ii) Wanda was there but didn’t say anything , iii) Wendy advised them that they had to enter into both agreements as it was a packaged deal and that was the way the law is, and iv) he had mentioned to Wendy the importance of family membership being able to buy the products in Nova Scotia and she didn’t respond.

[601]After signing the agreements that day, Mrs. Ward paid the membership fee with her card after CUNS representative had called the bank to raise her credit limit. In chief Mrs. Ward testified that she, her husband, and Wendy discussed the contract. However, in cross-examination by Mr. Rahamim she admitted that she did not recall going over the contract with Wendy.

[602]On 18 November 2006 they entered into two agreements with same invoice number

2641. Both agreements have a signature appearing below the name “Linda Gilmore Business Office” (sic) as the name and position of authorized representative and “Wanda” as the salesperson. The first contract is three pages (ex. 171) is for a VIP Travel Service which included a membership with CUNS for 3 year and a yearly fee of $99.00. and services such as travel gallery, world resort club, cruise club, hot list – resort vacations, and hot list – cruise vacation.

Written under the “Additional Terms and Conditions” section is the following “One Bonus week off Hot. List for 7 days up to 8 People. Accommodation Only. Transportation and meals are member responsibility. Maximum value $5oo USD. Valid for 36 months”. [sic]. The bottom left

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portion under acknowledgement states in bold print, amongst other things, “I also fully understand that consumer protection act of 2002 stating the 10 day cooling-off period for Travel Services only” [sic]. Under billing details “debit” is checked off. On the right it shows a total of $ 999.03. The second agreement (ex. 172) is for VIP value service for 3 years with a yearly fee of $99.00 that include real estate services, financial services, auto benefits, and premium buyers. Under the Heading “additional terms and conditions” it states, amongst other things, “Five additional members at no additional cost” Under billing details “debit” is checked off and to the right the total shows $3993.97. Exhibit 173 was page 4 to one of the agreements and entitled, “Why I became a member of Canadian Universal Network Solutions” dated 18 November 2006. In writing below this title is “To save money in the long run and as a gift to my parents, my wife’s parents and friends”.

[603]Mrs. Ward paid $4993.00 on her card ( it would appear to be a debit card) and exhibit 170 was the faded original and a photocopied image of the original transaction receipt on the face of what appears to be a copy of page one of the first agreement. Mrs. Ward could not recall how much she paid individually for services when asked about the VIP value service (ex. 172) as the details were not broken down. It is important to note that nothing specific is mentioned in either agreement about accessibility of the agreement to persons residing in Nova Scotia.

[604]The Wards were given a “Camera Redemption Certificate” pulled from a bin. They also received a prize voucher (ex. 179) which was for free accommodations. They were to receive instructions as to how to redeem the certificate by returning for an orientation session however after consulting with a lawyer, they never returned for the orientation session.

[605]Ultimately none of her family members, neither she nor her husband ever used the CUNS membership. On the way home Mrs. Ward felt uneasy so the next business day (Monday) she called Linda Gilmore to inquire about the stores in Nova Scotia and was advised CUNS business was restricted to the greater Toronto area. During this call Mrs. Ward demanded her money back which was met what she described as a “brush off” coupled with an invitation to re-attend CUNS to work things out.

[606]The Wards sent a cancellation notice from Lawyer Michael F. Boland dated 22 November

2006 (ex. 175) requesting to cancel the agreement and seeking a full refund of the $ 4993.00 paid. In response CUNS responded with a refund letter dated 8 June 2007 (ex. 176) enclosed in this exhibit is a photocopy of a cheque from CUNS dated 5 March 2007. CUNS sent a cheque for $999.03 and the Wards cashed the cheque and it cleared. This was described as “travel contract” in the letter that was being cancelled and refunded. It would appear the cheque was created almost 3 months earlier than the date of the letter. During cross-examination by Mr. Wright, Mr. Ward indicated that even after receiving this cheque, he still attempted to get a full refund for the balance on the other contract. The Wards never received a full refund, nor did they use any services of CUNS.

[607]During cross-examination by Mr. Rahamim, Mr. Ward testified that in relation to his statement given to investigator Charles (dated 9 March 2007), Mr. Ward agreed i) he was not

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aware of Wendy’s last name at that time, ii) he did not mention in the statement of Wendy being in the room and splitting the agreements into two iii) agreed that it was not Wendy but Linda Gilmore that explained there were two contracts iv) he told Wendy the consumers were interested in purchasing items so that relatives in Nova Scotia would be using the membership and buying products in Nova Scotia and that is where he would want the products to be. However, as Mr. Rahamim pointed out, he did not mention in the statement to investigator Charles, that he discussed the Nova Scotia aspect of the membership to Wendy. When Mr. Rahamim suggested it would have been Wanda or Linda, Mr. Ward responded, “We did ask if her parents could use it instead, and we would have said that they lived in Nova Scotia. I’m, pretty sure we, we would have said that. So, it was to Wendy”. When it was suggested to Mr. Ward that his wife testified that the Nova Scotia part of the membership was not discussed with Wendy, Mr. Ward responded, “ I’m just assuming if we were talking about her parents, we would have mentioned that they lived in Nova Scotia but maybe we didn’t “. He also confirmed that he was always with his wife when speaking to the representatives at CUNS and there were no side conversations.

[608]Mr. Ward indicated that; i) he knew Wendy’s last name as Thakur as she must have identified herself but then acknowledged that he has seen the name written down on the

“subpoena” to attend court and he must have seen the last name ii) Wendy had asked whether the consumers had any questions, iii) When Wendy and Wanda were in the room someone had just left the room and “ I think that could have been Antonio, Antonia, Antonietta, something like that”, iv) he went through all the fine print to see if there was any mention about freight costs as it related to this interest, and v) that there was no reference to such costs and the agreement seemed fine. He further testified that the next day they were advised that items could not be picked up in Nova Scotia and the services were applicable only to the greater Toronto area. In cross- examination by Mr. Rahamim taking Mr. Wright back to his original statement given to investigator Charles and his wife’s testimony he indicated that he assumed he mentioned this to Wendy but maybe he didn’t. During re- examination by Mr. Ludlow i) Mr. Ward agreed that the name Antonietta was also a name he had seen documents and that is why he assumed it could have been her and it was just speculation, and ii) at the time he signed the agreement he planned to have Brenda’s parents and her sister’s family use it to buy things they needed . When asked whether they were the “folks in Nova Scotia” Mr. Ward responded “Yes, in Nova Scotia”.

[609]Mr. Ward testified to the following during cross- examination by Mr. Wright i) that there was nothing written in the contract about of services specifically in Nova Scotia being included however there was nothing excluding indicating that it excluded Nova Scotia, and ii) he didn’t hear a name of the other person that was in the room that he earlier testified was Antonietta.

[610]During cross-examination by Mr. Rahamim, Mrs. Brenda Ward testified that: i) most of the interaction and going through documentation was with Wanda, ii) Wanda had made the representation that the membership could be used in Nova Scotia, Ms. Ward does not recall bringing up the topic of Nova Scotia with Wendy at all, iii) Wendy had asked her if she had any questions about what Wanda had said and Mrs. Ward answered no. Ms. Ward further testified

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that “Wendy talked about the whole thing as far as I know but I know Linda’s the one that went on the contract the most like talked the step by step”. Mrs. Ward further testified that, she did not really remember going over the contract with Wendy but she does remember that she talked with Wendy about the promotional hotel stay, which is when, again, she asked if her family could use it . Wendy also asked her whether she had any questions about what Wanda had discussed with her.

[611]During cross-examination by Mr. Wright, Mrs. Ward testified that she and her husband decided very quickly that they wanted to cancel their contracts as they realized that they had been misled and that they could only use the travel portion in the Greater Toronto area. Mrs. Ward further testified that she thought that there was only one contract “a consumer agreement” which was the terminology used in the legal refund requested letter (ex. 175).

Evidence of the Direct involvement of Wendy Thakur and Antonietta Daneluzzi in the business of CUNS

[612]It would appear from the testimony of the witnesses they were not sure whether they interacted with Wendy. Mrs. Ward that i) she did not recall going over the agreement with Wendy ii) Ms. Ward did not recall bringing up the topic of Nova Scotia with Wendy at all, iii) Wendy had asked her if she had any questions about what Wanda had said and Mrs. Ward answered no. It would appear Mrs. Ward was tainted by the names on the “subpoenas” as it related to recollection of Wendy’s name.

[613]Specifically as it relates to Mr. Ward i) he did not mention in the statement of Wendy being in the room and splitting the agreements into two ii) agreed that it was not Wendy but Linda Gilmore that explained there were two contract, iii) he didn’t mention in his statement to investigator Charles that he specifically asked about family members in Nova Scotia using the membership. When pressed he admitted he was assuming that he discussed this aspect of the membership with Wendy and finally admitted maybe he didn’t. To add, it appears Mr. Ward’s testimony as it related to names may have been tainted by the names that appeared on the

“subpoena”.

[614]The court therefore places very little weight on this evidence as it relates to Wendy Thakur. Mr. Ward mentioned Antonietta Daneluzzi’s names almost in passing and admitted it was speculation that he met her so the court cannot rely on that evidence. As the evidence relates Wendy Thakur it is a piece of evidence to consider in determining whether or not the Crown has i) proven that she had direct involvement with the business of CUNS, and ii) whether this will assist the Crown the particular count beyond a reasonable doubt in relation to Wendy Thakur having knowledge of the true facts.

Information number 2 Count 77 - Improper Contract

[615]The court agrees with para. 207 of the Crown’s submissions. Both agreements had the same invoice number and the time share agreement that was subject to a 10 day cooling-off

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period had significantly lower membership fees than the future performance agreement. Upon application of s. 3 of the CPA, the court finds that the consumers entered into one agreement, a time share agreement. The court therefore acquits all defendants of count 78 as it relates to a Future Performance agreement.

[616]The time share agreement did not contain the information as required by s. 26 of the regulations including, but not restricted to, the absence of information described in the clauses 6, 8, and 14. This is contrary to s. 17 of the CPA and an offence as per s. 116 (2) of the CPA. Therefore, the court finds CUNS guilty of the offence of improper contract and guilty of count 77 on information number 2.

Improper Contract – the liability of Wendy Thakur and Antonietta Daneluzzi

[617]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their written agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that- the agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of improper contract and guilty of count 77 on information number 2.

Count 79 – Unfair practice – 10 day cooling-off period- did not honour

[618]The court finds that at the top of page two of both agreements reads the following: Members fully acknowledge and accept this membership as a Binding Contract, which is non- refundable and non-negotiable” [sic]. The first contract (ex. 171) under the acknowledgement section, in bold, states “I also fully understand the consumer protection act of 2002 stating the 10 day cooling-off period for Travel Services only” and page 3 para. 3 reads “zero Cancellation policy will be enforced” [sic]. The second agreement (ex. 172) Under the Acknowledgement it read in bold, amongst other things “zero cancellation policy”, page 2 para. 6 reads “No Refunds” [sic], and page 3 para. 3 reads “a zero Cancellation policy that will be enforce” [sic].

[619]In addition to the representations made in the agreements including that a 10 day cooling- off period was available to the consumers, the court further finds that i) the consumers paid to CUNS a total of $4993, ii) a verbal request was made for cancellation and refund by Mrs. Ward to Linda Gilmore on the Monday after the agreement was entered into , and iv) the consumers requested to cancel the agreement via a letter from lawyer Michael F. Boland to CUNS dated 22 November 2006 ( ex. 175) requesting to cancel the agreement and seeking a full refund of the $ 4993.00 paid. The court finds a request to cancel the agreement was therefore made within 10 days of entering into the agreement. In response, CUNS responded

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with a refund letter dated 8 June 2007 (ex. 176). Enclosed in this exhibit is a photocopy of a cheque from CUNS dated 5 March 2007. CUNS sent a cheque for $999.03 and the Wards cashed the cheque and it cleared.

[620]The court finds that the consumers had a right to cancel their agreement within 10 days as per s. 28 (1) of the CPA and as the agreement was deficient they also had up to 1 year as per s. 28 (2) of the CPA. The court further finds that i) the consumers requested a refund within 10 days of entering the agreement , however this was not honoured as ii) the partial refund they received was not received within 15 days (s. 79(1) of the regulations) and , iii) for reasons stated above in relation to s. 3 of the CPA they were entitled to a full refund of all their funds. The court finds that the representation was false, misleading, or deceptive and amounted to unfair practice as per s. 14(2) clause 13, as the representation was not honoured. The court finds that CUNS is guilty of the offence of unfair practice and therefore guilty of count 79 of information number 2.

Unfair practice – 10 day cooling-off period – the liability of Wendy Thakur and Antonietta Daneluzzi

[621]The court finds that the Crown has proven beyond a reasonable doubt the count as against the named defendants as they have proven knowledge of the true facts. The court finds that as the sole officers and directors of a CUNS the named defendants i) knew or ought to have known the content of the agreement contained representations, ii) that these representations indicated the consumers were entitled to certain remedies, such as a 10 day cooling-off period, while at the same time indicating that there were “no refunds” and “zero cancellation”. That the named defendants i) had a responsibility to ensure the legality of the contracts however, ii) allowed the agreements with the content to be used by CUNS iii) for the purpose of assisting CUNS to commit the offence of unfair practice by allowing the content of the agreement to used and not correcting it. The court therefore finds Wendy Thakur and Antonietta Daneluzzi guilty of unfair practice and guilty of count 79 of information number 2.

Count 80 – Information number 2 - unfair practice - discounts and benefits

[622]In analyzing section 14 of the CPA and the 17 clauses that address unfair practice, the court finds that clause 14 is applicable. Section. 14 (2) and the 17 subsections (or clauses) provides examples of what a false, misleading, or deceptive representation is. This however is not an exhaustive list of what would constitute such a misrepresentation. Clause 14 reads as follows: “A representation using exaggeration, innuendo or ambiguity as to a material fact or failing to state a material fact if such use or failure deceives or tends to deceive”.

[623]The court finds that s. 14(2), clause 14 has been breached based upon the consumers testimony above that i) they joined CUNS to allow Mrs. Ward’s family in Nova Scotia to use the membership which including to purchase items where they lived, ii) Mrs. Ward inquired specifically about this issue, and iii) Mr. Ward scanned the agreement to determine whether there freight fees to determine if they ordered items whether they would have to pay for

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shipment. Based upon what was misrepresented to them by CUNS it led the Wards to i) decide the next day to cancel the agreement, and ii) proceed to make legal efforts to cancel the agreement. The court further finds that nowhere on the agreements (exhibits 171 and 172) does it indicate that there is a geographic restriction to the membership that would have informed the consumers that they could not utilize the membership for family members in Nova Scotia. Under the “additional terms and conditions” section of the VIP Value Service contract, it states, amongst other things, “Five additional members at no additional cost” (ex 172). Exhibit 173 page 4 entitled “Why I became a member of Canadian Universal Network Solutions” dated 18 November 2006 it reads in handwriting, “To save money in the long run and as a gift to my parents, my wife’s parents and friends”. The court draws an inference from this evidence that i) some discussion was had between CUNS and the consumers about additional members and who could or could not use the membership and ii) the issue of who could use the membership and the possibility of geographic restrictions was discussed.

[624]The “additional terms and conditions” section of the agreement would be the ideal area to specify the consumers specific concerns however it would appear the consumers were not knowledgeable enough to specifically request it be written down and CUNS neglected to do so. As the agreement is deficient and lacks the proper information in s. 26 of the regulations it does not specify information that would serve to clarify and avoid misinterpretations or misunderstandings of what the agreement entailed. The court finds that there was no misunderstanding on the consumer’s part. Instead, CUNS sought to rely on the ambiguity of the agreement and innuendo as to the material fact of the geographic boundaries of the agreement to benefit from it.

[625]The question then becomes – does the representation made have to be a clear direct verbal or written representation? The court finds that i) as evidenced by the 17 clauses as per s. 14(2) of the CPA, that it does not and ii) considering the purpose of the CPA and to protect the consumer from the sophisticated, crafty or nefarious supplier who may be one or more steps ahead or are endowed with an advanced knowledge of the law to allow them to continue perpetrating their malfeasance upon consumers, the answer has to be no. The court reaches these conclusions without reliance upon the hearsay evidence that was tendered as there was no voir dire to determine its admissibility- no request was made by either party. It is important to note that considering the length of this matter, to forge through the evidence as efficiently as possible, much restraint was shown by all counsel to not needlessly object to each matter at issue. However, as the trier of fact the court must still assess the evidence in a manner that is consistent with the rules of evidence for the purposes of fairness. Despite the volume of the case, the fact that the court received the evidence does not mean that each piece of evidence heard should be given equal weight. As such I place very little weight on the hearsay evidence that was heard.

[626]For the reasons above the court, weighing the lack of information in the written agreement with the expectations of the consumers via their viva voce testimony, that the representation (or omission to specify said representation) was false misleading or deceptive and amounted to unfair practice which is contrary to s. 17(1) of the CPA and an offence as per

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s. 116 (1)(b)(ii) of the CPA. As such the court finds CUNS is guilty of the offence of unfair practice and guilty of count 80 of information number 2.

Count 80 - Unfair practice – discounts and benefits - The liability of Wendy Thakur and Antonietta Daneluzzi

[627]As discussed above (see paras. 612 to 614), little weight is placed on the evidence heard relating the direct involvement of Wendy Thakur. While Mr. Ward testified that it was Wendy who assisted with entering into the agreement in cross-examination, he agreed it was not Wendy but Linda Gilmore. In chief he testified he spoke to Wendy about using the services in Nova Scotia in cross-examination he indicated that he wasn’t sure that discussed that specific aspect of the agreement with Wendy. While in chief Mrs. Ward testified i) hat she did not recall discussing the issue of using the services in Nova Scotia with Wendy Thakur and ii) she did not really remember going over the contract with Wendy.

[628]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the named defendants had knowledge of the true facts, that i) CUNS having made the representation, ii) that CUNS intended to commit the offence of not honouring the representation , and iii) the Crown could not prove that the named defendants did or omitted to do something to assist CUNS in committing the offence.

[629]Little weight can be placed on the evidence regarding Wendy Thakur for reasons discussed above. Even if the court were to consider the evidence at it relates to Wendy Thakur with great weight, the evidence as its highest i) does not place Wendy Thakur as having direct involvement when the agreement was entered into, ii) does not confirm that Wendy Thakur was directly spoken to regarding he use of the membership in Nova Scotia. The court finds that the Crown would still not be able to prove this count as particularized beyond a reasonable doubt. The court finds Mr. Ward’s testimony regarding Antonietta Daneluzzi amounted to speculation. The court therefore finds Wendy Thakur and Antonietta Daneluzzi not guilty of unfair practice and therefore not guilty of count 80 of information number 2.

Information number 2 -Count 81 – Fail to Refund

[630]The court finds that i) the consumers requested a refund within the 10 day cooling-off period, ii) only received a partial refund, iii) CUNS responded in a letter dated 8 June 2007 ( ex. 176) and enclosed in this exhibit is a photocopy of a cheque from CUNS dated 5 March 2007 and iv) CUNS advised the cheque for $999.03 was for the “travel contract” that was being cancelled and refunded. It would appear the cheque was created almost 3 months earlier than the date of the letter. Once a request to cancel was made, the court finds that sections 95 and 96 of the CPA were engaged and the consumer had a right to a full refund within 15 days as per s. 79(1) of the regulations. Despite the partial refund being provided, during cross-examination by Mr. Wright, Mr. Ward indicated he still attempted to get a full refund for the balance on the other contract. The Wards never received a full refund, nor did they use any services of CUNS.

