Ontario (Ministry of Government and Consumer Services) v. Ivan’s Electric Limited, 2025 ONCJ 70

ONTARIO COURT OF JUSTICE

DATE: 2025 01 06
COURT FILE No.: Brampton 13-5731; 13-8091; 14-5740

IN THE MATTER OF an appeal under clause 116(2)(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended;

BETWEEN:
ATTORNEY GENERAL FOR ONTARIO (MINISTRY OF GOVERNMENT AND CONSUMER SERVICES)
Respondent (Appellant on sentence appeal)

— AND —

IVAN’S ELECTRIC LIMITED, IVAN VALOVIC, INSIGHT ELECTRIC INC., and PETER VALOVIC
Appellants (Respondents on sentence appeal)

Before Justice M.C.T. Lai
Heard in Writing
Reasons for Judgment released on January 6, 2025

Jamie Chiang and Jeffrey P. Ludlow — counsel for the prosecution
Ivan Valovic and Peter Valovic — self-represented on behalf of the appellants

On appeal from the convictions entered by Justice of the Peace R. Quon on April 4, 2017, reported at 2017 ONCJ 227, and from the sentence imposed on March 8, 2018, reported at 2018 ONCJ 165.

A. OVERVIEW

[1] Ivan Valovic, Peter Valovic, Ivan’s Electric Limited, and Insight Electric Inc. appeal their convictions for multiple offences under the Consumer Protection Act, 2002 (“the Act”) and O. Reg. 17/05 (“the Regulation”). The prosecution appeals against sentence.

[2] Ivan Valovic and his son, Peter Valovic, were electricians. Ivan Valovic’s company was Ivan’s Electric Limited. Peter Valovic’s company was Insight Electric Inc. After a lengthy trial that unfolded over more than two years, the justice of the peace convicted Ivan Valovic, Ivan’s Electric Limited, Peter Valovic, and Insight Electric Inc. (“the appellants”) of 89 counts, on three Informations, in relation to 11 consumers. He imposed global sentences consisting of fines and probation for Ivan Valovic and Peter Valovic, and consisting of fines for Ivan’s Electric Limited and Insight Electric Inc. A condition of Ivan Valovic’s probation order required him to make a $250 “reparation” payment to each of the 11 consumers for their inconvenience (“the reparation condition”).

[3] The appellants argue that their convictions should be set aside, and acquittals entered. They allege that the justice of the peace made legal errors in finding that the prosecution had proven the prohibited acts beyond a reasonable doubt and in rejecting their defences of due diligence. The prosecution argues that Ivan Valovic and Peter Valovic should receive custodial sentences, and that Ivan’s Electric Limited and Insight Electric Inc. should receive higher fines. They allege that the justice of the peace made legal errors that resulted in the imposition of demonstrably unfit sentences.

[4] Despite the complexity of the proceedings, many of the material facts were not contentious. The appellants did not challenge the consumers’ credibility at trial. The justice of the peace reached his conclusions despite largely rejecting the prosecution’s challenge to the appellants’ credibility at trial. Much of the dispute centered on the legal character of the impugned consumer interactions and on whether the appellants had established the defence of due diligence on a balance of probabilities in relation to any of the alleged offences.

[5] For the following reasons, I dismiss the appellants’ appeal against conviction. I accept the prosecution’s fair concession that the justice of the peace did not have the authority to impose the reparation condition. I set that condition aside. I otherwise dismiss the prosecution’s appeal against sentence.

B. FACTUAL BACKGROUND

(i) The verdicts and sentences

[6] The appellants’ convictions consisted of four kinds of offences:

• Fail to deliver direct agreement containing required information, contrary to s. 116(2) of the Act (“Fail to Deliver Required Information”);
• Fail to refund within 15 days after notice of cancellation, contrary to s. 116(1)(b)(viii) of the Act (“Fail to Refund”);
• Unfair practice by making false, misleading or deceptive representation, contrary to s. 116(1)(b)(ii) of the Act (“Unfair Practice”);
• Fail to take reasonable care to prevent corporation from committing an offence, contrary to s. 116(3) of the Act (“Fail to Take Reasonable Care”).

[7] The justice of the peace convicted Ivan Valovic of 25 counts (11 counts of Fail to Deliver Required Information; 5 counts of Fail to Refund; 7 counts of Unfair Practice; and 2 counts of Fail to Take Reasonable Care); Ivan’s Electric Limited of 25 counts (12 counts of Fail to Deliver Required Information; 6 counts of Fail to Refund; 7 counts of Unfair Practice); Peter Valovic of 19 counts (2 counts of Fail to Deliver Required Information; 2 counts of Unfair Practice; 15 counts of Fail to Take Reasonable Care); and Insight Electric Inc. of 20 counts (9 counts of Fail to Deliver Required Information; 4 counts of Fail to Refund; 7 counts of Unfair Practice). The verdicts and the sentences are summarized at para. 89 of the justice of the peace’s Reasons for Sentence.

[8] The justice of the peace imposed a global sentence consisting of fines (inclusive of victim fine surcharge) totalling $11,250 for Ivan Valovic; $11,750 for Ivan’s Electric Limited; $10,000 for Insight Electric Inc.; and $8,500 for Peter Valovic. Ivan Valovic was placed on a 2-year probation order that included a restitution condition ($2,839.02), a reparation condition ($250 to each consumer, for a total of $2,750), and a condition prohibiting him “from negotiating any agreements with any consumer for providing electrician services for residential houses or dwellings”. Peter Valovic was placed on a six-month probation order that included a restitution condition ($1,954.02).

(ii) The impugned consumer interactions

[9] The justice of the peace comprehensively reviewed the evidence in his detailed Reasons for Judgment. A brief summary will suffice for my purposes. The following section outlines the impugned consumer interactions in chronological order. Additional facts are referenced as necessary in the context of the grounds of appeal.

(ii.1) Denise Herold

• Information #1, Count 1: Fail to Deliver Required Information
• Information #1, Count 2: Fail to Take Reasonable Care
• Information #1, Count 3: Fail to Refund
• Information #1, Count 4: Failure to Take Reasonable Care

[10] In relation to Denise Herold, Ivan’s Electric Limited was convicted of Fail to Deliver Required Information (Count 1) and Fail to Refund (Count 3), while Ivan Valovic was convicted of Fail to Take Reasonable Care in respect of those two offences (Counts 2 and 4). The impugned interactions arose from June 2011.

[11] The justice of the peace summarized and analyzed the evidence at paras. 328-345 of his Reasons for Judgment. The general events were as follows:

• The contact. Ms. Herold called Ivan’s Electric Limited because there was a power outage in her apartment unit.
• The first consumer agreement. On June 12, 2011, Peter Valovic came to her apartment unit. He troubleshooted the problem. He prepared a consumer agreement for a total of $406.80. Ms. Herold paid it using her credit card.
• The second consumer agreement. While Peter Valovic was at her apartment on June 12, 2011, Ms. Herold agreed to have Ivan’s Electric Limited do additional work on June 14, 2011. Peter Valovic prepared a second consumer agreement for a total of $6,215. Ms. Herold paid a deposit of $1,864.50 using her credit card.
• Ms. Herold’s request for a refund. On June 13, 2011, Ms. Herold called Ivan’s Electric Ltd. to cancel the second consumer agreement. She also sent a fax informing them of her position that the consumer agreement was a direct agreement, such that she had a 10-day cooling-off period and did not have to pay the 30% cancellation fee.
• Response to the refund request. On June 25, 2011, Ivan Valovic sent Ms. Herold a letter acknowledging receipt of her notice of cancellation. He informed her of his position that the consumer agreement was not a direct agreement and, in the alternative, that the regulations entitled him to “reasonable compensation” for the supplies they had gathered and the time and labour they had scheduled. He offered her a refund of $1,008.77.
• On October 19, 2013, Ivan Valovic sent Ms. Herold a letter advising that he had called on October 17, 2013, and that she had agreed to accept the refund of $1,008.77 to close the matter. On October 19, 2013, Ms. Herold wrote and signed a document to that effect.

(ii.2) Gladys Canadas

• Information #1, Count 7: Fail to Deliver Required Information
• Information #1, Count 8: Fail to Refund

[12] Convictions were entered on two counts in respect of Gladys Canadas. Ivan’s Electric Limited and Ivan Valovic were convicted of Fail to Deliver Required Information (Count 7) and Fail to Refund (Count 8). The impugned interactions arose from September and October 2011.

[13] The justice of the peace summarized and analyzed the evidence at paras. 347-355 of his Reasons for Judgment. The general events were as follows:

• The contact. On September 19, 2011, Ms. Canadas called Ivan’s Electric Limited because there was a power outage in her basement and for her oven.
• The consumer agreement. Ivan Valovic arrived at Ms. Canadas’ house later that day. He troubleshooted the problem. He prepared a consumer agreement for a total of $406.80. Ms. Canadas paid the full amount using her credit card.
• Ms. Canadas’ request for a refund. On September 25, 2011, Ms. Canadas sent a letter to Ivan’s Electric Limited to request a refund of $296.80. She took the position that she had not been told about the service call charge.
• Response to the refund request. On October 3, 2011, Ivan Valovic sent Ms. Canadas a letter acknowledging receipt of her request. He took the position that she had not asked about the service call charge. He refused to provide any refund.

(ii.3) Catherine Telford

• Information #1, Count 9: Fail to Deliver Required Information

[14] Convictions were entered on one count in respect of Catherine Telford. Ivan’s Electric Limited and Ivan Valovic were convicted of Fail to Deliver Required Information (Count 9). The impugned interactions arose from December 2011 and January 2012.

