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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
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
______________________________________________________________________________
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
[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
[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
As such when arriving at a decision in relation to the
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
[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:
[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
[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
[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
[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
[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
[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
[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
[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
[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
[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
[63]While representations were made verbally and on the face of the time share agreement that the 10 day
[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
[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
[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
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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.
[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
“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
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
[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
[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
[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
[107]In my view, the
[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
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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
[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
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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)
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
[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
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),
[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.
[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
[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
[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
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
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.
[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
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
[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
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
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
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
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
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
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
ii.the amount of each additional
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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
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
(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
If the supplier does not make delivery within
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
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
(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
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
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
[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
[169]While Ms. Jia testified in chief that Mr. Kim took her to his office and pulled out agreement and papers. During
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
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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;
- 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;
[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
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
[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
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
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
On page 3 at the top it refers to the agreement being
[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
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
-On August 2, 2005 Ms. Thomas received a
-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
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:
- 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
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
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
[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
[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
[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
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
[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
[223]Ms. Huertas testified through
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
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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
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
[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 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.
[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
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
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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
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.
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
[245]In relation to consumers King and Martin, there is insufficient evidence surrounding the signing of the Release (ex.
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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.
[249]The second agreement is dated 6 September 2005 (ex
[250]Focusing on the first agreement, the court finds this agreement (ex.
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
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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.
[253]It is clear that the consumers paid the total membership with two separate payments, both credit card receipts dated 7 September 2005 (ex.
[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
[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
[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
[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
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
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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
[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
[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
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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
[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
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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
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
[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
Count 12 – Fail to Refund
[285]The consumers entered into their agreement on the 13 November 2005 (ex.
[286]Despite being past the 10 day
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.
[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
Return to CUNS to enter into the
[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
[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
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
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
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
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
[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
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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
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
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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
“…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
[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
[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
[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
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
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
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
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
[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
[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
[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
[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
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[359]During
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
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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
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
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
[381]The agreement dated 16 December 2005 was for
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
[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
[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
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
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
[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
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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
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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
[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
“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
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 (
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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,
Mrs. Duggal also testified that she recalled the name the same day she was testified in chief. Upon further
[410]Mr. Duggals’ testimony remained consistent in
[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
[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
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
[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
[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
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
[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
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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
[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.
[439]In relation to the agreement dated 16 September 2005 (ex.
Improper Contract
[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
[441]In relation to count 31 of information number 2 the new time share agreement dated 7 April 2006 (ex.
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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
[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
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.
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.
[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
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
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
[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
[465]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
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
[468]It would appear, as flushed out in
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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
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
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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
[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
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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
[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
[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
[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-
[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
“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
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
[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
[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
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
[491]In addition to the efforts made by the consumers to cancel their agreement within the 10 ay
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
[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
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-during her emails with Justin Spray in September and even December, she continued to contact the
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
Count 44 of information number 2- unfair practice – 10 day
[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
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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
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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.
[519]At its highest, what is before the court is a Release and
[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
[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
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
[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.
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.
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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
[528]The court further finds that Mr. Abad made an attempt to cancel his agreement within the 10- day
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
[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
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
– resort vacation,
[535]The
[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:
-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.
[541] Ms. Louis testified to the following in
-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
Count 65
[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
[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
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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
[sic]. Exhibit
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
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
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
[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
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
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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
[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
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 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.
[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
-He recalls a lady perhaps of Caribbean descent, assisting him filling out the request for financial services (ex.345)
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
Count 71 – unfair practice – 10 day
[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
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
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Unfair Practice
[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
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
[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.
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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.
[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.
[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
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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.
[578]Upon leaving CUNS that evening the consumers were led to a
[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
- 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
-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
-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
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
[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
Count 75 – Unfair Practice
[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
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
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
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Unfair Practice – 10 day
[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
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
[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.
[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
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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
[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
[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
[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
[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
[607]During
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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
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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
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
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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
Count 79 – Unfair practice – 10 day
[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
[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
[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
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
[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
[630]The court finds that i) the consumers requested a refund within the 10 day
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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
[633]Evidence related to the Shekhars was admitted as an agreed statement of facts marked as exhibit 381.
Information number 2 count
[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
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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
[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
Count 88 information number 2 – Unfair Practice – 10 day
[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
[637]The court further finds i) CUNS made the representation within their agreement that they would honour a 10 day
[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
[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
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.
[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
[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
[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
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understand the consumer protection act of 2002 stating the 10 day
[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
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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-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).
[658]Neither consumer, despite the requests, received any money back. Information number 2
[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
Count 91
[661]The court finds that CUNS represented that they would honour a 10 day
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
[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
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
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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
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
-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
-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
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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
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
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
[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,
[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
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
[692]Exhibits 247 to 252 appear to be segmented parts of the agreements (all dated 28 January
2007) with CUNS. Mr. Banwait agreed in
[693]Exhibit 247 is a
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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
[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:
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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.
[698]Mr. Banwait ultimately filed a Small Claims Court proceeding against CUNS.
[699]In
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
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During his
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
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
[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
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
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
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
Count 7 – Unfair Practice- 10 day cooling- off
[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
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
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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
Count 7 – Unfair practice – 10 day
[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
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
[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
[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
[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
-that he had agreed to receive 6 small cheques as opposed one cheque with the total sum of the refund.
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
[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
[734]During
[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
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
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.
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
Carbon Copy to Linda Gilmore and Wendy Thakur
[744]Exhibit
[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.
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Count 13 information number 3 – unfair practice – 10 day
[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.
[749]On page one of the agreement (ex.
“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
and expressing his desire to cancel (exhibit
[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.
[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
[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
[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.
[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
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
[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
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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:
-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
[768] In
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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
[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
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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
[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
[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
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
Count 21 information number 3 – unfair practice- 10 day
[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.
[785]The court also finds the following representations were made in the content of the agreements themselves: (ex.
[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
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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
[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
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
[789]Upon review of the Release and Non – Disclosure document (ex.
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
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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
[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.
Fail to Refund – count 23
[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
[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
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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
[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
[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
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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
[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:
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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
[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
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
Antonietta Daneluzzi and the Release and Non
[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
[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
[822]Mr. Doroja testified to the following in
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CUNS
-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
“reimbursement” and makes no reference to the attached Release and
[823]During
[824]During
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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.
-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
“believed full well that we could get our money back due to the Consumer Protection”.
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
Gilmore when the Release was signed. In addition, during her
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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
[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
[833]The court finds that i) while it appears that there may be two agreements, exhibit 4 is
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
Count 25 - Unfair Practice – 10 day
[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
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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
[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
Count 25
[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
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
[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
[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.
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
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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 28 of information number 3.
Count 29 of information number 3 – unfair practice – a refund of $2381.73 was forthcoming
[850]The court finds that the consumers requested a refund via a registered letter dated 28 June 2007 (exhibit
(1)of the CPA and an offence as per s. 116(1)(b)(ii). The court therefore finds CUNS guilty of the offence of unfair practice and therefore guilty of count 29 of information number 3.
Unfair practice
[851]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. The court therefore finds Wendy Thakur and Antonietta Daneluzzi not guilty of the offence of unfair practice and not guilty of count 29 of information number 3.
Count 30 of information number 3 – Fail to Refund.
[852]The court finds that the consumers sought to cancel their contract via i) a registered letter dated 28 June 2007 (exhibit
79 (1) of the regulations. Since 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 finds CUNS guilty of the offence of fail to refund and guilty of count 30 of information number 3.
Fail to Refund - The liability of Wendy Thakur and Antonietta Daneluzzi
[853]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
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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 30 of information number 3.
Information number 3 counts 31 to 33- Yue Chen
[854]The evidence of Yue Chen and her husband Dansong Wang was received via a statement of agreed facts filed as exhibit 384 to these proceedings.
Count 31 of information number 3 – Improper Contract
[855]Considering the substance over the form of the documents and applying s. 3 of the CPA the court interprets collectively exhibit 384 tabs A through E (all documents dated 7 July 2007), as a time share agreement. The court arrives at this decision as the consumers were provided with parts of the agreement (as outlined in ex. 384 para. 7 to 11 reproduced below) that appear as exhibits as separate sheets and not as sheets grouped into two separate agreements.
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[856]As the single page V.I.P. Travel Services (ex.
Improper Contract – the liability of Wendy Thakur and Antonietta Daneluzzi
[857]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
Daneluzzi guilty of the offence of improper contract and therefore guilty of count 31 of information number 3.
Count 32 of information 3 – Unfair Practice– 10 day
[858]The Court finds that the following representations are made on the agreements i) on page 1 of exhibit
[859]The court further finds that, within the 10 days of entering the agreement, the consumers requested to cancel the agreement i) in a letter dated 8 July 2007 where Mrs. Chen and Mr. Wang requested to cancel the RCI agreement (exhibit
Unfair practice - The liability of Wendy Thakur and Antonietta Daneluzzi
[860]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
Count 33 of information number 3 – Fail to Refund
[861]The court finds that the consumers requested to cancel their agreement i) by sending a letter dated 8 July 2007 with respect to the VIP Travel Services ( ex.
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Services ( ex.
[862]As the consumers did not receive any refund from CUNS this is contrary to s. 96(1) of the CPA therefore 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 therefore CUNS is guilty of count 33 of information number 3.
Fail to Refund - The liability of Wendy Thakur and Antonietta Daneluzzi
[863]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 33 of information number 3.
Information number 3
[864]The evidence of Alla Gagarinova is found in the statement of agreed facts filed as exhibit 386 of these proceedings.
Count 34 of information number 3 - Improper contract
[865]The court agrees with para. 274 of the Crown’s submissions and finds that it is necessary to apply s. 3 of the CPA as i) the V.I.P. Travel Service agreement for $3894.90 (ex.
[866]The court finds that the time share agreement was deficient as it did not include the information required by s. 26 of the regulations including, but not restricted to , clauses 6 and
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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 34 on information 3.
Improper Contract - The liability of Wendy Thakur and Antonietta Daneluzzi
[867]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
Count 36 of information number 3 – unfair practice – obtain discounts and benefits
[868]The Crown submits the following in relation to consumer Gagarinova, at para. 274:
274.The Crown seeks convictions against CUNS related to the Improper Time Share agreement, the Unfair Practice Count related to the false, misleading, or deceptive representation that the CUNS agreement could not be canceled, and the Fail to Refund. The Crown relies on the
[869]However, the unfair practice offence at count 36 of information number 3 particularizes the offence as follows:
36) AND FURTHER THAT:
CANADIAN UNIVERSAL NETWORK SOLUTIONS INC., WENDY THAKUR AND ANTONIETTA DANELUZZI, on or about the 12th day of August 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 Alla Gagarinova, 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,
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c.30, as amended, and thereby committed an offence contrary to section 116(1)(b)(ii) of the said Act;
[870]Upon first reading it doesn’t appear that the offence as particularized fits the submissions of the Crown. However, section 2 of the CPA, the definition of services, states “means anything other than goods, including any service, right, entitlement or benefit”. Count 36 as particularized refers to “…. or other goods or services”. As services includes a “right” then this would include the benefit of the right to cancel. The court therefore finds that the count as particularized encompasses a false, misleading, or deceptive representation that includes a
“right”.
[871]The court finds that CUNS made representations to the consumers i) in the body of the agreements that there were “no refunds”, the agreement was
“zero cancellation policy”, and ii) the consumer was verbally advised by Linda Gilmore of CUNS, a few days after signing the agreement, that the agreements were
misleading or deceptive. This amounted to unfair practice and thus 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 is guilty of unfair practice and guilty of count 36 of information number 3.
Unfair practice - obtain discounts and benefits
[872]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 agreement contained representations such as- “zero cancellation “and “no refunds”. This language represented that, despite the right to cancel in s. 28 (1) and (2), that the consumer entering the agreement was not entitled to the right to cancel. The court further finds 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 written agreement to used and not correcting it. As such, the court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of unfair practice and guilty of count 36 of information number 3.
Count 37 of information number 3 – Fail to Refund
[873]The court finds the consumer made the following requests to cancel i) verbally (ex. 386- Tab 1 para. 8) on 13 August 2007, when asking Linda Gilmore of CUNS if the agreement could
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be cancelled ii) via email dated 11 March 2008 (ex.
Fail to Refund - The liability of Wendy Thakur and Antonietta Daneluzzi
[874]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 count 37 of information number 3 – fail to refund.
Information number 3 – counts 38 to 40 – Rakesh Moddi
[875]Mr. Moddi testified in court on 23 June 2014.
[876]He received a cold call from CUNS inviting him to a presentation and stating that he would win a
[877]When he arrived, he entered a reception area and met a person who brought them into the presentation room. The children were asked to go into an area for children. The presentation lasted for about an hour. This was followed by a video presentation which outlined the “offerings” of CUNS- the prime offering being the RCI which was the vacation time share service. They advised that with the RCI membership the member would receive points purchase vacations for a week to the Caribbean, Canada, Hawaii, southern USA, and suggested it was cheaper.