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The court finds that in not providing a full refund CUNS actions were contrary to s. 96(1) of the CPA and therefore, an offence as per s. 116 (1)(b)(viii) of the CPA. The court does not accept the oral submission of Mr. Wright that when the refund is offered and the customer for his own reasons decides not to accept the refund, that this court would be hard pressed to convict anyone in those circumstances. As sections 95 and 96 are engaged the CPA seeks to put the consumer in the position they were before entering the agreement and that includes providing a full refund. The court therefore finds CUNS guilty of the offence of fail to refund and therefore guilty of count 81 of information number 2.

Fail to Refund – the liability of Wendy Thakur and Antonietta Daneluzzi

[631]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the defendants aided or abetted CUNS in the offence of fail to refund. That is, the Crown did not prove that i) the named defendants assisted or encouraged CUNS to not provide a refund, and ii) that the named defendants did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts). As such the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of the offence of fail to refund and therefore not guilty of count 81 of information number 2.

Counts 82 to 85 - Richard Makohoniuk and Joan Haynes

[632]On the 27 September 2017 the Crown requested the counts dismissed as no evidence was hear. These counts were dismissed.

Information number 2 – Counts 86 to 89 – Chandra Shekhar and Shobha Chandra-Shekhar

[633]Evidence related to the Shekhars was admitted as an agreed statement of facts marked as exhibit 381.

Information number 2 count 86-Improper Contract

[634]The court agrees with para. 218 of the Crown’s submissions. Despite the agreements having different invoice numbers, applying s. 3 of the CPA, the court finds that the consumers entered into a time share agreement as CUNS attempted to deny the consumers their 10 day cooling-off period and retain the majority of the monies received by providing the impression to the consumers that they entered into one agreement. The court finds one agreement was entered into (ex. 381-Tab A and B) a time share agreement as read together; it meets the definition in s. 21(1) of the CPA it is required to contain the information in s. 26 of the regulations. The court further finds that the agreement fails to contain the said requirements including, but not restricted to clauses 6 and 8. This is contrary to s. 27 of the CPA and an offence as per s. 116 (2) of the CPA. The court therefore finds CUNS guilty of count 86 of

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information number two. Considering the above, in relation to the count 87 future performance agreement, the court dismisses count 87 as against all defendants.

Improper contract - Count 86 -The liability of Wendy Thakur and Antonietta Daneluzzi

[635]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their written agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that- the agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of improper contract and guilty of count 86 of information number 2.

Count 88 information number 2 – Unfair Practice – 10 day cooling-off period- did not honour

[636]The court finds that the agreements make the following representations: i) At the top of page two of both agreements state, “Members fully acknowledge and accept this membership as a Binding Contract, which is non- refundable and non-negotiable” [sic], ii)The first agreement (ex.381-Tab. A) dated 4 March 2007, under the Acknowledgement section, in bold stated, “ I also fully understand the consumer protection act of 2002 stating the 10 day cooling-off period for Travel Services only” [sic] while at the same time on page 3 para. 3 reads “zero Cancellation policy will be enforced” [sic], iii) The second agreement (ex.381-Tab. B) under the Acknowledgement section it read in bold, amongst other things “zero cancellation policy” iv), page 2 para. 6 reads “No Refunds” [sic], and v) page 3 para. 3 reads “a zero Cancellation policy that will be enforced” [sic].

[637]The court further finds i) CUNS made the representation within their agreement that they would honour a 10 day cooling-off period, ii) The court further finds that the consumers requested to cancel their agreement within the 10 day cooling-off period as per their dated 6 March 2006 (ex. 381-Tab. F) . The consumers, in their 8 March 2007 email to Linda Gilmore (ex. 381-Tab. F) state in para 3, that, “there is no cooling-off period or trial period”. It would appear at the time the email was drafted, that the consumers still were not aware that they were entitled to a 10 day cooling-off period however, the court finds in their response, that CUNS did not address this or inform them. The court finds that the consumers had a right to cancel their agreement within 10 days as per s. 28 (1) of the CPA and as the agreement was deficient they also had up to 1 year as per s. 28 (2) of the CPA.

[638]The court further finds that: i) despite the request to cancel the consumers never received a refund, that ii) therefore CUNS did not honour the representation thus the representation made by CUNS was false, misleading or deceptive and therefore unfair practice

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as per s.14 (2) clause 13 of the CPA. This is contrary to s. 17(1) of the CPA and an offence as per s. 116 (1)(b)(ii) of the CPA. The court finds CUNS guilty of the offence of unfair practice and guilty of count 88 of information number 2.

Count 88 - Unfair practice -10 day cooling-off period- The liability of Wendy Thakur and Antonietta Daneluzzi

[639]The court finds that the Crown has proven beyond a reasonable doubt the count as against the named defendants as they have proven knowledge of the true facts. The court finds that as the sole officers and directors of a CUNS the named defendants i) knew or ought to have known the content of the written agreement contained representations, ii) that these representations indicated the consumers were entitled to certain remedies, such as a 10 day cooling-off period, while at the same time indicating that there were “no refunds” and “zero cancellation”. That the named defendants i) had a responsibility to ensure the legality of the

contracts however, ii) allowed the agreements with the content to be used by CUNS iii) for the purpose of assisting CUNS to commit the offence of unfair practice by allowing the content of the agreement to used and not correcting it. The court therefore finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of unfair practice and guilty of Count 88 on information number 2.

Count 89- Information number 2 – Fail to Refund

[640]The time share agreement was entered into on March 4, 2007 and the court finds the consumers made the following efforts to cancel: i) in the March 6th 2007 email from Chandra Shekhar to Linda Gilmore of CUNS part of the email read, “In fact, if there is any provision that would allow us to cancel the membership contract we would like to do so with any reasonable penalty” ( ex. 381-Tab F) ii) in a registered letter dated 13 March 2007 with fax confirmation (ex. 381-Tab.I) iii) twice regarding agreement 3036 and 3037 as referenced in an email dated 2 April 2007 (ex.381-Tab. K) and, iv) verbally during a meeting with Linda Gilmore on 15 May 2007 (ex. 381-Tab 1, para. 13). Linda Gilmore acknowledged the consumers earlier request to cancel in her email dated 2 April 2007 (ex.381-Tab. K). CUNS denied the consumers request to cancel in a letter dated 4 March 2007 (ex. 381-Tab L).

[641]The court finds that once a consumer requests to cancel that it engages the consumer’s right to a refund as per sections 95 and 96 of the CPA and the consumers have a right to a refund within 15 days (s. 79 (1) of the regulations). As CUNS never refunded the consumers the monies they paid, this is contrary to s. 96 (1) of the CPA and an offence as per s. 116 (1)(b)(viii). The court finds CUNS guilty of fail to refund, and therefore guilty of count 89 of information number 2.

Fail to refund - The liability of Wendy Thakur and Antonietta Daneluzzi

[642]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the defendants aided or abetted CUNS in the offence of fail to refund. That is, the Crown did not prove that i) the named

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defendants assisted or encouraged CUNS to not provide a refund, and ii) that the named defendants did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts). As such the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of the offence of fail to refund and therefore not guilty of count 89 of information number 2.

Information number 2- Counts 90 To 93 – Yvonne McArthur and Connie Giggins

[643]Yvonne McArthur and Connie Giggins testified before this court on October 1st, 2015.

[644]Ms. McArthur received a call from CUNS advising her she had a chance to win a vacation and invited her to their location for a buffet dinner. Mrs. McArthur contacted her friend Ms. Giggins to accompany her. They attend the CUNS Orlando drive location on 13 March 2007, where there were about 20 people that appeared to be guests there, had something to eat at the buffet.

[645]After the buffet they went to another room where someone spoke about the CUNS not being restricted to time shares, but was also about travel, getting wonderful vacations, and discounts on cars and furniture. Both consumers testified that after the presentation many people left. Only the travel portion interested Ms. McArthur. The participants were shown a video with all the lavish places they could travel which McArthur described as amazing.

[646]At this time a young man came to sit with the consumers and explained the advantages of travelling with CUNS including the lower prices than what others could offer. It is not clear from

Ms. McArthur’s testimony whether this is the same young man that gave the presentation but at one point in time it was either a lady or a young man that offered pricing for membership. Ms. McArthur testified that she wanted to ask about the two places that she and Ms. Giggins were interested in travelling to Greece and Europe. She further testified that i) the representative gave them a good price but without airfare , ii) she specifically asked about airfare as she and Ms. Giggins had already looked it up online and had a “pretty good idea”, and iii) that “ This other lady said ‘Oh yeah, we can get you a really good price’ for I think it was $650.00, or something like that, return” , iv) the suggestion from the CUNS representative was that they could obtain the deal with any airline as they had relationships with all the airlines. Ms. McArthur found this a bit suspicious. The consumers decided that for the amount quoted that they could split the membership and it might be worthwhile.

[647]Mrs. Giggins testified that i) her and Ms. McArthur were “actually looking on planning a trip”, and determined they might as well get a price, to get an idea of what it would cost ii) the women without any paperwork provided them with a price , iii) the price “ It was about $1000.00 less than we’d been previously quoted ( external inquiries not through CUNS). So that‘s how they got us in the first place”, and iv) that was per person.

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[648]Ms. McArthur testified that the consumers were first offered a $20,000 membership plan. Ms. Giggins testified that they were offered a membership for 20 years but ultimately agreed to a 6-year membership. Ms. Giggins further testified that she was retired, Ms. McArthur was working part-time, and they had decided they would travel a bit more. The consumers were not interested and were ready to leave at that point when he lowered the plan to $10,000 and then again to $3600. In between, it appeared the man who was talking to someone else would return with a lower offer. Ms. Giggins testified that during the negotiation and signing of the contract that at least four or five people were “coming at you from all sides and asking to ‘sign here’ and ‘do this’”. She described it as, “chaos”.

[649]Once they were quoted the $3600 and the consumers decided to join – the consumers decided that for the amount quoted that they could split the membership and it might be worthwhile. They were taken to another room where they met an older woman in late 40’s, whom Ms. McArthur described as big in stature, stern and “business like”.

[650]Mrs. McArthur testified that she asked the young man, the younger lady, and the older lady specifically whether if she decided to cancel that she could cancel. Ms. McArthur testified when she asked the older lady about cancelation, she seemed a bit annoyed and Ms. McArthur was advised that she could as that was the law in the province. This put Ms. McArthur at ease. In chief as the Crown was guiding her through the agreement (ex. 363) she had signed, Ms. McArthur was asked about the text under the Acknowledgment section. This text read “I also fully understand the consumer protection act of 2002 stating the 10 day cooling-off period for Travel Services Only” [sic] in bold letters. Ms. McArthur testified again that she had specifically inquired about it twice before entering the agreement and understood that the 10 day cooling- off period related to cancelling the agreement. However, she did not recall discussing the “zero cancellation policy” as it appears on page 3 of the agreement.

[651]The conversation then turned towards the means of payment Ms. McArthur testified in chief that: i) CUNS would not take cheques, only an American Express credit card, ii) Frank Altomare suggested she apply for a short term bank loan and iii) ultimately Ms. Giggins paid the membership fee with her American Express card. Ms. Giggins testified that when she indicated she would like to think about the contract and not sign on that day she was advised that she had to pay upfront and further advised that she had 10 days to cancel. During her testimony in chief Mrs. MacArthur identified the name Frank Altomare’s on the CUNS agreement as the person assisting her with the loan documentation, but she did not hear anything else about the loan after that day.

[652]The consumers entered a 3- page agreement with CUNS on 13 March 2007 (ex. 362) with an invoice number of 3081 and signed by Frank Altomare as the name of authorized representative and Mike as the salesperson. The contract was for V.I.P. travel service membership for a term of 6 years with a yearly fee of $99.00. The services included travel gallery, world resort club, hot list-resort vacations, and hotlist cruise vacations. The total amount of the contract was $3398.00 which was paid in full via credit card. Under the Acknowledgement section of the contract it states, amongst other things, in bold “I also fully

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understand the consumer protection act of 2002 stating the 10 day cooling-off period for Travel Services Only” (sic). Page 3 of the contract paragraph 3 states that there is a “zero cancellation policy that will be enforced” in relation to the agreement.

[653]By the time the consumers signed the contract it was about 11:30 pm and they had arrived at about 6:00, both consumers were very tired. During her in chief testimony while being guided through the contract by the Crown, Ms. Giggins stated that she recognized her signature and where she signed but couldn’t recall signing. She primarily recalled attending an office and “people coming from all sides” and it was very confusing to her.

[654]The next day Ms. McArthur made inquiries on the internet and called Ms. Giggins. They both agreed that joining CUNS was not a good idea. This led Ms. McArthur to call CUNS and spoke to Linda and advising her that she wanted to cancel the agreement and return the gifts. Linda Gilmore invited Ms. McArthur back to CUNS for an orientation and Ms. McArthur made it very clear that she did not want to attend an orientation and the wanted to return to cancel the agreement. An appointment to cancel was set up and the consumers attended. Ms. McArthur testified that before attending the meeting she typed up a request to cancel the agreement dated March 20th, 2007 (ex. 363) which also requested a full refund of the $3398 paid. The letter was signed by both consumers.

[655]At the meeting Linda Gilmore seemed upset and tried to explain about benefits of the membership however Ms. McArthur was firm in her position to cancel and Linda Gilmore ultimately agreed to cancel the contract. The letter to cancel was ultimately produced to Ms. Gilmore and she signed at the bottom and there is a notation below her name that she received the letter on March 20th, 2007 at 3:15 p.m.

[656]Ultimately the consumer did receive which Mrs. McArthur characterized as a “really

horrible phone” for a landline and a little DVD player. Neither of the consumers ever went on a vacation with the assistance of CUNS. Ms. Giggins testified in chief that she paid the membership fee total $3398.00 on her American Express card but has never received any money back despite requesting the refund in writing ( ex. 363 )from CUNS and contacting her bank, but that proved unsuccessful as the payment was processed already.

[657]Ms. Giggins testified to the following in cross-examination by Mr. Wright:

-Did not recall seeing the clause referring to zero cancellation as it was late at night about 11:00pm after being at CUNS for hours.

-she inquired if they could take the documentation home and return and that request was denied

-within a day or two after signing the contract she made inquiries by calling CUNS with respect to pricing regarding a trip to Greece for her and Ms. McArthur

Mr. Wright was referencing her statement to Investigator Charles where she indicated that CUNS provided her a quote that was only a savings of $230 than the $1000 quote she received - per person

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-Through inquiries she made by calling CUNS, she received a quote turned out to only be a savings of $230 per person- meaning a quote of about $770 while CUNS had quoted them a savings of about $1000.

-CUNS promised the consumers could save $1000 each before they decided to become members and when she called to receive a quote, she was provided with a savings of $230 from the $1000 they had been quoted (per person).

-She is a travel agent and i) wanted to check out the quote CUNS had suggested before actually signing the agreement, ii) CUNS represented that, if anything, she could cancel within 10 days, and iii) she finally inquired through CUNS after signing the agreement and determined “ there wasn’t anything like the $1000 different per person”.

[658]Neither consumer, despite the requests, received any money back. Information number 2 -Count 90 – Improper Contract

[659]The court finds that I) the agreement that the consumers entered on 13 March 2007 (ex. 362) was an agreement for “discounts or benefits” as per s. 20(1)(b) of the CPA, and ii) the agreement was deficient as it did not include the information required as per s. 26 of the regulations including, but not restricted to, clauses 8, clause 14 ( the absence of prices for the list of goods and services). This is contrary to s. 27 of the CPA and an offence as per s. 116(2) of the CPA. Therefore, the court finds CUNS guilty of the offence of improper contract and guilty of count 90 of information number 2.

Improper Contract – the liability of Wendy Thakur and Antonietta Daneluzzi

[660]Thee court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their written agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that the agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of improper contract and guilty of count 90 of information number 2.

Count 91 -Information number 2 Unfair Practice – 10 day cooling-off period- did not honour.

[661]The court finds that CUNS represented that they would honour a 10 day cooling-off period i) on page one of the agreement under the Acknowledgement section that reads “ I also fully understand the consumer protection act of 2002 stating the 10 day cooling off period for

Travel Services only” while at the same time page 3 para. 3 reads “zero Cancellation policy will be enforced” [sic] and ii) verbally made to both consumers before they entered into the

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agreement. The court further finds that within the 10 day cooling-off period the consumers expressed their desire to cancel the agreement i) verbally , and ii) via a letter sent to CUNS dated March 20th 2007 ( ex. 363) which also requested a full refund of the $3398.

[662]The court finds that the consumers had a right to cancel their agreement within 10 days as per s. 28 (1) of the CPA and as the agreement was deficient, they also had up to 1 year as per 28 (2) CPA. The court finds that as CUNS did not honour the representation by not providing a refund this amounted to unfair practice as per s.14 (2) clause 13 as the representation was false, misleading, or deceptive. This contrary to section 17 (1) of the CPA and an offence under s. 116 (1)(b)(ii). The court finds CUNS guilty of unfair practice and guilty of count 91 of information number 2.

Unfair Practice- The liability of Wendy Thakur and Antonietta Daneluzzi

[663]The court finds that the Crown has proven beyond a reasonable doubt the count as against the named defendants as they have proven knowledge of the true facts. The court finds that as the sole officers and directors of a CUNS the named defendants i) knew or ought to have known the content of the agreement contained representations, ii) that these representations indicated the consumers were entitled to certain remedies, such as a 10 day cooling-off period, while at the same time indicating a “zero cancellation policy”. That the named defendants i) had a responsibility to ensure the legality of the contracts however, ii) allowed the agreements with the content to be used by CUNS iii) for the purpose of assisting CUNS to commit the offence of unfair practice by allowing the content of the agreement to used and not correcting it. The court therefore finds Wendy Thakur and Antonietta Daneluzzi guilty of unfair practice and guilty of count 91 of information number 2.

Count 92 – Information number 2- Unfair Practice - obtain discounts or benefits

[664]There is some contradictory evidence in relation to the amounts quoted by CUNS with respect to travel in comparison to individual quotes.

[665]Ms. McArthur testified that many representations regarding air travel were made to them. Ms. McArthur wanted to ask about the two places that she and Ms. Giggins were interested in travelling to -specifically Greece and Europe. She further testified that i) the representative gave them a good price but without airfare , ii) she specifically asked about airfare as she and Ms. Giggins had already looked it up online and had a “pretty good idea”, and iii) that “ This other lady said ‘Oh yeah, we can get you a really good price’ for I think it was $650.00, or something like that, return” , iv) the suggestion from the CUNS representative was that they could obtain the deal with any airline as they had relationships with all the airlines. However, the court finds that not much can be gleaned from this testimony as there is no context as to what the usual price for a plane ticket to Greece or Europe was at the time for reasons of comparison.

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[666]Ms. Giggins’ testimony is helpful as it discusses the representation in relation to the savings. While in chief it appeared that Ms. Giggins testified that the second quote provided by CUNS was for a savings of $230 , it was clarified in cross-examination that she was referring to a savings of $230 in relations to the $1000 savings that was originally quoted by CUNS. That is, after joining CUNS and calling to receive a quote to travel to Greece for a savings of $1000, she would have received a quote of savings of $770.00 which was a savings of $230 less. Mrs.