[15] The justice of the peace summarized and analyzed the evidence at paras. 356-369 of his Reasons for Judgment. The general events were as follows:

• The contact. On December 8, 2011, Ms. Telford called Ivan’s Electric Limited because her electric furnace was not working.
• The first consumer agreement. Ivan Valovic arrived at Ms. Telford’s house later that day. He troubleshooted the problem and replaced the thermostat. He prepared an agreement for a total of $819.25. Ms. Telford paid the full amount using her credit card.
• The second consumer agreement. On December 9, 2011, Ms. Telford called Ivan’s Electric Limited because the furnace was only working intermittently. Ivan Valovic arrived. He prepared an agreement for a total of $360 + HST, which Ms. Telford signed. Ivan Valovic also attended on December 10, 2011.
• The third consumer agreement. On December 12, 2011, Ms. Telford called Ivan’s Electric Limited because the furnace was not working. Ivan Valovic arrived. He prepared an agreement, encompassing the second consumer agreement, the December 10, 2011 attendance and future work, for a total of $904. Ms. Telford paid the full amount using her credit card.

[16] On April 2, 2012, the Electrical Safety Authority (“ESA”) issued a proposal to revoke Ivan’s Electric Limited’s electrical contractor license for safety reasons because it no longer had a licensed master electrician. Ivan Valovic’s master electrician license had lapsed on June 18, 2010.

(ii.4) Peter Christensen

• Information #1, Count 11: Unfair Practice
• Information #1, Count 12: Fail to Deliver Required Information
• Information #1, Count 13: Fail to Take Reasonable Care
• Information #1, Count 14: Fail to Refund
• Information #1, Count 15: Fail to Take Reasonable Care

[17] Convictions were entered on five counts in respect of Peter Christensen. Ivan’s Electric Limited, Ivan Valovic, and Insight Electric were convicted of Unfair Practice (Count 11), Fail to Deliver Required Information (Count 12), and Fail to Refund (Count 14). Peter Valovic was convicted of Fail to Take Reasonable Care in respect of the latter two offences (Counts 13 and 15). The impugned interactions arose from June – September 2012.

[18] The justice of the peace summarized and analyzed the evidence at paras. 370-395 of his Reasons for Judgment. The general events were as follows:

• The contact. On June 1, 2012, Mr. Christensen called Ivan’s Electric Limited because of a power outage in some parts of his house.
• The first consumer agreement. Ivan Valovic arrived that day in the Ivan’s Electric Limited van, and presented an Ivan’s Electric Limited business card. He troubleshooted the problem. He told Mr. Christensen that it was a dangerous situation. He prepared an agreement for a total of $6,621.80, on an Insight Electric Inc. form. Mr. Christensen paid the full amount with his credit card, although he believed it was a pre-authorization and not a payment.
• The second consumer agreement. After Ivan Valovic had started working pursuant to the first consumer agreement, he told Mr. Christensen that additional work needed to be done. He prepared an agreement for an additional amount of $1,695. Mr. Christensen paid the full amount with his credit card, although he believed it was a pre-authorization and not a payment.
• Mr. Christensen subsequently asked Ivan Valovic to invoice his wife’s Montessori school because his home insurance would not cover the cost. Ivan Valovic was concerned that Mr. Christensen might not pay after the work was completed, so he immediately charged the full payment to Mr. Christensen’s credit card. The payment went to Ivan’s Electric Limited’s account because he did not have Insight Electric Inc.’s account numbers.
• Mr. Christensen’s request for a refund and the response. Sometime after the work had been completed, Mr. Christensen called Ivan Valovic to request a partial refund, failing which he would dispute the credit card charges. His position was that he had been grossly overcharged. Ivan Valovic refused to provide any refund. His position was that the work had been completed, the payments had been made, and that Mr. Christensen could contact the ESA. Over the following months, Mr. Christensen pursued a series of complaints and disputed the credit card charges.

(ii.5) Terry Bardeau

• Information #2, Count 5: Fail to Deliver Required Information
• Information #2, Count 6: Fail to Take Reasonable Care
• Information #2, Count 7: Unfair Practice
• Information #2, Count 8: Fail to Take Reasonable Care

[19] Convictions were entered on four counts in respect of Terry Bardeau. Ivan’s Electric Limited, Ivan Valovic, and Insight Electric Inc. were convicted of Fail to Deliver Required Information and Unfair Practice (Count 5 and Count 7). Peter Valovic was convicted of Fail to Take Reasonable Care in respect of these offences (Count 6 and Count 8). The impugned interactions arose from December 2012.

[20] The justice of the peace summarized and analyzed the evidence at paras. 396-411 of his Reasons for Judgment. The general events were as follows:

• The contact. On Saturday, December 15, 2012, Mr. Bardeau called Ivan’s Electric Limited because two lights in his house were not working.
• The consumer agreement. Ivan Valovic came the next morning in an Ivan’s Electric Limited van. He performed some work. When he was done, Ivan Valovic prepared an agreement for a total of $926.60. He placed an Ivan’s Electric Limited sticker over the Insight Electric Inc. logo on the agreement. Mr. Bardeau paid the full amount on his credit card to Ivan’s Electric Limited.

(ii.6) Boris Wolchak

• Information #2, Count 21: Fail to Deliver Required Information
• Information #2, Count 22: Fail to Take Reasonable Care
• Information #2, Count 23: Unfair Practice
• Information #2, Count 24: Fail to Take Reasonable Care
• Information #2, Count 25: Fail to Deliver Required Information
• Information #2, Count 26: Fail to Take Reasonable Care
• Information #2, Count 27: Fail to Refund
• Information #2, Count 28: Fail to Take Reasonable Care

[21] Convictions were entered on eight counts in respect of Boris Wolchak. Ivan’s Electric Limited, Ivan Valovic, and Insight Electric Inc. were convicted of two counts of Fail to Deliver Required Information, Unfair Practice, and Fail to Refund (Count 21, Count 23, Count 25, and Count 27). Peter Valovic was convicted of four counts of Fail to Take Reasonable Care in respect of those offences (Count 22, Count 24, Count 26, and Count 28). The impugned interactions arose from December 2012, January 2013, and February 2013.

[22] The justice of the peace summarized and analyzed the evidence at paras. 509-546 of his Reasons for Judgment. The general events were as follows:

• The contact. On December 21, 2012, Mr. Wolchak called Ivan’s Electric Limited because some of the lights and receptacles in his house were not working.
• The first consumer agreement. Ivan Valovic attended later that day. He did some work. He prepared an agreement for a total of $1,306.28. He put an Ivan’s Electric Limited sticker on an Insight Electric Inc. form. Mr. Wolchak paid the full amount with his credit card.
• The second consumer agreement. On January 2, 2013, Mr. Wolchak called Ivan’s Electric Limited because a receptacle in his family room wall felt hot. Ivan Valovic arrived later that day. He told Mr. Wolchak that the receptacle had been improperly installed and needed to be replaced. Mr. Wolchak agreed. Ivan Valovic prepared an agreement for a total of $779.70. Mr. Wolchak paid the full amount with his credit card.
• The third consumer agreement. Ivan Valovic explained that other receptacles might have the same issue. Mr. Wolchak asked how much it would cost to replace the others. As a result of that exchange, Ivan Valovic prepared an agreement for a total of $5,085, for future work to be performed on January 9, 2013. Mr. Wolchak paid a deposit of $1,885 using his credit card.
• Mr. Wolchak’s request for a refund. On January 7, 2013, Mr. Wolchak called Ivan Valovic to postpone the future work described in the third consumer agreement. On or around January 23, 2013, Mr. Wolchak sent letters to Ivan Valovic to cancel the third consumer agreement, requesting the return of his $1,885 deposit, and requesting a refund of $1,800 for the December 21, 2012 and January 2, 2013 attendances. On January 24, 2013, Mr. Wolchak called Ivan Valovic to the same effect. Ivan Valovic initially refused to provide any refund. However, on or around December 15, 2013, Insight Electric Inc. provided a refund of $1,000 to close the matter.

(ii.7) Sandra Castator

• Information #2, Count 1: Fail to Deliver Required Information
• Information #2, Count 2: Fail to Take Reasonable Care

[23] Convictions were entered on two counts in respect of Sandra Castator. Ivan’s Electric Limited, Ivan Valovic, and Insight Electric Inc. were convicted of Fail to Deliver Required Information (Count 1). Peter Valovic was convicted of Fail to Take Reasonable Care in respect of this offence (Count 2). The impugned interactions arose from January and February 2013.

[24] The justice of the peace summarized and analyzed the evidence at paras. 445-463 of his Reasons for Judgment. The general events were as follows:

• The contact. Ms. Castator called Ivan’s Electric Limited because she wanted aluminum wiring testing for insurance purposes.
• The first consumer agreement. Ivan Valovic attended the next day. He prepared an agreement for a total of $1,231.70 for work. The agreement was on an Insight Electric Ltd. form. She paid the full amount with her credit card to Ivan’s Electric Limited.

(ii.8) Marjorie Riley

• Information #2, Count 9: Fail to Deliver Required Information
• Information #2, Count 10: Fail to Take Reasonable Care
• Information #2, Count 11: Unfair Practice
• Information #2, Count 12: Fail to Take Reasonable Care
• Information #2, Count 13: Fail to Refund
• Information #2, Count 14: Fail to Take Reasonable Care

[25] Convictions were entered on six counts in respect of Marjorie Riley. Ivan’s Electric Limited, Ivan Valovic, and Insight Electric Inc. were convicted of Fail to Deliver Required Information, Unfair Practice, and Fail to Refund (Count 9, Count 11, and Count 13). Peter Valovic was convicted of three counts of Fail to Take Reasonable Care in respect of those offences (Count 10, Count 12, and Count 14). The impugned interactions arose from January and February 2013.

[26] The justice of the peace summarized and analyzed the evidence at paras. 464-481 of his Reasons for Judgment. The general events were as follows:

• The contact. Ms. Riley called Ivan’s Electric Limited to install a light switch.
• The first consumer agreement. On January 31, 2013, Ivan Valovic attended. He performed some work. He prepared an agreement for a total of $305.10, on an Insight Electric Inc. form. Ms. Riley paid the full amount with her credit card to Ivan’s Electric Limited.
• Ms. Riley’s request for a refund and the response. Over the coming months, Ms. Riley pursued a complaint to the Better Business Bureau about Ivan’s Electric Limited and Insight Electric Inc., and asked them for assistance in obtaining a refund. Ivan Valovic refused to provide a refund.