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[878]After the presentation, Mr. Moddi described a
testified that he did not think it was Linda Gilmore who did the selling part of the deal with him. When shown exhibit 14 by Mr. Ludlow in chief, Mr. Moddi testified that he recognized the salesperson’s name, “Tabita”, on the contract. Mr. Moddi testified she was the person who did the deal, the one on one conversations, and the selling with him, although he could not put a face to her name. Once Mr. Moddi decided to go forward with the agreement the was introduced to Linda Gilmore who, according to Mr. Moddi, was the person that did all the paperwork.
[879]Mr. Moddi, and his (then) wife, Nehal Modi, entered two contracts that day. Both contracts are dated 19 August 2007 and have the same invoice number of 3409 and were signed by both consumers. Both also have the under the heading “name and position of authorized representative” Business Office Manager the name of “Frank”, as well, a signature underneath. Under the “salesperson’s name” appears the typed name of Tabita.
[880]The first contract (ex. 14) is for a V.I.P travel service with CUNS for 8 years and services include travel gallery, world resort club, cruise club including the hot list – resort vacations and the hot list cruise vacations. Under the additional terms and conditions it states the following: RCI 24,200 points Bi ennial, Annual fee $299.00 USD annual Fee $99.00 USD , 4 additional members at no charge, $299.00 USD waived for 2007, travel credit $500.00 Canadian [sic]. Valid for 24 months [sic]. Under the section entitled “Acknowledgement” reads, amongst other things, in bold ink “I hereby certify I have read and understand the provision of the Consumer
Protection Act which are set both on Page 3 paragraph 3 of this agreement”. Page 3 para 3 states, amongst other things, the following: “I also fully understand the consumer protection act of 2002 stating the 10 day
[881]The second contract (ex. 15) is a V.I.P Value Service and CUNS membership for 8 years with real estate services, financial services, auto benefits and premium buyers. Under the section entitled “Acknowledgement “reads, amongst other things, in bold ink “zero cancellation”. The top of page 2 reads “this membership is a Binding Contract, which is non- refundable and
[882]The document “Membership Orientation Survey” (ex. 16) is signed at the bottom of the it by the consumers. There is handwriting that states the following: “Linda has been very pleasant and satisfactorily put our mind at ease with the uncertainties or questions we had. Thanks! “.
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In chief, Mr. Moddi testified that Linda Gilmore wrote the text. However, in
[883]Mr. Moddi testified at the time he entered into the contract he already had a Direct Buy membership and only entered into the agreement primarily for the RCI (It is important to note that several times Mr. Moddi refers to “best buy” membership then at times corrects himself and says “RCI” membership). He really didn’t want to join the buyers club. The buyers membership was tagged onto the RCI membership. When asked by Mr. Ludlow (regarding ex. 150), about what his understanding of the real estate services were, Mr. Moddi responded that he was advised that they would get a real estate agent for a certain percentage less as part of the membership. He understood the auto benefits meant that he would get a car at dealership prices.
[884]When asked by Mr. Ludlow, about the total membership noted on exhibit 15 - $ 4896.50, Mr. Moddi testified that it was not as if he had differentiated between the two contracts as the way the whole thing was presented to him was together. It caught his attention when the CUNS representative explained that “the $4000 was actually towards the …. premium buyers membership and $2000 for the RCI. I always thought that was together”. Mr. Moddi testified that payment was made with two separate Visa credit card slips one for $2098.50 and the other for $4896.50. The data on the visa slips had faded and were not marked as exhibits to these proceedings. The total he paid to CUNS was $6995.00.
[885]Mr. Ludlow inquired as to whether, during his 19 August 2007 initial meeting at CUNS, there was any discussion of cancellation or if they could cancel. Mr. Moddi testified that it was understood that he would receive his membership package in 2 months so he obviously wouldn’t have cancelled in 10 days. He could not foresee within in that period that he was not going to receive the membership. He did however testify that there was something mentioned about a
CUNS did not handle the part of their deal in giving him the membership.
[886]Mr. Moddi testified that he felt happy when he left CUNS that day as he was planning on cancelling his Direct Buy membership and he could use CUNS and use his vacation points and the premium buyers membership and he thought that he was getting a good deal. His expectation was that he was going to receive the RCI membership within two months. CUNS had explained it was a
[887]A little over the
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time she indicated that the membership card was coming, then a couple of weeks passed and still nothing, so Mr. Moddi requested a refund via telephone towards the end of 2007 he didn’t recall the months perhaps October, November, or December. When he first requested a refund, he was advised to wait for the membership, then they agreed but said they could not refund the premium buyers club but could give a refund for the RCI membership portion which surprised Mr. Moddi. He testified that he thought that the memberships were together. Mr. Moddi decided that it would not make sense as he joined primarily for the RCI membership. This is what led Mr. Moddi to request a full refund for everything. He also sent a cancellation Letter from Mr. Moddi to Linda Gilmore and CUNS dated – 20 January 2007 - should read 2008 (ex 20) which was tendered as an exhibit during
[888]Mr. Moddi described the exchange as “haggling” back and forth, he was denied his request for a full refund and was advised that the buyers club membership was separate, and they would not refund that membership. Ultimately, he decided to “back down” and accepted the fact that he would receive approximately $2000, which was the portion of the RCI membership, as a refund. Mr. Moddi described his reaction as being angry and recalls yelling and threatening to go to the “consumers office”. This “haggling” process occurred over the course of two or three conversations. It was unclear form Mr. Moddi’s testimony how many occurred over the telephone or in person. Mr. Moddi was advised by Ms. Gilmore that it would take four months to receive the money. Mr. Moddi waited the four months and at some period during these four months Mr. Moddi testified that CUNS “shut down”. He called CUNS a few times and there was no answer which worried Mr. Moddi to the extent to which he went to the Orlando Drive office where he found it closed down.
[889]Mr. Moddi did win a free two- or
[890]In
Information number 3 – Count 38- Improper Contract
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[891]The court concurs with para. 278 of the Crown’s submissions and finds the consumer entered into one agreement. The court finds true and credible, Mr. Moddi’s testimony that the contract was presented in such as way at the time of signing that lead Mr. Moddi to believe it was all one contract. Despite paying with two separate VISA payments the contracts bear the same invoice number and the court finds that CUNS would only agree to a refund of the contract with the 10 day
Improper Contract – The liability of Wendy Thakur and Antonietta Daneluzzi
[892]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
Information number 3 - count 40 – Fail to Refund
[893]The court finds Mr. Moddi made the following attempts to cancel his agreement i) as per his testimony just after two months of signing the agreement, towards the end of 2007 (October, November or December) and, ii) and sent a letter dated 20 January 2007 (should read 2008
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Fail to Refund – The Liability of Wendy Thakur and Antonietta Daneluzzi
[894]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 court 40 of information number 3.
Information number 3 – counts 41 to 45 – Gabriel Ciocoiu and Liliana Ciocoiu
[895]Mr. and Mrs. Ciocoiu testified before the court on 28 September 2015.
[896]Mr. Ciocoiu received a telephone call from CUNS explaining they offered travel packages and other products and services. Ms. Ciocoiu testified that they called the next day and advised her that they had spoken to her husband and requested her email address as they wanted to send an invitation for a special event as they were selling services and that it would be a nice evening. She provided the email and received an invitation. The consumers decided to attend to see what it was all about, Mr. Ciocoiu was particularly interested in the time share.
[897]Mr. Ciocoiu attended the Orlando Drive address at about 8:30 p.m. with his wife and two children (2 and 6 years old) and were greeted with a reception. They were invited to have dinner and were met by Abo who spoke to them about the products. Abo then took them to a room and engaged in a presentation where he provided stats of how CUNS compared to other time share companies. He also advised them of tickets for travelling, real estate products, car purchases, electronics, and other products. Ms. Ciocoiu testified he explained their prices were
20 to 30 percent less than the market. She further testified that the presentation didn’t have any materials, that the rooms were all empty, people had left, and it looked unprofessional. The children at this point were taken to a daycare for someone else to take care of them.
[898]Abo quoted a price of $18,000 which they indicated they could not afford. In response, Abo tried for a better fee for them, he could see that they were interested. Mr. Ciocoiu testified in chief that now Abo appeared to contact Wendy who Mr. Ciocoiu described as a non- white lady, big, with an East Indies accent. Mrs. Ciocoiu corroborated in her testimony that Wendy entered at this juncture in the evening. When she arrived, Mr. Ciocoiu testified that she offered a better price and seemed to be better apt to deal with the matter than Abo. Mrs. Ciocoius testified she met Wendy three times and she was always trying to negotiate. Wendy decreased the price to $15,000 and then reduced even more. Mrs. Ciocoiu described Wendy as having red blondish black hair, said she was from India and always smiling, having the answers, professing her honesty, and projected herself as a mother figure. Mrs. Ciocoiu testified in chief that she did not meet Antonietta Daneluzzi that evening. When it was apparent that Mr. and
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Mrs. Ciocoiu were interested in discussing the purchase Mr. and Mrs. Ciocoiu were moved into another room along with Abo and Wendy. Ms. Ciocoiu testified that it was about 11:00 pm at this time.
[899]According to Mr. Ciocoiu’s testimony in this room was himself, his wife, Ismet.S. (the person that made the contract), Abo and Wendy who was negotiating. Mr. Ciocoiu further testified that that he believed that there were some other people there. Mr. Ciocoiu found the idea of a loan was appealing as it appeared that CUNS was serious, he inferred they would be more attentive to them as clients, and it would be a way to afford the membership as at this time he was still thinking whether or not he and his wife could afford the membership. Mrs. Ciocoiu was partly persuaded by Wendy and the promises of what they could have as new immigrants to Canada – furniture, a new car, travelling back home to Romania. Wendy then made the offer to pay with a credit card. When advised that they did not have the available credit on their card, it was suggested that the consumers call the credit card company to increase the limit. Mr. Ciocoiu testified he did not think that American Express would increase the limit from $2000 to almost $14,000.
[900]Wendy accompanied Mrs. Ciocoiu to another room to speak to American Express as she was the main card holder. Mr. Ciocoiu testified that at this point they had not even spoken about the contract and had not shown them anything. Mrs. Ciocoiu testified that the money was paid without them seeing or signing any paper. During this time Wendy had the American Express card while Mrs. Ciocoiu was speaking to the representative on the phone. The witness reminded the court that in 2007 no pin was required to use a credit card, just a swipe. Wendy used the card on the consumers behalf. When Mrs. Ciocoiu returned, she advised her husband that she had been approved for the credit increase and had already paid for the money. This surprised Mr. Ciocoiu. At this time the details of the contract were discussed. Mrs. Ciocoiu processed two transactions that evening on her American Express, the first for $8610.00 and the second for $3187.00 (invoices ex. 324). She would process additional transactions and pay more to CUNS the next day via her debit card as the contract had not been paid in full.
[901]Mr. and Mrs. Ciocoiu entered into two agreements with CUNS. Both contracts are dated 22 August 2007 and bear the same invoice number of 341. On both agreements the name of
“Morat Ismet. S” appears as the “Name and position of authorized representative” with and also indicates that the salesperson’s name as “Abo”. At the top of page 2 on both agreements it reads “this membership is a Binding Contract, which is
[902]The first contract (ex. 322) is for VIP value service with a membership of 15 years, yearly fee of $99 and included real estate services, financial services, auto benefits, and premium buyers. Under the section, “Additional terms and conditions” it states the follows, “4 Additional members included in package (No Extra Cost)”. It has a total of $9627.10. The acknowledgement section of page one reads, amongst other things, that the consumer agrees to comply with CUNS “zero cancelation”, and para. 6 of page 2 reads “no refunds”. On page 3 para. 3 reads “zero Cancellation policy will be enforced” [sic].
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[903]The second contract is (exhibit 323) is for VIP travel service for 15 years with a yearly membership fee of $99.00 and includes services for the travel gallery, world resort club, cruise club, hot list – resort vacations and hot
“Additional terms and conditions” is the following: “4 additional members included in package (No Extra Cost), Member has agreed to $1500 credit towards Travel as reduction from the
Membership price”. Under the section entitled Acknowledgement it reads, amongst other things, the following in bold ink : “ I hereby certify that I have read and understand the provision of the Consumer Protection Act which are set both on Page 3 paragraph 3 of this agreement”. When turning to page 3 paragraph three it reads, amongst other things, the following: “I also fully understand the consumer protection act of 2002 stating the 10 day
[904]When asked by Mr. Ludlow about how much he paid for the real estate services or the auto benefit services regarding ex. 322, Mr. Ciocoiu responded that he did not know. He indicated that before placing his initials on various parts of the contract that he really wasn’t given a chance to read through the document. He had been there for 5 or 6 hours, it was close to midnight, the children wanted to go, and he had to be up at 6:00 am for work. At that point he just wanted to get out of there. It wasn’t until he took the document home that he started to read and understand that many things, such as the
Return to CUNS 23 August 2007
[905]On 23 August 2007, after having discussed the fact that they were only interested in the travel portion, Mr. Ciocoiu testified that he and his wife returned and requested to cancel the agreement related to the VIP value service (ex. 322). They partly arrived at this decision to cancel as they thought that they were going to get a loan from CUNS to pay the amount of money. Mr. Ciocoiu testified that his intention was never to get the money from a credit card company. He further testified that when signing the agreements, he was not under the impression that there were separate parts to the agreement, and this was only pointed out on 23 August 2007 when they retuned to speak to them. Mr. Ciocoiu testified that he told Wendy that he wanted to cancel the real estate and auto club and other portion of things in the agreement ( ex. 322) and he was told that they could not do anything as that was the contract that the consumers had signed. He was advised there were no refunds. This left him with the impression that whatever he did they would not get their money back because they signed the contract. Instead of cancelling the agreement CUNS offered them the opportunity to add other members of their choice.
