ONTARIO SUPERIOR COURT OF JUSTICE

CITATION: R. v. Tran, 2015 ONSC 534

oshawa COURT FILE NO.: 13011/12

DATE: 2015-01-23

BETWEEN

Her Majesty the Queen

Crown

— and —

Jenny Tran

Defendant

COUNSEL:

Jenny Tran, self-represented

Taran Boodoosingh for the Crown

HEARD: September 15, 17, 18, 19, 22, 23, 24, 25, 26, 29, 30, October 1, 2, 3, 6, 7, 8, 9, 10, 15, 16, 17, 20, 21, 22, 23, 24, November 3, 4, 10, 12, 13, 14, 17, 18, 19, 20, 24, 25, 26, 27, 28, December 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 2014 January 5, 6, 7, 8, 9, 12, 13, 14, 15, 16, 19, 20, 21, 2015.

Wright, J.

REASONS FOR JUDGMENT

Introduction

[1] Jenny Tran comes before this court charged with eight different criminal offences. All of the offences are alleged to have taken place between November 2, 2007, and February 18, 2010. The criminal offences can be summarized as follows:

1. Defrauding Great West Life Assurance in excess of $5000;

2. Defrauding Manulife Financial Assurance in excess of $5000;

3. Attempt to defraud Green Shield of Canada in excess of $5000;

4. Defrauding the Public of a service of a value under $5000;

5. Defrauding the Public of a service of a value under $5000;

6. Attempt to Obstruct Justice by filing a false statement of claim;

7. Forging Health Care Claim Forms; and

8. Uttering a forged document in relation to Great West Life.

[2] The Crown proceeded by way of indictment and Ms. Tran elected trial by judge alone. The matter was set down for trial on a “with or without counsel basis” and Ms. Tran has been representing herself. Throughout the course of the trial, Ms. Tran has been assisted, at her request, by a fully accredited Cantonese interpreter.

Overview of the Evidence

[3] I will now give a brief overview of the evidence; when necessary I will further develop the evidence in my analysis.

[4] The Crown called five witnesses who had attended Ms. Tran’s clinic in Ajax and received paramedical treatments. All five witnesses reported that Ms. Tran billed their insurance companies for services that were never provided.

[5] Ali Amini testified via video conference from Calgary. He said that he attended Ms. Tran’s clinic for the first time in 2008, and received six or seven massages from her. He said he believed that she was a qualified massage therapist. He said he signed a document authorizing Ms. Tran to bill his insurer, Great West Life (“GWL”), directly. He said his last visit was in July 2008. He moved to Calgary in August of 2008, and has never returned to Ms. Tran’s clinic. He said his wife had never attended Ms. Tran’s clinic.

[6] After moving to Calgary, Mr. Amini started to receive invoices from GWL reimbursing Ms. Tran for paramedical services provided to him and his wife. He says he notified GWL that these claims were not accurate. His position is that he and his wife did not receive these treatments. After receiving a letter from a collection agency saying he owed Ms. Tran $13,571.78, he called the police.

[7] In June of 2008, Kathleen Franks-Kerr attended Ms. Tran’s clinic looking for relief from migraine headaches. She testified that on her first visit she received one treatment. She paid for that treatment, plus a second treatment in advance by debit. Later that month she found out that her insurer, GWL, had reimbursed Ms. Tran instead of her by mistake. Ms. Franks-Kerr went to Ms. Tran’s clinic to address the problem. The two had a falling out and Ms. Franks-Kerr never returned to Ms. Tran’s clinic. When Ms. Franks-Kerr received an invoice from GWL stating that they had reimbursed Ms. Tran $1500.00 for naturopathic treatments in 2007, she notified the GWL fraud department. She testified that neither she, nor her daughter attended for those treatments. She said that her daughter had never received any treatments from Ms. Tran.

[8] Kumaresh Ratnasabapathy testified that he first attended Ms. Tran’s clinic in November 2007. He said he believed that she was qualified to perform both acupuncture and massage therapy. He said that between November 2007, and August 2008, he received approximately 12 to 15 treatments from Ms. Tran. He received both acupuncture and massage treatments. He said he paid for the first treatment up front and then signed a document authorizing Ms. Tran to bill GWL directly. His wife was also treated by Ms. Tran. He said between January and February 2008, she received approximately five massages. She did not attend after that because she found out she was pregnant. After Mr. Ratnasabapathy stopped going to see Ms. Tran, he received a reimbursement cheque in the mail from GWL for osteopath treatments provided by Ms. Tran. He said he never had those treatments.

[9] Mr. Ratnasabapathy called Ms. Tran to tell her he would be sending the cheque back to GWL. However, she got angry and insisted that he return the cheque to her, and ultimately he complied. He did, however, notify GWL that he was no longer using Ms. Tran’s services. He testified that neither he nor his wife received the services listed in the explanation of benefit form from GWL stating that they received naturopath treatments in June and July of 2007. In November 2009, he received a letter from a collection agency stating that he owed Ms. Tran $16,191.00 for treatments performed on him and his wife. He said he and his wife did not have those treatments and he did not owe Ms. Tran any money. He said he was sure of that because it was Ms. Tran’s practice to bill and to receive the money from GWL in advance of any treatments.

[10] Heather MacPherson testified that she attended Ms. Tran’s clinic for paramedical treatments from 2007 to 2009. She said she signed a document authorizing Ms. Tran to bill her insurer, GWL, directly. She said it was Ms. Tran’s practice to bill GWL and receive the money before performing the treatment. She said she believed Ms. Tran was qualified to perform osteopath, needle acupuncture and massage.

[11] Ms. MacPherson candidly admitted that she was unclear about the dates she attended and was treated at Ms. Tran’s clinic. She said that she did not look at the invoices that were coming in the mail from GWL during the time that she was receiving treatment. She did say that none of her three children ever attended, nor were they treated by Ms. Tran, despite the fact that GWL had reimbursed Ms. Tran for paramedical treatments on Ms. MacPherson’s children.

[12] In May of 2009, Ms. MacPherson stopped going to Ms. Tran’s clinic. In June 2009, she received an invoice from Ms. Tran saying that she owed $4,850.00 for treatments that were provided to her and her children. Ms. MacPherson denied that she owed this money.

[13] In July of 2008, Cherysse Manu attended Ms. Tran’s clinic for the first time. She was looking for relief from back pain resulting from a motor vehicle accident. She received one treatment and paid Ms. Tran $65.00 in cash. Ms. Manu never re-attended Ms. Tran’s clinic. She did however receive invoices in the mail from her insurer, Green Shield, indicating that Ms. Tran had submitted claims for paramedical treatments on Ms. Manu totaling $6236.70. Ms. Manu said she did not receive any of these treatments. Some of the claims were for treatments in 2007. She said that she did not even know Ms. Tran in 2007. Eventually Ms. Manu was sued by Ms. Tran in Small Claims Court for $10,000.00 in unpaid fees. Ms. Manu filed a response and attended court on one occasion. The matter resolved and Ms. Manu did not have to pay Ms. Tran anything in relation to the claim.

[14] In addition, the Crown called three other witnesses.

[15] Pauline Walters, the Director of Professional Misconduct for the Ontario College of Massage Therapy testified that Ms. Tran has never been a member the College of Massage Therapy for Ontario.