(ii.9) Zaven Tahtadjian

• Information #2, Count 15: Fail to Deliver Required Information
• Information #2, Count 16: Fail to Take Reasonable Care
• Information #2, Count 17: Unfair Practice
• Information #2, Count 18: Fail to Take Reasonable Care
• Information #2, Count 19: Fail to Refund
• Information #2, Count 20: Fail to Take Reasonable Care

[27] Convictions were entered on six counts in respect of Zaven Tahtadjian. Ivan’s Electric Limited, Ivan Valovic, and Insight Electric Inc. were convicted of Fail to Deliver Required Information, Unfair Practice, and Fail to Refund (Count 15, Count 17, and Count 19). Peter Valovic was convicted of three counts of Fail to Take Reasonable Care in respect of those offences (Count 16, Count 18, and Count 20). The impugned interactions arose from April and May 2013.

[28] The justice of the peace summarized and analyzed the evidence at paras. 482-508 of his Reasons for Judgment. The general events were as follows:

• The contact. On April 16, 2013, Mr. Tahtadjian called Ivan’s Electric Limited because a downed cable had caused a power outage in his house.
• The first consumer agreement. Ivan Valovic attended later that day, in an Ivan’s Electric Limited van. He provided an Insight Electric Inc. business card. He prepared an agreement for a total of $4,068, for future work. The agreement was on an Insight Electric Inc. form. Mr. Tahtadjian paid the full amount with his credit card to Ivan’s Electric Limited.
• The second consumer agreement. After his work began, Ivan Valovic advised Mr. Tahtadjian that an additional part would need to be installed. Ivan Valovic proposed that he complete the installation the next morning. Due to his wife’s health, Mr. Tahtadjian agreed to have the installation completed that evening instead. Ivan Valovic prepared a second agreement for a total of $960.50. Mr. Tahtadjian paid the full amount with his credit card to Insight Electric Inc.
• Mr. Tahtadjian’s request for a refund. Ivan Valovic and Peter Valovic attended the next day. Mr. Tahtadjian gave them a letter dated April 17, 2023, indicating that he would file a complaint with the Ministry if they charged his credit cards, and that they should work out a new price. Mr. Tahtadjian did not receive a refund.

(ii.10) Eva Patterson

• Information #3, Count 1: Unfair Practice
• Information #3, Count 2: Fail to Deliver Required Information

[29] The appellants were each convicted of Unfair Practice and Fail to Deliver Required Information in respect of Eva Patterson (Count 1 and Count 2). The impugned interactions arose from December 2013.

[30] The justice of the peace summarized and analyzed the evidence at paras. 412-426 of his Reasons for Judgment. The general events were as follows:

• The contact. Ms. Patterson called Ivan’s Electric Limited to check and repair downed cables.
• The first consumer agreement. On December 26, 2013, Ivan Valovic and Peter Valovic attended Ms. Patterson’s house in an Ivan’s Electric Limited truck. They troubleshooted the problem. Ivan Valovic prepared an agreement for a total of $5,452.25, on an Insight Electric Inc. form. Ms. Patterson paid the full amount with her credit card to Insight Electric Inc.

(ii.11) Nigel Lundie

• Information #3, Count 4: Unfair Practice
• Information #3, Count 5: Fail to Deliver Required Information

[31] The appellants were each convicted of Unfair Practice and Fail to Deliver Required Information in respect of Nigel Lundie (Count 4 and Count 5). The impugned interactions arose from December 2013.

[32] The justice of the peace summarized and analyzed the evidence at paras. 427-444 of his Reasons for Judgment. The general events were as follows:

• The connection. On December 26, 2013, Mr. Lundie called Ivan’s Electric Limited because of downed cables.
• The first consumer agreement. Ivan Valovic and Peter Valovic attended the next morning in an Ivan’s Electric Limited van. Ivan Valovic prepared an agreement for a total of $6,746.10, on an Insight Electric Inc. form. Mr. Lundie paid the full amount with his credit card before work commenced.
• The second consumer agreement. Later that day, Ivan Valovic told Mr. Lundie that additional rewiring work was required that was not covered by the first agreement. He prepared a second agreement for a total of $508.50. Mr. Lundie paid the full amount with his credit card.

C. ISSUES ON THE CONVICTION APPEAL

(i) The procedural history of the appeal

[33] The appellants were represented by counsel until May 17, 2024. They are now self-represented, with Ivan Valovic providing written submissions on their joint behalf.

[34] A brief review of the procedural history is necessary to understand the origin of the grounds of appeal, why the appeal proceeded in writing, and why almost seven years have passed between the imposition of sentence on March 18, 2018 and the disposition of this appeal.

[35] Around March 12, 2020, the prosecution perfected its sentence appeal. Oral argument was adjourned due to the pandemic and eventually listed for January 13, 2023. The appellants perfected their conviction appeal around November 14, 2022. The prosecution filed its response around December 31, 2022. The appellants filed their response to the prosecution’s sentence appeal around January 10, 2023.

[36] The January 13, 2023 hearing was adjourned due to former counsel’s health. It was rescheduled for May 19, 2023. That hearing was adjourned due to the prosecutor’s unexpected medical leave. Another prosecutor took over the file and the hearing was rescheduled for November 10, 2023. On that date, at the appellants’ request and with the prosecutor’s consent, I ordered that the appeal proceed in writing. I gave the parties an opportunity to file supplementary written submissions. Due to his medical issues, former counsel for the appellants did not file those submissions until March 18, 2024. The prosecution filed its response on April 26, 2024.

[37] On May 9, 2024, Ivan Valovic submitted a letter on behalf of the appellants, expressing their wish to discharge former counsel. They asked for two weeks to provide their own written submissions. On May 10, 2024, the Court requested the position of counsel. On May 17, 2024, I removed former counsel from the record and gave the appellants until June 14, 2024 to file written submissions. Ivan Valovic filed those submissions on June 14, 2024. On June 28, 2024, the prosecution advised that they would not be filing an additional response, and I took the matter under reserve.

(ii) Issues on the conviction appeal

[38] In the result, I have received the original factums and supplementary written submissions filed by former counsel for the appellants, as well as the written materials filed by Ivan Valovic on behalf of the appellants. It is clear from Ivan Valovic’s written materials, which were detailed, organized and sincere, that the issues in this case are very important to him and to his family. To ensure that the appellants have the full benefit of the arguments, I have considered the issues raised in the totality of the materials.

[39] I consider the following issues on the appellants’ appeal against conviction:

1. Did the justice of the peace correctly hold that the consumer agreements were “direct agreements” within the meaning of s. 20(1) of the Act?
2. Did the justice of the peace reasonably find that the prosecution had proven the actus reus of the Fail to Deliver Required Information offences?
3. Did the justice of the peace reasonably find that the prosecution had proven the actus reus of the Fail to Refund offences?
4. Did the justice of the peace err by finding that the prosecution had proven the actus reus of the Unfair Practice offences?
   (a) Did the justice of the peace reasonably exercise his discretion to amend the Unfair Practice counts that referred to the wrong section of the Act?
   (b) Did the justice of the peace reasonably find that the prosecution had proven the prohibited acts?
5. Did the justice of the peace reasonably find that the prosecution had proven the actus reus of Fail to Take Reasonable Care?
6. Did the justice of the peace reasonably find that the appellants had failed to establish the defence of due diligence on a balance of probabilities?

D. THE AGREEMENTS WERE “DIRECT AGREEMENTS”

[40] The offences of Fail to Deliver Required Information and Fail to Refund only apply to consumer agreements that are “direct agreements” within the meaning of s. 20(1) of the Act. The offence of Unfair Practice applies to “direct agreements” as well as other types of consumer agreements. However, some of the impugned representations only made out the actus reus of Unfair Practice if the agreements were “direct agreements”.

[41] The appellants argue that the justice of the peace erred in law by holding that the impugned consumer agreements were “direct agreements”. They argue that s. 20(1) of the Act only applies to door-to-door sales. In this case, the consumers initiated contact with Ivan’s Electric Limited and solicited the attendance. The appellants further submit that s. 20(1) of the Act does not apply because they negotiated or concluded the consumer agreements at their “place of business”, which is the consumer’s home.

[42] The proper interpretation of a phrase in a statute is a question of law and reviewable on a standard of correctness. For the following reasons, I agree with the justice of the peace that the impugned consumer agreements were “direct agreements” within the meaning of s. 20(1) of the Act.

(i) The legislative scheme

[43] The Act was enacted in 2002 to modernize consumer law in Ontario. It consolidated the existing statutes and updated the law “to provide protections for newer businesses and newer forms of transactions that were entering the marketplace”. The principal concern behind the enactment of the Act was “with respect to financial transactions, and the potential for scams to operate to the detriment of consumers”.

[44] Section 7(1) of the Act provides that the substantive and procedural rights given under the Act apply despite any agreement or waiver to the contrary. Part IV of the Act is entitled “Rights and Obligations Respecting Specific Consumer Agreements”. A “direct agreement” is one such specific consumer agreement.

[45] Section 20(1) of the Act defines a “direct agreement”:

“direct agreement” means a consumer agreement that is negotiated or concluded in person at a place other than,
(a) at the supplier’s place of business, or
(b) at a market place, an auction, trade fair, agricultural fair or exhibition;

[46] Sections 41 - 43 of the Act are situated under the heading “Direct Agreements”. In conjunction with s. 35 of the Regulation, these provisions impose obligations on the supplier and provide rights to the consumer with respect to “direct agreements”. These sections are discussed further below in Sections E and F.

