Ontario (Ministry of Public and Business Service Delivery) v. 9764895 Canada Inc., 2024 ONCJ 39

CITATION: Ontario (Ministry of Public and Business Service Delivery) v. 9764895 Canada Inc., 2024 ONCJ 39

DATE: January 23, 2024

IN THE MATTER OF

the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A.

and

Ontario Regulation 17/05.

Between

Ministry of Government and Consumer Services

(now known as Ministry of Public and Business Service Delivery)

prosecutor

and

9764895 Canada Inc. carrying on business as Maple Furniture,

Kulwinder SINGH,

and

Harminder Singh SANDHU

defendants

Ontario Court of Justice

Brampton, Ontario

Quon J.P.

Reasons for Judgment

Ex-parte Trial held: October 10, 2023

Judgment released: January 23, 2024.

Counsel:

Steven Succi, counsel for the Ministry of Public and Business Service Delivery.

9764895 Canada Inc. carrying on business as Maple Furniture, Kulwinder SINGH, and Harminder Singh SANDHU, none of the defendants appeared for the ex-parte trial, nor did anyone appear as counsel or as a legal representative for the defendants.

Charges:

(1) 9764895 Canada Inc. carrying on business as Maple Furniture did fail to deliver to a consumer, a future performance agreement containing the information required by s. 24 of O. Reg. 17/05, contrary to 22 of the Consumer Protection Act, 2002, and thereby committed an offence under s. 116(2) (counts 13 and 17); and

(2) 9764895 Canada Inc. carrying on business as Maple Furniture did engage in an unfair practice by making a false, misleading or deceptive representation to a consumer, contrary to s. 17(1) of the Consumer Protection Act, 2002, and thereby committed an offence under s.116(1)(b)(ii) (counts 14 and 18); and

(3) 9764895 Canada Inc. carrying on business as Maple Furniture failed to provide a refund payment to a consumer within 15 days of being given notice of cancellation of the consumer agreement under s. 79(1) of O. Reg. 17/05, contrary to s. 96(1)(a) of the Consumer Protection Act, 2002, and thereby committed an offence under s. 116(1)(b)(viii) (count 19).

(4) Kulwinder SINGH and Harminder Singh SANDHU being directors or officers of 9764895 Canada Inc. o/a Maple Furniture did fail to prevent 9764895 Canada Inc. carrying on business as Maple Furniture from committing the offence of fail to deliver to a consumer, a future performance agreement containing the information required by s. 24 of O. Reg. 17/05, contrary to s. 22 of the Consumer Protection Act, 2002, and thereby committed an offence under s.116(3) (counts 15 and 20);

(5) Kulwinder SINGH and Harminder Singh SANDHU being directors or officers of 9764895 Canada Inc. o/a Maple Furniture did fail to prevent 9764895 Canada Inc. carrying on business as Maple Furniture from committing the offence of engaging in unfair practice to a consumer, contrary to s. 17(1) of the Consumer Protection Act, 2002, and thereby committed an offence under s.116(3) (counts 16 and 21);

(6) Kulwinder SINGH and Harminder Singh SANDHU being directors or officers of 9764895 Canada Inc. o/a Maple Furniture did fail to prevent 9764895 Canada Inc. carrying on business as Maple Furniture from committing the offence of failed to provide a refund payment to a consumer within 15 days of being given notice of cancellation of the consumer agreement under s. 79(1) of O. Reg. 17/05, contrary to s. 96(1)(a) of the Consumer Protection Act, 2002, and thereby committed an offence under s.116(1)(b)(viii) (count 22);

Cases Considered or Referred To:

Ontario (Ministry of Consumer Services) v. K-Tech Building Systems Inc., [2012] O.J. No. 1764 (Ont. C.J.), per Quon J.P.

Ontario (Ministry of Labour) v. Enbridge Gas Distribution Inc., 2011 ONCA 13 (O.C.A.), per Watt J.A.

Ontario (Ministry of Labour) v. Enbridge Gas Distribution Inc., 2010 ONSC 2013 (Ont. S.C.J.), per Bellamy J.

R. v. Elm Tree Nursing Home Inc., [1987] O.J. No. 491 (QL) (O.C.A.), per Goodman, Cory and Finlayson JJ.A.

Statutes, Regulations and Rules Cited:

Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A., ss. 1, 1(a), 2(1), 2(2), 2(3), 4, 5, 5(1), 14, 14(2), 14(2)(3), 14(2)(8), 14(2)(9), 15, 16, 17(1), 17(2) 22, 26(2), 79(1), 92, 92(4), 92(5), 94, 95, 96, 96(1), 96(1)(a), 96(6), 116(1), 116(1)(b)(ii), 116(1)(b)(viii), 116(2), and 116(3).

Ontario Regulation 17/05 (Consumer Protection Act, 2002), General, ss. 24, 24(2), 24(3), 24(4), 24(5), 24(6), 24(9), 24(10), 24(12), and 79(1).

Exhibits entered:

Exhibit "1" - package of documents that consist of: (1) Federal Corporation Information for federal corporation named 9764895 Canada Inc. that was incorporated on May 24, 2016 (with corporation number 976489-5) that indicates it is an active corporation with a registered office address of 7955 Torbram Road, unit #9, Brampton Ontario L6T 5A2, and with 2 named directors of Harminder Singh Sandhu and Kulwinder Singh (3 pages); (2) Corporate Profile Report and Certificate of Status produced November 29, 2019, of 9764895 Canada Inc., with Ontario Corporation number 3133948, indicating the corporation commenced in Ontario on May 24, 2016, and that on May 24, 2016, Kulwinder Singh was the Director, President, Secretary and Treasurer of the corporation and the registered office of the corporation was 1169 Lorimar Drive, Mississauga, Ontario (2 pages); (3) List of Current Business Names Registered By A Corporation produced on November 29, 2019, which indicates that the business name of “Maple Furniture” was registered on September 27, 2018 to 9764895 Canada Inc. and would expire on September 26, 2023 (1 page); (4) Corporation Document List indicating that the person authorized to file the initial return was Kulwinder Singh and was filed on May 26, 2016 (1 page); (5) List of Expired Business Names Registered by Corporation produced on November 29, 2019 for 9764895 Canada Inc. indicates that there are no expired business names on file (1 page); and (6) Business Names Report produced on November 29, 2019, that indicates that the business name of “Maple Furniture” with business identification number 281026849 is a business name of 9764895 Canada Inc. and has the business address in Ontario of 7955 Torbram Road, Unit #9, Brampton, Ontario L6T 5G9 and the corporation’s registered address is 2000 Clements Road, Pickering Ontario L1W 4A1 and that it was registered on September 27, 2018 and expires on September 26, 2023 (2 pages) [total package of 10 pages].

Exhibit "2" - copy of Invoice No. 3257 from Maple Furniture of 7955 Torbram Road, Brampton, Ontario L6T 5A2 with telephone number: 905-790-1125 and fax number: 905-790-1973 and email address of “info@maplefurniture.ca” and website of “www.maplefurniture.ca”. The invoice indicates that it was issued on May 2, 2019 to Goutham Nagolu for a “7pcs Dining Set for the amount of $1575 with a “5 years manufacture warranty”. The invoice also indicates in writing that “$1375” [which should have been $1200] was paid to Maple Furniture by Debit on 7 May 2019. The invoice also indicates that the Total was $1575, a Deposit of $375, and a with Balance Due of $1200 (one page).

Exhibit "3" - copies of 4 photographs taken by Goutham Nagolu of the dining room table legs and the stainless steel chair-back pull on the back of the dining room chairs that had been delivered to him by the Maple Furniture store on May 13, 2019 (4 pages).

Exhibit "4" - copy of emails that Goutham Nagolu had sent to “info@maplefurniture.ca” from Mon, May 13, 2019 at 5:29 PM to Tue, Jun 25, 2019 at 2:18 PM, which also contained images of the chair and dining room table that was ordered and one of the 6 chairs that had been delivered (6 pages).

Exhibit "5" - A clearer copy of the first page of the document that had been previously entered as Exhibit #2: copy of Invoice No. 3257 from Maple Furniture of 7955 Torbram Road, Brampton, Ontario L6T 5A2 with phone number: 905-790-1125 and fax number: 905-790-1973 and email address of “info@maplefurniture.ca” and website of “www.maplefurniture.ca”. The invoice indicates that it was issued on May 2, 2019, to Goutham Nagolu for a “7pcs Dining Set for the amount of $1575 with a “5 years manufacture warranty”. The invoice also indicates in writing that “$1375” [which should have been $1200] was paid to Maple Furniture by Debit on 7 May 2019. The invoice also indicates that the Total was $1575, a Deposit of $375, and with Balance Due of $1200. On the second page of the document is a photocopy of 3 Customer Copy of debit sales amounts of $1,000, $200, and $375 paid to Maple Furniture, 7955 Torbram Road, Brampton. The $375 debit amount was paid on May 2, 2019 while the $200 and $1000 debits amounts were paid on May 7, 2019 (2 pages).

Exhibit "6" - copy of 3 photographs of the Invoice dated January 1, 2017, that Dahlia White had photographed from Maple Furniture’s copy of her invoice for the bed and bedroom set that had been purchased by Dahlia White on a lay-away plan for a total of $3784 (which included a delivery charge and taxes) and in which White had paid a $200 deposit on January 1, 2017. These photographs of the invoice document also includes handwritten amounts of money and the dates on which Dahlia White had paid those amounts to Maple Furniture on the lay-away plan. The document also indicates that Dahlia White had paid additional amounts of $200 by Debit on 9th June, $200 cash on 5 Sep, $200 by Debit on 29th Nov-17, and a $300 Debit (no date) and that the balance on the lay-away plan after the $1100 of payments White had paid to the Maple Furniture store are deducted is $2684 (3 pages).

Exhibit "7" - copy of email Dahlia White sent to the email address of “info@maplefurniture.ca” on Wednesday, 19 September 2018, 01:05 p.m., in which White mentioned that on 2 occasions the bed was promised to be delivered but was not and that “Randy” called White and said the bed would not be delivered unless White paid another $500 and that “Randy” would not put this agreement in writing. White also requested Maple Furniture assist her in resolving this issue (one page).

Exhibit "8" - copy of email Dahlia White sent to “info@maplefurniture.ca on Monday, 20 January 2020, 02:35 p.m. under the subject heading “Cancellation notice” in which Dahlia White informs the Maple Furniture store that White is cancelling her order at the store at 7955 Torbram Road due to lack of delivery and that White is expecting a refund within five business days. The copy of this email had also been forwarded to Sheldon Pais (MGCS) on January 20, 2020 at 2:37 PM (one page).

1. INTRODUCTION

[1] In order to build the goodwill for a retail business, the business generally needs to keep its customers happy. In order to keep a customer happy, most of us would expect that a retail business that sells furniture would deliver the correct item of furniture that had been ordered by a customer and that when the wrong item had been delivered, that the furniture store would then take back the incorrect item and replace it with the correct piece of furniture. Or that when a customer enters into an agreement to buy a piece of furniture on a lay-away plan based on the customer making payments to the furniture store toward the full price of that item furniture without incurring interest, we would expect that when the customer completes paying the full amount for that item, that the store would fulfill its promise to deliver that item to the customer, as had been agreed upon, and not withhold that item and ask for more money from the customer before delivering that fully-paid-for piece of furniture to the customer. However, if that retail furniture business fails to keep those customers happy by not providing those customers with the goods or services that the customers had paid for, then several consequences are possible. These include the aggrieved customers complaining to the Better Business Bureau, which could then generate negative online reviews for the retail business, or the unhappy costumers could file a complaint with the Ontario Ministry that deals with consumer protection legislation, which could then lead to an investigation of the complaints and possible prosecution under the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A.

[2] In the present case, two unhappy costumers had entered into agreements with a retail furniture business known as “Maple Furniture” located at Unit #9, 7955 Torbram Road in Brampton, Ontario to purchase furniture. Both costumers, after ordering and fully paying for furniture from the Maple Furniture store, did not receive the furniture that they had specifically ordered and paid for from Maple Furniture. As well, the two customers had difficulty in getting Maple Furniture to fulfill its promises and legal obligations and in getting Maple Furniture to even respond to their queries or complaints.

[3] For one costumer, Goutham Nagolu, Maple Furniture did not deliver the chairs with the specific chair-back pull mechanism that the Nagolu had ordered and paid for, but had been provided a different set of chairs with a different chair-back pull mechanism that was of lesser quality and value. In addition, Maple Furniture had delivered a dining room table to that costumer that had one table leg that was shorter than the other table leg by two inches, so that the consumer had to place a piece of Styrofoam-like material under the shorter table leg so the table would not wobble. When Nagolu complained to Maple Furniture about receiving the wrong chairs, Maple Furniture had promised to rectify the problem and replace the chairs. After making that promise to replace the chairs, Maple Furniture did not replace the chairs nor respond further to Nagolu’s telephone calls or emails that had been sent to the email address of “info@maplefurniture“ that had been provided on the agreement document that had been given to Nagolu by the Maple Furniture store and also given verbally to Nagolu by a representative of the store.

[4] For the second costumer, Dahlia White, White had agreed to purchase from Maple Furniture a bed for her son for $700 and a bedroom set for herself for $2800 that was to be treated as two separate lay-away plans in which Maple Furniture had agreed to deliver the $700 bed to White once White had paid the full amount of $700 for the bed, but then Maple Furniture had failed to deliver the bed as it had promised on two occasions to White after White had fully paid off the $700 for the bed for her son. Instead, a representative of Maple Furniture had asked White for more money to be paid toward the $2800 bedroom set on the second lay-away plan before the fully-paid-for $700 bed would be delivered. White then made another $400 worth of payments to Maple Furniture, but a representative of Maple Furniture had refused to deliver the bed until another $500 had been paid by White towards the $2800 bedroom set on the second lay-away plan. When Maple Furniture had refused to deliver the bed again, White emailed Maple Furniture at the email address of “info@maplefurniture“ to inform the store that White would be cancelling her order and requested that Maple Furniture refund the $1100 White had already paid to the store in respect to the two lay-away plans. However, Maple Furniture did not deliver the fully paid for bed to White, nor refund any money back to White.

[5] In addition, Maple Furniture did not respond to either Goutham Nagolu or Dahlia White when each had respectively complained in writing by email to Maple Furniture’s email address of “info@maplefurniture.ca” that had been provided to both of them. Both Nagolu and White then filed separate complaints against the business known as “Maple Furniture” with the Ministry of Government and Consumer Services (now known as Ministry of Public and Business Service Delivery).

[6] After the Ministry of Government and Consumer Services had received the written complaints from both Goutham Nagolu and Dahlia White about their dealings with Maple Furniture, an investigation was begun by the Ministry into the transactions between those two consumers and the business known as “Maple Furniture”. After these two complaints were investigated, the Ministry decided to charge 9764895 Canada Inc. carrying on business as Maple Furniture (“Maple Furniture”) with committing five offences in respect to the two consumers, as well as charging Kulwinder SINGH and Harminder Singh SANDH, as directors of Maple Furniture, with jointly committing five offences in respect to those two consumers, under the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A. The 10 charges in respect to the two consumers, Goutham Nagolu and Dahlia White (counts #13 to #22) were commenced by a Part III information sworn on September 20, 2021 (#06606). The information originally contained 22 counts, but counts #1 to #12 were withdrawn by the prosecution at trial. The 10 charges against Maple Furniture were for “failing to provide a ‘proper future performance agreement’” to the two consumers, “engaging in an unfair practice by making a false, misleading or deceptive representation to a consumer”, and “failing to provide a refund to a consumer”. The directors of Maple Furniture were charged with failing to prevent Maple Furniture from committing those offences. For those 10 counts, the prosecution has met its legal burden in proving beyond a reasonable doubt that Maple Furniture has committed the offences of “failing to provide a ‘proper future performance agreement’ to a consumer” set out in count #13, “engaging in an unfair practice by making a false, misleading or deceptive representation to a consumer” set out in counts #14 and #18, and “failing to provide a refund to a consumer” set out in count #18. For the two directors of Maple Furniture, the prosecution has proven beyond a reasonable doubt that they had respectively committed the offences of “failing to prevent Maple Furniture from failing provide a ‘proper future performance agreement’ to a consumer” set out in count #15, “failing to prevent Maple Furniture from engaging in an unfair practice by making a false, misleading or deceptive representation to a consumer” set out in counts #16 and #21, and “failing to prevent Maple Furniture from failing to provide a refund to a consumer” set out in count #22. The prosecution did not meet its burden in proving Maple Furniture had committed the offence in count #17 of “failing to provide a ‘proper future performance agreement’ to a consumer” nor did it prove that the two directors had respectively committed the offence set out in count #20 of “failing to prevent Maple Furniture from failing provide a ‘proper future performance agreement’ to a consumer”.

