CITATION: Nicholson v. Whan, 2011 ONCA 28

DATE: 20110114

DOCKET: C51393

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Simmons and Watt JJ.A.

BETWEEN

Derek Nicholson, Emma Nicholson, Amanda Nicholson,
          Haley Nicholson and Talia Nicholson by their Litigation Guardian, Derek
          Nicholson, Michael Nicholson, Moira Nicholson and Brian Forsyth

Plaintiffs (Appellants)

And

Beverly Ann Whan, Elaine Marilyn Steele and Shabian
          Equestrian Centre

Defendants (Respondents)

Michael Burgar, for the appellants

Joseph Obagi, for the respondents

Heard and endorsed: January 13, 2011

On appeal from the judgment of Justice Robert Maranger of the
          Superior Court of Justice, sitting with a jury, dated November 13, 2009.

APPEAL BOOK ENDORSEMENT

[1]

In a case involving a claim under
    the
Dog Owner's Liability Act
, R.S.O. 1990, C. D. 16, the appellant
    claims that the trial judge erred in his instructions to the jury concerning
    the word "attack" as it appears in s. 2(1) of the Act.

[2]

The appellant argues that
    the trial judge misdirected the jury by instructing them that the language in a
    strict liability statute must be given a strict and narrow interpretation. The
    appellant also contends that the trial judge's explanation of the term attack
    was inadequate.

[3]

We would not give effect to this
    ground of appeal. Even accepting that the trial judge erred in instructing the
    jury that the language in a strict liability statute must be given a narrow
    interpretation, absent misdirection on the meaning of the words, we are not
    persuaded the jury would have been led into error by this instruction.

[4]

Concerning the alleged inadequacy
    of the trial judge's instructions, none of the issues raised on appeal were the
    subject of objections at trial. As this court said in
Rizzi v. Mavros
,
    [2008] O.J. No. 935, at para. 38, the absence of objection suggests that the
    issue was not seen as central to the jury's deliberations. Particularly in the
    absence of the closing addresses to the jury, and given the manner in which the
    trial judge framed the positions of the parties, we are not persuaded that the
    alleged inadequacies would have had any impact on the jury's deliberations.

[5]

The appellant also raises an issue
    about the admission of alleged hearsay evidence of a statement made by one of
    the appellant's witnesses. Although this evidence may have been relevant in a
    general way to the issue of credibility, its primary relevance related to the
    issue of contributory negligence. Having regard to the jury's finding that the
    dogs did not attack the appellant, we do not reach the issue of contributory negligence.
    Once again, appellants counsel raised no objection to the admission of this
    evidence or to the trial judges failure to instruct the jury concerning
    hearsay. Particularly in the absence of the closing addresses, we are unable to
    conclude that this issue was central to the jurys deliberations as to whether
    an attack occurred.  Similar considerations apply to the appellants argument
    that the rule in
Browne v. Dunn
was offended.

[6]

The appellant did not pursue
    the issue of read-ins in oral argument. We would not give effect to this ground
    of appeal.

[7]

Even if the jury misunderstood the
    trial judges instructions on damages, it does not impugn the integrity of
    their first conclusion that there was no attack.

[8]

Costs of the appeal are to
    the respondents, on a partial indemnity scale fixed in the amount of $15,665.84
    inclusive of disbursements and applicable taxes.


CITATION: Nortel Networks Corporation (Re), 2011 ONCA 10

DATE: 20110107

DOCKET: M39469

COURT OF APPEAL FOR ONTARIO

Weiler J.A. (in chambers)

IN THE MATTER OF THE
COMPANIES CREDITORS ARRANGEMENT
          ACT
, R.S.C. 1985, c. C-36, AS AMENDED

And in the matter of a Plan of Compromise or
          Arrangement of Nortel Networks Corporation, Nortel Networks Limited, Nortel
          Networks Global Corporation, Nortel Networks International Corporation and
          Nortel Networks Technology Corporation

Joel P. Rochon, Sakie Tambakos and John Archibald, for
          the moving party, the Dissenting LTD Beneficiaries

Derrick Tay and
          Jennifer Stam, for Nortel Networks Corporation et al.

Fred Myers and Gale
          Rubenstein, for Ernst & Young Inc., Monitor

William E. Pepall, for
          the Former Employees Representatives

Fiona Campbell and
          Peter Engelmann, for LTD Beneficiaries Representative

Janice Payne, Steven
          Levitt, Arthur O. Jacques and Thomas McRae, for Nortel Canadian Continuing
          Employees

Barry E. Wadsworth, for
          the CAW-Canada et al.

Heard in-writing

On a motion for leave to appeal
          from the order of the Honourable Justice Geoffrey P. Morawetz of the Superior
          Court of Justice, dated November 9, 2010, with reasons reported at 2010 ONSC
          5584.

ENDORSEMENT

[1]

The moving party has brought a motion in writing seeking leave to appeal
    the order of the motion judge sanctioning the monitors application for
    approval of the methodology for distributing funds in Nortels Health and
    Welfare Trust (HWT), scenario 2 of the Illustrative Allocation Scenarios
    (see: Schedule B of the motion judges decision).

[2]

The test for leave to appeal in proceedings ongoing under the
Companies
    Creditors Arrangement Act,
R.S.C. 1985, c. C-36, as amended, is that there
    be a serious and arguable issue of real and significant interest with reference
    to the following four factors:

(a)
          whether the point on appeal is of significance to the practice;

(b)
          whether the point raised is of significance to the action itself;

(c)
          whether the appeal is prima facie meritorious; and

(d)
          whether the appeal will unduly hinder the progress of the action.

[3]

The moving party has not satisfied me in relation to factors a, c, and d
    that the test is met.

[4]

The interpretation of the specific termination clause in issue in the
    HWT, especially when viewed in the context of the unique factual matrix giving
    rise to the dispute, is not of significance to the practice.

[5]

Nor is the appeal
prima facie
meritorious.  The judge at first
    instance did not read words into the termination clause.  He correctly applied
    principles of construction of documents and did not reverse the onus of proof.
    His reasons for rejecting the proffered expert evidence do not disclose any
    error in principle.

[6]

In addition, granting leave to appeal would unduly hinder the progress
    of the action.  In the event that leave to appeal were granted and the appeal
    were to be allowed, the motion judges approval of the distribution in
    accordance with scenario 2 would be overturned. A number of outcomes relating
    to the allocation of the HWT corpus would then be possible. The bondholders and
    the unsecured creditors committee reserved their rights if the distribution
    was not made in accordance with scenario 2. The responding parties all
    requested an opportunity to make submissions respecting the moving partys preferred
    option, scenario 3, as that scenario was not before the motion judge and it was
    acknowledged that a further hearing would be required if scenario 2 was not
    approved. Any subsequent order for distribution of the corpus of the HWT could,
    in turn, become the subject of a further application for leave to appeal. The
    restructuring of Nortel would be unduly delayed.

[7]

For these reasons, the motion for leave to appeal is dismissed with
    costs to the Monitor, the only party requesting costs.  Subject to the Monitor
    and the moving party wishing to make further submissions in writing respecting
    the amount of costs, I would fix those costs in the amount of $2500.

K.M. Weiler
    J.A.


CITATION: Ontario
      (Labour) v. Enbridge Gas Distribution Inc., 2011 ONCA 13

DATE:  20110107

DOCKET: M38813

COURT OF APPEAL FOR ONTARIO

Watt J.A. (In Chambers)

BETWEEN

Her Majesty the Queen (Ontario Ministry of Labour) and
          Her Majesty the Queen (Technical Standards and Safety Authority)

Respondents

and

Enbridge Gas Distribution Inc. and Precision Utility
          Limited

Moving Parties

Cynthia R. C. Sefton and David S. Reiter, for Enbridge Gas

Frank Crewe, for Precision Utility Limited

David R. McCaskill and Alexandra Bednar, for the Ministry of
          Labour

Thomas Ayres, for the Technical Standards and Safety Authority

Heard: August 26, 2010

On an application for leave to
          appeal under ss. 131(1) and (2) of the
Provincial Offences Act
, R.S.O.
          1990, c. P. 33 from the decision of Justice Denise E. Bellamy of the Superior
          Court of Justice on April 14, 2010, allowing an appeal from the judgment of
          Justice Mary L. Hogan of the Ontario Court of Justice, dated October 25,
          2007.

Watt J.A.:

[1]

Explosions damage and destroy things. Sometimes, their victims are
    people. Like here. An explosion damaged and destroyed several buildings. Hurt
    some people too. And killed others. This explosion was preventable. If only...

[2]

A contractor using a backhoe displaced a natural gas pipeline. Natural
    gas crept into the basement of a two-storey commercial plaza. A source of
    ignition entered the mix. An explosion and fire followed. Buildings were
    damaged and destroyed. People were injured. And seven people were killed.

[3]

During the year following the explosion, prosecutions under provincial
    safety legislation began against three companies. The contractor whose employee
    displaced the pipeline. The utility that owned the pipeline. And a company with
    which the utility had contracted to provide accurate information to the
    contractor about the location of pipelines in the area that was to be
    excavated.

[4]

The charges against the companies, contained in separate informations,
    were tried together. The contractor entered a plea of guilty during the prosecutions
    case-in-chief, was ordered to pay a substantial fine and victim fine surcharge,
    and disappeared from the proceedings.