[16] Dr. Dronyk is a naturopathic doctor and was a member of the Board of Directors that governs naturopathic doctors up until April 2010. This is a provincial board that regulates naturopathic doctors in the province of Ontario. He testified that every naturopathic doctor in Ontario is required to register with the board annually, in order to perform naturopathic services and use the designation ND for naturopathic doctor. He further testified that Ms. Tran has never been a registered member.

[17] Mr. Gary Schmidt was the first witness called by the Crown. He testified over the course of two days. Mr. Schmidt testified that he is employed by GWL, and for the past 13 years, he has been the manager of their special investigations unit. He testified about general billing practices and procedures for GWL. His primary function is to review and investigate matters involving theft and misappropriation of funds in situations where GWL has suffered a loss.

[18] Although he had never met Ms. Tran, he had reviewed numerous claims involving her in the course of his investigation and in preparation for court.

[19] Mr. Schmidt prepared spreadsheets for 2007, 2008 and 2009, documenting all the claims that Ms. Tran had made to GWL on behalf of her patients for para-medical treatments that she is alleged to have performed. (See exhibits 8A, 8B and 8C).

[20] The spreadsheets make reference to Jenny Tran, Dr. Jenny Tran and Jessica Tran as the service provider. Mr. Schmidt testified that he was satisfied that all three names are pseudonyms used by Ms. Tran. As a result of his investigation into this matter, he concluded that Ms. Tran was not qualified to provide the paramedical services that she received payment for in 2008.

[21] Ms. Tran testified on her own behalf. She says she was at all times fully qualified to perform massage, acupuncture, naturopathy, and osteopath treatments. Ms. Tran maintains that all of the claims she submitted to the insurance company were genuine. She further maintains that her clients/patients signed and initialed documents for each and every treatment they attended, and that the claims submitted were consistent with the treatments she provided.

[22] Darren Dzikowski was the first witnesses called by Ms. Tran. He said that he went to Ms. Tran for treatment between 2009 and 2010. He was unsure of the type of treatment he received but said it involved the placement of rocks on his body. He said the treatments were helpful. He said Ms. Tran never asked him to sign blank forms. He did sign contracts that are currently marked as exhibits 16A-F. He said he always paid in cash.

[23] Cherrice Williams was the second witness called by Ms. Tran. She testified the she and her four children attended the Family Rehab Clinic in December 2009, and January 2010, for naturopathic treatments. Her insurance company allowed coverage for up to $400.00 per calendar year, per person, for a total of $2000.00. Ms. Williams said that she paid Ms. Tran directly with post-dated cheques. She said she billed her insurance company and she was reimbursed by way of direct deposit into her bank account. She said she only attended treatments up to her coverage limit. When she reached that limit she did not attend again. She was shown a contract dated December 8, 2009, which states that she agreed to a package and bonus treatments totalling $14,712.09, currently marked as exhibit 17G. She said that she did not and would not have agreed to this and that she did not sign this document.

The Principles to be Applied

[24] The principles to be applied in this case are the same as those to be applied in any criminal trial.

[25] In this case, Ms. Tran is presumed to be innocent, unless and until the Crown has proven each essential element of the offences beyond a reasonable doubt.

[26] Reasonable doubt is based upon reason and common sense. In assessing the credibility of the witnesses in this case, I remind myself of the principles articulated by the Supreme Court of Canada in R. v. W.(D.), [1991] C.C.C. (3d) 397:

• First, if I believe the evidence of Ms. Tran, I must acquit.

• Second, if I do not believe the evidence of Ms. Tran, but am left in reasonable doubt by it, then I must acquit.

• Third, even if I am not left in doubt by the evidence of Ms. Tran, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of her guilt.

The Law

[27] Section 380(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 states:

Everyone who, by deceit, falsehood, or other fraudulent means, whether or not it is a false pretense within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or service,

a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the offence exceeds five thousand dollars; or

b) is guilty

i. of an indictable offence and is liable to imprisonment for a term not exceeding two years, or

ii. of an offence punishable on summary conviction,

where the dollar value of the subject-matter of the offence does not exceed five thousand dollars.

[28] It is well settled that the offence of fraud requires the Crown to establish dishonest deprivation. See R. v. Olan, 1978 CanLII 9 (SCC), [1978] 2 S.C.R. 1175 at 1182.

[29] Accordingly, the actus reus for fraud has two elements, 1) the dishonest act, and 2) deprivation. Fraud is committed when a person lies, deceives, or acts dishonestly, and that act causes deprivation, or risk of deprivation to another. See R. v. Theroux, 1993 CanLII 134 (SCC), [1993] 2 S.C.R. 5.

[30] Dishonesty is based on deceit, falsehood, or other fraudulent means as set out in the Criminal Code. One must ask whether a reasonable person would consider the act to be dishonest.

[31] Deprivation, or risk of deprivation, must be proven as a matter of fact.

[32] The deprivation must be shown to be caused by the dishonest act.

[33] The mens rea for fraud requires the accused to have subjective knowledge of the dishonest act, and knowledge that the dishonest act could result in the corresponding deprivation.

[34] In sum, the offence of fraud is established where the accused was aware of and intentionally committed the dishonest act, with the subjective knowledge that such an act could cause deprivation to another. R. v. Baker, 1998 CanLII 13818 (SK QB), 164 Sask.R. 131, [1998] S.J. No. 130 at para. 72.

Analysis

[35] I will first turn to my assessment of the evidence of Ms. Tran.

[36] Ms. Tran testified over the course of 14 days. She was, at all times assisted by a fully accredited Cantonese interpreter.

[37] After a thorough review of Ms. Tran’s evidence I find myself unable to place any weight upon it. Here is why:

[38] A number of very distinctive and pervasive patterns began to emerge in Ms. Tran’s evidence, which have contributed greatly to my adverse finding of credibility.

[39] First, it became apparent that Ms. Tran had a very selective memory when it benefitted her. In cross-examination, she repeatedly said she could not remember things such as conversations, the sequence of events, or the testimony of witnesses. If however, her lack of memory appeared to be creating a potentially unfavorable result, she would start to remember things with great clarity.

[40] I will reference a few of the many examples.

[41] Early on in cross-examination Ms. Tran was asked if she recalled Dr. Dronyk’s evidence. Her unequivocal response was that she could not remember because she was feeling ill on the day he testified. In response, Crown counsel summarized Dr. Dronyk’s evidence for Ms. Tran. She took issue with Crown counsel’s summary and began reciting, with precision, exactly what questions she had asked him in cross-examination and the responses he gave. I should say that Ms. Tran did all this with great accuracy and without the use of any notes.

[42] Ms. Tran gave a similar response when asked if she recalled the evidence of Ms. Manu. She repeatedly said she could not remember what Ms. Manu said during her examination-in-chief because she was ill and not paying attention. Later in cross-examination, in response to a completely different question, she testified with detail and accuracy about the questions Ms. Manu was asked in examination-in-chief, and the responses she gave.

[43] From time to time, Ms. Tran would offer explanations for her lack of recall. She said that the passage of time, her ongoing illnesses, a brain injury as a result of two car accidents, and her age, were all contributing factors in her inability to remember. With the exception of the passage of time, I do not accept Ms. Tran’s excuses. They are completely unfounded and without merit, especially given her ability to recall, with precision, details as set out in the examples above. I find her “lack of recall’ to be nothing more than a strategic tactic designed to control the process and avoid answering difficult questions, especially in light of her ability to remember when it works in her favour. All of this significantly impinges on her credibility.