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[906]Mrs. Ciocoiu testified that the agreement was signed on the 23 August 2007 as it was suggested it would allow it to “come together” as an entire contract, the agreements that is, later she testified that this occurred on the 29 August meeting which was corroborated by the testimony of Mr. Ciocoiu during
Second return to CUNS - 29 August 2007.
[907]On 29 August 2007 – within 10 days of the
[908]That same day the consumers signed an addendum to their agreement dated 29 August
2007 (ex. 334) signed by Frank Altomare – Business office and addressed to and signed by the consumers. It indicates that CUNS will provide the consumers with an additional 5 years to their current membership and a $1500.00 travel credit which will be valid for 12 months.
[909]Mrs. Ciocoiu testified that they had inquired about tickets to Romania as her brother was to be married and wanted the both there. Wendy made notes in her handwriting about the travel itinerary to Bucharest and flight costs to stay a week (ex. 326). The quotes were about 3- percent lower than Mrs. Ciocoiu could find elsewhere. Mrs. Ciocoiu ultimately travelled alone to her brother’s wedding and the ticket was approximately $1500. They tried repeatedly calling in January 2008 to attempt to use their CUNS membership to purchase the ticket. They left messages for Betty and Linda, and they were not answered or were busy. Mr. and Mrs. Ciocoiu decided that at least one of them should attend the wedding. Someone by the name of Wingo ultimately responded in April or May and assisted in getting a ticket for $1419 plus $1.00 G.S.T. per person. When Mrs. Ciocoiu asked for the receipt, she noticed the company that was selling the ticket appeared to be “Huntington Travel” and not CUNS as evidence from the travel itinerary dated 21 May 2008 (ex. 335). Mrs. Ciocoiu testified despite the price, she decided to pay the amount to travel as at least she could use her travel credit with CUNS. The CUNS
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address on the itinerary appears as “1510 Drew Road Unit 6, Mississauga Ontario L5S 1W7”. The consumers received a letter dated 12 September 2008 from Premium Buyers Club, not from CUNS (ex. 341), where reference is made to a conversation with the consumers and a reimbursement cheque for the flight to Romania being enclosed in the amount of $1420.00 ( ex 337). The reference line reads as follows: Travel Credit Redemption on Membership Contract Signed August 22nd, 2007” in bold text. The name “Linda Gilmore” appears as customer service manager and there is a signature above her typed name. Later the consumers would receive a letter dated 30 May 2008 announcing “NEWS BULLETIN”- (ex. 336) Premium Buyers Club was now servicing CUNS memberships with a new address of 1510 Drew Road unit 6, Mississauga, Ontario L5S 1W7.
[910]The consumers wrote a letter to cancel dated 27 Nov 2008 (ex. 338) that they sent via registered mail addressed to the Premium Buyers Club at the Drew Road address that was on the Premium Buyers Club announcement. It was not sent to the original CUNS address of Orlando Drive as the news bulletin letter (ex. 336) indicated premium Buyers Club at a new address would be servicing CUNS clients. They did not have a receipt for the registered mail. It is important to note that after Mrs. Ciocoiu testified, and after Mr. Wright raised a concern, that Mr. Ludlow made it clear that he was not attempting to prove that the Premium Buyers Club was a rebranding of CUNS.
[911]Ms. Ciocoiu testified that her overall experience at CUNS was that she felt surrounded and intimidated and didn’t have a chance to talk or consult with her husband. She testified that she felt ashamed that that they were trapped by the company. After paying for the membership on her card, urged by Wendy, she testified, “And I was like following my mom, not knowing what I’m doing. I was like a, like a child. It’s, It’s sad and funny at the same time, that I was behaving this way”.
Notice of Cancellation
[912]During
“Sincerely Premium Buyer’s Club Inc”.
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[913] In
-when shown ex 322 she agreed that Ms. Thakur never signed the agreement although Ms. Thakur was there
DID NOT place Wendy Thakur’s name on the form.
[914] When
-she is sure that she signed the agreements at different times. Mrs. Ciocoiu testified she signed the first contract (ex. 322) on 22 August 2007, as she recalls paying the larger amount “huge amount” of money on the first evening and did not signed the travel contract until the next day.
[915]In
[916]In
-he believes he learned Wendy’s last name from the internet when he tried to find out more about the company after August 23rd, 2007.
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-the woman introduced herself to him and his wife with, “Hi, I’m Wendy”. He came to discover her last name after 23 August 2007 when the company would not cancel, he undertook an internet search and discovered the name “Wendy Thakur, representative”.
[917] In
Purported direct involvement of Wendy Thakur and Antonietta) Daneluzzi – Mr. and Mrs. Ciocoiu’s testimony
[918]The court has already found (see. para 144), that a lay person is permitted to give an “opinion as to the identity of another person”. It is important to note that this evidence is yet another piece of evidence to weigh in arriving at a determination of whether the Crown has proven their case in relation to each count, beyond a reasonable doubt. It is not a conclusive determination as to guilt or innocence. The court will assess and weight the evidence of the consumers as it relates to the named defendants purported direct involvement with the business of CUNS and the issue of party liability.
[919]Mr. Ciocoiu testified that in chief that i) when Abo the salesperson was aware the couple was interested he believes that he contacted Wendy as came over at that point ii) described Wendy as a
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other people also in the room as well, viii) Wendy suggested they pay by credit card ix) Wendy suggested his wife and her go to another room to speak to the credit card company as his wife was the card holder, x) at this point the details of the agreement had not been discussed, xi) his wife and Wendy returned to the room, xii) on 23 August 2007 with he and his wife he returned to CUNS and told Wendy they wanted to cancel to cancel the VIP agreement ( ex. 322), xii)
Wendy advised them that she could not do anything about it, xiii) he was left with the impression no matter what he did he would not receive a refund, xiv) he and his wife returned to CUNS on 29 August 2007, xv )they met with Wendy, Linda Gilmore and “Antonietta Daneluzzi” [sic] as he spelled it during his viva voce evidence and , xvi) he described Antonietta Daneluzzi as blonde short hair, about 60 years old, and Italian, shorter and a medium “conformation.”
[920]It is important to note that when first mentioning that he had met Antonietta Daneluzzi, Mr. Ciocoiu testified to the following: “Yes. We went back to them again. Wendy and now was Antonietta Daneluzzi, if I remember that word, Antonietta Daneluzzi, whatever… the name is. Sorry about that”.
[921]During
[922]Mrs. Ciocoiu testimony corroborated that of her husband’s testimony, namely, i) Wendy entered during their meeting with Abo, ii) Wendy was non – white, perhaps Indian, although her husband described her as from the “East Indies” iii) Wendy introduced herself “ Hi, I am Wendy” iv) that she left with Wendy to process the credit card payment in another room , v) she did not meet Antonietta Daneluzzi the evening they first attended CUNS, vi) Wendy was always trying to negotiate, vii) at the time that Wendy processed the credit card payment they had yet to discuss the agreement, viii) that they returned to CUNS to cancel and met with Wendy and Linda although Ms. Ciocoiu testified this was the 23 August 2007 while her husband testified on this date they only met with Wendy, and iv) met Wendy again at CUNS on 29 August 2007.
[923]Mrs. Ciocoiu’s testimony differed from her husband’s testimony in that : i) she described
Wendy’s hair colour as red, blondish, black, however described Linda Gilmore as blonde, in 50s or 60s, tall, a white Canadian Lady with no accent, and ii) When asked in chief if Wendy had an accent responded “not really” although her husband testified that she had an “East Indies” accent.
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[924]Mrs. Ciocoiu also added i) she met Wendy three times ii) when she returned to CUNS on 23 August 2007 she met Linda Betty , Wendy and
Interaction with Wendy Thakur
[925]The court has considered the direct evidence of the witnesses, in particular, the aspects of each consumer’s testimony that was corroborated by the other, and the court and while considering the evidence i) the number of times that each witnessed testified having met Wendy, ii) the active role Wendy apparently played in negotiating, iii) the in depth involvement of the person in not only finalizing the agreement, but involvement throughout the process, and iv) Mrs. Ciocoiu’s testimony she witnessed Wendy making handwritten notes regarding the travel itinerary.
[926]The court finds the evidence as to the consumers interaction with Wendy Thakur as persuasive and as such will be given the appropriate weight as it relates to proof of Wendy Thakur having direct involvement in the business of CUNS as it relates to this count. While the description of what Wendy looked like provided by the consumers somewhat differed, the court finds the corroborated evidence outweighs this discrepancy.
Interaction with Antonietta Daneluzzi
[927]The only corroborating evidence in relation to Antonietta Daneluzzi is i) both witnesses testified to meeting her at CUNS, ii) it was not on the 22 August 2007, Mr. Ciocoiu testifying he first met her on 29 August 2007. Mr. Ciocoiu did not seem confident in his testimony in relation to Antonietta Daneluzzi. His responses in chief and during
Information number 3 count 41 – Improper Contract
[928]The court agrees with para. 285 of the Crown’s submissions and upon application of section 3 of the CPA, the court finds that there was one contract entered that being a time share agreement. The court makes this finding as i) both contracts as admitted have the same invoice number 3417, ii) the agreement that is subject to the 10 day
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to cancel and receive a refund (as will be discussed below) CUNS made representations and offers in an attempt to keep a significant portion of the membership money $9627.10 (agreement VIP value service ex. 322).
[929]The court finds the time share agreement deficient as it does not contain the information required by s. 26 of the regulations including, but not restricted to, clause 8, the absence of the cancellation language required, and clause 14, itemized lists and prices 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 41 of information number 3. Considering these findings and interpretation of the agreements as a time share agreement, the count relating to a future performance agreement, count 42, is dismissed as against all defendants.
Improper Contract – the liability of Wendy Thakur and Antonietta Daneluzzi
[930]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
Count 43 of information number 3 – Unfair Practice - 10 day
[931]Reading the agreements together, the court finds that on the face on page one of the agreements (ex 323) reads, under the section entitled “Acknowledgement” it reads, amongst other things, the following in bold ink : “ I hereby certify that I have read and understand the provision of the Consumer Protection Act which are set both on Page 3 paragraph 3 of this agreement”. When turning to page 3 paragraph three it reads, amongst other things, the following: “I also fully understand the consumer protection act of 2002 stating the
Binding Contract, which is
[932]The court finds that the consumers made the following requests to cancel their agreement within the 10 day
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2007, and ii) on 29 August 2007 verbally by attending CUNS once they had time to read the agreement and research their rights. The court finds the representation to honour the
Unfair Practice – 10 day
[933]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
Count 44 – Unfair Practice – representation the transaction did not have the right to cancel
[934]It is important to note the distinction between count 43 and count 44. While they appear similar in nature as they relate to cancellation right, the two can be distinguished as follows: i) Count 43 deals with representation that the consumers were to be provided with a 10 day
[935]The court finds that in the body of both agreements it states that the agreements are
[936]Mr. Ciocoiu testified his interactions with CUNS in attempting to cancel the agreement, left him with the impression that whatever he did they would not get their money back because
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they signed the contract. Instead of cancelling the agreement CUNS offered them the opportunity to add other members of their choice to the terms of agreement.
[937]The consumers did have a right to cancel i) within 10 days of entering the agree8ent , and ii) as the agreement was deficient, within 1 year of entering said agreement as per ss. 29 (1) and (2) of the CPA. The representation that the consumers did not have a right to cancel is unfair practice as per s.14 (2) ss. 13, as the representation was false, misleading, or deceptive. This was 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 44 of information number 3.
Count 44 – Unfair Practice – representation the transaction did not have the right to cancel- The liability of Wendy Thakur and Antonietta Daneluzzi
[938]As noted above the CUNS made the representation in the body of the agreement that the agreement was subject to a “zero cancellation policy”. 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 the representation that there was a “zero cancellation policy”. The court further finds that the named defendants i) had a responsibility to ensure the legality of the contracts however, ii) allowed the written agreements with the representation 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 44 of information number 3. As the court has reached this decision it is not necessary to consider the verbal representation, according to the viva voce testimony of Mr. Ciocoiu, purported to have been made to Mr. Ciocoiu on the 23rd August 2007 by Wendy Thakur advising him the agreement could not be cancelled.
Count 45 – Unfair Practice - obtain discounts or benefits
[939]The court finds that the consumers made attempts to use the membership in accordance to what was represented to them. Mr. Ciocoiu testified in chief that they attempted to use the membership to go Quebec and they were offered a higher price than what they ultimately booked independent of the CUNS membership. The court also finds that the consumers attempted to book a flight to Romania as summarized in Mrs. Ciocoiu’s testimony that CUNS reimbursed her for her ticket to Romania but didn’t provide an actual “discount” to travel to Romania.