[5]

When the prosecutions case had been completed, the utility and locator,
    without indicating whether they proposed to adduce evidence in their own
    defence, sought dismissal of the charges on several grounds. The trial judge,
    who characterized the application as a motion for a directed verdict of
    acquittal, granted the application and dismissed the charges.

[6]

The prosecutors appealed the trial judges decision to the Superior
    Court of Justice. A judge of that court allowed the appeal, set aside the
    dismissals and ordered a new trial on all charges.

[7]

The utility and locator seek leave to appeal under ss. 131(1) and (2) of
    the
Provincial Offences Act
, R.S.O. 1990, c. P. 33 (
POA
). For the
    reasons that follow, leave to appeal is refused.

THE BACKGROUND FACTS

[8]

The nature of the proposed grounds of appeal
    does not command any recapture of the circumstances of the tragic aftermath of
    the explosion and fire that occurred at a west-end commercial plaza on April
    24, 2003. But, to place the proposed grounds of appeal in a setting that befits
    them, requires a brief sketch of the circumstances that led to the explosion
    and a bit of procedural history about the prosecution.

The Project

[9]

In April 2003, the City of Toronto undertook a
    major reconstruction of a stretch of Bloor Street West between Kipling Avenue
    and the East Mall. The project involved replacement of the road surface, curbs
    and associated storm drains, and sidewalk reconstruction.

[10]

The construction zone included the area in front
    of a two-storey commercial plaza at 3885-3891 Bloor Street West. To remove the
    existing curb and gutter, as well as the adjacent sidewalk, the excavator used
    a backhoe.

The Principals

[11]

Three companies had a hand in the explosion of
    April 24, 2003. Each had a different role:

the utility:               Enbridge Gas
    Distribution Inc. (Enbridge)

the
    locator:               Precision Utility Limited (PUL)

the
    excavator:           Warren Bitulithic Limited (Warren)

[12]

Enbridge owns a natural gas distribution system.
    As a licence holder under the
Technical Standards and Safety Act
,
    2000, S.O. 2000, c. 16, (the
TSSA Act
) Enbridge is licenced to
    distribute natural gas by the Technical Standards and Safety Authority (TSSA).
    The TSSA is a not-for-profit safety organization and an agency of the
    Government of Ontario.

[13]

Ontario Regulation 210/01, passed pursuant to
    the
TSSA Act
, governs oil and gas pipeline systems. Anyone engaged in an
    activity, use of equipment, process or procedure to which the Act and
    Regulation 210/01 apply must comply with the Act and Regulation. Section 9(1)
    of the Regulation prohibits digging, excavating or breaking ground with
    mechanical equipment without first ascertaining from the licence holder the
    location of any pipeline that may be interfered with. Under s. 9(2) of the
    Regulation, Enbridge, as the licence holder, must provide as accurate
    information as possible on the location of any pipeline within a reasonable
    time in all the circumstances to anyone involved in excavation activities that
    may interfere with the pipeline.

[14]

To discharge their obligation under s. 9(2) of
    the Regulation, Enbridge contracted with PUL, a company that provides
    information to excavators about pipeline locations. The Regulation does not
    provide a specific form for the information about pipeline locations. The
    practice in the industry, however, is one of paint and paper: paint markings
    on the surface of the ground plainly visible to excavators and a sketch of the services
    on paper.

[15]

A scheme similar to that imposed by Regulation
    210/01 under the
TSSA Act
is enacted by Regulation 213/91 passed
    pursuant to the
Occupational Health and Safety Act
, R.S.O. 1990, c. O. 1
    (
OHSA
). Under s. 228(1)(a) of this Regulation, gas services in and near
    an area to be excavated must be accurately located and marked before any
    excavation begins. The employer responsible for the excavation must request the
    owner of the service to locate and mark the service.

[16]

Warren is a road paving and construction
    company. The City of Toronto contracted with Warren to carry out the road and
    related reconstruction of Bloor Street West. Thus, Warren was the
    employerresponsible for the excavation under the applicable
OHSA
Regulation
    and the person involved in the excavation under the governing
TSSA

Act
Regulation.

The Preliminaries

[17]

Warren asked Enbridge to identify and mark its
    underground natural gas pipelines in the area involved in the reconstruction
    before Warren began excavation. Enbridge contracted with PUL to provide the
    necessary information for Warren. PUL assigned one of its employees to locate
    and mark Enbridges pipelines in the area affected by the reconstruction.

[18]

The PUL employee assigned the task of locating
    and marking Enbridges pipelines in the area affected by the reconstruction
    neither identified nor marked a three-quarter inch pipeline into the commercial
    plaza at 3885-3891 Bloor Street West.

The Accident

[19]

Warrens backhoe operator inadvertently struck
    Enbridges unmarked pipeline into the plaza. The displacement dislodged the
    pipe from its fitting attached to the outside wall of the plaza. An unregulated
    flow of natural gas escaped into the basement of the plaza.

[20]

About six to nine minutes after the pipe had
    become dislodged, an unknown source of ignition caused the gas to explode. The
    blast levelled the plaza. The force of the explosion and the ensuing fire
    damaged or destroyed several structures nearby. Seven people were killed,
    several more injured.

The Prosecutions

[21]

In the year following the explosion, both the
    Ministry of Labour and the TSSA commenced proceedings against Enbridge and PUL.
    The TSSA also charged Warren.

[22]

The charges against Enbridge and PUL alleged
    breaches of the
OHSA
and the
TSSA

Act
and their respective
    Regulations arising from the failure to locate and mark for Warren the natural
    gas pipeline into the plaza disrupted by Warrens backhoe operator. The charges
    against Warren alleged breaches of the
TSSA

Act
and the
    Regulation governing gas pipeline systems arising out of Warrens excavation
    without proper information about relevant pipeline locations and damage to the
    pipeline itself.

The Trial Proceedings

[23]

At the end of the prosecutions case-in-chief,
    counsel for Enbridge and PUL, without electing whether to call evidence in
    response to the charges, sought an order dismissing all the charges on the
    ground that the prosecutors had not proven the essential elements of each
    offence beyond a reasonable doubt.

[24]

Enbridge and PUL argued that the prosecution
    under the
OHSA
was barred because the information was not laid within
    the time permitted or required by s. 69 of the Act. Even if the limitations
    period had not expired, the companies argued, the
OHSA
imposed no
    statutory duty on either Enbridge or PUL to provide an accurate locate.
    Neither fell within the scope of the term employer within the
OHSA
,
    thus were not subject to prosecution under the Regulation. The companies
    advanced a similar argument about the applicability of the
TSSA

Act
and
    Regulation, except that no limitations period was applicable to that
    prosecution.

[25]

The application succeeded before the trial judge
    who dismissed all charges against Enbridge and PUL.

The Appeal to the Superior
    Court of Justice

[26]

The Ministry and TSSA appealed to the Superior
    Court of Justice. Bellamy J. allowed the appeal, quashed the order dismissing
    the charges against Enbridge and PUL and ordered a new trial on all charges to
    be held before a judge other than the judge who had presided at the original
    trial.

[27]

Bellamy J. agreed with the trial judge that s.
    69 of the
OHSA
did not bar the prosecution under that Act. The appeal
    judge differed from the trial judge on all remaining issues. Bellamy J.
    concluded that both Enbridge and PUL came within the definition of employer
    in s. 25 of the
OHSA
. Each had a duty to provide accurate information to
    Warren about the location and nature of Enbridges pipeline and failed to
    discharge that duty. The failure to provide
any
information was a
    failure to provide as accurate information as possible under s. 9(2) of the
    Regulation under the
TSSA

Act
. Enbridge failed to ensure that PUL
    provided the necessary information to Warren.

THE APPLICATION FOR LEAVE TO APPEAL

[28]

Enbridge and PUL seek leave to appeal to a panel
    of this Court under s. 131 of the
POA
. In their proposed notice of
    appeal, Enbridge and PUL raised five grounds of appeal. Four duplicate the
    grounds raised on the directed verdict application before the trial judge and
    reiterated before Bellamy J. on the appeal from the dismissal of the charges.
    What is new and different is a claim that Bellamy J. erred in law in permitting
    the prosecutors to resile on appeal from positions they had taken at trial and
    to advance a new basis of liability upon which to obtain a new trial.

[29]

Enbridge and PUL also seek leave to appeal from
    what they contend are errors made by the Superior Court judge in her
    interpretation of the former s. 228(1) of Ont. Reg. 213/91 under the
OHSA
and of s. 9(2) of Ont. Reg. under the
TSSA

Act
. The applicants
    say that the
OHSA
imposed no duty on them to provide accurate
    information about pipeline locations and, under the
TSSA

Act
, the
    failure to provide any information is not the equivalent of provision of
    inaccurate information. They add that Bellamy J. was wrong to have considered a
    subsequent amendment to s. 228(1) of Ont. Reg. 213/91 and to have characterized
    it as a clarification of the former and applicable section.

[30]

Enbridge and PUL also seek leave to appeal to
    re-litigate the applicability of the limitation provisions of s. 69 of the
OHSA
to the prosecutions under that Act in this case.

THE GOVERNING PRINCIPLES

[31]

A brief reminder about the principles that
    govern leave to appeal under s. 131 of the
POA
and explore the
    relationship between a prosecutors theory of liability and the essential
    elements of an offence will help to frame consideration of the proposed grounds
    of appeal.

The Standard for Granting
    Leave to Appeal

[32]

Enbridge and PUL have no appeal as of right to
    this court from the decision of a judge of the Superior Court of Justice. They
    require leave to appeal. To obtain leave to appeal, Enbridge and PUL must meet
    the demands made on them by ss. 131(1) and (2) of the
POA
.