Giggins testified that i) her and Ms. McArthur were “actually looking on planning a trip”, and determined they might as well get a price, to get an idea of what it would cost ii) the women without any paperwork provided them with a price , iii) the price “ It was about $1000.00 less than we’d been previously quoted ( external inquiries not through CUNS). So that’s how they got us in the first place”, and iv) that was per person.

[667]In cross-examination by Mr. Wright Ms. Giggins testified as follows:

-within a day or two after signing the contract she made inquiries by calling CUNS with respect to pricing regarding a trip to Greece for her and Ms. McArthur.

-Mr. Wright was referencing her statement to Investigator Charles where she indicated that CUNS provided her a quote that was only a savings of $230 rather than the $1000 quote she received -per person

-Through inquiries she made by calling CUNS, she received a quote turned out to only be a savings of $230 per person- meaning a quote of about $770 while CUNS had quoted them a savings of about $1000.

-CUNS promised the consumers could save $1000 each before they decided to become members and when she called to receive a quote, she was provided with a savings of $230 from the $1000 they had been quoted per person).

-She is a travel agent and i) wanted to check out the quote CUNS had suggested before actually signing the agreement, ii) CUNS represented that, if anything, she could cancel within 10 days, and iii) she finally inquired through CUNS after signing the agreement and determined “ there wasn’t anything like the $1000 different per person”.

[668]The court finds that i) the consumers had researched the cost to trip to Greece prior to attending CUNS, ii) CUNS quoted them, before entering the agreement, that they could travel to Greece at a discount, iii) this discount amounted to a savings of $1000 (per person) in comparison to what the consumers had researched prior to attending CUNS, iv)relying upon this representation of significant savings for travel the consumers joined CUNS v) this led the consumers to believe it was representative of the types of savings CUNS could offer through their membership and vi) upon inquires made through CUNS, a day or two after they entered the agreement, the consumers were quoted a savings of about $230 less than the $1000 savings they had first been provided by CUNS.

[669]Mr. Wright suggested that based upon this there appeared to be “some benefits to be had from their services”. Ms. McArthur was a travel agent and what occurred was a back and forth between her and Mr. Wright during cross-examination, with respect to the fluctuations of

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travel prices, quotes, and Ms. MacArthur’s opinions about these fluctuations of travel prices. While she was asked about her opinion in this area by Mr. Wright ( in the context of price fluctuation in 2007 while testifying in 2015 the court) cannot put much weight on this testimony in relation to price fluctuations as i) hearsay in the absence of a voir dire to determine admissibility, and ii) it lacks any comparison, correlation, and is not contemporaneous to the time in question to make it reliable.

[670]Section 1 of the CPA definition of “services” suggests it “means anything other than

goods, including any service, right, entitlement or benefit” (emphasis added). Section 14 (2) of the CPA lists the 17 examples of what constitutes false, misleading, or deceptive representations. It is important note that this list is not an exhaustive list of what could defined as false, misleading, or deceptive.

[671]Count 92 on information number 2 is particularized as follows:

92)AND FURTHER THAT:

CANADIAN UNIVERSAL NETWORK SOLUTIONS INC., WENDY THAKUR AND ANTONIETTA DANELUZZI, on or about the 13th day of March 2007, in 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 in relation to Yvonne McArthur and Connie Giggins, consumers, by making a false, misleading or deceptive representation to said consumers, that they could obtain discounts or benefits for future transportation services, accommodation or other goods or services, contrary to section 17(1) of the CONSUMER PROTECTION ACT, S.O. 2002, c.30, as amended, and thereby committed an offence under section 116(1)(b)(ii) of the said Act;

[672]The court finds that the main issue with respect to this count is whether the difference in the representations of the savings was false, misleading, or deceptive and therefore amounting to unfair practice. The difference is $770 as explained above, CUNS first quoted a savings of $1000 before the consumers entered into the agreement then a savings of $230 less, that is $770 after the consumers entered into the agreement. The court finds that, based upon the testimony of Ms. Giggins, despite the discrepancy of the savings quoted, the consumers still received a savings or benefit from CUNS. While Ms. McArthur testified that the CUNS representative proclaimed ‘Oh yeah, we can get you a really good price’ for I think it was $650.00, or something like that, return” , the court is not aware of what the actual reasonable market rate of a trip to Greece at the relevant date and time. Also Ms. McArthur testified she inquired about both Greece and Europe when she was quoted a price of $650 return while Ms. Giggins specifically inquired about Greece and never testified how much a flight would cost, only the savings she was quoted.

[673]The court finds that considering the evidence heard, that the Crown has not proven their case beyond a reasonable doubt. The Crown has not proven that the specific representation

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made in relation to the savings of travel was false, misleading, or deceptive. S.14(2) clause 11 of the CPA provides if a representation is made that “a specific price advantage exists if it does not “. The Crown has not proven that such a representation was made. It is clear the consumers received a benefit however the Crown has not proven that the benefit was lacking to the extent that is amounted to a false, misleading, or deceptive representation. The court therefore finds that CUNS not guilty of the offence of unfair practice and not guilty of 92 of information number 2.

Count 92 – unfair practice – the liability of Wendy Thakur and Antonietta Daneluzzi

[674]As CUNS has been found not guilty of count 92, the court cannot find party liability exists. The case as against Wendy Thakur and Antonietta Daneluzzi in relation to count 92 on information number 2 is therefore dismissed.

Information number 2 count 93 – Fail to Refund

[675]The court finds that in addition to verbally requesting to cancel their agreement the day after the agreement was entered into, the consumers also i) made an appointment to cancel their agreement and they attended CUNS on 20 March 2007, ii) at this meeting they presented Linda Gilmore a letter to cancel that Ms. McArthur had typed and both consumers signed ( ex. 363), and iii) Ms. Gilmore signed at the bottom of their letter, and there is a further notation below her name that she received the letter on March 20th 2007 at 3:15 p.m.

[676]The court finds that the consumers had a right to cancel within the 10 day cooling-off period as the agreement was a time share, as well as within 1 year of entering the agreement as it was deficient ( s. 28 (1) and (2) of the CPA). The court further finds that once the request to cancel is made that sections 95 and 96 of the CPA are engaged and the consumers have an unrestricted right to a refund within 15 days as per s. 79(1) of the regulations. As the consumers did not receive a refund this is contrary to s. 96 (1) of the CPA and an offence as per s. 116 (1)(b)(viii) of the CPA. Therefore, the court finds CUNS guilty of the offence of fail to refund and thus guilty of count 93 of information number 2.

Fail to Refund – the liability of Wendy Thakur and Antonietta Daneluzzi

[677]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the defendants aided or abetted CUNS in the offence of fail to refund. That is, the Crown did not prove that i) the named defendants assisted or encouraged CUNS to not provide a refund, and ii) that the named defendants did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts). As such the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of the offence of fail to refund and therefore not guilty of count 93 of information number 2.

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INFORMATION NUMBER 3

[678]This information was sworn by Ministry Investigator Paula Charles on 21 May 2009 and is a 73-count information.

Information number 3 – counts 1 to 4 – Damon Bourgeois and Jasmin Tecson

[679]While Mr. Bourgeois testified in chief he did not remain to allow for full cross- examination by the defence. As requested in paras 231 to 232 of the Crown’s submissions, the court dismisses counts 1 to 4 against all three defendants.

Information number 3 – counts 5 to 9 – Kulbir Singh Banwait

[680]Mr. Banwait testified on June 17, 2015 and continued his cross-examination and re- examination on 18th June 2015.

[681]Mr. Banwait testified that he received a telephone call from CUNS on 27 January 2007 advising him that he had filled out a survey and as a result he won one of three prizes – $5000, 42-inch plasma TV, or a vacation. Mr. Banwait was skeptical, so he requested CUNS send a fax to confirm. CUNS sent a fax dated 27 January 2007 at 7:35 p.m. (ex. 253).

[682]On 28 January 2007 Mr. Banwait attended CUNS with his wife Daljit Banwait as well as his daughters and son ranging from ages 11 to 4 years old. When he arrived at 3030 Orlando Drive in Mississauga at 10:30 a.m. and noticed about 10 other families or couples sitting in the lobby. Mr. Banwait testified that it appeared to be too quiet for a celebration. Mr. Banwait testified someone who he would determine was Linda Gilmore, came out and greeted everyone. The guests were assigned agents, and all were taken to a large conference room. Mr. Banwait was assigned “Raj” as his agent.

[683]In the large conference room there was a screen and projector and people were seated in their chairs. A video and verbal presentation about CUNS products were played and Linda Gilmore explained that CUNS was a discount club that sold services and products such as cars, furniture, airline tickets, and vacations. Linda Gilmore advised the membership was not for everyone which Mr. Banwait interpreted to mean it was lifestyle for people who had a lot of money. The video presentation had testimonials from people about how much money they had saved and where they had traveled with CUNS. After the presentation Raj took the consumers to a room for lunch but Mr. Banwait only had some juice, and they waited for about 15 to 20 minutes. Mr. Banwait expected them to be taken for the draw at which point they were taken to Raj’s office.

[684]At this point it was only Mr. Banwait his wife and Raj in the office. The children had been dropped off in the playroom on the way to Raj’s office. Raj started talking about the company

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and he pulled out legal sized paperwork and quoted $20,000 for 20 years of membership. Mr. Banwait made it clear the cost was too much, but Raj kept trying to sell the idea and lifestyle of the membership. At that point Raj let out a “big sigh” and vacated his office. Mr. Banwait was wondering when they were going to conduct the draw for the prizes.

[685]Raj returned to his office with another lady. Mr. Banwait testified in chief that the lady was not Linda Gilmore but someone else. It is important to note that much evidence was heard in relation to the identity of the women or women who were or were not in Raj’s office and other areas of CUNS on this day. Mr. Banwait testified that he did not recall the woman’s name but that “it could have been…Like I believe it could be Mr. Daneluzzi, madam Daneluzzi, but I am not 100 percent sure”. He further testified he was focused on Raj while the woman was standing there, and he was using deductive reasoning to conclude it was Antonietta Daneluzzi. Mr. Banwait further testified that he was not 100 percent sure that the woman at CUNS that evening was Antonietta Daneluzzi. It was clear from his evidence that once this woman returned to the office the pressure began with questions about the membership.

[686]Mr. Banwait testified in chief that he and his wife entered CUNS at 10:30 am and entered

Raj’s office at about 11:45 am and it was at about 3:30 pm by the time they were done in that office. They had originally been advised the process would be one hour to attend for the draw. They were pressuring him to purchase the membership, but the family knew they won something, and the children were excited about it so felt that he “couldn’t leave”.

[687]Mr. Banwait testified that both Raj and Linda Gilmore left the room again and both returned with a third woman. That third woman, he testified, was Linda Gilmore. Linda Gilmore was very direct and placed pressure on him. Mr. Banwait was surprised and thought

“we are stuck again” when he advised he only had $5000 and they were still willing to negotiate. All three agents were present at that time. Raj wrote everything down on a legal sized form. Mr. Banwait testified that when he left Raj’s office, he based upon the document that Raj had filled out, he thought he had completed the membership agreement (despite not having paid anything). Instead at about 3:30 pm, the Banwaits, along with their children, were taken to a bigger nicer office with a big sofa, about 100 to 150 feet away from Raj’s office.

[688]In this bigger office Mr. Banwait testified that i) that he was greeted by Wendy Thakur ii) then corrected himself and testified that he did not recall if she was already in the room to greet them or if she came in later and that was of darker skin iii) at the time he did not know her name but by the time of his testimony in trial he indicated, “ I know now that she was Wendy Thakur”. Mr. Banwait testified that Wendy Thakur must have introduced herself to them however in cross-examination by Mr. Rahamim he changed his testimony and agreed that he had no memory of anyone introducing themselves as Wendy Thakur. He described the lady as not only darker skinned but “probably” of Indian-South Asian or Guyanese descent and the name “Thakur” is the type of last name that is used in India a lot. He further testified based upon these observations that he “assumed” the person who greeted him on that day was

Wendy Thakur.

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[689]When asked by Mr. Ludlow how he came to know the name Wendy Thakur, Mr. Banwait testified that after he returned home that evening, he did an internet search about the company and ultimately a company search as well as court cases and found the name.

[690]While still in the larger office Mr. Banwait testified that when told about the annual fee, he refused it and at that point was trying to back out of the contract by saying he couldn’t afford it. At one point in time Linda Gilmore and Raj walked in. Mr. Banwait testified that Wendy offered to pay half of the annual fees and the other Raj would pay out of his commission – essentially waiving the annual fees. Mr. Banfield further testified that he was

“stuck again”. Wendy then got up and Mr. Banfield testified he took the piece of paper he and his wife had signed with Raj. He said “they” tried to follow Wendy as he assumed, they were proceeding to the draw. Wendy advised them that Mr. Altomare had to deal with the financial aspect of the membership.

[691]Mr. Banwait testified before signing the contract that the piece of paper Raj was writing on was sitting on the desk in front of Mr. Altomare, and he was writing something on it and started to print a lot of paper. Mr. Banfield testified he then realised that whatever was on the piece of paper Raj had been writing on was now on the printed papers and that there were

“two contracts”. Mr. Banwait thought whatever he had signed in Raj’s office was the actual contract. When Mr. Banwait suggested he wanted to show the document to a lawyer he was advised by Mr. Altomare that he must sign today to get the deal. Mr. Banwait testified he quickly skimmed over the documents and did not review the contracts in detail. He just decided to just initial everywhere and sign at that time he wanted to leave CUNS. Mr. Altomare was the first and only person at CUNS that brought to their attention the 10 day cooling-off period but did not recall him indicating they could cancel within 10 days. Mr. Banwait was under the impression that this cooling-off period was for both contracts because it is the same contract. He did not see Wendy Thakur for the rest of the day.

[692]Exhibits 247 to 252 appear to be segmented parts of the agreements (all dated 28 January

2007) with CUNS. Mr. Banwait agreed in cross-examination with Mr. Wright, that its possible the pages of the contracts were likely mismatched as they were taken apart and re-stapled by the consumer for purpose of making copies for small claims court proceedings.

[693]Exhibit 247 is a 2-page document with numbered pages 1 and 3 and with invoice # 2956. It is signed by both consumers. It is for VIP travel services for 14 years and the yearly fee is not applicable. It includes services such as the travel gallery, world resort club, cruise club, hot-list resort vacations and hot list-cruise vacations. Under “billing details” it states a term of 60 months, interest rate of 29.9% monthly payment $47.92 with a loan start of February 15th, 2007 and ending January 15th, 2012. Under the “Acknowledgement” section it states, amongst other things, in bold the following: “I also fully understand the consumer protection act of 2002 stating the 10 day cooling-off period for Travel Services only”. [sic] while at the same time on page 3 para 3 states “zero Cancellation policy that will be enforced” [sic]. The total amount of the membership fee is $1484.42. At the bottom of the agreement appears the name of Frank

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Altomare appears under the caption “name and position of the authorized representative” and signature appears. Under the caption of “Salespersons name” is Raj.

[694]Exhibit 248 is also a 2 page document with the pages numbered 1 and 3 with invoice #2957. It is signed by both consumers. It is for VIP value service membership for 14 years and the yearly fee is not applicable. It includes the premium buyers club. Under “billing details” it shows a term of 60 months, 29.9% with a monthly payment of $191.69 with a loan start of 15 February 2007 and a loan end of 15 January 2012 with a total membership free of $5935.58.

Under the heading “additional terms and conditions” the following text is typed then scratched out with blue ink “Annual Membership fee to be billed next month.” It has an N/A next to it and initialed. At the bottom of the agreement appears the name of Frank Altomare appears under the caption “name and position of the authorized representative” and signature appears. Under the caption of “Salespersons name” is Raj. At the top of each page 2 ( there are 2 for this exhibit) at the top it reads “ accept this membership as a Binding Contract which is non- refundable and non-negotiable”[sic], the second page 2 at para.6 it reads “ No Refunds”, and page 3 para 3 states “zero Cancellation policy that will be enforced” [sic].

[695]Exhibit 249 on paragraph two refers to an annual fee and there is a notation “N/A” next to the paragraph (although the paragraph itself is not struck out). Mr. Banwait paid a total of $7420 for both agreements which was paid with Mrs. Banwait’s cheque (Bank of Montreal printed image of this cheque to CUNS dated 28 Jan 2007 (ex. 259). Mr. Banwait testified CUNS would not accept Visa and his debit card did not have sufficient funds as they wanted the total amount. Mr. Banwait met Mr. Altomare at a plaza near his home to provide him with the cheque and he was given a receipt (ex. 258) signed by Mr. Altomare and dated 28 January 2007. Mr. Banwait testified that the cheque was cashed. To this date he has not received any money from CUNS as a refund.

[696]After signing he contracts and leaving CUNS that evening, Mr. Banwait, and his family saw a little circular cage that contained tickets. After spinning it they drew a prized voucher (ex. 254) but Mr. Banwait was not sure that the exhibit produced to the court was drawn from the container, but it was received from CUNS on 28 January 2021.

[697]The following correspondence was sent to and from CUNS:

-Faxed 4-page cancellation letter to Frank Altomare and CUNS from the Banwaits dated 2 February 2007 but faxed on 3 February 2007 (ex. 260) requesting to cancel the agreements and for a full refund.

-letter to letter to Frank Altomare and CUNS from the Banwaits dated 20 February 2007 and Canada Post registered mail confirmation (ex. 261). Mr. Banwait testified he received a call from a lady on the 5th February 2007 to set up a vacation account, the person did not seem to have any knowledge about the cancellation request. When the person suggested he attend CUNS to discuss the matter Mr. Banwait declined, deciding instead to communicate only in writing. The letter dated 20 February 2007 mentioned the earlier letter sent and the subsequent call to attend for orientation. In chief, Mr. Banwait refers in the letter that

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he believed it was Linda Gilmore that called him. However, while testifying in chief he also indicated he was not sure who called him to attend for the orientation.

-letter to Frank Altomare of CUNS from the Banwaits dated 10 May 2007 and Canada Post registered mail confirmation (ex. 262), which was a follow up letter regarding the earlier letters sent and again requesting a refund.

-3-page email from Linda Gilmore to Mr. Banwait dated 1 June 2007 (ex.263). An email chain discussing that CUNS wishes to resolve the matter and are taking his position “under advisement”.

-email chain between Mr. Banwait to Linda Gilmore dated 7 June 2007 (ex. 264). This is an email chain where CUNS indicates they cancelled the contract invoice #2956 but that due to an oversight the cheque in the amount of $1484.42 had been on hold waiting to be picked up but that the legal department has been instructed to mail it. Mr. Banwait responds of his intention to proceed to Small Claims Court.

[698]Mr. Banwait ultimately filed a Small Claims Court proceeding against CUNS.

[699]In cross-examination by Mr. Rahamim Mr. Banwait testified the following:

Linda Gilmore, not Wendy Thakur, made the statement “I’ll make it work for both parties. You don’t pay the annual fee. We’ll pay half, Raj will pay half” when discussing the yearly fee.

-He does not recall the first time he ever heard the name Wendy Thakur and has no actual memory of a person introducing themselves and saying “Hi, I’m Wendy Thakur”.

-It is possible that he may have seen the name Wendy Thakur on through an internet search regarding CUNS after her returned home from signing the contract.

