Ontario (Travel Industry Council of Ontario) v. Robinson, 2019 ONCJ 203

CITATION: Ontario (Travel Industry Council of Ontario) v. Robinson, 2019 ONCJ 203

DATE: February 19, 2019

Information No. P 173700

ONTARIO COURT OF JUSTICE

(at St. Catharines, Ontario)

B E T W E E N:

ONTARIO (Travel Industry Council)

• and -

KAREN ROBINSON also known as KAREN GUSHUE

Mr. T. Snell for the Travel Industry Council of Ontario

Ms. R. Lichtman for Karen Gushue

Reasons for Judgment

NADEL, J.:

Introduction

[1] The defendant, who goes by the name of Karen Gushue (Gushue), was a member of the Ridgeway Branch No. 230 of the Royal Canadian Legion (Legion). In 2016 and 2017 she organized and promoted two vacation packages at her branch of the Legion. Her first promotion was a four-day cruise package to the Bahamas in February of 2017. Her second promotion was a longer vacation package to Hawaii, in February of 2018. The Bahamas package was for “a 4 Day/Night Bahamas Cruise for the total amount of $650.00 Canadian Dollars. [The] trip package include[d] transportation to and from the airport from Ridgeway, Ontario … round trip flight tickets, cruise fare and all applicable taxes. The cruise [was] all inclusive, including food and alcohol.”[^1]

[2] The purchasers of the Bahamas package experienced significant difficulties. Those who went on the trip did not get what they had paid for. Some who cancelled their cruises did not get the refunds that they had contracted for.

[3] The information in this case was sworn on August 2, 2017. The Hawaii vacation package promoted by Gushue never occurred. One of the witnesses who bought and fully paid for two passages on that package never received any refund from Gushue despite cancelling in a timely fashion, as permitted by his contract.

[4] People who bought these trips complained to the Niagara Regional Police Service about their experiences in dealing with Gushue and scores of dissatisfied purchasers made complaints about their experiences with her to the Travel Industry Council of Ontario (TICO).

[5] Section 4(1) of the Travel Industry Act prohibits any person from acting as a travel agent or holding herself out as being available to act as a travel agent without being registered as a travel agent under the Act.

[6] The Act defines “travel agent” as meaning “a person who sells, to consumers, travel services provided by another person”. The Act defines “travel services” as meaning “transportation or sleeping accommodation for the use of a traveller, tourist or sightseer or other services combined with that transportation or sleeping accommodation”.

[7] Gushue was not registered as a travel agent under the Act when she organized and promoted either of the vacation packages. Section 31(1)(c) of the Act makes it an offence to contravene or fail to comply with any section of the Act or the regulations made under it.

[8] As a result of the complaints made to TICO, Gushue was charged with the following two offences:

Count 1: that between August 29, 2016 and February 17, 2017 Gushue committed the offence of acting or holding herself out as being available to act as a travel agent without first being registered as a travel agent by the Registrar of the Act by selling cruise packages to the Bahamas that included return airfare, contrary to s. 4(1)(a) of the Travel Industry Act; and,

Count 2: that between September 30, 2016 and February 28, 2017 Gushue committed the offence of acting or holding herself out as being available to act as a travel agent without first being registered as a travel agent by the Registrar of the Travel Industry Act, by selling cruise packages to Hawaii including return airfare, contrary to s. 4(1)(a) of the Travel Industry Act.

Admissions

[9] By the conclusion of their submissions the parties had made a number of factual admissions and had arrived at some agreements about legal issues. The factual admissions were:

1. that the identity of Karen Robinson also known as Karen Gushue as the defendant was admitted;

2. that as of March 1, 2017 the defendant was not and had never been registered as a travel agent under the Act;

3. that the majority of TICO complainants paid Gushue for cruises in traceable money, either by cheque or by e-transfer; and,

4. that Gushue paid for travel services, specifically airfare, buses and cruises.

[10] The parties agreed that “financial benefit is not a necessary element for selling” (sic) when the word “sells” is construed in the definition of travel agent. They also agreed that these are strict liability offences. The onus is on the Crown to prove the elements of the offences to the exclusion of any reasonable doubt. If the Crown has done so then to escape conviction the defence must demonstrate a due diligence defence on the balance of probabilities.

The Evidence

[11] The evidence called by the Crown consisted of the viva voce testimony of individuals who purchased one or more of the vacation packages promoted by Gushue together with their purchase and payment documentation and, in some cases, other correspondence generated as a consequence of their purchases. In addition, two American travel agents, (Anna Larity and Amelia Easterling), testified by video link. These two had communicated with Gushue and with some of the package-purchasers. Finally, the TICO investigator, Mr. J.S. Hogarth, (Hogarth), gave brief evidence about how the TICO investigation was initiated.

[12] Hogarth said that TICO had been called by the Niagara Regional Police Service respecting a “travel fraud” complaint.[^2] Shortly after that call TICO began to receive written consumer complaints about travel sales involving Gushue. Over the course of several weeks TICO received approximately 50 written complaints of purchasers not having received what they paid for; i.e., the complainants said that they did not receive the benefits and amenities that they had been promised including a drink package and a return flight.

[13] The vacation packages that Gushue promoted were described in two written documents. The first vacation package was a trip to the Bahamas that Gushue promoted as a fundraiser for her branch of the Legion. The evidence about how this trip would raise funds for Branch 230 was not consistent but many of the witnesses testified that Gushue promoted the trip as a fundraiser for Branch No. 230 or as a fundraiser for military veterans.

[14] The brochure provided by Gushue that set out the terms, conditions and promises included in the vacation package to the Bahamas was filed as trial Exhibit 1. A photo-static copy of it has been scanned and will be attached to these reasons.

[15] While there was no direct trial evidence about the provenance of this brochure I find that it was not created by Norwegian Cruise Lines (NCL). It was, I find, cobbled together and produced by Gushue, undoubtedly using information that was available from NCL. I reach this conclusion and make this finding based, inter alia, upon the section headed “Departure” on its first page. That section[^3] identifies it as a document that Gushue created for promotion at Branch 230, as opposed to being a standard piece of advertising or promotion put out by NCL. In addition, Gushue, included the following assurance about the provision of free alcohol while on board, “As a former passenger I can assure you the bar is always open ….. So enjoy!”

[16] Likewise, the Hawaii vacation package was a promotion instigated by Gushue. The brochure setting out the terms, conditions and promises included in this vacation package to Hawaii was filed as trial Exhibit 18. A photo-static copy of it has been scanned and will be attached to these reasons. I infer and find that this exhibit was also created by Gushue. This exhibit also speaks to meeting at “the Ridgeway Legion” denoting it as a creation of Gushue’s. In addition, on its fourth page the following admission appears:

PLEASE NOTE

To lock this price in including the bonuses I have secured 80 spots and ONLY 80 spots!!!! Due to the amazing success in our Bahamas cruise it is STRONGLY for you to book asap. Our Bahamas cruise has an overwhelming 128 bookings which filled almost instantly. I have already received over 50 requests for the Hawaii cruise so please if you are interested call and book now so not to be disappointed. (sic)

The Nature of the Complaints

[17] The complaints made by the witnesses about these trips included the following:

• the ship that was promised for the Bahamas cruise was an NCL ship, (the Norwegian Sky), but the cruise ship that Gushue finally arranged was a ship of a different cruise line;[^4]

• as a result of Gushue changing cruise lines the point of departure changed from Fort Lauderdale to Cape Canaveral;

• all ground transportation costs to and from the Legion were supposed to be included in the purchase price but additional costs for ground transport were imposed on purchasers despite what was contained in Exhibit 1;

• those ground transportation costs were increased by the change in the point of departure for the cruise;

• the Bahamas cruise-package was to include all alcoholic beverages while on board but no such amenity was provided to the purchasers, who had to pay for their own alcoholic beverages; but,

• the most egregious complaint, so far as the Bahamas trip was concerned, was the fact that the purchasers were only provided with a one-way flight to Florida and they had to make their own arrangements for and pay for their own return flight home.

