supplement the Convention, but the
second was not. Allowing courts to apply
domestic law to circumvent the Convention would thwart the organizational
objectives and create confusion. Furthermore, proper statutory interpretation
was that which upheld Canada’s international obligations. The Service Convention was exclusive and Rule 17.05( 3)
could be presumed to comply with the
Service Convention and this provided
the only means of service available. In
allowing the respondents to resort to
Rule 16.08 to validate service, the Master erred in law.
Khan Resources Inc. v. Atomredmet-zoloto JSC, [2012] O.J. No. 1059,
Ontario Superior Court of Justice, B.P.
O’Marra J., March 9, 2012. Digest No.
3148-004
CRIMINAL LAW
CONSTITUTIONAL ISSUES – Canadian Charter of Rights and Freedoms
– Freedom of expression – Life, liberty
and security of person – Principles of
fundamental justice.
Appeal by the federal and provincial
Crown from a declaration that certain
Criminal Code sections related to prostitution were unconstitutional and of no force
and effect. The applicants were former and
current sex trade workers. They challenged the validity of three Criminal Code
provisions, s. 212(1)(j), which made it
illegal to live off the avails of prostitution,
s. 210, which outlawed common bawdy-houses, and s. 213(1)(c), which criminalized communication for the purpose of
prostitution. The practical effect of the
provisions required prostitutes to work
indoors on an out-call basis, or risk criminal sanction. The applicants claimed it
was safer to conduct prostitution in their
own indoor setting, for workers to hire
managers, drivers and security personnel,
and for workers to be able to screen their
clients. A 1990 Supreme Court of Canada
decision in a constitutional reference had
upheld the precursors to two of the
impugned sections as constitutional. The
applicants wanted the court to revisit the
issues in light of statistics showing that
violence against prostitutes was on the rise
and on a full factual record. The court
found that the applicants had sufficient
private interest standing to challenge the
validity of the impugned provisions. The
court accepted that the safety risks associated with prostitution in the current legal
context deprived prostitutes of security of
the person, contrary to s. 7 of the Charter.
The living off the avails provision was
intended to prevent the exploitation of
prostitutes by pimps, but was arbitrary, as
it actually exposed prostitutes to greater
harm. Acting in concert, the bawdy-house
and communication provisions were arbitrary. The living off the avails and bawdy-house provisions were overbroad. The
effects of the impugned provisions were
grossly disproportionate to their purposes.
The communicating provision violated the
prostitutes’ rights to free expression, and
was not a reasonable limit on such freedom, as it prohibited communications
other than those contributing to social
nuisance. The declaration sought was
granted and the three impugned provisions were struck down.
HELD: Appeal allowed in part. Each
of the impugned provisions criminalized
conduct that would mitigate, to some
degree, the risks to those engaged in the
otherwise legal endeavour of prostitution.
The inability to quantify the added risk to
prostitutes flowing from the legislation
was no bar to a finding that the impugned
provisions, individually and collectively,
added risk sufficient to engage security of
the person and require analysis in the
context of the principles of fundamental
justice. The court below erred in its appli-
cation of the principle of stare decisis to
its reconsideration of the 1990 Prostitu-
tion Reference in the context of freedom
of expression and s. 1 analysis. The court
also erred in finding that the ban on com-
municating in public for the purpose of
prostitution was grossly disproportionate
to its legislative objective. The communi-
cation provision did not violate the prin-
ciples of fundamental justice and thus
remained in full force. The blanket pro-
hibition on common bawdy-houses for
the purpose of prostitution was over-
broad and grossly disproportionate to its
legislative objective, as it prevented a
single prostitute from operating dis-
creetly in her own premises. The provi-
sion violated the principles of fundamen-
tal justice and was struck down. The
declaration of invalidity was suspended
for 12 months to permit Parliament an
opportunity to redraft a Charter-compli-
ant provision. The prohibition on living
on the avails of prostitution was not arbi-
trary, as found by the court below. How-
ever, the provision was overbroad and
grossly disproportionate to the extent
that it criminalized non-exploitative com-
mercial relationships between prostitutes
and other people. Words of limitation
were read-in so that the prohibition
applied only to those who lived on the
avails of prostitution in circumstances of
exploitation, thus curing the constitu-
tional defect and aligning the text of the
provision with the vital underlying legis-
lative objective. The decision was stayed
for 30 days to permit all parties to con-
sider their positions.
APPEALS – Grounds – Miscarriage
of justice – Question of law.
Appeal by the Crown from an order
dismissing Siciliano’s convictions for
uttering a threat, possession of stolen
property, and breach of probation. Siciliano pleaded guilty on January 7, 2011. His
sentencing was adjourned to July 21, 2011,
to give him an opportunity to get his life in
order. On July 21, the trial judge took an
adjournment at 11: 23 am. When he
returned at 11:45 am, the Crown prosecutor was not in the courtroom. The judge
advised his clerk to notify the Crown that
if he was not there within one minute, the
judge intended to dismiss all the matters
on his list for want of prosecution. When
efforts to contact the prosecutor failed, the
order under appeal followed. The Crown
prosecutor showed up eight minutes later,
apologized, and advised the judge that he
had been reading a pre-sentence report
that had only just arrived. The judge
refused to change his decision.