[7] Additionally, the three defendants did not appear for their trial that had been scheduled and held on October 10, 2023, so the trial of the 10 charges had been proceeded on an ex-parte trial basis. After the two consumers had testified and after counsel for the Ministry of Public and Business Service Delivery had completed his closing submissions, judgment was reserved and adjourned to February 6, 2024, for judgment to be rendered. These, therefore, are the written reasons for judgment released on January 23, 2024:

2. THE CHARGES

[8] The three defendants have been charged with committing offences under the Consumer Protection Act, 2002 in Information #06606. There were originally 22 counts on that information, but the prosecution had asked for counts #1 to #12 on that information to be withdrawn and that only the remaining counts of #13 to #22 would be proceeded on. The remaining 10 counts (counts #13 to #22) are set out below:

(count #13)

9764895 Canada Inc. carrying on business as Maple Furniture on or about the 2nd day of May, 2019, in the City of Brampton, in the Central West Region and elsewhere in the Province of Ontario, did commit the offence of failing to deliver to Goutham Raj Kumar Nagolu, a consumer, a future performance agreement containing the information required by section 24 of Ontario Regulation 17/05, contrary to 22 of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Schedule A, as amended, and thereby committed an offence contrary to subsection 116(2) of the said Act;

(count #14)

9764895 Canada Inc. carrying on business as Maple Furniture, between the 2nd day of May, 2019, and the 31st day of January, 2020, in the City of Brampton, in the Central West Region and elsewhere in the Province of Ontario, did engage in an unfair practice in relation to Goutham Raj Kumar Nagolu, a consumer, by making a false, misleading or deceptive representation, contrary to s. 17(1) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Schedule A, as amended, and thereby committed an offence under s.116(1)(b)(ii) of the said Act;

(count #15)

Kulwinder SINGH and Harminder Singh SANDHU being officers or directors of 9764895 Canada Inc. carrying on as Maple Furniture, between the 2nd day of May, 2019, and the 31st day of January, 2020, in the City of Brampton, in the Central West Region and elsewhere in the Province of Ontario, did fail to prevent 9764895 Canada Inc. carrying on business as Maple Furniture from committing the offence of fail to deliver to Goutham Raj Kumar Nagolu, a consumer, a future performance agreement containing the information required by section 24 of Ontario Regulation 17/05, contrary to 22 of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Schedule A, as amended, and thereby committed an offence contrary to subsection 116(3) of the said Act;

(count #16)

Kulwinder SINGH and Harminder Singh SANDHU being officers or directors of 9764895 Canada Inc. carrying on as Maple Furniture, between the 2nd day of May, 2019, and the 31st day of January, 2020, in the City of Brampton, in the Central West Region and elsewhere in the Province of Ontario, did fail to prevent 9764895 Canada Inc. carrying on business as Maple Furniture from engaging in an unfair practice in relation to Goutham Raj Kumar Nagolu, a consumer, by making a false, misleading or deceptive representation, contrary to s. 17(1) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Schedule A, as amended, and thereby committed an offence under s.116(3) of the said Act;

(count #17)

9764895 Canada Inc. carrying on business as Maple Furniture between the 1st day of January, 2017 and the 31st day of January, 2020, in the City of Brampton, in the Central West Region and elsewhere in the Province of Ontario, did commit the offence of failing to deliver to Dahlia White, a consumer, a future performance agreement containing the information required by section 24 of Ontario Regulation 17/05, contrary to 22 of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Schedule A, as amended, and thereby committed an offence contrary to subsection 116(2) of the said Act;

(count #18)

9764895 Canada Inc. carrying on business as Maple Furniture, between the 1st day of January, 2017 and the 31st day of January, 2020, in the City of Brampton, in the Central West Region and elsewhere in the Province of Ontario, did engage in an unfair practice in relation to Dahlia White, a consumer, by making a false, misleading or deceptive representation, contrary to s. 17(1) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Schedule A, as amended, and thereby committed an offence under s.116(1)(b)(ii) of the said Act;

(count #19)

9764895 Canada Inc. carrying on business as Maple Furniture, between the 4th day of February, 2020 and the 12th day of August, 2021, in the City of Brampton, in the Central West Region and elsewhere in the Province of Ontario, did commit the offence of fail to refund Dahlia White, a consumer, within fifteen days after the said consumer gave notice of cancellation of a consumer agreement in accordance with the requirements prescribed by subsection 79(1) of Ontario Regulation 17/05 of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Schedule A, as amended, contrary to subsection 96(1)(a) of the said Act, and thereby committed an offence contrary to s.116(1)(b)(viii) of the said Act;

(count #20)

Kulwinder SINGH and Harminder Singh SANDHU being officers or directors of 9764895 Canada Inc. carrying on as Maple Furniture, between the 1st day of January, 2017 and the 31st day of January, 2020, in the City of Brampton, in the Central West Region and elsewhere in the Province of Ontario, did fail to prevent 9764895 Canada Inc. carrying on business as Maple Furniture from committing the offence of fail to deliver to Dahlia White, a consumer, a future performance agreement containing the information required by section 24 of Ontario Regulation 17/05, contrary to 22 of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Schedule A, as amended, and thereby committed an offence contrary to subsection 116(3) of the said Act;

(count #21)

Kulwinder SINGH and Harminder Singh SANDHU being officers or directors of 9764895 Canada Inc. carrying on as Maple Furniture, between the 1st day of January, 2017 and the 31st day of January, 2020, in the City of Brampton, in the Central West Region and elsewhere in the Province of Ontario, did fail to prevent 9764895 Canada Inc. carrying on business as Maple Furniture from engaging in an unfair practice in relation to Dahlia White, a consumer, by making a false, misleading or deceptive representation, contrary to s. 17(1) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Schedule A, as amended, and thereby committed an offence under s.116(3) of the said Act;

(count #22)

Kulwinder SINGH and Harminder Singh SANDHU being officers or directors of 9764895 Canada Inc. carrying on as Maple Furniture, between the 4th day of February, 2020, and the12th day of August, 2021, in the City of Brampton, in the Central West Region and elsewhere in the Province of Ontario, did fail to prevent 9764895 Canada Inc. carrying on business as Maple Furniture from failing to refund Dahlia White, a consumer, within fifteen days after the said consumer gave notice of cancellation of a consumer agreement in accordance with the requirements prescribed by subsection 79(1) of Ontario Regulation 17/05 of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Schedule A, as amended, contrary to subsection 96(1)(a) of the said Act, and thereby committed an offence contrary to s.116(1)(b)(viii) of the said Act;

3. BACKGROUND

(a) Goutham Nagolu’s transaction with Maple Furniture

[9] Goutham Nagolu had observed a dining room set that he was interested in purchasing that was being advertised by the Maple Furniture store on the Facebook Marketplace website. Nagolu and his wife then went to the Maple Furniture store located at Unit #9, 7955 Torbram Road in the City of Brampton to check out the dining room set that he and his wife had been interested in. He and his wife then found the dining room set on display at the store and then agreed to purchase that specific dining room set that they had observed on display at the Maple Furniture store on May 2, 2019. The set consisted of 6 chairs and a dining room table. The chairs on display at the store had a particular chair-back pull mechanism with a lion’s head motif on the back of the chairs. It was this specific chair that had the feature of the lion’s head chair-back pull that had been ordered and fully paid for by Nagolu on May 7, 2019. Nagolu had paid the full amount of $1575 upfront to Maple Furniture for the dining room set. The Maple Furniture store promised to deliver the dining room set on May 9, 2019. Nagolu had initially paid a $375 deposit on May 2, 2019, and then paid the remaining $1200 balance on May 7, 2019, to Maple Furniture for the dining room set that he and his wife had observed on display at the store and then ordered from Maple Furniture. Nagolu also received a “5 year manufacture warranty” from the store which had been written on the invoice document that had been given to Nagolu on May 2, 2019.

[10] However, when the dining room set was finally delivered by Maple Furniture to Nagolu on May 13, 2019, which was 4 days after Maple Furniture had promised delivery, Nagolu had unpacked one of the dining room chairs and noticed that it did not have the copper or brass coloured lion-head chair-back pull, but a plain steel chair-back pull. The dining room chairs were not the ones that Nagolu had observed on display at the store and had specifically ordered and fully paid for. Specifically, the chairs did not come with the lion’s head chair-back pull that Nagolu had observed on the chairs on display at the store. The reason that Nagolu had purchased the dining room set had been because of the lion’s head chair-back pull on the back of the chairs. Nagolu then immediately called the person named “Harry” that Nagolu had been dealing with at the store and informed him about getting the wrong chairs. Nagolu said that Harry had promised to replace the wrong chairs that had been delivered with new chairs. However, Nagolu never did receive the correct chairs from Maple Furniture as had been promised. In addition, Nagolu had to assemble the dining room table himself. One of the table legs for the table was shorter by two inches and uneven compared to the other table leg, so that the assembled table did not sit flat or level on the floor and Nagolu had to place a piece of Styrofoam type of material underneath the short table leg so that the table would not wobble. As Nagolu did not get what he had ordered and paid for from Maple Furniture, Nagolu had attended the store as well as calling the store, but Maple Furniture did not provide Nagolu with the correct chairs or replace the dining room table that had been covered under the “5 year manufacture warranty” that Maple Furniture had given to Nagolu. In addition, Nagolu had sent emails to the email address of “info@maplefurniture.ca”, which Harry from the Maple Furniture store had told Nagolu to send his emails to, if he wanted to complain to the manager of the store. Nagolu in his emails to Maple Furniture had also sent photographs of what had been delivered to him and photographs of what he had observed on display at the store, in addition to informing Maple Furniture that he did not get what he had bargained and paid for, in regard to the short table leg and the incorrect chairs being delivered to him. In addition, the email address of “info@maplefurniture.ca” had also been provided on the Maple Furniture invoice document given to Nagolu on May 2, 2019. However, Nagolu did not receive any reply or response back from Maple Furniture in respect to his telephone calls or emails. Nagolu also complained to the Better Business Bureau, but the Maple Furniture store did not give the Bureau any response to Nagolu’s complaint. Nagolu then filed a complaint with the Ministry of Government and Consumer Services since Maple Furniture did not rectify the issue with the incorrect chairs and the short table leg on the dining room table.

(b) Dahlia White’s transaction with Maple Furniture

[11] Dahlia White had entered the Maple Furniture store located at Unit #9, 7955 Torbram Road in the City of Brampton on January 1, 2017, to look for a bed for her son and ended up entering into an agreement with the Maple Furniture store to buy a bed for her son and a bedroom set for herself on a lay-away plan that required White to make payments toward both items and that when she had paid fully for the bed for her son the store would deliver the bed to White. The bed for her son would cost $700 and the bedroom set for herself would cost $2800. The total amount that White would have to pay to Maple Furniture was $3784, which included a delivery charge and taxes. After White had paid the full amount of $700 on that lay-away plan for the bed for her son, arrangements had been made with Maple Furniture to deliver the bed. White then took the day off from work to wait for the delivery of the bed for her son, but the Maple Furniture store did not deliver the bed as they had promised to White. White then spoke with the person named “Randy” from the Maple Furniture store and White said that Randy had informed White that the bed would not be delivered until White had paid more money on the bedroom set that she had also purchased on the lay-away plan. White then paid another $400 to the Maple Furniture store, but the store still did not deliver the bed for her son. “Randy” then called White and told White that the bed would not be delivered until White had paid another $500 to Maple Furniture. White then sent an email to Maple Furniture to the email address of “info@maplefurniture” to complain about not getting delivery of the $700 bed and “Randy” wanting another $500 before the bed would be delivered. However, Maple Furniture did not respond back to White or resolve the issue with White. White then filed a complaint with the Ministry for Consumer Services and then someone from Maple Furniture had telephoned White and informed White that if White signed a document saying that all issues had been resolved, then the Maple Furniture store would deliver the $700 bed and that she would get a store credit for the additional $400 that White had already paid to the store. White replied to the representative from Maple Furniture that she would not sign the document until after the $700 bed had been first delivered. White also sent an email on January 20, 2020 to the email address of “info@maplefurniture” which was the email address for the Maple Furniture store that was displayed on the invoice document that White had received from the store on January 1, 2017, that she was cancelling her order at the store at 7955 Torbram Road due to lack of delivery and requested a refund of the $1100 that she had paid to the Maple Furniture store. However, White did not receive the bed for her son nor get a refund of the $1100 that White had paid to the Maple Furniture store.

(c) The Ministry of Government and Consumer Services charges the defendants with committing offences under the Consumer Protection Act, 2002, S.O. 2002 on October 1, 2021

[12] After the Ministry of Government and Consumer Services investigated Goutham Nagolu’s and Dahlia White’s complaints about the Maple Furniture store, the Ministry charged 9764895 Canada Inc. carrying on business as Maple Furniture (“Maple Furniture”) with committing five offences in respect to the two consumers and charged Kulwinder SINGH and Harminder Singh SANDH, as directors of 9764895 Canada Inc. carrying on business as Maple Furniture, with jointly committing five offences in respect to the two consumers, under the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A. The 10 charges were commenced by a Part III information sworn on September 20, 2021 (#06606) and are set out in counts #13 to #22.

[13] A summons was then served by registered mail on 9764895 Canada Inc. carrying on business as Maple Furniture at 2000 Clements Road in Pickering, Ontario L1W 4A1 on October 1, 2021, to appear on November 9, 2021, in courtroom B2 at 9:00 a.m. In addition, a summons was served by registered mail on Kulwinder Singh at 73 Sugarcane Ave., Brampton, Ontario L6R 0E6 on October 1, 2021, to appear on November 9, 2021, in courtroom B2 at 9:00 a.m. Furthermore, a summons was served by registered mail on Harminder Singh Sandhu at 2000 Clements Road in Pickering, Ontario L1W 4A1 on October 1, 2021, to appear on November 9, 2021, in courtroom B2 at 9:00 a.m. The defendants did appear in court on the first appearance date of November 9, 2021, but have failed to make any further court appearances not since that date.

(d) Testimony of Goutham Nagolu

[14] Goutham Nagolu testified that he lived in Malton from 2018 until 2021. Nagolu also said that he is familiar with a business named “Maple Furniture” and that he had first come to know of them from the internet, off of Google, when he was online browsing through Facebook on the internet. Nagolu then said that in his browsing, he had found one specific dining room set which consisted of a dining table and six chairs that had been showcased in Facebook Marketplace, that his wife and himself had liked. Nagolu then said that his wife and himself decided to go to the showroom to see how that dining room set had looked and how it would feel.

[15] Nagolu then said that he and his wife went to the Maple Furniture store located at 7955 Torbram Road in Brampton on May 2, 2019, to look for that dining room set. Nagolu then said that when he and his wife walked into the Maple Furniture store and showed someone at the store the picture that Nagolu had seen on Facebook Marketplace, and then asked if Maple Furniture had that particular dining room set on the floor so that Nagolu and his wife can look at it. Nagolu then said that the person from Maple Furniture had told Nagolu that the store had that particular set on display. And then Nagolu said that he and his wife walked onto the first floor from the ground floor and then saw the dining room set on the first floor of that two-floor store. Nagolu then said that he and his wife liked the dining set that they saw on display at the Maple Furniture store, so he and his wife decided to order the set.

[16] Nagolu then explained that the dining room set had consisted of a six-foot table that could be extended by one and a half feet more, and that it was a rustic brown-coloured table. He also said that the set came with six beige-coloured chairs with wooden legs. He also said that he and his wife had liked the chairs because the chairs had a really nice design with a specific logo of a lion’s head on the back of those chairs where the pull-out levers or chair pull-up mechanism was located so that it could be used to drag the chair right and left. Nagolu also said that those particular chairs had really went well with the table, and that is why he and his wife dad had liked those particular chairs. Nagolu then said that he and his wife had decided to place the order for the dining room set with those particular chairs to be delivered. Nagolu also said there that were no other similar type of chairs that had been shown to him.

[17] In addition, Nagolu said that he had ordered the dining room set on May 2, 2019. After inquiring about the process of ordering the dining set, Nagolu said he was told that he had to leave a deposit of a certain amount. Nagolu then said that he paid the Maple Furniture store a deposit of $375 and that when Nagolu had been ready to place the order in full, Nagolu said the person at the Maple Furniture store had told Nagolu that the Maple Furniture store would only accept debit or cash. And because Nagolu did not have enough cash in hand, Nagolu said that he had told the person at the Maple Furniture store that Nagolu would come back. Nagolu also said the person at the Maple Furniture store had told Nagolu that Nagolu had to pay the full amount for the dining room set before the dining room set would be delivered. Nagolu then said that he left the store with the thinking that he would return in a day or two. Nagolu then said that he and his wife had decided to pay the Maple Furniture store the full amount for the dining room set in order to arrange for the delivery of the set. In addition, the person at the Maple Furniture store insisted that Nagolu had to pay the full amount by debit or by cash, especially cash, but Nagolu said that after he had read the Google reviews, Nagolu was a little skeptical of paying in cash because Nagolu would then not have any record of making the payment if Nagolu paid the Maple Furniture store the full amount in cash. Nagolu then said that he had decided to pay the store with a debit card transaction. Nagolu said that after he had paid the Maple Furniture store the initial deposit of $375, Nagolu then walked into the Maple Furniture store 3 or 4 days later and paid the balance of $1200 in full. After he paid the store in full for the dining room set, Nagolu said the person at the store said delivery of the dining room set would be arranged for May 9th, 2019. However, Nagolu said that he had waited on May 9th for the delivery of the set, but the Maple Furniture store people did not show up on May 9th, so Nagolu called the store and the person from the Maple Furniture store said the delivery of the dining room set would be rescheduled for a later date. Nagolu then said the store had delivered the dining room set to his residence 3 or 4 days after May 9th.

[18] When asked if Nagolu had remembered who he had talked to at the Maple Furniture store, Nagolu replied that he did not think that the people that Nagolu had talked to at the store had been using their original names Moreover, Nagolu said that he had been talking with two guys at the store. Nagolu then said that one of the guys had been using the popular name of “Harry”. And for the other guy, Nagolu said that he does not know what that other guy’s name was or that Nagolu does not presently remember that other guy’s name. However, Nagolu said that the guy that Nagolu had dealt with for 99% of the time at the store had been named “Harry”.

[19] In addition, Nagolu had identified the document that had been entered as Exhibit #2 was the invoice document that Nagolu had received from the Maple Furniture store and that the invoice had contained the business name of “Maple Furniture” on it and the store address of 7955 Torbram Road in Brampton.

[20] Nagolu also said that he did visit the website for the Maple Furniture store, but Nagolu said that particular website is not static, nor is it user-friendly. Nagolu then said that it had been just a domain name and that information does not pop up.

