CITATION: Sinai v. Ontario (Commissioner), 2010 ONSC 8025
DIVISIONAL COURT FILE NO.: 478/08
DATE: 2010-11-17
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McCombs, Swinton and Wilton-Siegel, JJ.
BETWEEN:
BENJAMIN SINAI
Jill R. Presser, for the Applicant Benjamin Sinai
Applicant
- and -
COMMISSIONER D.G. CARR AND LIEUTENANT GOVERNOR BY AND WITH THE ADVICE AND CONCURRENCE OF THE EXECUTIVE COUNCIL AND THE LEGISLATIVE ASSEMBLY FOR THE PROVINCE OF ONTARIO AND THE ATTORNEY GENERAL OF ONTARIO
Gavin MacKenzie and Trevor Guy, for Commissioner Carr
Sara Blake, for the Attorney General of Ontario
Respondents
HEARD at Toronto: May 20, 2010
McCombs J.
THE APPLICATION
[1] Mr. Benjamin Sinai is a former Justice of the Peace. He applies for judicial review of the March 7, 2008 report of Commissioner D.G. Carr and the August 21, 2008 Order in Council removing him from office. He seeks an order quashing the Commissioner’s report and the Order in Council. For the reasons that follow, I would dismiss the application.
OVERVIEW
[2] On January 15, 2008, a public Commission of Inquiry was held before Mr. Justice D.G. Carr of the Ontario Court of Justice to inquire into two allegations of judicial misconduct, both in-court and out-of-court, against Justice of the Peace Sinai[^1]. Commissioner Carr found both allegations to be substantiated and recommended that Justice of the Peace Sinai be removed from office. The Lieutenant Governor in Council accepted the recommendation and he was removed from office by Order in Council dated August 21, 2008[^2].
[3] Mr. Sinai (“the applicant”) does not dispute the Commissioner’s findings of judicial misconduct, but submits that his recommendation of removal from office and the Order in Council giving effect to it were unreasonable in the circumstances. Moreover, he submits fresh evidence and argues that in light of the constellation of factors, including the fresh evidence, the recommendation for removal must be viewed as unreasonable.
BACKGROUND
[4] Mr. Sinai was a Justice of the Peace for over 24 years. He presided in the northeast region of Ontario and lived in North Bay.
A. The In-Court Misconduct Complaint
[5] The in-court misconduct complaint relates to proceedings on September 6, 2005 when Mr. Brian Lashbrook, who was self-represented, appeared before the applicant on three charges under the Highway Traffic Act. The transcript[^3] shows that when Mr. Lashbrook advised the court that he did not know what his options were, Justice of the Peace Sinai replied:
THE COURT: Well, you have come into court without knowing anything. Do you expect us to give you a whole education on what is to transpire?
Mr. Lashbrook: I’ve never been in court before.
THE COURT: But you did not find out from anybody what you were supposed to do prior to getting here?
Mr. Lashbrook: No.
THE COURT: So in that case, I am just going to tell you suppose you plead guilty and we get rid of it this morning.
Mr. Lashbrook: Okay.
[6] Other portions of the transcript raised concerns that Mr. Lashbrook was not given an opportunity to comment on the facts alleged by the prosecution, or advised about what submissions might assist him with respect to sentencing.
B. The Out-Of-Court Misconduct Complaint
[7] The out-of-court misconduct complaint arose after the applicant had been formally notified on January 3, 2006 by the Justices of the Peace Review Council (“the Review Council”) that it had commenced an investigation of his in-court treatment of Mr. Lashbrook.
[8] A brief background summary is necessary to put the out-of-court misconduct complaint into perspective.
