Court Information

Ontario Court of Justice Toronto Region

Case Name: R. v. De Los Santos

In the Matter of the Provincial Offences Act, R.S.O. 1990, c. P.33

Between: Her Majesty the Queen in Right of Ontario (Financial Services Commission of Ontario), Prosecutor

And: Jocelyn De Los Santos, Defendant

Reasons for Judgment

Before: His Worship Mohammed Brihmi

Appearances:

• Mr. J. Bogle, Counsel for the Defendant
• Ms. D. McPhail, Provincial Prosecutor

Hearing Dates: February 2, 2015 and March 26, 2015

Judgment: June 30, 2015

M. BRIHMI J.P. (orally):

Introduction

[1] The defendant, Jocelyn De Los Santos, is facing one charge under The Insurance Act of Ontario, R.S.O. 1990, Chapter I.8 (the "Act").

[2] This alleged offence falls under Part III of the Provincial Offences Act, R.S.O., c. P.33 (the "POA") and it is a strict liability offence.

[3] The defendant, Jocelyn De Los Santos, has entered a plea of not guilty to this charge.

The Witnesses and Exhibits

[4] The matter before the court is a continuation of the trial, which began on February 2, 2015 and on March 26, 2015 at the Ontario Court of Justice Toronto East (1530 Markham Road). The court heard evidence from the prosecution's two witnesses: Christopher Zimninski and Ryan Prout.

[5] Furthermore, the court heard from the defendant, Jocelyn De Los Santos.

[6] In addition to the viva voce testimony, the court was also provided with two Exhibits; including the Agreed Statement of Facts and the Pink Slip for the Insurance.

[7] After hearing closing arguments from both parties, and weighing carefully all of the evidence in totality, this matter is before the court today for judgment.

The Relevant Jurisprudence

[8] The court carefully reviewed the relevant case law, as follows:

a) The 1978, Supreme Court of Canada case, R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299.

b) The 1991, Supreme Court of Canada case, R. v. W.D., [1991] 1 S.C.R. 742.

c) The 1986, Ontario Court of Appeal case, R. v. Boissonneault, [1986] O.J. No. 834.

The Agreed Statement of Facts

[9] The court was provided with an Agreed Statement of Facts containing two numbered paragraphs that were agreed to by all parties.

[10] In it, they admit to the following facts:

1. The documents/Insurance Policy that Mr. Christopher Zimninski was using were fraudulent documents.

2. Jocelyn De Los Santos is not a licenced Insurance Agent and has not, at any time, enrolled in a course to become a Licenced Insurance Agent.

Testimony of the Prosecution's Witnesses

[11] The Court heard from the Prosecution's two witnesses. The first witness was Christopher Zimninski. He is the owner of the 2000 Honda Civic. His testimony has been summarized as follows:

[12] Mr. Zimninski testified that he works for Rogers as a Senior Technician and that he acquired his vehicle by the end of June or the beginning of July 2011. In addition, he told the court that he made random phone calls and called his friend Xeon Francis telling him that he purchased a vehicle and that he was having an issue looking for its insurance.

[13] Furthermore, he testified that when he was maybe 21 years old, he made a foolish mistake of operating a motor vehicle without insurance for which he pleaded and was found guilty. Mr. Zimninski told the court that he is 32 years old now.

[14] In addition, he testified that Mr. Francis told him that he knows someone who had helped him and who could get him a group insurance. Mr. Zimninski pointed out to Ms. De Los Santos who was sitting in the court.

[15] Furthermore, Mr. Zimninski testified that he called Ms. De Los Santos and they met the first time not far from where he used to reside in the parking lot at the Malvern Centre; in front of the Pizza Pizza. Also, he told the court that he walked to her and she let him in her motor vehicle as well as that she told him that she was a representative of an Insurance company and that she will put him in a Group Insurance. For that, he testified that he had basic discussion on how she will get him the group insurance and that she asked him to give her his driver licence as well as the ownership of his car. In addition, he testified that she told him that it will cost him $2000 and that she will contact him within 24h if he qualifies.