-When referring to the Indian or Guyanese women Mr. Banwait never used the name of Wendy Thakur in his small claims court pleadings and her name does not appear anywhere in his detailed small claims court pleadings.

-He agreed that he took the name of Wendy Thakur and attached it to the lady that looked Indian and Guyanese and used it as the name of the person he thought he had seen at CUNS. Mr. Banwait emphasized that he did not make up the name Wendy Thakur but acknowledge that he “might have read about, yeah. Then that I would assume that there was only one lady there which is like that”.

[700] In cross-examination by Mr. Wright, Mr. Banwait testified to the following:

-no one ever introduced themselves as Antonietta Daneluzzi

-he agreed that the person who he believed to be Antonietta Daneluzzi had nothing to do with negotiating the contract and that negotiating the contract was all done with Mr. Altomare and Ms. Gilmore.

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-in his statement to investigator Charles on October 28th, 2008 that he doesn’t mention the name of Antonietta Daneluzzi at all.

-there is no mention of Antonietta Daneluzzi anywhere in his Small Claims Court pleadings

-with regards to his testimony that when he had his meeting with Raj that when he expressed he was not happy with the $20,000 membership quote that Raj left the room and returned with a “lady”, this lady was not Linda Gilmore and he “thinks” it was Daneluzzi , it “could have” been Daneluzzi but that he was NOT 100 percent sure.

-while Mr. Banwait testified in chief that he met Daneluzzi when he served her papers in her apartment and that was the only other time that he met her. Later he agreed that his attempt to serve her was unsuccessful and further admitted in cross-examination that he was not “in her apartment” but was in the lobby of her building.

During his cross-examination by Mr. Wright he testified to what has been summarized about but also testified that, “I know who Daneluzzi is, but on that day, I cannot be 100 percent sure it was Daneluzzi”.

-that he was “pressured during the process for making my decision and this pressure was because they owed us something that they promised us to give and they were not under the process unless we had agreed. And at the end of the process, they provided us a draw”. -Mr. Banwait confirmed that he mentioned being under “undue pressure” in his statement to investigator Charles approximately 9 times and was a recurring theme that he was under pressure to sign the contract.

-he agreed that he was not under pressure when i) by the time he signed the contract as he had already made a decision to purchase the membership ii) when he left CUNS and was in the car with his wife and children, iii) he was at home with his wife , iv)when he met Mr. Altamore at a nearby plaza to give him a cheque.

-the membership fee was paid in good faith believing that the services that CUNS was providing existed.

The purported direct involvement of Wendy Thakur and Antonietta Daneluzzi

Wendy Thakur, Antonietta Daneluzzi, and Identification issue in relation to Small Claims Court proceedings

[701]As per the Crown’s request in para. 235 of their written submissions as well as oral

submissions from both the Crown and defence counsel as it relates to s. 13 of the Charter, the court will not consider evidence from the Small Claims Court proceedings as it relates to identification of Wendy Thakur and Antonietta Daneluzzi regarding not only the consumer Banwait, but to all consumers as it relates to this case .

Attempted service of Antonietta Daneluzzi by Mr. Banwait

[702]It is important to clarify Mr. Banwait’s testimony as it relates to his interaction, if any, with Antonietta Daneluzzi. The testified in chief about attempting to serve her twice, the first time was at the CUNS location where he ultimately served Small Claims Court pleadings on an unknown person at Orlando Drive. The second time he first testified that he had “served her

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some papers in her apartment. That was the only other time I had met her”. Later in his in-chief testimony he clarified that he “tried” to serve her downtown near harbourfront where he waited for her to come to the lobby and testified that he was “not actually able to serve myself” and he was “unsuccessful”. This area of Mr. Banwait’s testimony was vigorously pursued in cross-examination by Mr. Wright where Mr. Banwait testified : i) he agreed that his attempt to serve her was unsuccessful, ii) further admitted in cross-examination that he was not “in her apartment” but was in the lobby of her building and iii) “I know who Daneluzzi is, but on that day, I cannot be 100 percent sure it was Daneluzzi”.

Banwait testimony regarding Wendy Thakur

[703]Mr. Banwait testified in chief that while in the larger office i) that Wendy offered to pay half of the annual fees, ii) Wendy then got up and he attempted to follow her as he assumed Wendy was proceeding to the draw, iii) Wendy advised Mr. Banwait and his wife that Mr.

Altomare had to deal with the financial aspect of the membership, and iv) He did not see Wendy Thakur for the rest of the day. However in cross-examination by Mr. Rahamim, Mr. Banwait testified the following: i) Linda Gilmore, not Wendy Thakur promised to pay half of the annual fee, ii) He does not recall the first time he ever heard the name Wendy Thakur and has no actual memory of a person introducing themselves and saying “ Hi , I’m Wendy Thakur, iii) It is possible that he may have seen the name Wendy Thakur on through an internet search regarding CUNS after her returned home from signing the contract, iv) When making reference to the Indian or Guyanese women Mr. Banwait never used the name of Wendy Thakur anywhere in his detailed Small Claims Court pleadings and v) He agreed that he took the name of Wendy Thakur and attached it to the lady that looked Indian and Guyanese and used it as the name of the person he thought he had seen at CUNS. Mr. Banwait emphasized that he did not make up the name Wendy Thakur but acknowledged that he “might have read about, yeah. Then that I would assume that there was only one lady there which is like that”, and vi) he observed this lady as not only was darker skinned but “probably” of Indian-South Asian or Guyanese descent and the name “Thakur” is the type of last name that is used in India a lot. He further testified based upon these observations that he “assumed” the person who greeted him on that day was Wendy Thakur.

[704]It is clear form his testimony that Mr. Banwait’s testimony regarding his interactions with

Antonietta Daneluzzi are not only flawed by but also tainted by his own research into CUNS and names he encountered via the internet. It is also clear i) he made no mention of the name Wendy Thakur throughout his Small Claims Court proceedings and ii) as the lady he encountered was darked skinned with an Indian last name, that person must have been Wendy Thakur. This is not to suggest Mr. Banwait was attempting to mislead the court – it is however a common pitfall of identification evidence and more the reason why this type of evidence should be scrutinized by the courts. The court finds that little weight can be given to the identification of Wendy Thakur for the reasons illustrated above.

Banwait testimony regarding Antonietta Daneluzzi

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[705]The court finds that while Mr. Banwait testified in chief that i) in the small office with Raj he brought in a lady he did not recall the women’s name but that “ it could have been…Like I believe it could be Mr. Daneluzzi, madam Daneluzzi, but I am not 100 percent sure”, ii) He deduced that it must have been Antonietta Daneluzzi , iii) he was not 100 percent sure that the woman at CUNS that evening was Antonietta Daneluzzi. During cross-examination by Mr. Wright, Mr. Banwait testified to the following: i) no one ever introduced themselves as Antonietta Daneluzzi, ii) he agreed that the person who he believed to be Antonietta Daneluzzi had nothing to do with negotiating the contract and that negotiating the contract was all done with Mr. Altomare and Ms. Gilmore, iii) that he doesn’t mention the name of Antonietta

Daneluzzi at all in his statement to investigator Charles on October 28th 2008 , iv) there is no mention of Antonietta Daneluzzi anywhere in his small claims court pleadings, iv) when he agreed to the membership with Raj he left the room and returned with a “lady”. This lady was not Linda Gilmore and he “thinks” it was Daneluzzi, it “could have” been Daneluzzi but that he was NOT 100 percent sure.

[706]Again Mr. Banwait was not sure about having interactions with Antonietta Daneluzzi during surrounding the signing of the agreement and therefore little weight can be placed on his testimony in this regard.

[707]The court in retrospect permitted a very liberal approach to cross- examination and re- examination allowing counsel to listen back portions of Mr. Banwait’s testimony (in his absence), especially as it related to Antonietta Daneluzzi. The testimony was conflicting, speculative, and full of assumptions. During cross-examination it was suggested he was on “a mission”, however the court would characterize Mr. Banwait as a consumer who was seeking justice and attempting to piece together parts of information and experiences to make sense of whom he perceives is responsible for what occurred. The court finds that he made several assumptions about who the women were that evening, after that evening, and leading up to (but not including) appearances in Small Claims Court. Mr. Banwait suggests as much during his testimony in a lengthy cross-examination.

Count 5 of information number 3 – Improper Contract.

[708]It was clear form Mr. Banwait’s testimony that he was confused about what he was

exactly signing that evening. By the time he met up with Mr. Altomore’s office he testified that he thought he had already entered a contract with Raj. That is a realistic assumption as he testified that both him and his wife had signed the legal sized document in Raj’s office. It wasn’t until Mr. Altamore started printing up voluminous papers that Mr. Banwait felt that he had been tricked or mislead somehow and that they had divided the contract into two. By the time he wrote his letter dated 2 February 2007 (ex. 260) reference was made that there were two agreements. I accept his evidence on these points and the court places emphasis not only on Mr. Banwait’s understanding as to whether or not he was entering into one or two agreements, but on what would appear to be the chaotic circumstances surrounding the signing of the agreements. The court further finds that the issue is not whether the consumer understands the legal details and consequences (i.e. were they entering into one or two

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agreements), but what should be done to protect the consumer per the CPA. It is also very clear that Mr. Banwait was very confused about what he was signing, given his credible evidence heard his confusion is warranted.

[709]While the contracts do not share an invoice number, and one cheque was collected to pay the total for both, only the agreement that was for lesser value of the total membership price indicated there was a 10 day cooling-off period. I agree with para. 236 of the Crown’s submissions and apply section 3 of the CPA to find, that the consumers entered one agreement, a time share agreement. The court further find that this agreement did not contain the information required by the s. 26 of the regulations, specifically, but not restricted to clauses 8 and 14. The absence of the required information is contrary to s. 27 of the CPA and an offence as per s. 116 (2) of the CPA. Therefore, the court finds CUNS guilty of the offence of improper contract and guilty of count 5 of information number 3. Considering the above finding the court dismisses count 6, related to the future performance agreement, as against all 3 defendants.

Improper Contract – the liability of Wendy Thakur and Antonietta Daneluzzi

[710]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their written agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that- the agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. The court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of improper contract and therefore guilty of count 5 of information number 3. As the court has reached this decision in the absence of considering the direct evidence of Mr. Banwait’s testimony of interactions with the named defendants, the court finds a discussion the evidence in relation to this count is not necessary.

Count 7 – Unfair Practice- 10 day cooling- off period-did not honour

[711]The court finds that in the content of the agreements themselves the following appears : i) in exhibit 247, “ I also fully understand the consumer protection act of 2002 stating the 10 day cooling-off period for Travel Services only”[sic] while at the same time on page 3 para 3 states “ zero Cancellation policy that will be enforced” [sic]; ii) in the content of exhibit 248 appears :

At the top of each page 2 ( there are 2 for this exhibit) at the top it reads, “ accept this membership as a Binding Contract which is non-refundable and non-negotiable”[sic]; the second page 2 at para.6 it reads “ No Refunds”, and page 3 para 3 states “ zero Cancellation policy that will be enforced” [sic].

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[712]The court finds that i) the consumer entered into the agreement on 28 January 2007, ii) on page one of exhibit 247 the representation is made that the agreement is subject to a 10- day cooling-off period, and iii) Mr. Banwait requested to cancel the agreement within the 10 day cooling-off period via a faxed 4 page cancellation letter to Frank Altomare and CUNS dated 2 February 2007 but faxed on 3 February 2007 (ex. 260). The court further finds the representation was false, misleading, or deceptive (s.14 (2) ss. 13) as CUNS did not honour the 10 day cooling-off period by providing a refund to the consumers. This is contrary to s. 17(1) of the CPA and an offence as per s. 116 (1)(b)(ii) of the CPA. The court therefore finds CUNS guilty of unfair practice and guilty of count 7 of information number 3.

Count 7 – Unfair practice – 10 day cooling-off period - the liability of Wendy Thakur and Antonietta Daneluzzi

[713]The court finds that the Crown has proven beyond a reasonable doubt the count as against the named defendants as they have proven knowledge of the true facts. The court finds that as the sole officers and directors of a CUNS the named defendants i) knew or ought to have known the content of the written agreement contained representations, ii) that these representations indicated the consumers were entitled to certain remedies, such as a 10 day cooling-off period, while at the same time indicating that there were “no refunds” and “zero cancellation”. That the named defendants i) had a responsibility to ensure the legality of the

contracts however, ii) allowed the agreements with the content to be used by CUNS iii) for the purpose of assisting CUNS to commit the offence of unfair practice by allowing the content of the agreement to used and not correcting it. The court therefore finds Wendy Thakur and Antonietta Daneluzzi guilty of unfair practice and guilty of count 7 of information number 3.

Count 8 – Unfair practice – representation to provide a refund of $1484.42

[714]The court finds that CUNS made the representation in the email chain between Mr. Banwait and Linda Gilmore dated 7 June 2007 (ex. 264) This is an email chain where CUNS indicates they cancelled the contract invoice #2956 but that due to an oversight the cheque in the amount of $1484.42 had been on hold waiting to be picked up but that the legal department has been instructed to mail it. The court finds the representation was false, misleading, or deceptive as per s.14 (2) ss. 13 of the CPA as Mr. Banwait did not receive a refund and therefore CUNS did not honour the representation. This is contrary to s. 17(1) of the CPA and an offence as per s. 116 (1)(b)(ii) of the CPA. The court finds CUNS guilty of the offence of unfair practice and guilty of count 8 of information number 3.

Count 8 – unfair practice- representation to provide a refund – the liability of Wendy Thakur and Antonietta Daneluzzi

[715]The court finds that Crown has not proven, beyond a reasonable doubt, the count as against the named defendants as the Crown has not proven knowledge of the true facts. While the Crown has proven that the representation was made, they have not proven that the named defendants i) were aware CUNS had the intention to commit the offence , and ii) did or

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omitted to do something to assist CUNS in committing the offence . As little weight has been placed upon the evidence of Mr. Banwait as to his purported interactions with the named defendants, for the reasons as discussed above ( see para. 701 to 707), the court cannot find that the Crown has proven that the named defendants had direct involvement with the business of CUNS to the extent that it would amount to knowledge of the true facts as it relates to this count. The court finds Wendy Thakur and Antonietta Daneluzzi not guilty of unfair practice and therefore not guilty of count 8 of information number three.

Count 9 of information number 3 – Fail to Refund

[716]The court finds that the consumers requested to cancel their agreement via: i) faxed a letter dated 2 February 2007 (ex. 260) and ii)a mailed letter to Frank Altomare of CUNS dated 10 May 2007 - Canada Post registered mail confirmation ( ex. 262). The court finds that once the request for cancellation was made sections 95 and 96 of the CPA were engaged and the consumer is entitled to a refund within 15 days of such request as per s.79 (1) of the regulations. The court further finds that as the consumers did not receive a refund that this was contrary to 96(1) of the CPA and an offence as per section 116 (1)(b)(viii) of the CPA. The court therefore finds CUNS guilty of the offence of fail to refund and guilty of count 9 of information number 3.

Fail to Refund – the liability of Wendy Thakur and Antonietta Daneluzzi

[717]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the defendants aided or abetted CUNS in the offence of fail to refund. That is, the Crown did not prove that i) the named defendants assisted or encouraged CUNS to not provide a refund, and ii) that the named defendants did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts). As little weight has been placed upon the evidence of Mr. Banwait as to his purported interactions with the named defendants, for the reasons as discussed above, the court cannot find that the Crown has proven that the named defendants had direct involvement with the business of CUNS to the extent that it would amount to knowledge of the true facts as it relates to this count. As such the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of the offence of fail to refund and therefore not guilty of count 9 of information number 3.

Count 10 Information number 3 – Stana and Bosko Culum

[718]Mr. and Mrs. Culum testified on June 24th and 25th 2014.

[719]The Culums received several phone calls from CUNS for a membership promotion and that they won one of three prizes if they attend CUNS to listen to a presentation. They

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indicated that they could save the consumers money on a vacation. The consumers decided to attend the Orlando address in Mississauga.

[720]They attended the CUNS on 25 February 2007and there were many people there. They were shown a promotional video with testimonials of current members and all the things they could purchase cheaper. The membership allowed for discounts on furniture, no fees for a home purchase, no lawyers fees, and other services. They sat at the table with representatives. Mohammed, from Turkey, was the first person to speak to them. They had told Mohammed they were from Yugoslavia, so they spoke about history and the Turkish Empire. Mr. Culum testified he could not recall the name of the “young boy” they spoke to but testified that an offer of $11,000 was made to join the membership but then the amount kept decreasing. The consumers however made it clear the membership was not for them. Mrs. Culum testified that about her feeling that she could not leave “I feel like we feel shame. I feel cheated, I feel embarrassed. I feel like we just wants to leave”. Mr. Culum testified that they tried to leave and each time “they always try to push” to get them to sign the agreement. Mr. Culum testified the family drove to CUNS from Hamilton and they arrived at CUNS at approximately 12:00 p.m. and left at approximately 7:30 p.m. While they were there - there was a large winter storm.

[721]Mr. Culum testified about meeting the “young guy”, then a bigger boss, as well as Linda

Gilmore. He described Linda Gilmore as representing the company and when they ultimately signed the contract, he was advised by her they had 8 days to cancel. Mr. Culum called CUNS the day after signing the agreement and spoke to Linda Gilmore at which time he expressed his desire to cancel the contract.

[722]Stana Culum eventually paid $3700 on 25 February 2007, charged to her American Express card, her statement dated 1 March 2007. Her monthly credit card statement showing the transaction was marked as exhibit 38 to the proceedings. It is important to note that while a contract was signed with CUNS on this day, the Culums left the agreement at CUNS after cancelling the agreement during their 8 March 2007 meeting at CUNS. As such, they did not have an agreement in their possession to forward to investigator Charles and thus, no agreement was available to be tendered as evidence. CUNS confirmed that indeed there was a contract to cancel as per their letter to the consumers dated 8 March 2008 from CUNS (ex. 39).

[723]The same night as the couple was returning from CUNS they had already decided to cancel their contract as they were told that they could. Stana Culum called CUNS that evening but there was no answer. She eventually spoke to someone and advised them that she wanted to cancel. Mrs. Culum was concerned about the 10-day time limit and was advised not to worry about the 10 days.

[724]Despite their verbal attempts made to cancel the contract, Linda Gilmore would not cancel by phone, so they had invited them to attend CUNS on March 8th 200, and they attended. While there was some conflicting testimony as to who was present in the room when the cancellation letter of 8 March 2007 (ex. 39) was signed, it appears it was only the

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consumers, Linda Gilmore and according to Mrs. Culum, and other un-identified persons. Mrs. Culum quickly realised that they were invited there as CUNS did not want them to cancel their contract and as they entered a re-negotiation. Mrs. Culum testified that in the original agreement they signed they said there would be no fee to cancel however during this meeting they wanted to charge a fee of $1000 or $900 then it went down to $500. Mr. Culum testified they first wanted to charge a $1000 cancellation fee which he opposed, but ultimately, they proposed a $251.78 cancellation fee, which he was not happy with, but his wife wanted to accede to it.