i. The indefinite leave of absence due to illness
[9] While the initial in-court misconduct investigation that began in early January, 2006 was still underway, the applicant notified the office of Regional Senior Justice of the Peace Jane E. Forth in mid-March, 2006, that he would be taking a leave of absence “for an indefinite period” because of illness and stress. When asked to do so, he provided a doctor’s letter citing a number of illnesses and indicating that in “Mr. Sinai’s opinion” his stress causes pain, distraction, lack of concentration and flawed judgment. The doctor’s letter also stated that “it is Mr. Sinai’s opinion that continuing to perform at this ‘substandard’ level reflects poorly on ‘The Administration of Justice’.”[^4]
ii. The inquiries from R.S.J.P. Forth concerning judgments under reserve
a. The First Letter
[10] On May 1, 2006, R.S.J.P. Forth wrote to the applicant. She noted that he was off work on sick leave for an indefinite period and asked that he contact her office and advise whether he would be able to render judgments in two cases that he had under reserve. The two cases were R. v. Wunsch, in which judgment had been reserved for a year and a half, and R. v. North Bay Hospital, a complex case involving ten days of court time that had been reserved on October 25, 2005[^5]. R.S.J.P. Forth described R. v. North Bay Hospital as “the most pressing matter”, and concluded that “your assistance in indicating a time line when these matters may be addressed would be appreciated” [^6]. As will be discussed below, the applicant did not reply directly to R.S.J.P. Forth, but instead spoke to her administrative assistant, Ms. Lorna Laforest, whom she had known for many years and with whom he was on a first-name basis.
b. The Second Letter
[11] R.S.J.P. Forth wrote the applicant a second letter a month later, on May 31, 2006[^7], this time asking for a response in writing. The letter noted that the applicant had spoken with R.S.J.P. Forth’s administrative assistant, Ms. Laforest, with respect to his “position regarding the outstanding judgment re: R. v. North Bay General Hospital”.
[12] The letter went on to state:
That position is not totally clear to me, and as a result I request that you advise the undersigned in writing, as to whether or not you feel you will be able to render a judgment in this matter at some future date.
[13] R.S.J.P. Forth’s letter referred to alternatives available to the Chief Justice - such as a new trial before a different justice - where a presiding justice is unable to continue, and concluded:
If you indicate your position or if you provide a time line when you feel you might be able to address this matter, it will assist all concerned in deciding what course of action to take. This matter is before the court again June 27, next.
A conference call has been arranged with Mr. England and Mr. Blumenthol and myself for June 21st, next.
Please advise in writing by June 15th, setting out you [sic] position.
c. The Applicant’s Responses to the Letters from R.S.J.P. Forth
[14] The applicant’s manner of responding to the two letters formed the basis of the out-of-court conduct complaint[^8]. The complaint had two aspects: that he did not respond in writing about the reserved judgments as requested by his R.S.J.P., and the much more serious allegation that he repeatedly asked R.S.J.P. Forth’s administrative assistant, Ms. Lorna Laforest, to try to persuade R.S.J.P. Forth to “speak to her friend” and use her influence to make the Council investigation “go away”.
THE HEARING
[15] The hearing took one day. It proceeded on the basis of a detailed Statement of Agreed Facts worked out by counsel for the applicant and the Commission[^9]. Ms. Laforest, R.S.J.P. Forth’s assistant, was the only witness called by Commission counsel.
[16] The applicant did not testify nor call any witnesses on his behalf, either on the issue of misconduct or respecting the appropriate recommendation in the circumstances.
[17] The core issues at the hearing were whether the in-court and out-of-court conduct complained of amounted to judicial misconduct. Counsel agreed that the issues to be determined were those set out in the “Notice of Public Hearing” that had been issued by Commissioner Carr[^10]. For convenience, I have reproduced them here:
(i) The Misconduct Allegations
(a) The in-court misconduct
Whether, on September 6, 2005, Justice of the Peace Sinai advised an accused to plead guilty to various traffic offences, failed to afford the accused an opportunity to address the facts or the appropriate sanction, then convicted the accused and adopted the Crown’s submission on sanction.
(b) The out-of-court misconduct
Whether, in May, 2006, after learning that the Justices of the Peace Review Council was commencing an investigation into the matters referred to above, Justice of the Peace Sinai responded to an inquiry from his Regional Senior Justice of the Peace by (i) stating that he would be unable to render two reserved judgments (one of which had been outstanding for a year and a half) unless the Regional Senior Justice of the Peace could make the Justices of the Peace Review Council investigations “go away” and (ii) refusing to speak to the Regional Senior Justice of the Peace or send a letter clarifying his position with respect to rendering judgment in the outstanding matters.