[16] Thus, Mr. Zimninski told the court that she contacted him and he met again Ms. De Los Santos the following day inside the Pizza Pizza of the Malvern Centre, that she explained to him the group insurance and that he handed her $2000 Cash. After waiting two or three days later, he testified that he received the pink slip from Ryan Prout (Exhibit 2) that was given to him by the defendant.

[17] Furthermore, Mr. Zimninski testified that he believed that his motor vehicle was insured until he was pulled over by a police officer at the intersection of Don Mills and York Mills on January 24, 2012 over his history of driving without insurance and the officer wanted to make sure that he was properly insured. In addition, he told the court that the officer called the insurance company and they told him that his insurance was not a legitimate one. Ergo, he was charged among others for Operating a motor vehicle without insurance and having a false insurance.

[18] Mr. Zimninski testified that he tried to have Ms. De Los Santos to come to court to testify on his behalf and she did not. He indicated that he reported her on November 2012 to the Financial Services Commission of Ontario. In regard to the charges that he was facing, he told the court that he went to trial and they were dismissed.

[19] Under cross-examination, he testified that he was found guilty of driving a motor vehicle without insurance when he was around 24 years old and that he knew the consequences of operating a car without insurance. Furthermore, he testified that he researched and called several insurance companies, mostly brokers and the quotes he was getting were too high due to his driving record.

[20] Mr. Zimninski told the court that through a conversation with Mr. Francis who told him that he knows Ms. De Los Santos and that she works for an insurance company. Also, he clarified that Mr. Francis did not tell him that she was an agent or broker.

When asked if he was rolling the dice, Mr. Zimninski categorically denied that and that when he received the insurance documents, he had no idea that Ms. De Los Santos was in fraud.

[21] In Regard to the disclosure and the name of Richard Wajid, he told the court that he received that name from Ms. De Los Santos who told him that he was the head person or her boss and that he never met him. Furthermore, he asked Ms. De Los Santos to assist and to come to court to testify on his behalf, that she was willing to help and at the end she did not.

[23] The Court heard from the Prosecution's Second Witness, Mr. Ryan Prout. He is a friend of Mr. Zimninski and his testimony has been encapsulated as follows:

[24] Mr. Prout testified that he was given the name of the person, the phone number and the address where to pick up the insurance document for Mr. Zimninski. In addition, he told the court that at the Victoria Park bus Station, he called Ms. De Los Santos and she told him that she will be there in few minutes.

[25] Furthermore, he told the court that she came down with a small dog while he was sitting on his motorcycle, that they talked as well as that she gave him the insurance which he took to Mr. Zimninski. In addition, it was late in the day and well lit.

[26] From there, Mr. Prout testified that he went directly and it took him 10 minutes to get to Mr. Zimninski. Furthermore, he told the court that he was with him when he opened the paper and that he saw the insurance as well as that Chris thanked him for that.

[27] Under cross examination, he testified that he never saw Ms. De Los Santos before and has not seen her since then. Furthermore, he told the court that she gave him a little white envelope and had no idea what was in it, that he did not ask and that he picked up the package, delivered it and it is possible that it was sealed.

Testimony of the Defendant

[28] The Court also heard from the defendant, Jocelyn De Los Santos. Her testimony has been summarized as follows:

[29] Ms. De Los Santos testified that she was employed and that she met Mr. Zimninski through an old boyfriend, Mr. Francis. In addition, she testified that she told him that she was aware of a deal for insurance and that she never told Mr. Zimninski that she was an Insurance Agent or she intend to become an Insurance Agent.

[30] Furthermore, she testified that she did not know what type of deal and just that it was a low rate. In regard to Mr. Zimninski, she testified that she did not know him, except that Mr. Francis gave him her contacts and that he wanted to meet her. In addition, she indicated that she spoke to him, then she drove to meet him and that no one was present.

[31] Also, Ms. De Los Santos testified that she met him in the Pizza Pizza for approximately 10 minutes and that he did not give her any money. In addition, she told the court that he was interested and that she passed the message away to Mr. Charleston Henry who she was dating at the time.

[33] Ms. De Los Santos testified that she did not negotiate any price with Mr. Zimninski and asked him for his Driver Licence and the ownership for his vehicle. In addition, she testified that that she doesn't remember meeting him again and that she informed Mr. Henry about the meeting and that he was happy. However, she testified that she was not involved in negotiation or the preparation of any document for Mr. Henry.