[940]The representation was made that the consumers would receive “access to discounts or benefits for the future provision of transportation , accommodation or other goods or services related to travel” which the definition of a times share agreement in s. 20 (1) (b). The court finds that CUNS represented that the consumers could access discounts for travel was false
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misleading or deceptive as per s.14 (2) ss. 1 , “a representation that the goods or services have sponsorship, approval , performance characteristics, accessories, uses, ingredients, benefits or qualities they do not have”. This is contrary to s. 17(1) of the CPA and an offence contrary to section 116(1)(b)(ii) of the CPA. The court therefore finds CUNS guilty of unfair practice and thus guilty of count 45 of information number 3.
Count 45 – Unfair
[941]The court has considered the direct evidence heard as it relates to the named defendants in determining whether i) they had direct involvement with CUNS, ii) to the extent that they had knowledge of the true facts.
The liability of Antonietta Daneluzzi
[942]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 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 Antonietta Daneluzzi did or omitted to do something to assist CUNS in committing the offence. Considering the direct evidence heard regarding Antonietta Daneluzzi, little weight can be placed on this evidence for reasons discussed above (see para 892). As such the court finds Antonietta Daneluzzi not guilty of unfair practice and not guilty of count 45 of information number 3.
The liability of Wendy Thakur
[943]The court does not, however, arrive at the same determination as it relates to the evidence heard regarding Wendy Thakur. The court heard testimony of i) the level of involvement of Wendy Thakur in negotiating, ii) that she was present at CUNS the three times the consumers attended and iii) the level of control or authority she had over the salespersons and others.
[944]In addition to this court’s finding of facts in relation to count 45 (see para 903), the court further finds that, before the efforts were made to purchase tickets to Romania, the consumers returned to CUNS on 29 August 2007 and the travel of $1500 credit was added to the agreement (ex 323). The court finds that it was at this time that Mrs. Ciocoiu witnessed Wendy make notes as to how much the flight regarding Romania would cost (although it was via Bucharest) (ex. 326).
[945]The court finds as per Mrs. Ciocoiu’s testimony that i) Wendy represented that the Romania flight could be offered at a very affordable price ii) Wendy offered the $1500 towards travel on 29 August 2007, and iii) Wendy made notes in her handwriting about the travel itinerary to Bucharest and flight costs to stay a week on 29 August 2007 (ex. 326). The court
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finds that considering the persuasiveness of the evidence in relation to the consumers interaction with Wendy Thakur that i) great weight can be placed upon the evidence particularly relating the notes being made by Wendy Thakur. Considering this evidence in totality of all the evidence heard in relation to this count, the court finds that the Crown has proven Wendy Thakur’s direct involvement in the business of CUNS in relation to this count. Considering her significant direct involvement with these consumers, the court is satisfied that the Crown has proven that Wendy Thakur had knowledge of the true facts to prove party liability.
[946]Therefore the court finds that the Crown has proven beyond a reasonable doubt that Wendy Thakur was aware that CUNS, having made the representation to offer discounts and benefits did not honour it. She had the opportunity having this knowledge to do something to ensure that the misrepresentation did not continue. However, she omitted to act and therefore assisted CUNS to commit the offence of unfair practice by allowing the misrepresentation to continue unremedied in accordance with the provisions of the CPA. As such, the court finds Wendy Thakur guilty of unfair practice and guilty of count 45 of information number 3.
Information number 3 – counts 46 to 49 – Gloria Paraan
[947]Ms. Paraan testified before the court on 30 September 2015.
[948]Ms. Paraan testified that she began receiving 4 to 5 calls from CUNS between June to August 2007 inviting her and her husband to attend for a presentation with a promise to win a prize of $5000, a plasma T.V. or a free vacation trip. The vacation option was of interest to them as they were both retired and liked travelling.
[949]Ms. Paraan, and her husband Rosendo, attended CUNS Orlando Drive location on 1
September 2007. They entered and were welcomed by the receptionist where they completed a form as guests which asked questions such as their annual income, their employment, about their lifestyle, and whether they were fond of vacations.
[950]The consumers were then led to a dining room where they were provided lunch. There were 10 to 12 other people there who seemed to be prospects, not CUNS representatives. Ms. Paraan and her husband had a meal then they were moved to another room and seated at a table when a person named Chris joined them. Chris was tall, Caucasian, in his 20s, friendly, cordial and spoke professionally. Chris provided a presentation where he explained about the services including vacations and other “big ticket items”. Ms. Paraan testified that her and her husband were thinking of purchasing a car. Chris advised them they could receive a car at the manufacturer’s price with a deep discount and that vacations, no matter the destination, would be $299. In
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[951]At one point in time they told Chris they were going to leave CUNS- this is when he found another person to speak to them. Ms. Paraan could not recall if it was a man or a woman but described it as a “pressure sale”. The price started to decrease, and they were introduced to two ladies. At this point in her testimony Ms. Paraan had spontaneously referred to her summons (ex. 361) to refresh her memory and testified that the ladies’ names were Wendy Thakur and Antonietta Daneluzzi. She described both women as being white, in their 40’s or 30’s one was European and the other was heavier, one was taller than the other. She testified that she couldn’t even remember their faces as it was so long ago. When Ms. Paraan testified when she decided to sign the agreement and become a member there were “only two ladies there” and Mr. Altomare, who came in later and was introduced as the business manager.
[952]When Mr. and Ms. Paraan made the decision to become members of CUNS, she testified that everyone was happy and welcoming. She further testified that when they signed the agreement Wendy Thakur and Antonietta Daneluzzi were in the same room. Ms. Paraan testified that the two women introduced themselves as Wendy and Antonietta on 1 September 2007, but she was not familiar with their last names. That was the only time she ever met them.
[953]Ms. Paraan entered into two agreements dated 1 September 2007. Both agreements have the same invoice number of 3426, shared the following characteristics: both have the named authorized representative as Business Office Manager Frank Altomare with a signature that appears beside, and the salesperson name as Chris. Both also have at the top of their respective page 2 the following text “…this membership is a Binding Contract which is non - refundable and non
[954]The second agreement (ex. 355) is for the V.I.P. Value Service for 15 years with a yearly fee of $99.00 with the following services: real estate services, financial services, auto benefits, premium buyers. Under the Billing details it reads as follows: Financing term 60 months, interest rate 18.00%, monthly payment n/a, loan start 15 September 2007 and loan end 15 August 2012. Under the “Acknowledgment” section it reads “no cancellation”, on Page 2 para. 6 reads “No Refunds” [sic] and on page 3 para. 3 it reads “zero Cancellation policy” [sic]. The
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total is $7000.00. This amount was paid with an American Express Card with a receipt dated 1 September 2007 marked as exhibit 356.
[955]Ms. Paraan testified regarding the agreement (exhibit 353) and its reference to the 10 day
[956]With respect to the second agreement (ex 355) Ms. Paraan was not sure what portion of the $7000 was apportioned to what service. She testified that she was not informed and neither did she ask about the details. CUNS did explain that there were two payments, one for $3000 the other for $5000 as there were two different services on one agreement and different services on the other. Ms. Paraan testified that she wishes that she had read the fine print of the agreements before signing.
[957]After signing the agreement, the consumers were invited back to CUNS on 4 September
2007 to collect the membership card. At this meeting was Linda Gilmore and Frank Altomare. Ms. Paraan testified that at this meeting she was advised that the services that she was promised were limited in many ways. Ms. Paraan testified that she could not recall if Linda Gilmore was someone that she met on the 1 September 2007 meeting at CUNS.
[958]On behalf of herself and her husband, Ms. Paraan sent a cancellation request via email dated 8 September 2007 addressed to both Linda Gilmore and Frank Altomare (email ex. 357). In the email a request for a cancellation of the agreement and a refund was made. A duplicate was also mailed via registered mail, the Canada Post receipt for which is dated 8 September 2007 (both letter and registered mail receipt marked as ex.358). This request was made within 10 days of the agreement being signed. Additional letters were also sent reaffirming their request to cancel and demanding a refund. A follow up cancellation letter dated 13 September 2007 with Canada Post receipt dated 14 September 2007 (both marked as ex. 359) and another cancellation letter dated 17 September 2007 with the Canada Post receipt (both marked as exhibit 360).
[959]The consumers were invited back to CUNS on September 19th, 2007 but they did not attend and instead sent a letter dated 17 September 2007 letter (ex. 360) requesting a refund and reaffirming their earlier position. Other than this invitation they were never received a response to their requests to cancel neither did they receive any money back from CUNS. Ms. Paraan testified that they were charged a total of $10,000 through Visa. Despite suspending the transactions, ultimately, the payment went through.
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[960]Ms. Paraan testified that the there was a raffle/draw from a drum, but she did not remember taking part in the raffle or getting anything. She never used any of CUNS services as she had decided to cancel the agreement.
[961]During
-That she received her summons on the 22 September 2015
-That before she received the summons, she could remember the first two names of Wendy and Antonietta and remembered the names fresh in her mind and have been fresh in her mind for the last 7 to 8 years. She denied referring to the summons assisted her in recalling the first names.
-When directed to the questionnaire she filled out for Investigator Charles, dated 30 August 2008 ( signed by her and her husband) she agreed that when she answered the part of the questionnaire that asked “who she spoke to and how did they identify themselves” at CUNS, she did not mention Wendy or Antonietta as people she spoke to or to people who identified themselves to her.
-In the same questionnaire where she referenced an additional page as she didn’t have enough space to answer the question, the question was “did you request a refund” and “who did you make this request to and what response did you get”? she wrote “Ms.
Gilmore, Linda, Consumer Service Manager” and then she added “Mr. Frank Altomare Business Office Manager”. Neither did she reference Wendy Thakur and Antonietta Daneluzzi the additional comments section.
-in the entire questionnaire the names Wendy and Antonietta are not mentioned at all.
-that the name Wendy and Antonietta are not mentioned in any of the documents that Ms. Paraan had in her possession
-she did not see either Wendy or Antonietta signed anything – any of the documents
-she does not have any business cards from either Wendy or Antonietta
-besides the one experience of sitting down for about an hour to look over the contract with them, she did not see THEM (meaning Wendy and Antonietta) after that.
she could not remember if she ever mentioned the names of Wendy and Antonietta to investigator Charles at all.
[962] During
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-she agreed that any letters that were sent she mentions the name of Gilmore or Altamore as those were the people based upon her dealings with the company, seemed to be in charge of at least the contract with the company.
-When Mr. Wright suggested that the ladies that Ms. Paraan called Wendy and Antonietta were not the ones to provide the fine details of the contract, or sign he contract, that she just met them somewhere along the line and she thinks they gave her a first name and that is all the involvement they had, Ms. Paraan responded that “ Yeah, just they ask us fill in the forms”.
-that the 10 day
Evidence regarding Wendy Thakur and Antonietta Daneluzzi
[963]Ms. Paraan while testifying in chief at first could only recall the first name of Wendy and then after recalled the full names of Wendy Thakur and Antonietta Daneluzzi when she made reference to the summons (that was open in her hand during her testimony) that she had been served to attend court. The summons (ex. 361) clearly indicated the name of CUNS as well as Wendy Thakur and Antonietta Daneluzzi. It is important to note that Mr. Ludlow did not request that she refresh her memory with that specific document but was apt enough to advise the court when he observed her doing so.
[964]It would also appear that Ms. Paraan never mentioned either woman’s name in any dealings with Investigator Charles and certainly no in the statement she provided to Investigation Charles dated 30 August 2008. The statement was taken almost a year after the agreement was signed, which was certainly closer to the events in question. Although, in her statement to Investigator Charles, Ms. Paraan mentioned other names of people that were present at CUNS that evening, she never mentioned Wendy Thakur and Antonietta Daneluzzi by name in the statement. It is important to note that Ms. Paraan stood by her testimony in chief, during
[965]At its highest, testimony from Ms. Paraan as it involved the named defendants, would amount to them reviewing the agreement and attempting to get the consumers to sign the
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agreement. There was no evidence heard that either of the named defends made any specific verbal representations, nor did the names of the named defendants appear on any documentation or correspondence sent by CUNS. The court acknowledges that Ms. Paraan may have been tainted by the summons as to her recollection regarding the last names, the court emphasizes that despite having an opportunity to mention the names in correspondence and in her statement to investigator Charles Ms. Paraan did not. The court finds that some weight can be placed on some aspects of Ms. Paraan’s testimony however, the various pieces will ultimately have to be weighed to determine whether or not the Crown has been able to prove their case in relation to each count, beyond a reasonable doubt.
Count 46 of information number 3 - Improper contract.
[966]I concur with para. 290 of the Crown’s submissions and apply s. 3 of the CPA to interpret the substance of the agreements over the form. While both agreements have the same invoice number, the first agreement (ex. 353) fee of $3000 is far less in total than the second agreement which was $7000 (ex. 355). The first agreement is the agreement that CUNS represents to be subject to the 10 day
[967]A time share agreement is required to contain the required information as per s. 26 of the regulations. This agreement is deficient as it lacks, but not restricted to, the following information: clause 6, 8 and 14 of s. 26 of the regulations. As such it does not comply with section 27 of the CPA which is an offence as per s. 116 (2) of the CPA. The court finds CUNS guilty of the offence improper contract and therefore guilty of count 46 of information number 3.