(ii) The Appropriate Disposition Recommendation
Counsel also agreed that if the Commissioner were to find misconduct respecting either of the two issues, the Commissioner would have the responsibility of determining the appropriate disposition recommendation from a spectrum of options ranging from a warning to removal from office[^11].
[18] At the conclusion of his submissions, the applicant’s counsel made submissions to the effect that if the complaints of judicial misconduct were made out, a disposition recommendation other than removal from office was appropriate.[^12]
THE COMMISSIONER’S REPORT
[19] On March 7, 2008, Commissioner Carr released his fifteen-page report[^13]. He found that both allegations of judicial misconduct had been proven and recommended that the applicant be removed from office. I turn now to a discussion of the Commissioner’s report.
(a) In-Court Misconduct Allegations
[20] After reviewing the evidence and the obligations of a judge to ensure trial fairness in every case and in particular to ensure that a self-represented litigant understands his or her options and rights, the Commissioner concluded with the following findings:
Having carefully considered Justice of the Peace Sinai’s conduct in relation to the Lashbrook matter, I am completely satisfied that his actions constitute misconduct, as set out in s. 12(1) of the Justices of the Peace Act. Justice of the Peace Sinai had an obligation to assist Mr. Lashbrook, who clearly had no understanding of the court process. Instead of assisting him, he advised him to plead guilty and chastised him for not being more knowledgeable about his options before the court. Further, Justice of the Peace Sinai did not allow Mr. Lashbrook to comment on the facts, as alleged by the prosecution and did not provide Mr. Lashbrook with sufficient information to properly deal with the matter of disposition. [^14]
(b) Out-Of-Court Misconduct Allegations
[21] The Commissioner found Ms. Laforest to be “a very credible witness”[^15]. He noted that the applicant had never rendered judgment in either of the two cases he had had under reserve; and he noted that the case of R. v. North Bay Hospital, which had consumed ten days of court time, ultimately had to be rescheduled and reheard before a different judicial officer[^16].
[22] In finding that the out-of-court misconduct had been established, the Commissioner stated[^17]:
…part of a judicial officer’s accountability … includes the requirement that timely responses must be made to inquiries by a judicial officer’s supervisor. In this case, Justice of the Peace Sinai never responded directly to Regional Senior Justice of the Peace Forth, despite her insistence that he do so. Indeed, he never even showed the courtesy to speak with her personally, having spoken on two occasions to her Administrative Assistant, Lorna Laforest. He chose instead to rely on his illness, which he indicated would not allow him to write letters.
I find this conduct to be concerning and incompatible with the requirement that a judicial officer be accountable for his actions.
However, I am even more concerned about his comments to Lorna Laforest, indicating that if Regional Senior Justice of the Peace Forth and “her friend” could make the review board “go away”, he would return to work since his stress level would be relieved.
Therefore it is my opinion that the actions of Justice of the Peace Sinai, in his comments to Lorna Laforest and his dealings with Regional Senior Justice of the Peace Forth, clearly constitute misconduct.
(c) Disposition Recommendation
[23] After concluding that the allegations of in-court and out-of-court judicial misconduct had been made out, the Commissioner turned to the issue of the appropriate disposition recommendation. I reproduce his reasons for recommending removal from office[^18]:
Counsel on behalf of Justice of the Peace Sinai submits that even if I find misconduct on the part of Justice of the Peace Sinai, this misconduct is not so grave that a recommendation for removal from office should be made by me. Such a recommendation can only be made if it is determined that Justice of the Peace Sinai has become incapacitated or disabled from the due execution of his office by reason of conduct that is incompatible with the execution of his duties or his office. Counsel submits that I should consider the range of sanctions in s. 12 short of a recommendation for removal.
It is important to note that I have very little information about Justice of the Peace Sinai, other than what I have indicated earlier in this decision. Justice of the Peace Sinai did not testify before me and as I understand it, he is still off on Long Term Disability but hopes to return to work at one point. There is nothing before me indicating when Justice of the Peace Sinai could return to work nor is there any information about the treatment or counseling he has taken, if any, or the prognosis for the illnesses, which have been described by his doctor, Dr. O’Donnell. Additionally, no letters of reference have been filed on his behalf nor have witnesses been called to attest to his good character.
