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Ontario Employer Advisor

Keeping Employers Advised on Developments in Labour and Employment Law

Bill 177 set to make long anticipated changes to Ontario’s Occupational Health and Safety Act

Posted in Occupational Health and Safety
Peter BradyBen RatelbandJustine Lindner

On November 14, 2017, the Ontario Government introduced Bill 177, the Stronger, Fairer Ontario Act (Budget Measures) 2017. The omnibus Bill proposes to amend 45 separate statutes. On November 30, 2017, the Bill passed second reading and is now before the standing committee on Finance and Economic Affairs. Most notably from the standpoint of the Occupational Health and Safety Act (OHSA), Schedule 30 of the Bill seeks to implement, among other smaller amendments, often discussed and long awaited changes to the allowable maximum fines under the OHSA. Under section 66, the OHSA currently provides for a maximum fine upon conviction of $500,000 per offence for corporations and $25,000 for individuals (plus potential jail time of up to 12 months). These maximum fines have not changed for nearly 30 years.

Given that violations under the OHSA frequently relate to critical injuries or workplace fatalities, some commentators and critics have criticized the current maximum fines as too low to adequately provide a deterrent effect. Comparisons are often made to Ontario’s environmental protection statutes where maximum fines for corporations can reach $6 to $10 million for the most serious classes of offences. Bill 177 would see the maximum fine per conviction under the OHSA rise to $1.5 million for corporations and $100,000 for individuals. It can be predicted that if the amendments become law (which is expected), the Ministry of Labour will argue for higher penalties. The proposed changes will also provide Ministry of Labour prosecutors with greater flexibility in the number of alleged violations (or “counts”) they include when laying charges.

Additionally, the Bill seeks to make changes to the one (1) year limitation period within which charges can be initiated. Currently, section 69 of the OHSA creates a one (1) year limitation period from the date of the alleged default or violation. The proposed amendment would extend the limitation period to one (1) year from the date the Ministry of Labour Inspector becomes aware of the alleged offence. The addition of a “discoverability” component will again bring the OHSA in line with other regulatory statutes such as the Environmental Protection Act. The discoverability component will not likely come into play for the most common OHSA violations such as critical injuries, where the date of the event and the point at which the Ministry of Labour become aware of the violation usually coincide. However, for historical, non-injury related allegations that do not immediately come to the attention of the Ministry of Labour (e.g. failing to take prescribed actions or violations relating to engineering reports), a prosecution may be initiated well after the date of the event.

We will continue to monitor the progress of the Bill and will provide updates when the amendments are in force.  If you have any questions with respect to the Bill or occupational health and safety matters more broadly, please contact the authors or any member of our Labour & Employment Group.

Counting Down to December 31, 2017 – Don’t Forget About Your AODA Compliance Report

Posted in Accessibility
Kate McNeill-Keller

A quick reminder that pursuant to the Accessibility for Ontarians with Disabilities Act, 2005 (Ontario), Ontario private sector businesses with twenty or more employees are required to file a compliance report every three years.  The next deadline is fast approaching – December 31, 2017.

If you have not already completed your report, you will need to go online to do so on the Government of Ontario website.   You will need your organization’s legal name, business (BN9) number, number of employees and the name and contact information of your certifier (a director or senior officer with legal authority to say that the report is complete and accurate).

If you have any questions with respect to your organization’s obligations either with respect to the compliance report or under the AODA more generally, please contact Kate McNeill-Keller or any of our Ontario Labour & Employment lawyers.

BILL 148 PASSES (but not before a few last-minute changes were made)

Posted in Employment Standards, Labour Relations, Occupational Health and Safety
Tim LawsonMatthew Demeo

On Wednesday, November 22, 2017, the Government of Ontario passed Bill 148, the Fair Workplaces, Better Jobs Act, 2017. Introduced on June 1, 2017 as a response to the Final Report of the Changing Workplaces Review, Bill 148 makes significant amendments to Ontario’s Employment Standards Act, 2000, Labour Relations Act, 1995 and most recently, the Occupational Health and Safety Act. As many are aware, aside from the highly publicized $15 Minimum Wage, Bill 148 will require employers to make significant changes to their policies and practices.