[44] Ms. Tran also had a pattern of being non-responsive to questions asked in cross-examination. Many questions were greeted with a long-winded, convoluted, self- serving response that had little or no connection with the question being asked. The mere suggestion that her answers were inconsistent seemed to provoke an even more complicated and lengthy response.

[45] For example, initially in cross-examination, Ms. Tran said that she did not believe her clinic had advertised in the Yellow Pages. When confronted with the actual advertisements, she launched into a detailed account of her conversations with the Yellow Pages management about the placement of the advertisements.

[46] When Ms. Tran was asked why Ms. Manu was billed for treatments while she was out of the country, she responded with a long-winded, nonsensical answer. Eventually, Ms. Tran did acknowledge that she had billed Ms. Manu for treatments that she did not take. But, she explained that she only did so after Ms. Manu “begged her to” do so. This was a clear and obvious attempt on the part of Ms. Tran to shift the blame and focus away from herself when caught in an inconsistency.

[47] This self-serving component to her answers became obvious in the last few days of cross-examination. For example, when asked to confirm that the handwriting on Mr. Amini’s attendance sheet was hers, she responded by explaining what a time consuming process it was for her to do this writing. She further explained that it also sets her apart from other clinics because they do not go to the lengths she does for her patients. Similarly, when speaking about Ms. Franks-Kerr, she stated that she knew Ms. Franks-Kerr was a single parent and she was just trying to help her. She repeatedly testified that she does all the paperwork for free and does not charge interest on outstanding balances, even though she is entitled to.

[48] This pattern of deflecting blame away from herself when confronted with irreconcilable inconsistencies was prevalent throughout her testimony. She often testified that she could not fully explain herself because the Crown was holding back disclosure and that the investigation was unprofessional. This common theme for Ms. Tran was completely unfounded. It is important to note that Ms. Tran raised the issue of disclosure even before any evidence was called. I satisfied myself at that juncture that disclosure was complete. Despite this, the Crown continued to accommodate Ms. Tran with her consistent disclosure requests throughout the course of the trial, often providing her with two or three copies of documents and statements that she already had in her possession. I am well satisfied that all of Ms. Tran’s disclosure requests were fully accommodated and then some.

[49] More than once, she blamed the inconsistencies on interpreter error, which I determined throughout the course of the trial to be unfounded.

[50] Ms. Tran repeatedly said that each Crown witness who testified against her was using this as an opportunity to escape payment on their outstanding debts to her.

[51] Ms. Tran’s evidence was replete with inconsistencies. As the cross- examination wore on, so did the inconsistencies and nonsensical answers. For example, Ms. Tran initially said she would do all the handwriting on the contracts/attendance sheets at her clinic while the patient waited because she did not have a computer. She said she only had one computer and it was kept at home. Later, she testified that she had a desktop computer and a laptop computer that she used to generate claim forms and other documents at the clinic. When it became apparent to her that this was inconsistent with her earlier testimony, she retracted it once again and said she does not work at the office because she only has two hands and is always with patients. However, earlier she said she does that handwriting while the patient is having the treatment, because in her words she is not always “stuck with the patient”. This is just one illustration of how quickly Ms. Tran would change her evidence and shift her evidence depending on the questions asked.

[52] When being cross-examined about the documentation concerning Ms. Manu, Ms. Tran said that the contract, set out in exhibit 4R, was a summary of the contract set out in exhibit 15Q. She said it was up to Ms. Manu to read it over and see if there were any differences between the two documents. Ms. Tran said if Ms. Manu noticed any differences, it was Ms. Manu’s responsibility to bring them to her attention. She repeated this over and over. After the lunch break, Ms. Tran testified that it was she who pointed out the differences out to Ms. Manu and brought her attention to the exact texts. She said she changed her evidence because she had thought about it over the lunch break. I accept that Ms. Tran thought about it over the lunch break, but I do not accept that Ms. Tran sat with Ms. Manu and pointed out the differences. Quite the opposite: I find that Ms. Tran came up with this response in a last-ditch effort to make herself look better. I do not believe Ms. Manu saw either of these documents.

[53] As an aside, the difference between the two documents is significant and plentiful. The contract in exhibit 15Q has important additional information in it, none of which appears, even in summary form in exhibit 4R. The contract in exhibit 4R does not even remotely look like a summarized document. Moreover, both documents reflect the same date, and it defies logic why one would generate both contracts on the same day.

[54] As I previously mentioned, much of Ms. Tran’s evidence made no sense at all. For example, she testified that Mr. Amini and his wife had been coming in for treatments as early as June 2007. She also testified that on April 3, 2008, she had Mr. Amini sign exhibit 12R. This document is clearly an introductory contract as it sets out fees and speaks to the assignment of benefits. It is something that would have been given out to a patient on a first visit, not a year later as Ms. Tran suggested. In an attempt to explain the inconsistency, Ms. Tran testified that she verbally related everything set out in exhibit 12R to Mr. Amini, at the start of his treatments in June 2007. This is simply not believable. From her testimony, it is clear that Ms. Tran was obsessed with paperwork; she repeatedly testified how she insisted each patient had to read, understand and sign the contract before she would begin treatment. As such, it makes no sense that she would present Mr. Amini with an introductory contract almost one year after he began treatment.

[55] The examples above are only a few of the many difficulties with Ms. Tran’s evidence. In my assessment of her evidence, I have remained mindful that English is not her first language, and, that she had the benefit and assistance of a fully accredited interpreter each day. However, throughout the course of this trial, I also became aware that Ms. Tran had a good command of the English language, both verbal and written. She frequently responded to questions in English and made submissions to me in English. I am aware that meaningful translation is difficult to achieve, but, I am confident that Ms. Tran had a full and complete understanding throughout the course of the trial and that nothing was lost in translation.

[56] Ms. Tran has proven herself to be a wholly unreliable and incredulous witness. Save and except for those rare and specific instances where her evidence is consistent with and fully supported by the Crown evidence. If there is any truth in her testimony, I am unable to recognize it. The inconsistencies are voluminous in the extreme. I reject her evidence. I place no weight upon it, nor am I left in a reasonable doubt by it.

Darren Dzikowski

[57] I have considered the evidence of Darren Dzikowski, the first witness called by Ms. Tran. His experience with Ms. Tran was fundamentally different from that of the Crown witnesses. Most importantly, he was a cash client and he did not make any claims through insurance. Even the contracts he signed were significantly different from those used by clients with insurance. As such, his evidence is of no value or assistance to me in my assessment of the charges facing Ms. Tran.

Cherrice Williams

[58] Ms. Williams was the second witness called by Ms. Tran. She and her children did attend Ms. Tran’s clinic for treatment. She said that she paid Ms. Tran with postdated cheques and made the claims to her insurance company herself. In this way, her experience is significantly different from that of the Crown witnesses. I have no difficulty accepting that Ms. Williams was being truthful when she testified. I think she was also being truthful when she denied being bound by a handwritten contract for package treatments totalling $14,712.09. (See exhibit 17G). When Ms. Tran confronted her with this contract, Ms. Williams was visibly confused and disturbed by its very existence. She was adamant that she would not and did not agree to the treatment package. I accept her evidence in that regard.