[725] In a cancellation letter form CUNS dated 8 March 2007 (ex. 39) and signed by the consumers and Linda Gilmore they agreed to allow CUNS to retain $251.78 as “liquidated damages for cancellation of membership”. They promised a cheque of $3448.22 to be forward in 8 to 10 weeks. The letter refers to one cheque and not six smaller cheques. The cover letter confirmed that the membership was cancelled. There is also handwriting on the face of the cover letter with a date “May 02/07”. Mr. Culum testified that is a note made as to the date when he expected to receive the cheque. Attached to this letter was a document entitled “Release and Non-Disclosure Agreement” that was signed by the consumers and Linda Gilmore (also ex. 39). The consumers were given a copy of this letter on the same day of signing. On this Release, it is important to note the name of Antonella Daneluzzi appears typed as “authorized signing officer” however there is no signature on the line above the text. Other names that appear on the document are Karen Tuszynski - “Authorized signing officer”, as well as the consumers.

[726]Mr. Culum testified that his initial expectation was to receive one cheque in the amount of $3448.22 and not 6 cheques in smaller denominations. Mr. Culum agreed to the latter resolution as CUNS expressed they didn’t have any money. While Mr. Culum did not testify to a legal letter being sent, Mrs. Culum testified that a legal letter was sent to CUNS which prompted them to send 6 post dated Royal Bank of Canada cheques made out to the consumers (exhibits 40 to 43). Exhibit # 40 is a cheque dated 12 December 2007 for $574.70 and exhibit 41 is a cheque dated 12 January 2008 for 574.70. Each cheque has is entitled

“Canadian Universal Network Solutions as well as “cancellation of membership” written in the memo line and also a black stamp at the front that reads as follows: “Pursuant to clearing rules this item may not be cleared again unless certified”.

[727]Mrs. Culum testified she deposited both cheques at the Stoney Creek Royal Bank at the same time. In fact, there is a stamp on the back of the cheque for both these exhibits indicating a deposit date of 14 January 2008 at the bank. Mrs. Culum received both cheques with a returned item notice dated 17 January 2008 (ex. 42) indicating there were “non suff funds”. The cheques did not clear. The 4 remaining cheques dated the 12th day for February, March, April, and May each for $574.70 (marked as ex. 43) were taken to the bank by Mrs. Culum, and she testified she asked them to check to see if there were funds, and was advised that there was no money.

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[728]Mr. Culum testified after the cheques were returned from the bank, he called Linda Gilmore who indicated that she would send a money order instead. During his testimony and when refreshing his memory by reviewing his handwritten notes from the statement he had given investigator Charles, Mr. Culum confirmed that he did ultimately receive a total of $1724 from CUNS via 2 or three money orders but then did not receive any additional money orders afterwards. Mr. Culum attempted to contact Linda Gilmore via telephone, the number was no longer in service and he was not able to speak to anyone.

[729]Despite repeated calls, requests and reattending CUNS, that the consumers never received the total refund total of $3448.22 from CUNS. While the consumers did receive a prize of a DVD according to their testimony it was not a functioning DVD player.

[730]When asked by Mr. Ludlow whether she met any of the people whose names appear on the Release Mrs. Culum responded “Yes, they were all in the room. Even more people right in the room…Linda and other 5, 6 people”. When she was asked specifically whether Antonietta Daneluzzi and Karen were in the room Mrs. Culum testified “I believe so”. However, in cross- examination Mrs. Culum testified that when signing the cancellation letter and Release there were 4 of 5 other people in the room in addition to her and her husband. Ultimately, she agreed that, Linda Gilmore was the only persons whose name she was aware of and that she was not aware of the names of the people that were in the office when the Release was signed.

[731]Mr. Culum testified to the following during cross-examination:

-that he had agreed to receive 6 small cheques as opposed one cheque with the total sum of the refund.

-he was advised during the February 25th meeting at CUNS that they had 8 days to cancel their membership

-when they were in the room signing the cancellation letter on 8 March 2007 it was only himself, his wife Mrs. Culum and Linda Gilmore.

-that on the Release form there are spaces where no one signed as there was nobody there that was present to sign. This would include a space on the Release from for someone to sign on behalf of CUNS.

The evidence as it relates to the purported direct involvement of Antonietta Daneluzzi in the business of CUNS

[732]On the last page of the Release and Non-Disclosure Agreement (ex. 39) that was signed by the consumers and Linda Gilmore, the name of Antonella Daneluzzi appears typed as “authorized signing officer” however there is no signature on the line above the text. Other names that appear on the document are Karen Tuszynski - “Authorized signing officer”, as well as the consumers.

[733]This court, having found it is permissible to consider circumstantial evidence, acknowledges that when doing so caution must be exercised. When asked by Mr. Ludlow

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whether she met any of the people whose names appear on the Release Mrs. Culum responded, “Yes, they were all in the room. Even more people right in the room…Linda and other 5, 6 people”. When she was asked specifically whether Antonietta Daneluzzi and Karen were in the room Mrs. Culum testified; “I believe so”. During her testimony in chief Ms. Culum was not asked i) whether she specifically met Antonietta Daneluzzi, ii) whether anyone introduced themselves as Antonietta Daneluzzi, nor iii) to describe Antonietta Daneluzzi. No follow up questions were asked to support the identification of the person purported to be Antonietta Daneluzzi. However, during cross-examination, by Mr. Wright, Mrs. Culum testified that i) that only she and her husband signed the Release with Linda Gilmore witnessing their signature, ii) Mrs. Culum testified that when signing the cancellation letter and Release that there were 4 of 5 other people in the room in addition to her and her husband. Ultimately, she agreed that, Linda Gilmore was the only person whose name she was aware of and that she was not aware of the names of the people that were in the office when the Release was signed.

[734]During cross-examination Mr. Culum testified that i) when they were in the room signing the cancellation letter on 8 March 2007 it was only himself, his wife Mrs. Culum and Linda Gilmore, and ii) that on the Release form there are spaces where no one signed as there was nobody there that was present to sign. This would include spaces on the Release form for someone to sign on behalf of CUNS.

[735]The court finds that i) Mrs. Culum’s testimony in chief is directly contradicted by that of her husbands testimony, ii) she was successfully challenged in cross-examination, and iii) the notable absence of evidence to support that Antonietta Daneluzzi was present at the time the Release was signed by the consumers. The court finds that little weight can be placed upon the testimony of Mrs. Culum for the above reasons. This piece of evidence will be considered by the court, along with all the other evidence, in relation to this count in arriving at a determination as to whether the Crown has proven knowledge of the true facts.

Count 10 - Unfair Practice- representation to provide a refund of $ 3448.22

[736]The court finds that CUNS made a representation in the letter dated 8 March 2007 (ex.39) that the agreement was cancelled and “a reimbursement cheque in the amount of $3448.22” would be forwarded in 8 to 10 weeks.

[737]The court finds that representation made was false, misleading, or deceptive as per s.14

(2)ss. 13 as CUNS did not honour the refund they had promised. The court finds that while the consumers did ultimately receive a total of $1724 from CUNS via two or three money orders, they did not receive the $3448.22 as promised. This is contrary to s. 17 (1) CPA and an offence as per s. 116 (1)(b)(ii) of the CPA. While Mr. Wright (counsel for Antonietta Daneluzzi) seemed to suggest that efforts were made by CUNS to reimburse the consumers by sending them post- dated cheques, then money orders, the reality of the situation was that cheques were being written when insufficient funds were in the CUNS bank account. As such the court finds CUNS guilty of the offence of unfair practice and guilty of count 10 on information #3.

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Count 10 – Unfair practice and the liability of Wendy Thakur and Antonietta Daneluzzi

[738]The court finds that Crown has not proven, beyond a reasonable doubt, the count as against the named defendants as the Crown has not proven knowledge of the true facts. While the Crown has proven that the representation was made, they have not proven that the named defendants i) were aware CUNS had the intention to commit the offence , and ii) did or omitted to do something to assist CUNS in committing the offence.

[739]As discussed in paras 732 to 735, while Antonietta Daneluzzi’s typed name appeared on the Release without a signature little weight can be placed on this circumstantial evidence and as such, it has not raised the Crown’s case to the level by which the Crown has been able to prove Antonietta Daneluzzi had direct involvement in the business of CUNS to assist the Crown in meeting their burden of proof to prove she had knowledge of the true facts to support party liability. As such, the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of unfair practice and therefore not guilty of count 10 of information number 3.

Information number 3 - Counts 11 to 14- Khaled Ferdaus

[740]The evidence of the consumer Khaled Ferdaus can be found in the agreed statement of facts marked as exhibit 382 to these proceedings.

Count 11 information number 3 – improper contract

[741]The court agrees with para. 246 of the Crown’s submissions and applies section 3 of the CPA and finds that the consumer entered one contract – the time share agreement. The court finds that upon review of the agreements there is a significantly larger amount charged for the future performance agreement that is not subject to the 10 day cooling-off period. The court therefore finds that the consumers entered into one agreement, a time share agreement.

Therefore, as suggested by Crown counsel, count 12 on information number 3 as it relates to the future performance agreement is dismissed as against all defendants.

[742]Upon review of the agreement dated 3 March 2007 ( ex. 382-Tab A) it is clear that it does not contain the required information set out in s. 26 of the regulation including, but not restricted to the following, clauses 6 and 8. This is contrary to s. 27 of the CPA and therefore an offence pursuant to s. 116 (2) of the CPA. The court therefore finds CUNS guilty of the offence of improper contract and guilty of count 11 of information 3.

Improper contract – the liability Wendy Thakur and Antonietta Daneluzzi

[743]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that the agreements by

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their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of improper contract and guilty of count 11 of information number 3.

Carbon Copy to Linda Gilmore and Wendy Thakur

[744]Exhibit 382-Tab. C is a letter addressed to Frank Altomare dated 12 March 2007 from Khaled Ferdaus and his wife Monowara Begum giving notice to him that they wanted to cancel both contracts. The consumers sent this letter via registered mail the receipt dated 12 March 2007. The consumers sign the letter and C.C. both Linda Gilmore and Wendy Thakur. The Crown relies upon this evidence with respect to proving direct involvement of Wendy Thakur in the business of CUNS to support knowledge of the true facts regarding party liability.

[745]Carbon Copy (abbreviation is C.C.) in a letter has its origins ideally before the advent of photocopiers when a piece of carbon paper was placed in between other sheets so that the impressions or writing on one sheet of paper would reproduce automatically reproduce the writing as a true copy of the original. Persons who are “cc’d” to the email will receive the identical email as the main recipient. The court finds that the concept, mutual understanding, and intention is the same in a letter. The court also finds that this was a means by which the consumers intended to give notice of their intent to cancel not only to Mr. Altomare but also to Wendy Thakur.

[746]The CPA, with the intention of protecting the consumer, has the following liberal and broad means by which a consumer can provide notice:

S.94 (1) if a consumer has a right to cancel a consumer agreement under this Act, the consumer may cancel the agreement by giving notice in accordance with section 92.

s. 94 (2) of the CPA states that “cancellation takes effect when the consumer gives notice”.

s.92 (4) if notice in writing is given other than by personal service, the notice shall be deemed to be given when sent.

[747]The court therefore finds that notice as it relates to the request to cancel where Wendy Thakur was cc’d was deemed to be given to her when sent. As such the court finds that this evidence supports the conclusion that Ms. Thakur had knowledge that the request to cancel had been submitted. This is in addition to the statement of agreed facts that Mr. Ferdaus spoke to Wendy Thakur and explained he wanted to cancel the agreement and receive a refund (ex. 382-Tab 1-para. 10) when he attended CUNS 4 days after entering the agreement.

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Count 13 information number 3 – unfair practice – 10 day cooling-off period-did not honour it

[748]The court finds that the following representations were made to Mr. Ferdaus that he had a right to cancel the agreement within 10 days : i) The court finds that on page one of agreement ( ex. 382-Tab A) under the acknowledgement section reads “I also fully understand the consumer protection act of 2002 stating the 10 day cooling off period for Travel Services only” [sic] while at the same time on the top of page 2 it reads “ is a Binding Contract that is non-refundable and non – negotiable” [sic] and page 3 para. 3 reads “zero Cancellation policy that will be enforced” [sic].

[749]On page one of the agreement (ex. 382-Tab B) under the acknowledgement section reads

Zero cancellation” [sic]. Para 6 of page 2 also reads “No Refunds” [sic] while page 3 para. 3 reads “zero Cancellation policy that will be enforced” [sic]. On both agreements at the top of the second page reads “Members fully acknowledge and accept this membership as a Binding

Contract, which is Non Refundable and Non Negotiable” [sic]

[750]The Court finds that Mr. Ferdaus repeatedly attempted to cancel his agreement within the 10 day cooling-off period by i) verbally the day after entering into the agreement when Linda Gilmore called Mr. Ferdaus and he requested to cancel the agreement (ex. 382-Tab 1, para. 9), ii) 4 days after entering the contract by attending CUNS and speaking to Wendy Thakur

and expressing his desire to cancel (exhibit 382-Tab 1 para. 10), iii) on 9 March 2007 Mr. Fergus attended CUNS and spoke again to Linda Gilmore and requested to cancel, and iv) a letter dated 12 March 2007 was sent via registered mail to Frank Altomare, and cc’d to Linda Gilmore and Wendy Thakur ( ex. 382-Tab C).

[751]The court finds the representation made was false, misleading, or deceptive as per s.14

(2)ss 13 as CUNS did not honour it- Mr. Ferdaus never received a refund. This is contrary to section 17 (1) of the CPA and therefore an offence as per s. 116 (1)(b)(ii) of the CPA. The court finds CUNS guilty of the offence of unfair practice and guilty of count 13 of information 3.

Unfair practice – 10 day cooling off period – did not honour it- the liability of Wendy Thakur and Antonietta Daneluzzi

[752]The court finds that on page one of agreement ( ex. 382-Tab A) under the acknowledgement section reads “I also fully understand the consumer protection act of 2002 stating the 10 day cooling off period for Travel Services only” [sic] while at the same time on the top of page 2 it reads “ is a Binding Contract that is non-refundable and non – negotiable” [sic] and page 3 para. 3 reads “zero Cancellation policy that will be enforced” [sic]. On both agreements at the top of the second page reads “Members fully acknowledge and accept this membership as a Binding Contract, which is Non Refundable and Non Negotiable” [sic].

[753]The court finds that the Crown has proven beyond a reasonable doubt the count as against the named defendants as they have proven knowledge of the true facts. The court finds

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that as the sole officers and directors of a CUNS the named defendants i) knew or ought to have known the content of the written agreement contained representations, ii) that these representations indicated the consumers were entitled to certain remedies, such as a 10 day cooling-off period, while at the same time indicating that there were “Non Refundable” and “zero cancellation”. That the named defendants i) had a responsibility to ensure the legality of the contracts however, ii) allowed the agreements with the content to be used by CUNS iii) for the purpose of assisting CUNS to commit the offence of unfair practice by allowing the content of the agreement to used and not correcting it.

[754]In addition, there was direct evidence as to Wendy Thakur’s knowledge of the true facts. Mr. Ferdaus not only attended CUNS and spoke to Wendy Thakur on 9 March 2007. The court has also found that the letter sent requesting to cancel the agreement and cc’d Wendy Thakur was notice of the request to cancel the agreement and deemed to be given when sent. Both requests fell withing the 10 day cooling-off period. As such, the court finds Wendy Thakur, i) knew the request to cancel was made as it was made to her verbally in person and in exhibit 382-Tab C, ii) had knowledge of the true facts that the consumer was entitled and was still within the 10 day cooling-off period and had a right to cancel, ii) assisted CUNS in not honouring the 10 day cooling-off period by not providing a refund or omitting facilitating a refund. The court finds Wendy Thakur thwarted Mr. Ferdaus attempts to cancel the agreement and never provided a refund knowing that a request to cancel had been made. Moreover, the improper representations about the 10 day cooling-off period were in the agreement.

[755]For the above reasons the court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of unfair practice and therefore guilty of count 13 of information number 3.

Count 14 information number 3 – Fail to Refund

[756]The court finds the consumer requested a refund i) the day after the agreement was entered into when Linda Gilmore called Mr. Ferdaus and denied cancellation (ex. 382-Tab 1 para. 9), ii) 4 days after entering in to the agreement by attending CUNS and speaking to Wendy Thakur and expressing his desire to cancel, iii) on 9 March 2007 Mr. Ferdaus attended CUNS and spoke again to Linda Gilmore and his request to cancel was further was denied, and iv) a letter dated 12 March 2007 was sent via registered mail ( ex. 382-Tab C). The court further finds Mr. Ferdaus did not receive a refund.

[757]The court also finds that once the request to cancel was made verbally or in writing, that sections 95 and 96 of the CPA, were triggered and Mr. Ferdaus was entitled to a refund within 15 days of making such request (s.79(1) of the regulations). To add, since the court has found that the agreement was deficient, Mr. Ferdaus also had a right to cancel within one year of entering into the agreement as per s. 28 (2) of the CPA. CUNS did nor provide the consumer with a refund and this was contrary to s. 96(1) of the CPA and an offence as per s. 116 (1)(b)(viii) of the CPA. The court finds that the Crown has proven beyond a reasonable doubt that CUNS committed the offence of fail to refund and therefore CUNS is guilty of the count 14 of information 3.

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Fail to refund - The liability of Wendy Thakur and Antonietta Daneluzzi-The liability Wendy Thakur as it relates to fail to refund

The liability of Wendy Thakur as it relates to fail to refund

[758]As outlined above (see para. 744 to 747), from the evidence the court finds that Wendy Thakur had the true knowledge of the facts that Mr. Ferdaus requested a cancellation of the agreement. As per the agreed statement of facts and as mentioned earlier in this decision, the court has already found that this request was made by Mr. Ferdaus verbally and in writing (letter cc’d to Wendy Thakur). The court finds the Crown has proven their case beyond a reasonable doubt that Ms. Thakur i) was aware of the circumstances that constituted the offence, that is knowledge of the true facts, and ii) by not facilitating a refund within 15 days of the request and doing nothing to facilitate such refund aided and abetted CUNS in committing the offence. The Court therefore finds Wendy Thakur guilty of the offence of fail to refund and therefore guilty of count 14 of information 3.

The liability of Antonietta Daneluzzi as it relates to fail to refund

[759]The court finds that the Crown has not proven the case against Antonietta Daneluzzi beyond a reasonable doubt as the Crown has not proven that Antonietta Daneluzzi aided or abetted CUNS in the offence of fail to refund. That is, the Crown did not prove that i) Antonietta Daneluzzi assisted or encouraged CUNS to not provide a refund, and ii) that Antonietta Daneluzzi did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts). As such the court finds Antonietta Daneluzzi not guilty of count 14 of information number 3 and therefore not guilty of the offence of fail to refund.

Information number 3 counts 15 to 18- Iluminado Poblete

[760]Mr. Poblete testified before the court on September 19th, 2014.

[761]Mr. Poblete received a call from CUNS on 10 March 2007, advising that he had a chance to win $5000 or a trip abroad but needed to attend a seminar at their office about CUNS promotions and membership.

[762]Mr. Poblete attended CUNS in Mississauga on 11 March 2007 just before lunchtime with his 3 children. When they arrived at CUNS they went inside and were taken to a place for breakfast. Mr. Poblete watched a presentation and were taken there by a gentleman and a lady who worked for CUNS. There was an elderly white woman showing a video to Mr. Poblete and his family as well as other small groups. The presenter explained with a CUNS membership

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there were many benefits and privileges including airline tickets, discounts on travel, and borrowing money.