Bill 148, the Fair Workplaces, Better Jobs Act, 2017 has now passed Third Reading and is awaiting Royal Assent. Prior to passing, some last minute, but significant, changes were made to the Bill. Most significant, perhaps, was the inclusion of paid leave for the first five days of Domestic or Sexual Violence Leave. As we recently reported, the new leave allows employees to take up to 17 weeks off work, in a flexible manner, to deal with matters related to domestic or sexual violence. Other significant amendments that were made to Bill 148 prior to it becoming law include:

  • The addition of a Critical Illness Leave;
  • The expansion of Family Medical Leave;
  • The expansion of the list of professionals who can certify statutory leaves;
  • A revision to the “three-hour rule” that will entitle employees to more pay guarantees;
  • Exceptions to the on-call and scheduling rules for employers who provide essential public services;
  • Clarification that for Equal Pay for Equal Work to apply, the duties performed by workers do not necessarily have to be identical, but rather “substantially the same”;
  • Deletion of the hours-based “seniority system” exception to Equal Pay for Equal Work;
  • The expansion of what employee information may need to be provided to a union during a union organizing drive; and
  • A ban on mandatory high-heeled shoes in the workplace under the Occupational Health and Safety Act (except for the entertainment industry).

Aside from the above noted changes, the other major reforms proposed by Bill 148, which we wrote about here and here, such as the movement to a $15 minimum wage, paid emergency leave and equal pay for part-time, contract and temporary employees, are set to come into force in the near future. In fact, the majority of changes will come into effect on January 1, 2018. As a result, employers should be preparing for these changes now.

In the interim, the Labour and Employment Group at McCarthy Tétrault LLP has reviewed the final version of Bill 148 and released a paper titled Bill 148 IS NOW THE LAW, WHAT NEXT? A Timeline of Implementation. If you would like a copy of this paper, or have any questions about Bill 148 and how it will impact your workplace, do not hesitate to contact Tim Lawson or Matthew Demeo, or any lawyer in our Ontario Labour and Employment Law Group.

Federal Government Introduces New Amendments to the Canada Labour Code to Address Workplace Violence and Harassment

Posted in Federally Regulated Employers, Occupational Health and Safety, Sexual Harassment, Workplace Harassment, Workplace Investigations, Workplace Violence
Tim LawsonBen RatelbandAlex Treiber

The Federal Government has recently introduced Bill C-65, An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1, which provides for significant changes in how federally-regulated workplaces must address workplace violence and harassment. Bill C-65 follows a year-long public consultation commissioned by the Ministry of Employment, Workforce Development and Labour that concluded that harassment and violence in workplaces is underreported and not dealt with effectively when reported. Bill C-65 seeks to enhance the current legislative framework, which was originally intended to apply to workplace accidents and did not apply to the public service nor to employees on Parliament Hill.

Bill C-65, if passed into law in its present form, would impose several new duties on employers. Employers would be required to investigate, record and report, in accordance with the requirements that would be prescribed in regulations, all occurrences of harassment or violence. In addition, employers would have to take certain prescribed measures to prevent and protect against harassment and violence in the workplace, respond to occurrences of harassment and violence in the workplace, and offer support to employees affected by harassment and violence. The scope and content of these regulations is unknown.

Under Bill C-65, an employee may request that an unresolved complaint relating to an occurrence of harassment or violence be referred directly to the Minister of Employment, Workforce Development and Labour. The Minister would not be obligated to investigate if they are of the opinion that the complaint has been adequately dealt with via another federal statute or by collective agreement or if they are of the opinion that the matter is trivial, frivolous or vexatious.

The Bill also includes significant measures to protect the privacy of complainants and respondents involved in a workplace harassment or violence investigation. Workplace committees, policy committees and health and safety representatives would not be permitted to participate in investigations into workplace harassment or violence. Unless consent has been provided, the employer would be obligated to ensure that workplace committees, policy committees or health and safety representatives are not provided with any information that is likely to reveal the identity of a person involved in a workplace violence and harassment investigation. These measures are in response to the government’s determination that fear of retaliation is keeping some workers from reporting harassment or violence in the workplace.