[18] There were other complaints, too. Some passengers bought shore excursions for the NCL ports-of-call and they did not get refunds or full refunds for those shore excursions when the alternate ship’s itinerary did not match up with the one initially promised. Some witnesses cancelled the Bahamas cruise in a timely fashion but were not given a full refund as promised by Exhibit 1. One witness bought both vacation packages for himself and for his wife, paid for them in full, cancelled in a timely manner but received nothing back from Gushue.

The Evidence of the Two American Travel Agents

[19] Between 2016 and 2018 Anna Larity (Larity) was employed as the Assistant Office Manager by America Discount Cruises and Travel (ADC), which is located in New Jersey. ADC is a travel agency that books all types of vacations including cruises and flights.

[20] On January 27, 2017 Mark Wilkie, one of the purchasers of the Bahamas trip called Larity and spoke to her about the group cruise on the Norwegian Sky that was scheduled to depart on February 13, 2017. He wanted to know why the group’s cruise had been cancelled.[^5]

[21] Larity was not initially involved in dealing with this cruise. One of ADC’s travel agents, Julie Pawson, was dealing with Gushue who brought her group to ADC. When Gushue contacted ADC Gushue had a group totalling 104 passengers travelling under 55 separate reservations that Gushue had made with NCL. As a result of Wilkie’s call to Larity, Larity sent him an email later on January 27, 2017.

[22] Larity’s email was filed during Wilkie’s evidence as Exhibit 28, subject to further proof of authorship of that exhibit that Larity provided. Larity testified that the events documented in her email were derived by her from a review of the records that ADC kept in the ordinary course of their business. Nonetheless, portions of that exhibit contain hearsay statements that are not admissible for the truth of their content.

[23] Muriel Beckett, another of the Bahamas cruise purchasers, also called Larity seeking information about the cruise. Larity confirmed to her and to Wilkie that their cruise to the Bahamas on the Norwegian Sky had been cancelled. The NCL ship left as planned with other passengers aboard on February 13, 2017.

[24] Larity testified that Gushue contacted ADC in November of 2016 to ask it to accept a transfer of the 55 reservations that Gushue had previously made directly with NCL. NCL approved that transfer and Julie Pawson of ADC then began attempting to administer the group booking.

[25] At the time of the transfer of the group booking to ADC, Gushue had already paid a deposit of $10,000.00 (US) directly to NCL.[^6] ADC notified Gushue that the final payment for the group was due on November 30, 2016. ADC sent Gushue final payment invoices for the 55 separate reservations that Gushue had already made directly with NCL.

[26] The total for the final payments due to NCL after crediting the $10,000.00 deposit was $59,821.00 (US). If final payment was not made, NCL would cancel the bookings and forfeit the deposit as a penalty. Equally, if the bookings were cancelled after November 30, 2016 NCL would forfeit the deposit as a penalty.

[27] Despite being reminded to do so many times, both by telephone calls and by emails from ADC to Gushue, Gushue did not pay the final amounts due by November 30, 2016. Shortly after mid-November Gushue advised ADC that she did not expect to be able to make the final payments due by November 30, 2016. As a result, ADC negotiated with NCL and obtained a week’s extension from NCL permitting Gushue to pay the final amount due on December 7, 2016. Gushue did not make the final payment by this date either. Larity testified that on December 19, 2016 NCL cancelled these 55 reservations.

[28] This $59,821.00 (US) amount was for the cruise alone, it did not include air transportation to Florida and it did not include ground transportation from an airport to the dock and back to an airport. ADC was not involved in arranging flights for the proposed 104 passengers in Gushue’s group booking.

[29] In cross-examination Larity testified that ADC did not prepay for travel and then try to find purchasers for the packages which they now owned. Rather, ADC simply worked off of the daily rates offered by the vendors that they worked with.

[30] Larity never believed that Gushue was a travel agent and she said that Gushue did not do anything to make Larity believe that Gushue was a travel agent. However, it should be noted that the definition of what it means to be a travel agent in Ontario was not an element of her testimony. Larity confirmed that what Gushue was doing, i.e., booking a cruise on behalf of a large number of other people was a common scenario in her experience. A person in Gushue’s position is called “the group leader because they lead an entire group and it’s very common for one person to book a whole group with [ADC] and for them to be a point of contact for everything.”

[31] Had Gushue’s group travelled on the Norwegian Sky ADC would have been paid a percentage of the value of those cruises by NCL after NCL was paid by the consumers.

[32] The second American travel agent to testify was Amelia Easterling (Easterling). From her home in Alabama she operated her own company called Imperial Travel LLC. She worked through a “host” travel agency called Avoya Travel (Avoya), which had a head office in Florida. Each travel agent working for this host company had a contract with Avoya and was assigned customers who had contacted Avoya.

[33] Avoya’s independent travel agents, like Easterling, would “claim” travellers who had contacted Avoya without knowing the identity of those travellers. Having “claimed” a contact, Avoya would provide their independent agent with contact information for the traveller and the independent agent would take it from there.

[34] In this fashion Easterling claimed Gushue, was advised of her contact information and began communicating with her.

[35] Easterling said that she began to communicate with Gushue in November or December of 2016. Gushue told Easterling that she, Gushue, was in charge of a large group and that she was handling all of the arrangements for the group. She told Easterling that she, i.e. Gushue, had booked a large group cruise but that she was looking for a better deal, for a better price, a price that was lower than the one she had already booked.

[36] While Easterling could not recall the exact number of people in Gushue’s group Easterling thought that there were about 70 people in the group.

[37] Easterling searched websites and sent Gushue a large number of quotes including the four-day Royal Caribbean cruise that Gushue chose.

[38] Gushue provided Easterling with her credit card number and using that credit card number Easterling paid Royal Caribbean for the cost of the group’s cruise.

[39] While the Royal Caribbean cruise ship was still at the dock on February 13, 2017, Easterling received a number of complaints from individuals who said they were part of Gushue’s group and that they were missing amenities that they had been promised but were not receiving. These complainants wanted Easterling to fix their complaints but Easterling said that she was not responsible for those complaints as the amenities in question were not included in the cruise that was booked.

[40] While Gushue had asked Easterling to assist her in arranging flights to Florida, Easterling refused to get involved in that aspect of the matter as Gushue had not given her enough notice about that issue, (although she did send Gushue some websites to peruse). Easterling told Gushue that she would have to handle that aspect of these vacations on her own.

[41] Easterling said that she never handled money. Avoya received a commission from the cruise line and she received 30% of that commission. Easterling was a novice travel agent at the time she had contact with Gushue and as a result of that experience she has steered away from group bookings. However, a group booking is not an uncommon phenomenon in her experience, although how it is handled varies between travel agents. Some travel agents will communicate directly with each member of the group while others will simply contact one person and leave it to that person to communicate with the rest of the group.

The Position of the Crown

[42] Gushue is guilty as charged on both counts. She acted as a travel agent by selling travel services provided by another person to consumers when she was not registered as a travel agent under the Act.

The Position of the Defence

[43] Gushue did not sell travel services. She bought travel services for a group of people. In any event, as a result of Ontario (Travel Industry Council v. Gray (c.o.b. All Sport Accommodations), [2010] O.J. No. 3150 (C.A.), the word “sells” in the definition of “travel agent” is confined and restricted to individuals who have been or will be paid a commission or fee by a travel service provider.[^7] In light of that binding authority Gushue cannot be found to be a travel agent. In the alternative, and in any event, Gushue has a due diligence defence to the charges.

The Submissions of the Crown[^8]

[44] These are not my findings of fact. I have attempted to condense Mr. Snell’s submissions and to excise repetitive aspects where possible. I shall take the same course when setting out Ms. Lichtman’s submissions.

[45] Even if the purchasers who gave money to the defendant did not believe that Gushue was a travel agent or even if they gave her money without believing that she was conducting a business Gushue is still guilty because their beliefs are immaterial to her guilt.

[46] The only significance to the fact that Gushue did not hand out business cards on which she styled herself as a travel agent, or to the fact that Gushue did not have a business premises, or to the fact that she did not sign documentation as a “travel agent” is that this type of evidence, which may have made the Crown’s proof easier, is missing. While this type of evidence would be relevant if it existed, its lack is not material to whether Gushue is guilty, because there is other evidence to prove her guilt.[^9]

[47] While Gushue did not euphemistically style herself a “travel consultant” and while she avoided using the title “travel agent”, she is guilty of the offences charged because she acted as a travel agent or held herself out as being available to act as a travel agent when she was not registered as a travel agent under the Act.