[763]After the video Mr. Poblete testified he and his children were taken to another room where he met i) the man that was with him when he signed the documents, ii) Linda Gilmore , and iii)another lady that came in who had an Indian accent. During Mr. Poblete’s testimony he could not recall the name of the man however later as he was led through the documents by Mr. Ludlow, Mr. Poblete testified he thought that Frank Altomare was this man. He further testified that Frank Altomare asked him to sign and initial the contracts while explaining nothing about what the contract meant.

[764]Mr. Poblete entered 2 agreements both dated 11 March 2007. Both agreements are both signed by the Mr. Poblete, has the name Frank Altomare under the heading “name and position of authorized representative” with a signature above, and a salesperson named as “Scott”. The first agreement with invoice number 3074 (ex. 112) was for a VIP value service for 8 years, yearly fee of $99.00 that included real estate services, financial services, auto benefits, and premium buyers. Under “billing details” it reads a term of 60 months, interest rate of 29.9%, a monthly rate of $149.24 with a loan start date of 1 April 2007 and a loan end of 1 March 2012. It is for a total of $6781.03. Under the Acknowledgement section it reads in bold that there is a

“zero cancellation policy”. At the top of page 2 it indicates that the membership agreement is “non refundable and non negotiable”. Paragraph 6 on page 2 indicates “no refunds will be permitted by the Company” [sic]. The second agreement with invoice number 3073 (ex. 113) is for a VIP travel service for 8 years with a yearly fee of $99.00 and services including travel gallery, world resort club, hot list resort vacations. Under billing details, it reads 60-month term, interest rate 29.9%, monthly payment $37.31 with a loan start date of 1 April 2007 and loan end date of 1 March 2012. Under the Acknowledgement is text that includes, but not restricted to, the following written in bold, “I also fully understand the consumer protection act of 2002 stating the 10 day cooling-off period for Travel Services only” [sic]. The total reads as $1695.79. Mr. Poblete also signed a “request for financial services” (ex 114) which includes a financial checklist however he did not recall this document. At the top of page 2, it indicates that the membership agreement is “non refundable and non negotiable”.

[765]An amount of $2700 was paid on 11 March 2007 at 13:50 hrs to CUNS (ex. 115) on Mr.

Poblete’s American Express. Mr. Poblete testified that CUNS persuaded him to pay as much as he did that day to avoid paying interest. Mr. Poblete testified that not only did CUNS ask him what his credit limit was, but also that he felt as though the CUNS employees were rushing him to join the membership and that he did not understand the membership. He was in the room with his children and they were hungry and one of his children had an appointment to go somewhere and he was advised it to wait a little longer and they asked him to sign the document and then they would be able to leave.

[766]Mr. Poblete testified after the signing of the agreement there was a man that handled a drawing of the raffle. Mr. Poblete never received a prize but instead he received a draw prize voucher (ex. 120). Mr. Poblete testified that his recollection was he was to win a 50-inch plasma

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T.V. and this was the main reason for attending at CUNS. Mr. Poblete also testified that he never received any money back from CUNS.

[767] The correspondence between CUNS and Mr. Poblete is as follows:

-welcome aboard letter dated 14 March 2007 (ex. 122) from CUNS to Mr. Poblete (although it was addressed to Mr. Iluminado” which is the consumer’s first name. This form lists the names and contact information for various service providers at CUNS including Betty Dominguez for travel. Mr. Poblete testified that he could not recall if he spoke to a male or a female, but he did call to inquire about a ticket for a trip to the Philippines and found the price he was quoted was higher than other travel agencies that he inquired with. He further testified that he paid approximately $600 more via cheque to facilitate paying down the membership.

-letter from CUNS to Mr. Poblete dated 10 October 2007 (ex. 125). Mr. Poblete testified that one point in time he had a discussion with CUNS about paying his account in full as he was concerned about the high interest rate.

-Request to cancel membership letter from Mr. Poblete to CUNS dated 24 October 2007 (ex. 123). In this correspondence there is an express request to cancel the membership for the total of $8,476.00 it was sent via registered mail and the receipt is included in the exhibit.

-He paid $2700.00 using his American Express credit card and was provided a transaction slip dated 11 March 2007 (ex. 115).

-Mr. Poblete testified in cross-examination that he received assistance from Legal Aid Ontario about his legal rights but and was advised by them of the CPA but that he wrote the letter himself. Mr. Poblete confirmed in his testimony that he never requested in his letter or to anyone at CUNS that he wanted his money back however he did want his money back. He was advised by Legal Aid that it would be difficult for him to get a refund for the money that he paid and that it was best to attempt to cancel the contract.

-Letter from CUNS to Mr. Poblete dated 9 November 2007 (ex. 124) acknowledges they received the letter dated 24 October 2007 from Mr. Poblete but denies him a refund referring to their “zero cancellation and refund” policy. In this letter the reference line reads as follows: Canadian Universal Network Solutions Inc. Contract #3073 AND 3074 signed March 11, 2007”. in the body of the letter it refers to “membership contract” using the singular.

[768] In cross-examination Mr. Poblete testified to the following:

-when asked about whether he “noticed the 10 day cooling-off period” (ex. 113) by Mr. Wright he wasn’t sure that he understood the meaning. When he attended CUNS the next day he stated he asked “Gilda” about cancelling both agreements and was advised that there was no cancellation once you join. He further testified that he was not sure if the lady he spoke to on that day was Linda Gilmore.

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-that he never asked for a loan from CUNS and was not aware of what the $25,000 loan was, although he did mention to CUNS that he required some financial assistance. He was told about the loan service during the presentation, but he never asked for the service especially with the high interest rate.

-that he felt pressured to purchase the agreement from CUNS staff.

-When asked if “Scott” or “Linda Gilmore” were in the room with him when he signed the agreement, he testified he could not remember if they were but knows that there was one gentleman and one lady present.

-he paid the $2700 because that was the maximum amount was available on his credit card, which he advised CUNS that was his limit.

Count 15 information number 3 – Improper Contract – time share agreement

[769]I concur with para. 250 of the Crown’s submissions, and upon application of section 3 of the CPA, the court finds that, Mr. Poblete entered one agreement, a time share agreement. In CUNS letter to Mr. Poblete dated November 9th, 2007 (ex. 124) In this letter the reference line reads as follows: Canadian Universal Network Solutions Inc. Contract #3073 AND 3074 signed March 11, 2007”. While reference is made to 2 separate invoice numbers, the body of the letter it refers to “membership contract” in the singular. Furthermore, the agreement that is significantly less in membership amount it the agreement that CUNS purports to be subject to the 10 day cooling-off period ( ex. 113), allowing the future performance agreement (ex.112) to remain containing the larger portion of the total membership fees paid. The court therefore dismisses count 16 on information # 3 as it relates to the future performance agreement, as against all defendants.

[770]As the court has found that there is one agreement , a time share agreement, the court further finds that it is deficient as it does not contain the required information as set out in s. 26 of the regulations including, but not restricted to, clause 8. This is contrary to s. 27 of the CPA and an offence as per s. 116 (2) of the CPA. Therefore, the court finds CUNS guilty of the offence of improper contract and guilty of count 15 on information 3.

Improper Contract – The liability of Wendy Thakur and Antonietta Daneluzzi

[771]The court finds that i) as the sole officers and directors of CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that- the agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of improper contract and therefore guilty of count 15 of information number 3.

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Count 17 – Unfair Practice – transaction did not involve the right to cancel

[772]The court find that the following representations were made in the body of the agreements : i) in Exhibit 112 Under the Acknowledgement section it reads in bold that there is a “zero cancellation policy”, ii) page 2 para 6 indicates “ No refunds will be permitted by the

Company” [sic], and iii) page 3 para. 3 “zero Cancellation policy will be enforced” [sic]. In Exhibit 113 it reads i) “I also fully understand the consumer protection act of 2002 stating the 10 day cooling off period for Travel Services only” [sic], and ii) page 3 para. 3 “zero

Cancellation policy will be enforced” [sic]. At the top of page 2 of both agreements it reads the membership agreement is “non refundable and non negotiable”. Paragraph 6 on page 2 indicates “No refunds will be permitted by the Company” [sic]

[773]The count is particularized as follows:

17)AND FURTHER THAT:

CANADIAN UNIVERSAL NETWORK SOLUTIONS INC., WENDY THAKUR AND ANTONIETTA DANELUZZI, on or about the 9th day of November 2007, in 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 in relation to Illuminado Poblete, a consumer, by making a false, misleading or deceptive representation to said consumer, that the transaction did not involve the right to cancel contrary to section 17(1) of the CONSUMER PROTECTION ACT, S.O. 2002, c.30, as amended, and thereby committed an offence contrary to section 116(1)(b)(ii) of the said Act:

[774]The court finds that in addition to the representations in the body of the agreements, that i) the defendant clearly requested to cancel the agreement in a letter to dated 24 October 2007 (ex. 123), and ii) in in response CUNS, in a letter to Mr. Poblete dated 9 November 2007 (ex.

124) i) acknowledged receipt of his letter dated 24 October 2007 and ii) denied him a refund referring to the company’s “zero cancellation and refund” policy. The court concurs with para. 251 the Crown’s written submissions regarding the representation made in the letter and that the representations identified above were false, misleading or deceptive in that , as per s.14 (2) clause 13, they amounted to “ A representation that the transaction involves or does not involve rights, remedies or obligations if the representation is false, misleading and or deceptive”. The representations made suggested to Mr. Poblete that the transaction did not involve the right to cancel when it did as he was entitled to cancel a deficient agreement within 1 year as per s. 28 (2) of the CPA. This amounted to unfair practice contrary to s. 17(1) of the CPA and an offence as per s. s. 116 (1)(b)(ii) of the CPA. Therefore, the court finds CUNS guilty of the offence of unfair practice and therefore guilty of count 17 of information number 3.

Unfair Practice – transaction did not involve the right to cancel – The liability of Wendy Thakur and Antonietta Daneluzzi.

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[775]The court finds that the Crown has proven beyond a reasonable doubt the count as against the named defendants as they have proven knowledge of the true facts. The court finds that as the sole officers and directors of a CUNS the named defendants knew or ought to have known the content of the written agreement contained representations such as- “zero cancellation “and “no refunds” that were misrepresentations. These representations indicated that the consumer was not entitled to the right to cancel contrary to the provisions of the CPA. The named defendants i) had a responsibility to ensure the legality of the contracts however, ii) allowed the agreements with the content to be used by CUNS iii) for the purpose of assisting CUNS to commit the offence of unfair practice by allowing the content of the agreement to used and not correcting it. Therefore, the court finds Antonietta Daneluzzi and Wendy Thakur guilty of unfair practice and therefore guilty of count 17 of information number 3.

Count 18 information number 3 - Fail to Refund.

[776]It is clear that Mr. Poblete wanted to cancel his contract and as stated above, was hopeful to be able to not continue to pay any further payments but was resigned to the fact, based upon legal advice obtained and the representations of CUNS, that he would not receive a refund. Mr. Poblete testified that while he requested to cancel his agreement, he did not request a refund. This confusion and misunderstanding on the part of Mr. Poblete is a clear example of why the CPA is specific and direct as it relates to refunds. A specific request for a refund of money is not required pursuant to the CPA. The obligation to provide one to the consumer is automatically triggered once a request to cancel the agreement is made.

[777]The court finds as the agreement was deficient Mr. Poblete was entitled to request to cancel his agreement within 1 year (s. 28 (1) of the CPA. As Mr. Poblete requested to cancel his agreement in a letter to CUNS dated 24 October 2007 (ex. 123), sections 95 and 96 of the CPA were triggered and he was entitled to a refund within 15 days of the request as per s. 79(1) of the regulations. Since Mr. Poblete did not receive a full refund this was contrary to s. 96(1) of the CPA and an offence as per s 116 (1)(b)(viii) of the CPA. The court therefore finds CUNS guilty of the offence of fail to refund and therefore guilty of count 18 of information #3.

Fail to Refund – the liability of Wendy Thakur and Antonietta Daneluzzi

[778]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the defendants aided or abetted CUNS in the offence of fail to refund. That is, the Crown did not prove that i) the named defendants assisted or encouraged CUNS to not provide a refund, and ii) that the named defendants did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts). As such, the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of count 18 of information number 3 and therefore not guilty of fail to refund.

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Information number three-Counts 19 to 23-Vinod Padhiar

[779]The evidence related to Vinod Padhiar is found in the statement of agreed facts marked as exhibit 383 to these proceedings.

Evidence regarding the purported direct involvement of Antonietta Daneluzzi in the business of

CUNS

[780]A signature appears above the typed name of Antonietta Daneluzzi on the Release and Non- Disclosure document (ex.383-tTab E). Considering the court’s discussion regarding the signature purported to belong to Antonietta Daneluzzi (see. paras 139 to 142), also this court’s ruling as it relates to consumers Doroja (see para. 828) the court cannot engage in a signature comparison.

[781]As there is no additional evidence to support the circumstances upon which the signature appeared i.e. i) a witness to the signature and other factors as outlined above, what is before the court is a Release document that has a name and signature with no context as to who actually signed it. Little weight can be placed upon such evidence and the court finds that the crown has not proven that Antonietta Daneluzzi had direct involvement in the business of CUNS necessary to establish knowledge of the true facts. However, the appearance of the signature is only one piece of evidence that is weighed to determine whether the Crown has met their burden as it relates to party liability.

Count 19 of information number 3 – Improper Contract

[782]The court agrees with the Crowns submissions and finds it appropriate to apply s. 3 of the CPA. The agreement that was subject to the 10 day cooling-off period was for a lesser amount of $4442.56 that ( ex. 383-Tab B), while the agreement that was not subject to the same cooling-off period was for the larger amount of $ $5500.44 (ex. 383-Tab A), and the consumers were verbally informed both contracts were subject to the 10 day cooling-off period ( ex. 383 Tab 1 para. 3). Considering the substance over the form of the agreements, the court finds that the consumer Mr. Padhiar entered into one agreement, a time share agreement, as and therefore, count 20 of information number 3 that relates to future performance agreement, is dismissed. Upon review of the agreement dated 5 May 2007 (Ex. 383-Tab A) the court finds it deficient of the required information as outline in s. 26 of the regulations including, but not restricted to , clause 6 (absence the date on which and the place where the agreement is

entered into) and clause 8 ( absence of the cancellation language) . This is contrary to s. 27 of the CPA and an offence as per s. 116 (2) of the CPA. The court finds CUNS guilty of the offence of improper contract and guilty of count 19 of information 3.

Count 19 – the liability of Wendy Thakur and Antonella Daneluzzi

[783]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their agreements

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and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that- the agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of improper contract and guilty of count 19 of information 3. As the liability of Antonietta Daneluzzi has been proven on the above basis the court determines it is not necessary to consider the signature evidence in relation to this count.

Count 21 information number 3 – unfair practice- 10 day cooling-off period-did not honour

[784]The court finds that a representation was made i) verbally, that both contracts entered could be cancelled within 10 days of the agreement (ex. 383-Tab 1 para. 3) ii) the wording on the agreement (exhibit 383- Tab B) reads “I also fully understand the consumer protection act of 2002 stating the 10 Day cooling off period for Lifetime membership only” [sic]. The court further finds that the consumers requested to cancel their agreement (within the 10 day cooling-off period) on 11 May 2007 by hand delivering a letter to Ms. Gilmore (ex. 383- Tab D). Furthermore, in the letter from CUNS dated 15 May 2007 (exhibit 383-Tab E) reference is made to approving the termination of the RCI points contract as per the CPA “10 day Cooling Off Period”.

[785]The court also finds the following representations were made in the content of the agreements themselves: (ex. 383-Tab A) at the top of page 2 reads “accept this membership as a Binding Contract, which is non -refundable and non-negotiable, [sic] ii) page 2 para. 6 reads “V.I.P. Value Service is a Binding Obligation and that No Refunds will be permitted by the Company” [sic] and iii) at page 3 paragraph reads “zero Cancellation policy” [sic]. On page one of exhibit 383-Tab B, under the acknowledgment section it reads “I also fully understand the consumer protection act of 2002 stating the 10 day cooling off period for Lifetime Membership only” [sic].

[786]As the consumers did not receive a full refund despite having a right to cancel within 10 days as per s. 28 (1) of the CPA, the court finds this representation was false, misleading, or deceptive. The court finds the representation is unfair practice as per s.14 (2) clause 13 as it is “A representation that the transaction involves or does not involve rights, remedies or obligations if the representation is false, misleading or deceptive”. This is contrary to s. 17(1) of the CPA and an offence as per s. 116 (1)(b)(ii) of the CPA. To add, slashing through and marking the agreement “VOID”, as seen in exhibit 383-Tab B), without providing the consumer with a full refund, does not amount to a cancellation of an agreement. The court finds that the Crown has proven the case against CUNS beyond a reasonable doubt and finds CUNS has committed the offence of unfair practice and is guilty of count 21 of information 3.

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Unfair practice – 10 day cooling- off period - the liability of Wendy Thakur and Antonietta Daneluzzi

[787]While reading the agreements as one, the court finds there is a representation of a 10 day cooling-off period is clearly made on the face of both agreements, as well as in the letter from CUNS (ex. 383-Tab E), The court also finds that ,at the same time, agreement (ex. 383- Tab A) contains language such as “zero cancellation policy”, “zero refunds”, “non -refundable and non- negotiable”, as outlined above.

[788]The court finds that the Crown has proven beyond a reasonable doubt the count as against the named defendants as they have proven knowledge of the true facts. The court finds that as the sole officers and directors of a CUNS the named defendants i) knew or ought to have known the content of the written agreement contained representations, ii) that these representations indicated the consumers were entitled to certain remedies, such as a 10 day cooling-off period, while at the same time indicating that there were “no refunds” and “zero cancellation”. That the named defendants i) had a responsibility to ensure the legality of the

contracts however, ii) allowed the agreements with the content to be used by CUNS iii) for the purpose of assisting CUNS to commit the offence of unfair practice by allowing the content of the agreement to used and not correcting it. The court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of unfair practice and guilty of count 21 of information number 3. As the liability of Antonietta Daneluzzi has been proven on the above basis the court determines it is not necessary to consider the signature evidence in relation to this count.

Count 22 Information number 3 – unfair practice – representation that a refund of $4191.09 was forthcoming-did not honour it

[789]Upon review of the Release and Non – Disclosure document (ex. 383-Tab E) the court finds that CUNS represented that they would refund Mr. Padhiar “$4191.09 + GST” which was forthcoming in 2 to 4 weeks. The court also finds that since CUNS did not honour the representation as Mr. Padhiar did not receive a refund, that this representation was false misleading or deceptive as per s.14 (2) clause 13 of the CPA. This is contrary to s. 17(1) of the CPA and an offence as per s. s. 116(1)(b)(ii). The court therefore finds CUNS guilty of unfair practice and guilty of count 22 of information number 3.

Unfair practice – count 22 - the liability of Wendy Thakur and Antonietta Daneluzzi

[790]This court’s decision in relation to consumers Doroja (see para. 828) finds it improper to engage in a signature comparison, as it could not be proven beyond a reasonable doubt that Antonietta Daneluzzi authored the signature. What is left to consider in relation to consumer Padhiar is the typed name of Antonietta Daneluzzi on the Release and Non-Disclosure document with a signature that the court is unable to conclude belongs to Antonietta Daneluzzi. As such the court finds that the Crown has not proven that Antonietta Daneluzzi had direct involvement in the business of CUNS to the extent that it proves that she had knowledge of the true facts as it relates to this count.