Although the Bill would only apply to federally-regulated employers, many of these changes are in line with the current legislative framework in Ontario for provincially-regulated employers under the Occupational Health and Safety Act.   Employers in Ontario are currently required to maintain workplace harassment and violence policies and investigate complaints related to workplace violence and harassment. A failure to comply with the Occupational Health and Safety Act can result in steeps fines from the Ministry of Labour. It remains to be seen if Bill C-65 will incorporate any additional enforcement mechanisms or fines to ensure compliance.

Bill C-65 is currently in First Reading in the House of Commons. We will continue to provide further updates on the Bill as it progresses. In the interim, if you have any questions regarding Bill C-65, do not hesitate to contact any lawyer in our Labour & Employment Law Group.

Employment and Labour Law Reform Bill Passes Second Reading

Posted in Employment, Labour Relations
Tim LawsonMatthew Demeo

In addition, the Ontario Government will seek public input on occupations currently exempted from the Employment Standards Act, 2000.

Bill 148, the Fair Workplaces, Better Jobs Act, 2017 has passed Second Reading and is now one step closer to becoming law. Bill 148 proposes significant changes to Ontario’s Employment Standards Act, 2000 (“ESA”) and Labour Relations Act, 1995 (“LRA”).  As we recently reported, Bill 148 underwent some changes this past summer at the Committee Stage. Most significant perhaps, was the addition of a standalone Domestic or Sexual Violence Leave under the ESA which would allow employees with a least 13 weeks of service to take up to 17 weeks of unpaid leave per calendar year.

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Ontario’s Employment and Labour Law Reform Bill Continues to Undergo Changes

Posted in Immigration
Tim LawsonMatthew Demeo

Just as the summer winds down, we have an update on Bill 148, the Fair Workplaces, Better Jobs Act, 2017.  Those who tuned-in for the McCarthy Tétrault webinars on Bill 148 will recall that public consultations were to be held across the province in July to elicit feedback on the draft Bill.

Following the public consultations, we understand that Bill 148 will undergo some adjustments before it is introduced at Second Reading in the Ontario legislature, including:

  • addition of a 17 week, unpaid Domestic or Sexual Violence Leave;
  • clarification that the paid emergency leave days will be paid at straight time and not at an overtime or shift premium rate;
  • an exemption for weather-dependent businesses from the mandatory 3 hours of pay when shifts are cancelled on less than 48 hours’ notice; and
  • an exemption for emergencies or threats to public safety from the right to refuse work on less than 96 hours’ notice.

The majority of Bill 148 still seems to be intact, including the minimum wage increases and equal pay for equal work. The actual language of the amended Bill 148 will likely be available once the legislature resumes in September, prior to Second Reading. We will provide further updates on the status and content of the Bill as it progresses.

In the interim, if you have any questions about The Fair Workplace, Better Jobs Act, 2017 and how it will impact your workplace, do not hesitate to contact Tim Lawson, Matthew Demeo or any lawyer in our Ontario Labour and Employment Law group.

Federal Government Restores Former Certification and Decertification Processes for Unionization in Federal Workplaces

Posted in Federally Regulated Employers, Labour Relations, Union Certification, Unions
Tim LawsonJustine LindnerAkiva Stern

Three years ago, the Federal Government passed the Employees’ Voting Rights Act, which reformed the Canada Labour Code’s certification and decertification rules for federally regulated workplaces.

The most significant change was the removal of the 50 year old “card check” system. Card check allowed a union to be automatically certified without a vote when it could demonstrate that the majority of the employees in the proposed bargaining unit has signed membership cards and paid a nominal fee.

The other change was lowering the threshold for support for decertification from 50% +1 to 40%.

In Bill C-4, An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act, the Public Service Labour Relations Act and the Income Tax Act, the current Federal Government has reversed those changes.

Bill C-4 Restores the Former Certification and Decertification Requirements

Bill C-4 comes into force on June 22, 2017 and restores the certification and decertification processes to their prior status.  The key amendments to the Canada Labour Code under Bill C-4 are as follows:

Certification

  • Mandatory secret ballot for all certification votes is repealed. A secret ballot vote will now only be required where a union demonstrates evidence of support of 35-50% of the proposed bargaining unit.
  • If a union provides membership evidence of more than 50% of the employees in the proposed bargaining unit, the union may become certified without a secret ballot vote.

Decertification

  • Bill C-4 raises the threshold for decertification of a union from 40% back to 50% +1.