[34] Furthermore, she told the court that when Mr. Zimninski was charged with criminal offences, he and Mr. Francis forced her to provide them with information regarding Mr. Henry's number and that she did not know what happened with him (Mr. Henry). In addition, she told the court that Mr. Zimninski and Mr. Francis threatened her to come to court. They asked her to help and that she gave them all the information that she had. Also, she testified that they wanted her to come to court and she asked them for documentation requiring her to come to court and that if she did not attend or help them, she had to give them $25000 and eventually she did not go to court.

[35] Furthermore, she testified that she was contacted by a Police Officer who kept calling her about this insurance matter and that she did not know what to do and she told him to speak to a lawyer.

[37] Under cross-examination, Ms. De Los Santos clarified that she did not tell Mr. Zimninski that she knew about a deal for a cheap insurance but it was Mr. Henry who she was seeing and dating at the time who told her about this cheap insurance. In addition, she added that she was not working for Mr. Henry.

[38] In regard to Mr. Francis who she dated on and off, she testified that he is the one who told her about a friend who needs insurance and that she told him about a cheap insurance for people who have hard time getting insurance and that was Mr. Henry who told her about it.

[40] Furthermore, she testified that she told Mr. Zimninski that he has to give her a copy of his driver licence and ownership for his vehicle.

[38] When asked that Mr. Zimninski testified on February 2, 2015 that he met her twice and not only once, she told the court that she doesn't remember meeting him a second time; however it is possible. In addition, she testified that she told him what she knew about a cheaper rate and that it was a legitimate insurance and other people said that it was a good deal.

[39] When asked that she took a copy of his Driver licence and ownership and that if he was interested to call and make arrangement; she clarified that she doesn't remember if he called or not or meeting him a second time; however she conceded that he obviously had called her a second time.

[40] Furthermore, she testified that she met Mr. Prout once in June 2011 and she remembers giving him an envelope that was given to her by Mr. Henry. With respect to delivering the blank envelope to Mr. Prout, she told the court that she knew he was a friend of Mr. Zimninski.

[41] In regard to when Mr. Zimninski was charged one year after the transaction and that he was facing a fine of $25 000, that he asked her to help and that she did not have that money, she clarified that she told him if she is available, she'll go to court and he and Mr. Francis threatened her both of them and that she got harassed; however nothing happened her.

[43] When asked why she delivered the package herself to Mr. Prout and not Mr. Henry, she responded that she was told to deliver the package because Mr. Henry was not available. Furthermore, she explained that it was a blank envelope.

[44] In addition, Ms. De Los Santos testified that she has never taken insurance courses and she never said that she was part of an insurance industry payroll.

The Position of the Parties

Submissions of the Defence

[45] The defence's position is that Mr. Zimninski had a history of driving without insurance and that he tried to get insurance from insurance providers and it was extremely high; therefore he was looking for alternative insurance to acquire insurance for his motor vehicle.

[46] Furthermore, defence contends that there was no evidence that Ms. De Los Santos presented and produced documents as well as advertised as an Insurance Agent or that she was a representative of an insurance company. In addition, defence submits that the defendant indicated that she had a short meeting not in hours with Mr. Zimninski who said that he provided Ms. De Los Santos with money, his driver licence and his registration and that the envelope she handed to Mr. Prout has no signage or notation on it as well as that there was no communication between her and Mr. Prout about the content of the envelope.

[47] For the defence, Ms. De Los Santos was no more than a go between Mr. Henry and Mr. Zimninski and that Mr. Francis knew that she was not the ultimate person involved in the creation or the insurance document itself. In addition, Defence contends that there is no evidence that Ms. De Los Santos had knowledge that she was in the insurance transaction in question and therefore being an agent as defined by the Insurance Act.

Furthermore, when asked about the person responsible and who was in charge of the insurance, she gave Mr. Zimninski and Mr. Francis the contact number of Mr. Henry. Ergo, defence contends that Ms. De Los Santos has no knowledge of being an Agent.