[48] At paragraph [53] of Travel Industry Council of Ontario v. Euro International Performance Tours Inc., (Euro), [2011] O.J. No. 4420, Quon J.P. asked himself whether the evidence demonstrated that the defendant had acted as a travel agent (by selling travel services), or whether that conclusion could be inferred from the defendant’s con­duct towards the purchasers. If the evidence did not demonstrate an actual selling of travel services then one must go on to ask if the defendant held itself out as being available to do so. That further question must be asked because s.4(1) of the Travel Industry Act prohibits any person from acting as a travel agent or holding herself out as being available to act as a travel agent without being registered as a travel agent under the Act.[^10]

[49] In Euro the travellers contracted with the defendants and paid out substantial sums for them to coordinate, arrange, obtain, and book … air transportation from Halifax, Nova Scotia to New York City from August 1 to August 7, 2009; hotel accommodation in New York City for six nights; tickets for two Broadway shows; ground transportation; subway passes for one week; a dinner cruise in New York City Harbour; dance classes; and a Radio City Music Hall Rockettes experience.

[50] These are travel services, as defined by the Act, and these are the kinds of services that Gushue promised and provided. She promised to arrange and provide travel services. She contracted with her various purchasers to coordinate, arrange, obtain, and book ground transportation from the Legion to the airport and then air transportation to Florida and then a cruise along with shore excursions during the cruise, plus a drink package and meals on an all-inclusive basis, together with all return travel arrangements.

[51] There can be no doubt that Gushue was acting as a travel agent. That can be seen in all of the organizational aspects of the trip that she created and promoted. These organizational aspects include the documentation that she had her purchasers sign. Those organizational aspects include her distribution of emails to her purchasers, her descriptions of shore excursions and her exhortations to book those excursions.[^11] Beyond any doubt Gushue was holding herself out as being available to act as a travel agent by promoting and arranging all of these travel services.

[52] Gushue’s exhortations to book shore excursions through her on a first come first served basis and her attempts to try and convince people who decided to cancel their bookings to reconsider all unequivocally demonstrate that she was acting as a travel agent.

[53] The formality of the documentation that Gushue had her consumers sign distinguishes her actions from an informal group of friends who decide to take a trip together and nominate one or more of their number to do some coordination or organization on behalf of the group.

[54] This is not a case of Gushue’s actions amounting to acting as a travel agent by virtue of the numbers involved. Rather, regardless of the number of consumers involved, Gushue promoted the trips and she produced brochures that advertised the trips. And, while there is no direct evidence that Gushue authored these brochures, much of their contents are identical and these brochures were used by her to promote the sale of these trips, especially at her branch of the Legion.

[55] A further circumstance that supports the finding that Gushue acted as a travel agent and held herself out as available to act as a travel agent is the fact that these brochures parallel and contain the kind of information that a registered travel agent is obliged to provide to consumers by regulation.[^12]

[56] Attached to each brochure was a page titled “Passenger Payment Record & Information Sheet” setting out each passenger’s identifying information and the terms of the contract that Gushue executed with each passenger.[^13] The formality of giving terms distinguishes Gushue’s actions from those that would occur in the setting of an informal group of friends or members of a family who decide to take a trip together and nominate one or more of their number to do some coordination or organization on behalf of the group.

[57] Significantly, Gushue sold the specific travel services identified in her terms for the price that she had set for that sale, as particularized in footnote 13. She drafted this “Passenger Payment Record & Information Sheet” so that her purchasers were obliged to formally provide the following acknowledgement: “By signing below you the passenger acknowledges that you have received your Bahamas Cruise February 12, 2017 information package and agree to the terms in stated information package.” That is to say that the passenger agrees to the terms of a contract for the sale of travel services that the passenger has entered into with Gushue.

[58] Gushue promised to arrange and provide the cruise package and all of its amenities as described in the brochure that she provided to her prospective passengers. She is the travel agent and the passengers that she sold her trips to are the consumers and what she sold are travel services. Everyone made out their cheques or gave their cash or sent their e-transfers to Gushue, not to the Legion and not to the end suppliers of the services. And, she gave out receipts in her name to the people who paid her.

[59] She was promoting and selling the idea of the cruise to people. They heard about the trips and called her and she signed them up. Sometimes at the Legion and in some cases at a local bar.

[60] Gushue promoted the cruise as a fundraiser for the Legion and when people began to cancel, as permitted by their contracts, Gushue tried to convince them not to by urging them to reconsider.[^14] Gushue was promoting this trip because she was selling it. She was actively selling these cruise packages and in doing so she was acting as a travel agent.

[61] The defendant admits that the elements of the cruise packages were “travel services”, (meaning transportation or sleeping accommodation for the use of a traveller, tourist or sightseer or other services combined with that transportation or sleeping accommodation). It is equally clear that the people who bought these packages from Gushue were the “consumers” of travel services provided by another person, which is an element of the Act’s definition of travel agent. These buyers were the ones who would be consuming the travel services. They were the ones actually going on the cruises.

[62] Based upon the documentation provided by Gushue, based upon the way she promoted these trips, based upon the price for them that she set, Gushue was holding herself out as being available to act as a travel agent and she did act as a travel agent. She did what travel agents do, offer travel advice to the people whose passage she has booked. This is clearly seen in Exhibit 4 and in Exhibit 5, which outline the shore excursions that she advised were available on the Bahamas cruise.

[63] Rhetorically, Mr. Snell asked why, if this was just a group of people going together, would booking shore excursions have to be funnelled through Gushue. What is clear is that some people bought these travel services through her and paid her money for them, which is another way in which she committed the offence charged in Count No. 1. She provided travel information through emails to the people who contracted with her and she organized and presented at a general meeting held at the Legion prior to the trip.

[64] As noted above at footnote 8, the Crown’s position is that this judgment need not identify the bright line that separates lawful from unlawful conduct from unlawful conduct in various hypothetical situations that were mooted during submissions. Nonetheless, in the Crown’s submission, one element that distinguishes lawful organizational assistance from Gushue’s offences was her promotion that these trips were designed to generate a surplus for the Legion.

[64.1] The Bahamas trip was promoted by Gushue as a fundraiser for the benefit of the Legion. It was not merely a group of people getting together. The money that was paid to her was not designed to just profit the end supplier of these travel services. Gushue promoted the trips at the Legion, using the good name and the goodwill of that organization. Indeed, some of the witnesses testified that the fact that the Bahamas trip was a fundraiser for the Legion was a “selling” point that contributed to their purchase of the trip.

[65] Nonetheless, Gushue would sell her cruise packages to anyone who was prepared to buy them. Her clientele was not limited to members of the Legion. The fact that some people may have seen Gushue’s promotional material while others heard of the trips by word of mouth does not mean that it was not being sold to members of the public. Gushue was prepared to and did sell to anyone who would pay her.

[66] The bright line that separates a group organizer from a travel agent is that a travel agent sells to consumers travel services provided by another person. That is what Gushue did.

[67] The Defence does not contend that Gushue’s action fell within any of the exceptions permitted by the regulations, which Mr. Snell reviewed to demonstrate that large groups can be encompassed by these exceptions.[^15]

[68] Mr. Snell submitted that these exceptions demonstrate that a travel agent denotes someone engaged in sales, not necessarily in a formal business and not necessarily someone making a profit[^16]. Once again referencing the definition of “travel services” Mr. Snell stressed that that was what Gushue was selling. In drawing my attention to these exemptions Mr. Snell wished to emphasize that if merely being a volunteer for a cultural organization was enough to make one exempt from the Act then these exemptions would not be necessary. The exemptions are necessary because such a volunteer would be “selling” travel services, and would otherwise be obliged to be a registered travel agent.