Financial Disclosure Obligations

  • Bill C-4 also repeals the financial disclosure obligations of unions set in motion through Bill C-377 under the Income Tax Act.

Transition Provisions: How Does Bill C-4 Affect Recent Applications for Certification or Decertification?

The amendments to the Canada Labour Code under Bill C-4 will only apply to applications for certification or decertification filed with the Canada Industrial Relations Board after June 22, 2017.  Any applications filed with the Canada Industrial Relations Board prior to June 22, 2017 will be subject to the requirements and thresholds under the previous Bill C-525.

In the Pipeline for 2017: The Right to a Flexible Work Arrangement

The Federal government continues to deliberate over how to provide full-time federal employees with rights to flexible work. We expect to see proposed amendments to the Canada Labour Code in the coming months. We also expect to see changes which limit unpaid internships and introduce an 18 month parental leave.

If you have any questions with respect to these changes or the Canada Labour Code more generally, please contact any member of our National Labour & Employment Group.

Beyond the Final Report: Government of Ontario charts its own course following the Changing Workplaces Review

Posted in Employment Standards, Labour Relations
Tim LawsonSean PorterMatthew Demeo

Last week, we reported on the Government of Ontario’s release of the Changing Workplaces Review Final Report, which comprehensively reviewed Ontario’s Employment Standards Act, 2000 (the “ESA”) and Labour Relations Act, 1995 (the “LRA”). Today, the Government of Ontario announced its intention to introduce The Fair Workplace, Better Jobs Act, 2017 in response to the 173 recommendations provided by the Final Report.

Notably, the Government of Ontario has proposed several changes that were either not among the recommendations put forward in the Final Report or that substantially diverge from the Final Report’s 173 recommendations, including:

  • Increasing the general minimum wage from $11.40 to $14.00 per hour on January 1, 2018 and then to $15.00 per hour on January 1, 2019. According to the announcement, distinct minimum wage rates for categories of specified workers (e.g. students, liquor service, hunting and fishing guides) would be maintained, though these wage rates would also be increased for 2018 and 2019.
  • Providing 10 days of personal emergency leave (PEL) to all employees per year, including two paid PEL days. According to the announcement, the 50 employee threshold for PEL entitlement would be eliminated. Employers would also be prohibited from requesting a sick note from an employee taking PEL.
  • Prohibiting the misclassification of “employees” as “independent contractors”. Employers who misclassify employees in this manner may be subjected to prosecution, including public disclosure of a conviction and monetary penalties. However, the definition of “employee” under the ESA will not be expanded to include a dependent contractor.
  • Establishing card-based union certification for the temporary help agency industry, the building services sector and home care and community services industry.
  • Preventing employers from disciplining or discharging employees without just cause in the period between certification and the conclusion of a first collective agreement, as well as during the period between the date the parties are in a legal strike or lock-out position and the conclusion of a new collective agreement

The Government of Ontario has also opted to include several significant recommendations from the Final Report, including:

  • Enhancing employment standards enforcement by hiring up to 175 more employment standards officers. Once these officers are hired by 2020-2021, their aim will be to resolve all claims filed within 90 days and to inspect 1 in 10 Ontario workplaces.
  • Allowing unions to access employee lists and certain contact information, provided that the union can demonstrate that it has achieved  support of 20% of the employees involved.
  • Allowing the Ontario Labour Relations Board (OLRB) to consolidate newly certified bargaining units with other existing bargaining units under a single employer, where those units are represented by the same bargaining agent.

Should the proposed legislation pass, as it is expected to, most of the revisions to the ESA will become effective January 1, 2018.  All revisions to the LRA will come into effect six months after the Act comes into force.

The Government of Ontario is expected to introduce the final legislation in the coming months and we will continue to report on its development through the legislature. If you have any questions about The Fair Workplace, Better Jobs Act, 2017 and how it will impact your workplace, do not hesitate to contact Tim Lawson, Matt Demeo, Sean Porter, or any lawyer in our Ontario Labour and Employment Law group.