[59] I fail to see how either of these witnesses advances Ms. Tran’s case in any way. The evidence of Ms. Williams seems to be more consistent with the Crown’s theory and case. In any event, neither of these witnesses raises a reasonable doubt in my mind.

[60] However, my analysis does not end there. I must now go on to consider the rest of the evidence in deciding whether the Crown has proven the charges against Ms. Tran beyond a reasonable doubt.

COUNT 1: Defraud Great West Life in Excess of $5000.00

[61] I will now turn to count 1.

[62] To prove this charge the Crown relies on the evidence of Mr. Amini, Ms. MacPherson, Ms. Franks-Kerr, and Mr. Ratnasabapathy. It is undisputed that all of these witnesses were insured by GWL when they received paramedical services from Ms. Tran. There is also no dispute that Ms. Tran was at the relevant times and continues to be the sole owner, operator, and employee of the Family Rehab Clinic.

Ali Amini

[63] Mr. Amini testified over the course of two days by video from Calgary. I find that at all times he was a respectful, thoughtful and forthright witness. Ms. Tran argues that Mr. Amini, along with the other Crown witnesses was not being truthful when he testified. She says he and the others all lied because they owed her money. I disagree whole heartedly with this assessment.

[64] Ms. Tran also says I should disbelieve Mr. Amini because of a discrepancy between his evidence at trial and at the preliminary hearing. At the preliminary hearing, Mr. Amini said he recalled emailing with GWL. At trial, he could not recall this exchange with any clarity. In my view, this is a minor discrepancy upon which nothing turns. Mr. Amini’s memory has simply faded over time. In my view, this is both reasonable and understandable.

[65] I find Mr. Amini to be credible and reliable and I accept his evidence in its entirety.

[66] Mr. Amini testified that he received six or seven massage treatments from Ms. Tran in the spring of 2008. He said he stopped going to see her by July 2008 and moved to Calgary in August 2008. He said he paid in cash for the first massage and then at Ms. Tran’s request, he signed a form so Ms. Tran could bill his insurance company directly. He said that his wife did not attend Ms. Tran’s clinic and did not receive any treatments from her.

[67] On June 10, 2008, GWL paid Ms. Tran $1000.00 for naturopath treatments performed on Mr. Amini and his wife in June 2007. (See exhibit 12F). However, Mr. Amini was adamant that neither he nor his wife ever received naturopathic treatments from Ms. Tran. Moreover, he did not even know Ms. Tran in June of 2007.

[68] On June 11, 2008, GWL paid Jenny Tran $475.00 for acupuncture treatments performed on Mr. Amini and his wife in June and July of 2007. (See exhibit 12G). Again Mr. Amini clearly testified that they never received acupuncture treatments from Ms. Tran, nor did they know of her at all in 2007.

[69] On May 12, 2009, GWL paid Ms. Tran $500.00 for osteopath treatments performed on Mr. Amini’s wife in March of 2008. (See exhibit 12H). Mr. Amini testified that his wife never met, never attended, and never received treatments from Ms. Tran.

[70] I have no reason to doubt and I fully accept Mr. Amini’s testimony with regard to when he attended Ms. Tran’s clinic and which treatments he received.

[71] As such, I find as a fact that Ms. Tran did not perform those services set out in exhibits 12F, 12G and 12H on Mr. Amini and his wife. I further find that Ms. Tran billed GWL for those services and received $1975.00 that she was not entitled to.

Heather MacPherson

[72] Heather MacPherson testified on two separate days. She was cross-examined at length by Ms. Tran. She was at all times respectful and thoughtful. Her evidence was not perfect, but perfection is not the test. Ms. MacPherson was honest and candid about the things she could not remember or was confused about. I find Ms. MacPherson to be a credible and reliable witness.

[73] Ms. MacPherson testified that she attended Ms. Tran’s clinic for paramedical treatments from 2007 to 2009. She said she signed a number of documents when she first attended Ms. Tran’s clinic. One document was a general intake form where she was required to provide information about her three children. That other was a document authorizing Ms. Tran to bill GWL directly. She said it was Ms. Tran’s practice to bill GWL and receive the money back from GWL before performing the treatment. This made it difficult for her to recall with accuracy the dates that she did attend and receive treatment from Ms. Tran. She was very clear that none of her three children received any treatment from Ms. Tran. I fully accept her evidence in that regard.

[74] I am mindful of Ms. Tran’s argument that Ms. MacPherson should not be believed. She points out that Ms. MacPherson personally received statements from GWL that listed her children receiving treatments and she did nothing about it. Ms. MacPherson explained that she had a lot going on in her life at that time and did not bother or take the time to open those statements. She was a single mother of four children, with a full-time job, and in the middle of a home renovation. I have no reason to doubt her explanation in that regard.

[75] Ms. Tran also points out that Ms. MacPherson signed a complaint letter that was sent to the “insurance ombudservice”. That letter referenced “her and her family” not being reimbursed for treatments from Ms. Tran. (See exhibits 7Z and 7AA). Ms. MacPherson agreed that she read and signed the letter. She said Ms. Tran wrote the letter and that she simply corrected the grammar. She said she did not pay much attention to the content. She said that she believed Ms. Tran was a professional and she completely trusted her. In my view, she seemed genuinely confused and somewhat surprised when confronted with the reference to “her and her family” having had treatments. I accept her explanation and find that she did not appreciate the implication of the family reference when she read that letter over.

[76] There are 16 separate GWL explanation of benefit forms filed as exhibits in relation the MacPherson family. (See exhibits 7B – 7Q). With the exception of two forms, the remaining 14 list Ms. MacPherson along with one or more of children as having received paramedical treatments from Ms. Tran. The treatments listed include: massage, naturopath, and acupuncture. I am unable to discern with any certainty which treatments Ms. MacPherson actually had given her lack of clarity around the dates she did attend. I do however, accept her evidence that her three children did not attend Ms. Tran’s clinic, nor did they receive any paramedical treatments from Ms. Tran. I find as a fact that Ms. Tran billed GWL for multiple acupuncture, massage and naturopathic treatments in 2007 and 2008 for Ms. MacPherson’s three children. I find as a fact that Ms. Tran received $5220.00 from GWL for treatments on the MacPherson children that were never performed.

Kathleen Franks-Kerr

[77] Kathleen Franks-Kerr testified that in June of 2008, she attended Ms. Tran’s clinic hoping to get relief from her migraine headaches. Ms. Franks-Kerr testified over the course of two separate days. She presented as honest, forthright and respectful. I find her to be a credible and reliable witness and I accept her evidence in its entirety.

[78] Ms. Franks-Kerr said that she only ever received one treatment from Ms. Tran and that took place the first and only time that she attended the clinic. She was unsure what kind of treatment it was, but recalls that Ms. Tran put hot, electric pads on her upper back and temples. Ms. Tran told her it was a form of acupuncture. On that day, she paid Ms. Tran $250.00. She used her debit card to complete the transaction. This was to cover the treatment she had just had and one follow-up treatment. Ms. Franks-Kerr then made a claim to her insurance company for reimbursement. Approximately one week later, Ms. Franks-Kerr became aware that GWL had mistakenly reimbursed Ms. Tran instead of her. She confronted Ms. Tran about this mistake and it was then that she decided to not seek any further treatment from Ms. Tran.

[79] On Ms. Franks-Kerr’s first visit to Ms. Tran’s clinic she filled out a number of forms. One such document included information about her and her daughter. The other document was a form that allowed Ms. Tran to bill GWL directly for treatments performed on Ms. Franks-Kerr.