In considering the appropriate disposition, I am clearly mindful that the purpose of judicial discipline in the Justices of the Peace Act is to rectify misconduct and restore public confidence in the administration of justice.
However, in my view, the conduct of Justice of the Peace Sinai, both in court and out of court considered separately and cumulatively, is incompatible with the due execution of the duties of the office of the Justice of the Peace, and has brought the administration of justice into disrepute.
Therefore, the only disposition that can properly deal with this matter is a recommendation that Justice of the Peace Sinai be removed from office. Only this disposition would restore public confidence in the administration of justice in my mind.
In dealing with Mr. Lashbrook, Justice of the Peace Sinai clearly failed to recognize the obligations that he owed to an unrepresented individual, who was clearly appearing in court for the first time. Justice of the Peace Sinai did not respond as required to the letter of his supervisor and instead called her administrative assistant suggesting that he would return to work if complaints against him would “go away”. I find this conduct entirely incompatible with the role expected of a judicial officer in this province.
I, therefore, recommend that the Lieutenant Governor in Council remove Justice of the Peace Sinai from office in accordance with s. 8 of the Justices of the Peace Act.
STANDARD OF REVIEW
[24] The parties agree that the standard of review of the Commissioner’s report is one of reasonableness[^19]. A reasonableness review "is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process." As well, the reviewing court must ask whether the decision under review "falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law"[^20].
POSITION OF THE APPLICANT
[25] The applicant does not take issue with the Commissioner’s findings of judicial misconduct. Instead, he asserts that Commissioner’s decision recommending removal from office was unreasonable. He attacks the Commissioner’s removal recommendation on three bases: that the Commissioner failed to consider dispositions other than removal; that he unreasonably failed to consider mitigating factors before recommending removal from office; and that he unreasonably denied procedural fairness by failing to properly consider and apply the principle of proportionality between the applicant’s judicial misconduct and the disposition recommended.
[26] I am unable to accept any of these submissions. I will discuss each of them in turn.
i. Failure to consider disposition recommendations other than removal from office
[27] The Commissioner’s reasons show that he was well aware of his responsibility to consider dispositions other than a recommendation of removal from office and that such a recommendation should be made only as a last resort[^21]. In his reasons, the Commissioner specifically set out the provisions of section 12(3.3) of the Justices of the Peace Act which sets out a list of other options available to the Commissioner. Moreover, the Commissioner had very little information regarding the applicant’s individual circumstances at the time of the misconduct or at the time of the Commission of Inquiry. Nor did the applicant propose a specific sanction that he considered appropriate given the nature of the misconduct and his medical condition. In these circumstances, the absence of a discussion as to why particular lesser sanctions were not adopted does not support the conclusion that the Commissioner failed to consider alternative sanctions.
ii. Failure to consider mitigating factors before recommending removal from office
[28] As for the submission that he failed to consider mitigating factors that were part of the record before him, his reasons as a whole show that he was well aware that the applicant had serious health issues and that he suffered from stress and anxiety that profoundly affected his judgment. To the extent that these were mitigating factors, the Commissioner was clearly aware of them and took them into account. However, as the Commissioner noted, these same factors were relevant to a determination of whether the applicant had become incapacitated or disabled from the due execution of his office by reason of conduct that is incompatible with the execution of his duties or his office.
iii. Failure to properly address the issue of proportionality
[29] Further, I see no merit in the submission that the Commissioner failed to properly address the issue of proportionality between the misconduct proved and the disposition recommended. The Commissioner found that the applicant had engaged in serious judicial misconduct. Understandably, he was especially concerned about the applicant’s out-of-court comments “to Ms. Laforest indicating that if Regional Senior Justice of the Peace Forth and ‘her friend’ could make the review board ‘go away’, he would return to work since his stress level would be relieved”[^22]. This was a finding of very serious misconduct that went well beyond poor judgment and smacked of an attempt to improperly influence the course of the Review Council’s investigation of the applicant’s in-court conduct toward the unrepresented litigant, Mr. Brian Lashbrook.
[30] In addition to the findings of serious judicial misconduct in the required proportionality analysis was the fact, as noted by the Commissioner, that he had very little information about the applicant. The Commissioner pointed out that he understood that the applicant was on long-term disability but hoped to return to work “at one point”. He noted that there was nothing before him to indicate that the applicant was able to return to work, nor any information about his current state of health or whether he had taken any counseling. As well, the Commissioner observed that no character witnesses had testified and that no letters attesting to the applicant’s good character had been filed.