[69] Significantly, these exemptions do not include arranging flights and the overland vehicle used must remain at the place travelled to. Ultimately, Mr. Snell’s submissions in this area were directed to demonstrating the mischief that the Act was designed to guard against. That mischief is protecting against the prospect of leaving consumers of travel services in the lurch, either stranded or otherwise not provided with the travel services that they had purchased or left without other recourse. The Crown submits that is what occurred in this case. And that, in his submission, is why Gushue’s actions are encompassed by the Act. Her consumers were at the same risk that they would have been if they had dealt with a registered travel agent.

[70] In Mr. Snell’s submission the contract that Gushue had her consumers sign would look no different if she had been a registered travel agent. It would contain the same information and would take the same form of contract. She told her consumers to pay her.

[71] If a point of distinction is required to differentiate Gushue’s actions from any of the hypothetical scenarios outlined in footnote 8, Mr. Snell submitted that the defendant acted as a travel agent, as the middle person that stands between a consumer of travel services and the ultimate provider of those travel services. To demonstrate that, Mr. Snell points to the fact that Gushue deposited the monies that she received from her sale into her own bank account. She was being paid by the people she sold packages to. She then attempted to pay the end suppliers of the travel services. She did not get involved with other American travel agents until she apparently found herself in financial difficulties. But, the fact that she used other American travel agents does not mean that she was not acting as a travel agent.

[72] The fact that a travel agent bound to comply with the Act resorts to another travel agent does not make the first travel agent a mere consumer; especially when Gushue had already committed the elements of the offence. The evidence here was that the defendant had already booked the travel by making a down payment to NCL. In addition, Mr. Snell itemized all of the following acts and actions that Gushue took:

• She invited members and non-members of the Legion to a presentation;

• she used the Legion to promote her services;

• she prepared formal information about the services she was providing;

• she told people she had a product to provide;

• she handled or tried to limit access to the product;[^17]

• she promised the product would be delivered as described;

• she provided representations about what will happen when one uses the product; i.e., its features, options, benefits and exclusions that come with the purchase of the product;

• when a consumer decided to buy the product she took their money;

• she entered into a contract with the consumer that she sold the product to;

• that contract contained a refund policy, which is a commercial term;

• she then took steps to implement the delivery of the product by paying a down payment to NCL; and,

• so far as the Hawaii cruise was concerned, at a minimum, she held herself out as being available to do the same with respect to it.

[73] Given all of the foregoing, Mr. Snell asks rhetorically, once again, how is that not selling? He submitted that following instruction from Rizzo Shoes and from Gray[^18], a court is obliged to give a purposive and remedial interpretation to this Act. He went on to submit that consumers of travel services are subject to two levels of risk. The first is whether their money is properly applied to the services they have contracted to obtain. The second is whether they have recourse if they do not get what they have contracted to obtain.

[74] It was clear to the Crown that the defence relies upon an erroneous interpretation of the Court of Appeal’s judgment in Gray as a basis for resisting conviction. So, Mr. Snell went through all three Gray decisions. I have footnoted some of his submissions in that regard but I do not intend to discuss that case in the body of these reasons until I have reviewed Ms. Lichtman’s submissions.[^19]

The Submissions of the Defence[^20]

[75] What distinguishes the innocent organizer of a travel group from someone acting as a travel agent in contravention of the Act is that a travel agent “sells” to consumers, travel services provided by another person. While the word “sells” is not formally defined in the Act, the concept of selling has been construed by the Court of Appeal in the Gray[^21] decision to very specifically mean acting as an agent for the travel service provider. Acting as the agent for the travel service provider is a major limitation on and the defining aspect of what “sells” means in the definition of travel agent. The defendant did not act as agent for any travel service provider and hence she did not sell travel services provided by another person. Therefore, she did not contravene the Act.

[76] While the Gray judgment does not discuss the line of demarcation between an innocent organizer and a travel agent, the Court of Appeal must be taken to know that there are going to be people who organize trips on behalf of their friends and even, on occasion, on behalf of members of the public previously unknown to the organizer. One such example is found in a destination wedding scenario, where the organizer putting the arrangements together may not know half of the invitees, who are really no different than members of the general public.

[77] Ms. Lichtman, conceded some uncertainty about what it means for a travel agent to sell as a principal. At one point she submitted that ”You can’t just say someone is acting as a travel agent if they are the principal selling the travel service, you also have to look at a person acting on behalf of the service provider …”. Her contention was that, “Whatever this idea of principal means it does not mean that you are acting as an agent for the consumer because that would have been easy to say as opposed to talking about being a principal.” The defence position is that the absence of any discussion in Gray about being an agent for the purchaser necessarily implies that that discussion was omitted intentionally to signal a limitation to the meaning of travel agent, which only denotes being the agent for the travel service provider.

[78] In response to my inquiry about how Gushue’s actions would have been any different if she had been a registered travel agent Ms. Lichtman submitted that, as the two American travel agents testified, they or their parent company would always have some form of contract or agreement with the travel service providers that they used and from whom they would receive some kind of benefit. Gushue did not have any such agreement or contract with either of the cruise lines she dealt with.

[79] Ms. Lichtman contended that the Gray case stands for the proposition that to be bound by the Act, the person alleged to be a travel agent must have a contract with a service provider or must receive some benefit from the service provider, because to be caught by the Act the purported travel agent must be an agent for the travel service provider.

[80] At a minimum, there must be some benefit flowing from the travel service provider to the person said to be a travel agent before that person can be found to be a travel agent bound by the Act and that is what is absent from the Crown’s proof in this proceeding. There is no evidence or indication, no proof of any sort that Gushue was acting as an agent for any travel service provider. While a common proof of agency may be the payment of a commission by the travel service provider to the travel agent or travel agency, it need not be a monetary stipend. But, there has to be some indicia, “something substantial” that shows that you are acting as agent for the travel service provider. That indicia could be anything but it must be present before a person can be found to be a travel agent and therefore bound by the Act.

[81] Ms. Litchman arrives at this submission because of the absence in Gray of any discussion by the Court about a travel agent acting as an agent for the consumers and in her submission that is all that her client did. She acted as agent for the members of the Legion and for their friends, without any benefit to herself and without any evidence having been called that she acted as an agent for any of the travel service providers.

[82] It is this lack of any evidence of her agency on behalf of any of the travel service providers that trumps the Crown’s claim that the defendant was selling travel services provided by another person to consumers.

[83] Ms. Lichtman made the following submissions on the ostensible formality of the documentation that the defendant executed with the people taking the offered cruises. The only inference to be drawn from the formality of the documentation is that the cruises were well-organized. Ultimately, that formality is of no moment given that lack of proof of agency as previously submitted. In any event, this documentation does not mean that the defendant is acting as a travel agent bound by the Act.

[84] To the extent that some of the language mirrors information required by regulation that is no more than a matter of coincidence. Moreover, a reminder about liquid restrictions on flights is mere commonplace information obtainable by a cursory internet search.

[85] Further, the evidence is silent as to the provenance of the pamphlets exhibited, but as the trip organizer they contain information that she shared with the voyagers in her capacity as the trip organizer. As the organizer she needed to impart this information. What the formality of the documentation demonstrates is that she was doing her job as an organizer properly, giving people the information they needed. The defence submits that distributing shore excursion flyers is not a matter of legal significance and merely another example of doing a good job in group organization.

[86] Ms. Lichtman voiced her client’s position as follows: “I have a great idea – I’m going to put on a cruise. Who wants to come? And then after that she goes and tries to make all the bookings.” She was acting as agent for these people – “because she first came to them and said let’s do this and then went to the provider. If she had first gone to the provider and worked out some great deal and then went to the people and said, ‘Hey I have this great deal’, then the argument could be made that she was acting as agent for the provider.”

[87] Many witnesses agreed that the defendant volunteered at the Legion. The organization of these trips was consistent with that history of volunteerism. As one witness described it, the defendant was acting on all their behalves. On that basis, the defendant was acting as agent for the people from the Legion and their friends. She is not acting as agent for the travel service providers. She did not contact any provider first.[^22] This is consistent with her not being the agent for the provider. She was not a seller. A seller has stock or an inventory and offers it for sale; but, that is not what happened here.

[88] The defendant was not selling; she was purchasing on their behalves. The defendant is the exemplar of a good organizer but she was no more than that.