[33]

Section 131(1) of the
POA
contains two
    requirements:

·

special grounds

·

a question of law alone

Both requirements must be
    met. What constitutes special grounds in s. 131(1) is informed by s. 131(2).
    To determine whether special grounds exist, the judge hearing the application
    must consider all the circumstances of the case and determine whether it is
essential

(i) in
        the public interest; or

(ii)
        for the due administration of justice

that leave to appeal be
    granted. An applicant need not satisfy both requirements i and ii. Satisfaction
    of either will do.

[34]

The threshold for granting leave to appeal is
    very high:
R. v. Zakarow
(1990), 74 O.R. (2d) 621 (C.A. - Chrs), at p.
    625;
R. v. Krukowski
(1991), 2 O.R. (3d) 155 (C.A. -Chrs), at p. 159.
    The clear import of the provisions of ss. 131(1) and (2) of the
POA
is
    that the decisions of the Superior Court of Justice, in its appellate capacity,
    are intended to be final in the overwhelming majority of cases:
Krukowski
at p. 159. Reviews of decisions of the Superior Court of Justice are limited to
    exceptional cases where the resolution of a question of law alone may have an
    impact on the jurisprudence in a way that is of interest to the public at
    large, or at least a broad segment of it:
Krukowski
at pp. 159-160.

[35]

Demonstration of error in the judgment below,
    without more, does not satiate the demands of ss. 131(1) and (2). The other
    criteria of the subsections must be met. The error must involve a question of
    law alone, not a question of fact or of mixed fact and law:
Krukowski
at
    p. 159;
R. v. Rankin
(2007), 216 C.C.C. (3d) 481 (Ont. C.A. - Chrs), at
    para. 30. The resolution of the questions of law in the circumstances must be
essential
in the public interest (not merely the interest of the litigants), or for the
    due administration of justice:
Zakarow
at pp. 625-626.

[36]

Grounds of appeal that raise issues of statutory
    interpretation often have application beyond the factual idiosyncrasies of
    individual cases. But simply phrasing the proposed ground of appeal as a
    question of statutory interpretation is not an open sesame to leave to appeal.
    The subject-matter of the statute, as well as the nature and extent of its
    influence on our daily activities, is of importance:
Zakarow
at p. 626.
    The influence of the statute must be such that its interpretation rises to the
    threshold of essential in the public interest or essentialfor the due
    administration of justice:
Zakarow
at p. 626.

[37]

Another appropriate factor of which to take
    cognizance in deciding about leave to appeal is whether the proposed ground of
    appeal involves a matter of first impression or the application of well-established
    principles to the facts of the case:
Rankin
at para. 33.

[38]

Despite the generality of the language of s.
    839(1) of
Criminal Code
which stands in stark relief to the specificity
    of ss. 131(1) and (2) of the
POA
, the decision of this Court in
R. v.
    R. (R.)
(2008), 234 C.C.C. (3d) 463 identifies two factors that can inform
    the meaning to be assigned to the touchstones in s. 131  the significance of
    the proposed question of law to the administration of justice in the province,
    and the strength of the proposed grounds of appeal:
R. (R.)
at paras. 30
    and 37.

The Prosecution Theory,
    Particulars, and Proof of Guilt

[39]

Every offence, whether its origins are criminal
    or regulatory, contains its own essential elements. A finding of guilt of any
    offence may only be made if the prosecutor establishes each essential element
    in the offence to the degree required by the applicable standard of proof. To
    survive an application for a directed verdict of acquittal or a non-suit at the
    conclusion of its case-in-chief, the prosecution must introduce some evidence
    on the basis of which a reasonable trier of fact, properly instructed, could
    find guilt:
R. v. Arcuri
, [2001] 2 S.C.R. 828, at paras. 1, 21 and 26.
    Where the evidence adduced on an essential element or as a whole is circumstantial,
    a judge on a motion for a directed verdict or non-suit must engage in a limited
    weighing of the whole of the evidence to determine whether a reasonable trier
    of fact, properly instructed, could return a finding of guilt:
Arcuri
at
    paras. 29-30.

[40]

The legal standard of proof, proof beyond a
    reasonable doubt, has no direct application on a motion for non-suit or a
    directed verdict of acquittal at the end of the prosecutions case-in-chief.

[41]

In any prosecution, what the prosecutor must
    prove beyond a reasonable doubt are the essential elements of the offence as
    charged and particularized in the charging document. The prosecutor is bound by
    any particulars, voluntarily supplied or court ordered, subject to any rights
    of amendment that may exist under the governing procedural law and the doctrine
    of surplusage:
R. v. Cox and Paton
, [1963] S.C.R. 500, at p. 511.

[42]

In any prosecution, the prosecutor will have a
    theory of the case, usually expressed in opening and closing submissions or
    addresses. But the prosecutors theory of the case is not something that the
    prosecutor is bound to prove in order to establish guilt. The prosecutors
    theory is neither an essential element of the offence, nor a particular
    voluntarily supplied:
R. v. Groot
(1998), 129 C.C.C. (3d) 293 (Ont.
    C.A.), at paras. 14-18;
R. v. Govedarov
(1974), 16 C.C.C. (2d) 238 (Ont.
    C.A.), at pp. 270-71, affd [1976] 2 S.C.R. 308. The prosecutor is bound to
    prove the essential elements of the offence as charged beyond a reasonable
    doubt. Nothing more. Nothing less. See,
R. v. Largie
(2010), 258 C.C.C.
    (3d) 297 (Ont. C.A.), at paras. 158 and 165.

[43]

The prosecutor may modify his or her theory or
    strategy as the trial progresses:
R. v. Pickton
, [2010] 2 S.C.R. 198, at
    para. 19. Trial fairness considerations may intervene and foreclose advancement
    of an alternative basis of liability inconsistent with the way the parties have
    conducted their cases throughout:
Largie
at para. 161;
R. v. Ranger
(2003), 67 O.R. (3d) 1 (C.A.), at para. 162.

[44]

The flexibility that permits the prosecutor to
    adjust his or her trial strategy to meet new or changing circumstances during
    the trial does not entitle the prosecution to shift ground on an appeal from
    acquittal. The prosecutor is not entitled to advance a new theory of liability
    on an appeal from acquittal, nor to raise arguments on appeal upon which the
    prosecution chose not to rely at trial:
R. v. Varga
(1994), 90 C.C.C.
    (3d) 484 (Ont. C.A.), at p. 494;
Wexler v. The King
, [1939] S.C.R. 350,
    at pp. 353-54 and 356-57;
Savard and Lizotte v. The King
, [1946] S.C.R.
    20, at pp. 33-34; 37; and 49.

The Principles Applied

[45]

Each of the proposed grounds of appeal requires
    separate consideration.

Ground #1: The Shifting
    Prosecution Theory

[46]

The first proposed ground of appeal seeks review
    of what is alleged to be a change in the prosecutors theory of the applicants
    liability between trial and appeal. To some extent this complaint is rooted in
    the interpretation of the provisions of s. 228(1) of Ont. Reg. 213/91 adopted
    by the appeal judge. That said, I will consider whether this proposed ground
    warrants leave to appeal independently of any argument about statutory
    interpretation.

[47]

I would not grant leave to appeal on this
    proposed ground. My reasons are several.

[48]

First, it is by no means clear that the basis of
    liability advanced by the prosecutor on the appeal from the dismissal of the
    informations amounted to a new theory of liability or advancement of an
    argument that the prosecutor chose not to put forward at trial. In other words,
    the factual substratum essential to found this argument is, at best,
    controversial.

[49]

Second, the principles involved in the proposed
    ground of appeal are well-settled, beyond dispute at least since the decision
    in
Wexler
over 70 years ago. Their application to the circumstances of
    this case involves a question of mixed law and fact, thus falls outside the
    reach of s. 131(1) of the
POA
.

[50]

Third, even assuming that what is proposed as a
    ground of appeal raises a question of law in the strict sense, it is not one
    that is likely to have an impact on firmly established jurisprudence in a way
    that is of general interest to a broad segment of the public.

[51]

And finally, it is unclear whether the
    applicants response before the appeal judge raised this issue upon which they
    now seek leave to appeal.

Ground #2: The
    Interpretation of Regulation 213/91 under the OHSA

[52]

This proposed ground of appeal raises an issue of statutory
    interpretation of the former and current provisions of s. 228(1) of Ont. Reg.
    213/91 passed pursuant to the
OHSA
.

[53]

The trial and appeal judge disagreed on whether the former s. 228(1)
    applied to the excavator, Warren, only, or extended to Enbridge and PUL. The
    applicability of s. 228(1) to Enbridge and PUL, according to the applicants,
    depends upon whether each is an employer under the
OHSA
.

[54]

Section 228(2) of the former Regulation by which liability is governed
    in this case required Warren to request Enbridge, as owner of the service, to
    locate and mark the service before excavation began. Enbridge contracted with
    PUL to locate and mark the service. The requirement of s. 228(2) that Warren
    request the owner, Enbridge, to locate and mark the service necessarily implies
    a duty on Enbridge, as owner, to do so. Were it otherwise, the service would
    not be located and marked since only the owner has the authority to do so.
    Enbridge plainly recognized this duty: it retained PUL to carry it out. By
    contracting with PUL to supply services, Enbridge became an employer under
    the Act. Likewise, PUL is a contractor who undertook with the owner, Enbridge,
    to perform work or supply services. Thus, PUL is an employer under the Act.