[31] The Commissioner was faced with a situation where the conduct of the applicant was found to be “entirely incompatible with the role of a judicial officer”. He concluded, reasonably in my view, that only a recommendation of removal from office would restore public confidence in the administration of justice. That conclusion cannot, in my view, be said to reflect a failure to consider the proportionality between the proved misconduct and the disposition recommended.
iv. Reasonableness of the Commissioner’s Recommendation for Removal
[32] I conclude that on the basis of the evidence before him, the decision of the Commissioner recommending that the applicant be removed from office was reasonable. It follows that the Order in Council removing the applicant from office was also reasonable.
FRESH EVIDENCE
[33] The applicant now seeks to tender “fresh evidence” on this application for judicial review. The evidence consists of affidavits from the applicant, and from two character witnesses: a friend and former colleague, Justice of the Peace William Brownell, and a friend and neighbor, Cathy Smith.
[34] Counsel for both respondents have consented to the introduction of the fresh evidence, on the basis that additional evidence should not be kept from the court.
[35] Generally, new affidavit evidence is not permitted on an application for judicial review because judicial review is concerned only with the record before the decision-maker, and because an “application for judicial review is not an appeal, a trial de novo, or a rehearing”[^23]. However, where fresh evidence shows jurisdictional error, a breach of natural justice, or where the interests of justice require it, the evidence is exceptionally admissible to supplement the original record under review[^24].
[36] In light of the consent of responding counsel and the seriousness of the consequences of the orders under review, we agreed to receive the material for consideration in respect of the reasonableness of the penalty, subject to consideration of the weight, if any, to be given to it.
[37] I turn now to a discussion of the fresh evidence.
a) The applicant’s affidavit
[38] The applicant’s affidavit addresses a number of issues including the circumstances surrounding his misconduct, statements of remorse and of greater insight into the seriousness of his actions, and a statement that his health has improved greatly, supported by medical reports appended to the affidavit.
[39] The applicant also deposed that his decision not to testify or call evidence was partly because his lawyer approached the case like a criminal trial where the burden of proof is on the Crown, and partly because of concerns he had that his stressed and sick condition would render him unable to express himself properly. He also stated, at para. 24:
I take responsibility for my decisions not to call character evidence, not to call medical evidence, and not to testify myself. I did not appreciate at that time that, without my explanations and apologies with respect to the complaints against me, my side of the story would remain unappreciated by the Commissioner. I now see the calling of evidence at my hearing as the road not taken, the one I wish I had taken.
[40] This is not a case in which the applicant alleges that his legal counsel conducted his defence in an incompetent manner or in which the applicant alleges that he did not understand the defence that his legal counsel put forward on his behalf.
b) The Evidence of Good Character
[41] The affidavits of Justice of the Peace Brownell and Ms. Cathy Smith attest to the applicant’s fine character. They both describe the effect that his personal problems have had on his health; they both confirm his statements of remorse and regret; and they both assert that he is apparently now in good health and able to resume his responsibilities as a Justice of the Peace.
DISCUSSION
[42] As the Commissioner noted in his reasons, the purpose of discipline in the circumstances of the applicant’s misconduct is to restore public confidence in the administration of justice. Where fresh evidence relevant to sanction is admitted on judicial review, the applicant has the onus of demonstrating that the penalty imposed was unreasonable, given all the evidence before the Court, when considered against the purpose of the penalty. The applicant has not satisfied this onus.
[43] The fresh evidence regarding the improved state of the applicant’s health and regarding his character does not persuade me that the penalty was unreasonable given the acknowledged misconduct and the purpose of discipline in such circumstances. The applicant’s expressions of remorse and regret can fairly be viewed as belated in the extreme. The tardiness of his now-unqualified apology reveals a disturbing lack of insight and lack of appreciation of the impact of his misconduct on public confidence in the administration of justice.
[44] I am unable to find anything in the fresh evidence that demonstrates that the Commissioner’s recommendation that the applicant be removed from office was unreasonable or that it should now be viewed as unreasonable in light of the new evidence, given the objective of the restoration of public confidence in the administration of justice. It follows that the Order in Council removing the applicant was also not unreasonable.