[21] Furthermore, Nagolu said that he did use the email address for the Maple Furniture store when Nagolu had issues with the delivery of the dining room set. Nagolu then explained that the first thing that he did had been to call the store to let them know that the items he had received had not been the ones that Nagolu had seen on display at the store nor the furniture that he had specifically ordered. In addition, Nagolu said he had sent to the email address of “info@maplefurniture.ca” for the Maple Furniture store, pictures that he had taken of what the items that had been delivered to him with an explanation of what had been the problem with what the Maple Furniture store had delivered to Nagolu. Furthermore, Nagolu also said that he had emailed the Maple Furniture store multiple times.

[22] When asked about the delivery date on the invoice document entered as Exhibit #2, Nagolu said that he did not think he had written any date there because he had asked the person at the Maple Furniture store to put his correct name on that document and that when Nagolu had asked the Maple Furniture store person to correct the error in respect to Nagolu’s name, the Maple Furniture store person corrected Nagolu’s name. Moreover, Nagolu also said the invoice document had mentioned the dining room set had been a seven-piece dining set that would come with a five-year warranty, which had been a promise from the Maple Furniture store. However, Nagolu said that the Maple Furniture store person did not initially write the statement about the warranty and only after Nagolu insisted that the warranty statement be written on the invoice document did the person write on the invoice that there would be a five-year warranty promise. In addition, Nagolu stated that the delivery date had not been written on the invoice document. Nagolu then said that the person at the Maple Furniture store had said that the dining room set that he had ordered and paid for in full would be delivered on May 9th.

[23] Moreover, Nagolu said that the May 2nd date that is written down on the delivery date line on the invoice document entered as Exhibit #2 had been actually the date that Nagolu had entered into the agreement with the Maple Furniture store to purchase the dining room set and does not believe that the May 2nd date had been the intended delivery date of the dining room set.

[24] Furthermore, Nagolu said that the seven-piece dining set that he had purchased from the Maple Furniture store that consisted of one dining table and six chairs had been for the amount $1575 in total.

[25] For the “5 year manufacture warranty” that had been written on the invoice document that he had received from the Maple Furniture store, Nagolu said that when he had asked the person at the Maple Furniture store if the dining room set came with a warranty, Nagolu said that the person had informed Nagolu that it came with a five-years manufacturing warranty for any defects or any other issues that Nagolu might see.

[26] Also on the invoice document, Nagolu said that “Harry” had written that $1375 [but should have written $1200] had been paid to Maple Furniture by debit on the 7th of May when Nagolu had returned to the store to pay the balance that was due of $1200 for the dining room set, after he had paid a deposit of $375 on May 2nd. Nagolu also said that on the invoice document “Harry” had crossed off the “2nd” of May and then kept it as the “7th”. And, Nagolu then said that he had paid the balance due of $1,200 on the 7th and that the payments consisted of $200 and $1,000 amounts for which Nagolu said he had the debit receipts for all three payments that he had made to the Maple Furniture store for the dining room set (see Exhibit #5).

[27] Nagolu also said that he had paid the amount of $375 to the Maple Furniture store as a deposit on May 2nd, at 2013 hours, so that he could order the dining room set.

[28] In addition, Nagolu said that originally the person at the Maple Furniture store had told him that they would deliver the dining room set on May 9th, 2019, but that they did not deliver the dining room set until on May 13th, 2019, which had been three or four days after the date they had promised.

[29] Nagolu then said that a person from the store had scheduled the delivery for May 13th, and the Maple Furniture store delivered the items at noon or before noon on May 13th. And because of his own curiosity, Nagolu said that he had opened up the dining room set as soon as it was delivered, but immediately noticed that he did not receive the chairs that he had ordered from the Maple Furniture store. Nagolu then explained that he had gotten different chairs and not the ones that he and his wife had ordered. So, Nagolu then said that he called the Maple Furniture store to inform the store that Nagolu had received a different set of chairs than the ones that he had ordered. Nagolu then said that the person from the store told him that the store would rectify the problem with the chairs in a week’s time frame. However, Nagolu said that there had been no communication from anyone from the Maple Furniture store in regard to rectifying the issue with the wrong chairs being delivered to him.

[30] In addition, Nagolu then explained why the six dining room chairs that he had received from the Maple Furniture store were not the chairs that he had observed on display at the store, nor the ones that he had ordered on May 2, 2019 and fully paid for on May 7, 2019. In his explanation, Nagolu said that the chair-back pulls on the chairs on display at the store had a lion’s head design with a copper or brass finish, but the chair-pulls on the chairs that he had received form Maple Furniture were just steel rings with a plain design and did not have that lion’s head designed chair-back pull that he had ordered. Nagolu also said he had taken a photograph of the back of one of the chairs that had been delivered to him, to show why he did not get the chairs that he had ordered and paid for (see Exhibit #3). Nagolu also said that he had provided his photos of the type of chair that had been delivered to him to the investigator from Consumer Services.

[31] Moreover, Nagolu said that the second photograph (in Exhibit #3) that he had taken of the chair that had been delivered to him showed the studs on the chair. However, Nagolu said those studs were also supposed to have been the same color as the lion’ head chair-back pull that Nagolu was supposed to have gotten. Moreover, Nagolu said the studs were also supposed to have a brass or copper look, but the studs on the chairs that had been delivered to him were just steel ones and not the type of studs that were on the chairs that he had ordered.

[32] For the third and fourth photographs that Nagolu had taken in Exhibit #3, Nagolu said that they were of the table leg on the dining room table that had been delivered to him. Nagolu then described that the problem with the table leg was that it was not straight and a little off from the other table leg, so Nagolu said that he had to place thermocol or Styrofoam-type material underneath that shorter table leg so that the table would sit straight on the floor. In addition, Nagolu said that this uneven and shorter table leg would be a manufacturing defect, which was supposed to be covered under his “ 5 year manufacture warranty”.

[33] In addition, Nagolu said that he and his father had been the ones who had assembled the chairs and dining room table after the unassembled dining room set was delivered to him. Nagolu then said that when he opened the box for the chairs, he quickly realized that the chairs was not the right ones, but the table had been similar to what he had ordered. After Nagolu assembled one of the chairs, he took photographs of that chair and sent the photographs to the Maple Furniture store to show that he did not receive the right chairs. Nagolu then said he put the remaining boxes containing the other five chairs aside, believing that he would need to send the chairs back when the Maple Furniture store would deliver him the correct chairs that Nagolu was supposed to have gotten. However, Nagolu said that he did assemble the dining room table.

[34] Furthermore, Nagolu said that he did not observe the model of the chair with the steel studs and steel ring chair-pull that had been delivered to him, being on display at the Maple Furniture store when Nagolu was at the store. To reiterate, Nagolu said that he had received the wrong chairs but the correct table. However, Nagolu said the correct table had been defective with that shorter or uneven table leg that was about 2 to 2 ½ inches shorter than the other table leg, so he had to place that Styrofoam-type material underneath the defective table leg so that the table would sit level.

[35] Nagolu also said that he had called the Maple Furniture store right away on May 13th after he had noticed that he had received the wrong chairs, but before he had decided to assemble the dining room table. Nagolu said that when he called the store, Nagolu informed “Harry” from the store that Nagolu had ordered a different dining room set. Nagolu had also taken photographs of what Nagolu was supposed to get and had also taken photographs of the dining room set that Nagolu had ordered and had been on display at the store when Nagolu had been inside the store. Nagolu also said that he had informed Harry from the Maple Furniture store that Nagolu was supposed to get different dining room chairs and not the ones that had been delivered. Nagolu then said that “Harry” had apologized to him and told Nagolu that Harry would look into it and that the store would get it corrected in the near future and that the store would check with their supplier to see if the supplier had sent the wrong piece. Nagolu said that “Harry” had been okay in his response on Nagolu’s first call about getting the wrong chairs being delivered, but then after that first call to the store, Nagolu said there had been no more responses from “Harry”.

[36] In addition, Nagolu said that on that May 13th telephone conversation with “Harry” from the Maple Furniture store, Nagolu said that “Harry” had confirmed that the chairs would be replaced, even after Nagolu had used the chairs. Nagolu also said that “Harry” had told Nagolu to keep using the chairs that had been delivered until Nagolu got the new chairs. Moreover, Nagolu said “Harry “also told Nagolu that as soon as Nagolu get the new chairs, the Maple Furniture store were going to take back the old chairs.

[37] Furthermore, Nagolu said that he had to send the Maple Furniture store an email on the same day of May 13th after he had telephoned the store and spoke to “Harry” about receiving the wrong chairs, so that Nagolu would have something documented that Nagolu had received the wrong chairs. Nagolu confirmed that the email that he had sent to the Maple Furniture store had been dated May 13th, 2019 at 5.29 p.m. In that email, Nagolu said that he had written that Nagolu was supposed to get chairs with the lion’s head chair-back pulls. Nagolu also said that his email to Maple Furniture also contained photographs that showed the type of chair that he was supposed to have gotten and that these photographs had been ones of the table and the dining room chairs that Nagolu had ordered and that had been on display in the store, and that those photographs had been taken by him while he had been inside the Maple Furniture store when Nagolu had been in the store ordering the dining room set. Furthermore, Nagolu said that the photographs had been of the dining room set on display that he had seen in the store and then ordered. Moreover, Nagolu said that he and his wife had wanted the exact dining room set that had been on display in the store and had been the set that he had ordered and paid for in full. Nagolu also said that he had sent the Maple Furniture store the photograph of the chair that he had assembled and had attached that photograph with his email, along with the photograph he took of the chair on display at the store, so that the two types of chairs could be differentiated.

[38] In addition, Nagolu said that he had sent the email to the email address of “info@maplefurniture.ca” which is the email set out on the invoice document that he had received from the Maple Furniture store. After he had sent the email about getting the wrong chairs, Nagolu said that he did not get an email response from the Maple Furniture store, nor any other response from the store, and that the only telephone conversation he had with someone from the store about getting the wrong chairs had been on May 13th.

[39] Furthermore, Nagolu said that he also sent the Maple Furniture store another email containing photographs that he had taken of the table leg on the dining room table and about the problem with the short or uneven table leg on the dining room table being short by two inches and not sitting even on the floor. Nagolu also said that he had asked the Maple Furniture store to look into the dining table problem and to update Nagolu about the fix and the manufacturer’s warranty. Furthermore, Nagolu said that he had sent this email the next day after the dining room set had been delivered because he did not assemble the table until the following day after the set had been delivered. Nagolu said that because the store had told him that the store wanted to replace the chairs, Nagolu decided to install and assemble the dining room table. Nagolu then said that it was only after he had assembled the table, that Nagolu had realized that the table was not sitting straight, so he had placed white thermocol or Styrofoam under the defective table leg to level it and to make the table sit straight.

[40] In addition, Nagolu said that he had referenced the invoice number on his email that he had sent on May 14th, 2019, to the Maple Furniture store’s email address of “info@maplefurniture.ca”. Also, Nagolu said that he decided to do these emails because as soon as he got delivery of the dining room set, Nagolu went to look at the reviews online about the Maple Furniture store and said that the reviews were bad. At that point, Nagolu said that he had decided to communicate with the Maple Furniture store in emails and in parallel to the telephone call he had made to the store, so that Nagolu would have some documentary evidence that Nagolu had received the wrong chairs when compared to what Nagolu had ordered.

[41] For the email that Nagolu had sent to the Maple Furniture store on May 14th, 2019, Nagolu said that he did not get any response from Maple Furniture. In addition, Nagolu said that he believes that the website or email address is not functional and that there is nothing there. However, he also said that his emails did not bounce back to him, so that his emails must have went through to the Maple Furniture store. However, Nagolu said that he thinks the Maple Furniture store is just ignoring his emails.

[42] Furthermore, Nagolu also said that he had tried to telephone the store for an update about the chairs, but nobody answered, so Nagolu said he sent another email on May 14th to the Maple Furniture store to the email address of “info@maplefurniture.ca” inquiring about an update in respect to the wrong chairs that he had received. Nagolu also said that there had been no indication that the email about getting an update on the wrong chairs had not been received by the Maple Furniture store. Nagolu also said that he did not receive any response to this particular email.

[43] Nagolu also said that he had sent another an email on June 25th, 2019, to the Maple Furniture store because Nagolu, his brother, and his wife had gone to the Maple Furniture store at the end of May or the third week of May, due to not receiving any response from the Maple Furniture store. Nagolu said that “Harry” then became very abusive towards Nagolu’s wife and then “Harry” went at Nagolu’s brother in order to fight Nagolu’s brother. Nagolu then said that he, his brother, and his wife went to the nearest police station to file a complaint, but the police advised Nagolu that it had been a private matter and that Nagolu should take his complaint to the Consumer Protection people. Nagolu said that he then sent that June 25th, 2019 email informing the Maple Furniture store that he was giving the store final notice before he placed a complaint with the Ministry and Consumer Protection people. Nagolu said that he still did not receive any response from the Maple Furniture store in response to that June 25th email.

[44] Furthermore, Nagolu said that he had emailed the Maple Furniture store several times and had called the store on their business telephone number of 905-790-1125 to try to resolve his dining room set issues, but nothing happened on Maple Furniture’s part, so Nagolu decided to file a complaint with the Consumer Services people.

[45] Moreover, Nagolu said that he had telephoned the Maple Furniture store several times and on a couple occasions when a different lady answered the telephone call, the lady would ask for Nagolu’s invoice number, but soon as Nagolu gave the woman his invoice number for the dining room set, the lady would tell Nagolu that she would get back to Nagolu and then the woman would never call back.

[46] Nagolu also said he had contacted the “Better Business Bureau” on May 29th, 2019, with a complaint about the Maple Furniture store, but the Better Business Bureau told Nagolu to file a case with the consumer court and also told Nagolu that the Bureau can only list or mark the Maple Furniture store for being faulty. In addition, the Better Business Bureau informed Nagolu that the Maple Furniture store was not responding to the Bureau about Nagolu’s compliant.

[47] In addition, Nagolu said that no other furniture store or other company has ever contacted him about rectifying the issue with the chairs or the dining room table.

[48] Nagolu also said that the chairs that he had ordered and purchased from the Maple Furniture store were more premium and of different material than the chairs that he had received from the Maple Furniture store.

[49] Furthermore, when asked about the price difference or value between the chairs he had received from the Maple Furniture store and the chairs he had ordered and paid for, Nagolu said that he had asked the person from the Maple Furniture store over the telephone about receiving the steel chair-pull version of the chairs. Nagolu then said that the person from Maple Furniture had informed that Nagolu that Nagolu had received the cheaper version of the dining room set that the store carried and then told Nagolu that the price difference had been $275. Finally, Nagolu said that telephone conversation with the person from the Maple Furniture store had been the last communication that he had with anyone from the Maple Furniture store.

(e) Testimony of Dahlia White

[50] Dahlia White testified that she resides in the City of Brampton and is aware of a company called “Maple Furniture” as she had done business with them sometime in 2017, by entering into an agreement with them to purchase a bedroom set for herself and a bed for her son, who was 17 or 18 years old at that time. White also said she had become aware of Maple Furniture when she had first driven by and saw the Maple Furniture store which was located in Brampton.

[51] White also said she does not recall when she had gone to the furniture store, but she did say that she had gone into the store initially to lay-away a bed for her son. White further said that while she was in the store she had seen a bed that she had liked for her son. In addition, White said that she had also seen a bedroom set that she also liked and thought of getting it for herself. White then said that the person who had attended to her at the time was named “Randy” and that White had told Randy that she would lay-away on the bed for her son and then then later she would lay-away the bedroom set for herself after she had collected the money for her son’s bed. White then said that “Randy” had then informed her that White could do lay-aways together for the bed and the bedroom set, and that when White had paid in full for the bed for her son, then the bed for her son would be delivered and that White would continue to make payments on the lay-away for the bedroom set for herself. White then said that is what she did. White also said that the bed for her son was a wood-framed double bed that had cost $700.

[52] As for the bedroom set that was on the laid-away plan for herself, White said that the set consisted of a bed, a headboard, a dresser, and two side tables that were made of wood with a drawer. White also said that the bedroom set would cost her $2,800. White also confirmed that “Randy” had offered to White that White could put both the bed for her son and the bedroom set for herself on lay-away plan of purchase.

[53] In addition White said that the term “lay-away” had meant to her that she would pay the Maple Furniture store different payments until it had been paid in full, and that she did not have a specific time to make the payment, and that she would just keep making the payments, and that when each item had been fully paid, then the bed for her son and the bedroom set for herself would be delivered separately.

[54] When White was asked for clarification on whether White had been required to pay the total amount for both the bed for her son and the bedroom set for herself in full before White would take delivery of both, White said that the idea had been to pay fully for the bed for her son first, since originally that had been why she had originally gone to the store. However, White said that when she had gone into the store and had been told that she could put both the bed for her son and the bedroom set for herself on lay-away, then her plan had changed because she did not know that she could do them both on lay-away together. So after “Randy” told White that she could do them together on lay-away and also that when the bed for her son had been fully paid for, then White would get the bed for her son delivered and that White would then continue with the lay-away payments for the bedroom set that was for herself. Specifically, White said that the idea had been to make payments towards the $700 for the bed for her son and that once the $700 had been paid in full, then Maple Furniture would deliver the bed for her son.