[80] On June 18, 2009, GWL issued payment to Ms. Tran in the amount of $1500.00. (See exhibit 13C). The explanation of benefits indicates that Ms. Franks-Kerr and her daughter, Samantha, each received eight naturopathic treatments from Ms. Tran in June of 2007. Ms. Franks-Kerr testified that neither she nor her daughter received these treatments. Moreover, she did not even know Ms. Tran in 2007. I accept Ms. Franks-Kerr’s evidence in that regard.

[81] I find as fact that Ms. Tran did bill GWL for naturopathic treatments on Ms. Franks-Kerr and Samantha Franks, which were never performed. I find as a fact that Ms. Tran received $1500.00 in payment as a result.

Kumaresh Ratnasabapathy

[82] Kumaresh Ratnasabapathy testified the he and his wife both received treatments from Ms. Tran. He said that between November 2007 and August 2008, he received between 12 and 15 acupuncture and/or massage treatments.

[83] I have no difficulty accepting Mr. Ratnasabapathy’s evidence in its entirety. Over the three days that he testified, he was always courteous, respectful and thoughtful with his answers. I found him to be an honest and forthright witness.

[84] He testified that his wife received between three and five massages from Ms. Tran. He said that his wife attended Ms. Tran’s clinic for the first time in January 2008. He was adamant that she did not attend in 2007 and that she did not have any treatments after March of 2008 because she was pregnant.

[85] Mr. Ratnasabapathy agreed that Ms. Tran could bill GWL directly for his treatments. He said it was Ms. Tran’s practice to bill GWL and receive the money back from GWL before performing the treatment. This made it difficult for him to recall with accuracy the dates that he attended and received treatment from Ms. Tran.

[86] Ms. Tran argues that Mr. Ratnasabapathy should have complained to her if he had issues with the insurance billings. She says because he did not complain to her I should not believe him.

[87] I disagree. I find that the confusion about the dates and times that he received treatment was as a result of Ms. Tran’s billing practices. He was, however, confident that he did not attend for any treatments prior to November 2007 and that his wife did not attend for any treatments prior to January 2008. He was also sure that his wife only had massage treatments and that he only had acupuncture and massage.

[88] He was also very clear that he stopped seeing Ms. Tran in July 2008 after receiving statements and a reimbursement cheque from GWL for osteopath treatments he never had. He contacted Ms. Tran about this and she insisted he deliver the cheque to her. He said she was so aggressive that he did as instructed by her, but he also notified GWL. I find that Mr. Ratnasabapathy took action quite quickly after realizing that Ms. Tran was being reimbursed for treatments that he and his wife did not receive.

[89] I find the following facts to be true:

• Mr. Ratnasabapathy’s wife did not attend for massage treatments in November and December 2007 as listed in the GWL Explanation of Benefits currently marked as exhibit 10A;

• His wife did not attend for the seven acupuncture treatments in November and December 2007, as listed on the GWL explanation of benefits in exhibit 10C;

• His wife did not receive the seven acupuncture treatments in February and March 2008 as listed on the GWL explanation of benefits marked as exhibit 10E; and

• Neither Mr. Ratnasabapathy nor his wife received any of the naturopathic treatments in June and July 2007 as listed in the GWL Explanation of Benefits marked exhibit 10F.

[90] I find as a fact that Ms. Tran received at a minimum, $2406.50 from GWL for treatments on Mr. Ratnasabapathy and his wife that were never performed.

[91] In total I find that Ms. Tran received at a minimum $11,101.50 in payments from GWL for treatments she did not perform and therefore was not entitled to.

[92] In summary, and after a thorough review of all the evidence in relation to this count, including testimony of witnesses, the exhibits, the submissions of defence and Crown, I find myself satisfied beyond any reasonable doubt that Ms. Tran did defraud GWL in excess of $5000.00.

COUNT 2: Defrauding Manulife Financial Assurance in excess of $5000.00

[93] I will now turn to count two.

[94] The Crown led no evidence in relation to this charge.

[95] Accordingly, Ms. Tran will be found not guilty of this count.

COUNT 3: Attempt to Defraud Green Shield of Canada in excess of $5000.00

[96] I will now turn to count 3.

[97] In order to find Ms. Tran guilty of attempted fraud, I must be satisfied of the following three criteria:

1. That Ms. Tran intended to commit the offence of fraud;

2. That there is evidence of an overt act or omission toward the commission of fraud beyond mere preparation; and

3. That the actual offence of fraud was not committed.

[98] The entirety of the evidence in relation to this charge comes from Cherysse Manu. Ms. Manu testified over the course of two days. She was not cross-examined. Ms. Manu clearly recalled that she visited Ms. Tran’s clinic on only one occasion in July 2008. She was looking for relief from lower back pain, as a result of a car accident. She said she attended the clinic and Ms. Tran placed some sticky pads on her back while she was lying on a massage table. After the treatment, Ms. Manu paid Ms. Tran $65.00 in cash. Ms. Tran asked Ms. Manu to fill out a number of forms. Ms. Tran told her that she would be eligible for a lot of treatments based on her coverage with Green Shield. Ms. Manu said she was suspicious of Ms. Tran at the first visit because Ms. Tran asked her to provide her husband’s information. Ms. Manu did not comply and did not return to the clinic.

[99] Shortly after that first visit, Ms. Manu started receiving statements in the mail from Green Shield. The statements set out that she had naturopath, massage, osteopath, and acupuncture treatments at Ms. Tran’s clinic between December 2007 and September 2008. The total amount claimed was $6236.70. The total amount paid out was zero. The statements from Green Shield (See exhibits 4D – 4K) were addressed and sent to J. Tran at the Family Rehab Clinic in Ajax.

[100] I find Ms. Manu to have been a respectful and honest witness. She had an excellent memory of her interaction with Ms. Tran. In my view, she is person of excellent character and integrity I wholeheartedly accept Ms. Manu’s evidence that she did not attend for any of the treatments listed in the Green Shield statements. Given that Ms. Tran was the sole owner and operator of the clinic and that the statements were all addressed to her personally, I have no doubt that she filled out the claim forms and sent them to Green Shield in the hopes that she would be reimbursed.

[101] Based on my above findings, I am satisfied beyond a reasonable doubt that Ms. Tran filled out insurance claim forms and sent them to Green Shield for paramedical services that were never performed on Ms. Manu. I am satisfied that she did this without the knowledge or permission of Ms. Manu. I am further satisfied beyond a reasonable doubt that Ms. Tran did this with the hope and intention of receiving money from Green Shield that she was not entitled to. It is only because Green Shield rejected the claims that Ms. Tran did not receive the money. If she had received the funds as she had hoped and planned, she would surely be facing a charge of fraud.

[102] Ms. Tran’s actions in carrying out this offence go well beyond mere preparation. She clearly took every step possible to carry out a fraud against Green Shield. I have no doubt that this was her intention, and as such, I find her guilty of attempting to defraud Green Shield of Canada in excess of $5000.00.

COUNT FOUR: Defrauding the Public of a Service Under $5000.00

[103] I will now turn to count four.

[104] The Crown submits that Ms. Tran was holding herself out to be a qualified naturopath, and that she offered naturopath services at her clinic and billed members of the public for these services. As such, Crown Counsel urges me to find Ms. Tran guilty of defrauding the public of a service under $5000.00, specifically, naturopathy.