[48] Moreover, defence submits that there is no evidence that speaks to what Ms. De Los Santos had done such as transporting documents or retrieving money and what she did does not give rise to an offence under this Act.

[49] Furthermore, defence contends that even to give money to someone does not make it an agent, may be a sales person at best and the meeting with Mr. Zimninski only put the wheels on motion as a go between and a sales person, however not as an agent who takes the particulars and negotiate the price.

Submissions of the Prosecution

[50] The Prosecution's submission is that the defence arguments are two folds:

(a) That Ms. De Los Santos was a sales person and not an Agent as defined in the Act;

(b) That Ms. De Los Santos did not negotiate for the insurance of Mr. Zimninski.

[51] However, the prosecution's position is that the Insurance Act is to protect the public and that Ms. De Los Santos admitted that she was not an agent; however she assumed or offered to act in the negotiation as defined in the more appropriate definition of Agent in part B that reads the following:

"Solicits insurance on behalf of an insurer or transmits, for a person other than himself, herself or itself, an application for, or a policy of insurance to or from such insurer, or offers or assumes to act in the negotiation of such insurance or the negotiation of its continuance or renewal with such insurer, and who is not a member of the Registered Insurance Brokers of Ontario" – "Agent"

[52] In addition, Prosecution contends that Mr. Zimninski was never given the name of Mr. Henry and at some point he was told that Ms. De Los Santos was working with Wajid.

[53] For the prosecution, Mr. Zimninski had bad record and he needed insurance, therefore he spoke to his friend Mr. Francis who told him that he knows someone who could arrange that for him with a group insurance; even though Mr. Zimninski testified that he didn't know about group insurance. Furthermore, the prosecution submits that he called Ms. De Los Santos and he met her twice, the first time was in the parking lot of Malvern Centre.

[54] In that meeting, the prosecution contends that Mr. Zimninski understood that Ms. De Los Santos was a representative of an insurance company, that she could get him and that she has the opportunity to get him a group insurance. Furthermore, the prosecution submits that the defendant took from him his driver licence and ownership as well as that she contacted him and they met the second time at the Pizza Pizza where he gave her $2000.

[55] In addition, the prosecution submits that Mr. Zimninski received his policy from his friend Mr. Prout who received it from Ms. De Los Santos in the vicinity of Victoria Park Bus Station.

The Legislation

[56] "Agent" means a person who, for compensation, commission, or any other thing of value,

(a) Solicits insurance on behalf of an insurer who has appointed the person to act as the agent of such insurer or on behalf of the Facility Association under the Compulsory Automobile Insurance Act, or

(b) Solicits insurance on behalf of an insurer or transmits, for a person other than himself, herself or itself, an application for, or a policy of insurance to or from such insurer, or offers or assumes to act in the negotiation of such insurance or the negotiation of its continuance or renewal with such insurer, and who is not a member of the Registered Insurance Brokers of Ontario; "Agent"

[57] Penalty

(c) On conviction for an offence under this Act, the person convicted is liable on a first conviction to a fine of not more than $100,000 and on each subsequent conviction to a fine of not more than $200,000. R.S.O. 1990, c.I.8, s.447 (4).

The Nature, the Onus and the Burden of Proof of the Alleged Offence

[58] The Court turned its mind to the offences contained in sections 393(23) of the Insurance Act of Ontario to determine if it is a strict liability offence.

[59] In particular, the Court relied upon the analysis of the Supreme Court of Canada in R. v. Sault-Ste. Marie, [1978] 2 S.C.R. 1299, which addressed the categorization of regulatory offences. Applying the categories of offences enunciated in this judgment, I am satisfied that most public welfare offenses are properly classified as either absolute liability or strict liability offenses. Very few regulatory offenses require the Prosecution to prove wrongful intention or knowledge in addition to the prohibited conduct. Based construction of the language used in this statute, I am satisfied that this offence is a strict liability offence.

[60] Ergo, this offence places the onus on the Prosecution to prove its case beyond a reasonable doubt. If the Prosecution is able to do so, it also opens the opportunity to the defendant to present a defence and avoid liability if the Court is satisfied, on a balance of probabilities, that the defendant acted with due diligence and took all reasonable care in all the circumstances. A defence will also be available if the defendant reasonably believed in a mistaken set of facts which, if true, would render the act or its omission innocent.