Improper Contract – The liability of Wendy Thakur and Antonietta Daneluzzi
[968]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
Count 48 information number 3 – Unfair Practice – 10 day
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[969]The court finds that within the body of the agreement the following representations were made: i) in exhibit 353 " I hereby certify that I have read and understand the provision of the
Consumer Protection Act which are set both on Page 3 paragraph 3 of this agreement”. When
[970]The court finds that the consumer made the following requests to cancel during the 10 day
[971]The court further finds that despite the consumers request to cancel withing the 10- day
Unfair Practice – 10 day
[972]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
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 48 of information number
3.As the court has made this finding it is not necessary to address the evidence that has been heard with respect to the direct involvement of the named defendants.
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Information number 3 - Count 49 – Fail to Refund
[973]The court finds that the following requests to cancel the agreement were made outside of the 10 day
Fail to refund – The liability of Wendy Thakur and Antonietta Daneluzzi
[974]Despite evidence heard that the named defendants were present at CUNS at the time the agreement was entered into the court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt. 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).
[975]To have knowledge of the true facts the Crown must prove that the named defendants had knowledge of CUNS intention to commit the offence of fail to refund. Even if the court accepted all the evidence heard from Ms. Paraan regarding the named defendants, and placed great weight upon it, it would not assist the Crown in proving their case beyond a reasonable doubt. The evidence of the named defendants’ direct involvement surrounded the time the agreement was entered into and there was no evidence of their involvement afterwards when requests to cancel were made thus triggering the refund obligations of CUNS. 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 49 of information number 3.
Information number 3 – counts 50 to 54 – Harinarine
[976]Mr.
[977]He testified having received a call from CUNS suggesting he had received a prize, a chance to win a large screen TV, and that he should attend to collect it. They also advised that there would be a presentation before you could obtain the prize.
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[978]Mr.
[979]Abou showed them around and explained about the company and the membership package. They went through leaflets and flyers and talked about furniture and appliances. Mr.
[980]Abou then gave him a sheet of paper to sign indicating they were interested in the package. At this point Mr.
[981]Mr. and Mrs.
Option to upgrade after 15 years”. Under the section entitled, “Acknowledgement” , it states, amongst other things” in bold text “ I here by certify that I have read and understand the provision of the Consumer Protection Act which are set both on Page 3 paragraph 3 of this
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agreement”. Similarly, page 3 paragraph 3 it states, amongst other things, “I also fully understand the consumer protection act of 2002 stating the 10 day
[982]Mr.
[983] The membership of $3186.57 and $7435.33, 2 separate transactions were paid to CUNS on 1 September 2007 with the same VISA card (both marked as ex.160). it appears they were paid approximately 47 seconds apart although the photocopied receipts are not clear. Mr.
[984]Mr.
[985]Mr.
[986]In
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mistake with the actual dates he went to Tassco and Appliance Canada and it could have been after the orientation.
[987]Due to this concern Mr.
[988]When asked by Mr. Ludlow “that time that you spoke to Wendy on the phone, when might that have been”? Mr.
[989]During
[990]Exhibits 165 and 166 were the membership orientation survey and membership card receipt respectfully. Both were signed by the consumers and dated 6 September 2007. Mr.
[991]In the days that followed the signing of the agreement, CUNS sent the consumers a
“Welcome Aboard” letter dated 4 September 2007 (Exhibit 164) signed by Linda Gilmore proved contact names to utilize the various service. Mr.
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the actual letter. However, in
[992]Linda Gilmore of CUNS sent a letter to Mr. and Mrs.
2007 (ex. 168). They confirm that they have
[993]During
-he agreed that in the 2 questionnaires he filled in for Investigator Charles dated 17 June 2008 and 19 September 2007 that the name Wendy Thakur never appears in any of the statements or questionnaires or complaint form.
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-Mr.
-he disagreed that the first time he ever heard of the name of Wendy Thakur is when he received the subpoena. He agreed the obtained the last name from the subpoena but the name Wendy he insisted he remembered.
[994]It is important to note that it is during his
[995]When
[996]During
Evidence Regarding Wendy Thakur Direct involvement with CUNS
[997]While Mr.
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“shot” during
[998]Mr. Ramdial Maharaj testified i) that Wendy did the presentation at CUNS, then during
[999]The court finds that considering the above, little weight can be placed on the testimony of Mr.
Information number 3 - Count 50 – Improper Contract
[1000] The court agrees with para. 296 of the Crown’s submissions and upon application of s. 3 of the CPA, the court finds that the consumers entered into one agreement, a time share agreement. Both agreements have the same membership number, and the agreement (ex. 159) that is subject to the 10 day
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consider the objectives of the CPA in protecting consumers and not permits suppliers to benefit from nefarious actions. Having found the agreements are a time share agreement, the court dismisses count 51 in relation to the future performance agreement as against all three defendants.
[1001] The court finds that the time share agreement entered into does not contain the information required by s. 26 of the regulations including, but not restricted to: clause 6, 8 and 14 which 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 therefore guilty count 50 of information number 3.
Improper Contract – The liability of Wendy Thakur and Antonietta Daneluzzi
[1002] 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
Count 52 information number 3 – Unfair Practice- 10 day cooling- off
[1003] The court finds that CUNS made the following representations within the agreements i) at the top of page two of the respective agreements “…this membership as a Binding Contract, which is
[1004] The court finds within the 10 day
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8 September 2007 from Joseph printing where Mr. Ramdial- Maharaj worked at the time. The court is therefore satisfied, beyond a reasonable doubt, that the request to cancel was sent on the 8 September 2007.
[1005] The court finds that this representation was a “representation that the transaction involves or does not involve rights, remedies, or obligations if the presentation is false, misleading or deceptive” as per s 14 (2) ss. 13. The representation was false misleading or deceptive as CUNS did not honour the 10 day
Count 52 – Unfair Practice- - 10 day
[1006] 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
3.As the court has made this finding it is not necessary to address the evidence that has been heard with respect to the direct involvement of the Wendy Thakur.
Count 53 of information number 3 – Unfair practice – a refund $3186.57 was forthcoming
[1007] The court finds i) in the letter sent to the consumers from Linda Gilmore of CUNS dated 3 October (ex. 168) a representation was made that “A reimbursement cheque in the amount of $3186.57 ($2706.80 +processing +GST) will be issued and mailed to you once the accounting and legal department has processed this modification”, ii) the consumers did not receive a cheque and did not receive a refund.
[1008] The court finds that the representation was made that the refund in the above amount would be provided , and that this representation was a “representation that the transaction involves or does not involve rights, remedies, or obligations if the presentation is false, misleading or deceptive” as per s 14 (2) ss. 13. The representation was false misleading or deceptive as CUNS did not honour the representation made and the refund of $3186.57 was not forthcoming as no refund was forwarded as represented. 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
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court therefore finds CUNS guilty of unfair practice and guilty of count 53 of information number 3.
Count 53 – Unfair Practice – a refund was forthcoming- The liability of Wendy Thakur and Antonietta Daneluzzi.
[1009] 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.
[1010] In relation to Wendy Thakur, the Crown’s case if taken at its highest would suggest that Mr.
Count 54 of information number 3- Fail to Refund
[1011] As the court has found above that the consumers requested a refund (see para. 991 to 993), the court further finds that once this request was made that sections 95 and 96 of the CPA were triggered and the consumers were entitled to a refund withing 15 days of said request as per section 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 section 116 (1)(b)(viii). The court therefore finds CUNS guilty of the offence of fail to refund and therefore guilty of count 54 of information number 3.
Fail to Refund – the liability of Wendy Thakur and Antonietta Daneluzzi
[1012] 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).
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[1013] The court finds that little weight can be placed on the testimony of Mr.
Information number 3 counts 55 to 58 – Angela Ramcharitar
[1014] The evidence of Angela Ramcharitar was received by this court as an agreed statement of facts and filed as exhibit 387 to these proceedings.
Evidence of Antonietta Daneluzzi purported direct involvement with the business of CUNS
[1015] While the name Antonietta Daneluzzi appears on the Release and Non
Information number 3 Count 55 – Improper Contract
[1016] The court finds that the agreement entered into 4 September 2007 (exhibit
Improper Contract – the liability of Wendy Thakur and Antonietta Daneluzzi
[1017] 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
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to become paid members of CUNS, and iv) did so knowing the true facts
Count 56 information number 3 – unfair practice-
[1018] The court finds that a representation was made to the consumers that they were to be provided with a 10 day
[1019] The court further finds that Ms. Ramcharitar sent a request to cancel her agreement within the 10 day
[1020] The court finds that this representation was unfair practice as per. S. 14 (2) clause 13 of the CPA 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 was is false, misleading, or deceptive as CUNS did not honour it by not allowing the cancellation of the agreement and providing a full refund. Instead CUNS thwarted the consumer’s attempt to receive a refund and promised a partial refund in the CUNS letter dated 12 September 2007. Ms. Ramcharitar received only $1 back. This is unfair practice and 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 unfair practice and guilty of count 56 of information number 3.
Unfair practice – 10 day
[1021] 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
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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 doing anything to correct it.
[1022] On this basis the court finds Wendy Thakur and Antonietta Daneluzzi guilty of the offence of unfair practice and guilty of count 56 of information number 3. As the court has concluded the guilt of both named defendants independent of the circumstantial evidence, it is not necessary to enter into an analysis of the name of Antonietta Daneluzzi appearing on the Release and Non
Count 57 information number 3 – unfair practice – a refund of $847.00 forthcoming
[1023] The court finds that CUNS made a representation to the consumer in a letter dated 12 September 2007 (ex.
[1024] The court finds this was a 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 court finds the representation was false, misleading, or deceptive as CUNS did not honour the representation by providing the refund of $847.00. This is 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 CUNS is guilty of the offence of unfair practice and guilty of count 57 of information number 3.
Unfair practice – a refund forthcoming- The liability of Wendy Thakur and Antonietta Daneluzzi
[1025] 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.
[1026] The evidence of the typed name of Antonietta Daneluzzi appearing on the Release is given little weight for reasons discussed above (see para. 1015) and considering the totality of the evidence the Crown falls short of proving that Antonietta Daneluzzi i) had direct involvement in the business of CUNS ii) and therefore knowledge of the true facts. As such, the Crown has not proven their case beyond a reasonable doubt the court finds Wendy Thakur and Antonietta Daneluzzi not guilty of the offence of unfair practice and therefore not guilty of count 57 of information number 3.
Count 58 information number 3 – Fail to Refund
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[1027] The court has already found that i) the consumer sought to cancel the agreement via faxed letter dated 7 September 2007 (sent on 10 September 2007) (ex.
Fail to Refund - the liability of Wendy Thakur and Antonietta Daneluzzi
[1028] 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).
[1029] The evidence of the name of Antonietta Daneluzzi appearing on the Release is given little weight as it lacks or is not supported by other pieces of circumstantial evidence that would raise it to the level that would assist the Crown in proving i) that Antonietta Daneluzzi had direct involvement with the business of CUNS ii) and therefore 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 58 on information number 3.
Information number 3 - counts 59 to 62 – Rizelle Cruz and Arnold Cruz
[1030] Mr. and Mrs. Cruz testified before the court on 2 October 2015.
[1031] Mr. Cruz testified that he first had contact with CUNS when someone he did not know called and advised that he had won a prize. He could choose between an LCD TV, or a free vacation with the precondition of watching a presentation.
[1032] Mr. Cruz attended on the 10 October 2007 at the CUNS location near airport road in Mississauga with his wife. They were provided dinner then attended another room to watch a presentation. Ms. Cruz testified that Abou met with them in the cafeteria and he brought them to the presentation room. The presentation was about cars, mortgages, travel vacations and plane tickets. The plane tickets were of interest to Mr. Cruz to travel back to the Philippines.
It was a video presentation then a slide show where they spoke of discounts that were of $100 of per plane ticket. After the presentation they were taken to another room.
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[1033] He testified that the room was an open room and had small tables with people from CUNS who were going over the numbers of how much of a discount they would receive. The representatives were explaining that mortgage rates were less than a regular rate outside of the membership, $50 to $100 discounts on plane tickets, and receiving the equivalent of an employee discount on a car as they deal with the manufacturers not the dealers. They first quoted $16,000 which Mr. Cruz found to be too expensive. Mr. Cruz testified that he wanted to go home and read the documents but the CUNS representative advised that they had to sign at that moment. They finally decided to sign as he was late for work and wanted them to let him go. He made attempts to leave but the CUNS representatives kept showing them numbers and decreasing the figures. Mr. Cruz testified that he did meet Frank Altomare, but he could not recall what he spoke to him about.
[1034] The consumers entered into two agreements on 10 October 2007. Both agreements are marked invoice # 3458, indicated the authorized representative as Frank Altomare as business manager and “Abou” as the salesperson’s name. In both agreements the following text appears at the top of page 2 “this membership is a Binding Contract which is
[1035] As Mr. Ludlow guided Mr. Cruz, during
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[1036] The membership was paid in two transactions with two separate debit cards, receipts both dated 10 October 2007 (ex. 372). The first transaction was for $5000 at 21:23 hrs and the second for $4000.00 at 21:34hrs. Mr. Cruz testified that the amounts were paid after the documents were signed. He had to return to pay the balance of $1594.00 in cash the next day and received a handwritten receipt (also marked ex. 372).