HELD: Appeal allowed. The judge had
no power to make the order he purported
to make. It was illegal and an abuse of
judicial authority. The judge’s actions were
high-handed and did a real disservice to
the proper administration of justice. The
matter was remitted to the same judge for
sentencing because that judge was familiar
with the efforts Siciliano was making to
rehabilitate himself.
EMPLOYMENT LAW
WRONGFUL DISMISSAL – Constructive dismissal – Change to job content or status – Employee’s duty to mitigate – Reasonable notice period or
wages in lieu.
Action by the plaintiff employee, MacBeth, against the defendant employer, the
Heart & Stroke Foundation of New Brunswick, for damages for wrongful and bad
faith dismissal. The employee’s title was
Senior Manager for Revenue Development. She was hired in 2005 and implemented all regional fundraising activities.
The employee alleged that she was constructively dismissed in 2011. The
employer submitted that the employee
voluntarily resigned, or alternatively, failed
to mitigate her damages. During her
employment, the employee was considered
a highly capable worker who consistently
met or exceeded fundraising targets. The
parties’ dispute arose following the assignment of a door-to-door fundraising campaign to another worker due to concern
that the employee was experiencing fatigue
and stress from the cumulative effect of
her position. The campaign experienced
difficulties under the other worker. When
the employee and others intervened, they
realized that the campaign, and by extension, the total provincial fundraising effort,
was in serious trouble. An e-mail exchange
between the employee and her boss concerning the matter led to the employee’s
letter of resignation. The employee cited
the change in job responsibilities associated with the employer’s request that she
devote more time to assisting in saving the
fundraising effort. In a subsequent e-mail
to her boss, the employee clarified that she
characterized her resignation as forced.
The employee claimed damages of
$25,616, comprised of reasonable notice
benefits and Wallace damages for the egregious manner of dismissal.
HELD: Action allowed in part. It was
understood that the employee was to
have the campaign in question removed
from her job description due to heightened stress, but that she would be available for advice and assistance. When the
campaign became jeopardized, it was
expected that everyone in the office
would offer assistance. It was expected
that the employee would take over the
campaign. She resigned after refusing to
agree to the change. The employee was
constructively dismissed, as the employer
implied that the employee’s concerns
and stress related to the campaign could
not be accommodated, and that she
would have to live with the situation.
The circumstances were not sufficiently
egregious to support an award for Wallace damages. The employee failed to
mitigate her damages, as the job offers
she received suggested that she could
have finalized employment two months
after receiving her letter of reference.
The employee was awarded four months’
reasonable notice.
MacBeth v. Heart and Stroke Foundation of New Brunswick, [2012] N.B.J.
No. 85, New Brunswick Court of Queen’s
Bench, Trial Division - Moncton, New
Brunswick, G.S. Rideout J., March 8,
2012. Digest No. 3148-007
ENVIRONMENTAL LAW
ENVIRONMENTAL LIABILITY –
Regulatory offences and prohibitions.
Appeal by Castonguay Blasting from
the Crown’s successful appeal from Castonguay’s acquittal on a charge under the
Environmental Protection Act (“EPA”) of
discharging a contaminant into the natural environment likely to cause an
adverse effect. Castonguay was subcontracted to conduct controlled blasting
operations at a highway-widening project. A blast sent rock debris 90 metres,
damaging a residential home and a
vehicle. The incident was reported to the
Ministries of Labour and Transportation
in accordance with the contracts for the
project, and the property owner was
compensated for the damage. The failure
to report the incident to the Ministry of
Environment led to the charge under s.
15(1) of the EPA. The trial judge acquitted Castonguay on the basis that the
discharge did not directly affect the natural environment and was not within the
scope of the EPA. The Crown appealed
on the basis that the trial judge gave
excessive weight to the purpose provision of the EPA without giving due consideration to the definition of “adverse
effect”, and erred in concluding that an
adverse effect required damage to the
natural environment in addition to property damage. The appeal judge held that
the trial judge erred in finding that the
application of the EPA was limited to an
environmental event. The flying rock
debris met the definition of a contaminant under the EPA, as it resulted from
human activities and caused damage to
property. There was nothing in the EPA
that limited the application of ss. 14 and
15 and the meaning of “adverse effect” to
the natural environment.
HELD: Appeal dismissed. There was
no policy reason for limiting the coverage
of the EPA to fact situations where serious
adverse effects to people, animals and
property could be considered only if the
environment was also harmed by the
impugned activity. The discharge of fly-rock into the air during a blasting operation was a sufficient trigger for scrutiny
under the EPA. The plain meaning of the
relevant provisions of the EPA, a proper
understanding of the broad purposes of
the EPA, and the application of the decisions of the Supreme Court of Canada in
Ontario v. Canadian Pacific Ltd. and the
Ontario Court of Appeal in R. v. Dow
Chemical Canada Inc., taken together,
established that Castonguay’s discharge of
the fly-rock from a blasting operation
being carried out in the natural environment was the discharge of a contaminant
that caused an adverse effect under the
EPA. Therefore, Castonguay should have
reported the incident to the Ministry of
the Environment pursuant to s. 15(1) of
the Act.
Ontario (Minister of the Environment) v. Castonguay Blasting Ltd.,
[2012] O.J. No. 1161, Ontario Court of
Appeal, J.C. MacPherson, J.M. Simmons and R.A. Blair JJ.A., March 16,
2012. Digest No. 3148-008