Issues

[61] The Court identified the following issues that have arisen in this proceeding and which need to be addressed:

1. Was Jocelyn De Los Santos a go between Mr. Zimninski and Mr. Henry?

2. Was Jocelyn De Los Santos at best a sales person as defined by the Act?

3. Has it been proven that Jocelyn De los Santos assumed or offered to act in the negotiation as an Agent as defined by the Act?

4. If the answer to (3) is yes, has the defence satisfied the court of either a due diligence defence, or a defence based on a mistaken set of facts?

Analysis

A: Was Jocelyn De Los Santos Simply a Go Between Mr. Zimninski and Mr. Henry?

[62] With respect to the submission made by defence counsel that Ms. Jocelyn De Los Santos was no more than a go between Mr. Zimninski and Mr. Henry as she did not know or negotiate any insurance transaction and the ultimate person in charge was Mr. Henry, the court accepts that Ms. Jocelyn De Los Santos was more than a go between Mr. Zimninski and Mr. Henry. The court accepts that she made arrangement through her communication, through her discussions and also through the meetings she had with Mr. Zimninski.

[63] I accept that Ms. De Los Santos communicated and discussed with as well as that she explained to Mr. Zimninski the group insurance where the insurance for his vehicle could fit. In addition, I accept that she did not direct him to Mr. Henry at any time in this matter if he was the ultimate person in charge taking into consideration that this case involved a fraudulent as well as a non-valid insurance Policy.

[64] Furthermore, the court accepts that Ms. De Los Santos provided the contact and the phone number of Mr. Henry to both Mr. Zimninski and Mr. Francis only after Mr. Zimninski was charged with the offence in relation to the false insurance and operate a motor vehicle without insurance.

[65] I find it difficult to believe that she was just a go between Mr. Zimninski and Mr. Henry, taking into consideration all the arrangements, the communication, the steps and the actions she took in this matter, including among others communicating and meeting Mr. Zimninski, calling him and following up on their meeting, taking a copy of his driver licence and ownership and giving the envelop that contained the pink slip to Mr. Prout.

B: Was Jocelyn De Los Santos at Best a Sales Person as Defined by the Act?

[66] Defence contends that Ms. De Los Santos was at best a salesperson.

In the Act the definition of a salesperson "means a person who is employed by a licenced agent or broker on a stated salary that is not supplemented by commission, bonus or any other remuneration to solicit insurance or transact, for a person other than himself or herself, an application for a policy of insurance, or to act in the negotiation of such insurance or in negotiating its continuance or renewal, or collects and receives premiums on behalf of his or her employer only, but does not include a licenced insurance agent, broker or employee engaged solely in office duties for an agent or broker"; (vendeur)

[67] The court did not hear and was not provided any evidence that Ms. Jocelyn De los Santos was a salesperson. I accept that Ms. De Los Santos was not employed by and was not working for Mr. Henry or any licenced insurance agent or broker on a salary that is not supplemented by commission, bonus or any other remuneration. Furthermore, by her own evidence, she denied receiving or taking the $2000 from Mr. Zimninski.

C: Has It Been Proven That Jocelyn De Los Santos Assumed or Offered to Act in the Negotiation as an Agent as Defined by the Act?

[68] The court accepts that Ms. Los dos Santos was not a licenced insurance Agent as agreed to in the agreed statement of facts. Furthermore, the court accepts that she offered or assumed to act in the negotiation of the insurance with Mr. Zimninski either through the various communications or the discussions or the meetings she had with him for a group insurance for his motor vehicle.

[69] In addition, I accept that through the multiple communications and the discussions with Ms. De Los Santos, Mr. Zimninski believed that she was a representative of an insurance company, she told him how much it will cost him and that she would get him a group insurance for $2000. As a result, Mr. Zimninski was denied the protection he was supposed to have in that fraudulent insurance document that he was using.

[70] Furthermore, I accept that Mr. Zimninski was never given the contacts of Mr. Henry while Ms. De Los Santos was communicating with him and taking his documents. In addition, I accept his belief that he received a valid insurance for his vehicle from Ms. De Los Santos for the period starting June 29, 2011 to June 29, 2012.