[89] Ms. Lichtman urged that this Act was not designed to extend to the type of organizational coordination that occurred here. The case at bar is merely an example of the kind of centralized organization that is commonplace when a number of people decide to take the same kind of holiday or trip together. Applying the “agent for the travel service provider” criterion solves all of the informal group travel scenarios mooted during submissions. Those kinds of group endeavours using a central organizer are not the mischief this Act was designed to protect against, which is limited to selling by someone who is an agent for a travel service provider.

[90] In the event that the issue of a due diligence defence is reached, Ms. Lichtman submitted that the defendant took all reasonable care to avoid committing the offences on a balance of probabilities. That is so because:

• the defendant never verbally identified herself as a travel agent;

• she never produced written materials in which she identified herself as a travel agent;

• she did not have a business card or a place of business in which she was identified as a travel agent;

• she had no website in which she identified herself as a travel agent; and,

• she never signed any document as a travel agent.

The Crown’s Submissions in Reply

[91] Mr. Snell only replied on the issue of what it means to sell as a principal. He submitted that the answer can be found in the definition of travel agent which means “a person who sells, to consumers, travel services provided by another person”. Principal does not mean the supplier of the travel services or someone working for the supplier of the travel services. End suppliers, for example, airlines and their employees, are not covered by the Act. So, the reference to principal at paragraph [21] of Gray[^23], does not denote a travel service provider.

Discussion and Judgment

[92] The submissions of counsel were expansive, due in part to my questions of them concerning the application of the Act to the several scenarios set out at footnote 8. Despite my interest in counsels’ responses to those scenarios the issue at hand is quite a narrow one. During the course of her submissions Ms. Lichtman conceded that other than the issue of “selling” all of the other elements of the definition of travel agent in the Act had been proved. Hence, the issue before me is the same issue posed at paragraph [15] of Gray:

15 There is no doubt that, in the context of this case, the "consumers" are the sports teams and their members. Nor is there any doubt that the hotels are providing "travel services" to them. The question is whether, as a matter of statutory interpretation, the appellant can be said to be selling those services. (emphasis added)

[93] Perhaps it was this congruity of issue that caused the defence to seize upon its interpretation of Gray. Respectfully, the defence has read Gray far too narrowly and therefore incorrectly. Gray does not hold that before a person can be found to be “selling” to consumers travel services provided by another person, (and therefore meeting the definition of “travel agent”), the seller must be an agent for the travel service provider. On the contrary, paragraph [21] of Gray, (which is quoted at footnote 23), specifically contradicts such an interpretation. This is made patent at paragraph [25] of Gray, where Gouge J.A. ruled: “I therefore conclude that the proper interpretation of “travel agent” in the Act includes a person who sells travel services to consumers as agent for the provider of those services.” (emphasis added) “Includes” is effectively the opposite of being limited to.

[94] Ms. Lichtman urged that the absence in Gray of any discussion of a travel agent acting as agent for the consumer was an intentional omission that signaled a limitation to the ambit of the concept of selling in the definition of travel agent. In her submission, in order to be a travel agent one must sell as an agent for the travel service provider. As just noted, that interpretation was expressly rejected in Gray. The Court in Gray dealt with the issue that was presented on the facts of that case. That the Court did not attempt to list or identify every way in which a travel agent could engage in “selling” is not surprising. The Court was not obliged to grapple with hypotheticals or deal with fact patterns or issues that were not before it. That said, the Court expressly signaled an expansive interpretation and application of the Act as a piece of public welfare legislation.

[95] The question in this case remains. Has the Crown proved to the exclusion of any reasonable doubt that the defendant sold travel services that were provided by another person to consumers? In my view, based on the evidence, the ineluctable answer to that question is: “yes, she did.”

[96] A number of persons who purchased the cruise packages being sold by Gushue testified. I provide the briefest of thumbnail sketches of their evidence next.[^24]

[97] John Hill was a past member of the Legion and had met Gushue there. In August of 2016 he heard that Gushue was putting together a cruise and he approached her to learn about it. She told him it was being organized as a fundraiser for the Legion and that the Legion was going to receive $7,000.00 from it. He and his wife signed up with Gushue. He attended a “meet and greet” that Gushue organized at the Legion where cabin assignments were handed out by her and where Gushue spoke about the amenities and benefits they would receive on the cruise. He only dealt with Gushue and only paid his money to her. He and his wife went on the cruise but they did not get the alcohol package that had been promised. In addition they were only provided with a one-way flight to Florida. Gushue called a meeting while on the cruise that he attended. At that ship-board meeting she told those attending that they did not have a return air flight. Among other things in cross-examination Hill agreed that Gushue was a volunteer coordinating the cruise for the Legion.

[98] Dr. Peter Gleeson heard about the Bahamas cruise from Rick Beckett, a friend who was a Legion member. Beckett sent him the Bahamas cruise brochure. As a result, Gleeson called Gushue on September 20, 2016 to ask if there was space left on the Bahamas cruise and Gushue told him there was. She told him to meet her on September 21, 2016 at the Trail Side Bar. Gushue did not ask him if he was a member of the Legion. They talked about the cruises. He phoned Gushue subsequently to ask about the Hawaiian cruise and she told him there were 80 spots in total on it and she had commitments for 50 of them. He went to meet her at the Legion on the afternoon of their telephone conversation and he reserved and paid for two spots on each of the cruises. He paid in full for two passengers on the Bahamas cruise and paid a down payment on the Hawaiian cruise. After receiving Gushue’s email in which she said the Bahamas cruise had been “compromised” he elected to cancel both cruises but never received any of his money back from Gushue.

[99] Mark Wilkie was a member of the Legion in 2016. He and Gushue were on a Legion committee planning events to celebrate Canada’s 150^th anniversary. He learned of the Bahamas cruise in September of 2016 and spoke to his wife about it and they decided to go on it. He got an application for it and the brochure about it from Gushue. They paid Gushue for the Bahamas cruise in full, ($1,300.00). He heard about a Hawaiian cruise that Gushue was organizing about two months later and got that brochure from her as well. He paid Gushue $5,000.00 for two passages on that cruise for himself and his wife. On January 27, 2017, the day Gushue circulated the email saying that the Bahamas cruise on an NCL ship had been compromised and cancelled, he got a call from Muriel Beckett, Rick Beckett’s wife. She was concerned about the trip, as a result of the email Gushue had circulated saying that the cruise had been “compromised”. After receiving information from Muriel Beckett about inquiries that she had made with NCL, Wilkie spoke to Anna Larity. Wilkie exercised his right of cancellation for both trips in a timely way but never received any refund of any of the money that he had paid to Gushue.

[100] Eva Pearce was not a member of the Legion. She heard from a friend of hers about a cruise that was being offered through the Legion. She met Gushue at the Legion and received the brochure about the Bahamas cruise from Gushue. She paid Gushue $650.00 in installments of cash and by e-transfer. Despite learning from Gushue that the originally planned trip had been “compromised” she elected to go on the trip as revamped by Gushue. She attended the on-board meeting where Gushue said they did not have return flights from Florida. She never received reimbursement from Gushue for the return flight or other expenses that she had been told were included in her original purchase price.

[101] Roxanne Russell had met Gushue prior to buying passage on the Bahamas cruise. She and her husband attended the Legion on September 30, 2016 and booked passages on the Bahamas cruise with Gushue. She paid $900.00 up front and then the final $400.00 subsequently. Gushue told her that the Bahamas trip was a fundraiser for the Legion, as was the Hawaiian trip that she was subsequently told about. Gushue told Russell that she, (Gushue), had booked many cruises prior to this one. Despite that assurance Russell was unsuccessful in her efforts to have Gushue provide confirmation that the cruise had been booked. In the result, Russell cancelled her trips (for her and her husband), but she did not receive any refund of the $1,300.00 that she had paid to Gushue.