[55] In authenticating the document, which was the agreement between White and Maple Furniture, White said that “Randy” had given White one copy of the agreement and that Randy had kept one copy for himself. However, White said that she had mislaid her copy of the agreement, so White said that she had gone to the store and said that Randy had given her a copy of his copy of that agreement, which is the same as the copy of the agreement that she originally had obtained from Randy and which is the copy that was now being presented as three photographs to the court as Exhibit #6. White also said that she had taken the three photographs of Randy’s copy of their agreement to buy the bed for her son and the bedroom set for herself on lay-away. In addition, White said that the writing from the top to the bottom in the copy of the agreement, were the record of the payments that White had made to Maple Furniture. Furthermore, White said the agreement had mentioned that the $700 had been for the bed that was for her son. White also said that she recalls making a $200 debit payment to Maple Furniture on June 9th, 2017. White then said that the copy of the agreement indicates that $200 in cash had been paid on the 5th of September, and then the new balance was indicated as $3184, and then the agreement document indicates that a $200 debit had been made on the 29th of November, 2017, and then there is a new balance indicated as $2984, and then the debit payment of $300 had been made without a date being indicated on the document, and then the new balance was indicated as $2684. White then said that there was $300 debit sale receipt attached with the name of Maple Furniture at the top of the receipt.

[56] In addition, White said that she recalls that she had paid a total of $1100 to Maple Furniture, so that the $300 debit payment would have been made after the 29th of November 2017, the date indicated in the invoice document when the last $200 payment had been made. White also confirmed that she had made that $300 payment. Moreover, White said that the last payment of $300 that she had made to Maple Furniture would have been made before September 19th, 2018, since she recalls that Randy had requested that she had to pay $500 more to get the bed when she had attended the store. Furthermore, White confirmed that the balance indicated on the agreement document entered as Exhibit #6 is $2684, which is the balance after the $1100 in payments that she had already made to Maple Furniture Store is deducted.

[57] In addition, White said that the agreement had contained a fine print agreement for the lay-away and that she could see her signature on the agreement.

[58] White also said that Maple Furniture had not delivered the bed for her son and then explained that she had continued making the payments to Maple Furniture for her son’s bed and that when her son’s bed had been fully paid for, White then said that she had made an arrangement with “Randy” for the bed for her son to be delivered. White also said that “Randy” had given her a date for the delivery, but she does not recall the exact date, but that she remembers that she had taken time off from work. White then said that the delivery date for her son’s bed that had been arranged with “Randy” would have been before September of 2018. However, on the date that she had taken time off from work for the delivery of the bed for her son, White said that the bed had not been delivered. She also said that Maple Furniture did not call her about the bed not being delivered, so White said that she had went to the store to inquire what had happened with her son’s bed. White then said that “Randy” had told her that he needed White to pay more money towards the lay-away for the bedroom set that been put on lay-away for her. White then said that she had asked “Randy” for how much more should White have to pay to get delivery of the bed for her son and White said that “Randy” had told her that she would have to pay $200 more. White then said she had paid Maple Furniture the $200 more that had been requested by “Randy”. After paying the $200, White said that Randy and herself had made another date for the delivery of the bed for her son. However, the day before the bed was to be delivered, White said that “Randy” had called her and said that “Randy” was not going to deliver the bed because “Randy” still needed White to put more money down on the lay-away for the $2800 bedroom set. White then asked “Randy” about how much more would she have to pay, and “Randy” had told her that he would get back to her with the answer, but “Randy” did not call her back with the amount. White also recalls that “Randy” had called her requesting more money on a date before September 19th because September 19th had been the day she had attended the store. At the store on September 19th, White said that she had told “Randy” that he did not call her back with the amount she had to pay in order to get delivery of her son’s bed and then asked “Randy” how much more she had to put down on the lay-away for the $2800 bedroom set and “Randy” responded that White had to pay $500 more. White then told “Randy” that she would put $500 more on the lay-away for the $2800 bedroom set, but that she would need a written agreement because “Randy” had broken his promises before that he would deliver the bed for her son. However, “Randy” told White that he would not be able to do a written agreement with White. White then said that she had told “Randy” that she did not trust him anymore and that she would not give “Randy” any more money, and that “Randy” had already taken over $700 from her, but would not deliver the bed for her son. White then told “Randy” that she wanted to speak with the manager of the store and that “Randy” had then given her an email address in order to speak with the manager. White then said she had sent a complaint to that email address which she recalled had been “Maple something”.

[59] After White had been shown a document (entered as Exhibit #7), White said the document was the email that she had sent to the Maple Furniture store to complain about what had happened with “Randy” and that “Randy” did not deliver the bed for her son, and the issue that she had been having with “Randy”. White said that she had been hoping that the manager could resolve the issue about not delivering the bed that she had bought for her son. White then said that the email document had indicated that she had sent the email to Maple Furniture on Wednesday, September 19th, 2018 at 1:05 p.m. to “info@maplefurniture.ca”, which was the email address that “Randy” had provided to White.

[60] White then said that her email had indicated that she had started a lay-away plan for a bed and a bedroom set at the store and that she would get the bed first, then the bedroom set next, and that on two occasions there had been plans for delivery of the bed but the bed had not been delivered. And White had also indicated that because “Randy” had asked for $500 more to be paid on the lay-away for the $2800 bedroom set and that she had requested a written agreement from “Randy” for delivery of the bed if she paid the $500, but that “Randy” had refused to give her a written agreement. And White further wrote that after those two occasions in which “Randy” had promised to deliver the bed, but did not deliver the bed, White no longer trusted “Randy” anymore and that White would not put any more money down on the lay-away plan for the $2800 bedroom set, so that White was asking Maple Furniture for help to resolve this issue.

[61] White also confirmed that “Randy” had represented to White that sending an email to “info@maplefurniture.ca” had been how White was supposed to get in touch with the management of Maple Furniture. However, White said that she did not receive any response by email from the manager of Maple Furniture, but that when she complained to Consumer Services, White said that somebody from the store had called her and told White that they were going to deliver the bed, but before the bed would be delivered White would have to sign a paper that all the issues with Maple Furniture had been resolved. White then said that she had told the male caller from Maple Furniture that they had already received $1,100 from White and that the bed for her son had cost only $700, so she had asked what would happen with the rest of the money that she had already paid to Maple Furniture. White said that the male caller then informed her that Maple Furniture would give her a store credit for the other $400. White then said she told the male caller that she did not want to do business with Maple Furniture anymore and that they had wanted her to sign this paper that all the issues were resolved before the bed had been delivered, so White said that she would not sign the paper until the bed had been first delivered. White then said that White had been unable to resolve anything with Maple Furniture. White also said that since she had contacted Consumer Services in early 2019, the telephone call from the male person from Maple Furniture would have been made in late 2019, in December of 2019 or in early 2020.

[62] White then said that after that telephone call from the man from Maple Furniture, she did not have any further communication from Maple Furniture.

[63] However, after being shown another document (Exhibit #8), White said the contents of that document is an email that White had sent to Maple Furniture on January 20, 2020, under the subject line that stated “Cancellation” and which also informed Maple Furniture that White was cancelling her order for the bed and the bedroom set and that she had wanted a refund of the money that she had already paid them. In addition, White said that her email to Maple Furniture had been forwarded to Sheldon Pais, who White said works with Consumer Services and had formed part of the written complaint that she had filed with Consumer Services. White also said that she had been told to send all her documents to Consumer Services in respect to her transaction with Maple Furniture.

[64] White then said that she now remembers that after the January 20, 2020 email had been sent to Maple Furniture, she then received that telephone call from the man from Maple Furniture, who had wanted White to sign the document that would state that the issues White had with Maple Furniture had been resolved. In addition, White said that the telephone call had been made by that male person after that January 20, 2020 email White had sent to Maple Furniture and that White also did not believe that the man had identified himself to her during that telephone conversation. Furthermore, White said that she remembers that there had been a little riff with that male caller on the telephone because they were not able to come to an agreement with her complaint about not getting her bed delivered by Maple Furniture and the caller wanting White to sign this document before Maple Furniture would deliver the bed to her. Furthermore, White also said that she did not receive any refund of the $1100 from Maple Furniture after she had sent Maple Furniture that January 20, 2020 email cancelling her order and requesting a refund of the $1100 that White had paid to Maple Furniture, nor did White receive any further response from Maple Furniture in respect to her notice of cancellation and her request for a refund. And, White also said that she did not receive delivery of either the bed for her son or the bedroom set that she had ordered for herself from Maple Furniture.

(f) The two witnesses gave credible testimony

[65] Both witnesses who testified at trial, Goutham Nagolu and Dahlia White, were credible witnesses. Neither gave exaggerated narratives of their interaction or conversations with representatives from the Maple Furniture store. Moreover, both of their accounts of their dealings with the Maple Furniture store were logical, uncontradicted, consistent, and plausible, and were supported by the documentary and photographic evidence.

(g) The corporate defendant

[66] The corporate defendant, 9764895 Canada Inc. carrying on business as Maple Furniture, is a retail company that sells furniture to the public. The retail premises where furniture is sold to the public is located at Unit #9, 7955 Torbram Road, Brampton, Ontario. Its head office is located at 2000 Clements Road in Pickering, Ontario.

[67] In addition, the corporate defendant is a federally-incorporated company (Exhibit #1) and has been registered with Ontario’s Ministry of Government Services as Ontario Corporation Number 3133948 to operate in the Province of Ontario (Exhibit #1) commencing on May 24, 2016. It was incorporated under the Canada Business Corporations Act on May 24, 2016. The corporate defendant had also registered the business name of “Maple Furniture” in Ontario as of September 27, 2018 (Exhibit #1). The corporate defendant’s head office is located at 2000 Clements Road, Pickering, Ontario (Exhibit #1). Its business under the business name of “Maple Furniture” involves principally the sale of furniture to the public at its retail premise located at Unit #9, 7955 Torbram Road, Brampton Ontario.

(h) There are two directors listed for 9764895 Canada Inc. carrying on business as Maple Furniture

[68] The other two defendants in this proceeding, Kulwinder SINGH and Harminder Singh SANDHU, are the two directors of 9764895 Canada Inc. carrying on business as Maple Furniture. Kulwinder Singh has been the director of the corporate defendant since May 24, 2016, the date of incorporation of 9764895 Canada Inc. as indicated by the Ontario Corporation Profile Report contained in Exhibit #1. Both Kulwinder SINGH and Harminder Singh SANDHU are listed as the two directors of 9764895 Canada Inc. in the document entitled “Federal Corporation Information” contained in Exhibit #1.

(i) Maple Furniture’s email address and telephone number

[69] The email address that is provided to customers of the store to contact the Maple Furniture store located at Unit #9, 7955 Torbram Road, Brampton Ontario, was set out on the invoice documents, at the top of the documents, provided by Maple Furniture to the two consumers, Goutham Nagolu and Dahlia White (Exhibits #2, #5 and #6). Both invoice documents also contained the logo for Maple Furniture and indicated that the email address for the business was “info@maplefurniture.ca”. This is the email address that Goutham Nagolu and Dahlia White, who are the complainants in the present prosecution by the Ministry of Government and Consumer Services (now known as Ministry of Public and Business Service Delivery), had used to send emails to Maple Furniture. Both Goutham Nagolu and Dahlia White had sent emails to the Maple Furniture email address, but both stated that Maple Furniture did not respond to their emails. As well, Goutham Nagolu and Dahlia White both indicated that the emails that both had sent to the Maple Furniture email address did not bounce back nor had there been an indication that their emails were undelivered.

[70] The telephone number on the invoice documents indicated that Maple Furniture’s telephone number was (905) 790-1125.

4. ANALYSIS

(A) Has The Prosecution Proven Beyond A Reasonable Doubt That The Defendants Have Respectively Committed The Actus Reus Of The Offences Set Out In Counts #13 To #22?

[71] The 10 counts (counts #13 to #22) contain offences that are strict liability offences in which the prosecution is only legally required to prove that the defendants have committed the actus reus of each offence beyond a reasonable doubt and is not legally required to prove any mens rea element for the 10 offences. And, if the prosecution fulfills its burden in proving that the defendants have committed the actus reus for each offence beyond a reasonable doubt, then the legal burden shifts to the defendants to prove the defence of due diligence on a balance of probabilities for each of the 10 offences in order not to be convicted.

(1) Does the Consumer Protection Act, 2002 apply to the transactions between Maple Furniture and the two complainants?

[72] Section 2(1) of the Consumer Protection Act, 2002 states that subject to the exemptions listed in s. 2(2) and s. 2(3), the Consumer Protection Act, 2002 applies to all consumer transactions where the consumer or the person engaging in the transaction with the consumer is located in Ontario when the transaction takes place [emphasis is mine below]:

Application

2(1) Subject to this section, this Act applies in respect of all consumer transactions if the consumer or the person engaging in the transaction with the consumer is located in Ontario when the transaction takes place.

(a) Are the respective transactions between Maple Furniture and the two consumers a “consumer transaction” within the meaning of the Consumer Protection Act, 2002?

[73] A “consumer transaction” is defined in s. 1 of the Consumer Protection Act, 2002 and means any act or instance of conducting business or other dealings with a consumer, which also includes a consumer agreement:

“consumer transaction” means any act or instance of conducting business or other dealings with a consumer, including a consumer agreement; (“opération de consommation”)

[74] Moreover, a “consumer agreement” is also defined in s. 1(a) of the Consumer Protection Act, 2002 and means an agreement between a supplier and a consumer in which the supplier agrees to supply goods or services for payment [emphasis is mine below]:

“consumer agreement” means an agreement between a supplier and a consumer in which,

(a) the supplier agrees to supply goods or services for payment, or

(b) the supplier agrees to provide rewards points to the consumer, on the supplier’s own behalf or on behalf of another supplier, when the consumer purchases goods or services or otherwise acts in a manner specified in the agreement; (“convention de consommation”)

[75] Furthermore, a “consumer” is also defined in s. 1 and means an individual acting for personal, family or household purposes and does not included a person who is acting for business purposes:

“consumer” means an individual acting for personal, family or household purposes and does not include a person who is acting for business purposes; (“consommateur”)

[76] As well, a “supplier” is also defined in s. 1 and means a person who is in the business of selling, leasing or trading in goods or services or is otherwise in the business of supplying goods or services:

“supplier” means a person who is in the business of selling, leasing or trading in goods or services or is otherwise in the business of supplying goods or services, and includes an agent of the supplier and a person who holds themself out to be a supplier or an agent of the supplier; (“fournisseur”)

[77] Ergo, in order to be governed by the Consumer Protection Act, 2002, a supplier must be involved in selling or supplying “goods” or “services” to a consumer where one of them is located in Ontario when the transaction takes place.

(i) Maple Furniture is a “supplier” for the purposes of the Consumer Protection Act, 2002

[78] Based on the uncontradicted and credible testimony of both Goutham Nagolu and Dahlia White, the corporate defendant, 9764895 Canada Inc. carrying on business as Maple Furniture, is a “supplier” as defined under s. 1 of the Consumer Protection Act, 2002. Both Nagolu and White had testified that they had entered into written agreements (see Exhibits #2 and #5 for Nagolu and Exhibit #6 for White) with the business known as “Maple Furniture” at the furniture store located at 7955 Torbram Road, in the City of Brampton, which is in the Province of Ontario, to purchase “goods”, namely furniture, from that retail business, and For Maple Furniture to “deliver the purchased furniture” which is a service. Accordingly, Maple Furniture is a “supplier” within the meaning of the Consumer Protection Act, 2002.

[79] Moreover, for the purposes of the Consumer Protection Act, 2002, the furniture sold by Maple Furniture is a “good” as defined under s. 1 of that Act:

“goods” means any type of property; (“marchandises”)

[80] In addition, for the purposes of the Consumer Protection Act, 2002, the delivery of the furniture purchased by a consumer to a consumer’s residence would meet the definition of supplying “services” as defined under s. 1 of that Act:

“services” means anything other than goods, including any service, right, entitlement or benefit; (“services”)

(ii) Goutham Nagolu and Dahlia White are “consumers” within the meaning of the Consumer Protection Act, 2002

[81] In respect to the 10 charges that the three defendants had been arraigned on, there are two consumers involved in separate transactions with the business named “Maple Furniture”. The two consumers who testified at trial were Goutham Nagolu and Dahlia White. Both Goutham Nagolu and Dahlia White had testified that they had entered into agreements with the business known as “Maple Furniture” to purchase furniture from Maple Furniture in which Goutham Nagolu and Dahlia White, both have said that they had paid money to Maple Furniture for their respective items of furniture. Furthermore, there is no evidence that Nagolu’s and White’s transactions with Maple Furniture were for “business purposes”. On the other hand, the testimony from both Nagolu and White indicated that the purchase of the furniture from Maple Furniture had been for “personal, family or household purposes”. Accordingly, both Nagolu and White are “consumers”, as defined under s. 1 of the Consumer Protection Act, 2002.

[82] For counts #13 to #16 in this proceeding, the consumer was Goutham Nagolu; while for counts #17 to #22, the consumer was Dahlia White.

(iii) The two consumers had entered into “consumer agreements” with Maple Furniture

[83] The transactions between Maple Furniture and the two consumers, Goutham Nagolu and Dahlia White, respectively, were “consumer agreements” as defined under s. 1(a) of the Consumer Protection Act, 2002:

“consumer agreement” means an agreement between a supplier and a consumer in which,

(a) the supplier agrees to supply goods or services for payment, or …

[84] Both Nagolu and White had testified that they had entered into an agreement with Maple Furniture in which Maple Furniture had agreed to supply a “good”, namely furniture, for payment by Nagolu and White, respectively, and to also deliver the furniture to their respective residences which are “services” within the meaning of the Consumer Protection Act, 2002. Moreover, both Nagolu and White had made payments to Maple Furniture for furniture to be supplied and delivered to them by Maple Furniture. Ergo, the respective transactions between Maple Furniture and Nagolu and White which is set out the invoice documents found in Exhibits #2 and #5 for Nagolu and Exhibit #6 for White are “consumer agreements” as defined under s. 1 of the Consumer Protection Act, 2002, since those documents are respectively agreements between a supplier and a consumer in which the Maple Furniture, the supplier, agrees to supply goods or services for payment to Nagolu and White.