[55]

This proposed ground does not warrant granting leave to appeal. My
    reasons are threefold.

[56]

First, the provisions of s. 228(1) of the Regulation under which this
    case was prosecuted are no longer in force. No other prosecutions under this
    version of the Regulation remain outstanding. It follows that the issues raised
    about its interpretation here do not extend beyond the borders of this case. To
    grant leave to appeal in the circumstances is not essential in the public
    interest or for the due administration of justice.

[57]

Second, the interpretation of the new s. 228(1) is not ripe for decision
    in this case. The new provision does not apply to this prosecution. Its
    interpretation can await a prosecution in which liability falls to be decided
    in accordance with its terms. Nor is there any pressing need to offer
    gratuitous advice about the relationship between the current and former provisions.

[58]

Third, the interpretation imposed upon the former provisions by the
    appeal judge is neither obviously wrong nor of doubtful correctness. Indeed,
    the practical effect of the contrary interpretation favoured by the trial judge
    yields a result that is antithetical to the legislative purpose of the
OHSA
 protection of workers from preventable harm.

Ground #3: The Limitations
    Bar of s. 69 of the OHSA

[59]

The applicants also seek leave to appeal on the
    applicability of s. 69 of the
OHSA
, a limitations provision, to the
    prosecution under the
OHSA
. Upon this issue, the trial and appeal judges
    were in agreement: s. 69 did not bar the prosecution.

[60]

This proposed ground of appeal does not warrant
    leave to appeal. Three factors inform my decision.

[61]

To begin, whether a limitations provision
    applies to bar a particular prosecution, as in this case, has no resonance for
    the general administration of justice. Of surpassing importance to the
    individual litigants, an appellate pronouncement on this issue is
not
essential
    either in the public interest or for the due administration of justice. Readily
    accessible precedent is abundant.

[62]

Next, I consider it highly doubtful whether the
    applicability of s. 69 of the Act to these circumstances involves a question of
    law alone as s. 131(1) of the
POA
requires. What would be involved, at
    least as it seems to me, would be, at best, a question of mixed fact and law:
Krukowski
at p. 159.

[63]

Further, the interpretation rendered by both
    judges below is consistent with the purpose underlying the governing
    legislation, the protection of workers in their workplace, as well as
    controlling precedent.

Ground #4: The
    Interpretation of s. 9(2) of the TSSA Regulation 210/01

[64]

Section 9(2) of Ont. Reg. 210/01, passed
    pursuant to the
TSSA

Act
, imposes an obligation on a licence
    holder, like Enbridge, to provide as accurate information as possible about
    the location of any pipeline. The information must be provided within a
    reasonable time in all the circumstances. Neither the Regulation nor the
    statute insists upon completion of a specific form to provide the required
    information. Industry practice involves both paint, visible location and
    directional marks on the surface to be excavated, and paper, a drawing or
    diagram that identifies the location.

[65]

The Regulation also imports a duty on an
    excavator, in this case, Warren. Before digging, the excavator must ascertain
    from the licence holder (Enbridge) the location of any pipeline with which the
    excavation may interefere.

[66]

The effect of the Regulation is to impose
    correlative duties on the licence holder and the excavator. To provide
    information, as accurate information as possible, about the location of the
    pipeline. And to ascertain, from information provided, the location of the
    pipeline.

[67]

The trial and appeal judge reached different
    conclusions about whether the statutory duty to provide information applied to
    Enbridge and PUL and was breached by a failure to provide
any
information, as opposed to provision of inaccurate information.

[68]

Setting to one side whether this issue was
    properly cognizable on an application for a directed verdict at the end of the
    prosecutors case-in-chief, I would not grant leave to appeal on this ground.

[69]

Although the issue raised in the proposed ground
    of appeal involves the interpretation of a statute concerned with workplace
    safety, the statute is not one with which the general public has daily
    involvement. As the name of the statute attests, the enactment is concerned
    with technical standards to ensure workplace safety in a narrow context.

[70]

Further, the proposed ground of appeal does not
    raise an issue of general importance that takes it beyond the singular facts of
    this case into the category of special grounds, either as essential in the
    public interest or essential for the due administration of justice.

[71]

Finally, the interpretation given by the appeal
    judge is consistent with the plain meaning of the terms of the statute and
    Regulation and, unlike that adopted by the trial judge, does not leave an
    obvious but unnecessary lacuna in the legislation.

CONCLUSION

[72]

In the result, the application for leave to
    appeal is dismissed and leave to appeal refused.

RELEASED:  January 7, 2011                                            David
    Watt J.A.


CITATION: PKF Hotel Realty Inc. v. 3414574 Canada
      Inc., 2011 ONCA 77

DATE: 20110128

DOCKET: C52448

COURT OF APPEAL FOR ONTARIO

Laskin, Lang and LaForme JJ.A.

BETWEEN

PKF Hotel Realty Inc.

Applicant (Appellant)

and

3414574 Canada Inc. and Jack Lee

Respondents (Respondents)

Glenn R. Solomon, for the appellant

Wendy J. Earle, for the respondents

Heard: January 17, 2011

On appeal from the order of Justice
          Beth A. Allen of the Superior Court of Justice, dated June 28, 2010.

ENDORSEMENT

[1]

The appellant, a real estate brokerage
    firm, claimed a commission from the respondents arising out of the respondents
    lease and sale of a hotel property to a third party.  The success of the appellants
    claim turned on the interpretation of the exclusive listing agreement.
The
    application judge rejected the appellants interpretation and dismissed the
    application.  For the reasons that follow, the appeal is dismissed.

[2]

Section 11 of the listing agreement, entitled SALES COMMISSION,
provided that the respondents (the corporate owner of
    the property and its directing mind) would pay the appellant commission
if
    a transaction is completed
during the 180-day
    extended period following the termination of the listing agreements Term.
The listing agreement defined neither transaction nor completed.

[3]

The appellant argued that the transaction entered into by the
    respondents during the extended Term amounted to the respondents sale of the
    property as a result of which commission became payable.

[4]

The actual transaction between the respondents and the third parties consisted
    of two related documents:  a lease agreement and an agreement of purchase and
    sale.  The lease agreement provided for the proposed purchaser to occupy the
    premises immediately and to pay rent pending closing of the purchase
    transaction.  The agreement of purchase and sale provided for immediate payment
    by the third party of a $3 million deposit, a $1 million payment six months
    later, and the balance of $9 million payable on closing of the purchase one year
    later.

[5]

The appellant argues that the combined terms of the two agreements,
    including terms such as the one calling for requisitions on title by the date
    of occupancy, evidenced a transaction that amounted to a virtual sale of the
    property, with the lease merely serving as a financing arrangement akin to a
    vendor take-back mortgage.

[6]

We do not agree.  On their plain terms, the agreements provided for the
    lease of the lands until the proposed purchaser was obliged to buy the property
    a year later.  Indeed, the appellant agrees that the structure of the
    transaction appeared to relate to the inability of the proposed purchaser to
    obtain financing at the time, and concedes there was no evidence that the owner
    structured the transaction in a particular way to change the substance of the
    transaction to avoid payment of any commission.

[7]

The respondents argue that nothing short of the closing of a sale fits
    within the listing agreements transaction to be completed in the extended
    period, so as to attract an obligation to pay sales commission.  There is some
    support for the respondents position from other terms of the agreement.  For
    example, s. 11(b) provided commission would be paid at the closing of the
    transaction or on the day set for closing where the sale is not consummated by
    reason of the failure of Owner to close. This language could suggest that the
    transaction targeted is a sale of the property and the relevant time is the
    date set for the closing or completion of the sale.

[8]

In any event, in the context of the listing agreement as a whole, the meaning
    of transaction is completed is ambiguous at most. Since the wording of the
    listing agreement was imposed by the real estate broker, such an ambiguity must
    be resolved in favour of the respondents.

[9]

The appellant raises a secondary ground of appeal.

[10]

Under the terms of the listing agreement, sale was defined to
    include both an exchange of the property as well as an option to purchase the
    property.  The appellant argues that the two agreements were tantamount to an
    option completed within the extended Term and amounted to a transaction that
    attracted commission. In our view, the agreement of purchase and sale and
    agreement to lease, both of which we have described above, are quite different
    in nature and character from the option to purchase contemplated by the listing
    agreement. We also would not accept this ground of appeal.

[11]

Accordingly, the appeal must be dismissed.  Costs are awarded to the
    successful respondent in the agreed-upon amount of $10,000, inclusive of
    disbursements and all applicable taxes.

John Laskin
    J.A.

S.E. Lang
    J.A.

H.S. LaForme J.A.


CITATION:
Paragon Development
          Corporation v.
Sonka
Properties Inc., 2011 ONCA 30

DATE: 20110117

DOCKET: C50399

COURT OF APPEAL FOR ONTARIO

Weiler, Watt and Karakatsanis JJ.A.