(ii) General principles

[47] The modern approach to statutory interpretation is “to seek the intent of Parliament by reading the words of the provision in context and according to their grammatical and ordinary sense, harmoniously with the scheme and the object of the statute”. That approach “has been further distilled to the useful shorthand of ‘text, context, and purpose’”.

[48] To similar effect, the Legislation Act, 2006 which applies to every provincial Act and regulation, provides for a rule of liberal interpretation:

64 (1) An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.
(2) Subsection (1) also applies to a regulation, in the context of the Act under which it is made and to the extent that the regulation is consistent with that Act.

[49] There is “no sequential ordering of the modern principle factors, beyond beginning with the text of the statute to be interpreted”. As Miller J.A. explained in Walsh, the factors are closely related and need not be addressed separately in every case. Their “unity is serving the same inquiry; what can the interpreter ascertain about Parliament's intention? What changes to the rights and obligations of persons did Parliament intend through the legislation enacted?”

(iii) Application to this case

[50] I conclude, based on the text, context, and purpose of s. 20(1) of the Act, that the definition of “direct agreement” is not limited to door-to-door sales, and encompasses the impugned consumer agreements.

[51] I begin with the text. The first step in discerning the legislature’s intention “is to consider the words it used in the context it used them, giving those words their grammatical and ordinary meaning”. Absent ambiguity, the text “will normally dominate interpretation, although it may not always be sufficient”.

[52] Section 20(1) of the Act expressly defines two criteria for a “direct agreement”. First, the consumer agreement is negotiated or concluded in person. Second, the in-person negotiation or conclusion happened at a place other than the listed locations: (a) the supplier’s place of business; or (b) at a market place, an auction, trade fair, agricultural fair or exhibition. The text says nothing about who initiated contact or solicited the supplier’s attendance.

[53] Accordingly, in its grammatical and ordinary sense, s. 20(1) of the Act applies as long as those two criteria are met. The text encompasses more situations than door-to-door sales and includes situations in which the consumer initiates contact or solicits the supplier’s attendance at the unlisted location.

[54] I turn next to the context and purpose of the Act and the Regulation. Reading the words of a statute in the context of the legislative scheme as a whole can help with understanding legislative intent. Three aspects of the legislative scheme are particularly instructive.

[55] First, the Regulation contemplates a “direct agreement” that falls outside the door-to-door sales scenario. Section 35(1) of the Regulation, paragraph 4(i), requires that a “direct agreement” set out the name of “the person, if any, who solicited the consumer in connection with the agreement” (emphasis added). Accordingly, the Regulation contemplates a “direct agreement” without supplier solicitation. Further, section 83(1) governs the consumer’s cancellation of a “direct agreement” if the consumer “solicited the goods or services from the supplier”. Accordingly, the Regulation also contemplates a “direct agreement” arising from consumer solicitation.

[56] Second, the Act is public welfare legislation. Public welfare legislation is “often drafted in very broad, general terms, precisely because it is remedial and designed to promote public safety and to prevent harm in a wide variety of circumstances.” Accordingly, public welfare legislation “is to be interpreted liberally in a manner that will give effect to its broad purpose and objective”, without unduly expanding the regulatory ministry’s mandate far beyond what is necessary.

[57] Third, the Act is consumer protection legislation. Its main objective, “as the name implies, is to protect consumers” by placing “consumers, who are average citizens engaging in business deals, on par with companies or citizens who regularly engage in business.” Accordingly, consumer protection legislation “must be interpreted generously in favour of the consumer”.

[58] The legislative purpose and objective of protecting consumers is best achieved by interpreting s. 20(1) of the Act as encompassing more situations than door-to-door sales and as including situations in which the consumer initiates contact or solicits the supplier’s attendance at the unlisted location. If the legislature wanted to restrict the definition to door-to-door sales, they would simply have used language to that effect. As the justice of the peace correctly recognized, door-to-door sales are one, but not the only, scenario in which a heightened power imbalance arises from the unlisted location at which an agreement is negotiated or concluded in person. Further, heightened consumer vulnerability at the unlisted location can arise regardless of who initiated contact or solicited the attendance. Against this backdrop, it stands to reason that the legislature chose to reach beyond door-to-door sales to encompass consumer agreements that were negotiated or concluded in person at places other than the listed locations.

[59] The appellants submit that they did not “have a shop, office, or formal place of business” where a consumer can attend. All agreements were negotiated and concluded, and all work was performed, at the consumer’s location. They therefore argue that the consumers’ residences were their “place of business” within the meaning of s. 20(1)(a) of the Act.

[60] I reject that argument. The listed locations in ss. 20(1)(a) and (b) of the Act represent ordinary points of sale and ordinary sales dynamics from which a consumer can readily extricate themselves. The exclusion of the listed locations from the definition of a “direct agreement” reflects the legislature’s intention to exclude scenarios in which there is no heightened power imbalance. Giving effect to the appellants’ interpretation would mean that door-to-door sales for services at a consumer’s residence – the paradigmatic example of heightened consumer vulnerability – could never give rise to a “direct agreement” as long as the supplier did not have a separate premises where the consumer could attend. That absurd result would frustrate the attainment of the legislature’s public welfare objectives.

[61] The appellants rely on several online sources. The appellants also rely on the comments of an ESA Review Panel on August 26, 2011, to the effect that they saw logic in the appellants’ legitimate argument that the impugned consumer agreements were not “direct agreements”. These sources are not binding, and I do not find them persuasive. The online sources are plain language summaries that do not purport to engage in the interpretative exercise that is before me. The ESA Review panel did not need to engage in a considered analysis of the issue and, indeed, explicitly noted that “[n]o authorities were submitted on this point nor were arguments made as to why these contracts should be considered Direct Contracts [sic]”.

[62] For these reasons, I agree with the justice of the peace’s conclusion that the definition of a “direct agreement” under s. 20(1) of the Act

encompasses the situation, such as here, where a consumer calls a supplier of goods and services to attend at the consumer's house, which would not be the supplier's place of business, and where the agreement is negotiated or concluded at the consumer's dwelling… . Therefore, the 11 consumer agreements which include the documents entitled, "work orders, invoices, and proposals", that had been entered into by the 11 consumers with either Ivan's Electric Ltd. or with Insight Electric Inc. are direct agreements within the meaning of s. 20(1) of the CPA 2002.

[63] In so holding, I give no weight to the then-proposed Bill 59, which was in its Third Reading at the time that the justice of the peace rendered his Reasons for Judgment, and I express no view on whether the justice of the peace was entitled to raise and rely on those legislative facts without further submissions from the parties.

E. THE ACTUS REUS OF FAIL TO DELIVER REQUIRED INFORMATION

[64] The offence of Fail to Deliver Required Information applies only to “direct agreements”.

[65] Sections 41 to 43 of the Act are situated under the heading “Direct Agreements”. Section 42 of the Act addresses the requirements for a direct agreement. Section 42(1) requires that the direct agreement be:

• in writing;
• delivered to the consumer; and
• made in accordance with the prescribed requirements.

[66] Section 42(2) of the Act authorized the Minister to make regulations governing the content of direct agreements, governing the requirements for making direct agreements, requiring the supplier under a direct agreement to disclose specified information, governing the content of the required disclosure, and requiring the supplier to take other measures to ensure the consumer received the required disclosure. The prescribed requirements are set out in s. 35 of the Regulation, which is excerpted below:

35. (1) For the purpose of section 42 of the Act, a direct agreement shall be signed by the consumer and the supplier and shall set out the following information:
36. The name and address of the consumer.
37. The name of the supplier and, if different, the name under which the supplier carries on business.
38. 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.
39. The names of,
    i. the person, if any, who solicited the consumer in connection with the agreement,
    ii. the person, if any, who negotiated the agreement with the consumer, and
    iii. the person who concluded the agreement with the consumer.
40. The date on which and the place where the agreement is entered into.
41. 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.
42. An itemized list of the prices at which the goods and services are to be supplied to the consumer, including taxes and shipping charges.
43. A statement containing the text set out in subsection (2) and, if applicable, the additional text set out in subsection (3), …
44. As applicable, the date or dates on which delivery, commencement of performance, ongoing performance and completion of performance are to occur.
45. 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.
46. Any other restrictions, limitations and conditions that are imposed by the supplier.

[67] Section 35(2) of the Regulation sets out the text of the statement required by s. 35(1), paragraph 11. It is entitled, “Your Rights Under the Consumer Protection Act, 2002”. It includes, among other things, the following information about the consumer’s rights to cancel a direct agreement:

You may cancel this agreement at any time during the period that ends ten (10) days after the day you receive a written copy of the agreement. You do not need to give the supplier a reason for cancelling during this 10-day period.
In addition, there are other grounds that allow you to cancel this agreement. You may also have other rights, duties and remedies at law. For more information, you may contact the Ministry of Consumer and Business Services.
To cancel this agreement, you must give notice of cancellation to the supplier, at the address set out in the agreement, by any means that allows you to prove the date on which you gave notice. …
If you cancel this agreement, the supplier has fifteen (15) days to refund any payment you have made… .
However, if you cancel this agreement after having solicited the goods or services from the supplier and having requested that delivery be made or performance be commenced within ten (10) days after the date this agreement is entered into, the supplier is entitled to reasonable compensation for the goods and services that you received before the earlier of the 11th day after the date this agreement was entered into and the date on which you gave notice of cancellation to the supplier, except goods that can be repossessed by or returned to the supplier.

[68] Section 116(2) makes it an offence for a person to contravene or fail to comply with a regulation made under the Act. Accordingly, a person’s failure to comply with the informational requirements for a “direct agreement” set out in s. 35 of the Regulation is an offence under s. 116(2) of the Act.

[69] The justice of the peace made reasonable factual findings with respect to each of the impugned direct agreements and how each of them failed to comply with s. 35(1) of the Regulation, as they were not all lacking in the same way. Those findings were grounded in the evidence and reasonably available to him. They made out the prohibited act of the relevant counts. His reasons reflect no misapprehension of the evidence or legal error.