[85] Specifically, for the consumer Goutham Nagolu, Nagolu had testified that he had entered into a consumer agreement on May 2, 2019, with the business named Maple Furniture, to purchase a dining room set for $1575 (see written agreement in Exhibit #2 and Exhibit #5). Nagolu also testified that he had fully paid the amount of $1575 to the business named as “Maple Furniture” on May 7, 2019, as confirmed by the three debit receipts that Nagolu had received from Maple Furniture as indicated in Exhibit #5.

[86] And, for the second consumer, Dahlia White, White had testified that she had entered into a consumer agreement with the business named Maple Furniture on January 1, 2017, to purchase a bed for her son for $700 and a bedroom set for herself for $2800 on distinct lay-away plans (see written agreement in Exhibit #6). White also testified that she had made payments totaling $1100 to Maple Furniture, which includes the deposit of $200 that she had paid to Maple Furniture on January 1, 2017.

[87] Ergo, as both Goutham Nagolu and Dahlia White had entered into respective consumer agreements with Maple Furniture to purchase furniture, which is a “good”, from Maple Furniture’s retail furniture store located at 7955 Torbram Road, in the City of Brampton, and which is located in the Province of Ontario. In addition, both Nagolu and White had also paid money to Maple Furniture for Maple Furniture to supply Nagolu and White with goods and services. The “service” purchased by both Nagolu and White involved Maple Furniture delivering the purchased furniture to the respective residences of Nagolu and White. Ergo, since both Maple Furniture and Nagolu and White were located in Ontario when the transaction between them had respectively occurred for the sale or supply of goods and services, then the Consumer Protection Act, 2002 applies to both Nagolu’s and White’s transactions with Maple Furniture.

(b) Are the respective transactions between Maple Furniture and the two consumers exempted under ss. 2(2) and 2(3) of the Consumer Protection Act, 2002?

[88] Furthermore, certain situations or transactions are specifically exempted from the purview of the Consumer Protection Act, 2002 and those situations are expressly stated in ss. 2(2) and 2(3). These exempted situations include such consumer transactions that are regulated under the “Securities Act”; that are professional services regulated under a statute of Ontario; that are consumer transactions for the purchase, sale, or lease of real property, unless they are related to time share agreements; that are consumer transactions regulated under the “Residential Tenancies Act, 2006”; or that are consumer transactions related to the supply of a public utility [emphasis is mine below]:

Exceptions

2(2) This Act does not apply in respect of,

(a) consumer transactions regulated under the Securities Act;

(b) financial services related to investment products or income securities;

(c) financial products or services regulated under the Insurance Act, the Credit Unions and Caisses Populaires Act, 1994, the Loan and Trust Corporations Act or the Mortgage Brokerages, Lenders and Administrators Act, 2006;

(d) consumer transactions regulated under the Commodity Futures Act;

(e) prescribed professional services that are regulated under a statute of Ontario;

(f) consumer transactions for the purchase, sale or lease of real property, except transactions with respect to time share agreements as defined in section 20; and

(g) consumer transactions regulated under the Residential Tenancies Act, 2006.

Same

2(3) This Act does not apply to the supply of a public utility or to any charge for the transmission, distribution or storage of gas as defined in the Ontario Energy Board Act, 1998 if such charge has been approved by the Ontario Energy Board.

Anti-avoidance

3. In determining whether this Act applies to an entity or transaction, a court or other tribunal shall consider the real substance of the entity or transaction and in so doing may disregard the outward form.

Consumer agreements

4. A consumer agreement that meets the criteria of more than one type of agreement to which this Act applies shall comply with the provisions of this Act and of the regulations that apply to each type of agreement for which it meets the criteria, except where the application of the provisions is excluded by the regulations.

[89] The evidence adduced at trial shows that neither of the transaction between Maple Furniture and Goutham Nagolu and the transaction between Maple Furniture and Dahlia White is exempted under ss. 2(2) or 2(3) of the Consumer Protection Act, 2002.

(c) The consumer agreements between Maple Furniture and the Two Consumers are “future performance agreements”

[90] A “future performance agreement” is defined under s. 1 of the Consumer Protection Act, 2002 and means a consumer agreement in respect of which delivery, performance or payment in full is not made when the parties enter the agreement:

“future performance agreement” means a consumer agreement in respect of which delivery, performance or payment in full is not made when the parties enter the agreement; (“convention à exécution différée”)

[91] For Goutham Nagolu, Nagolu and Maple Furniture had entered into a consumer agreement to purchase a dining room set on May 2, 2019 at the Maple Furniture store located at 7955 Torbram Road, in the City of Brampton (see Exhibits #2 and #5). Nagolu did not receive delivery of the dining room set when Nagolu had entered into that consumer agreement on May 2, 2019. Nagolu made full payment of the $1575 for the dining room set on May 7, 2019, when delivery of the dining room set had been scheduled initially for May 9, 2019. However, Maple Furniture did not deliver a dining room set to Nagolu until May 13, 2019. As such, the May 2, 2019 consumer agreement between Goutham Nagolu and Maple Furniture is a “future performance agreement” as defined under s. 1, since delivery, performance or payment in full had not made when Nagolu and Maple Furniture had entered into the consumer agreement on May 2, 2019.

[92] And for Dahlia White, White and Maple Furniture had entered into a consumer agreement to purchase a bed for her son for $700 and a bedroom set for herself for $2800 on distinctive lay-away plans on January 1, 2017, at the Maple Furniture store located at 7955 Torbram Road, in the City of Brampton (see Exhibit #6). White did not receive delivery of the bed or bedroom set when White had entered into that consumer agreement on January 1, 2017. White had made payments totaling $1100 to Maple Furniture for the $700 bed for her son and the $2800 bedroom set for herself during the year 2017. After White had fully paid the $700 for the bed for her son, Maple Furniture had scheduled a delivery of the bed to White. However, the $700 bed was not delivered because Maple Furniture had required White to make additional payments to Maple Furniture for the $2800 bedroom set on the other lay-away plan. Ergo, the January 1, 2017, consumer agreement between Dahlia White and Maple Furniture is a “future performance agreement” as defined under s. 1, since delivery, performance or payment in full had not made when Nagolu and Maple Furniture had entered into the consumer agreement on January 1, 2017.

(d) The Two Consumers did not receive what they had bargained for from the business known as “Maple Furniture”

[93] For the consumer Goutham Nagolu, Nagolu had testified that he did not receive the specific dining room chairs with the lion’s head chair-back pull that he had ordered and paid $1575 in full. In addition, Nagolu said that the dining room table that had been delivered to Nagolu came with one of the two table legs being shorter than the other table leg by about 2 inches. Hence, Nagolu did not get from Maple Furniture what Nagolu had ordered from Maple Furniture and paid for in full and even though Maple Furniture had promised to replace the incorrect chairs with new ones, Maple Furniture did not deliver the correct chairs to Nagolu nor replace the defective dining room table that had been covered under the “5 year manufacture warranty” that Maple Furniture had given to Nagolu and had expressly stated in the May 2, 2019 consumer agreement set out in Exhibits #2 and #5. Hence, Maple Furniture’s actions are analogous to a classic “bait and switch” fraudulent or deceptive tactic used by sellers of goods who show a photograph of a desired item on a website or catalogue or who display the desired item in a showroom to get a sale, and then ship to the buyer a cheaper copy of the item that had been on display or as shown in a picture on a website or catalogue.

[94] For the second consumer Dahlia White, White had testified that she had agreed to purchase a bed for her son for $700 and a bedroom set for herself for $2850 on distinct lay-away plans from Maple Furniture and that when the $700 bed for her son had been paid for in full on the first lay-away plan, Maple Furniture had promised to deliver the $700 bed, but then refused to do so until White had made additional payments of $400 towards the $2800 bedroom set that was on the second lay-away plan. After White had paid the additional $400 to Maple Furniture, Maple Furniture still would not deliver the $700 bed for her son and had instead informed White that she had to pay another $500 on the lay-away plan for the $2800 bedroom set. White had then refused to pay any more money to Maple Furniture. As such, White did not receive the $700 bed for her son that had been fully paid for by White and that had been agreed to be delivered to White by Maple Furniture on the first lay-away plan once the $700 had been fully paid. Moreover, Maple Furniture has kept the $1100 that White has paid to Maple Furniture without delivering the $700 bed that White had already paid for fully in 2017.

(e) The two directors of Maple Furniture would be guilty of committing the offences set out in counts #15, #16, #20, #21, and #22, if the prosecution proves beyond a reasonable doubt that Maple Furniture has committed the offences set out in counts #13, #14, #17, #18, and #19, unless the two directors can respectively prove the defence of due diligence on a balance of probabilities.

[95] Under s. 116(3) of the Consumer Protection Act, 2002, an officer or director of a corporation is guilty of an offence if he or she fails to take reasonable care to prevent the corporation from committing an offence mentioned in ss. 116(1) or (2):

Corporation

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

[96] The two directors of Maple Furniture, Kulwinder SINGH and Harminder Singh SANDHU, have been charged jointly in committing offences in respect to s. 116(3) of the Consumer Protection Act, 2002.

[97] In addition, Maple Furniture has been charged with committing five offences in respect to ss. 116(1)(b)(ii), 116(1)(b)(viii), and s. 116(2) under the Consumer Protection Act, 2002, in relation to the two consumers:

Offences

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

(b) contravenes or fails to comply with,

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

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

Same

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

[98] Consequently, if it is determined that Maple Furniture has committed the five offences set out in counts #13, #14, #17, #18, and #19 beyond a reasonable doubt, then both Kulwinder SINGH and Harminder Singh SANDHU, as directors of Maple Furniture would also be equally liable for the same five offences being committed by Maple Furniture according to s. 116(3), unless Kulwinder SINGH and Harminder Singh SANDHU can respectively prove on a balance of probabilities that they had taken all reasonable care to prevent Maple Furniture from committing those five offences.

(2) Did Maple Furniture fail to deliver to the consumers, Goutham Nagolu and Dahlia White, respectively, a future performance agreement containing the information required by s. 24?

[99] The prosecution contends that the “future performance agreement” between Maple Furniture and the two consumers, Goutham Nagolu and Dahlia White, did not contain the prescribed requirements that are set out in s. 24 of Ont. Reg. 117/05. Furthermore, s. 116(2) of the Consumer Protection Act, 2002 provides that a person who contravenes or who fails to comply with a provision of a regulation made under the Act is guilty of an offence:

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

[100] In addition, under ss. 4 and 5 of the Consumer Protection Act, 2002, a consumer agreement that meets the criteria of more than one type of agreement to which the Consumer Protection Act, 2002 applies, shall comply with the provisions of this Act and of the regulations that apply to each type of agreement. And, if a supplier is required to disclose information to a consumer under this Act, the disclosure must be clear, comprehensible and prominent and if a supplier is required to deliver information to a consumer under this Act, the information must, in addition to satisfying the requirements in subsection 5(1), be delivered in a form in which it can be retained by the consumer [emphasis is mine below]:

Consumer agreements

4. A consumer agreement that meets the criteria of more than one type of agreement to which this Act applies shall comply with the provisions of this Act and of the regulations that apply to each type of agreement for which it meets the criteria, except where the application of the provisions is excluded by the regulations.

Disclosure of information

5(1) If a supplier is required to disclose information under this Act, the disclosure must be clear, comprehensible and prominent.

Delivery of information

(2) If a supplier is required to deliver information to a consumer under this Act, the information must, in addition to satisfying the requirements in subsection (1), be delivered in a form in which it can be retained by the consumer.

[101] In addition, s. 22 of the Consumer Protection Act, 2002 requires that a “future performance agreement” be in writing and delivered to the consumer and that it be made in accordance with the prescribed requirements:

Requirements for future performance agreements

22. Every future performance agreement shall be in writing, shall be delivered to the consumer and shall be made in accordance with the prescribed requirements.

[102] Furthermore, s. 24 of Ontario Regulation 17/05 sets out the type of information that is required to be set out in a “future performance agreement” [emphasis is mine below]:

Requirements for future performance agreements

24. For the purpose of section 22 of the Act, a future performance agreement that is not a gift card agreement to which sections 25.2 to 25.5 apply shall set out the following information:

25. The name of the consumer.

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

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

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

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

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

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

32. The terms and methods of payment.

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

34. For goods and services that are to be delivered,

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

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

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

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

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

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

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

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

(a) As the Consumer Protection Act, 2002, is silent on who has the duty under s. 22 to deliver a future performance agreement to the consumer containing the prescribed requirements contained s. 24 of Ont. Reg. 17/05, is there an implied duty on the “supplier” to perform such duty?

[103] Since the Consumer Protection Act, 2002 is public welfare legislation, then this particular legislation must be interpreted broadly to achieve the purpose of that legislation, and as such, the only reasonable interpretation of who has the duty to perform the duty set out in s. 22 is the “supplier”.

[104] In R. v. Elm Tree Nursing Home Inc., [1987] O.J. No. 491 (QL) (O.C.A.), Goodman J.A., writing for the Court of Appeal for Ontario, held that if the legislation in question is silent on who has the duty to comply with a specific act or does not impose a duty on an accused person to act, then there would be no offence [emphasis is mine below]:

Where it was intended that a duty be placed on a licensee or administrator or other person that certain acts be done, various sections expressly so provide. In those instances it is clear that a failure of the person to fulfill the duty imposed by the regulation constitutes an offence under the Act. It is equally clear that any person who does an act which is prohibited by the provisions of the regulation will be guilty of an offence and it is not necessary that the prohibition be directed against a particular individual. In my opinion, however, where sections of Regulation 690 do not create a duty or where they create a duty but do not expressly impose such duty on any person there can be no offence created under those sections within the meaning of s. 19 of the Act.

[105] However, in Ontario (Ministry of Labour) v. Enbridge Gas Distribution Inc., 2010 ONSC 2013 (Ont. S.C.J.), at paras. 48 and 49, the same issue arose on who had the duty to act when the statute was silent on who had that duty to act. In resolving that issue, Bellamy J. reasoned that to properly interpret the legislation to determine who had that duty it should be based on the interpretation which best promotes public safety and the public welfare purpose of the legislation while respecting the procedural rights of the accused party [emphasis is mine below]:

The legislature must have intended something when it included the word "accurately" in s. 228(1). The only party that can ensure accuracy is the party conducting the locate, that is Enbridge or its agent PUL. It is inconceivable that the legislature intended to create a duty on an excavator who has no control or legal ability either to do the locate or to do it accurately. If the legislature intended to ensure that the locate was done accurately, there is only one party who could bear that responsibility: the owner, the party to whom the legislature directs the inquiry to be made.

This interpretation best promotes the public safety and welfare purpose of this public welfare legislation, while respecting the procedural rights of the accused company. The best way to ensure public safety when dealing with inherently dangerous commodities such as gas is to prohibit anyone but the owner, or its agent, from accurately locating and marking it. Public safety is not enhanced by narrowing the range of who can be responsible, by moving away from a "belt and braces" approach. Public safety is not enhanced by immunizing from liability the owners of a service if they are in error.

[106] Therefore, since the Consumer Protection Act, 2002 is a public welfare statute, then provisions in this particular legislation must be interpreted broadly to achieve the legislative purpose of protecting consumers in dealings with suppliers. Moreover, the Consumer Protection Act, 2002 applies to future performance agreements, which are consumer agreements between a supplier and a consumer where the supplier agrees to supply goods or services for payment. Hence, the only logical and reasonable interpretation of who would have the duty set out in s. 22 to deliver a “future performance agreement” to the consumer containing the requirements prescribed in s. 24 of Ont. Reg. 117/05 would be the “supplier”. Furthermore, this interpretation that the “supplier” has that duty under s. 22 is supported by s. 24 itself, which contains many references to the “supplier”, such as in s. 24(2) which requires the “name of the supplier” to be contained in the future performance agreement; in s. 24(3) which requires the “telephone number of the supplier” to be contained in the future performance agreement; in s. 24(6) which requires the “the amount of the charge if the supplier can reasonably determine” to be contained in the future performance agreement; and in s. 24(12) which requires the “rights, if any, that the supplier agrees the consumer will have in addition to the rights under the Act and the obligations, if any, by which the supplier agrees to be bound in addition to the obligations under the Act, in relation to cancellations, returns, exchanges and refunds.”

[107] Furthermore, the Consumer Protection Act, 2002 by virtue of s. 1, defines “consumer agreements” for the purpose of this legislation to be between “suppliers” and consumers, and since only the “suppliers” are obligated to provide the goods or services to the consumer by that agreement, then it is not only logical, but the only reasonable interpretation that can be made that “suppliers” would have the duty to deliver a “future performance agreement” to the consumer containing the prescribed requirements.

(b) in respect to the consumer, Goutham Nagolu (count #13)

[108] For the consumer Goutham Nagolu, Nagolu testified that he had entered into a consumer agreement with a business named “Maple Furniture” on May 2, 2019, to purchase a dining room set for $1575 (see written agreement in Exhibit #2 and Exhibit #5). This consumer agreement between Goutham Nagolu and Maple Furniture is a future performance agreement as defined under s. 1 of the Consumer Protection Act, 2002. In that May 2, 2019 “future performance agreement” (Exhibits #2 and #5) between Goutham Nagolu and Maple Furniture, which is entitled, “INVOICE NO. 3247”, the agreement did not mention or contain several informational requirements that have to be included in a “future performance agreement”. These informational requirements are set in s. 24 of Ont. Reg. 117/05.