BETWEEN

Paragon Development
          Corporation and

583533 Ontario
          Limited

Claimants (Respondents)

and

Sonka
Properties Inc.
, Morris Kaiser, Apple
          Hill,
Frabar
Management Limited, Islington
          Enterprises Inc.
Emkay
,
Frane
Investments Limited,
Morka
Management (1988) Inc.,
Morka
Management (1989) Inc., CBMM Holdings, Lakeview
          Forest Developments a.k.a.
Lakefor
Holdings Inc., Kaiser
          Equity Islington Affiliates,
Morka
Management
          (1990) Inc.,
Morka
Management (1985) Inc.,
Frabar
Management Inc., Marlton Holdings Inc.,
Morka
Management (1986) Inc., Estate of Maier Kaiser,
          North Sydney Associates, Morris Kaiser $US,
Morka
Management (1991) Inc., and
The Estate of Sonia Kaiser

Respondents (
Appellants
)

AND BETWEEN

Marka
Properties Inc.,
Veraka
Properties Inc.,
Boran
Properties Inc.
,
and
Poban
Properties Inc.
personally and for themselves and for all other shareholders of the style of
          cause referenced corporations except the defendant, in the name of and on
          behalf of those two corporations

Claimants (
Respondents/Appellants on
          Cross-appeal
)

and

Sonka
Properties Inc.
and Morris Kaiser

Respondents
          (
Appellant/Respondent on Cross-appeal
together with Estate
          of Sonia Kaiser
)

J. Gardner
Hodder
for the appellants

John T. Porter and Greg
Sheahan
for
          the respondents, Paragon Development Corporation and 583533 Ontario Limited

Theodor
Kerzner
, Q.C. for the
          respondents/appellants by way of cross-appeal,
Marka
Properties Inc.,
Veraka
Properties Inc.,
Boran
Properties Inc., and
Poban
Properties Inc.

Heard:
December 15, 2010

On appeal and cross-appeal from the
          judgment of Justice Herman Wilton-Siegel of the Superior Court of Justice,
          dated March 27, 2009, with reasons reported at (2009), 96 O.R. (3d) 574.

Weiler J.A.:

[1]

The issue
raised
by the
    appellants,
Sonka
Properties

Inc. (
Sonka
) and the Estate of Sonia
    Kaiser, is straightforward.

[2]

The appellants challenge the trial judges conclusion
    that although the Estate of Sonia Kaiser is the legal owner of the shares of
Sonka
, the beneficial owner of the shares is the late Sonia
    Kaisers surviving husband, Morris Kaiser.  The appellants argue that Sonia Kaiser (or her estate) was always both
    the legal and beneficial owner of the shares in
Sonka
.  They submit that the trial judge was not
    entitled to come to the conclusion that Morris Kaiser was the beneficial owner
    of the shares.  The appellants submit
    that in order to come to that conclusion, the trial judge would have had to
    find either that there was a trust in favour of Morris Kaiser or that a fraud
    had been committed.  However, fraud was
    not pleaded and the trial judge made no express finding that a trust existed.
    Further, the appellants submit that the requirements of a trust are not met.

[3]

We disagree.  Section 1(1) of the
Business
    Corporations Act,
R.S.O. 1990,
c
. B. 16 (
OBCA
) defines beneficial interest and
    beneficial ownership as including ownership through a trustee, legal
    representative, agent or other intermediary.  The definition in the
OBCA
indicates
    that beneficial interest can exist outside a finding that a trust exists or
    that a fraud has taken place.

[4]

Existing jurisprudence also supports the conclusion
    that a beneficial owner is one who has an equitable claim to shares whether or
    not they have been issued and appropriated to him.  Beneficial ownership is not limited to
    ownership through a trustee.  See
Fedel
v. Tan
(2008), 93 O.R. (3d) 274 (S.C.),
    at
paras
. 209 and 216.

[5]

The question of
    whether the trial judge was entitled to come to the conclusion that Morris
    Kaiser was the beneficial owner of the shares must be considered against the
    background of the evidence relating to Morris Kaiser and Sonia Kaisers
    respective involvements with
Sonka
.  Morris Kaiser was an accountant who was the
    person primarily responsible for instructing counsel in connection with the
    corporate structure through which the shares in issue were distributed. When Morris
    Kaisers father, Maier Kaiser, passed away in 1977, his interests in certain predecessor
    companies passed to his estate.  Maiers
    widow enjoyed a life interest in the estate and, upon her death in 2005, the
    residue passed to each of their three children, Morris Kaiser being one of
    them.  The successor by amalgamation of
    the predecessor companies was Paragon Development Corporation, whose shares
    were acquired by 583533. As of November 30, 1984, all of the shares of 583533
    came to be held by various holding companies, of which
Sonka
was one. Morris Kaiser enjoyed the use, benefit and absolute control of
Sonkas
shares and he exercised that control over a lengthy
    period of time well past Sonias death in 1993.  By contrast, Sonia Kaiser was described as being unversed in financial
    affairs.  There was no evidence that she
    was ever appointed as an officer or director, or exercised any powers as a
    shareholder prior to her death.  The
    facts found by the trial judge support his conclusion that Morris Kaiser was
    the beneficial owner of the shares.

[6]

In the circumstances, it was not necessary for the
    trial judge to make an express finding that the shares of
Sonka
were held in trust for Morris Kaiser.  A
    bare trustee holds legal title to property on behalf of another and has no
    independent power, discretion or responsibility in connection with the
    property.  That description fits the
    trial judges findings respecting Sonia Kaiser.  In making the findings he did, the trial judge
    implicitly found Sonia Kaiser to be a bare trustee who held title to
Sonkas
shares for Morris Kaiser.

[7]

In view of our conclusion that Sonia Kaiser is a bare
    trustee and not entitled to any distribution, the appellants submission that
    the time limit for bringing an action against the estate of Sonia Kaiser
    arising out of the operation of ss. 38(2) and (3) of the
Trustee Act
,

R.S.O. 1990,
    c. T.23, has passed and that the respondent cannot withhold a distribution to
    the estate of Sonia Kaiser, is irrelevant.

[8]

In any event,
    ss. 38(2) and (3)
have
no application to this
    appeal.  The effect of ss. 38(2) and (3)
    is to require that actions for wrongs committed by the deceased, for
which
the estate is liable, must be brought within two years
    of the date of the death of the deceased.  Section 38 was enacted to create an exception to the draconian rule that
    actions that were personal to the deceased did not survive death, while at the
    same time imposing a limitation period to avoid creating indefinite exposure to
    the estate:
Waschkowski
v. Hopkinson Estate
(2000), 47 O.R. (3d) 370 (C.A.), at p. 373.

[9]

No wrong is alleged against Sonia Kaiser
    personally.  This is a pure economic loss
    claim.  No claim is made against the
    estate of Sonia Kaiser.  The estate was
    simply added as a defendant, on consent, in order to allow it to make
    submissions as an affected party, because any order affecting
Sonkas
entitlement to a distribution from 583533 would
    indirectly affect the estate.

[10]

Further, no limitation period would apply.  This action was, in essence, an oppression
    action based on breach of fiduciary duty.  The trial judges order to withhold distribution to
Sonka
was based on the equitable rule in
Cherry
    v.
Boultbee

(1839), 41 E.R. 171, or,
    alternatively, in the courts broad discretion to make an order under s. 248(3)
    of the
Ontario Business Corporations Act
,

R.S.O. 1990, c. B 16, as amended.

[11]

Accordingly, the appeal is dismissed with costs to the
    respondents fixed in the amount of $17,500 inclusive of taxes, but with
    disbursements payable in addition.

[12]

Since the appeal has been dismissed, the cross-appeal
    is moot and is also dismissed with costs to the cross-appellants fixed in the
    amount of $4,000 inclusive of all taxes and disbursements.

[13]

If necessary, further brief submissions as to the
    manner of payment of costs may be made in writing.

RELEASED:  JAN 17,
    2011

KMW                                                                                Karen
    M. Weiler J.A.

I
    agree David Watt J.A.

I
    agree Karakatsanis J.A.


WARNING

The President of the panel hearing this appeal directs that
    the following should be attached to the file:

An order restricting publication in this proceeding under
    ss. 486(1), (2), or (3) of the
Criminal Code
shall continue.
    These sections of the
Criminal Code
provide:

486.    (1)
Any proceedings
    against an accused shall be held in open court, but the presiding judge or
    justice may order the exclusion of all or any members of the public from the
    court room for all or part of the proceedings if the judge or justice is of the
    opinion that such an order is in the interest of public morals, the maintenance
    of order or the proper administration of justice or is necessary to prevent
    injury to international relations or national defence or national security.

(2)
For the purpose of
    subsection (1), the proper administration of justice includes ensuring that.

(a)       the interests of the witnesses under the age of
    eighteen years   are safeguarded in all proceedings; and

(b)       justice system participants who are involved in the
    proceedings are protected.

(3)
If
    an accused is charged with an offence under section 151, 152, 153, 153.1, 155
    or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212,
    271, 272 or 273 and the prosecutor or the accused applies for an order under
    subsection (1), the judge or justice shall, if no such order is made, state,
    reference to the circumstances of the case, the reason for not making an order.
     R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74,
    c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1;
    1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2;
    2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s.
    20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).

CITATION: R. v. Baggio, 2011
      ONCA 80

DATE:  20110128

DOCKET: C49879

COURT OF APPEAL FOR ONTARIO

Doherty, Laskin and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mark Christopher Baggio

Appellant

Marie Henein and Matthew Gourlay, for the appellant

Karen Shai, for the respondent

Heard and released orally:  January 25, 2011

On appeal from the conviction entered by Justice Quinn of the Superior
          Court of Justice dated September 19, 2008.