F. THE ACTUS REUS OF FAIL TO REFUND

[70] The offence of Fail to Refund applies only to “direct agreements”.

[71] Section 96(1)(a) of the Act provides that if a consumer cancels a consumer agreement, the supplier shall, in accordance with the prescribed requirements, refund any payment made under the agreement or any related agreement. With respect to a direct agreement, s. 43 of the Act grants the consumer the right to cancel (i) for any reason until 10 days after they have received a written copy of the agreement, and (ii) within one year if they do not receive a copy of the agreement that meets the requirements of s. 42 of the Act. Section 92 of the Act provides that, subject to any prescribed regulations, notice of cancellation can be “expressed in any way, as long as it indicates the intention of the consumer to seek the remedy being requested”, and may be “oral or in writing and may be given by any means”.

[72] Section 79(1) of the Regulation provides that a supplier who is required to issue a refund under s. 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”.

[73] Section 116(1)(b)(viii) provides that a person is guilty of an offence if they contravene or fail to comply with s. 96(1) of the Act. Accordingly, a person who fails to provide a refund within 15 days after receipt of a proper notice of cancellation of a “direct agreement” commits an offence under s. 116(1)(b)(viii) of the Act.

[74] The justice of the peace made reasonable factual findings with respect to each of the impugned consumer requests for a refund and how the appellants failed to comply with the obligations under s. 96(1)(a) of the Act and s. 79(1) of the Regulation. Those findings were grounded in the evidence and reasonably available to him, including his conclusion that any retained monies were not “reasonable compensation” within the meaning of s. 83(1)(2) of the Regulation. His findings made out the prohibited act of the relevant counts. His reasons reflect no misapprehension of the evidence or legal error.

G. THE ACTUS REUS OF UNFAIR PRACTICE

[75] The offence of Unfair Practice applies to “direct agreements”, but also to other types of consumer agreements.

[76] Section 17(1) of the Act provides that no person shall engage in an “unfair practice”. Section 17(2) of the Act deems a person who performs an act in s. 14 to be engaging in an “unfair practice”. Section 14(1) provides that it is “an unfair practice for a person to make a false, misleading or deceptive representation”. Section 14(2) provides examples of “false, misleading or deceptive representations”, including the following:

• 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.
• 10. A representation that a service, part, replacement or repair is needed or advisable, if it is 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.

[77] Section 116(1)(b)(ii) provides that a person is guilty of an offence if they contravene or fail to comply with s. 17(1). Accordingly, a person who makes a false, misleading or deceptive representation under s. 14 of the Act commits an offence under s. 116(1)(b)(ii) of the Act.

(i) The application to amend

[78] Six of the Unfair Practice counts alleged that the named persons engaged in an unfair practice by making false, misleading or deceptive representation in relation to [name of consumer], a consumer, contrary to section 17(1) of the Consumer Protection Act, 2002, S.O. 2002, Chapter 30, Schedule A, as amended, and, thereby, committed an offence under section 116(1)(b)(vii) of the said Act [Emphasis added].

[79] The proper reference should have been to section 116(1)(b)(ii) of the Act (emphasis added). The appellants argue that the justice of the peace should not have granted the prosecution’s application to amend those references.

[80] Section 34(1) of the Provincial Offences Act provides the court with discretionary authority, at any stage of the proceeding to amend the information as may be necessary in accordance with the following:

34 (1) The court may, at any stage of the proceeding, amend the information or certificate as may be necessary if it appears that the information or certificate,
(a) fails to state or states defectively anything that is requisite to charge the offence;
(b) does not negative an exception that should be negatived; or
(c) is in any way defective in substance or in form.
(2) The court may, during the trial, amend the information or certificate as may be necessary if the matters to be alleged in the proposed amendment are disclosed by the evidence taken at the trial.
(4) The court shall, in considering whether or not an amendment should be made, consider,
(a) the evidence taken on the trial, if any;
(b) the circumstances of the case;
(c) whether the defendant has been misled or prejudiced in the defendant’s defence by a variance, error or omission; and
(d) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.

[81] The “overall philosophy of the Provincial Offences Act is to ensure that technical objectives do not impede the arrival of a verdict on the merits”. The court has “very broad powers of amendment where there is no prejudice to the accused” because an “important goal of the [Provincial Offences Act] is for matters to be tried on their merits”. The court’s decision whether to exercise their broad curative powers under section 34 of the Provincial Offences Act should be focused on the potential for prejudice to the defendant in mounting a defence and the potential for any other injustice.

[82] I agree with the justice of the peace that there is no legal presumption of prejudice based on the stage of the proceeding. I respectfully disagree with the cases that suggest otherwise. Section 34 of the Provincial Offences Act is silent on any such presumption. Indeed, the section endorses a contextual, totality of the circumstances approach to the assessment of potential prejudice and injustice that would be at odds with any such presumption. The different objectives and legal interests engaged by the civil litigation regime make it an inapposite comparator on this issue. In my view, the correct approach is that the prosecution, as the applicant, bears the onus of satisfying the court that the requested amendment is appropriate in all the circumstances, including the absence of prejudice or other injustice. The court is permitted to infer prejudice in appropriate circumstances, which can include the stage of proceedings. As a practical matter, the prosecution may have greater difficulty resisting that inference as the proceedings unfold — but that is a matter of inference-drawing and not a presumption in law.

[83] The balance of the wording in the impugned counts correctly describes the prohibited act (“unfair practice”) and correctly provides the statutory reference for the prohibited act (s. 17(1) of the Act). The evidence adduced at trial by both parties addressed the Unfair Practice allegations, which would give rise to liability under section 116(1)(b)(ii) of the Act, and was silent on any Leasing allegations, which would have given rise to liability under section 116(1)(b)(vii) of the Act. The appellants were not in any way misled about the nature or scope of the allegations. There is no prospect that counsel would in any way have conducted the defence differently. Nor was there any other potential for prejudice or injustice that could be occasioned by the amendments sought. Those amendments fixed typographical errors to bring the wording of the counts in line with the joint premise upon which the parties had conducted the trial.

[84] The justice of the peace correctly set out and applied the governing principles to the relevant circumstances. His decision to grant the requested amendments was a reasonable exercise of his discretion.

(ii) The prohibited act of the Unfair Practice offences

[85] The prosecution alleged a number of false, misleading, or deceptive representations as the basis for the appellants’ liability. They did not rely on any allegation that the appellants had overcharged the consumers. The justice of the peace made factual findings with respect to each of the impugned consumer interactions and the representations that constituted an unfair practice within the meaning of s. 17(1) of the Act. In sum, the justice of the peace found that the appellants engaged in unfair practices through the following means:

• Failing to inform consumers about their fees;
• Purporting to charge an impermissible 30% cancellation fee on a direct agreement;
• Misleading consumers about the licensing status of Ivan Valovic and Ivan’s Electric Ltd.;
  • In particular, the justice of the peace reviewed the interactions between the ESA and Ivan Valovic that resulted in Ivan’s Electric Limited ceasing to operate as a licensed electrical contractor after April 16, 2012. Even if Ivan Valovic is correct that the ESA incorrectly or unfairly permitted his master electrician license to lapse on June 18, 2010, or that the ESA incorrectly or unfairly directed Ivan’s Electric Limited to cease operations effective April 16, 2012, the fact remains that he was not a licensed master electrician and that Ivan’s Electric Limited was not permitted to operate after those dates, and that he did not inform the consumers of their status.
• Misleading consumers about the identity of the company hired to perform the work (i.e., Ivan’s Electric Limited or Insight Electric Inc.);
  • In particular, the justice of the peace found that all of the consumers contacted Ivan’s Electric Limited. A consumer cannot make an informed decision about whether to enter into an agreement or enforce their rights under that agreement without knowing the identity of the company.
• Misleading Mr. Christensen, Mr. Tahtadjian and Mr. Lundie about what goods and services were covered by their initial agreement (i.e., convincing them to enter into further agreements for additional work that should have been in the initial agreement).

[86] I agree with the justice of the peace that the prosecution did not need to prove that the consumers subjectively relied on or incurred any loss as a result of the impugned misrepresentation.

[87] The justice of the peace’s conclusions were grounded in the evidence and reasonably available to him. His findings made out the prohibited act of the relevant counts. His reasons reflect no misapprehension of the evidence or legal error.

H. ACTUS REUS OF FAIL TO TAKE REASONABLE CARE

[88] The offence of Fail to Take Reasonable Care arises from section 116(3) of the Act, which provides that an “officer or director of a corporation” commits an offence if they fail to take “reasonable care to prevent the corporation from committing an offence mentioned in” sections 116(1) or (2). Fail to Deliver Required Information, Fail to Refund, and Unfair Practice are such offences.

[89] There was no dispute at trial that Ivan Valovic was an officer and director of Ivan’s Electric Limited, and that Peter Valovic was an officer and director of Insight Electric Inc.

[90] The justice of the peace reasonably found that Ivan Valovic failed to take reasonable care to prevent Ivan’s Electric Limited from committing the impugned offences. As he correctly noted, a corporation can only act through a human person. With respect to Ms. Herold, the evidence showed that Ivan Valovic took no steps to prevent or ameliorate the deficient consumer agreement prepared by Peter Valovic. Ivan Valovic personally acted for Ivan’s Electric Limited in the other impugned interactions.

[91] The justice of the peace reasonably found that Peter Valovic failed to take reasonable care to prevent Insight Electric Inc. from committing the impugned offences. Neither Ivan Valovic nor Peter Valovic wanted Ivan Valovic to work for Insight Electric Inc. They believed the ESA had left them no choice. They blame the ESA for unnecessarily putting them in that difficult position. But they were required to operate within the circumstances in which they found themselves. And, as a result of those circumstances, Peter Valovic was required to take reasonable care with respect to the conduct of the persons acting on behalf of Insight Electric Inc. The evidence showed that Ivan Valovic engaged in the prohibited acts on behalf of Insight Electric Inc. without any effective supervision.