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[791]The court finds that Crown has not proven, beyond a reasonable doubt, the count as against the named defendants as the Crown has not proven knowledge of the true facts. While the Crown has proven that the representation was made, they have not proven that the named defendants i) were aware CUNS had the intention to commit the offence , and ii) did or omitted to do something to assist CUNS in committing the offence. As such, the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of unfair practice and therefore not guilty of count 22 of information number 3.

Count 23-Information 3 – Fail to Refund

[792]The court finds that Mr. Padhiar sought to cancel the agreement by attending CUNS on the 11 May 2007, and provided Linda Gilmore with a letter requesting cancellation, for which she signed to acknowledge receipt (ex. 383-Tab D). Upon this request sections 95 and 96 of the CPA are engaged and CUNS was obligated to provide a refund within 15 days as per s. 79(1) of the regulations). As CUNS failed to do so, this was contrary to s. 96 (1) of the CPA and an offence as per s. 116(1)(b)(viii) of the CPA. The court finds that the Crown has proven the offence of fail to refund beyond a reasonable doubt and as such CUNS is guilty of the offence fail to refund and therefore guilty of count 23 of information number 3.

Fail to Refund – count 23 -The liability of Wendy Thakur and Antonietta Daneluzzi

[793]For reasons as discussed above, the court finds the existence of a signature above the name of Antonietta Daneluzzi does not amount to proof of Antonietta Daneluzzi’s direct involvement in the business of CUNS to the extent that it proves that she had knowledge of the true facts as it relates to this count.

[794]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the defendants aided or abetted CUNS in the offence of fail to refund. That is, the Crown did not prove that i) the named defendants assisted or encouraged CUNS to not provide a refund, and ii) that the named defendants did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts). The court therefore finds Wendy Thakur and Antonietta Daneluzzi not guilty of the offence of fail to refund and therefore not guilty of count 23 of information number 3.

Information number 3 – Counts 24 to 27 – Rey Doroja and Gisela Doroja

[795]Mr. and Mrs. Doroja testified before the court on June 20th, 2014.

[796]Mrs. Doroja received a telephone call in mid June 2007 from CUNS and they were asking for a person whose name she did not recognize. Neither of the consumers had heard of CUNS before this initial telephone this initial telephone call. The person on the other line indicated

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that they could transfer the prize to her and invited her to attend for a lunch and a prize holding gala where she could win a TV or a vacation or $1000. Mrs. Doroja first scheduled to attend on a Friday night and advised them it would only be herself as her husband had to work. Mrs. Doroja indicated that they insisted that she attend with her husband. Mrs. Doroja wanted to cancel going to the prize gala, but she had already, during the conversation and providing information, mistakenly given the caller her husband’s cell phone number. Mr. Doroja testified that he received a call from CUNS to attend during the weekday but agreed instead to attend on the weekend. During this initial telephone conversation with CUNS Ms. Doroja testified that she provided them with her email address, so they could send the invitation and a map. Then she received an emailed dated 21 June 2007 congratulating them and referencing an open house where they are guaranteed to win one of three draw gifts: 3 days and 2 nights multi - destination getaway (accommodation only, destinations include United States, Mexico and Canada); $5000 in cash; or a 42 inch coloured television. (ex. 10).

[797]The Dorjas attend 3030 Orlando Drive in Mississauga, with their daughter, on Saturday 23 June 2007. Mrs. Doroja testified It looked like partly a warehouse and a show room. They were greeted by many hosts and asked to fill in a form and provide their drivers licenses which both Mr. and Mrs. Doroja testified they provided. They were introduced by someone named “Abu” and were led to a room to have lunch first. Mr. Doroja testified that he was not expecting to have lunch, just to attend to claim their prize. Mr. Doroja further testified that Abu was of Afghan descent and in his late 20s or early 30s. Mr. Doroja testified that there were 5 or 6 other couples in the lunchroom each having their own representative with them. Abu accompanied them while they had lunch, he talked about CUNS services such as travel, RCI and discounted appliances.

[798]Mrs. Doroja testified Abu spoke about all the places that he had visited with CUNS all around the USA and international. He mentioned San Antonio (where the time share resort was based), Cancun, Florida, and he Dominican Republic. This made Mrs. Doroja excited as travelling is something she wanted to do. After lunch they waited for a while then were led to another room for a presentation.

[799]The presentation was held in an audio /video room and they were shown power points and videos. The presentation covered information about the products that they were trying sell including RCI, CUNS service which is similar price club or a direct buyers club where they would offer discounted prices to their members. Services such as banking, mortgaging, housewares, appliances, credit card refinancing and even renovations were being offered. From what was mentioned during the presentation, Mrs. Doroja understood RCI to be that they were selling a time share in San Antonio Texas and a certain part of the year you were eligible to stay in the time share. If you were not able to stay you would receive credits of 6,000 points that you could convert into a plane fare or towards time for another resort.

[800]After the presentation they moved to a room where Abu began to discuss the benefits of the two products they were selling and provided more detail including pricing. the RCI would be $9000 and the buyers club would be $9000 but if both were purchased, they could provide a

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discount of up to $4000. Mr. Doroja testified after hearing about he discounts he was interested and was quoted by Abu a total membership price of $14,000 for both RCI and the CUNS membership but if they signed up that day, they would pay $10,000. Mrs. Doroja thought it was a good offer, but she testified that this was the very first offer of the kind that she had encountered. Her and her husband were planning on going on vacation in December and thought it might be useful at that time. Mrs. Doroja testified that both her and her husband made it clear that they could not afford $18,000. Mr. Doroja testified that he and his wife went outside and spoke about the membership but not privately, as Abu was with them. He added, “All the whole time that we were there, we were never left alone really, because they were always around us wherever we are”. The Dorojas determined they could afford a membership of about $8000.00 and advised Abu. It was about this time that Abu introduced them to his manager, Linda Gilmore.

[801]Mrs. Doroja testified that Abu advised that he attempt to negotiate on their behalf with Linda Gilmore to see if they could get a deal to help afford the membership. Mr. Doroja testified that Ms. Gilmore first offered $14,000 and he counter offered with $8000. Ms. Gilmore indicated she could not agree to $8000 so Mr. Doroja agreed to $10,000 which Ms. Gilmore included a one-week trip to Disney in Orlando for the family. Mr. Doroja testified that for the $10,000 what he expected in return was the membership and 1 week trip to Disney. He understood that the membership would provide services such as discounts on appliances and other household items which was appealing, as they had just moved into a home. Ms. Gilmore offered a financing package where the membership could be financed over several years instead of trying to afford it all at once, making it more affordable. Ms. Gilmore also offered a $2500 credit for travelling to Florida or Orlando during 2007 and this appealed to Mrs. Doroja as her and her husband had planned to travel to Florida that year.

[802]Once Mr. Doroja returned, Mrs. Doroja testified that they were taken into another room she referred to as the “finance room” where they were introduced to the finance manager who

Mr. Doroja testified as being Mr. Ismet. Mr. Doroja testified that he requested to pay monthly and was asked for a credit card. When he responded that their credit was bad Mr. Ismet requested a credit card and he advised them his wife had one, but it was at home. He was further advised by Mr. Ismet to pay with the credit card and they would be provided with a line of credit and they could then place the purchase form the credit card to the line of credit. Mr. Ismet suggested this was possible as they provided financial services such as mortgages and debt consolidation. Mrs. Doroja testified they were shown a contract for both products and asked to pay through the credit card that had been retrieved. Mrs. Doroja looked through the contracts briefly. There were a few CUNS staff at the office when the paperwork was being done and the representation about the line of credit was made, Mr. Doroja testified he could not recall their names. At this point Linda Gilmore was coming in and out of the office.

[803]Mrs. Doroja had left her credit card at home to avoid the temptation to use it as it she was saving to use for their trip to Florida. She found it odd that they were invited to CUNS for prizes with no obligation, so she played it safe. During cross-examination it was clear that she did this as well if she went shopping just to avoid temptation. Mrs. Doroja made it clear she did

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not want to use the card and testified that Ms. Gilmore suggested the amounts would only be on her card for a few weeks as they were to arrange for financing of the membership. Mrs. Doroja testified that about 8:00 pm (in chief Mr. Doroja testified it was about 4 or 4:30 when they left CUNS), Linda sent Abu to drive Mr. Doroja back to their house to pick her credit card from there. Their daughter was getting tired. Mrs. Doroja testified that she waited with her daughter at CUNS for about an hour while Abu and her husband returned to their home to retrieve the credit card. While waiting a CUNS hostess kept them company. In his testimony Mr. Doroja testified that he was given a ride back in Abu’s car to retrieve the credit card, a round trip that took approximately 1 hour.

[804]When the Dorojas attempted to place through the amount it was flagged by the credit card company and declined and were told to ty in 5 minutes, but it declined again. After three attempts and calls two phone calls to the credit card company someone in the CUNS office dialed the number for Mrs. Doroja to speak to the credit card representative to advise them of the large $15,000 plus upcoming transaction. Once the payment went through, they were provided with an enrolment package, and a booklet (ex. 6). While discussing the membership Mrs. Doroja testified that when the topic arose of cancelling and refund for the membership she distinctly remembers that she was advised that there was a 10 day cooling-off period applicable to the RCI membership and she did not recall if they mentioned that it applied to the other Buyers Club membership as well. Mr. Doroja testified he was advised of his opportunity to cancel within 10 days by Mr. Ismet. In total the consumers paid $15,993.00, the credit card receipts showing the processed payments as well as the attempts to process. The payment (2 receipts dated 23 June 2007) were marked as exhibit 2 to these proceedings.

[805]Exhibit numbers 3 and 4 are agreements where have both the consumers names appear on them and are dated 23 June 2007, under the heading “name and position of authorized representative appears the name of Borat Ismet with a signature below. Both also have listed the salesperson name as “Abou”. Also, at the top of page two of both agreements reads “this membership as a Binding Contract, which is non-refundable and non-negotiable [sic]. It is important to note that the consumers signatures do not appear anywhere with respect to the first agreement (ex. 3) but do appear on the bottom of “Why I became a member” which is page 4 of exhibit number 4.

[806]Exhibit number 3 is the first agreement has an invoice number scratched out and one written in ink above of “3304”. It is 3 pages and shows a CUNS membership of 15 years with VIP travel service which includes the travel gallery, the world resort club, cruise club, hot list- resort vacation, hot list- cruise vacations. It also includes VIP value services including real estate services, financial services, auto benefits, and premium buyers. Under total it indicates $8525.43. With respect to exhibit 3, Under the Acknowledgment section it reads in bold, amongst other things, “ VIP TRAVEL AND VALUE SERVICES.” Further down it reads in bold “zero cancelation policy”. On page 2 and para 6 – “V.I.P. Value Service is a Binding Obligation and that No Refunds will be permitted by the Company” [sic] Page 3 para. 3 reads “zero Cancellation” [sic]. When asked by Mr. Ludlow in chief whether she signed the agreement (ex.

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3)or a copy of the agreement, Mrs. Doroja testified she did not recall if there was another copy.

[807]The second agreement (ex. 4) does not have an invoice number attached to it. At the top of the page written in blue ink in capitals is “RCI”. To clarify it appears that exhibit number 4 is for RCI points only. Along the list of services, it indicates n/a, and shows total of $7467.55. To clarify – there are no services that are specified on this document. Under the

“Acknowledgement section” it states in bold “V.I.P. TRAVEL SERVICES” referring to exhibit 3. It also reads “I also fully understand the consumer protection act of 2002 stating the 10 day cooling off period for Lifetime Membership only” [sic]. Page 2 this agreement also states, at para. 6 reads “V.I.P. Value Service is a Binding Obligation and that No Refunds will be permitted by the Company” [sic], and page 3 para. 3 reads “zero Cancellation” [sic].

[808]Under the heading “Additional terms and conditions”, it reads the following: Lifetime points 24,000, Annual Maintenance Fee: $610 USD, Canadian Universal pays for first year of

Maintenance Fees”. The fourth page is a photocopy that bears the consumers names and entitled “Why I became a member of Canadian Universal Network Solutions”.

[809]Mrs. Doroja testified that she did receive one of the prizes that were promised – a voucher for 3 days 2 nights that was referenced in the 21 June 2007 email (ex. 10). According to Mr. Doroja, on their way out of CUNS that evening they were led to a small room with a drum and raffle inside and drew the voucher. Mrs. Doroja testified that she inquired about the necessary steps to redeem the prize (which she did not recall at trial) however ultimately “were not able to redeem it”. Mrs. Doroja testified she requested a quote for a stove and CUNS was able to provide her with some prices, but they did not purchase a stove as the prices quoted were not as low as she thought they would be.

[810]After signing the contracts, making the payments, and receiving their enrollment package, the Dorojas finally left CUNS. During the drive home Mrs. Doroja testified that she immediately contacted her credit card company and asked them to flag the transaction for an investigation as “it just felt odd to me”. They were unable to contest the transaction as they had been provided with warning by the credit card company, before completing the transaction. Mr. Doroja testified that they left at approximately 4:00 pm or 4:30 pm and on the ride home it all “sank in” and he experienced “buyer’s remorse”. As soon as he returned home at about 5:00 pm or 6:00 pm he called CUNS but there was no answer nor any answering service.

[811]When the office hours opened Monday morning Mr. Doroja testified that he called CUNS and spoke to Linda Gilmore and told her she wanted to cancel her membership and get her money back. He was advised that he would have to speak to the legal department and give him a call back. Mr. Doroja testified that he repeatedly called CUNS and he didn’t hear from

Gilmore until a few days just before the 10 day cooling-off period elapsed and again requested to cancel the membership at which point he was advised that the RCI was already registered and that they could not receive a full refund of the money and could not cancel the CUNS

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membership. Mrs. Doroja sent an email to Linda Gilmore of CUNS dated 30 June 2007 to cancel their agreement (ex. 11).

[812]Mr. Doroja insisted that he wanted his money back and reminded her that it was before the 10 days. They discussed back it and forth until Ms. Gilmore agreed that while she could not cancel the RCI as some costs had already been incurred. Ms. Gilmore indicated that she could give him $2588 as the time share had not been used. Mr. Doroja agreed. The matter dragged on and at one point in time Mr. Doroja returned to CUNS to find Ms. Gilmore and requested again to cancel pointing out that he was within the 10 day cooling-off period previously but that she had kept dragging the matter on. Mr. Doroja testified that he was given what he would call the “run around” by Ms. Gilmore who advised him she would speak to someone and call him back. The back and forth continued over time until Mr. Doroja threatened to file a complaint with the Better Business Bureau against CUNS at which time Ms. Gilmore invited him to return to CUNS and that she would give him a cheque for $500. Mr. Doroja attend the next day and was provided with a cheque (ex. 8) but cautioned by Ms. Gilmore not to cash it for a couple of days because there was no money there yet. He tried to cash it at Money Mart, but they scanned the cheque took a picture and advised him that they did not cash cheques from that company. He did not attempt to cash the cheque anywhere else, he brought the cheque home and showed it to his wife.

[813]Ultimately the financing was never arranged as they were advised they did not qualify. Neither did the consumers receive the Disney vacation. The Dorojas never received their money back for the RCI membership that was promised by CUNS $2588 in writing (ex. 7), nor a full refund of their $15, 992.98 paid to CUNS.

[814]The following correspondence was sent between the consumers and CUNS:

-Email regarding open house celebration email sent to Mr. and Mrs. Doroja from CUNS dated 21 June 2007 (ex. 10).

-Email chain (ex. 11) – one-page email messages between 29 June 2007 and 3 July 2007. Mrs. Doroja, on 30 June 2007, requested a cancelation of the RCI membership.

-In the email dated 30 June 2007 from Gisela Doroja to Linda Gilmore, she specifically requests to cancel the RCI membership. In the email time stamped as 4:39:58, Mrs. Doroja further states that main reason they paid the membership in full was “ we were told that we would not have difficulty getting a line of credit, you can see our dilemma as we were not approved for the loan”.

-In an email dated 29 June 2007 Linda Gilmore confirms a meeting held that same day and explains that with respect to the RCI membership that a “cost has already been incurred” and that she will speak to the legal department about a “partial reimbursement”.

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[815]During her testimony in chief Mr. Ludlow guided Mrs. Doroja through the contents of the emails as they related to her. Mrs. Doroja confirmed as found in the contents of the exhibit, that in the response email dated 3 July 2007 at 9:58:39 pm Linda Gilmore responded to her request to cancel and advised that she would speak to the legal department and let them know with respect to the RCI membership that a “cost has already been incurred” and that she will speak to the legal department about a “partial reimbursement”.

[816]CUNS also sent was a cancellation letter (with cover letter), and agreement with CUNS dated 12 July 2007 with attached 2-page Release (ex 7).

[817]This cover letter has a reference line that reads as follows: RCI Lifetime Deeded Points Contract & Canadian Universal Network Contract #3304 signed JUNE 23RD, 2007. In the body of the cover letter it confirms there was a meeting on the same day as the letter is dated 12 July 2007, and that CUNS has i) approved the cancellation of the consumers RCI Lifetime Deeded Points contract, and ii) confirms a modification to the CANADIAN Universal Network

Membership contract #3304 as follows: RCI Lifetime Deeded Points ;

Full Price

$7000.00

 

Cost Price

$4412.00

Reimbursement:

$2588.00

Canadian Universal Network , as goodwill only, will modify the Travel and Value Membership from fifteen (15) Year VIP to Twenty (20) Year VIP programme to include original Travel credit of $2500 cad., you will be responsible for the annual renewal fee of $99.00 cdn.

You will receive a reimbursement cheque in the amount of $2588.00 Cdn. once this modification has been processed by our Legal and Accounting department. [sic].

[818]The cover letter is signed below by Canadian Universal Network Solutions Inc. Ms. Linda

Gilmore Customer Service Manager and under the heading “agreed and accepted by” the consumers have signed above where their names appear in typed script. The 2-page “Release and Non- Disclosure Agreement” is signed by the consumers at the end towards the right. At the bottom to the left there is signature that appears on a signature line above the following text “Authorized Signing Officer Name: Antonietta Daneluzzi”. Just below is identical text however, the name that appears is “Karen Tuszynski” and a signature appears on the signature line above. The court also notes:

-A Cancelation letter from Ray and Gisela Doroja dated 26 October 2007 (ex 9) where the consumers expressly request to cancel and refund regarding their agreement

for VIP Travel and Value Services as well as RCI Timeshare Lifetime Points a total of $15719.98 [sic] (membership #3304). They add that they have been waiting since 23 June 2007 to “get our

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money back”. During cross-examination by Mr. Wright Mr. Doroja made it clear that his intention in this letter was to cancel the entire and both parts of the agreement; and

-CUNS Cheque #2312 dated 12 October 2007 from Royal Bank of Canada in the amount of $500.00 and statement to the consumers reading “Partial Payment of Membership, Modification Reimbursement 500.00” (both marked as ex. 8).