[1037] Mr. Cruz testified that by the time he left CUNS that evening it was about 11:00pm or 11:30 pm and he arrived at work late. Before leaving CUNS he inquired about the prize and was advised that it was a draw and he had to spin a wheel which led him to suspect that something was not right. Mrs. Cruz recalled that financing was discussed but they agreed to pay via debit as the financing documentation would have taken longer.
[1038] The next day Mrs. Cruz testified that she attempted to check if CUNS savings were what they were purported to be and determined that they were not. Therefore, she decided to cancel.
[1039] Although he could not remember the point where he decided to cancel, Mr. Cruz testified he did recall having a meeting at CUNS on 18th October 2007. He testified he met with Linda Gilmore and Felicia specifically told Linda Gilmore that he wanted to cancel the agreement. He attempted to give her and Felicia a letter requesting a cancellation, they didn’t want to accept it.
[1040] Mrs. Cruz testified that she called before the letter was written and asked to cancel. Mrs. Cruz sent CUNS a letter requesting to cancel via Canada Post registered mail (ex. 374) dated 19 October 2007. The letter is a clear request to cancel the VIP TRAVEL SERVICE. It also references a meeting with Linda Gilmore and Felicia the evening before and exercising their right to a 10 day
[1041] The consumers sent another letter dated 27 August 2008 (ex. 375) addressed to CUNS. The letter references the earlier letter sent and advising they reported the matter to the Ministry of Consumer Services for failing to give them a refund. It further requested a refund for the VIP Value Service as well. Mrs. Cruz testified that she believed that she sent it to the CUNS office. The consumers never received any services and never received any money back.
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The Evidence in relation to Wendy Thakur and Antonietta Daneluzzi having direct involvement with CUNS
[1042] When Mrs. Cruz was asked whether she knew somebody named Wendy Thakur she responded that: i) she recognized the name from Canadian Universal, and ii) Wendy Thakur was in the office the night the agreement was entered. During
“I don’t – it was- I don’t really remember”. She added that in describing what Wendy Thakur looked like she stated “ I remember meeting someone that I described that I believe was her”, iii) confirmed that in the statement she gave Investigator Charles dated 11 February 2009, that the name of Wendy Thakur is not contained in the statement at all, iv) confirmed that she saw the name of Wendy Thakur on the yellow summons to attend court and ii) when asked by Mr. Wright when she first heard the name – responded she first heard the name Wendy Thakur in the CUNS office.
[1043] In relation to the same question regarding Antonietta Daneluzzi she testified i) that she recognized the name but did not recall if she ever met her, and ii) agreed that she recognized the name of Daneluzzi from the summons that she was served with and that is the only place where she saw the name.
[1044] Not much could be gleaned from Mr. Cruz’s testimony by way of recollection and as such, the court was unable to corroborate Mrs. Cruz testimony as it relates to the named defendants. It is clear however that she is unsure as to whether she met a person named Wendy but recognized the name from the summons. Mrs. Cruz also admitted recognizing the name of Antonietta Daneluzzi from the summons but didn’t recall meeting her. The court finds that little weight can be placed upon this evidence and even considering the evidence at its highest does not, by itself, prove that the named defendants had direct involvement in the business of CUNS. Mrs. Cruz was unsure of the evidence she provided, and Mr. Cruz admitted during
Count 59 information number 3 – Improper Contract
[1045] I concur with para. 305 of the Crown’s submissions, and pursuant to application of s. 3 of the CPA, find that the consumers entered into one agreement which was a time share agreement. In relation to the agreements i) both have the same invoice number, the agreement ( ex. 373), which benefited from the 10 day
[1046] The court finds that the agreement was deficient as it did not contain the required information as per s. 26 of the regulations including, but not restricted to, clause 6, 8 and 14
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which 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 therefore guilty of count 59 of information number 3.
Improper Contract – The liability of Wendy Thakur and Antonietta Daneluzzi
[1047] 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
Count 61 – Unfair Practice – 10 day
[1048] The court finds that following representations were made: on the face of the agreement (ex. 373) in the section entitled “Acknowledgement” it reads, amongst other things, the following: “ I hereby certify that I have read and understand the provision of the Consumer Protection Act which are set both on Page 3 paragraph 3 of this agreement”. When page 3 paragraph three is
[1049] The court further finds the consumers requested to cancel their agreement within the 10 day
[1050] The court finds that a representation was made on the face of the agreement (ex. 373) that a 10 day
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and an offence under s. 116 (1)(b)(ii) of the CPA. The court finds CUNS guilty of the offence of unfair practice and therefore guilty of count 61 of information number 3.
Unfair Practice – 10 day
[1051] 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
Count 62 information number 3 – Fail to Refund
[1052] The court finds that in addition to the requests to cancel that were made within the 10 day
Fail to Refund – The Liability of Wendy Thakur and Antonietta Daneluzzi
[1053] 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 has considered the evidence of the purported direct involvement of Wendy Thakur and Antonietta Daneluzzi and for reasons discussed above little weight can be
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placed upon the testimony. The evidence in its totality as it relates to this count has not propelled the Crown’s case to the level where they have proven 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 62 of information number 3.
Information number 3 counts 63 to 64 – Mike Mayers
[1054] The evidence of Mike Mayers can be found in statement of agreed facts filed as exhibit 388 to these proceedings. It is important to note that an agreement was not entered into evidence for this consumer and therefore the court was unable to consider the contents and text of the agreement in weighing the evidence.
Evidence of the direct involvement of Antonietta Daneluzzi in the business of CUNS
[1055] 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 consumer Mayers 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. The court finds in relation to Mr. Mayers, that little weight can be placed upon the evidence of a signature appearing above the typed name of Antonietta Daneluzzi on the Release and
[1056] While there was admitted evidence of the consumer’s interactions and signed letter of CUNS representative Linda Gilmore, the court finds that there was little evidence as to the circumstances surrounding the signing of the Release, that is, i) whether the named defendant Antonietta Daneluzzi, was at CUNS at the at the time the Release was signed, ii) whether Antonietta Daneluzzi was in the office at the time the Release was signed and iii) whether the consumer met or spoke to the named defendant Antonietta Daneluzzi, on or around the time the Release and
[1057] As the signature and name on the Release is one piece of evidence, the court must consider the all the evidence to determine whether the Crown has proven their case beyond a reasonable doubt.
Count 63 information number 3 – unfair practice – – a refund of $3500.00 forthcoming
[1058] The court finds that, in a letter dated 22 December 2007 to the consumer, CUNS made the representation that they would cancel the VIP travel service contract dated 28 November
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2007 and provide Mr. Mayer with a refund of $ 3500 (ex.
Unfair practice – promise to refund – the liability of Wendy Thakur and Antonietta Daneluzzi
[1059] After considering the circumstantial above evidence of the name of Antonietta Daneluzzi and the signature that appear above that typed name, and in light of the minimal weight placed upon such evidence for the reasons discussed above, the court finds that even after considering the 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’s case in proving her direct involvement with the business of CUNS to support that Antonietta Daneluzzi had knowledge of the true facts. 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 the offence of unfair practice and therefore not guilty of count 63 of information number 3.
Count 64 information number 3 – Fail to Refund
[1060] The court finds that Mr. Mayer’s requested a refund i) in a handwritten lettered dated 29 November 2007 and delivered by hand to Linda Gilmore of CUNS ( exhibit 388 Tab B), and
ii)sent a letter requesting cancellation and request for refund dated 17 December 2007 (ex. 388- Tab D). Despite these requests Mr. Mayers never received a refund of his $3500. The court finds that upon his request to cancel sections 95 and 96 of the CPA were triggered and Mr. Mayers was entitled to a refund within 15 days as per s. 79(1) of the regulations. As no such refund was provided this was contrary to s. 96 (1) of the CPA and an offence as per 116 (1)(b)(viii). As such the court finds that CUNS committed the offence of fail to refund and is guilty of count 64 of information number 3.
Fail to Refund - The liability of Wendy Thakur and Antonietta Daneluzzi
[1061] After considering the circumstantial above evidence of the name of Antonietta Daneluzzi and the signature that appear above that typed name, and in light of the minimal weight placed upon such evidence for the reasons discussed above, 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
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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 64 of information number 3.
Information number 3 Counts 65 and 66 – Mark Meyer
[1062] Mr. Meyer testified 12 March 2015 and 15 June 2015.
[1063] Mr. Meyer received a call sometime in November2007 inviting him to CUNS as they were selling vacation packages and mortgages. This was of interest to Mr. Meyer as he already a member of a vacation club/time share. Mr. and Mrs. Meyer testified the caller invited them to attend a presentation, there were going to be gifts after the presentation. He could not recall what type of gift although he did receive a flyer addressed to himself and his wife, to attend the CUNS open house celebration for 1 December 2007 12:00 pm (ex. 229).
[1064] Mr. and Mrs. Meyer attended CUNS near the airport, late morning on 1 December
2007. They entered they were greeted by a person who had them sit in a waiting room for about 10 to 15 minutes. They were then taken to a presentation room with chairs where there were approximately 10 to 20 people. During the
[1065] After the presentation the consumers were assigned a sales representative named Tyler who explained the vacation and services of CUNS. Mr. Meyer testified that he and his wife were not interested as they already owned a times share. Tyler called over his manager who spoke to them about getting a better rate on their mortgage rates. The manager asked them what their current rate was and advised them he could do much better but provided no details. This was of interest to Mr. Meyer and the manager provided him a card for “Vince Fuda”. Mr. Meyer then started to consider the vacation package as he was advised that he would not be able to take advantage of the mortgage rate service If he didn’t sign up for the vacation package. When he advised the manager, he was interested in purchasing he was moved to another room to sign the contracts.
[1066] In this other room was Mr. Meyer, and his wife, and two other women. He was advised that if he paid the membership in full, he would waive the $922 fee. Mr. Meyer understood that with his membership he was getting the vacation package, all the discounts on car rentals, hotels, and better mortgage rate.
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[1067] Mr. Meyer never met with Vince Fuda but called him on the telephone just before Christmas to receive a mortgage rate quote. Mr. Fuda returned his call a few days later and Mr. Fuda either provided him with the same or a higher interest rate that Mr. Meyer was currently paying. Mr. Fuda indicated he could not provide any better rate. The only other time he had contact with Mr. Fuda is when Mr. Meyer attended CUNS around the summertime of 2008 to inquire about the travel time and the location had closed. He called Mr. Fuda which led him to call another number associated with CUNS but the person who answered the telephone would not provide him with directions to the location.
[1068] Mr. Meyer and his wife Sheila Meyer entered 2 contracts dated 1 December 2007 (ex. 217 and ex. 218). They later entered into an amended agreement it would appear, on 18 January 2008, when the consumers attended CUNS to cancel their agreement. Both original agreements were then “voided”, and the consumer entered into the new amended agreements.
[1069] All 4 agreements (ex. 215, 216 ,217 and 218) indicated an invoice number of 3501 and on page two at the top reads “this membership is a Binding Contract which is
[1070] The voided offers were marked as exhibits 217 (V.I.P. travel services) and 218 (V.I.P. Value services) both dated 1 December 2007. It seems these original agreements were for 15 years however the modified agreements are 17 years, an extra two years were added. As for exhibit 217, under the “Acknowledgement” section it reads, amongst other things, in bold the following: “I hereby certify that I have read and understand the provision of the Consumer Protection Act which are set both on Page 3 paragraph 3 of this agreement”. When
[1071] It would also appear that the amended V.I.P Value service agreement (ex 218) was amended and the new agreement (ex 216), amongst other things, added an additional member for 15 years. under the “Acknowledgment” section it reads “zero cancellation” On page 2 para. 6 it reads “No Refunds, and on page 3 para. 3 it reads “zero Cancellation policy” [sic].
[1072] In relation to exhibit 217, on all three pages, there appears a slash through the document. Along the slash appears the date “18 January 2008”. Mr. Meyer had agreed with Mr. Ludlow in chief that the initials on the void slash on exhibits 217 and 218 appeared to be “L.G.” and that Linda Gilmore voided the contract. However, in
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[1073] Three payment card slips (dated 1 December 2007) were admitted into evidence (collectively marked as ex. 219). The first was a debit card transaction for $1115.00 at 15:57 hours, the second for $5978.00 a Mastercard credit card slip at 15:54:41 and third, for $2900 Mastercard at 15:55:37. The various methods of payment were made as, according to Mr. Meyer, he and his wife did not have enough money to pay the total with the debit card. Mr. Meyer testified that they offered him a discount of about $9000 if he made the entire payment “right away”.