[92] The justice of the peace’s conclusions were grounded in the evidence and reasonably available to him. His findings made out the prohibited act of the relevant counts. His reasons reflect no misapprehension of the evidence or legal error.

I. THE DEFENCE OF DUE DILIGENCE

(i) General principles

[93] The appellants were convicted of strict liability offences. Once the prosecution proved the prohibited act beyond a reasonable doubt, the appellants bore the burden of establishing the defence of due diligence on a balance of probabilities.

[94] The defence of due diligence is available to a defendant who reasonably believes in a mistaken set of facts that, if true, would have rendered their act or omission innocent. The defence is also available to a defendant who took all reasonable steps to avoid the impugned event. The defence of due diligence is based on an objective standard: what a reasonable person would have done in similar circumstances.

[95] However, misinterpretation of the governing law is a mistake of law, not a mistake of fact. On the current state of the law, a mistake of law can ground a valid defence only if the mistake was an officially induced error and if certain conditions are met. It is not, by itself, capable of establishing a due diligence defence. Accordingly, “[a] defendant can therefore gain nothing by showing that it made a reasonable effort to know the law or that it acted in good faith in ignorance of the law, since such evidence cannot exempt it from liability.”

(ii) Application to this case

[96] The availability of the defence of due diligence is determined by an application of a legal standard to facts in evidence. If the justice of the peace made an error in respect of a question of law or made an extricable error in principle with respect to the characterization of the standard or its application, the standard of review is correctness. Otherwise, it is a mixed question of fact and law for which the standard of review is a palpable and overriding error.

[97] First, the justice of the peace reasonably held that the appellants’ reliance on their lawyer’s opinion about whether the impugned consumer agreements were “direct agreements” could not ground a defence of due diligence.

[98] In La Souveraine, the Supreme Court affirmed its prior jurisprudence holding “that the fact that a defendant has exercised due diligence to find out and verify the nature of the applicable law is not a defence.” Writing for the majority, Wagner J. (as he then was) recognized the tension between the essential role of regulatory measures in the implementation of public policy, and the increasing risk that an individual will be punished “in circumstances in which ignorance of the law might nonetheless be understandable”. Accordingly, while he rejected any “general defence of reasonable mistake of law” in the regulatory context, he left open the possibility that the Court might one day recognize “a new exception to the rule that mistake of law can be a valid defence only in very specific circumstances”.

[99] Even if the mistake of law issues did not foreclose a due diligence defence, the evidence in this case could not support it. The appellants did not claim reliance on official sources. As the justice of the peace noted, the actual opinion from the appellants’ lawyer was not adduced as evidence at trial. Acting in the face of legal uncertainty involves an assumption of risk, since a legal opinion can express a view that is legitimate, logical, but ultimately incorrect. The evidentiary vacuum in this case reasonably detracted from the appellants’ ability to establish that a reasonable person would have relied on that legal opinion in conducting their business affairs in this specialized and highly regulated context.

[100] Second, the justice of the peace reasonably held that the conduct of the ESA could not ground a defence of due diligence. The after-the-fact comments of the ESA Review Panel do not assist the appellants’ argument that they were duly diligent prior to entering into the impugned consumer agreements. Even if the ESA unreasonably or unfairly caused the circumstances that gave rise to Ivan Valovic’s master electrician license lapsing, and ultimately to the cessation of Ivan’s Electric Limited’s operations and Ivan Valovic going to work for Insight Electric Inc., the prohibited acts did not arise from the appellants’ licensing status, but rather from the appellants’ failure to advise the consumers about their licensing status. The latter falls solely at the appellants’ feet.

[101] Although there were common facts and considerations in respect of many of the counts, the justice of the peace carefully related the defence of due diligence to each separate count. He applied the correct legal principles and reasonably concluded on the evidence before him that the appellants had failed to establish on a balance of probabilities that they took all reasonable steps to avoid the prohibited acts.

J. THE SENTENCE APPEAL

[102] The prosecution appeals against the sentence imposed on the appellants. It asks me to set aside the fines imposed on Ivan Valovic and Peter Valovic, and substitute custodial sentences of 4.5 months and 80 days, respectively. It asks me to increase the fines imposed on Ivan’s Electric Limited and Insight Electric Inc. to $65,000 and $56,000, respectively.

[103] The prosecution alleges that the justice of the peace made the following errors:

• (i) That the justice of the peace failed to appropriately apply the evidence to the sentence imposed;
• (ii) That the justice of the peace gave inappropriate mitigating weight to certain factors;
• (iii) That the justice of the peace failed to give appropriate weight to aggravating factors;
• (iv) That the justice of the peace failed to impose a proportionate sentence that meets the objectives of specific and general deterrence, and thereby imposed a sentence that is demonstrably unfit; and
• (v) That the justice of the peace did not have legal authority to impose the reparation condition.

[104] The justice of the peace is entitled to deference with respect to the sentence that he imposed. It is an open question whether the standard of review in Provincial Offences Act sentence appeals should permit broader scope for appellate intervention than in criminal sentence appeals. I do not need to decide that issue because the prosecution appeals on the basis that the justice of the peace made errors in principle that resulted in the imposition of a disproportionate and demonstrably unfit sentence, which mirrors the criminal appellate standard.

[105] For the following reasons, I set aside the reparation condition. I otherwise dismiss the prosecution’s sentence appeal.

(i) General principles

[106] Section 122(1) of the Provincial Offences Act provides as follows:

Where an appeal is taken against sentence, the court shall consider the fitness of the sentence appealed from and may, upon such evidence, if any, as it thinks fit to require or receive, by order,
(a) dismiss the appeal; or
(b) vary the sentence within the limits prescribed by law for the offence of which the defendant was convicted,
and, in making any order under clause (b), the court may take into account any time spent in custody by the defendant as a result of the offence.

[107] Section 116(5) of the Act provides the penalties upon conviction for an offence under the Act. An individual is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than two years less a day, or both. A corporation is liable to a fine of not more than $250,000.

[108] Section 117 of the Act permitted the justice of the peace to order the appellants to “pay compensation or make restitution”.

[109] Section 72 of the Provincial Offences Act permitted the justice of the peace, in addition to fining the person, to direct the person to comply with conditions prescribed in a probation order. The statutory conditions are set out in s. 72(2). The discretionary conditions are set out in s. 72(3) and include the following:

(3) In addition to the conditions set out in subsection (2), the court may prescribe as a condition in a probation order,
(a) that the defendant satisfy any compensation or restitution that is required or authorized by an Act;
(c) where the conviction is of an offence punishable by imprisonment, such other conditions relating to the circumstances of the offence and of the defendant that contributed to the commission of the offence as the court considers appropriate to prevent similar unlawful conduct or to contribute to the rehabilitation of the defendant; …

(ii) The weighing of the evidence

[110] I address the first three alleged errors collectively. The prosecution accepts that the justice of the peace conducted an extensive review of the evidence. At base, they contend that the justice of the peace did not give proper effect to the aggravating features of that evidence, while giving improper mitigating effect to other features.

[111] I do not agree that the justice of the peace’s treatment of Ivan Valovic’s convictions for tax evasion and prior dealings with the ESA reflects any legal error. His reasons demonstrate that he properly apprehended the prosecution’s argument with respect to these factors and the weight they should be given. The prosecution argued that Ivan Valovic’s conduct was deliberately dishonest, that Ivan Valovic was someone with a habit of using “dishonesty and guile”, and that the offences were motivated by greed. The justice of the peace was entitled to take a different view of the offences, and to find that the “intentional and fraudulent conduct” that warranted custodial sentences in other cases was “not present in respect to Ivan Valovic and Peter Valovic’s dealings with the 11 consumers in this case”. The justice of the peace accepted the defence position that Ivan Valovic and Peter Valovic had made mistakes in law with respect to whether the impugned agreements were “direct agreements”, that they mistakenly believed that they were entitled to withhold certain amounts from the impugned refunds, and that their false, misleading, or deceptive representations were not the product of deliberate dishonesty. Those findings were available to him on the evidence.

[112] I do not agree that the justice of the peace treated the absence of aggravating features as mitigating. The justice of the peace noted that “the consumers in the present case had received the electrical work they had bargained for from Ivan Valovic and Peter Valovic (except for the two consumers, Denise Herold and Boris Wolchak who had paid deposits and contracted for future work, which the two consumers subsequently cancelled and had a part of their deposit refunded)”. The prosecution is correct that the appellants’ offences engaged harms unrelated to performance, and that it is not mitigating that the appellants did not engage in other forms of misconduct (e.g., they did not abscond with the money, they performed timely and competent work). However, as I read the impugned portion of the reasons, the justice of the peace was situating the severity of the offences along a spectrum of wrongdoing, in order to decide where this case sat relative to ones in which custodial sentences had been imposed. That exercise necessitated a consideration of the harm done to and losses incurred by the consumers. His approach reflects no legal error and accurately reflects the evidence.

[113] There is no incongruity between the justice of the peace’s characterization of the offences as not involving deliberate dishonesty, and his observation that Ivan Valovic “had taken advantage of the vulnerability of some of the consumers during cold winter days or during other critical times”. As I read this portion of his reasons, the justice of the peace was describing the impact of Ivan Valovic’s conduct, not Ivan Valovic’s subjective state of mind when he engaged in that conduct.

[114] I do not agree that the justice of the peace erred by treating Ivan Valovic’s willingness to make restitution and “reparation” payments as a mitigating factor. His conduct went beyond a willingness to comply with a court order, which is the minimum expectation. Ivan Valovic had taken the upfront action of setting aside the requisite funds and providing them to counsel to hold in trust, thus preserving the consumer’s ability to be made whole in respect of any losses. The justice of the peace was entitled to find that this action was “an effort of rehabilitation by Ivan Valovic and an act of contrition and reparation towards the consumers”. He explicitly cautioned himself that this action could not take the sentence outside of the range that would otherwise be appropriate.