[109] The missing information that is required on the future performance agreement to be provided to Nagolu by Maple Furniture include the following:

(1) There is absent the information that is required under s. 24(4) of Ont. Reg. 117/05, which requires “a fair and accurate description of the goods and services to be supplied to the consumer, including the technical requirements, if any, related to the use of the goods or services”. The invoice document which was the written “future performance agreement” between Maple Furniture and Nagolu only provided a simple description of the item on that invoice document of what Nagolu had ordered and purchased. Maple Furniture only described the item simply as a “7 pcs dining set”. There is no mention that the set consisted of 6 chairs and a table nor did it describe the colour, model, brand name of the dining room set. The agreement also did not describe that the chairs would come with copper or brass coloured rivets and a lion’s head chair-back pull”. Instead, Nagolu received a lesser quality of chair that contained a plain stainless steel chair-back pull and not the lion’s head chair-back pull. Furthermore, Nagolu had been informed that the chairs that were delivered to him were worth $275 less than the ones he had observed on display and had ordered on May 2, 2019. Ergo, the description of the item on the invoice document or future performance agreement that Nagolu was purchasing was not a “fair and accurate description of the goods” to be supplied by Maple Furniture, as had been legally required.

(2) There is also absent the information that is required under s. 24(5) of Ont. Reg. 117/05, which requires “an itemized list of the prices at which the goods and services are to be supplied to the consumer, including taxes and shipping charges”. The invoice document which was the written future performance agreement between Maple Furniture and Nagolu only provided a simple description of the item on that invoice document of what Nagolu had ordered and purchased. Maple Furniture only described the item simply as a “7 pcs dining set” and not an itemized list. Hence, there is no mention in the invoice document or future performance agreement that the set had consisted of 6 chairs and a table or an indication that the chairs ordered would be the ones with the lion’s head chair-back pull and not the stainless steel version of the chair-back pull that Nagolu did receive from Maple Furniture, as had been legally required.

(3) There is also absent the information that is required under s. 24(9) of Ont. Reg. 117/05, which requires where applicable, “the date or dates on which delivery, commencement of performance, ongoing performance and completion of performance are to occur”. The invoice document which was the written future performance agreement between Maple Furniture and Nagolu had indicated under the heading “delivery date” a date of May 2, 2019, which had been the date that the agreement was entered into and not the delivery date that Maple Furniture was to deliver the dining room set to Nagolu. When Nagolu had fully paid the $1575 for the dining room set on May 7, 2019, “Harry”, the person working at Maple Furniture on May 7, 2019, had promised that the set would be delivered on May 9, 2019, but the set had not been delivered to Nagolu until May 13, 2019. Therefore, the invoice document or future performance agreement should have set out either “May 9, 2019” or “May 13, 2019”, as the date or dates on which delivery of the dining room set to Nagolu was to occur, as had been legally required.

(4) There is also absent the information that is required under s. 24(10) of Ont. Reg. 117/05, which requires a description of the place to which goods and services are to be delivered and if the supplier holds out a specific manner of delivery and will charge the consumer for delivery, the manner in which the goods and services are to be delivered, including the name of the carrier, if any, and including the method of transportation to be used. Ergo, this information had not been provided or stated on the invoice document or future performance agreement that had been provided to Nagolu by Maple Furniture, as had been legally required.

[106] Ergo, the invoice document or future performance agreement (Exhibits #2 and #5) that Maple Furniture had provided to Goutham Nagolu on May 2, 2019, did not contain the information required under ss. 24(4), 24(5), 24(9), and 24(10) of Ont. Reg. 117/05. Therefore, the prosecution has proven beyond a reasonable doubt that Maple Furniture did commit on May 2, 2019 in the City of Brampton the actus reus of the offence of “fail to deliver to Goutham Nagolu a future performance agreement containing the information required by s. 24 of Ont. Reg. 117/05” set out in count #13.

[107] In addition, there is no evidence of due diligence or reasonable care on the part of Maple Furniture in avoiding committing the offence of “fail to deliver to Goutham Nagolu a future performance agreement containing the information required by s. 24 of Ont. Reg. 117/05” on May 2, 2019, in the City of Brampton.

[108] Accordingly, based on the lack of certain required information that had to be included in the future performance agreement that had been provided to Goutham Nagolu on May 2, 2019 (Exhibits #2 and #5), Maple Furniture is guilty of committing the offence of “failing to deliver to Goutham Raj Kumar Nagolu, a consumer, a future performance agreement containing the information required by s. 24 of Ont. Reg. 17/05” on May 2, 2019, in the City of Brampton, contrary to 22 of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Schedule A, as amended, and thereby committed an offence contrary to s. 116(2) of the Consumer Protection Act, 2002.

(c) in respect to the consumer, Dahlia White (count #17)

[109] For the second consumer, Dahlia White, White had testified that she had entered into a consumer agreement with the business named Maple Furniture on January 1, 2017, to purchase a bed for her son for $700 and a bedroom set for $2800 for herself on distinct lay-away plans (see written agreement in Exhibit #6). This consumer agreement between Dahlia White and Maple Furniture is a future performance agreement as defined under s. 1 of the Consumer Protection Act, 2002. Moreover, that January 1, 2017 future performance agreement (Exhibit #6) between Dahlia White and Maple Furniture is on the same type of template or form as the “invoice document” entered as Exhibit #2 and Exhibit #5 that had been provided to the consumer Goutham Nagolu.

[110] Furthermore, in respect the January 1, 2017 future performance consumer agreement between Dahlia White and Maple Furniture and entered as Exhibit #6, the document is a copy of a photograph that had been taken by Dahlia White on her cellphone when Dahlia White had attended the Maple Furniture store and requested a copy of the January 1, 2017 agreement, since White had lost her copy of the January 1, 2017 agreement. The photographs that White had taken of that January 1, 2017 agreement are only partially clear and lacked completeness, as all the details, writings, and wording of the agreement are not visible or clear in appearance and as such, the prosecution has conceded that they are unable to prove that the “future performance agreement” would be missing any informational requirements that are required under s. 24 of Ont. Reg. 117/05. Accordingly, the prosecution has failed to prove beyond a reasonable doubt that the “future performance agreement” dated January 1, 2017 that had been provided to Dahlia White by Maple Furniture did not contain all the informational requirements for a future performance agreement as required under s. 24 of Ont. Reg. 17/05. Therefore, the prosecution has not proven that the corporate defendant, 9764895 Canada Inc. carrying on business as Maple Furniture, has committed the actus reus of the offence set out in count #17.

[111] Equally, the prosecution has also not proven beyond a reasonable doubt that Kulwinder SINGH and Harminder Singh SANDHU, as directors of 9764895 Canada Inc. carrying on business as Maple Furniture, have respectively committed the offence set out in count #20 related to ensuring that Maple Furniture had provided a proper future performance agreement to Dahlia White.

(3) Did the directors of Maple Furniture fail to ensure that the two consumers were provided with the proper future performance agreements as required under [s. 24](https://www.canlii.org/en/on/laws/regu/o-reg-17-05/latest/o-reg-17-05.html) of [Ontario Regulation 17/05](https://www.canlii.org/en/on/laws/regu/o-reg-17-05/latest/o-reg-17-05.html)? (counts #15 and #20)

(a) in respect to the consumer, Gautham Nagolu (count #15)

[112] The prosecution has proven beyond a reasonable doubt that Maple Furniture has committed the offence set out in count #13 of failing to provide a future performance agreement to Goutham Nagolu on May 2, 2019 in the City of Brampton with the informational requirements that are required and set out in s. 24 of Ont. Reg. 117/05, by not complying with ss. 24(4), 24(5), 24(9) and 24(10). From the two invoice documents that had been provided by Maple Furniture to both consumers in this trial (Exhibits #2, #5 and #6), the invoice document used by Maple Furniture appears to be the written agreement that is provided to consumers buying furniture from Maple Furniture and appears to be a specific form that the staff of Maple Furniture uses, and completed or filled in by Maple Furniture staff, and then provided to consumers, and is not a unique generated document or agreement that is individually created for each consumer. Therefore, this business form being utilized by Maple Furniture and provided to consumers would be part of Maple Furniture’s business practices, which would be under the direction and operational decisions that would come under the control and decision-making of the directors of Maple Furniture. In addition, the training of employees on how to properly complete forms and what to include in a future performance agreement as required under the Consumer Protection Act, 2002 and its regulations that are provided to consumers are operational and business decisions that would need the approval of and be under the purview and direction of the directors of Maple Furniture.

[113] However, neither of the two directors of Maple Furniture, Kulwinder SINGH and Harminder Singh SANDHU, appeared for trial, so there is no evidence of any due diligence or reasonable care on their part in respectively preventing Maple Furniture from failing to provide a proper future performance agreement as required under s. 24 of Ont. Reg. 17/05 to the consumer Goutham Nagolu on May 2, 2019, in the City of Brampton.

[114] Ergo, the prosecution has fulfilled its persuasive burden in proving beyond a reasonable doubt that Kulwinder SINGH, and Harminder Singh SANDHU, as directors of Maple Furniture, have respectively committed the offence set out in count #15, on May 2, 2019, in the City of Brampton, of “failing to prevent 9764895 Canada Inc. carrying on business as Maple Furniture of committing the offence of failing to provide to Goutham Nagolu, a consumer, a future performance agreement containing the requirements set out in s. 24 of Ont. Reg. 17/05”, and s. 22 of the Consumer Protection Act, 2002, and thereby committed an offence under s. 116(3) of the Consumer Protection Act, 2002.

(b) in respect to the consumer, Dahlia White (counts #20)

[115] On the other hand, the prosecution did not prove that Maple Furniture had committed the offence set out in count #17 of “failing to provide a proper future performance agreement to the consumer Dahlia White on January 1, 2017 with the information requirements set out in s. 24 of Ont. Reg. 17/05”.

[116] Consequently, the offence set out in count #20 in respect to Kulwinder SINGH, and Harminder Singh SANDHU, as directors of 9764895 Canada Inc. carrying on business as Maple Furniture in respect to the offence of failing to prevent Maple Furniture from failing to provide Dahlia White on January 1, 2017 with the information requirements set out in s. 24 of Ont. Reg. 17/05 has also not been proven beyond a reasonable doubt.

(4) Did Maple Furniture engage in an unfair practice by making a false, misleading, or deceptive representation respectively to the two consumers and thereby committed an offence under [s. 116(1)](https://www.canlii.org/en/on/laws/stat/so-2002-c-30-sch-a/latest/so-2002-c-30-sch-a.html)(b)(ii) of the [Consumer Protection Act, 2002](https://www.canlii.org/en/on/laws/stat/so-2002-c-30-sch-a/latest/so-2002-c-30-sch-a.html)?

[117] Maple Furniture has been charged with engaging in an unfair practice in relation to the two consumers, Goutham Nagolu and Dahlia White, by making a false, misleading or deceptive representation respectively to Nagolu and White, which is contrary to section 17(1) of the Consumer Protection Act, 2002, and thereby, committing an offence under section 116(1)(b)(ii) of the Consumer Protection Act, 2002.

[118] Section 17(1) of the Consumer Protection Act, 2002 legally prohibits Maple Furniture from engaging in an unfair practice in relation to both Goutham Nagolu and Dahlia White, as consumers. Furthermore, by virtue of s. 17(2), if Maple Furniture does engage in one of the acts or omissions listed in sections 14, 15, or 16 of the Consumer Protection Act, 2002, then Maple Furniture would be adjudged or deemed to be engaging in an unfair practice [emphasis is mine below]:

Unfair practices prohibited

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

One act deemed practice

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

[119] Furthermore, under s. 116(1)(b)(ii) of the Consumer Protection Act, 2002 a person who contravenes s. 17(1) is guilty of committing the offence of engaging in an unfair practice:

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

(b) contravenes or fails to comply with,

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

[120] In addition, s. 14(2) of the Consumer Protection Act, 2002 sets out a non-exhaustive list of the type of representations that would be considered to be a false, misleading or a deceptive representation, and if a supplier made one of these types of representations under s. 14(2) to a consumer, then the supplier would be adjudged or deemed to be engaging in an unfair practice under s. 17(1) of the Consumer Protection Act, 2002:

False, misleading or deceptive representation

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

Examples of false, misleading or deceptive representations

(2) Without limiting the generality of what constitutes a false, misleading or deceptive representation, the following are included as false, misleading or deceptive representations:

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

2. A representation that the person who is to supply the goods or services has sponsorship, approval, status, affiliation or connection the person does not have.

3. A representation that the goods or services are of a particular standard, quality, grade, style or model, if they are not.

4. A representation that the goods are new, or unused, if they are not or are reconditioned or reclaimed, but the reasonable use of goods to enable the person to service, prepare, test and deliver the goods does not result in the goods being deemed to be used for the purposes of this paragraph.

5. A representation that the goods have been used to an extent that is materially different from the fact.

6. A representation that the goods or services are available for a reason that does not exist.

7. A representation that the goods or services have been supplied in accordance with a previous representation, if they have not.

8. A representation that the goods or services or any part of them are available or can be delivered or performed when the person making the representation knows or ought to know they are not available or cannot be delivered or performed.

9. A representation that the goods or services or any part of them will be available or can be delivered or performed by a specified time when the person making the representation knows or ought to know they will not be available or cannot be delivered or performed by the specified time.

10. A representation that a service, part, replacement or repair is needed or advisable, if it is not.

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

12. A representation that misrepresents the authority of a salesperson, representative, employee or agent to negotiate the final terms of the agreement.

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

14. A representation using exaggeration, innuendo or ambiguity as to a material fact or failing to state a material fact if such use or failure deceives or tends to deceive.

[121] Furthermore, a “representation” is defined in s. 1 of the Consumer Protection Act, 2002 and means a representation, claim, statement, offer, request or proposal that is or purports to be made respecting or with a view to the supplying of goods or services to consumers, or made for the purpose of receiving payment for goods or services supplied or purporting to be supplied to consumer:

“representation” means a representation, claim, statement, offer, request or proposal that is or purports to be,

(a) made respecting or with a view to the supplying of goods or services to consumers, or

(b) made for the purpose of receiving payment for goods or services supplied or purporting to be supplied to consumers; (“assertion”)

(a) in respect to the consumer, Gautham Nagolu (count #14)

[122] The representations that were made to Goutham Nagolu by a representative of Maple Furniture named “Harry” is the basis of the false, misleading or deceptive representations that Maple Furniture had made to Nagolu between May 2, 2019 and January 31, 2020 in the City of Brampton, which forms the basis of the unfair practice that Maple Furniture had engaged in. In particular, the false, misleading or deceptive representations that “Harry” of Maple Furniture had made to Nagolu are detailed and contained in ss. 14(2)(3), 14(2)(8), and 14(2)(9) of the Consumer Protection Act, 2002 [emphasis is mine below]:

14(2) Without limiting the generality of what constitutes a false, misleading or deceptive representation, the following are included as false, misleading or deceptive representations:

3. A representation that the goods or services are of a particular standard, quality, grade, style or model, if they are not.

4. A representation that the goods or services or any part of them are available or can be delivered or performed when the person making the representation knows or ought to know they are not available or cannot be delivered or performed.

5. A representation that the goods or services or any part of them will be available or can be delivered or performed by a specified time when the person making the representation knows or ought to know they will not be available or cannot be delivered or performed by the specified time.

[123] Goutham Nagolu had ordered six dining room chairs with a lion’s head chair-back pull that was supposed to have been in a brass or copper colour, but instead of getting the chairs that Nagolu had ordered, the chairs that were delivered to him on May 13, 2019, were not the chairs that he and his wife had observed on May 2, 2019 on display at the Maple Furniture store, nor the ones that Nagolu had paid for and ordered from Maple Furniture. The chairs that had been delivered to Nagolu on May 13, 2019, had instead an ordinary designed stainless steel chair-back pull instead of having the lion’s head chair-back pull that Nagolu had ordered. In addition, Nagolu said the chairs that were delivered to Nagolu also did not have brass or copper-coloured rivets that he had observed on the chairs on display at the store and should have been on the chairs that were delivered to Nagolu. When Nagolu contacted Maple Furniture about getting the wrong chairs, Nagolu also said that Nagolu had been told by “Harry” of Maple Furniture that the chairs that were delivered to Nagolu were of lesser quality and value and worth $275 less than the ones that he had ordered on May 2, 2019. Therefore, the representation by Maple Furniture that the chairs that Nagolu had ordered are of a particular standard, quality, grade, style or model is a false, misleading or deceptive representation as detailed under s. 14(2)(3), since the chairs that Nagolu had received from Maple Furniture were of a lesser quality and value and a different model from the ones that Nagolu had observed on display and had ordered from Maple Furniture.

[124] Nagolu also said that “Harry” of Maple Furniture had informed Nagolu that Maple Furniture would replace the chairs that had been delivered to Nagolu with new ones. However, after Harry’s representation that Maple Furniture would send Nagolu new chairs, Nagolu has never received the correct chairs that he had ordered from Maple Furniture. Thus, this representation by “Harry” of Maple Furniture to Nagolu that the wrong chairs that had been delivered to Nagolu would be replaced with new ones is a false, misleading or deceptive representation detailed under s. 14(2)(8), that the goods or services or any part of them are available or can be delivered or performed when the person making the representation knows or ought to know they are not available or cannot be delivered or performed, since Maple Furniture did not replace the wrong chairs that had been delivered to Nagolu with the correct model of chairs that Nagolu had ordered and paid for.

