St. Mary’s Cement Inc (Canada) v Clarington (Municipality), 2012 ONCA 884

In this case, the Ontario Court of Appeal considered whether substituting alternative fuel for a traditional fuel source at a cement manufacturing plant would give rise to a new land use. St. Mary’s Cement Inc. (SMC) proposed to substitute alternative fuel recovered from post-recycling and post-composting materials, for the use of petcoke at its cement manufacturing plant in Clarington. The Municipality submitted that this would give rise to a new land use, that is, use of the site as a “waste disposal area” which is not permitted under the by-law. Winkler C.J.O held that the fuel substitution would not give rise to a new land use.

The Court concluded that the alternative fuel falls within the definition of “waste”, however the proposed plan does not constitute a “waste disposal area” within the meaning of the by-law. The by-law defines “waste disposal area” as “a place where garbage, refuse or domestic or industrial waste is dumped, destroyed, or stored in suitable containers.” The Court rejected the argument that the waste is “destroyed” when it is burned as fuel, stating, “SMC’s use of the alternative fuel would not be considered ‘destruction of waste’, just as the use of petcoke fuel would not be characterized as the destruction of petcoke. In both cases, fuel is being used productively as part of the permitted use – the manufacturing of cement.” The Court concluded that the by-law does not bar SMC’s alternative fuel use.

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Rebecca Crangle

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R v. Bogdan Dragos, 2012 ONCA 538

In The Queen v. Bogdan Dragos, the Ontario Court of Appeal upheld convictions for internet luring, sexual interference, invitation to sexual touching, and indecent exposure against a 24 year old man who had sexually explicit online exchanges with a thirteen year old girl (“E.B.”) who claimed to be fourteen.  While E.B. had attempted to act older than she was, the records of their online conversations included statements that could have led the accused to doubt her age.  After seeing his number repeatedly in her phone bills, E.B.’s mother once called the accused, told him her daughter was “way too young,” and warned that she would call the police if she saw his number again.  There was no evidence the accused had made any effort to confirm E.B. was fourteen after this conversation.  In spite of the mother’s warnings, the accused arranged a rendezvous with E.B. in a hotel room, where they engaged in sexual acts but did not have intercourse.  The central issue on appeal was whether the Crown had proved beyond a reasonable doubt that the appellant failed to take sufficient steps in all the circumstances to ascertain E.B.’s age.

The Court held that the “reasonable steps” requirement in Criminal Code provisions concerning sexual offices against children can give rise to positive obligations in some circumstances (Ewanchuk, R v. J.A.).

Broadly, the court holds that the “mistake in age” defense to internet luring in s. 172.1(4) requires the accused to have exercised the same degree of care that a reasonable person would in ascertaining the person’s age.  On the facts of this case, the court holds that the more stringent “due diligence” approach is appropriate.  The court draws a parallel between 172.1(4) and the requirement in 273(2)b that an accused take reasonable steps to ascertain a complainant’s consent before establishing a defense of mistaken belief to sexual assault charges.  The court reasons that the similar language in each provision justifies applying a “due diligence” formulation to both.

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Megan Andrews

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Downs Construction Ltd. v. Workers’ Compensation Appeal Tribunal, 2012 BCCA 392

In Downs Construction Ltd. v. Workers’ Compensation Appeal Tribunal, the British Columbia Court of Appeal (BCCA) held that a worker who fails to obtain workers' compensation benefits for a workplace injury is not entitled to sue his/her employer for a common law breach of duty. The judgment reinforces the historic trade-off in s. 10 of the B.C. Workers' Compensation Act (BCWCA), which bars an action for an injury arising out of and in the course of employment if the worker could bring a claim under s. 10 of the BCWCA. The BCCA found the trade-off was appropriate even if there may be a lacuna in the compensation scheme under the Act.

Chiasson J.A. indicated that the trial judge and the Workers' Compensation Tribunal (WCAT) misunderstood the purpose of the 'historic trade-off' embodied in s. 10 of the BCWCA. Rather than the trade-off merely being a quid pro quo in which workers exchange tort rights for compensation under the BCWCA, the trade-off involves workers relinquishing their right to sue their employers and co-workers, along with the benefits of potentially larger damages, in exchange for prompt and guaranteed no-fault compensation, in which employees may receive compensation for workplace injuries regardless of fault. He drew on the judgment by Sopinka J in Pasiechnyk v. Saskatchewan (Workers’ Compensation Board) [1997] 2 S.C.R. 890 to emphasize the complexity of the historic trade-off, but also on commentary by the Minister during the reading of the Bill which would become the BCWCA. Chiasson J.A. noted that the Minister's comments on the need for the compensation scheme to provide sustainable benefits reflect concerns at the core of the historic trade-off. In his view, it would be contrary to legislative intent if employees are permitted to bring tort claims “notwithstanding the action of the Legislature to curb such claims because they were having an adverse financial effect on employers”.

In this case, a worker claimed compensation for, inter alia, post traumatic stress disorder pursuant to s. 5.1 of the BCWCA, and also brought a tort claim against her employer and co-worker for mental stress. The BCCA held that while the worker was not entitled to benefits through the BCWCA because she did not fit the criteria required for compensation, the injury arose out of and in the course of employment. As such, the worker was not entitled to bring a tort claim against her employer or her co-worker for the workplace injury she suffered because of the “historic trade-off” principle.

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Carolyn Lambert

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