[115] I do not agree that the justice of the peace erred in the mitigating weight that he gave to the personal circumstances of Ivan Valovic and Peter Valovic. With respect to Ivan Valovic, the justice of the peace recognized Ivan Valovic’s increased moral blameworthiness given his primary role in the impugned acts. The justice of the peace also recognized that Ivan Valovic was 70 years old at the time of sentencing, that he was undergoing treatment for prostate cancer, that he had mobility issues and required a knee replacement, that neither his master electrician’s license nor Ivan’s Electric Limited’s electrical contractor’s license had been renewed, and that his wife was a cancer survivor who required ongoing treatment to keep the cancer in remission. With respect to Peter Valovic, the justice of the peace recognized his lesser role in the impugned acts and the power imbalance between him and his father. Peter Valovic would have been in his early 30s at the time of the offences. The justice of the peace heard that he was recently married with a newborn daughter, and that he had “greatly rehabilitated” Insight Electric Inc.’s image and reputation in the community in the intervening time. These factors were relevant to the objectives of deterrence, rehabilitation, and protection of the public. The mitigating weight of these factors fell within the discretionary purview of the justice of the peace and his analysis reflects no legal error.

(iii) The proportionality and fitness of the sentence

[116] Any sentence imposed by the court must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It must also be similar to other sentences imposed on similar offenders for similar offences committed in similar circumstances.

[117] The primary sentencing goal in public welfare and regulatory offences is general and specific deterrence. The penalty must be substantial enough to warn others that the offences will not be tolerated. The sentence must “be adequate to remind the offender of the penalties for failure to abide by public welfare regulations”. Other objectives of sentencing include denunciation, reparation to victims, and rehabilitation.

[118] With respect to corporate defendants, the size of a corporation and the scope of its economic activity is relevant to assessing what level of fine will achieve specific and general deterrence, given the financial means of the company as a whole. The amount of the fine must “be sufficient that the fine will be ‘felt’ by the corporation and not merely a ‘slap on the wrist’”. It should not be “harsh”, but it “must be substantial enough to warn others that the offence will not be tolerated. It must not appear to be a mere license fee for illegal activity”. In other words, “a fine imposed on a corporation must take into consideration the economic means of the corporation in order to achieve both specific and general deterrence”. The question is, “What amount of fine is required to achieve general and specific deterrence, and would otherwise be appropriate bearing in mind the principles of sentencing, including proportionality, and parity?”

[119] Public welfare offences exist on a spectrum of gravity. Regulatory offences that are “closer to true crime” are more serious than those that do not involve proof of wrongful intention or knowledge.

[120] I do not agree with the prosecution that the global sentences were disproportionate or failed to achieve the relevant sentencing objectives. The quantum of the fines relative to the value of the impugned agreements is only one perspective. While the justice of the peace imposed a disposition closer to that advocated by the defence, his ultimate disposition reflects a nuanced understanding of the need for specific and general deterrence, protection of the public, rehabilitation, reparations to the consumers, promoting a sense of responsibility, and acknowledgment of the harm done to the consumers. His assessment that a custodial sentence was not necessary to achieve those objectives, and that the fines he imposed were substantial enough to do so, is faithful to the evidence and to the principle of restraint.

[121] Even if a custodial sentence was warranted at the time, I would have found it contrary to the public interest to incarcerate Ivan Valovic or Peter Valovic now. More than ten years have elapsed since the offences were committed, and almost seven years have elapsed since the matter completed before the justice of the peace. Incarceration at this stage would cause both individuals considerable and unjustifiable hardship. The objectives of sentencing and the safety of the community would be better served by the appellants continuing along their current rehabilitative path.

[122] I do not agree with the prosecution that the $0 fines in respect of the Fail to Refund counts for Ms. Canadas, and in respect of the Fail to Refund counts for Ms. Riley were disproportionate or failed to achieve the relevant sentencing objectives. The appellants were convicted of multiple counts, as a result of which they would be subject to multiple fines and the individual appellants would be subject to a restitution condition. The justice of the peace was entitled to consider totality and adjust the individual sentences to achieve a fit total disposition. In these circumstances, suspending the passing of sentence in respect of these counts and directing that Ivan Valovic and Peter Valovic comply with their respective probation orders, concurrent on each of their respective counts, was an approach that was available to him to achieve the global sentence that he found appropriate to address their overall culpability.

(iv) The “reparation condition” of Ivan Valovic’s probation order

[123] The prosecution fairly concedes that the justice of the peace did not have jurisdiction to impose the reparation condition. In fairness to the justice of the peace, it appears that the reparation condition originated from defence counsel.

[124] I agree with the prosecution that the reparation condition did not fall within the scope of s. 117 of the Act, as the payments were not compensatory or connected to any readily ascertainable harm. The payments arguably fall within the scope of s. 72(3)(c) of the Provincial Offences Act, since Ivan Valovic’s willingness to make those payments reflected his remorse and his prospects for rehabilitation. Given the less certain nexus between his making of those payments and his actual rehabilitation, I accept the prosecution’s concession and set aside the reparation condition.

[125] I have considered that this result, as a practical matter, decreases Ivan Valovic’s financial obligations by $2,750, but I am not satisfied that the justice of the peace would have imposed different global fines if the reparation payments had been volunteered but not compellable, nor am I satisfied, given all the circumstances and the passage of time, that I should interfere with those fines on that basis.

K. CONCLUSION

[126] I dismiss the appellants’ appeal against conviction.

[127] I set aside the reparation condition with respect to Ivan Valovic’s probation order. The prosecution’s appeal against sentence is otherwise dismissed.