[105] There is no dispute that Ms. Tran was not a registered naturopath within the province of Ontario. The Drugless Practitioners Act, R.S.O. 1990, c. D. 18 governs the practice of naturopathic medicine in the province of Ontario. Qualified members must register and pay fees on an annual basis with the Board of Directors of Drugless Therapy - Naturopathy. It is important to note that all registered members must adhere to strict academic and practical requirements as specified by the Board. Dr. Dronyk testified that he was a member of this governing body for naturopathic medicine up until April of 2010. He confirmed that Ms. Tran has never been a registered member of this organization. As such she was not entitled to refer to herself as a naturopathic doctor, to use the designation ND after her name, or to use any prefix to signify that she was qualified to practice naturopathic medicine as defined by the Drugless Practitioners Act.

[106] Crown Counsel directs me to the testimony of Ms. Franks-Kerr as evidence of Ms. Tran publicly holding herself out to be a doctor of naturopathy. Ms. Franks-Kerr testified that in the spring of 2008, she came across Ms. Tran’s website offering naturopathy when she was looking for alternative therapy to combat migraine headaches. Ms. Franks- Kerr said that on her website, Ms. Tran referred to herself as Dr. Jenny Tran. She visited Ms. Tran’s clinic once and had one treatment. It is unclear what treatment Ms. Franks-Kerr actually received, but what is clear is that Ms. Tran issued Ms. Franks-Kerr a receipt for $125.00, and to the right of her signature was a stamp stating, “Naturopathic, Reg #430 - 807, Dr. Jenny Tran.” In fact, all the GWL statements for naturopathic treatments are addressed to Dr. Jenny Tran, Reg #403 -807. Ms. Tran does not deny referring to herself as Dr. Jenny Tran and in some instances Dr. Jessica Tran. There is no doubt Ms. Tran believed she was somehow entitled to refer to herself as doctor of naturopathic medicine. I, however, do not share that view.

[107] Each and every reimbursement cheque from GWL for naturopathic treatment is addressed to Dr. Jenny Tran, or in one case Dr. Jessica Tran. Ms. Tran does not dispute that she referred to herself as a doctor and used the prefix Dr. She also takes no issue that she, at times referred to herself as Dr. Jessica Tran. Moreover, there are many preprinted documents generated and used by Ms. Tran that specifically and boldly state Dr. Jenny Tran; see exhibit 15X as an example.

[108] In July 2008 Ms. Tran received a letter from GWL advising her that because she is not registered with the Board of Directors for Drugless Therapy, Naturopathy she is not allowed to practice as a Naturopathic doctor in Ontario. (See exhibit 15M). Informed, yet undeterred Ms. Tran continued to perform and bill for naturopathic treatments. By January of 2010, Ms. Tran received a cease and desist order from the Board of Directors of Drugless Therapy - Naturopathy. (See exhibit 11(b)). Ms. Tran argues that because she was providing naturopathic treatments and not naturopathic medicine, she was doing no wrong. First I am not convinced that is what Ms. Tran was doing, but secondly this is a distinction without a difference.

[109] I find that Ms. Tran set out to deliberately mislead the public into believing that she was a qualified and registered naturopathic doctor. She even went so far as to place advertisements in the Yellow Pages under the heading of “Registered Naturopath”, just one advertisement space away from the information for the Board of Directors of Drugless Therapy and Naturopathy. (See exhibit 15GG). I appreciate that Ms. Tran refers to her clinic as a natural health clinic and the advertisement does not include the word naturopathy. However, in my view, this is simply a distinction without difference. Ms. Tran had full control over the placement of the advertisement. This shows that Ms. Tran deliberately tried to deceive members of the public whom were seeking qualified naturopathic treatment.

[110] I am mindful that Ms. Tran repeatedly testified that it was up to her clients to inform themselves about her qualifications (or lack thereof). I am also mindful that Ms. Tran never told her clients that she was a “naturopathic doctor”. However this buyer-beware approach is completely inappropriate when in every other aspect, Ms. Tran held herself out to be someone who she was not. Ms. Tran did everything short of telling her clients directly that she was a doctor of naturopathy. She even wore a white lab coat during treatments. In the presence of Ms. Franks-Kerr, Ms. Tran called GWL to confirm that she could bill for naturopathic treatments. It is clear that “omitting” to explain to her clients that she actually was not a qualified, registered naturopath, was part of Ms. Tran’s plan to deceive and deprive.

[111] After a thorough review of all the evidence that pertains to this charge, I find myself convinced beyond a reasonable of Ms. Tran’s guilt.

[112] Accordingly I find Ms. Tran guilty of Count Four: Defrauding the public of a service under $5000.00.

COUNT FIVE: Defrauding the public of a service under $5000.00

[113] I will now turn to count five.

[114] Crown counsel urges me to find Ms. Tran guilty of defrauding the public of a service under $5000.00, specifically in reference to massage therapy.

[115] In support of this position the Crown first points to the evidence of Ms. Walters, the director of professional conduct for the College of Massage Therapy Ontario (“CMTO”). Her job is to oversee the practice of registered massage therapists in Ontario. To become a certified or registered member, individuals are subject to the CMTO requirements, which include successful completion of a two-year course and examinations. Ms. Walters testified that Ms. Tran has never been registered with the CMTO.

[116] Ms. Tran does not dispute the fact that she has never been a registered member of the CMTO. She testified that she is a member of a Quebec organization called the “Massologists and Practitioners in Massage Association of Canada”. She argues that this is a federal membership which supersedes membership to the CMTO. I do not accept her argument.

[117] Ms. Tran also argued that the zoning bylaws of the Town of Ajax authorized her to perform massage therapy. I do not accept this argument.

[118] I find, and Ms. Tran acknowledges, that she knew the difference between massage therapy and massage treatment or services. She claims to have only been providing the latter. I find this hard to accept. Located at Ms. Tran’s clinic was a self-inking stamp that said Massage Therapy, with her name and a registration number on it. The number is from her Massologist certificate. I find that her use of the number in conjunction with the words massage therapy on the stamp is a clear demonstration of the lengths she was prepared to go to in order to deceive the public.

[119] Mr. Ratnasabapathy testified that he chose to attend Ms. Tran’s clinic in November 2007 after reading an advertisement in an Ajax Newspaper that referred to Ms. Tran as a registered massage therapist. He said that she confirmed her qualifications for him on his first visit. Moreover, she pointed to all of her certificates displayed on the wall inside the clinic. He did not read the certificates, but nonetheless believed that Ms. Tran was properly qualified and licensed. In my opinion, any reasonable person in Mr. Ratnasabapathy’s position would believe the same. After all, this was exactly what Ms. Tran hoped he would believe.

[120] This display of deception wasn’t restricted to just Ms. Ratnasabapathy. In the spring of 2008, Mr. Amini was also looking for a qualified and registered massage therapist to help relieve his back pain. When Mr. Amini asked Ms. Tran if she was a registered massage therapist, she told him that she was “registered with the college”. She then pointed to her certificates on the wall to further convince Mr. Amini that she was both qualified and registered. As such, Mr. Amini was so convinced.

[121] Ms. Tran argues that Mr. Amini’s evidence should not be relied upon because he does not know the difference between massage therapy and massage services. I disagree, it is clear from complete read of the transcript that Mr. Amini, was at all times, looking for a qualified and registered massage therapist and communicated that to Ms. Tran.