Antonietta Daneluzzi and the Release and Non -Disclosure document

[819]As stated above, at the bottom to the left there is signature that appears on a signature line above the following text “Authorized Signing Officer Name: Antonietta Daneluzzi”. Just below is identical text however the name that appears is Karen Tuszynski and a signature appears on the signature line above. Below both these sections appears the text “we have the authority to bind the corporation”. Mr. Doroja testified in chief that i) he was present when the persons signed the agreement, ii) that he witnessed Antonietta Daneluzzi signing the Release document, iii) that all parties signed the same day he and his wife signed 12 July 2007. It is important to note that Mr. Doroja was not asked i) to describe what Antonietta Daneluzzi looked like, nor ii) whether the person purporting to be Antonietta Daneluzzi identified themselves by that name. No additional information that could assist the court with this issue was flushed out during cross-examination of Mr. Doroja. There was no in-depth exploration regarding the circumstances surrounding the signature that appears above the name of Antonietta Daneluzzi.

[820]it is important to note that when Mrs. Doroja was asked in chief:

Q: “What about those signatures on the left? Do you recognize those?

A:No. Just the names. I just see by their names whose signatures they are”.

Q:Okay. And those names are Antonietta Daneluzzi, Karen Tuszynski and Linda Gilmore. Is that right?

A:That’s correct.

Q:When those people signed that document, were you present with them?

A:I don’t recall them being with us. I just remember talking to Linda Gilmore at the time.

Q:All right. And did you ever have a meeting with the other people who have signed that document, as far as you are aware?

A:I don’t remember meeting them at all.

[821]During cross-examination by Mr., Wright, Mrs. Doroja i) confirms again not recalling that anyone else other than Linda Gilmore was part of the 12 July 2007 meeting ii) does not recall Linda Gilmore leaving the room and returning with signatures on the document, iii) does not recall the document being pre-signed, iv) only recalled her, her husband and Linda Gilmore at the meeting, and v) agreed with Mr. Wright that it is logical that other people may have signed the agreement before Ms. Gilmore brought it in for her and her husband to sign.

[822]Mr. Doroja testified to the following in cross-examination:

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-his intention was to cancel both agreements when he sent the letter dated 26 October 2007 to

CUNS

-he attempted to cash the CUNS cheque at Money Mart and they took a photo of him and told him they didn’t cash cheques from CUNS

-he never went to a Royal Bank branch (the bank that issued the cheque) to inquire as to whether or not there was any money in the CUNS account but attended Scotiabank where they indicated they had to put a hold on the cheque for 5 business days.

-when he received the CUNS cheque from Linda Gilmore he was advised not to immediately cash it as there was no money in the account. He never made any further attempt to cash it as his wife suggested it might seem as thought they settled the issue.

-While reviewing exhibit 3 and 4 he identified the signature as “Ismet’s signature and testified that he signed the contract however the copy of the contract that he was given did not have his signature and that CUNS has the copy that is signed by him. (He did sign page 4 of ex. 4 as noted above). He was not sure if the copies of the contract that he had in his possession was the same as the copies that were kept by CUNS.

-Ms. Gilmore and Mr. Ismet mentioned to him that if he changed his mind and wanted to cancel there was the 10 -day cooling-off period the day he signed the agreement.

-he did not ask for a refund at any time during the Saturday while he was at CUNS when he signed the agreement. He attempted to call at about 6:00pm later that same evening but there was no answer.

-no one promised him a refund on that Saturday when he signed the agreement

-the following Monday after he signed the contract, he asked for a cancellation of the contract -when he met with Linda Gilmore on 12 July 2007 and she agreed to give him a refund and agreed to the partial refund of $2588 and Mr. Doroja agreed with Mr. Wright when he suggested that he had reached an agreement that day that CUNS was going to give him a refund and he was going to “ live with that”, and that he realized that he was not going to get a refund for the rest of the money.

-he agreed that the cover letter dated 12 July 2007 mentions the $ 2588.00 as

“reimbursement” and makes no reference to the attached Release and Non-Disclosure document. He further agreed that the attached Release and Non-Disclosure document does not mention the $2588 but mentions in bold “will refund in consideration of $1.00”.

[823]During re-examination by Mr. Ludlow, Mr. Doroja clarified that his understanding was that when he was verbally advised of the 10 day cooling- off period on the day he signed the agreement that it was regarding the whole thing. He further clarified that when he signed the Release his understanding was that he was going to be given the $ 2500. It would appear base on Mrs. Doroja testimony in chief, that after the Release was signed and the RCI membership was cancelled her understanding was that they were to receive $2588 back from CUNS.

[824]During cross-examination, Mrs. Doroja testified to the following:

-During cross-examination by Mr. Rahamim regarding attempts made to cash the cheque, Mrs. Doroja substantially confirmed the testimony of her husband. She further confirmed that when

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she received the cheque from her husband, she did not attempt to cash it as it might be an admission to all the money that she was going to get back.

-Other than making inquiries, within the first few weeks after joining CUNS, about purchasing a stove and attempting to find out information about the travel voucher, no other attempts were made to use the membership. The focus quickly became trying to determine how to cancel the agreement and obtain a refund.

-she had never heard anything about the company RCI before attending CUNS to join the membership

-when she left CUNS after meeting Linda Gilmore and signing the document on 12 July 2007, she understood that she had been promised a full refund of both $2588 in cash and $4412 as the cost of extending their membership in the buyers club.

-it was clear to her that the only way CUNS was going to agree to refund any amount was by signing the Release was the only way to agree to a refund.

-Mrs. Doroja, referencing the meeting with Linda Gilmore on 12 July 2007, testified that she

didn’t recall anyone else being present except for her husband in addition to other testimony as indicated above as it relates to the Release and Non – Disclosure document.

[825]During re-examination by Mr. Ludlow in response to the question why they paid the full membership, Mrs. Doroja testified that at the time they thought the membership was a good idea however they had been there so long and wanted to get out of the CUNS office and

“believed full well that we could get our money back due to the Consumer Protection”.

-she understood the membership payment of almost $16,000 was buying her the ability to go travel and the ability to furnish her home with quality products.

-in relation to agreeing to extend the membership by 5 more years and accepting the $2588 that is not what she had wanted however it was the only thing that was offered and she really wanted to get her money placed back onto the credit cards and had initially asked for the financing but it was not approved.

The purported evidence of Antonietta Daneluzzi’s direct involvement in the business of CUNS

[826]A signature appears above the type written name of Antonietta Daneluzzi, on the Release and Non- Disclosure document (ex.7) entered on the 12th day of July 2007 by the consumers. The Crown purports this to be the signature of Antonietta Daneluzzi. During testimony in-chief, Mr. Doroja testified that i) he was present when the persons signed the agreement, ii) that he witnessed Antonietta Daneluzzi signing the Release document ( direct evidence) , iii) that all parties signed the same day he and his wife signed- 12 July 2007. Mrs. Doroja testified to the contrary, that is, she didn’t recall anyone else being present except for her husband and Linda

Gilmore when the Release was signed. In addition, during her cross-examination by Mr. Wright, Mrs. Doroja i) confirms again her testimony in chief that she did not recall that anyone else other than Linda Gilmore was part of the 12 July 2007 meeting ii) did not recall Linda Gilmore leaving the room and returning with signatures on the document, iii) neither did she recall the Release document being pre–signed when it was presented, and iv) agreed with Mr. Wright that it is logical that other people may have signed the agreement before Ms. Gilmore brought it in for her and her husband to sign.

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[827]It is important to note the absence of the following evidence as Mr. Doroja was not asked i) to provide a description of what the person purported to be Antonietta Daneluzzi looked like, ii) how he identified this person to be Antonietta Daneluzzi, iii) whether or not the person purporting to be Antonietta Daneluzzi identified themselves by that name.

[828]Earlier in this decision the court ruled on how circumstantial evidence should be weighed (see paras 129 to 133). While direct evidence was heard from Mr. Doroja that he witnessed Antonietta Daneluzzi sign the Release and Non-Disclosure document, the court places very little weight upon it i) considering the contradictory evidence of Mrs. Doroja, and ii) the absence of evidence relating to identification of the person purported to be Antonietta Daneluzzi. In relation to consumers Doroja, considering circumstantial evidence and the standard of proof (see para. 131), the court finds that an inference of guilt drawn from circumstantial evidence is not the only reasonable inference that the evidence permits. The court refrains from engaging in speculation and has concerns that arise from the absence of the evidence as it relates to Mr. Doroja’s testimony. Considering the whole of the evidence, the court is left with a reasonable doubt that the signature that appears on the documents was authored by Antonietta Daneluzzi. What is left is the typed named of Antonietta Daneluzzi on the Release document with a signature that the court is unable to conclude belongs to Antonietta Daneluzzi. For these reasons, little weight can be placed upon this piece of evidence.

[829]The case of the Crown is at its highest in relation to the signature that appears above the typed name of Antonietta Daneluzzi regarding consumers Dorojoa, as direct evidence was considered. As the court finds that the Crown has not proven beyond a reasonable doubt that Antonietta Daneluzzi authored the signature, the court further finds that it is not proper for this court to embark upon a signature comparison as it relates to the signed Release documents and the consumers referred to in paragraph 139.

[830]It is also important to note that this is one piece of evidence that must be considered to amongst all the relevant evidence, to determine whether or not the Crown has satisfied the court that Antonietta Daneluzzi had direct involvement with the business of CUNS to the extent that it supports their burden to prove beyond a reasonable doubt that Antonietta Daneluzzi had knowledge of the true facts.

Count 24 information number 3– Improper Contract

[831]I concur with the Crown’s submissions in para. 259 that there appears to be an “all in one agreement". As per exhibit #3 the consumers entered into an agreement that included the Travel and Value service. It is clearly a time share agreement of s. 21 (a) of the CPA.

[832]Upon review of the RCI membership (ex. 4) it would also be categorized as a time share agreement as per s. 21(a) of the CPA. It is important to note that ex. 4 does not have an invoice number attached to it and at the top of the page written in blue ink in capitals is “RCI”. As stated above, the agreement is for RCI points only. Along the list of services, it indicates N/A,

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and shows total of $7467.55. To clarify – there are no services that are specified on this document. Under the “Acknowledgement section” it states in bold “V.I.P. TRAVEL SERVICES” referring to exhibit 3. It also reads “I also fully understand the consumer protection act of 2002 stating the 10 day cooling-off period for Lifetime Membership only” [sic]. The court interprets ex. 4 as referring to and fundamentally tied to ex. 3.

[833]The court finds that i) while it appears that there may be two agreements, exhibit 4 is cross-referenced back to exhibit.3, and, ii) as they meet the definition of time share agreements, they should contain the requirements as per s. 26 of the regulations. Focusing on ex. 3 , the court further finds that the agreement does not contain the required elements as per s. 26 of the regulations including, but not restricted to , the clause 6, 8, and 12 – a “fair and accurate description of the access to be provided to the customer with respect to discounts and benefits for future provision of transportation, accommodation other goods or services related to travel”. This is contrary to section 27 of the CPA and an offence as per s. 116 (2) of the CPA. As such the court finds CUNS guilty of the offence of improper contract and guilty of count 24 of information number 3.

Improper Contract – the liability of Wendy Thakur and Antonietta Daneluzzi

[834]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their written agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that- the agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence pursuant to s. 116 (2) of the Act. Therefore, the Court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of improper contract and guilty of count 24 of information number 3. As the court has arrived at this determination there is no need to analyze the evidence in relation to the signature purported to belong to Antonietta Daneluzzi as it relates to this count.

Count 25 - Unfair Practice – 10 day cooling-off period and failing to honour it

[835]The court find the following representations were made in the content of the agreement ( ex. 4) : “I also fully understand the consumer protection act of 2002 stating the 10 day cooling off period for Lifetime Membership only” [sic] while at the same time page 2 para. 6 reads

V.I.P. Value Service is a Binding Obligation and that No Refunds will be permitted by the

Company” [sic], and page 3 para. 3 reads “zero Cancellation” [sic].

[836]The court also finds that a verbal representation was made to Mrs. Doroja on the day the agreement was entered, that the 10 day cooling-off period was applicable to the RCI membership.

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[837]The court further finds that within 10 days of entering into the agreement i) Mr. Doroja repeatedly called CUNS and heard from Linda Gilmore a few days just before the 10-day cooling-off period elapsed and again requested to cancel the agreement and ii) Mrs. Doroja sent an email to Linda Gilmore of CUNS dated 30 June 2007 to cancel their agreement (ex. 11).

[838]The court finds that the representation was “A representation that the transaction involves or does not involve rights, remedies or obligations if the representation is false, misleading or deceptive “as per s.14 (2) ss. 13 of the CPA. This amounted to unfair practice as CUNS did not honour their representation that a 10 day cooling-off period was available as they did not cancel the agreement and provide a refund. This is contrary to s. 17 (1) of the CPA and an offence as per ss. 116 (1)(b)(ii) of the CPA. The court finds CUNS guilty of the offence of unfair practice and therefore guilty of count 25 of information number 3.

Count 25 -Unfair practice – 10 day cooling-off period – the liability of Wendy Thakur and Antonietta Daneluzzi

[839]The court finds that the Crown has proven beyond a reasonable doubt the count as against the named defendants as they have proven knowledge of the true facts. The court finds that as the sole officers and directors of a CUNS the named defendants i) knew or ought to have known the content of the written agreement contained representations, ii) that these representations indicated the consumers were entitled to certain remedies, such as a 10 day cooling-off period, while at the same time indicating that there were “no refunds” and “zero cancellation”. That the named defendants i) had a responsibility to ensure the legality of the

contracts however, ii) allowed the agreements with the content to be used by CUNS iii) for the purpose of assisting CUNS to commit the offence of unfair practice by allowing the content of the agreement to used and not correcting it. As the court has arrived at this determination, there is no need to analyze the evidence in relation to the signature purported to belong to Antonietta Daneluzzi as it relates to this count.The court finds Wendy Thakur and Antonietta Daneluzzi guilty of unfair practice and therefore guilty of count 25 of information number three.

Count 26 – Unfair Practice. Unfair Practice – a refund of $2588.00 would be forthcoming

[840]It is clear in the letter dated 12 July 2007 (ex. 7) from CUNS to the consumers that CUNS cancelled the RCI membership but made a representation that a “Reimbursement” of $ 2588 would be given to the consumers. The court finds that the word “reimbursement” amounted to a representation by CUNS that they would pay a partial “refund”. The consumers never received the $2588 as represented by CUNS and only received a cheque for $500 which there were difficulties in cashing as outlined above. The court finds that the representation was “A representation that the transaction involves or does not involve rights, remedies or obligations if the representation is false, misleading or deceptive “as per s.14 (2) ss. 13 of the CPA. The consumer did not receive the refund as represented, as such, CUNS did not honour the representation. This is contrary to s. 17(1) of the CPA and an offence as per s. 116(1)(b)(ii) of the CPA.

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[841]In cross- examination, Mr. Wright suggested the Release documents, that was part of exhibit 7, only mentioned “will refund in consideration $1 to the customer” and did not mention the $2588. The court finds that the contents of the cover letter that formed exhibit 7, that included the representation that a refund of $2588 was forthcoming is sufficient to warrant a conviction on this count. As such, the court finds CUNS guilty of unfair practice and guilty of count 26 of information number 3.

Count 26 – Unfair Practice – a refund of $2588.00 would be forthcoming -the liability of Wendy Thakur and Antonietta Daneluzzi

[842]The court finds that Crown has not proven, beyond a reasonable doubt, the count as against the named defendants as the Crown has not proven knowledge of the true facts. While the Crown has proven that the representation was made, they have not proven that the named defendants i) were aware CUNS had the intention to commit the offence , and ii) did or omitted to do something to assist CUNS in committing the offence. For reasons as discussed above in relation to the signature purported to belong to Antonietta Daneluzzi (see paras. 826 to 830), little weight can be placed upon the appearance of this signature and in relation to this count. That is, the existence of the signature, without proof of who authored it, considered with other evidence relating to this count, does not raise the Crown’s case to a level where the court is able to find that the signature is evidence of Antonietta Daneluzzi’s direct involvement with CUNS which is necessary to prove knowledge of the true facts require to establish party liability.

[843]Therefore, the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of the offence of unfair practice and not guilty of count 26 of information number 3.

Count 27 of Information number 3 – Fail to Refund

[844]The court’s findings have been noted above as it relates to consumers requests to cancel the agreement. The court also finds that i) a verbal request to cancel by Mr. Doroja was made the Monday after entering the agreement, ii) Mrs. Doroja requested a cancellation as per her email to Linda Gilmore dated 30 June 2007 (ex. 11), and iii) both consumers further requested a cancellation of their contract in their letter to CUNS dated 26 October 2007 (ex.9). The court further finds that CUNS confirmed in their letter to the consumers (ex.7) that CUNS cancelled the RCI membership. The court finds that as the agreement was deficient, the consumers had a right to cancel within one year of entering into the agreement as per s. 28 (2) of the CPA. The court further finds that upon the request to cancel sections 95 and 96 of the CPA were automatically engaged and worked to also cancel all related agreements. The court finds that any documents that were signed in relation to the consumers are considered “related agreements”. Also engaged was the obligation for CUNS to provide a full refund within 15 days of a request to cancel as per s. 79 (1) of the regulations. As a full refund was not received, this was contrary to s. 96(1) of the CPA and an offence as per s. 116 (1)(b)(viii) of the CPA. As such, the court finds CUNS guilty of the offence of fail to refund and guilty of count 27 of information number 3.

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Count 27 – Fail to Refund - the liability of Wendy Thakur and Antonietta Daneluzzi

[845]The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt as the Crown has not proven that the defendants aided or abetted CUNS in the offence of fail to refund. That is, the Crown did not prove that i) the named defendants assisted or encouraged CUNS to not provide a refund, and ii) that the named defendants did so for the purpose of aiding and abetting CUNS, having the intention to commit the offence and the knowledge that CUNS intended to commit the act (knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts).

[846]The court finds that the appearance of the unproven signature above the typed name of Antonietta Daneluzzi does not raise the Crown’s case to the level where they are able to prove beyond a reasonable doubt that Antonietta Daneluzzi direct involvement with the business of CUNS and therefore, had knowledge of the true facts. Therefore, the Courts finds Wendy Thakur and Antonietta Daneluzzi not guilty of the offence of fail to refund and therefore not guilty of count 27 of information number 3.

Information number 3 -Counts 28 to 30 – Suppiah Yogaratnam

[847]The evidence of Suppiah Yogaratnam is contained in the statement of agreed facts marked as exhibit 385 to these proceedings.

Count 28 information number 3 – Improper Contract

[848]The court finds that the agreement dated 23 June 2007 (ex. 385-Tab A) is a time share agreement, it falls within the definition pursuant to s. 20(1) (b) of the CPA. The court also finds that the agreement does not contain the required information in s. 26 of the regulations. This includes, but is not restricted to, the following: clause 6 (the date and place the agreement is entered) and clause 8 (the text of the cancellation language). This is contrary to s.27 of the CPA and an offence as per s. 116 (2) of the CPA. The court therefore finds CUNS guilty of the offence of improper contract and guilty of count 28 of information number 3.

Improper Contract – The liability of Wendy Thakur and Antonietta Daneluzzi

[849]The court finds that i) as the sole officers and directors of a CUNS the named defendants knew or ought to have known of the multitude of deficiencies contained in their written agreements and had a responsibility to ensure the legality of the agreements, ii) allowed the deficient agreements to be used by CUNS, iii) for the purpose of assisting CUNS in recruiting consumers to become paid members of CUNS, and iv) did so knowing the true facts that- the agreements by their very nature were deficient. The court finds that the defendants knew or ought to have known that the content of the agreements fell short of the requirements of s. 26 of the regulations and was non-compliant with s. 27 of the CPA constituting an offence

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