[102] Muriel Beckett was a member of the Legion, as was Gushue, in August of 2016. She became aware of the Bahamas cruise and saw the brochure advertising it. Beckett and her husband were interested in the cruise so she called Gushue who told Beckett to meet her at the Trail Side Bar. Gushue told Beckett that the cruise was a fundraiser for the Legion and that she was going to limit the cruise to about 80 participants and that Beckett and her husband were at about 67 on that list. On September 7, 2016 Beckett paid Gushue $1,300.00 for passage for herself and her husband on the Bahamas cruise. In mid-November Beckett learned that Gushue was promoting a Hawaiian cruise and Gushue told Beckett that this cruise was another fundraiser for the Legion. Beckett paid Gushue $300.00 a piece for her and her husband to go on this cruise. In December of 2016 Gushue told Beckett that a representative from NCL was going to give an $8,000.00 cheque to the Legion. In January of 2017, after Gushue’s dissemination of the email stating that the NCL cruise had been “compromised” Beckett called NCL, because she liked that cruise line and wanted to try to rebook on NCL. As a result of what she heard from NCL she was directed by that cruise line to call Anna Larity and did so. Being disturbed by what Larity told her Beckett called Mark Wilkie. She and Wilkie confronted Gushue at the Legion with the information that they had received. Gushue told them that the cruise had been cancelled by NCL as a result of a mix-up over some extra cabins and that was where the confusion lay. Beckett challenged Gushue’s explanation and told Gushue that the bookings had been cancelled by NCL for non-payment. Gushue said, “No, no, no. It was a mix-up over extra cabins and they wouldn’t honour it.” The Becketts elected not to cancel because they would not be eligible for a 100% refund at that late date. Beckett had difficulty getting Gushue to provide her with flight information, which she wanted to give to her daughters.

[103] Carol Cousineau-Foucher (Carol) is a nurse and a travel counsellor. She took the TICO exam in December of 2015 and began working in the travel industry in early 2016. Carol heard about the Bahamas cruise from a friend and nursing co-worker at the long-term care facility where they both worked. Her friend was a member of the Legion. Carol signed up for the cruise in September of 2016 and made her payments to and received receipts from Gushue, through the intermediary of her Legion-member friend, Sue. She attended the December 12, 2016 “meet and greet” meeting that Gushue organized. At this meeting Gushue told her that $50.00 of the $650.00 trip cost was going to the Legion and that NCL would match that amount dollar for dollar.[^25] Carol had paid Gushue $890 for Gushue to book a number of shore excursions on her behalf. These excursions were based on the original itinerary of the NCL cruise described in the Bahamas cruise brochure. When that cruise was cancelled those shore excursions were unavailable to be taken by Carol as the Caribbean Line cruise ship had a different itinerary. Gushue paid Carol a partial refund of $270.00 on the date on February 12, 2017, the day of the one-way flight to Florida. On Monday, January 23, 2017 at 12:07 p.m. Carol emailed Gushue saying that she had just heard that the NCL Sky had been cancelled and that they were supposedly going on another ship. She asked Gushue if that was true and if so that she needed all the details. She continued, “TICO rules apply, different ship all clients must be notified immediately – what happened. Email me back.” At 12:10 p.m. Gushue emailed Carol back saying: “In the process of contacting everyone now. A very disgruntled ex member of legion tried to Sabato get the trip but we saved it. (sic) Everything is still a go. Will be calling you shortly.”

Judgment

[104] Unlike the Liquor Licence Act, the word “sell” is not defined in the Travel Industry Act.[^26] As Gray shows, the concept of selling is to be construed widely, given the clear purpose of the Act: viz. a piece of consumer protection legislation intended to regulate the travel industry in a comprehensive fashion in the interests of the travelling public.[^27]

[105] In R. v. Barrett, [2008] N.J. No. 215, Gorman J. of the Newfoundland and Labrador Provincial Court wrote an extensive exegesis on several issues, including the law of statutory interpretation and the meaning of the word “sell” in the context of the issues in that case.

[106] On the issue of statutory interpretation Gorman J. referenced R. v. Plummer, 2006 38165 (ON CA), [2006] O.J. No. 4530 (C.A.) at paragraphs [11] to [13]. Based upon that judgment and the others cited by Justice Gorman I conclude that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense in harmony with the purpose of the legislation.[^28]

[107] There are many in which sales can be structured. Gray offers merely one example. Moreover, what constitutes a sale may vary depending upon the business under consideration or depending upon a statutory definition or depending upon the purpose of the legislation that requires a court to consider whether a sale has or is occurring[^29].

[108] But, that having been said, using the grammatical and ordinary sense of the word “sell” I have no difficulty in concluding, to the exclusion of any reasonable doubt, that Gushue was selling to consumers travel services supplied by another person. I agree with and accept Mr. Snell’s submissions in that regard.

[109] Gushue promoted the Bahamas cruise and the Hawaiian cruise. She acted, quite simply, as the travel agent for those cruises. People learned of the cruises that she was promoting and selling. People called or contacted her and she met with them and she sold passage on those cruises to them. She signed binding contracts with the individuals that she sold to and took their money. Ms. Lichtman says that her client did not sell to these people; rather, she bought for them. That is a matter of semantics with no substance. Gushue sold these cruise packages as a principal. Having done so she was obliged to buy from a travel service provider the cruise packages that she had sold to her purchasers. That she was unable to do so as contracted for does not negate that she sold travel services to consumers that were to be provided by another person.

[110] These charges are strict liability offences so that convictions must follow unless a defence of due diligence has been proved on the balance of probabilities.

[111] Ms. Lichtman submits that Gushue did not call herself a travel agent and did not hand out business cards identifying herself as a travel agent. In addition, Gushue did not have a business office styled as a travel agency and she did not maintain social media sites on which she advertised herself as a travel agent. Further, she did not sign any documents in which she identified herself as a travel agent. Moreover, the witnesses who testified did not think that Gushue was a travel agent. Accordingly, she submits that the defendant has met the evidentiary burden of demonstrating due diligence. With respect, those submissions are misplaced and not apposite to the burden in question.

[112] What is required is explained by Justice Doherty in R. v. Raham, 2010 ONCA 206, [2010] O.J. No. 1091 (C.A.), at paragraph [47]:

47 A due diligence defence to a strict liability charge amounts to a claim that the defendant took all reasonable care to avoid committing the offence with which he or she is charged. Where the accused contends that he or she operated under a reasonable misapprehension of the relevant facts, the due diligence defence takes the form of a reasonable mistake of fact claim.[^30] As explained in Sault Ste. Marie, at p. 1326:

[T]he doing of the prohibited act prima facie imports the offence, leaving it open to the             accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances.

48 The due diligence defence relates to the doing of the prohibited act with which the defendant is charged and not to the defendant's conduct in a larger sense. The defendant must show he took reasonable steps to avoid committing the offence charged, not that he or she was acting lawfully in a broader sense: see John Swaigen, Regulatory Offences in Canada: Liability & Defences (Toronto: Carswell, 1992), at pp. 98-100. The point is well made in Kurtzman, at para. 37: "The due diligence defence must relate to the commission of the prohibited act, not some broader notion of acting reasonably" (emphasis in original). Just as a due diligence defence is not made out by acting generally in a reasonable way, it is not necessarily lost by virtue of actions surrounding the prohibited act, legal or illegal, unless those actions establish that the defendant, in committing the prohibited act, failed to take all reasonable care.

[113] Accordingly, what the defendant was required to do to demonstrate due diligence on a balance of probabilities was prove that she took all reasonable care to not sell to consumers travel services provided by another person.

[114] “Reasonable care and due diligence do not mean superhuman efforts. They mean a high standard of awareness and decisive, prompt and continuing action.”[^31]

[115] On the evidence adduced, Gushue did nothing that demonstrates that she took any care, let alone all reasonable care, to avoid selling to consumers travel services provided by another. Rather, she actively engaged in carrying out sales that are prohibited by a seller to consumers of travel services provided by another person when without first being registered as a travel agent by the Registrar of the Act.

[115] In the result, I find Karen Robinson, also known as Karen Gushue, guilty of both offences as charged.

Dated at St. Catharines, this 8^th day of February, 2019

J.S. Nadel, (OCJ)

[^1]: The brochure for the Hawaii vacation package implied that it included air fare. The brochure extolling this trip was filed as Exhibit 18. It contained the following departure itinerary: “We will be meeting at the Ridgeway Legion on Saturday February 17^th at 5 am. We will then be heading to Buffalo Airport by prepaid airport limousine service where we will fly to Los Angeles. After landing and collecting our luggage we will then head to the dock to board the Princess Star. We will be returning on the evening of Sunday, March 4^th.”