[122] I am convinced that Ms. Tran knew and was well-aware that in Ontario, registration with the CMTO is required in order to provide and bill for massage therapy. Yet, she chose to ignore this. Ms. Tran was well informed about insurance company billing policies and procedures. She was quick to assure clients that they would be fully covered and reimbursed by their respective insurance companies. This assurance provided further grounds for clients to believe that Ms. Tran was duly qualified, when in reality, she was not. I find that this is exactly what Ms. Tran wanted. It is clear to me that Ms. Tran employed this intentional strategy, hoping that her clients would infer that she was a qualified massage therapist.

[123] Ms. Tran argues that she was not holding herself out to be a massage therapist or a registered massage therapist. She says she was simply providing massage treatments and she did not have to be registered with the CMTO to do so. I do not disagree that a person can provide a massage treatment without being registered with the CMTO. But what a person cannot do is offer a massage service under the guise that he or she is a massage therapist or a registered massage therapist. That is a special designation reserved for those individuals who have been recognized and registered with the CMTO.

[124] Further evidence of Ms. Tran holding herself out to be registered massage therapist comes from Justice Matlow’s cease and desist order dated February 23, 2010. (See exhibit 6C). Ms. Tran argues this order was set aside. Given my earlier findings of credibility, I do not accept her evidence in that regard.

[125] I find that Ms. Tran set out to deceive the public into believing that she was a qualified massage therapist. Whether by omitting information or through bald-faced lies, Ms. Tran decided to deceive and deprive her clients, and thereby the public, of the service of a registered massage therapist. I have no doubt of this.

[126] Accordingly, I find Ms. Tran guilty of Count Five: Defrauding the public of a service under $5000.00.

COUNT SIX: Attempt to Obstruct Justice by filing a false statement of claim

[127] I will now turn to count six.

[128] To find Ms. Tran guilty, I must be satisfied beyond a reasonable doubt of the following:

1. That Ms. Tran filed a false statement of claim in a judicial proceeding;

2. That in doing so she had a tendency to obstruct, pervert of defeat the course of justice; and

3. That Ms. Tran intended, by filing the false statement of claim to obstruct, pervert or defeat the course of justice.

[129] Crown counsel points me to the evidence of Ms. Manu and Mr. Ratnasabapathy to support a conviction on this count.

[130] As set out earlier in this judgment, Ms. Manu testified that she attended and received treatment from Ms. Tran on only one occasion in July of 2008. (See exhibit 5). She went on to say that in the fall of 2009, Ms. Tran sued her in small claims court for $10,000.00 for unpaid treatments. In support of this claim, Ms. Tran attached four documents:

1. An invoice dated June 15, 2009, that listed Ms. Manu as attending Ms. Tran’s clinic in 2007 for naturopathy, massage, acupuncture and osteopathy treatments for a total amount owing of $10,269.00;

2. An attendance sheet, reflecting the dates of the treatments listed on the invoice and that was signed by Ms. Manu;

3. A second attendance sheet; and

4. A letter from Victor’s Collection Agency dated July 13, 2009, addressed to Ms. Manu suggesting she owed Ms. Tran’s clinic $12,733.56.

[131] Ms. Manu filed a report in response to this statement of claim and attended court on one occasion. She said Ms. Tran was present at the proceeding and the matter ultimately was resolved in her favour, as she did not have to pay Ms. Tran any money. She could not remember the specifics of the day given the passage of time, which is understandable. It would appear that the claim was dismissed.

[132] Given my previous findings of credibility, I am satisfied that Ms. Manu did not attend for the treatments as set out in Ms. Tran’s statement of claim. I am further satisfied that the attached documents are false and that they were created by Ms. Tran to gain financial advantage.

[133] Mr. Ratnasabapathy had a similar experience. He testified that Ms. Tran sued him in small claims court for $16,666.00 for unpaid treatments in January 2010. Again, attached in support of the statement of claim, were invoices from Ms. Tran’s clinic and a letter from Victor’s Collection Agency. Ms. Tran claimed that he and his wife had received 82 osteopath and naturopath treatments that they did not pay for. Mr. Ratnasabapathy was forced to hire a lawyer to assist him to prepare a response. Ultimately, the claim was dismissed and he did not have pay Ms. Tran any money. Ms. Tran did not attend at that court appearance.

[134] Again, given my previous findings of credibility I am satisfied that Mr. Ratnasabapathy and his wife did not attend for any of the treatments listed in the statement of claim. I am further satisfied that the invoices attached to the statement of claim were false and were created by Ms. Tran to gain financial advantage.

[135] Ms. Tran said that it was not she, but a representative from Victor’s Collection Agency who prepared and filed the statement of claim, and that therefore, she was not responsible. I disagree. Given that I have already established that Ms. Tran was the sole, employee, owner and operator of the Family Rehab Clinic, it is clear that the collection agency was acting as her agent and taking direction from her. Depending on the knowledge possessed by the collection agency at the time, the agency may or may not be blameworthy. Be that as it may, it in no way impacts, diminishes, or offsets Ms. Tran’s culpability.

[136] I am satisfied beyond a reasonable doubt that Ms. Tran did file false statements of claim on at least two occasions in small claims court.

[137] Next, I ask myself if by filing the false statement of claim, Ms. Tran’s actions had a tendency to obstruct, pervert or defeat the course of justice. My focus is on the tendency of Ms. Tran’s conduct and not the result of it. The question is therefore, whether a reasonable person, aware of the circumstances, would conclude that what Ms. Tran did had a tendency to obstruct, pervert or defeat the course of justice. (See: David Watt, Watt’s Manual of Criminal Jury Instructions (Toronto: Carswell, 2005) at 139).

[138] I am satisfied beyond a reasonable doubt that filing a false statement of claim would have a tendency to obstruct, pervert or defeat the course of justice.

[139] Finally, I have to consider Ms. Tran’s state of mind at the time she filed the false claims. I find that Ms. Tran knew exactly what she was doing and why she was doing it when she filed these false claims. The motivation was money. She hoped to gain significant financial advantage and was prepared to obstruct and pervert the course of justice to do so. I find the Crown has proven this element and this charge beyond a reasonable doubt.

[140] Accordingly, I find Ms. Tran guilty of Count Six: Attempt to Obstruct Justice by filing a false statement of claim.

COUNT SEVEN: Forgery

[141] I will now turn to count seven.

[142] In order to find Ms. Tran guilty of forgery I must be satisfied beyond a reasonable doubt of the following:

1. That Ms. Tran made a false document;

2. The she knew the document was false when she made it;

3. That she intended the document to be considered genuine; and

4. That she intended someone would be prejudiced, deceived, or cheated by using it as genuine.

[143] In support of this count, the Crown directs me to the evidence of Ms. Manu.

[144] Ms. Manu testified that during her one and only visit to the Family Rehab Clinic, Ms. Tran had her sign a number of blank documents. Ms. Manu said she was concerned and suspicious, but nonetheless, signed the forms. Included in these documents were blank attendance forms that Ms. Tran used regularly in the course of business. When Ms. Manu was shown exhibits 4L and 4N, both of which are Family Rehab Clinic attendance forms, she identified the signature on both documents as being hers. She was adamant however, that the documents were completely blank when she signed them.