[1074] The first amended contract (3 pages ex. 215) is for a membership of 17 years with a yearly fee of $99.00 for V.I.P. Travel Services including the travel gallery, world resort club, cruise club, hot list – resort vacations and hot list cruise vacations. Under the heading Additional Terms and Conditions has the following text: Modified from original contract. One additional member at no cost for a term of 15 years. Under the acknowledgement section it reads, amongst other things, in bold the following: “I hereby certify that I have read and understand the provision of the Consumer Protection Act which are set both on Page 3 paragraph 3 of this agreement”. When
[1075] The second amended contract (4 pages ex. 216) is for a CUNS membership of 17 years with a yearly membership fee of $99.00 for V.I.P. Value Services of real estate services, financial services. Under the heading of Additional Terms and Conditions has text that reads as follows: “Modified from original contract. One additional member at no cost for a term of 15 years. $300.00 Cnd. Credit one time only towards an appraisal of current residence”. Under the “Acknowledgement” section it reads, amongst other things: “zero cancellation policy”. On page 2 para. 6 it reads “No Refunds”, and on page 3 para. 3 it reads “zero Cancellation policy” [sic]. The contract total is $6996.10. Mr. Meyer testified in chief that he attempted to cancel his contract and contacted CUNS numerous times. They would not allow him to discuss the matter, directing him to speak only with Linda Gilmore. It was just before Christmas and he was advised that Ms. Gilmore, at the time, was on a holiday.
[1076] He ultimately met with Linda and sought to cancel but was advised that under no circumstances would they cancel the contract, but they could give him an additional vacation at no cost. Mr. Meyer also testified that Linda had referred him to the finance department who advised him of the same. From his testimony (although the court is not sure if it was Linda Gilmore or people at the finance department), it was clear that he was denied cancellation and instead convinced to enter another contract. This was specified in a letter to the consumers from Linda Gilmore of CUNS (ex. 226) dated 15 January 2008. This letter signed by the consumers, and with a signature that appears above Linda Gilmore’s name, outlines the amendments to the contracts and refers to a Release and nondisclosure agreement. The 2- page Release and Non
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have the authority to bind the Corporation”. During his
[1077] It was suggested to Mr. Meyer that he could then attempt to sell the time share to someone else to try to get his money back. Mr. Meyer testified that at the time these discussions were occurring he was not aware of his rights under the law and so, he and his wife accepted the amended agreement, or
[1078] Mr. Meyer testified that he never was able to take advantage of any of the services that CUNS offered as part of his membership. He did receive a $25 Walmart gift card as a welcome gift and was able to use it successfully.
[1079] During
[1080] During
-When asked about exhibit 215, he agreed he did not make any calls or effort to cancel the contract within 10 days
-He agrees that he was never pressured into purchasing the membership with CUNS
-Agreed than other than attempting to make arrangements for financing with CUNS he didn’t attempt to make use of the other services
-He didn’t use the $300 appraisal credit as he was advised by Vince, he could not get a better mortgage rate therefore there was no need for an appraisal
-While the date on ex. 226 stated 15 January 2008 Mr., Meyer was under the impression he had only attended on 18 January 2008 but was not sure if it was exactly 18 January 2008. He only returned to CUNS once after the original date and that was in January.
Mr. Meyer never received a refund.
Evidence of the purported direct involvement of Antonietta Daneluzzi
[1081] 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 paras 828) the court cannot engage in a signature comparison.
[1082] Mr. Meyer (in chief) testified he never met Antonietta Daneluzzi and the court finds that there was no evidence heard in relation to Antonietta Daneluzzi and the appearance of a
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signature above her name on the Release documents or any interaction with Mr. Meyer. As such, the court cannot place a great amount of weight upon the evidence of the signature. At its highest, what is before the court is a Release and Non
[1083] The court must be cautious when dealing with circumstantial evidence and little weight is placed upon this evidence. It will however be considered, amongst all the evidence heard, in relation to the individual counts to determine if the Crown has proven their case in relation to consumers Mr. and Mrs. Meyer and the counts before the court. As the signature and name on the Release is one piece of evidence, the court must consider the remaining evidence to determine whether the Crown has proven their case in relation to party liability.
Information number 3 count 65 – Improper Contract
[1084] The court finds that that the agreement that Mr. Meyer entered on the 1 December 2007 (ex. 217) is a time share agreement and did not contain the information required by s. 26 of the regulations including, but not restricted to, clauses 6, 8 and 14. This is contrary to s. 27 of the CPA and therefore an offence contrary to s. 116 (2) of the CPA. The Court therefore finds CUNS guilty of the offence of improper contract and therefore guilty of count 65 of information number 3.
Improper Contract – the liability of Wendy Thakur and Antonietta Daneluzzi
[1085] 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
Count 66 information number 3 - Fail to Refund
[1086] The court finds as true Mr. Meyer’s viva voce evidence that he requested to cancel his agreement verbally on numerous occasions. The court further finds that between 15 January
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2008 and 18 January 2008, Mr. Meyer when attempted to cancel his agreement and instead he was persuaded to i) to enter into two new agreements (ex. 215 and 216) and ii) to sign the Release and nondisclosure. It is important to note that during
Fail to Refund – The Liability of Wendy Thakur and Antonietta Daneluzzi
[1087] After considering the circumstantial above evidence of the typed name of Antonietta Daneluzzi and the signature that appeared above it, the court finds that little weight may be placed upon such evidence for the reasons discussed above. The court finds that the Crown has not proven the case against the named defendants beyond a reasonable doubt. Evidence was not heard that would suggest Antonietta had knowledge of the true facts in relation to this count. After considering all the evidence in relation to this count, the court finds that 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 66 of information number 3.
Information number 3 counts 67 to 69 – Robert Shaw
[1088] Mr. Shaw testified before the court on 11 September 2015.
[1089] Mr. Shaw received a call from CUNS inviting him to the location for an information session where there would be free food and a gift.
[1090] Mr. Shaw attended CUNS location at Orlando Drive on 8 December 2007 that, from outside the location looked like a generic commercial office building but inside contained a CUNS decor such as pictures of destinations. The inside space had several different rooms. He recalled meeting Betty Dominguez and a salesman who was black. Later in chief he would recall Frank Altomare’s name form the agreement and recalled Angelo as a black male. Mr. Shaw admitted that his recollection of the details of his attendance at CUNS was not terribly clear, but he did recall the presentation was made and the topics covered travel,
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accommodations, resorts, and exciting vacations. Mr. Shaw was excited about the subject of a vacation as had not taken a vacation in almost 7 years. He was going through a
[1091] After the presentation Mr. Shaw testified, is when the “hard core sales stuff” started. The emphasis was that the price they quoted that evening would not be available after he left CUNS. Work had been very busy that year and he had travelled a lot for work. It was just before Christmas and his daughters were living with him part time.
[1092] Mr. Shaw purchased what he perceived to be a “bare minimum” membership. He testified that his membership was sold to him as the lowest prices on flights, accommodations and
[1093] Mr. Shaw entered into a contract dated 8 December 2007 ( ex 308) with an invoice number of 3510 for a
Payment for the membership
[1094] Mr. Shaw testified that at his first attempt to pay the membership fee of $6492.00 his visa transaction was declined (ex. 318). He did not have any further proof of payment. During cross- examination by Mr. Wright, although not having any documentary proof with him, he insisted that he had paid the membership in full and that he likely had proof at home. He explained he kept all the papers regarding the CUNS matter in a folder in hopes that someday he could at least receive a portion of the money back. He further testified in
[1095] During
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[1096] In chief Mr. Shaw testified that despite signing the agreement and acknowledging that he wasn’t pressured into purchasing – that in fact he was. He did acknowledge and initial each paragraph in the contract, read the contents, signed that he acknowledged the terms of the agreements of the agreement. At the same time Mr. Shaw didn’t necessarily agree with the terms but signed anyway. He felt pressured and defined being pressured as being made to feel that joining CUNS was in his best interest. Mr. Shaw testified the CUNS representatives moved from stage to stage and when he didn’t have the room on his credit card, they were more than happy to facilitate a call to the bank to facilitate a payment towards his credit card to make room to purchase the membership. In re- examination he testified that he felt pressured in a sense over and above usual sales tactics as they would push, and he had never experienced anything like it before. While he had never been to a time share meeting on his own before, he characterized the experience as “the type of thing that you don’t typically experience”, where you are pressured to purchase something for thousands of dollars and you attend unprepared. Mr. Shaw explained that unprepared meaning his anticipation was he was attending for a presentation and a free meal and then being sold a membership that is going to make his life better.
The cost of airfare
[1097] Mr. Shaw testified that within a year of joining CUNS he had occasion to travel to a
[1098] CUNS was unable to provide him with a discounted flight, see: Exhibit 319 (CUNS itinerary March 13 to 16) and exhibit 320 ( Expedia price quote dated March 13 to April 16) were produced and it would appear that the difference in price that was of issue was a quote for a CUNS flight for a total inclusive of taxes $474.05 and a quote inclusive of taxes and fee through Expedia for $346.22. Mr. Shaw used these prices as the basis of a legal letter sent to CUNS from the law firm Mills and Mills.
[1099] It is important to note that the search in these documents are not for the same duration of time. When confronted about this during
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asked a very pointed question in his response “and that’s the only reason that I didn’t use - why else would I not have used my own membership if I was going to save money”? Mr. Shaw could not recall however how much cheaper the flight was.
Request to Cancel
[1100] Mr. Shaw testified the failure to book a discounted airplane ticket through his CUNS membership precipitated his request to cancel his membership and ask a refund. He did not recall and wasn’t sure who he spoke to – if it was Betty or Linda Gilmore but he tried to arrange for a meeting. He booked a meeting and it was cancelled, it went on and on, stating that CUNS kept cancelling their meetings. He was eager to see someone and have the matter resolved. Eventually a meeting was held though Mr. Shaw could not recall who attended the meeting, it may have been the same people that were there when he was at CUNS the first night. Mr. Shaw testified that eventually a lawyer became involved as through
[1101] Mr. Shaw testified during
-When it was suggested the only service, he purchased was the travel services he responded
“You know what, I don’t, I don’t know. I thought it was travel accommodations and all- inclusive packages”.
-With respect to him feeling pressured to join, he disagreed that it was an internal pressure he placed on himself. Mr. Shaw testified that they were moving things along and it was clear that they had a job to do that evening.
-He was not sure if the company had simply moved location or had gone out of business
[1102] Mr. Shaw never received any money back from CUNS.
Count 67 information number 3 – Improper Contract
[1103] The court finds that Mr. Shaw entered into a time share agreement as defined by s. 20 (1)(b) of the CPA as it is consumer agreement by which a consumer “ is provided with discounts
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and benefits for the future provision of transportation, accommodation or other goods and services related to travel”. The court finds the agreement did not contain the information required by s. 26 regulations such as, but not restricted to, clauses 6, 8 and 14. This is contrary to s. 27 of the CPA and an offence as per section 116 (2) of the CPA. The court therefore finds CUNS guilty of improper contract and therefore guilty of count 67 of information number 3.
Improper Contract – the liability of Wendy Thakur and Antonietta Daneluzzi
[1104] 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
Count 68 – Unfair Practice - discounts and benefits
[1105] It is important to note that the court accepts as true, Mr. Shaw’s testimony as it relates to his viva voce testimony of paying for the membership and his attempts to utilize his CUNS membership to purchase airline tickets. While the exhibits produced to this court (ex. 319 and
320)may not conclusively support this count, the court finds that a strong inference can be drawn supporting his inability to obtain a discounted airline ticket, from the fact that Mr. Shaw i) never utilized the services of CUNS, despite the amount of money he paid and, ii) ultimately purchased at least 2 airline tickets independently of CUNS.
[1106] The court finds that i) by virtue of the membership in CUNS a representation is made to the consumer that they were entitled to discounts and benefits, ii) the consumer relied upon the representation by joining CUNS, iii) when the consumer attempted to utilize the discounts he was unable to do so as such the representation was false misleading or deceptive as it was a representation that as per s. 14 (2) ss. 1 as it was “ A representation that the goods or services have sponsorship, approval, performance characteristics, accessories, uses, ingredients, benefits or qualities they do not have”. As CUNS was unable to honour this representation it was contrary to s. 17 (1) of the CPA and an offence as per s. 116 (1)(b)(ii). The court finds CUNS guilty of unfair practice and therefore guilty of count 68 on information number 3.
Unfair Practice – discounts and benefits – The liability of Wendy Thakur and Antonietta Daneluzzi
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[1107] 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 the offence of unfair practice and therefore not guilty of count 68 on information number 3.
Count 69 information number 3 – Fail to Refund
[1108] The court finds that although he could not recall the actual date, a request to cancel was made by Mr. Shaw’s lawyers after the 10 day
Fail to Refund – The liability of Wendy Thakur and Antonietta Daneluzzi
[1109] 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 not guilty of count 69 of information number 3.
Information number
[1110] The court heard testimony from Shabbar Zaidi on June 24th, 2014.
[1111] Mr. Zaidi had received numerous calls from CUNS inviting him to attend for a draw and a chance to win gifts. CUNS also called his wife Shazia who was interested to attend for fun, so they agreed.