[^2]: Gushue is facing a charge or charges of fraud over $5000.00 and has elected a preliminary inquiry that is scheduled to take place later in 2019.

[^3]: “Departure: We will be meeting at the Ridgeway Legion on the evening of Sunday, February 12^th at 11:00 p.m. We will then be heading to Niagara Airport by prepaid airport limousine service where we will fly to Fort Lauderdale, Florida. After landing and collecting our luggage we will then head to Miami, Florida, an approximate 45 minute drive. When we arrive in Miami we will then have a chance to unwind a bit and enjoy a relaxing breakfast at a local restaurant at your own expense before boarding at 10 am.”

[^4]: Gushue wrote to the purchasers to say that the cruise that they had purchased had been “compromised” and as a result changes were necessary. As will be detailed in the body of these reasons, that explanation was untrue. In an email attachment sent to purchasers of the Bahamas trip Gushue wrote: “HELLO EVERYONE: Unfortunately, it has recently come to my attention that our Bahamas Cruise has been compromised by an outside party beyond my control and as such was subsequently cancelled by the outside party to sabotage our cruise. …”

[^5]: As noted in footnote 4, Gushue had circulated an email to the purchasers of the Bahamas trip saying that the trip had been compromised and cancelled by a hacker.

[^6]: According to Larity, Gushue had paid this deposit directly to NCL on September 23, 2016.

[^7]: This is the position of the defence notwithstanding its concession that “financial benefit is not a necessary element for selling.”

[^8]: During submissions I asked for assistance with a number of hypothetical scenarios. Those scenarios included (i) one person out of a group of friends being the organizer of a golf holiday that required the making of booking arrangements for the group; (ii) another scenario was a person with an extended family, organizing a family vacation or organizing a family reunion that required the purchase of flights or the booking of hotel rooms; (iii) a third possibility was a destination wedding where someone books a block of rooms at a hotel or negotiates a special rate for the rooms at the destination site for wedding guests; and, (iv) a final example that counsel mooted was a school trip scenario where students are offered the opportunity to go on a significant trip. I asked whether any of these activities contravened the Act since none of the organizers in these circumstances would be registered under the Act. My concern was whether any of those scenarios could, on a principled basis, be distinguished from the Crown’s allegations respecting Gushue. Ultimately, I accepted Mr. Snell’s submission that I am not obliged to find the bright line in these hypotheticals that separates lawful organization from unlawfully acting as a travel agent. My obligation is merely to determine if the Crown has made out its case against the defendant to the exclusion of any reasonable doubt and if it has done so, whether the defence has demonstrated due diligence, on a balance of probability.

[^9]: A lack of evidence can be a basis upon which a reasonable doubt may arise. As Justice Cromwell wrote in R. v. J.M.H., 2011 SCC 45, [2011] S.C.J. No. 45, at paragraph [39]: “… As I explained earlier, the principle set out in Schuldt (and many other cases) is that a reasonable doubt does not need to be based on the evidence; it may arise from an absence of evidence or a simple failure of the evidence to persuade the trier of fact to the requisite level of beyond reasonable doubt.”

[^10]: [2011] O.J. No. 4420: “Were The Defendants Acting Or Holding Themselves Out As Being Available to Act As Travel Agents? 53 The defendants submit that they did not hold themselves out as being a travel agent or orally tell the dance group from Nova Scotia that they were travel agents, nor did any of their documentation or their website expressly state or refer to themselves as travel agents. However, despite the defendants not explicitly telling the dance group they were travel agents, are there any actions or indicia that could be construed from the defendants' conduct towards the dance group or in the circumstances, which shows the defendants were indeed acting or holding themselves out as being available to act as a travel agent?”

[^11]: In Exhibit 4 Gushue, (there styled Robinson), emailed two of her purchasers on December 9, 2016 in the following terms: “Only 66 days to go!! Please find attached a list of available shore excursion for our Bahamas trip. I am strongly advising everyone to book asap as these excursions and private cabanas sell out quickly. So if you are interested please contact me right away to avoid disappointment. I will booking (sic) excursion for everyone on a first come first served basis. If you have any questions please contact me. Thanks Karen.”

[^12]: For example, (and among other regulations), see: O. Reg. 26/05, Amended to O. Reg. 170/16

PART II, REGISTRATION

OBLIGATIONS OF REGISTRANTS, SECTION 34.

Information to be included in certain representations

34. (1) A representation that is in writing and relates to a specific travel service shall include the following information:

35. Deposit requirements.

36. Final payment requirements.

37. The total price of the travel services as set out under subsection 33 (2).

38. Cancellation terms and any cancellation charges.

39. The availability and cost of trip cancellation insurance, and of out-of-province health insurance if applicable.

40. The refund policy, including any penalty provisions.

41. A fair and accurate description of the travel services, including,

i. details of transportation, including the name of the principal carrier, the class of service and all departure and arrival points, and

ii. details of any accommodation.

8. The date or anticipated date of commencement and the anticipated duration of any construction or renovation that is likely to interfere with the use and enjoyment of any accommodation.

9. The period to which the representation applies.

(2) Subsection (1) does not apply to a representation that is displayed on a billboard or bus board or made through any other medium with similar time or space limitations.

O. Reg. 26/05, s. 34, effective July 1, 2005 (O. Gaz. February 19, 2005).

[^13]: The terms of the Bahamas trip were stated to be: “This package is for a 4 Day/Night Bahamas Cruise for the total amount of $650.00 Canadian Dollars. Your trip package includes transportation to and from the airport from Ridgeway, Ontario, your round trip flight tickets, cruise fare and all applicable taxes. The cruise is all inclusive, including food and alcohol.”

[^14]: For example, part of Exhibit 37 is an email exchange with one of the cancelling passengers. Gushue wrote: “…Believe me I completely understand everyone looking twice at things I do too especially after everything that has transpired over the last few months at the legion. That being said, we had an internal executive meeting today regarding the cruise to get to the bottom of things as you know how things change, get exaggerated etc along the way of the grapevine. After our meeting yesterday and executive meeting today people that originally dropped out have now come on board again. I would hate for you to miss out on a great vacation without all the facts. Before making a decision I really think you should talk to the Becketts, John Hill or Bar as I’d really hate for you to miss out and later regret not going.”

[^15]: O. Reg. 26/05, s. 2, Travel Industry Act, 2002, GENERAL, O. Reg. 26/05, Amended to O. Reg. 170/16

PART I, GENERAL, SECTION 2.

Exemptions

2. (1) Persons in the classes listed in subsection (2) who do not otherwise act as travel agents or travel wholesalers are exempt from the Act and this Regulation.

(2) Subsection (1) applies to:

1. A person who, in connection with the business of being an end supplier of accommodation, also provides other local travel services that are purchased from another person.

2. A person (other than a person who operates an airline, cruise line or bus line) who, in connection with the business of being an end supplier of travel services, also provides local travel services that are purchased from another person, but does not accept payment of more than 25 per cent of the cost of the travel services sold to any customer more than 30 days before the travel services are to be provided.

3. A public carrier who sells scheduled transportation.

4. An agent, appointed by a public carrier holding an operating licence under the Public Vehicles Act, who sells bus travel services.

5. A person who sells one-day tours.

6. A person who sells guide services or sightseeing services in Ontario.

7. A person who is employed to teach in an elementary or secondary school, university or college of applied arts and technology and who,

i. arranges one-day tours for the students of that school, university or college as part of the curriculum or arranges other travel services through a registered travel agent as part of the curriculum,

ii. has the approval of the appropriate board, principal or other governing body or official to make the arrangements for the travel services, and

iii. receives no direct or indirect gain or profit from arranging for the travel services other than participating in the travel services.

