R. v. Tomlinson (L.), (2005) 219 Man.R.(2d) 1 (PC)

• Judge: Curtis, P.C.J.
• Court: Provincial Court of Manitoba (Canada)
• Case Date: May 19, 2005
• Jurisdiction: Manitoba
• Citations: (2005), 219 Man.R.(2d) 1 (PC)

R. v. Tomlinson (L.) (2005), 219 Man.R.(2d) 1 (PC)

MLB headnote and full text

Temp. Cite: [2007] Man.R.(2d) TBEd. SE.017

Her Majesty The Queen v. Laurie Tomlinson (accused)

Indexed As: R. v. Tomlinson (L.)

Manitoba Provincial Court

Curtis, P.C.J.

May 19, 2005.

Summary:

The accused was charged under s. 385(8) of the Insurance Act with four counts of "acting as an adjuster" by "directly negotiating, investigating, adjusting, or settling a loss or claim, for compensation or reward". The accused admitted that he acted as an "adjuster", but claimed an exemption under s. 385(9)(b) (trustee or agent of the insured property owner) or s. 385(9)(d) (appraiser, engineer or other expert solely providing advice or evidence). Alternatively, the accused pleaded the defence of due diligence, where he purportedly obtained a legal opinion advising that his acting as an "agent" for insured persons did not violate s. 385(8) of the Act, even when he acted as an "adjuster".

The Manitoba Provincial Court found the accused guilty. The accused was carrying on the unlicensed business of an "adjuster", contrary to s. 385(8). The exemptions under s. 385(9)(b) and (d) did not apply. The defence of due diligence did not apply to the accused's mistake of law.

Insurance - Topic 230

Regulation - Offences - Acting as unlicensed "adjuster" - Section 385(8) of the Insurance Act made it an offence to act as an "adjuster" without being licensed and regulated by the Act - The Act regulated the insurance business to protect consumers and had to be construed to avoid absurdity - Section 385(8) did not apply to "a trustee or agent of the owner of property insured" - The accused admitted acting as an "adjuster" for compensation, but labelled himself as an "agent" for his insured clients - The Manitoba Provincial Court found the accused guilty of acting as an "adjuster" - Neither s. 385(9)(b) or (d) could be relied on to effect "an end run around the regulations which those in the insurance industry are required to meet" - The court stated that "calling oneself a business agent and then doing what is included in the definition of adjuster under the Act ... is contrary to the intent and context of the Act" - Interpreting the Act to permit anyone to act as an "adjuster" simply by designating oneself as an "agent", without being subject to the regulatory watchdog or safeguard provisions of the Act, would result in an absurdity - The court rejected the accused's defence of due diligence based on him purportedly obtaining a legal opinion that he was entitled to the "agent" exception - This was a mistake of law, not a mistake of fact - Due diligence did not apply - Further, there was some question as to what information the accused provided to the lawyer as the basis for the legal opinion.

Statutes - Topic 1408

Interpretation - Construction where meaning is not plain - General principles - Avoidance of absurdity - [See Insurance - Topic 230 ].

Trials - Topic 1172

Summary convictions - Strict liability offences - Defence of due diligence or error of fact - [See Insurance - Topic 230 ].

Cases Noticed:

R. v. Romanowicz (J.) (1999), 124 O.A.C. 100; 45 O.R.(3d) 506 (C.A.), dist. [para. 20].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 5 W.W.R. 1; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 35].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 35].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 35].

R. v. Fontaine (D.) (2002), 166 Man.R.(2d) 214; 278 W.A.C. 214; 168 C.C.C.(3d) 263 (C.A.), refd to. [para. 35].

R. v. Shuler (1983), 46 A.R. 96 (C.A.), refd to. [para. 35].

Westminster Bank Ltd. v. Zang, [1966] A.C. 182 (H.L.), refd to. [para. 36].

R. v. Paul (1982), 42 N.R. 1 (S.C.C.), refd to. [para. 37].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 40].

R. v. Bouchard (1984), 15 C.C.C.(3d) 282 (Que. C.A.), refd to. [para. 46].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 47].

Statutes Noticed:

Insurance Act, R.S.M. 1987, c. I-40; C.C.S.M., c. I-40, sect. 385(9)(b), sect. 385(9)(d) [para. 2].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 34].

Counsel:

S. Brennan, for the Crown;

M. Schultz, for the accused.

This case was heard at Winnipeg, Manitoba, before Curtis, P.C.J., of the Manitoba Provincial Court, who delivered the following judgment orally on May 19, 2005.