[125] Furthermore, the dining room table that had been delivered to Nagolu had one table leg that was uneven and 2 inches shorter than the other table leg, and when assembled, the table would not sit flat on the floor and wobbled unless a piece of Styrofoam-like material was placed underneath the defective table leg. Nagolu also said that the dining room table should have been covered under the “5 year manufacture warranty” that Maple Furniture had agreed to and had included on the future performance agreement provided to Nagolu on May 2, 2019 (see Exhibit #2 and #5). Despite Nagolu having contacted Maple Furniture by telephone, by email, and in person at the store about having the wrong chairs being delivered to him, as well as about the defective table leg on the dining room table, Maple Furniture has not rectified the issue with the table leg or replaced the dining room table even though this manufacturing defect ought to have been covered under the “5 year manufacture warranty” provided by Maple Furniture to Nagolu. Hence, the representation by Maple Furniture as expressed on the future performance agreement that Maple Furniture would provide a “5 year manufacture warranty” to Nagolu is a false, misleading or deceptive representation as detailed under s. 14(2)(9), that services or any part of them will be available or can be delivered or performed by a specified time when the person making the representation knows or ought to know they will not be available or cannot be delivered or performed by the specified time, since Maple Furniture did not fulfill its promised service of providing a manufacturer’s warranty for the defective dining room table and replace the defective table that Nagolu had received from Maple Furniture. In addition, the representation that the dining room table that Nagolu had ordered is of a particular standard, quality, grade, style or model is also a false, misleading or deceptive representation, as detailed under s. 14(2)(3), since the table leg on the dining room table that was delivered to Nagolu was uneven and shorter than the other table leg that Nagolu had received from Maple Furniture.

[126] As such, the prosecution has proven beyond a reasonable doubt that Maple Furniture has committed the actus reus of the offence set out in count #14 of “engaging in an unfair practice in relation to Goutham Nagolu, a consumer, by making a false, misleading or deceptive representation” between May 2, 2019 and January 31, 2020, in the City of Brampton, as detailed under ss. 14(2)(3), 14(2)(8) and 14(2)(9) of the Consumer Protection Act, 2002, contrary to s. 17(1) of the Consumer Protection Act, 2002.

[127] However, there is no evidence of due diligence or reasonable care by Maple Furniture in avoiding committing the actus reus of the offence set out in count #14 of “engaging in an unfair practice in relation to Goutham Nagolu, a consumer, by making a false, misleading or deceptive representation” to Goutham Nagolu between May 2, 2019 and January 31, 2020, in the City of Brampton, contrary to s. 17(1) of the Consumer Protection Act, 2002.

[128] Ergo, the prosecution has proven beyond a reasonable doubt that the corporate defendant, 9764895 Canada Inc. carrying on business as Maple Furniture, has committed the offence contained in count #14 of “did engage in an unfair practice in relation to Goutham Raj Kumar Nagolu, a consumer, by making a false, misleading or deceptive representation” between May 2, 2019 and January 31, 2020 in the City of Brampton, contrary to s. 17(1) of the Consumer Protection Act, 2002, and thereby committed an offence under s.116(1)(b)(ii) of the Consumer Protection Act, 2002.

(b) in respect to the consumer, Dahlia White (count #18)

[129] The false, misleading or deceptive representations that were made by Maple Furniture to Dahlia White that is the basis of the offence of “engaging in an unfair practice” contended by the prosecution is specifically set out in ss. 14(2)(8), and 14(2)(9) of the Consumer Protection Act, 2002 [emphasis is mine below]:

14(2) Without limiting the generality of what constitutes a false, misleading or deceptive representation, the following are included as false, misleading or deceptive representations:

8. A representation that the goods or services or any part of them are available or can be delivered or performed when the person making the representation knows or ought to know they are not available or cannot be delivered or performed.

9. A representation that the goods or services or any part of them will be available or can be delivered or performed by a specified time when the person making the representation knows or ought to know they will not be available or cannot be delivered or performed by the specified time.

[130] For the consumer Dahlia White, White had entered into a future performance agreement with the business named “Maple Furniture” on January 1, 2017, to purchase a bed for her son for $700 and a bedroom set dining for $2800 for herself (see Exhibit #6). Both purchases were to be on distinct lay-away plans. The agreement between Maple Furniture and White had required Maple Furniture to deliver the bed that White had purchased for her son once White had fully paid the amount of $700 to Maple Furniture for the $700 bed.

[131] After Dahlia White had paid the full amount of $700 for the bed for her son, White testified that White had arranged with “Randy” of Maple Furniture to have the bed delivered. White had taken the day off of work to wait for the delivery of the $700 bed, but Maple Furniture did not deliver the bed. When White contacted “Randy” about the non-delivery of the bed, “Randy” informed White that the $700 bed would not be delivered until White paid more money on the $2800 bedroom set that she had ordered for herself that was also on a lay-away plan. White then paid more money to Maple Furniture and arranged a second delivery date for the $700 bed, but the bed was still not delivered by Maple Furniture. White then said that “Randy” from Maple Furniture had told White that White needed to pay more money before the bed would be delivered. White had then paid more money to Maple Furniture, but the bed had still not been delivered. White said she had paid an additional $400 to Maple Furniture in the year 2017, so White had paid a total of $1100 to Maple Furniture, yet Maple Furniture would not deliver the bed for her son that had cost $700. Even after White had paid a total of $1100 to Maple Furniture, Randy had demanded another $500 from White before Maple Furniture would deliver the $700 bed. White then told Randy that White wanted to speak with the manager of the store. Randy then told White to contact management at the email address of info@maplefurniture.ca. White then sent an email on September 19th, 2018, to Maple Furniture to Maple Furniture’s email address of “info@maplefurniture.ca” with a complaint about “Randy” of Maple Furniture refusing to deliver the bed and continuing to ask White to pay Maple Furniture more money. However, White did not get any response from the management of Maple Furniture in respect to White’s September 19, 2018 email.

[132] White then filed a complaint with Consumer Services, after which someone from Maple Furniture had telephoned White and informed White that Maple Furniture would deliver the bed if White signed a document indicating that all issues had been resolved with Maple Furniture and that White would get a $400 credit at the store for the amount White had paid over the price of the $700 bed. White then informed Maple Furniture that she would not sign the document until the bed was first delivered to White. Since Maple Furniture did not deliver the $700 bed, White then sent an email to Maple Furniture on January 20, 2020 notifying Maple Furniture that she was cancelling her order for both the bed for her son and the bedroom set for herself and requested a refund from Maple Furniture.

[133] Since Maple Furniture did not deliver the $700 bed that had been bought and paid for in full by White as Maple Furniture had agreed to do, the representations that had been made by “Randy” of Maple Furniture to White that the $700 bed would be delivered to White after White had paid in full the $700 for the bed that had been on a lay-away plan and that had been scheduled to be delivered to White, and in which White had taken that particular date off to receive delivery of the bed, but that Maple Furniture had failed to deliver the bed on that scheduled date, would be a representation by Maple Furniture that is a false, misleading or deceptive representation as detailed under s. 14(2)(8). Specifically, Maple Furniture had a made a false, misleading or deceptive representation between January 1, 2017 and January 31, 2020, to Dahlia White that goods or services or any part of them are available or can be delivered or performed when the person making the representation knows or ought to know they are not available or cannot be delivered or performed, especially when Maple Furniture did not fulfill its promise in delivering the $700 bed on the scheduled date for delivery to White once White had fully paid Maple Furniture the $700 for the bed.

[134] Moreover, “Randy” of Maple Furniture kept telling White that White had continue to make payments over and above the value of the $700 bed and that the bed would be delivered once she made the additional payments. White had arranged and even scheduled a delivery date for the bed on two occasions with “Randy” of Maple Furniture, but on both scheduled dates Maple Furniture did not deliver the bed that had been promised to be delivered. These two representations by “Randy” of Maple Furniture to Dahlia White during 2017 that the $700 bed would be delivered on two specific and scheduled dates when the $700 had been paid in full, and then when White had paid an additional $400 to Maple Furniture in respect to the $2800 bedroom set on the second lay-away plan would be a false, misleading or deceptive representation as detailed under s. 14(2)(9), that the goods or services or any part of them will be available or can be delivered or performed by a specified time when the person making the representation knows or ought to know they will not be available or cannot be delivered or performed by the specified time, since the $700 bed had not been delivered to Dahlia White on those two scheduled delivery dates as had been promised by Maple Furniture.

[135] As such, the prosecution has proven beyond a reasonable doubt that Maple Furniture has committed the actus reus of the offence set out in count #18 of “engaging in an unfair practice in relation to Dahlia White, a consumer, by making a false, misleading or deceptive representation” between January 1, 2017 and January 31, 2020 in the City of Brampton, as detailed under ss. 14(2)(8) and 14(2)(9) of the Consumer Protection Act, 2002, contrary to s. 17(1) of the Consumer Protection Act, 2002.

[136] However, there is no evidence of due diligence or reasonable care by Maple Furniture in avoiding committing the actus reus of the offence set out in count #18 of “engaging in an unfair practice in relation to Dahlia White, a consumer, by making a false, misleading or deceptive representation to Dahlia White between January 1, 2017 and January 31, 2020, in the City of Brampton”, contrary to s. 17(1) of the Consumer Protection Act, 2002.

[137] Accordingly, the prosecution has proven beyond a reasonable doubt that the corporate defendant, 9764895 Canada Inc. carrying on business as Maple Furniture, has committed the offence contained in count #18 of “did engage in an unfair practice in relation to Dahlia White, a consumer, by making a false, misleading or deceptive representation between January 1st, 2017 and January 31, 2020 in the City of Brampton”, contrary to s. 17(1) of the Consumer Protection Act, 2002, S.O. 2002, and thereby committed an offence under s.116(1)(b)(ii) of the Consumer Protection Act, 2002.

(5) Did the directors of Maple Furniture fail to prevent Maple Furniture from engaging in an unfair practice by making a false, misleading, or deceptive representation respectively to the two consumers and thereby committed an offence under [s. 116(3)](https://www.canlii.org/en/on/laws/stat/so-2002-c-30-sch-a/latest/so-2002-c-30-sch-a.html) of the [Consumer Protection Act, 2002](https://www.canlii.org/en/on/laws/stat/so-2002-c-30-sch-a/latest/so-2002-c-30-sch-a.html)? (counts #16 and #21)

[138] As the prosecution has proven beyond a reasonable doubt that Maple Furniture has committed the offences set out in counts #14 and #18 of “engaging in an unfair practice by making a false, misleading or deceptive representations respectively to the two consumers, Goutham Nagolu and Dahlia White”, contrary to s. 17(1) of the Consumer Protection Act, 2002, then the prosecution has likewise proven beyond a reasonable doubt that both Kulwinder SINGH and Harminder Singh, as directors of Maple Furniture, have respectively committed the actus reus of the offence contained in counts #16 and #21 of “failing to prevent Maple Furniture from engaging in an unfair practice by making a false, misleading or deceptive representations respectively to the two consumers, Goutham Nagolu and Dahlia White between May 2, 2019 and January 31, 2020 and between January 1, 2017 and January 31, 2020, respectively, in the City of Brampton, contrary to s. 17(1) of the Consumer Protection Act, 2002.

[139] However, since the directors of Maple Furniture did not appear for trial, there is no evidence of any due diligence or reasonable care on their part in respect to preventing Maple Furniture from engaging in an unfair practice by making a false, misleading or deceptive representations respectively to the two consumers, Goutham Nagolu and Dahlia White. Therefore, the prosecution has proven beyond a reasonable doubt that both directors, Kulwinder SINGH and Harminder Singh of Maple Furniture, have respectively committed the offences contained in counts #16 and #21 of "did fail to prevent 9764895 Canada Inc. carrying on business as Maple Furniture from engaging in an unfair practice by making a false, misleading or deceptive representations respectively to the two consumers, Goutham Nagolu and Dahlia White, between May 2, 2019 and January 31, 2020 and between January 1, 2017 and January 31, 2020, respectively, in the City of Brampton, contrary to s. 17(1) of the Consumer Protection Act, 2002, and thereby committed an offence under s.116(3) of the Consumer Protection Act, 2002.

(6) Did Maple Furniture fail to provide a refund back to the consumer Dahlia White after she had given notice of cancellation of her order and requested a refund? (count #19)

(a) Was Dahlia White entitled to the refund of her $1100 that she had paid to Maple Furniture?

[140] Dahlia White did not get delivery of the $700 bed she had ordered and paid for in full from Maple Furniture. Because Maple Furniture did not deliver the bed as Maple Furniture had agreed to deliver to White once the $700 had been paid in full by White to Maple Furniture, White sent an email on January 20, 2020, to Maple Furniture (see Exhibit #8) using the email address of “info@maplefurniture” provided on the invoice document (Exhibit #6) that had been provided to White by Maple Furniture on January 1, 2017, and that had also been provided to White by “Randy” of Maple Furniture when White had wanted to complain to the manager of the store about not getting delivery of the bed. White’s email of January 20, 2020 that White had sent to Maple Furniture had informed Maple Furniture that White was cancelling her order due to lack of delivery of the $700 bed that had been purchased on a lay-away plan, as well as White requesting that Maple Furniture refund the money White had paid to Maple Furniture.

[141] Section 26(2) of the Consumer Protection Act, 2002 provides that if the delivery date or commencement date is not specified in the “future performance agreement”, a consumer may cancel the agreement at any time before delivery or commencement if the supplier does not deliver or commence performance within 30 days after the date the agreement is entered into [emphasis is mine below]:

Late delivery

26(1) A consumer may cancel a future performance agreement at any time before delivery under the agreement or the commencement of performance under the agreement if the supplier,

(a) does not make delivery within 30 days after the delivery date specified in the agreement or an amended delivery date agreed to by the consumer in writing; or

(b) does not begin performance of his, her or its obligations within 30 days after the commencement date specified in the agreement or an amended commencement date agreed to by the consumer in writing.

Delivery or commencement date not specified

(2) If the delivery date or commencement date is not specified in the future performance agreement, a consumer may cancel the agreement at any time before delivery or commencement if the supplier does not deliver or commence performance within 30 days after the date the agreement is entered into.

[142] Therefore, as there had been no delivery of the $700 bed, White would have the legal right to cancel her future performance agreement with Maple Furniture at any time before the delivery of the bed if Maple Furniture did not deliver the bed or commence performance within 30 days of the agreement being entered into on January 1, 2017, as specified under s. 26(2). Furthermore, there is no explicit date mentioned in the agreement when delivery of the bed would be made once White had paid the full $700 for the bed in the future performance agreement between Dahlia White and Maple Furniture. With respect to whether Dahlia White can legally cancel her order of the $700 bed and the $2800 bedroom set out in the future performance agreement (Exhibit #6), it is provided under s. 26(2) of the Consumer Protection Act, 2002, that if the delivery date or commencement date is not specified in the future performance agreement, a consumer may cancel the agreement at any time before delivery or commencement if the supplier does not deliver or commence performance within 30 days after the date the agreement is entered into. White had entered into the future performance agreement on January 1, 2017. Ergo, Dahlia White could cancel the future performance agreement at any time after January 31, 2017, if Maple Furniture did not deliver the $700 bed or the $2800 bedroom set to White. White had sent the notice of cancellation to Maple Furniture on January 20, 2020, which is a date that falls after January 31, 2017, because Maple Furniture had refused to deliver the $700 bed on a lay-away plan that she had paid for fully to Maple Furniture in the year 2017 and because “Randy” of Maple Furniture had kept asking White to pay more money to Maple Furniture on the $2800 bedroom set on the second lay-away plan before the $700 bed would be delivered, even though in the future performance agreement entered into on January 1, 2017, “Randy” of Maple Furniture had agreed that the $700 bed would be delivered once White had fully paid for the $700 bed. The agreement between White and Maple Furniture did not require that White fully pay off both the $700 bed and the $2800 bedroom set before the $700 bed would be delivered to White.

[143] Therefore, after January 31, 2017, White was legally in her right to cancel the agreement at any time before delivery of the bed by Maple Furniture upon White giving proper notice to Maple Furniture as required under s. 92 of the Consumer Protection Act, 2002. Moreover, s. 92(4) specifies that where White had given her cancellation notice to Maple Furniture in writing other than by personal service, then the notice shall be deemed to be given when it was sent. In addition, s. 92(5) permits the consumer to send the cancellation notice to the address set out in a consumer agreement or to an address of the supplier known by the consumer [emphasis is mine below]:

Form of consumer notice

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

Same

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

Giving notice

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

Notice given when sent

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

Address

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

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

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

[144] As such, under s. 92(4), the email sent on January 20, 2020 by Dahlia White to Maple Furniture regarding White’s cancellation of her order under the future performance agreement (see Exhibit #8), the notice shall be deemed to be given to Maple Furniture on January 20, 2020. In addition, White had complied with s. 92(5) when White had sent the notice of cancellation to Maple Furniture’s address that had been set out in the future performance agreement, which in this case was the email address of “info@maplefurniture” that was set out in that agreement (Exhibit #6).

[145] Moreover, the Consumer Protection Act, 2002 sets out the obligations that would be imposed on the consumer and the supplier in respect to the cancellation of consumer agreements and are provided for in ss. 94, 95 and 96, which includes the requirement under s. 96(1) that the supplier is obligated to refund any payments made by the consumer under the agreement and that the consumer would have a right of action under s. 96(6) against the supplier if the supplier fails to refund the payments made by the consumer [emphasis is mine below]:

Cancellation

94(1) If a consumer has a right to cancel a consumer agreement under this Act, the consumer may cancel the agreement by giving notice in accordance with section 92.

Effective time

(2) The cancellation takes effect when the consumer gives notice.

Effect of cancellation

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

(a) the consumer agreement;

(b) all related agreements;

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

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

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

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

(ii) otherwise related to the consumer agreement.

Obligations on cancellation

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

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

(b) return to the consumer in a condition substantially similar to when they were delivered all goods delivered under a trade-in arrangement or refund to the consumer an amount equal to the trade-in allowance.

Repossession or return of goods

(2) Upon cancelling a consumer agreement, the consumer, in accordance with the prescribed requirements and in the prescribed manner, shall permit the goods that came into the consumer's possession under the agreement or a related agreement to be repossessed, shall return the goods or shall deal with them in such manner as may be prescribed.