Government of Ontario releases the Changing Workplaces Review Final Report

Posted in Employment Standards, Labour Relations, Policies
Tim LawsonMatthew Demeo

The Government of Ontario has now released the much anticipated Final Report of the Changing Workplaces Review. The product of a two-year comprehensive review of employment and labour laws in Ontario, the Final Report contains 173 recommendations that could significantly alter the landscape for workplaces across the province.  Although currently only recommendations, the Government of Ontario has already announced that it will release its proposed “action plan” within the coming weeks. 

Yesterday, the Government of Ontario finally released the Changing Workplaces Review Final Report which comprehensively reviews Ontario’s Employment Standards Act, 2000 (the “ESA”) and Labour Relations Act, 1995 (the “LRA”).  Readers of this blog will recall that we reported regularly on the progress of the Changing Workplaces Review since it was announced back in February 2015.

The Final Report is over 400 page in length and contains 173 recommendations. This document could significantly alter Ontario’s workplaces and will likely reverberate across Canada.  While the recommendations have not been adopted by the Government of Ontario, the Government has already announced that it intends to respond to these recommendations with its own proposals within the coming weeks.

As a quick reminder, the Changing Workplaces Review was given a specific mandate from the Government: to address the prevalence of vulnerable workers and precarious employment. Many of the 173 recommendations are therefore a reflection of that agenda and could have potential to increase rates of unionization in sectors where unions have traditionally had low representation.

Despite the breadth and depth of the recommendations a number of trade unions immediately commented that the recommendations in the Final Report do not go far enough. Several union press releases have urged the Government of Ontario to go beyond the recommendations and enact further measures such as card check certification, automatic first contract arbitration, and sectoral bargaining.  Unions are also seeking paid sick days and an increase in the minimum wage to $15 per hour, despite neither being included as recommendations in the Final Report.

It remains to be seen how the Government of Ontario will react and respond to the Final Report. All indications are that we will find out soon and we will provide further updates.

In the interim, the Labour and Employment Group at McCarthy Tétrault LLP has reviewed the Final Report and released a paper titled The Changing Workplaces Review & the Potential Effects on Employers.  If you would like a copy of this paper, or have any questions about the Changing Workplaces Review and how it will impact your workplace, do not hesitate to contact Tim Lawson or Matthew Demeo, or any lawyer in our Ontario Labour and Employment Law Group.

 

Occupational Health and Safety Legislation and Manslaughter Charges – An Important Reminder for Employers and Supervisors

Posted in Ministry of Labour, Occupational Health and Safety
Justine LindnerPeter BradyBen Ratelband

On October 31, 2016, the Québec Superior Court issued its decision in R v. Fournier, concluding that a business owner’s breach of occupational health and safety legislation supports his committal to trial on a charge of manslaughter under the Criminal Code.

The circumstances leading to this decision began on April 3, 2012, when a worker replacing a sewer line in a trench died due to the collapse of the trench walls.

Mr. Fournier, the owner of the business employing the worker, was personally charged and committed to trial for (1) criminal negligence causing death under section 220(b) of the Criminal Code and (2) involuntary culpable homicide (also commonly referred to as manslaughter) under section 222(5)(a) of the Criminal Code.

During the preliminary inquiry, the prosecution led evidence to show that the walls of the trench were not supported and that the material excavated to create the trench was deposited too close to the opening of the trench. The judge at the preliminary inquiry found that the evidence demonstrated that the employer’s obligation to take reasonable measures to ensure worker health and safety, and in particular, to secure the walls of an excavation or trench, were not met.

Criminal Negligence Charge

Many employers will have heard of Bill C-45, legislation which first came into effect in 2004 to amend the Criminal Code. Among its amendments to the Criminal Code, Bill C-45 imposed the legal duty on persons directing work to take reasonable steps to prevent bodily harm to the person performing the work, or any other person, arising from the work or task. Bill C-45 also contained provisions allowing for organizations and representatives to be charged with negligence and other offences. Section 220(b) of the Criminal Code, under which Mr. Fournier was charged, provides that “every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable to imprisonment for life”. To date, there have not been many prosecutions of organizations or their representatives relating to workplace health and safety under the criminal negligence provisions in the Criminal Code.

Mr. Fournier did not contest the decision of the judge at the preliminary inquiry to commit him to trial on the charge of criminal negligence causing death.