ENDORSEMENT

[1]

In our view, the trial judge thoroughly and correctly addressed the
    possibility of collusion between the two complainants in assessing the
    admissibility of their evidence as similar fact evidence on the counts
    involving the other complainant.  We cannot accept that the trial judge limited
    his consideration to collusion in the narrow sense of a deliberate bilateral
    concoction of evidence.  We think the trial judge examined collusion in the
    broader sense of the potential impact on the independence of the evidence of each
    complainant of their acknowledged discussions after the first complainant went
    to the police.  We note the trial judges reference to the authorities includes
    authorities that use concoction in the broader sense.

[2]

We do not see anything in his reasons to support the contention that the
    trial judge examined the evidence of the contact between the complainants giving
    rise to the alleged collusion in isolation from the rest of the evidence
    relevant to the relationship between the complainants and what might have been
    said by them during the contacts in issue.  The trial judges reasons,
    especially as they relate to the details of the evidence, are thorough.

[3]

The trial judge accepted the complainants versions of the conversations
    that are said to have given rise to the potential collusion.  On those
    versions, comments made by G.B. to the effect that the appellant said he would
    put a ring on her finger is what precipitated B.B.s decision to go to the
    police.  She had previously denied any improper contact with the appellant.  However,
    on her evidence, G.B.s statement about the ring was identical to a statement
    that had been made to her by the appellant.  She decided at this point to go to
    the police.

[4]

After reviewing the evidence, the trial judge made the following
    finding:

After reviewing the evidence of G.B. and B.B. I
    am satisfied on a balance of probabilities that this evidence is not the
    product of concoction.
There was communication between G.B. and B.B. after
    G.B. had given her statement to the police and relevant to their relationship
    with Mark Baggio.  G.B. wanted B.B. to tell her story about her relationship
    with Mark Baggio.  G.B. did not like Mark Baggio at this point and wanted to do
    everything possible to prevent him from repeating his alleged conduct with
    other students.  This evidence, however does not amount to collusion.
    [Emphasis added.]

[5]

We see no basis upon which to interfere with this finding of fact.
    Given that finding, we see no error in the trial judges failure to return to
    the possibility of collusion when addressing the ultimate weight to be given to
    the evidence of one of the complainants on the counts involving the other
    complainant.

[6]

We conclude by observing that unlike many cases of alleged sexual abuse,
    this was a case where the complainants evidence was confirmed in material
    respects by many pieces of independent evidence.  Crown counsel in her very
    helpful factum has summarized and catalogued the confirmatory evidence.  We
    find ourselves in agreement with the Crowns characterization of this as an
    overwhelming case against the appellant.  The appeal is dismissed.


CITATION: R. v. Caruso, 2011 ONCA 69

DATE: 20110125

DOCKET: C49692

COURT OF APPEAL FOR ONTARIO

Goudge, Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bruno Caruso

Appellant

Stacey Nichols, for the appellant

Sandy Thomas, for the respondent

Heard: January 20, 2011

On appeal from the conviction entered and sentence imposed on
          February 15, 2008, by Justice Douglas B. Maund of the Ontario Court of
          Justice.

AMENDED APPEAL BOOK ENDORSEMENT

[1]

The appellant challenges his conviction for possession of drugs for the
    purpose of trafficking. The sentence appeal is abandoned.

[2]

He raises two issues: first that the evidentiary record provides no
    basis for why Officer Hlebec searched his vehicle, and therefore it cannot be
    shown to be a search incidental to his arrest.

[3]

We disagree. The officer testified that, on the basis of the information
    he received that the appellant had been arrested and that drugs had been found
    on his person, the officer conducted the search of the vehicle that yielded the
    evidence underpinning this conviction. This evidence, fairly read, does not
    yield the conclusion that he had already commenced the search. His evidence
    constitutes  a sufficient basis to conclude that the search of the car was
    incidental to the appellants arrest, and to sustain the conclusion that the
    search did not violate s. 8 of the
Charter
.

[4]

We do not think, however, that the process used here, where the
Charter
issue arises only after much of the evidence is in, is one that should be used
    if it can be avoided. If the
Charter
issue is raised at the outset, the
    record can be properly fleshed out.

[5]

The appellants second issue is that the trial judges reasons dealing
    with the s. 8  issue are inadequate.

[6]

We agree. While the reasons deal with the unlawful detention issue they
    do not deal with the s. 8 issue before us. However this deficiency does not
    prevent meaningful review by this court of the decision that there was no s.8
    violation. For the reasons we have given, on this record and on the
    unchallenged evidence, it is clear that the search of the appellants car is
    properly seen as an incident of his arrest, and therefore no violation of his
    s. 8 rights.

[7]

The appeal from conviction is dismissed.

S.
    T. Goudge J.A.


CITATION:
R. v. Clothier, 2011
          ONCA 27

DATE: 20110113

DOCKET: C51791

COURT OF APPEAL FOR
          ONTARIO

OConnor A.C.J.O., Laskin
          and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Clothier

Appellant

Paul Burstein, Lauren Cook
          and Clifford G.
Proudfoot
, for the appellant

Deanna
Exner
and Donna Glassman, for the respondent

Heard: June 3, 2010

On
          appeal from the decision of the Provincial Offence Appeal Court dated October
          14, 2009 by Justice G. Mark
Hornblower
from the
          Ontario Court of Justice, dismissing the appeal from conviction entered on
          April 18, 2008 by Justice of the Peace Stewart A. Taylor.

Laskin J.A.:

A.

Overview

[1]

The broad question raised by this appeal is whether the
    defence of entrapment applies to a regulatory offence.  The narrow question we must answer is whether
    government authorities can use random test shopping to monitor compliance with
    a particular regulatory statute  the
Smoke
    Free Ontario Act
, S.O. 1994,
c
. 10  without a
    reasonable suspicion that the person monitored is engaged in illegal activity.

[2]

Section 3(1) of the
Smoke
    Free Ontario Act
prohibits the sale of tobacco to any person under the age
    of 19.  In October 2007, a 17-year-old
    test shopper employed by the Tobacco Enforcement Office of the County of
    Lambton went
into a 7-Eleven store in Sarnia
and asked
    to buy a package of cigarettes.  The
    appellant, Matthew Clothier, then 19 years old, was working as a store clerk
    that day.  He sold the test shopper the
    cigarettes without asking for identification.  He was then charged with violating s. 3(1) of the Act.

[3]

At his trial, Mr. Clothier relied on the defence of
    entrapment.  He claimed that the charge
    against him should be stayed because the County of Lambton had engaged in test
    shopping without a reasonable suspicion that he or the store had previously
    sold tobacco to minors.  The trial judge,
    Justice of the Peace Taylor, held that there had been no entrapment.  Instead, he said that test shoppers utilized
    in a bona fide inquiry is an appropriate investigative technique when were
    dealing with regulatory offences.  He
    convicted Mr. Clothier and fined him $50.

[4]

On appeal, Justice
Hornblower
found no error in the reasons of the Justice of the Peace.  He held that the County had conducted a bona
    fide inquiry, and was entitled to do so without reasonable suspicion.  He dismissed the appeal.  Doherty J.A. granted leave to appeal because
    there is some conflict in the authorities and this court has not addressed the
    question of the availability of the defence of entrapment to the charge in
    issue.

[5]

Mr. Clothiers position is that the doctrine of
    entrapment, which developed in the criminal law, applies to regulatory
    offences.  Thus, entrapment will be made
    out, where, as in this case, the authorities offered an individual an
    opportunity to commit an offence without a reasonable suspicion that the
    individual was engaged in illegal activity.

[6]

The Attorney Generals position is that entrapment does
    not apply to regulatory offences.  Government authorities may justifiably conduct bona fide inquiries
    without reasonable suspicion, to ensure compliance with a regulatory statute,
    such as the
Smoke Free Ontario Act
.  Test shopping is one permissible form of a
    bona fide inquiry, and invariably more effective than other means of monitoring
    compliance with the prohibition on selling tobacco to minors.  Finally, the Attorney General says that while
    test shopping in this case was done in good faith, inquiries done in bad faith
    or for improper motives may be controlled by the doctrine of abuse of
    process.  Resort to the doctrine of
    entrapment is unnecessary.

[7]

The parties have put their positions broadly, inviting
    a determination of whether the defence of entrapment is available for
    regulatory offences generally.  However,
    my reasons are limited to the question whether the entrapment defence is
    available for a charge under the
Smoke
    Free Ontario Act
, when that charge stems from a random compliance
    check.  Whether the defence of entrapment
    is available in other circumstances or for an offence under another regulatory
    statute should be determined when that issue arises.

B.

Background Facts

[8]

Before
    his employment at the 7-Eleven
store
, Mr. Clothier had
    worked at an
Esso
station.  There, too, he had sold tobacco
    products.  At both places he was required
    to check the identification of potentially underage customers.  Indeed, when he started working at 7-Eleven,
    he had been trained on the age restrictions for selling tobacco, and how to ask
    for identification.  He had also been
    trained on age restricted merchandise and on 7-Elevens policy on how to refuse
    to sell tobacco to minors.  Mr. Clothier
    had no previous convictions for selling tobacco products to an underage person.

[9]

On
    the date of the offence, the 7-Eleven
store
had been
    randomly chosen for a spot compliance check from a master list containing all
    the tobacco vendors in Lambton County.  The County acknowledged that it had no reason to suspect Mr. Clothier
    had shown any disposition to sell tobacco to minors.  The trial judge found, on conflicting
    evidence, that the 7-Eleven store had no previous record of violating the
    statute.

[10]

A
    tobacco enforcement officer went to the 7-Eleven
store
together with the 17-year-old test shopper.  The test shopper was employed by the Lambton Health Unit, Tobacco
    Strategy Team.  Her job was to go around
    to different stores in the County, with an enforcement officer, and try to
    purchase tobacco products.