[145] The documents, as they appear before this court, are completely filled in with checkmarks signifying the dates and types of treatments that Ms. Manu allegedly received. Each document also contains several handwritten paragraphs referencing treatments taken and money owed in contractual language, binding Ms. Manu to the terms as set out.

[146] I accept Ms. Manu’s evidence regarding these forms and I find as a fact that the forms were blank when she signed them.

[147] I find as a fact that it was Ms. Tran who filled in the information on both forms. In cross-examination, Ms. Tran admitted that she was responsible for filling in all the information on both forms. Given that she was the sole employee, owner and operator of the clinic, she would be hard pressed to suggest anything different. However, Ms. Tran claims that she filled in the forms in the presence of Ms. Manu. Further, she is unyielding in her position that Ms. Manu read and reviewed each form before she signed them. I do not accept Ms. Tran’s version of events. I rely on my findings of credibility set out earlier in this judgment.

[148] I find as a fact and I am satisfied beyond a reasonable doubt that Ms. Tran filled in these forms without the knowledge or permission of Ms. Manu.

[149] I am further satisfied beyond a reasonable doubt the Ms. Tran filled in the forms with false information hoping to gain a financial advantage. I have no doubt that when Ms. Tran created these documents, she did so knowing and intending for the documents to be treated as authentic and true.

[150] Ms. Tran knew that Ms. Manu did not attend her clinic for the more than 70 treatments listed on the forms. I find that Ms. Tran’s sole motivation for creating these forms was financial. She hoped to use the forms to compel either the insurance company or Ms. Manu to pay her for the listed treatments. Given her attention to detail and the contractual language used in the documents, I can come to no other conclusion that when Ms. Tran created these forms she wanted them to be considered genuine. She wanted someone to read them and pay her thousands of dollars for treatments that were never given.

[151] Ms. Tran was unsuccessful in recovering money from the insurance company or from Ms. Manu, despite her numerous attempts. In 2009, Ms. Tran filed a statement of claim in small claims court, suing Ms. Manu for $10,000.00 for unpaid treatments. The claim was ultimately dismissed. However, the attendance forms (See exhibits 4L and 4N), were attached to that statement of claim. I have no doubt that Ms. Tran wanted the small claims court to treat these documents as genuine for her own financial gain. Her intention is clear. It does not matter that the documents were never relied upon by the court. What matters is that Ms. Tran intended them to be used as authentic and true. It is conceivable that the court could have relied on the forms and made a finding against Ms. Manu based upon them. If such a finding had been made, there is no doubt that both Ms. Manu and the Court would have been deceived and cheated.

[152] Accordingly I find Ms. Tran guilty of Count Seven: Forging health care claim forms.

COUNT EIGHT: Uttering a forged document in relation to Great West Life

[153] I will now turn to count eight.

[154] To prove this count, the Crown directs me to the evidence of Ms. Franks-Kerr and a GWL Health Care Expenses Form, marked as exhibit 13A in this proceeding.

[155] In order to find Ms. Tran guilty of uttering a forged document I must be satisfied beyond a reasonable doubt of the following:

1. That the GWL health care form was in fact forged;

2. That Ms. Tran knew that the GWL health care form was forged;

3. That Ms. Tran dealt with the form; and

4. That Ms. Tran represented the Health Care Expenses form as real to GWL.

[156] The document in question (See exhibit 13A), is a preprinted GWL form entitled, “Healthcare Expenses Statement”. There is no dispute that the document was seized by police from Ms. Tran’s clinic in the course of the investigation. Moreover, in her testimony Ms. Franks-Kerr recalled that Ms. Tran gave her the form to sign on her first visit to the clinic. Ms. Franks-Kerr said the form was blank when she signed it and was void of any handwriting, including the date.

[157] As it appears in court, the form is completely filled in. Information pertaining to the employee, dependant and claim details have been handwritten in and completed. Ms. Franks-Kerr is adamant that the handwriting is not hers. The form states that Ms. Franks-Kerr and her daughter received $1876.00 worth of naturopathic treatments. The form was dated July 23, 2007.

[158] The form does not reference Ms. Tran or her clinic. It does not reference who provided the alleged treatments. As evidence of the connection to Ms. Tran and her clinic, the Crown directs my attention to exhibit 13C, a GWL Explanation of Benefits Statement. This particular statement was issued to Dr. Jenny Tran on June 18, 2008. It itemizes naturopathic treatments received by Ms. Franks –Kerr and her daughter, with the last treatment date being on July 23, 2007. It also shows that a payment of $1500.00 for these treatments was sent to Dr. Jenny Tran at her Ajax clinic.

[159] The similarities between the two documents are as follows:

• Both reference GWL as the insurer

• Both reference the date July 23, 2007

• Both refer specifically to naturopathic treatments

• Both specifically refer to Ms. Franks-Kerr and her daughter being the recipients of those treatments

• Both reference the total amount claims for Naturopathic treatments to be $1876.00

[160] The above similarities in combination with the other evidence, leave no doubt in my mind that the GWL Healthcare statement (See exhibit 13A) was generated by Ms. Tran and sent by her to GWL in hopes of being reimbursed for the alleged treatments

[161] I believe Ms. Franks-Kerr’s evidence that when she signed the form it was blank. I further find that she received only one treatment from Ms. Tran in July 2008 and that her daughter has never attended or received treatments from Ms. Tran.

[162] The only logical and reasonable inference based on this evidence is that Ms. Tran filled in the details after Ms. Franks-Kerr signed the blank form. Not only did Ms. Tran add all of the personal information, but she also noted that Ms. Franks-Kerr and her daughter received $1876.00 worth of naturopathic treatments. I find that the information about the naturopathic treatments was false and that Ms. Tran knew it to be false when she added it. I am satisfied of this beyond a reasonable doubt.

[163] I find that Ms. Tran sent this document to GWL in the hopes of being reimbursed for the treatments listed. I am also satisfied of this beyond a reasonable doubt.

[164] Finally, there is no doubt in my mind that when Ms. Tran created this false document and sent it GWL, she expected them to treat it as true and authentic for the purpose of reimbursement. In fact, GWL did not question the authenticity of the document and reimbursed Ms. Tran $1500.00 for treatments she did not perform.

[165] After a thorough review of the evidence, I am satisfied beyond a reasonable doubt of Ms. Tran’s guilt in relation to this charge.

[166] Accordingly, I find Ms. Tran guilty of Count Eight: Uttering a forged document in relation to Great West Life.

CONCLUSION

[167] To summarize, after a thorough review of all the evidence, the caselaw and the submissions of Crown and defence, I find myself satisfied beyond any reasonable doubt, that Ms. Tran is guilty of:

• Count 1: Defrauding Great West Life Assurance in excess of $5000;

• Count 3: Attempt to defraud Green Shield of Canada in excess of $5000;

• Count 4: Defrauding the Public of a service of a value under $5000;

• Count 5: Defrauding the Public of a service of a value under $5000;

• Count 6: Attempt to Obstruct Justice by filing a false statement of claim;

• Count 7: Forging Health Care Claim Forms; and

• Count 8: Uttering a forged document in relation to Great West Life.

The Honourable Madam Justice Kelly Wright

DATE RELEASED: January 23, 2015

NOTE: As noted in court, on the record, this written ruling is to be considered the official version and takes precedent over the oral reasons read into the record. Any discrepancies between the oral and written versions, it is the official written ruling that is to be relied upon.