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[1112] Mr. Shabbar attended CUNS on 21 December 2007, with his wife (Shazia Shabbar) and 2 children (1 and 3 years old) at about 3:00 to 3:30 p.m. He testified in chief wasn’t sure what time he attended but it was before it was dark. In
[1113] After the movie a lady took him to another room where he met someone by the name of Morad who asked what service he was looking for. Mr. Zaidi made it clear that he was interested in a mortgage. After a few moments a person named Amar appeared and informed Mr. Zaidi that he was from the same country and city as Mr. Zaidi - Nazimabad Karachi. Amar also knew a common person who played cricket at the same cricket club as Mr. Zaidi. Mr. Zaidi testified that “So I thought like he’s – I have the right person. He’s not going to cheat me”. He promised a good rate and assured for Mr. Zaidi not to worry. Mr. Zaidi testified that he was happy because he trusted Amar. At one point they asked him for his social insurance card number and credit cards. Mr. Zaidi testified that Amar processed the payments without Mr. Zaidi’s consent and informed him that it was for security and the money would return in 42 days. Mr. Zaidi testified that his wife was crying when this occurred. They kept offering deals on cars and Mr. Zaidi repeated that he did not want a car and explained he was interested in obtaining a good mortgage rate.
[1114] Mr. Zaidi entered two separate contracts that evening. Both are dated 21 December 2007, sharing invoice number 3521. At the top of the second for each agreement reads “this membership as a Binding Contract, which is
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states, “No Refunds” [sic], and page 3 paragraph 3 reads “zero Cancellation policy will be enforced” [sic]. It is for a total of $9315.60.
[1115] The second agreement (ex. 29) is for 15 years CUNS membership with a yearly fee of $99.00 for V.I.P. Value Services including the travel gallery, world resort club, hot list – resort vacations, and hotlist- cruise vacations. In the Additional terms and conditions section it states the following: “Additional members Mrs. Shazia Shabbar, first annual fee waived by Canadian universal” [sic]. It is for a total of $3992.41 Under the section entitled “Acknowledgement” it states , amongst other things,: “I hereby certify that I have read and understand the provision of the Consumer Protection Act which are set both on Page 3 paragraph 3 of this agreement”. When referencing page three paragraph three of the agreement it states, amongst other things “I fully understand the consumer protection act of 2002 sating the 10 day
[1116] While Mr. Ludlow was guiding him through exhibit 28 Mr. Zaidi testified that, with respect to the financial services, he was advised that the mortgage person was not currently at CUNS and he would be there next week. Mr. Zaidi and his wife did sign a document entitled “Request for financial services” (ex. 33). which had a “yes” next to “Refinance existing mortgage”. Mr. Zaidi testified that both he and his wife (at the
[1117] Mr. Zaidi testified that he signed papers 3 different times while at CUNS. He would sign documents, those attending to him would leave, then return to the room and indicate that something was wrong and ask him to sign another set of new papers. They covered up the top of the documents so that he couldn’t see portions. It was never explained to him the apportionment of the services that he purchased.
[1118] Mr. Zaidi testified both in chief and in
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Shazia Shabbar at 23:02:11 for $7200. Exhibit 32 is a credit card receipt signed by Shazia Shabbar at for $3992.40.
[1119] It is important to note that Mr. Zaidi’s company appears as a party to both contracts along with himself. He testified in
[1120] When Mr. Zaidi left CUNS that evening it was late and he was tired. He inquired about the mortgage and was told to check back after 31 December 2007 and to call CUNS. Mr. Zaidi attempted to call but did not get any response, this prompted him to attend CUNS in person where he met with Linda Gilmore on 6 January 2007. He requested to cancel the agreement and requested a refund back to the credit cards, as he indicated he didn’t require any of the services. His request was refused. Mr. Zaidi thought the money he paid was security and Linda Gilmore explained that it was for membership fee with CUNS. A counteroffer was made to provide Mr. Zaidi with $582.00 which was approximately the interest the money was accruing on the credit card.
[1121] Mr. Zaidi sent a letter addressed to CUNS dated 17 January 2008 (ex. 34) requesting to cancel his membership and request a return of his money. The letter is signed by both Mr. Zaidi and his wife. Mr. Zaidi testified the letter was personally delivered it to Linda Gilmore. Linda Gilmore responded with a letter dated 23 January 2008 (ex. 35) referencing a meeting of 23 January (although this discrepancy wasn’t addressed during the trial, it is clear these dates are referring to the year ‘2008’). Ms. Gilmore emphasized in this letter that, that the consumers have a “binding contract with zero cancellation and refund policy” and offering as good will only a $582.00 credit towards financial service. There was a request that a response in writing to accept or not accept the credit be received by them within 15 days or the offer would expire. It would appear from Mr. Zaidi’s testimony that he did attempt to dispute his payment through his credit card company however was unsuccessful. Mr. Zaidi never received a refund from CUNS or anyone else.
[1122] The court notes that the witness was excited, repeated most of his testimony many times and would constantly cut off counsel including Mr. Ludlow when he was asking a question. At times he would not answer the question that was posed to him. At one point the court had a concern that perhaps he might require an interpreter, and it became very frustrating. It was difficult following the order of what happened, or which specific individual interacted with Mr. Zaidi. When the court inquired whether he required an interpreter the
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witness responded that “No, I understand ma’am. Sorry”. There was no response from any of the three counsel regarding the interpreter issue.
[1123] During
[1124] During
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-A friend he worked with advised him two weeks later why he didn’t cancel in 10 days but
CUNS had told him to return in the new year, so the time had elapsed
-he didn’t read the “10 day
-he felt as if Morad had hypnotised him as he didn’t have the strength to move to get up and leave CUNS that evening.
Information number 3
[1125] I concur with para. 326 of the Crown’s submission, and upon application of s. 3 of the CPA, the court finds that Mr. Zaidi entered into one agreement, a time share. Not only did both agreements have the same invoice number, the agreement that was subject to the 10 day
[1126] As the agreement is a time share agreement it must contain the information required in s. 26 of the regulations. The agreement is deficient as it does not contain the information including, but 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 therefore finds CUNS guilty of the offence of improper contract and guilty of count 70 information number 3.
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Improper Contract – the liability of Wendy Thakur and Antonietta Daneluzzi
[1127] 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
Count 72 information number 3 – Unfair Practice – transaction did not involve the right to cancel
[1128] The court finds that in the body of the agreements entered on 21 December 2007, were the following representations i) Agreement exhibit 28, under the “Acknowledgement” section reads “zero cancellation”. Page two paragraph 6 states “No Refunds” [sic], and page 3 paragraph 3 provides “zero Cancellation policy will be enforced” [sic]. The court further finds that upon Mr. Zaidi ‘s request to cancel dated 17 January 2008 (ex 34) CUNS made the representation (ex. 35) that “ this letter serves to confirm that this is a legal and binding contract with a zero cancellation and refund policy”.
[1129] The court finds that this representation made by CUNS (in ex. 35) violated s. 14 (2) ss.
13 as it was a “a representation that the transaction involves or does not involve rights, remedies, or obligations if the representation is false, misleading or deceptive”. The court finds that indeed the representation was false misleading or deceptive as Mr. Zaidi was entitled to a right to cancel i) within 10 days of entering the agreement and , ii) as the agreement was deficient within one year of entering the agreement ( s. 28 ss (1) and (2). This amounts to unfair practice as it is contrary to 17 (1) of the CPA and an offence contrary to s. 116 (1)(b)(ii) of the CPA. As such the court finds CUNS guilty of unfair practice and guilty of count 72 of information number 3.
Unfair Practice – transaction did not involve the right to
[1130] 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 agreement contained representations such as- “zero cancellation “and “no refunds” that were misrepresentations. That the named defendants i) had a
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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 72 of information number 3.
Count 73 information number 3- Fail to Refund
[1131] The court finds that Mr. Zaidi attempted to cancel his agreement i) On 6 January 2008 when he attended CUNS, ii) attending CUNS and hand delivering the cancellation letter dated 17 January 2008 (ex. 34) to Linda Gilmore, and iii) returning to CUNS on 23 January 2008 and met Linda Gilmore to request to cancel and refund. The court has found the agreement deficient and that Mr. Zaidi had a right to cancel within one year of entering the agreement as per s. 28 (2) of the CPA. The court further finds that once the request was made it engaged sections 95 and 96 of the CPA. Mr. Zaidi was then entitled to a “full” refund within 15 days as per s. 79 (1) of the regulations. The court finds that the attempt by CUNS to provide Mr. Zaidi a partial refund via cheque falls short of their duty to provide a full refund in accordance with the CPA. As Mr. Zaidi never received a full refund from CUNS this was contrary to section 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 therefore guilty of count 73 of information number 3.
Fail to Refund – the liability of Wendy Thakur and Antonietta Daneluzzi
[1132] 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 73 of information number 3.
ORDER:
CUNS:
[1079] For the reasons given above, the court finds CUNS guilty of the following counts: Counts 1, 2 and 3 of Information Number 1
Counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10,11, 12, 13, 14, 15,16, 17, 18, 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 36, 37, 38, 43, 45, 58, 61, 62, 65,67,68, 69, 71, 72, 73, 75, 76, 77, 79, 80, 81, 86, 88, 89, 90, 91 and 93 of Information Number 2
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Counts 5, 7, 8, 9, 10, 11, 13, 14, 15, 17, 18, 19, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 36, 37, 38, 40, 41, 43, 44, 45, 46, 48, 49, 50, 52, 53, 54, 55, 56, 57, 58, 59, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 72 and 73 of Information Number 3
[1080] The court dismisses the following counts against CUNS:
Count 35, 39, 40, 41, 42, 44, 46,47,48,49,50, 51, 52, 53, 54, 55, 56, 57, 59, 60, 63, 64, 66, 70, 74 (acquittal), 78, 82, 83, 84, 85 and 87 of Information Number 2
Counts 1,2,3,4,6, 12, 16, 20, 35, 39, 42, 47, 51, 60 and 71 of Information Number 3
[1081] The court finds CUNS not guilty of the following counts: Counts 23 and 92 of Information Number 2
Wendy Thakur:
[1082] For the reasons given above, the court finds Ms. Thakur guilty of the following counts: Counts 1 and 3 of Information Number 1
Counts 1,3, 5, 7, 9,11, 14,16, 19, 21, 24, 26, 28,30, 31, 34,37, 43,58,62, 65, 67, 69,71,73, 75,77,79, 86, 88, 90 and 91 of Information Number 2
Counts 5, 7,11, 13, 14, 15, 17, 19, 21, 24, 25, 28, 31, 32, 34, 36, 38, 41, 43, 44, 45, 46, 48, 50, 52, 55, 56, 59, 61, 65,67,70 and 72 of Information Number 3
[1083] The Court dismisses the following counts against Ms. Thakur:
Counts 23, 35, 39, 40, 41, 42, 44, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 59, 60,63, 64, 66, 74 (acquittal), 78 (acquittal), 82, 83, 84, 85, 87 and 92 of Information Number 2
Counts 1, 2, 3, 4, 6, 12, 16, 20, 35, 39, 42, 47, 51, 60 and 71 of Information Number 3
[1084] The court finds Ms. Thakur not guilty of the following counts: Count 2 of Information Number 1
Counts 2, 4, 6, 8,10, 12, 13, 15, 17, 18, 20, 22,25, 27, 29, 32,33, 36, 38, 45, 61, 68, 72, 76, 80, 81, 89 and 93 of Information Number 2
Counts 8, 9, 10, 18, 22, 23, 26, 27, 29, 30, 33, 37, 40,49, 53, 54, 57, 58, 62, 63, 64, 66, 68, 69 and 73 of Information Number 3
Antonietta Daneluzzi:
[1085] For the reasons given above, the court finds Ms. Daneluzzi guilty of the following counts: Counts 1 and 3 of Information Number 1
Counts 1, 3, 5, 7, 9, 11, 14, 16, 19, 21, 24,26, 28, 30, 31, 32, 33, 34, 37, 43, 58, 62,65, 67,69, 71, 73, 75, 77, 79, 86, 88, 90 and 91 of Information Number 2
Counts 5, 7, 11, 13, 15, 17, 19, 21, 24, 25, 28, 31, 32, 34, 36,38, 41, 43, 44, 46, 48, 50, 52, 55, 56, 59, 61, 65, 67, 70 and 72 of Information Number 3
[1086] The court dismisses the following counts against Ms. Daneluzzi:
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Counts 23,35, 39, 40, 41, 42, 44, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 59, 60, 63, 64, 66,70, 74 (acquittal), 78 (acquittal),82, 83, 84, 85, 87 and 92 of Information Number 2 Counts 1, 2, 3, 4, 6, 12, 16, 20, 35, 39, 42, 47, 51, 60 and 71 of Information Number 3
[1087] The court finds Ms. Daneluzzi not guilty of the following counts: Count 2 of Information Number 1
Counts 2, 4, 6, 8,10, 12, 13, 15, 17, 18, 20, 22, 25, 27, 29, 36, 38, 45, 61, 68, 72, 76, 80, 81, 89 and 93 of Information Number 2
Counts 8, 9, 10, 14, 18, 22, 23, 26, 27, 29, 30, 33, 37, 40, 45, 49,53, 54, 57, 58, 62, 63, 64, 66, 68, 69 and 73 of Information Number 3
Dated at the City of Toronto, on the 29th day of October 2021.
______________________________
Esther N. Daniel, J.P.
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