Released: January 6, 2025
Signed: Justice Mabel Cheuk Ting Lai

Footnotes

[1] Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A [“the Act”]; General, O. Reg. 17/05 [“the Regulation”]. Unless stated otherwise, all references to the Act and the Regulation are as they read during the timeframe of the allegations.
[2] The trial consumed more than 20 days between October 9, 2014 and November 2, 2016.
[3] The justice of the peace found the appellants not guilty of the remaining 14 counts. For simplicity, I refer to Information 13-5731 as “Information #1”, Information 13-8091 as “Information #2”, and Information 14-5740 as “Information #3”.
[4] Reasons for Judgment, at paras. 177 and 181.
[5] Reasons for Judgment, at paras. 184-185.
[6] Duchesne v. St-Denis, 2012 ONCA 699, at para. 7; Clublink Corporation ULC v. Oakville (Town), 2019 ONCA 826, at para. 35 (majority) and 92 (dissent).
[7] Schnarr v. Blue Mountain Resorts Ltd., 2018 ONCA 313, at para. 31, leave to appeal to S.C.C. refused [2018] S.C.C.A. No. 187.
[8] Schnarr, supra, at para. 37 (addressing the interaction between the Act and the Occupiers Liability Act, R.S.O. 1990, c. O.2).
[9] R. v. Jarvis, 2002 SCC 73, at para. 77.
[10] R. v. Guerrier, 2024 ONCA 838, at paras. 21-22.
[11] S.O. 2006, c. 21, Sched. F [“Legislation Act, 2006”].
[12] Legislation Act, 2006, s. 46.
[13] R. v. Walsh, 2021 ONCA 43, at para. 139.
[14] Rizzo & Rizzo Shoes Ltd. (Re), 1998 SCC 39, [1998] 1 S.C.R. 27, at para. 21; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 117-18.
[15] Walsh, supra, at para. 140.
[16] Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, at para. 10, explained in Walsh, supra, at para. 140.
[17] Walsh, supra, at para. 140, citing Rizzo & Rizzo Shoes Ltd. (Re), supra.
[18] See also s. 35(2) of the Regulation (“if you cancel this agreement after having solicited goods or services from the supplier”).
[19] Blue Mountain Resorts Ltd. v. Bok, 2013 ONCA 75, at paras. 24-29, citing R. v. Timminco Ltd. (2001), 2001 ONCA 3494, 54 O.R. (3d) 21 (C.A.), at para. 22.
[20] Weller v. Reliance Home Comfort Limited Partnership, 2012 ONCA 360, at para. 15, explained in Harvey v. Talon International Inc., 2017 ONCA 267, at para. 64 [“Harvey”].
[21] Harvey, supra, at para. 63.
[22] Harvey, supra, at paras. 63-64, explaining Seidel v. Telus Communications Inc., 2011 SCC 15, at para. 37.
[23] Contrast, for example, the explicit language used in s. 5(3) of B.C. Reg 272/2004 to the Business Practices and Consumer Protection Act, SBC 2004, c 2, cited in the Appellants’ Written Submissions, Tab 4, para. 434 (last page) (“A direct seller is exempt…if the direct seller attends at the place following a request that was made at least 24 hours in advance” by “the consumer” or “a relative or friend of the consumer…”).
[24] Reasons for Judgment, at paras. 171-172.
[25] Appellants’ Written Submissions, Volume 1, Tab 4.
[26] Ontario (Labour) v. Hamilton (City), 2002 ONCA 16893, 58 O.R. (3d) 37 (C.A.), at para. 16.
[27] Appellants’ Written Submissions, Volume 1, Tab 7.
[28] Appellants’ Written Submissions, Volume 1, Tab 4.
[29] Reasons for Judgment, at para. 176.
[30] Section 42(2)(a) of the Act.
[31] Section 42(2)(a) of the Act (also renewing, amending, or extending direct agreements).
[32] Section 42(2)(b) of the Act.
[33] See his Reasons for Judgment with respect to Ms. Herold (Information #1, Count 1) at paras. 330-335; Ms. Canadas (Information #1, Count 7) at paras. 350-352; Ms. Telford (Information #1, Count 9) at paras. 360-366; Mr. Christensen (Information #1, Count 12) at paras. 381-388; Mr. Bardeau (Information #2, Count 5) at paras. 402-406; Mr. Wolchak (Information #2, Counts 21 and 25) at paras. 527-537, 539; Ms. Castator (Information #2, Count 1) at paras. 455-459; Ms. Riley (Information #2, Count 9) at paras. 470-474; Mr. Tahtadjian (Information #2, Count 15) at paras. 492-501; Ms. Patterson (Information #3, Count 2) at paras. 417-422; Mr. Lundie (Information #3, Count 5) at paras. 433-438.
[34] For example, the direct agreements provided to Mr. Tahtadjian, Ms. Patterson and Mr. Lundie included the statement required by s. 35(2) of the Regulation on the back the document, while some of the others did not.
[35] Section 43(1) of the Act.
[36] Section 43(2) of the Act.
[37] See his Reasons for Judgment with respect to Ms. Herold (Information #1, Count 3) at paras. 336-342; Ms. Canadas (Information #1, Count 8) at para. 353; Mr. Christensen (Information #1, Count 14) at paras. 390-392; Mr. Wolchak (Information #2, Count 27) at paras. 540-543; Ms. Riley (Information #2, Count 13) at paras. 476-478; Mr. Tahtadjian (Information #2, Count 19) at paras. 503-505.
[38] On Information #2, Counts 7, 11, 17 and 23; on Information #3, Counts 1 and 4.
[39] R. v. Larizza, [2006] O.J. No. 5335 (C.J.), at para. 6; R. v. Preston Sand & Gravel Co., [2009] O.J. No. 6399 (C.J.), at para. 7.
[40] R. v. Singh, 2017 ONSC 7593, at para. 17, citing R. v. Davis, 2017 ONCA 45, at para. 14; R. v. Massicotte, 2017 ONSC 5837, at paras. 10-12.
[41] See, for example, R. Libman and J. Allen, Handling Provincial Offence Cases in Ontario 2024 (Toronto: Thomson Reuters, 2024), at §5:19.
[42] See his Reasons for Judgment with respect to Mr. Christensen (Information #1, Count 11) at paras. 389; Mr. Bardeau (Information #2, Count 7) at para. 408; Mr. Wolchak (Information #2, Count 23) at paras. 538; Ms. Riley (Information #2, Count 11) at para. 475; Mr. Tahtadjian (Information #2, Count 17) at para. 502; Ms. Patterson (Information #3, Count 1) at para. 423; Mr. Lundie (Information #3, Count 4) at paras. 442. At paras. 420 and 423, the justice of the peace refers to Mr. Bardeau instead of Ms. Patterson; these typographical errors are immaterial because the evidence set out and analyzed therein properly relates to Ms. Patterson.
[43] Reasons for Judgment, at paras. 276-280.
[44] Reasons for Judgment, at paras. 264-267.
[45] Reasons for Judgment, at paras. 267-269.
[46] Reasons for Judgment, at paras. 270-275.
[47] Reasons for Judgment, at para. 281.
[48] Reasons for Judgment, at para. 275, citing Ramdath v. George Brown College of Applied Arts and Technology, 2015 ONCA 921, at paras. 39 and 89 (“a claim under the Consumer Protection Act based on an agreement entered into following an unfair practice does not require any reliance on or even knowledge of the unfair practice”).
[49] Information #1, Count 2.
[50] Information #1, Count 4.
[51] Information #1, Counts 13 and 15; Information #2, Counts 2, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26 and 28.
[52] Lévis (City) v. Tétreault, 2006 SCC 12, at para. 16, explained in La Souveraine, Compagnie d'assurance générale v. Autorité des marchés financiers, 2013 SCC 63, at para. 31.
[53] R. v. City of Sault Ste. Marie (1978), 1978 SCC 11, 40 C.C.C. (2d) 353 (S.C.C.), at p. 374; R. v. Wholesale Travel Group Inc. (1991), 1991 SCC 39, 67 C.C.C. (3d) 193 (S.C.C.), at p. 237.
[54] La Souveraine, supra, at para. 56, citing Sault Ste. Marie, supra, at p. 1326.
[55] R. v. Jorgensen, 1995 SCC 85, [1995] 4 S.C.R. 55.
[56] R. v. Gollon, 2024 ONCA 76, at paras. 20-21, citing R. v. Pontes, 1995 SCC 61, [1995] 3 S.C.R. 44, at paras. 33-34; La Souveraine, supra, at para. 61.
[57] La Souveraine, supra, at para. 57.
[58] Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 37.
[59] La Souveraine, supra, at para. 68, citing Lévis (City), supra, at para. 22.
[60] La Souveraine, supra, at paras. 69-75.
[61] La Souveraine, supra, at paras. 76-82.
[62] See, by analogy, R. v. Fan; R. v. Ling, 2021 ONCA 674, at paras. 54-57.
[63] Ontario (Labour) v. Bondfield Construction, 2023 ONCA 813, at para. 17 (per Favreau J.A., dismissing the prosecution’s application for leave to appeal).
[64] R. v. Cotton Felts Ltd., 1982 ONCA 3695, 2 C.C.C. (3d) 287 (Ont. C.A.), at para. 13; Dabaja v. Ontario (Motor Vehicle Industry Council), 2017 O.J. No. 6384 (C.J.), at para. 3.
[65] Ontario (Labour) v. 1222149 Ontario Ltd. (c.o.b. Dairy Queen), 2024 ONCA 543, fn 1, citing Ontario (Labour) v. New Mex Canada Inc., 2019 ONCA 30, at paras. 41-46.
[66] R. v. Lacasse, 2015 SCC 64, at paras. 44, 52; see also Trisan Construction (614128 Ontario Ltd.) v. Technical Standards and Safety Authority, 2022 ONCJ 129, at paras. 82-84; Oshawa (City) v. Quinlan, 2024 ONCJ 482, at para. 9.
[67] Ivan Valovic disputes the characterization of these entries as a “criminal record”. He maintains that he was wrongfully convicted of these charges, and provides a detailed explanation of the underlying proceedings: Appellants’ Written Submissions, Vol. 2, Tab 3.
[68] Reasons for Sentence, at paras. 24-28 and 62-63.
[69] Reasons for Sentence, at paras. 59 and 73.
[70] Reasons for Sentence, at para. 58.
[71] Reasons for Sentence, at para. 74.
[72] Reasons for Sentence, at para. 72.
[73] Ontario (Labour) v. Gardin, 2024 ONCJ 28, at para. 44, citing R. v. Pellegrini, 2006 ONCJ 297; Toronto (City) v. Adamson Barbecue Ltd., 2024 ONCJ 525, at para. 16; Nex Mex, supra, at para. 49.
[74] Nex Mex, supra, at paras. 50 and 108.
[75] Adamson Barbecue, supra, at para. 8.
[76] Adamson Barbecue, supra, at para. 15.
[77] R. v. Cirillo, 2010 O.J. No. 6417 (C.J.), at para. 2.
[78] Ontario (Labour) v. Limen Group Const., 2024 ONCJ 154, at paras. 11-23.
[79] New Mex, supra, at paras. 97-98, 102, 111, explained in Dairy Queen, supra, at paras. 15-19.
[80] New Mex, supra, at para. 102.
[81] Gardin, supra, at para. 46, citing R. v. Virk, 2002 O.J. No. 4102 (C.J.), at para. 54; also Pellegrini, supra; R. v. Iacono, 2015 ONCJ 609, at para. 41.
[82] See, by analogy in the criminal appellate context, R. v. D.G.F., 2010 ONCA 27, at para. 33; R. v. Davatgar-Jafarpour, 2019 ONCA 353, at paras. 49-55; R. v. Hamilton, 2004 ONCA 5549, at paras. 165-66; R. v. Sharma, 2019 ONCA 274, at para. 25.
[83] R. v. Polemidiotis, 2024 ONCA 905, at paras. 81-84.
[84] Reasons for Sentence, at paras. 68-69.

Incisive Summary

This decision addresses an appeal involving multiple convictions under the Consumer Protection Act, 2002, and related regulations, concerning consumer agreements negotiated at consumers’ homes by Ivan’s Electric Limited, Insight Electric Inc., and their principals Ivan and Peter Valovic. The court affirms the classification of these agreements as “direct agreements” under s. 20(1) of the Act, rejecting the appellants’ argument that the definition is limited to door-to-door sales initiated by suppliers. The court confirms the actus reus findings for offences of failing to deliver required information, failing to refund, unfair practice, and failing to take reasonable care to prevent corporate offences. The defence of due diligence was rejected, particularly as reliance on legal opinions or ESA conduct was insufficient. The prosecution’s appeal against sentence was largely dismissed, save for setting aside a probation reparation condition imposed without jurisdiction. The court emphasized the importance of deterrence, rehabilitation, and proportionality in sentencing public welfare offences.

Interesting Citations Summary

This case is notable for its detailed statutory interpretation of “direct agreements” under the Consumer Protection Act, clarifying that the definition extends beyond traditional door-to-door sales to include consumer-initiated contacts at the consumer’s residence. It reinforces the strict liability nature of consumer protection offences and the limited scope of the due diligence defence, particularly regarding mistakes of law. The decision also highlights the broad amendment powers under the Provincial Offences Act and the principles guiding sentence appeals in regulatory contexts, including the balancing of aggravating and mitigating factors and the importance of proportionality and deterrence.

Keywords

• Consumer Protection Act, 2002
• Direct agreements
• Fail to deliver required information
• Fail to refund
• Unfair practice
• Fail to take reasonable care
• Due diligence defence
• Provincial Offences Act
• Sentencing principles
• Ivan’s Electric Limited
• Insight Electric Inc.
• Ivan Valovic
• Peter Valovic
• Electrical Safety Authority (ESA)
• Probation conditions
• Regulatory offences

Areas of Law

• Consumer Protection Law
• Regulatory Offences
• Sentencing Law
• Statutory Interpretation
• Administrative Law
• Appeals