[11]

The
    test shopper went into the 7-Eleven
store
and asked
    Mr. Clothier, who was behind the counter, for a package of Peter Jackson full
flavoured
cigarettes.  He retrieved the package of cigarettes and asked the test shopper if she
    wanted a second package, as buying two packages together would save her one
    dollar.  She said no because she didnt
    have enough money.

[12]

Mr.
    Clothier scanned the package of cigarettes and received payment for it from the
    test shopper.  The transaction took about
    35 seconds.  At no time did Mr. Clothier
    ask the test shopper for age identification.  After the test shopper left the store, the enforcement officer entered,
    informed Mr. Clothier that he had sold tobacco to an underage person, and
    issued a certificate of offence.

C.

Entrapment and the
Smoke Free Ontario Act

(
i
)        Entrapment

[13]

The
    doctrine of entrapment in Canadian criminal law is an aspect of the broader
    abuse of process doctrine.  Entrapment
    reflects judicial disapproval of unacceptable police or prosecutorial conduct
    in investigating crimes.  The
defence
is extensively discussed by Lamer J. in
R. v. Mack
, [1988] 2 S.C.R. 903, and in
    his later judgment in
R. v. Barnes
,
    [1991] 1 S.C.R. 449.

[14]

In
    setting out the contours of the doctrine of entrapment, Lamer J. balanced two
    competing objectives.  On the one hand,
    he recognized that the police must have considerable leeway in the techniques
    they use to investigate criminal activity.  On the other hand, he also recognized that the power of the police to
    investigate crimes should not be untrammeled.  The police should not be allowed to randomly test the virtue of citizens
    by offering them an opportunity to commit a crime without reasonable suspicion
    that they are already engaged in criminal activity; or worse, to go further and
    use tactics designed to induce citizens to commit a criminal offence.  To allow these investigative techniques would
    offend our notions of decency and fair play.

[15]

Lamer
    J. struck the balance between these two objectives by concluding that an
    accused will be entitled to rely on the
defence
of
    entrapment in either of two situations:

·

First,
    when government authorities provide a person with an opportunity to commit a
    crime, unless they have a reasonable suspicion that the person is already
    engaged in criminal activity, or unless they are acting in the course of a bona
    fide investigation.

·

Second,
    when government authorities, though they have a reasonable suspicion or are
    acting in the course of a bona fide investigation, go beyond providing an
    opportunity to commit a crime by inducing the commission of an offence.

[16]

Typically,
    as in this case, when entrapment is alleged, the essential elements of the
    offence charged have been made out.  However, if an accused proves an abuse of process because of entrapment,
    the court will not permit the Crown to maintain a conviction as doing so would
    offend our sense of fair play, and bring the administration of justice into
    disrepute.  Instead, the court will stay
    the proceedings.  As with other aspects
    of the abuse of process doctrine, a stay is granted only if an accused meets
    the clearest of cases standard.

[17]

In
    the present appeal we are concerned only with the first branch of
    entrapment.  Mr. Clothier does not
    suggest that anyone threatened him or induced him to sell cigarettes to the
    test shopper.  This first branch of
    entrapment encompasses two kinds of cases.  In one, the police, without reasonable suspicion a person is already
    engaged in criminal activity, provide that person with an opportunity to commit
    a crime:  see
Mack
.

[18]

In
    the other kind of case, the police undertake an investigation directed at a
    geographic area but without a reasonable suspicion criminal activity is
    occurring there:  see
Barnes
.  Conversely, where the police undertake a bone fide investigation
    targeting an area where criminal activity is reasonably suspected, there will
    be no entrapment.  The police are
    entitled to provide any person in the area with the opportunity to commit the
    offence.  If criminal activity is
    reasonably suspected, the investigation is bona fide.

[19]

In
    either kind of case, under the first branch of the entrapment doctrine the
    police can lawfully act only on reasonable suspicion, either of an individuals
    or an areas criminal activity.  The
    requirement of reasonable suspicion in the criminal law context defines the
    debate on this appeal.

[20]

The
    question is whether reasonable suspicion should be required for compliance
    checks under the
Smoke Free Ontario Act
.  The Attorney General acknowledges that the
    County of Lambton acted without reasonable suspicion.  Therefore, if the County was required to
    reasonably suspect that either Mr. Clothier or the stores in the area were
    engaged in illegal activity before sending a test shopper to the 7-Eleven
store
, then Mr. Clothiers entrapment claim ought to
    succeed.  But if the County could
    undertake a bona fide investigation into whether stores in the area were selling
    tobacco to minors without a reasonable suspicion that was so, then the
    entrapment claim must fail.  To put this
    debate in context, I will briefly review the statute in issue, the
Smoke Free Ontario Act
.

(ii)       The
Smoke Free Ontario
    Act

[21]

Canadian
    jurisprudence has long distinguished between truly criminal conduct and conduct
    that, though not inherently wrong, is nonetheless prohibited for the protection
    of the public.  Thus, we have
    distinguished between criminal statutes and regulatory statutes, and between
    criminal offences and regulatory offences.  Cory J. discusses this distinction and the basis for it in
R. v. Wholesale Travel Group Inc.
,
    [1991] 3 S.C.R. 154 at pp. 218-19:

It
    has always been thought that there is a rational basis for distinguishing between
    crimes and regulatory offences.  Acts or
    actions are criminal when they constitute conduct that is, in itself, so
    abhorrent to the basic values of human society that it ought to be prohibited
    completely.  Murder, sexual assault,
    fraud, robbery and theft are all so repugnant to society that they are
    universally recognized as crimes.  At the
    same time, some conduct is prohibited, not because it is inherently wrongful,
    but because unregulated activity would result in dangerous conditions being
    imposed upon members of society, especially those who are particularly
    vulnerable.

The
    objective of regulatory legislation is to protect the public or broad segments
    of the public (such as employees, consumers and motorists, to name but a few)
    from the potentially adverse effects of otherwise lawful activity.  Regulatory legislation involves a shift of
    emphasis from the protection of individual interests and the deterrence and
    punishment of acts involving moral fault to the protection of public and
    societal interest.  While criminal
    offences are usually designed to condemn and punish past, inherently wrongful
    conduct, regulatory measures are generally directed to the prevention of future
    harm through the enforcement of minimum standards of conduct and care.

[22]

The
Smoke Free Ontario Act
, formerly
    known as the
Tobacco Control Act, 1994
,
    is a regulatory statute, which has been enacted to promote public health and
    safety.  It establishes a legislative
    regime for controlling the display, promotion, packaging, sale and use of tobacco,
    including when, how, where and to whom tobacco can be sold.  The offences under the Act are strict
    liability offences, which means that due diligence is a
defence
but negligence is not.  All offences are
    punishable by a fine, or, on multiple convictions, by a prohibition on the sale
    of tobacco for up to 12 months.  No one
    can be imprisoned for a breach of the statute.

[23]

One
    of the most important purposes of the legislation is to ensure that minors are
    not able to buy cigarettes.  Section
    3(1), the section in issue on this appeal, states:

No
    person shall sell or supply tobacco to a person who is less than 19 years old.

[24]

Section
    3(2) reduces the danger of an inadvertent violation of s. 3(1) by requiring
    vendors to check for identification when the customer appears to be under 25
    years old:

No
    person shall sell or supply tobacco to a person who appears to be less than 25
    years old unless he or she has required the person to provide identification
    and is satisfied that the person is at least 19 years old.

[25]

In
R. v. Seaway Gas & Fuel Ltd.

(2000), 47 O.R. (3d) 458 (C.A.), at
    paras.
32-33, my
    colleague MacPherson J.A. emphasized this important purpose of the legislation:

[32] Fifth, it needs to be recalled that the Act is
    an important public health statute.  The
    Act and its regulations attempt to regulate in a strict and careful fashion the
    distribution of a dangerous product.  In
RJR-Macdonald Inc. v. Canada (Attorney
    General)
, [1994] 1 S.C.R. 311, the Supreme Court of Canada considered the
    federal
Tobacco Products Control Act
,
    R.S.C. 1985, c. 14, and some of the regulations promulgated pursuant to
    it.
Referring to the
    general purposes of the regulations,
Sopinka
and Cory
    JJ.

said
, at p. 353:

These are clear indications that the government
    passed the regulations with the intention of protecting public health and
    thereby furthering the public good.

Later in their reasons, the justices referred to
    the undeniable importance of the public interest in health and in the
    prevention of the widespread and serious medical problems directly attributable
    to smoking (at pp. 353-54).

[33] In my view, this reasoning is entirely
    applicable to the Ontario
Tobacco Control
    Act
and suggests that the provisions of the Act and regulations should be
    interpreted with a judicial eye firmly focussed on the public health purposes
    of the legislation.
One of the most important purposes of the legislation is to make sure
    that minors are not able to buy cigarettes
.  The legislation should be strictly interpreted to help achieve that
    purpose.
[Emphasis added.]

[26]

Against this background, I turn to the question on this
    appeal:  whether government authorities
    can use random test shopping to monitor compliance with this important purpose
    of the statute, or whether doing so amounts to entrapment under the first
    branch of the doctrine discussed in
Mack
and
Barnes
.