Manslaughter Charge

Section 222(5)(a) of the Criminal Code, under which the second charge was brought against Mr. Fournier, provides: “a person commits culpable homicide when he causes the death of a human being by means of an unlawful act”.  The penalty for manslaughter is similarly that the person is guilty of an indictable offence and liable to imprisonment for life. The significant issue for employers and supervisors to take away from this decision is that the prosecution relied on Mr. Fournier’s violations of occupational health and safety legislation as the “unlawful act” to trigger the application of this provision of the Criminal Code.

Mr. Fournier challenged the decision of the judge at the preliminary inquiry to commit him to trial under section 222(5)(a), arguing that, contrary to the judge’s decision, the breach of occupational health and safety legislation is not an “unlawful act” that can support the committal to trial on this charge. The concern raised by Mr. Fournier is that the provisions of the occupational health and safety legislation are “strict liability” offences.

When alleged breaches of occupational health and safety legislation are prosecuted outside the criminal law context, the Crown only has to prove beyond a reasonable doubt that the accused was responsible for the actions leading to the breach of the legislation for the accused to be found liable. In the normal course, the accused then has the burden to prove, on the balance of probabilities, that he is not liable because he has satisfied the requirements of the due diligence defence, taking all reasonable steps in the circumstances to avoid or prevent the occurrence of the prohibited act. However, in a criminal matter, the Crown must prove the guilt of the accused beyond a reasonable doubt and the burden of proof would not flip to the accused as it would in a typical prosecution under occupational health and safety legislation.

The Québec Superior Court agreed with the judge at Mr. Fournier’s preliminary inquiry and supported the committal to trial, setting out the burden of the prosecution where the charge of manslaughter is based on an underlying strict liability offence to prove each of the following elements beyond a reasonable doubt:

  1. The accused committed a strict liability offence which was objectively dangerous.
  2. The conduct of the accused constitutes a marked departure from the conduct of a reasonable person in the same circumstances.
  3. Having regard to all the circumstances, a reasonable person would have foreseen the risk of bodily harm.[1]

Applying this test to the evidence presented at the preliminary inquiry, the Québec Superior Court concluded that the evidence was sufficient for a committal to trial, finding:

  1. The contravention of the obligation to firmly brace the walls of an excavation established in section 3.15.3 of the Security Code constitutes a strict liability offence under section 236 of the OHSA. This offence is objectively dangerous.[2]
  2. Failure to comply with this obligation is a marked departure from the conduct of a reasonable person.[3]
  3. A reasonable person should have foreseen the risk posed by the failure to put a solid brace in place.[4]

While the court suggests that the standard of demonstrating a “marked departure from the conduct of a reasonable person” requires the Crown to demonstrate more than just a breach of occupational health and safety legislation (as would be the regular course in a prosecution of that breach in provincial offences court), it is not clear from the decision what evidence presented by the Crown during the preliminary inquiry met that higher burden to support this finding.

What Does This Decision Mean for Employers and Supervisors?

The decision of the Québec Superior Court underscores that the potential criminal liability for employers and supervisors is not only found under the criminal negligence provision brought in by Bill C-45. While the decision does not create new law, it does establish potential criminal liability for workplace accidents through a previously unused avenue – a violation of a provincial health and safety statute as an unlawful act to support a manslaughter charge.

We continue to see increasing public statements and political advocacy by Unions and other organizations supporting workers for the police and prosecutors to more readily embrace and use the Criminal Code in serious workplace accidents and fatalities. Consequently, employers, supervisors and their legal counsel should be mindful of this avenue of risk going forward.

It is unclear how the court will address the due diligence defence at a criminal trial given that the accused bears the burden of proving a due diligence defence on a balance of probabilities in a typical prosecution under occupational health and safety legislation, but that in a criminal trial, the burden of proof must remain with the Crown. This issue will eventually need to be addressed by the courts.

In any event, this decision provides employers and supervisors with yet another reason to ensure compliance with occupational health and safety legislation and to fully document and, where appropriate, increase training and other due diligence efforts.

If you have any questions about this decision or occupational health and safety matters generally, please contact any member of our Labour & Employment Group.

 

[1] R. v. Fournier, 2016 QCCS 5456, para. 80

[2] R. v. Fournier, paras. 83-84.

[3] R. v. Fournier, para. 85.

[4] R. v. Fournier, para. 86.