8. The members of a religious organization, amateur sports team or unincorporated association who provide overland travel services, if the following conditions are satisfied:

i. The travel services are provided only to members of the organization, team or association.

ii. The organization, team or association exists primarily for educational, cultural, religious or athletic purposes and the travel services are provided for those purposes.

iii. Any funds received for the travel services are deposited into a trust account and disbursed to pay the suppliers of the travel services or a travel agent.

iv. The organization, team or association, its members and employees receive no direct or indirect gain or profit from the provision of the travel services other than participating in the travel services.

vi. The vehicle that is used for transportation remains at the destination to ensure that return transportation is available.

v. The travel services do not include a destination located more than 2,000 kilometres from the departure point.

9. A not-for-profit corporation without share capital, operating as a club, that provides overland travel services to members of the club, if the following conditions are satisfied:

i. The travel services are provided only to members of the club.

ii. The corporation exists primarily for educational, cultural, religious or athletic purposes and the travel services are provided for those purposes.

iii. Any funds received for the travel services are deposited into a trust account and disbursed to pay the suppliers of the travel services or a travel agent.

iv. The corporation, its members, officers, directors and employees receive no direct or indirect gain or profit from the provision of the travel services other than participating in the travel services.

v. The travel services do not include a destination located more than 2,000 kilometres from the departure point.

vi. The vehicle that is used for transportation remains at the destination to ensure that return transportation is available.

[^16]: Note, again, that the Crown and the Defence have agreed that “financial benefit is not a necessary element for selling” (sic) when the word “sells” is construed in the definition of travel agent.

[^17]: Mr. Snell pointed to aspects of the exhibits, which demonstrated that when people became disenchanted or dissatisfied and sought information directly from service providers Gushue tried to prevent that from occurring; or, she tried to discredit the information that those passengers had received. In doing so she was attempting to be the sole source and funnel for information. This kind of act is another point of distinction from the hypothetical scenarios where a facilitator is merely trying to assist family or friends, in the Crown’s submission.

[^18]: Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] S.C.J. No. 2; R. v. Gray, [2010] O.J. No. 3150 (C.A.).

[^19]: Mr. Snell submitted that in Gray at first instance, ([2008] O.J. No. 5965) the Justice of the Peace found that the defendant did not have a contract with consumers because that defendant did not receive any consideration from them. Therefore he was not selling to them and therefore he was not guilty of selling travel services without being registered as a travel agent. On appeal to the OCJ ([2009] O.J. No. 6315), Pockele J. found that sufficient consideration flowed to the defendant, albeit not directly from the consumers, to create a contract of sale rather than the mere performance of a gratuitous endeavour and hence the acquittal was reversed. As noted, I will leave my review of the Court of Appeal’s decision until I have outlined Ms. Lichtman’s submissions. That said, I note, once again, that the parties have agreed that “financial benefit is not a necessary element for selling” (sic) when the word “sells” is construed in the definition of travel agent. Despite that agreement, Mr. Snell went on to point out that, (beyond the money that people paid to her), if the Crown had to demonstrate consideration flowing to the defendant to support a finding of selling it could be found in Gushue’s representations that the Bahamas cruise was a fundraiser for the Legion and that the Legion would receive monies, albeit that Gushue’s description of what or how the Legion would benefit varied among the witnesses.

[^20]: As noted earlier, Ms. Lichtman’s submissions have been edited for the sake of concision.

[^21]: Unless noted otherwise, any reference to Gray is to the Court of Appeal judgment.

[^22]: This is a bald submission unsupported by any evidence.

[^23]: "21 In my opinion, to confine such a comprehensive regulatory regime to the sale of travel services by a person acting as a principal and to exclude the sale of such services by a person acting on behalf of the service provider is to interpret the statutory language too narrowly to achieve its intended purpose. Put another way, since the evidence was clear that many travel agents engage in both kinds of sales, a narrow reading of the statutory definition would provide, at best, only a partial regulation of the travel industry. This would fall short of the legislative intention. It would exclude sales of travel services to consumers by persons acting on behalf of the service provider, in the course of which those persons would perform the very activities that the Act seeks to regulate."

[^24]: The testimony of these witnesses was supported by documentary evidence. While that documentary evidence varied from witness to witness it generally included the contract that the witness signed with Gushue and the history of their payments to her. That documentation often included emails or social media communications with her. In many cases that documentation demonstrated the witness’ exercise of the cancellation term provided to them in their contract with Gushue along with a request for the return of the monies that they paid to her. In one case where a witness went on the Bahamas cruise, they documented their out-of-pocket expenses for amenities or travel not provided as contracted for and claimed reimbursement from Gushue.

[^25]: According to Anna Larity, by December 12, 2016 NCL had cancelled all of the reservations that Gushue had made on the NCL ship, the Norwegian Sky. In addition, NCL had forfeited the $10,000.00 deposit that Gushue had paid to NCL.

[^26]: See Ontario (Liquor Control Board) v. Vin De Garde Wine Club, [2015] O.J. No..2225 (SCO) at para. [36]

36 In s. 1(1) of the LLA, "sell" is defined as follows:

• "sell" means to supply for remuneration, directly or indirectly, in any manner by which the cost is recovered from the person supplied, alone or in combination with others, and "sale" has a corresponding meaning.

[^27]: See Gray at paragraphs [18] through [21].

[^28]: In criminal cases if genuine ambiguities remain after applying this purposive approach the court will adopt the interpretation favouring the liberty of the subject.

[^29]: In Barrett Justice Gorman collates some of the significant judicial interpretation that the word “sell” has been subjected to at paragraphs [38] to [41] of his decision:

[38] The word “sell” has been subject to significant judicial interpretation in other statutory contexts. Three examples follow:

(1) The existence of a "sale" is not predicated on the earning of a profit. No authorities to the effect that a sale is predicated on the earning of a profit were cited. In general terms, the key elements of a sale are the transfer of property on the one hand and the payment of some form of consideration on the other. In Blacks Law Dictionary (7th ed.) "sale" is defined as:

1. The transfer of property or title for a price. 2. The agreement by which such a transfer takes place. The four elements are (1) parties competent to contract, (2) mutual assent, (3) a thing capable of being transferred, and (4) a price in money paid or promised.

[see CCH Canadian Ltd. v. Law Society of Upper Canada, 2002 FCA 187, [2002] F.C.J. No. 690 (C.A.)]

(2) …to give up or hand over (something) to another person for money (or something that is reckoned as money)…

[see R. v. People's Wine and Spirit Brokers (1917), 1917 412 (AB CA), 35 D.L.R. 115 (Alta. C.A.)]

(3) In the absence of any restriction of meaning by the Ordinance, the word is to be understood in its popular sense, so as to include taking of orders for future delivery.

[see R. v. Pratt, 1971 1438 (NWT TC), [1972] 5 W.W.R. 52 (N.W.T.T.C.)]

[39] In R. v. Gould, [2003] N.J. No. 7, I had the opportunity to consider the word “sell” in the context of section 45(1)(a) of the Wild Life Regulations, O.C. 96-809, which makes it an offence to "sell" or "traffic" in big game animals. I concluded that based upon the intent of the Legislative Assembly in enacting this regulation, the word “sell” should be defined as follows:

To exchange or deliver for money or its equivalent.

To give up or surrender in exchange for a price or reward: sell one's soul to the devil.

[40] The word “sell” is defined in other legislation. For instance, consider the following:

(1) “sell” includes offer for sale, expose for sale, have in possession for sale or distribute or advertise for sale.

[see section 183 of the Criminal Code of Canada, RSC 1985]

(2) “sell” includes offer for sale, expose for sale, have in possession for sale and distribute, whether for or not the distribution is made for consideration.

[see section 2(1) of the Controlled Drugs and Substances Act, RSC 1985]

[41] In addition, reference can be made to how the word “sell” is defined in various dictionaries. Consider the following examples:

(1) Includes (a) to agree to sell, to offer, keep, expose, transmit, send convey or deliver for sale (b) to exchange or agree to exchange…

[The Dictionary of Canadian Law (3^rd ed.), Carswell, 2004, at page 1180]

(2) includes to “deal in, keep for sale.”

[The Oxford English Dictionary (Oxford University Press, 1961), Volume IX, pages 428 to 429]

[^30]: Gushue does not advance any claim of reasonable mistake of fact.

[^31]: R. v. Courtaulds Fibres Canada, [1992] O.J. No. 1972.