D.        The Availability of
    Random Test Shopping to Monitor Compliance with the Prohibition on Selling
    Tobacco to Minors

[27]

As my colleague Doherty J.A. noted in granting leave to
    appeal, the case law is conflicting on whether entrapment is available as a
    defence to a charge of selling tobacco to a minor.  In Ontario, most trial decisions and Ontario
    Court of Justice appeal decisions have held that entrapment is not available.

[28]

The two main appeal decisions are
R. v.
Donkersgoed
, 2007 ONCJ 467, which
    was relied on by Taylor J.P. in the present case, and
R. v. Cho
, [2000] O.J. No. 5354 (C.J.).  In both cases the court held that random test
    shopping does not amount to entrapment.  In other words, the authorities may engage in test shopping without a
    reasonable suspicion that either a particular store or stores in the area are
    selling tobacco to underage persons.  In
Cho
Finlayson J.A. denied leave to
    appeal, and in so doing baldly stated the defence of entrapment is not
    available in regulatory offences:  see
    [2001] O.J. No. 1041 (C.A.).  His
    conclusion is instructive, but, of course, a decision of a judge of this court
    denying leave to appeal has no precedential value.

[29]

As counsel for Mr. Clothier point out in their factum,
    courts in other provinces  notably Saskatchewan and Alberta  have held that
    a bona fide inquiry does require some prior suspicion of the person or area
    being targeted by the states test shopper, and they have stayed proceedings
    as an abuse of process resulting from entrapment:  see, for example,
R. v. Myers
, 2000 SKQB 226 and
R.
    v.
Tyzuk
, 2009 ABPC 282.

[30]

No provincial court of appeal has directly considered
    the availability of the defence of entrapment to the regulatory offence of
    selling tobacco to a minor.  In a
    different regulatory context, however, Cowan J. of the British Columbia Supreme
    Court held that random spot checks for compliance with the
Proceeds of Crime (Money Laundering) Act
did not amount to
    entrapment, and his conclusion and reasoning were approved by the British
    Columbia Court of Appeal:  see
R. v. Au Canada Monetary Exchange Inc.
,
    [1999] B.C.J. No. 455 (S.C.),
affd
, 2000 BCCA 193,
    leave to appeal to the S.C.C. denied, [2000] S.C.C.A. No. 222.

[31]

Section 80 of the
Provincial
    Offences Act
, R.S.O. 1990, c. P.33 preserves the applicability of common
    law defences, such as entrapment, to regulatory offences, such as selling
    tobacco to a minor:

Every rule and principle of the common law that
    renders any circumstance a justification or excuse for an act or a defence to a
    charge continues in force and applies in respect of offences, except in so far
    as they are altered by or inconsistent with this or any other Act.

[32]

However, the proviso in s. 80  except in so far as
    they are  inconsistent with  any other Act  is significant.  Doctrines developed in the criminal law
    context should not automatically be applied, or applied without modification,
    in the wholly different regulatory context.

[33]

In my opinion, the reasonable suspicion requirement,
    which negates entrapment under the first branch of the doctrine set out in
Mack
and
Barnes
, does not apply to the offence of selling tobacco to a
    minor.  Government authorities may use
    random test shopping to monitor compliance with the
Smoke Free Ontario Act
.  They
    need not wait until they have a reasonable suspicion that a store or one of its
    employees is selling tobacco illegally.  As long as random test shopping is done in good faith  that is, it is
    not done in a discriminatory way or for an improper purpose  it is a
    permissible investigative technique.  This is because the two specific rationales underpinning the first
    branch of the entrapment doctrine in criminal law, as set out by Lamer J. in
Mack
, have no relevance to a charge under
    the
Smoke Free Ontario Act
.

[34]

The first rationale is that to permit the state to
    offer a person an opportunity to commit a crime without a reasonable suspicion
    that the person is engaged in criminal activity amounts to random virtue
    testing and an unjustifiable invasion of individual privacy.  This rationale does not pertain to stores
    selling tobacco for several related reasons.

[35]

First, these stores operate in a regulated commercial
    environment, and operating in this regulatory environment comes with
    consequences. As Cory J. said in
Wholesale
    Travel
, at p. 229:   those who
    choose to participate in regulated activities have, in doing so, placed
    themselves in a responsible relationship to the public generally and must
    accept the consequences of that responsibility.

[36]

Stores selling tobacco and their employees have this
    responsibility to the public. One important consequence of this responsibility
    is their deemed acceptance of an undertaking to exercise reasonable care to
    ensure that the harm identified in the regulatory statute  here selling
    tobacco to minors  does not occur.  This
    entails a further consequence.

[37]

Those who sell tobacco products must accept a greatly
    diminished expectation of privacy, as some form of monitoring will be necessary
    to ensure that they meet their due diligence responsibilities.   The monitoring is done, not to punish past
    conduct, as would be the case for an offence under the criminal law, but to
    deter harmful conduct in the future  in other words, to prevent harm to the
    public from the illegal sale of tobacco to minors.

[38]

These consequences, which the 7-Eleven store and Mr.
    Clothier must be taken to accept when they engage in the regulated activity of
    selling tobacco to the public, persuasively show that the first branch of the
    criminal law entrapment doctrine cannot be transported to a charge under the
Smoke Free Ontario Act.
We recognize entrapment as a defence in
    criminal law because of our concern that random virtue testing will result in
    too great an invasion of personal privacy.  That rationale simply does not apply in this regulatory context.

[39]

A second reason why the rationale does not apply is
    that in using random test shopping, the government is not engaged in virtue
    testing; it is engaged in compliance testing. Virtue is irrelevant to a charge under s. 3(1) of the
Smoke Free Ontario Act
.  Section 3(1) is a strict liability
    offence.  A person can be convicted for
    merely being negligent.

[40]

A third reason for not applying the criminal law
    rationale is that the test shopping takes place at a store that sells tobacco
    to the public.  Selling tobacco products
    is part of the stores ordinary business.  Thus, the opportunity to commit an offence when the test shopper asks to
    buy a package of cigarettes is no different from the opportunity presented when
    any underage customer asks to buy cigarettes.  Put the other way, the test shopper does not present the store or its
    employees with an opportunity to commit an offence that they would not otherwise
    encounter in the ordinary course of their business.  Any invasion of the store owners or
    employees expectation of privacy is minimal at best.

[41]

For these reasons, the first rationale underpinning the
    first branch of the entrapment doctrine has no bearing on the charge of selling
    tobacco to minors.

[42]

The second specific rationale stems from the concern
    that if the police were permitted to offer a person an opportunity to commit a
    crime without a reasonable suspicion that the person had already engaged in
    criminal activity, then individuals who would not otherwise be involved in
    criminal activity may end up committing criminal offences.  This rationale, too, has no relevance to a
    charge under s. 3(1) of the
Smoke Free
    Ontario Act
.

[43]

As I have already said, the opportunity provided to the
    store clerk to violate s. 3(1) when the test shopper asks to buy cigarettes is
    exactly the same as the opportunity provided when any underage person comes
    into the store and asks to buy cigarettes.  Test shopping does not provide an opportunity to the store clerk that is
    not routinely available in the course of the stores business.

[44]

Because neither specific rationale underpinning the
    first branch of the entrapment doctrine applies to a charge of selling tobacco
    to a minor, government authorities may engage in random test shopping to
    monitor compliance with the statute.  They need not have a reasonable suspicion of illegal activity before
    using this investigative technique.

[45]

I add that on the evidence at trial, random test
    shopping is the most effective way to achieve the governments purpose of
    ensuring compliance with the statute and deterring future illegal sales of
    tobacco.  Surveillance, according to the
    testimony of the Tobacco Enforcement Officer, is largely ineffective.  And expecting minors who have purchased
    tobacco to cooperate with the authorities by reporting an offence or giving
    them information is highly unrealistic.  Prosecution for an offence may have some deterrent effect.  But deterrence comes mainly from the threat
    of detection occasioned by random test shopping.

[46]

This does not mean that government authorities
    discretion to use test shopping is unfettered or unreviewable by the
    courts.  Test shopping may be done
    randomly; but it must be done in good faith.  It must be used for a proper purpose and carried out bona fide and
    without discrimination.  If it is not, if
    it is done in bad faith, then courts retain jurisdiction to stay proceedings
    under the general abuse of process doctrine of which entrapment is one aspect.

[47]

The overriding rationale of the abuse of process
    doctrine  a rationale that also underlies the entrapment doctrine  is that
    government should not be allowed to investigate possible illegal activity in a
    way that offends our sense of decency and fair play.  This rationale applies as much to the
    regulatory charge of selling tobacco to an underage person as it does to a
    charge under the
Criminal Code
.

[48]

Suppose, for example, a government authority chooses to
    use test shopping to check compliance with the Act, but decides to target only
    stores owned by a particular ethnic group.  That discriminatory use of test shopping should not be condoned by the
    courts.  Whether characterized as an
    abuse of process or as entrapment under a very limited version of the first
    branch of the doctrine, is a matter of semantics, not substance.  The result would be the same: proceedings
    would be stayed.

[49]

In the case before us, the test shopping carried out by
    the County of Lambton was bona fide.  The
    7-Eleven
store
where Mr. Clothier worked was randomly
    chosen from a master list of stores in the area.  The charge was made out.  The test shopper was underage; Mr. Clothier
    did not ask her for identification; and he sold her the package of cigarettes
    she requested.

[50]

I would dismiss the appeal.

RELEASED:  Jan. 13,
    2011                                                John Laskin J.A

JL                                                                                I
    agree D. OConnor A.C.J.O.

I
    agree E.E. Gillese J.A.