[71] I find the evidence of Mr. Zimninski to be clear, concise, and credible. Furthermore, I accept fully his testimony that he received a valid insurance for his Honda civic.

D: Has the Defendant Satisfied the Court of Either a Due Diligence Defence or a Defence Based on a Mistaken Set of Facts?

[72] The Court recognizes that the defence has the ability to avoid liability by raising a doubt in the mind of the Court that the defendant has exercised all reasonable care to avoid committing the offence or that she had an honest but mistaken belief in facts which, if true, would have rendered the act innocent and could have exculpated her.

[73] The court accepts that Ms. De Los Santos presented, among others, contrary evidence, including that she denied meeting Mr. Zimninski twice but only once in the Pizza Pizza, that she did not take any money from him or receive any value and that she did not negotiate any insurance contract with him. In this situation, an assessment of the credibility of the parties is required as part of an examination of this defence's evidence.

[74] As such, it is incumbent upon the court to refer to the decision of the Supreme Court of Canada in R. v. W. (D), [1994] 3 S.C.C. 521, [1994] S.C.C. No. 91 (QL) in which Justice Cory set out the credibility test as follows:

1. First, if you believe the evidence of the accused, obviously you must acquit.

2. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

3. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[75] In terms of credibility for this matter, the Court finds itself at the third step of this analysis, based on the following evidence:

[76] On one hand, the court finds that Mr. Christopher Zimninski, Mr. Ryan Prout and Ms. Jocelyn De Los Santos were doing their best to tell the truth about what happened.

[77] Mr. Zimninski provided me with a clear and detailed account of events, in a straightforward manner. He was not shaken while under vigorous cross-examination, he clarified that he met Ms. De Los Santos twice; believing that she works for an insurance company and that he was provided a valid insurance policy. Therefore, I find Mr. Zimninski to be credible.

[78] In regard to the testimony of Mr. Prout, the court finds that he testified in a clear and concise manner about his evidence. The court accepts as true that he met Ms. De Los Santos and that she gave him in the white envelope the pink slip for Mr. Zimninski's car insurance. I also accept that Mr. Zimninski opened the envelope in front of him.

[79] On the other hand, the court finds the evidence of Ms. De Los Santos to be problematic, and in some instances, contradictory. In hearing her evidence, I find it difficult to believe that she met Mr. Zimninski only one in the Pizza Pizza where she took from him a copy of his driver licence and the ownership for his vehicle.

[80] I find it reasonable to believe the evidence of Mr. Zimninski that he met her twice, the first time where she told him about the group insurance and she took a copy of his driver licence and his ownership as well as she told him that If he was interested to call her to make arrangements. I also find it reasonable to believe that she met him the second time when he called her back to meet, follow-up and where he gave her the $2000 cash.

[81] Furthermore, it is reasonable to believe that Ms. De Los Santos needed to get the money from Mr. Zimninski to give him the pink slip and to make him believe that he was paying for a genuine group insurance.

[82] In addition, the court notes that under cross-examination, Ms. De Los Santos left it open and possible that she may have met Mr. Zimninski a second time; even though she indicated that she doesn't remember.

[83] I find it reasonable to believe and I accept that Ms. De Los Santos was involved in the negotiation with Mr. Zimninski as she made the arrangements through her various communications, discussions, meetings and actions regarding his car's group insurance.

[84] After reviewing the relevant case law, the totality of the evidence, which includes viva voce evidence, documentary evidence and after careful review of the submissions from the Prosecution and defence counsel, the court finds that the Prosecution has met its onus of proving the charge against Ms. De Los Santos in section 393 (23) of the Insurance Act.

[85] Based on my reasons herein, I further find the defendant has not satisfied the court on a balance of probabilities either that she exercised all reasonable care so as to avoid committing the offence, or that she had an honest but mistaken belief in facts which, if true, would have rendered the act innocent and could have exculpated her.

Order

[86] As such, I am satisfied that the prosecution has proven this case beyond a reasonable doubt. Accordingly, I find the defendant guilty and register a conviction against her.

Dated at Toronto, this 30th day of June, 2015.

Mohammed Brihmi, J.P.