Reasonable care

(3) If a consumer cancels a consumer agreement, the consumer shall take reasonable care of the goods that came into the possession of the consumer under the agreement or a related agreement for the prescribed period.

To whom obligation owed

(4) The consumer owes the obligation described in subsection (3) to the person entitled to possession of the goods at the time in question.

No further obligation

(5) Compliance with this section discharges the consumer from all obligations relating to the goods and the consumer is under no other obligation, whether arising by contract or otherwise, to take care of the goods.

Right of action

(6) If a consumer has cancelled a consumer agreement and the supplier has not met the supplier's obligations under subsection (1), the consumer may commence an action.

Same

(7) If a consumer has cancelled a consumer agreement and has not met the consumer's obligations under this section, the supplier or the person to whom the obligation is owed may commence an action.

[146] Therefore, once Maple Furniture had been deemed to have received the notice of cancellation on January 20, 2020, that Dahlia White was cancelling her order under the January 1, 2017 agreement, then Maple Furniture, as the supplier, had to comply with s. 96(1) and refund any payments made by White to Maple Furniture under that future performance agreement of January 1, 2017. Furthermore, Maple Furniture had to comply with s. 79(1) of Ont. Reg. 17/05, which required Maple Furniture to refund White’s money back to her within 15 days of the date on which White had given notice to Maple Furniture that she was cancelling the agreement [emphasis is mine below]:

Supplier obligations on cancellation

79(1) A supplier who is required to comply with subsection 96(1) of the Act shall do so within 15 days after the day the consumer gives notice to the supplier in accordance with section 92 of the Act that the consumer is cancelling the consumer agreement.

[147] Hence, Maple Furniture was obligated to fully refund White’s payments of $1100 made under the January 1, 2017 future performance agreement back to her by February 4, 2020, which is 15 days after the cancellation notice date of January 20, 2020.

(i) Did Maple Furniture, as the supplier, fail to refund payment to Dahlia White, a consumer, within fifteen days of being given notice of cancellation of the consumer agreement on January 20, 2020, thereby committing an offence under s. 116(1)(b)(viii) of the Consumer Protection Act, 2002?

[148] The prosecution contends that Maple Furniture had failed to comply with s. 96(1) of the Consumer Protection Act, 2002 in not refunding to Dahlia White, a consumer, any payment she had made to Maple Furniture under the January 1, 2017 agreement within 15 days of White giving notice of the cancellation of that agreement. Furthermore, s. 116(1)(b)(viii) of the Consumer Protection Act, 2002 makes it an offence for a person who contravenes or who fails to comply with s. 96(1) to be guilty of an offence [emphasis is mine below]:

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

(b) contravenes or fails to comply with,

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

[149] Since Maple Furniture had failed to deliver the $700 bed purchased under a lay-away plan that Dahlia White had fully paid for in 2017, White was legally entitled to cancel the future performance agreement under s. 26(2) of the Consumer Protection Act, 2002 at any time after January 31, 2017 (30 days after the future performance agreement had been entered into), and before delivery of the $700 bed had been made, since the January 1, 2017 future performance agreement did not contain a specific date for delivery of the $700 bed or the $2800 bedroom set to White when either the bed or the bedroom set on the lay-away plans had been fully paid for by White. White had exercised that right of cancellation and had notified Maple Furniture of that cancellation on January 20, 2020, by email to Maple Furniture’s email address of “info@maplefurniture.ca” (see Exhibit #8). When White sent that cancellation notice White had already paid $1100 to Maple Furniture, which is $400 more than the price of the $700 bed. When “Randy” of Maple Furniture informed White that Maple Furniture would not deliver the bed to White until White paid another $500 towards the $2800 bedroom set on her second lay-away plan, she had asked to speak to the manager of the store. “Randy” then told White that she could contact management of Maple Furniture at the email address of “info@maplefurniture.ca”. White had sent an email to the management of Maple Furniture using that email address complaining about Randy’s request for more money and the non-delivery of the bed, but the management of Maple Furniture did not respond to her written complaint. White then send that January 20, 2020 notice of cancellation and a request for a refund to Maple Furniture through that email address of “info@maplefurniture.ca”, that had been provided to her by “Randy”. White then received a telephone call from someone from Maple Furniture who told White that her bed would be delivered if she signed a document saying all issues had been resolved with Maple Furniture. However, White declined the offer and told the person from Maple Furniture that she would not sign the document until she had the bed delivered first. Maple Furniture had still not delivered the bed to White even though White had paid $400 more to Maple Furniture than the agreed price of $700 for the bed. Once that notice of cancellation was given by email on January 20, 2020, Maple Furniture was legally obligated to refund the $1100 in payments made by Dahlia White under the January 1, 2017 agreement she had made with Maple Furniture within 15 days of that notice. Maple Furniture had failed to refund the payments to Dahlia White within the 15 days.

[150] From the testimony of Dahlia White Maple Furniture has not refunded the $1100 that had been paid by White to Maple Furniture. Maple Furniture had been obligated to refund the $1100 to White before February 4, 2020, which is 15 days after the date of January 20, 2020, when White had given Maple Furniture notice of the cancellation of the agreement and requested a refund. Maple Furniture has failed to refund the $1100 to White. Therefor the prosecution has proven beyond a reasonable doubt that Maple Furniture has committed the actus reus of the offence of set out in count #19 of “failing to provide a refund to a consumer”.

[151] Moreover, there is no evidence that Maple Furniture in regards to this offence of “failing to provide a refund payment” to Dahlia White, a consumer, in count #19, had taken all reasonable steps or had been duly diligent in avoiding committing this offence between the February 4, 2020 and August 12, 2021, in the City of Brampton.

[152] As a consequence, the prosecution has met its burden in proving that Maple Furniture has committed the offence of “fail to refund Dahlia White, a consumer, within fifteen days after the said consumer gave notice of cancellation of a consumer agreement” in accordance with the requirements prescribed by s. 79(1) of Ont. Reg. 17/05 of the Consumer Protection Act, 2002, between February 4, 2020 and August 12, 2021, in the City of Brampton, contrary to subsection 96(1)(a) of the Consumer Protection Act, 2002, and thereby committed an offence contrary to s.116(1)(b)(viii) of the Consumer Protection Act, 2002.

(7) Did the directors of Maple Furniture fail to prevent Maple Furniture from committing the offence of failing to refund payment to Dahlia White, a consumer, within fifteen days of being given notice of cancellation of the consumer agreement on January 20, 2020, thereby committing an offence under s. 116(1)(b)(viii) of the Consumer Protection Act, 2002? (count #22)

[153] Dahlia White had sent proper notice of cancellation and her request for a refund by email to Maple Furniture on January 20, 2020. Maple Furniture was then legally obligated to refund the $1100 in payments made by Dahlia White under the January 1, 2017 future performance agreement she had with Maple Furniture within 15 days of that notice. Maple Furniture had failed to refund the payments to Dahlia White within the 15 days. As directors of Maple Furniture, Kulwinder SINGH and Harminder Singh SANDHU had the legal obligation to ensure that Maple Furniture complies with their legal obligations under the Consumer Protection Act, 2002, which includes ensuring that Maple Furniture refunds money back to consumers when Maple Furniture is legally obligated to make those refunds. And, since Dahlia White did not receive the $1100 refund from Maple Furniture, both Kulwinder SINGH and Harminder Singh SANDHU would have failed in their legal obligation to ensure that Maple Furniture made the refund of $1100 to White and to prevent Maple Furniture from failing to refund to Dahlia White, a consumer, within 15 days of being given notice of cancellation of the consumer agreement by Dahlia White on January 20, 2020.

[154] Ergo, the prosecution has proven beyond a reasonable doubt that Kulwinder SINGH and Harminder Singh SANDHU, as directors of Maple Furniture, have respectively committed the actus reus of the offence set out in count #22 of “failing to prevent Maple Furniture from failing to refund Dahlia White, a consumer, within 15 days of being given notice of cancellation of the consumer agreement by Dahlia White”, in accordance with the requirements prescribed by s. 79(1) of Ont. Reg. 17/05, contrary to s. 96(1)(a) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A.

[155] In respect to the defence of due diligence, Kulwinder SINGH, and Harminder Singh SANDHU, the two directors of Maple Furniture did not appear for trial, so there is no evidence of any due diligence or reasonable care on their part respectively in preventing Maple Furniture from failing to refund payment to Dahlia White, a consumer, within fifteen days of being given notice of cancellation of the future performance agreement on January 20, 2020.

[156] Therefore, the prosecution has met its burden in proving beyond a reasonable doubt that Kulwinder SINGH, and Harminder Singh SANDHU, as directors of Maple Furniture has between February 4, 2020 and August 12, 2021, have respectively committed the offence of “did fail to prevent 9764895 Canada Inc. carrying on business as Maple Furniture from failing to refund Dahlia White, a consumer, within 15 days of being given notice of cancellation of the consumer agreement by Dahlia White”, in accordance with the requirements prescribed by s. 79(1) of Ont. Reg. 17/05, contrary to s. 96(1)(a) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A., and thereby respectively committed an offence contrary to s. 116(3) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A.

7. DISPOSITION

(a) Charges against 9764895 Canada Inc. carrying on business as Maple Furniture.

(i) Counts #13 and #14 in respect to consumer Goutham Raj Kumar Nagolu

[157] In respect to counts #13 and #14, the prosecution has fulfilled its burden in proving beyond a reasonable doubt that the corporate defendant, 9764895 Canada Inc. carrying on business as Maple Furniture, has committed the offences set out on counts #13 and #14 in respect to the consumer Goutham Nagolu.

[158] In particular, for count #13, based on the totality of the evidence the prosecution has fulfilled its burden in proving beyond a reasonable doubt that 9764895 Canada Inc. carrying on business as Maple Furniture has committed the offence of “failing to deliver a future performance agreement” on or about May 2, 2019 to Goutham Raj Kumar Nagolu, a consumer, containing the information required by s. 24 of Ontario Regulation 17/05”, contrary to s. 22 of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A, and thereby committed an offence contrary to s. 116(2) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A.

[159] And that for count #14, based on the totality of the evidence, the prosecution has fulfilled its burden in proving beyond a reasonable doubt that 9764895 Canada Inc. carrying on business as Maple Furniture has committed the offence of “engaging in an unfair practice” between May 2, 2019 and January 31, 2020, by making a false, misleading or deceptive representation to Goutham Raj Kumar Nagolu, a consumer, contrary to s. 17(1) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A, and thereby committed an offence contrary to s. 116(1)(b)(ii) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A.

(ii) Counts #17, #18, and #19 in respect to consumer Dahlia White

[160] In respect to count #17, the prosecution has not fulfilled its burden in proving beyond a reasonable doubt that the corporate defendant, 9764895 Canada Inc. carrying on business as Maple Furniture, has committed the offence set out on count #17 in respect to the consumer Dahlia White.

[161] However, in respect to counts #18 and #19, the prosecution has fulfilled its burden in proving beyond a reasonable doubt that the corporate defendant, 9764895 Canada Inc. carrying on business as Maple Furniture, has committed the offences set out on counts #18 and #19 in respect to the consumer Dahlia White.

[162] Specifically, for count #17, the prosecution has not fulfilled its burden in proving beyond a reasonable doubt that 9764895 Canada Inc. carrying on business as Maple Furniture had committed the offence of “failing to deliver a future performance agreement” between January 1, 2017 and January 31, 2020 to Dahlia White containing the information required by s. 24 of Ontario Regulation 17/05”, contrary to s. 22 of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A.

[163] And that for count #18, based on the totality of the evidence, the prosecution has fulfilled its burden in proving beyond a reasonable doubt that 9764895 Canada Inc. carrying on business as Maple Furniture has committed the offence of “engaging in an unfair practice” by making a false, misleading or deceptive representation to Dahlia White, a consumer, between January 1, 2017 and January 31, 2020, contrary to s. 17(1) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A. and thereby committed an offence contrary to s. 116(1)(b)(ii) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A.

[164] And that for count #19, based on the totality of the evidence, the prosecution has fulfilled its burden in proving beyond a reasonable doubt that the corporate defendant, 9764895 Canada Inc. carrying on business as Maple Furniture, has committed the offence of “failing to provide a refund payment” to Dahlia White, a consumer, within 15 days of being given notice of cancellation of the consumer agreement by Dahlia White, in accordance with the requirements prescribed by s. 79(1) of Ont. Reg. 17/05, contrary to s. 96(1)(a) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A., and thereby committed an offence contrary to s. 116(1)(b)(viii) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A.

(b) Charges against the directors, Kulwinder SINGH, and Harminder Singh SANDHU

(i) Counts #15 and #16 in respect to consumer Goutham Nagolu

(ii) In respect to counts #15 and #16, the prosecution has fulfilled its burden in proving beyond a reasonable doubt that the two defendants, Kulwinder SINGH, and Harminder Singh SANDHU, as directors of 9764895 Canada Inc. carrying on business as Maple Furniture, have respectively committed the offences set out in counts #15 and #16 in respect to the consumer Goutham Nagolu.

(iii) In particular, for count #15, based on the totality of the evidence the prosecution has fulfilled its burden in proving beyond a reasonable doubt that the two defendants, Kulwinder SINGH, and Harminder Singh SANDHU, as directors of 9764895 Canada Inc. carrying on business as Maple Furniture has respectively committed the offence of “did fail to prevent 9764895 Canada Inc. carrying on business as Maple Furniture from committing the offence of fail to deliver a future performance agreement on or about May 2, 2019, to Goutham Raj Kumar Nagolu, a consumer, containing the information required by s. 24 of Ontario Regulation 17/05”, contrary to s. 22 of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A, and thereby respectively committed an offence contrary to s. 116(3) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A.

(iv) And that for count #16, based on the totality of the evidence, the prosecution has fulfilled its burden in proving beyond a reasonable doubt that the two defendants, Kulwinder SINGH, and Harminder Singh SANDHU, as directors of 9764895 Canada Inc. carrying on business as Maple Furniture has respectively committed the offence of “did fail to prevent 9764895 Canada Inc. carrying on business as Maple Furniture between May 2, 2019 and January 31, 2020, from engaging in an unfair practice in relation to Goutham Raj Kumar Nagolu, a consumer, by making a false, misleading or deceptive representation”, contrary to s. 17(1) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A, and thereby respectively committed an offence contrary to s. 116(3) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A.

(ii) Counts #20, #21, and #22 in respect to consumer Dahlia White

(v) In respect to count #20, the prosecution has not fulfilled its burden in proving beyond a reasonable doubt that the two defendants, Kulwinder SINGH, and Harminder Singh SANDHU, as directors of 9764895 Canada Inc. carrying on business as Maple Furniture, has respectively committed the offence set out on count #20 in respect to the consumer Dahlia White.

(vi) However, in respect to counts #21 and #22, the prosecution has fulfilled its burden in proving beyond a reasonable doubt that the two defendants, Kulwinder SINGH, and Harminder Singh SANDHU, as directors of 9764895 Canada Inc. carrying on business as Maple Furniture, have respectively committed the offences set out in counts #21 and #22 in respect to the consumer Dahlia White.

(vii) Specifically, for count #20, the prosecution has not fulfilled its burden in proving beyond a reasonable doubt that the two defendants, Kulwinder SINGH, and Harminder Singh SANDHU, as directors of 9764895 Canada Inc. carrying on business as Maple Furniture, have respectively committed the offence of “did fail to prevent 9764895 Canada Inc. carrying on business as Maple Furniture from committing the offence of fail to deliver a future performance agreement between January 1, 2017 and January 31, 2020 to Dahlia White, a consumer, containing the information required by s. 24 of Ontario Regulation 17/05”, contrary to s. 22 of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A.

(viii) And that for count #21, based on the totality of the evidence, the prosecution has fulfilled its burden in proving beyond a reasonable doubt that the two defendants, Kulwinder SINGH, and Harminder Singh SANDHU, as directors 9764895 Canada Inc. carrying on business as Maple Furniture, have respectively committed the offence of “did fail to prevent 9764895 Canada Inc. carrying on business as Maple Furniture from engaging in an unfair practice in relation to Dahlia White, a consumer, by making a false, misleading or deceptive representation between January 1, 2017 and January 31, 2020 to Dahlia White, contrary to s. 17(1) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A. and thereby respectively committed an offence contrary to s. 116(3) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A.

(ix) And that for count #22, based on the totality of the evidence, the prosecution has fulfilled its burden in proving beyond a reasonable doubt that the two defendants, Kulwinder SINGH, and Harminder Singh SANDHU, as directors 9764895 Canada Inc. carrying on business as Maple Furniture, have between February 4, 2020 and August 12, 2021, have respectively committed the offence of “did fail to prevent 9764895 Canada Inc. carrying on business as Maple Furniture from failing to refund Dahlia White, a consumer, within 15 days of being given notice of cancellation of the consumer agreement by Dahlia White”, in accordance with the requirements prescribed by s. 79(1) of Ont. Reg. 17/05, contrary to s. 96(1)(a) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A., and thereby respectively committed an offence contrary to s. 116(3) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A.

(x) Accordingly, convictions will be entered against 9764895 Canada Inc. carrying on business as Maple Furniture in respect to counts #13, #14, #18 and #19 and convictions will be entered against Kulwinder SINGH and Harminder Singh SANDHU respectively in respect to counts #15, #16, #21 and #22. And an acquittal will be entered in respect to count #17 on behalf of 9764895 Canada Inc. carrying on business as Maple Furniture and an acquittal will be entered in respect to count #20 on behalf of Kulwinder SINGH and Harminder Singh SANDHU, respectively.

Dated at the City of Brampton on January 23, 2024.

QUON J.P.

Ontario Court of Justice