CONCLUSION
[45] In the result, I would dismiss the application for judicial review.
[46] The respondents do not seek costs. In the circumstances I would make no order as to costs.
J. D. McCombs J.
K.E. Swinton J.
H.J. Wilton-Siegel J.
Released: November 17, 2010
CITATION: Sinai v. Ontario (Commissioner), 2010 ONSC 8025
DIVISIONAL COURT FILE NO.: 478/08
DATE: 2010 11 17
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McCOMBS, SWINTON & WILTON-SIEGEL JJ.
BETWEEN:
BENJAMIN SINAI
Applicant
and
COMMISSIONER D.G. CARR AND
LIEUTENANT GOVERNOR BY AND
WITH THE ADVICE AND
CONCURRENCE OF THE EXECUTIVE
COUNCIL AND THE LEGISLATIVE
ASSEMBLY FOR THE PROVINCE OF
ONTARIO AND THE ATTORNEY
GENERAL OF ONTARIO
Respondents
REASONS FOR JUDGMENT
The Court
Released: 2010 11 17
[^1]: Pursuant to an Order in Council dated June 27, 2007, on the recommendation of the Justices of the Peace Review Council pursuant to s. 12(1) of the Justices of the Peace Act, R.S.O. 1990, c. J.4 (Statement of Agreed Facts, Supplementary Application Record, Tab D, p. 40).
[^2]: Order in Council, Record of Proceedings, Tab A.
[^3]: Reproduced at p. 5-6 of the Commissioner’s Reasons (Record of Proceedings, Tab B p. 9-10)
[^4]: Statement of Agreed Facts, Record of Proceedings, Tab D-8, and see doctor’s letter at Tab 8, Record of Proceedings.
[^5]: Statement of Agreed Facts, p. 35, para. 7 (i) and p. 77 (R. v. Wunsch); p. 38, para. 19, p. 77, and p. 103 (R. v. North Bay Hospital).
[^6]: Statement of Agreed Facts, Record of Proceedings, Tab D-9
[^7]: Record of Proceedings, Tab D-11,
[^8]: Letter from Associate Chief Justice Donald Ebbs of the Ontario Court of Justice, to the Justice of the Peace Review Council, dated June 7, 2006, Statement of Agreed Facts, Supplementary Application Record, Tab D-12; see also, testimony of Lorna Laforest, transcript of Commission of Inquiry, January 15, 2008, pages 10-11, and 22-23.
[^9]: Agreed Statement of Facts, Record of Proceedings, tab C.
[^10]: Commission of Inquiry Report, Appendices 3 & 4, Record of Proceedings, p. 27.
[^11]: Agreed Statement of Facts, Record of Proceedings Tab C, p. 31, Commission of Inquiry Report, Record of Proceedings, Tab B, p. 18.
[^12]: Submissions of Mr. W. Fenton, Transcript of Evidence, January 15, 2008, pages 106 line 5 to 109 line 15.
[^13]: Report of Judicial Inquiry, Record of Proceedings, Tab B.
[^14]: Report of Judicial Inquiry, p. 10 (Record of Proceedings, Tab B, p. 14).
[^15]: Report of Judicial Inquiry, p. 12 (Record of Proceedings, Tab B, p. 16).
[^16]: Report of Judicial Inquiry, p. 11 (Record of Proceedings, Tab B, p. 15)
[^17]: Report of Judicial Inquiry, pages 12 & 13 (Record of Proceedings, Tab B, pages 16 & 17).
[^18]: Report of Judicial Inquiry, pages 14 & 15 (Record of Proceedings, Tab B, pages 18 & 19).
[^19]: Romain v. Ontario (Lieutenant Governor) (2005), 258 D.L.R. (4th) 567 (Div. Ct.) at para. 14;
[^20]: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47
[^21]: Report of Judicial Inquiry, pages 13- 14 (Record of Proceedings Tab B, pages 17-18).
[^22]: Report of Judicial Inquiry, page 13 (Record of Proceedings, Tab B, page 17).
[^23]: 142445 Ontario Ltd. (c.o.b. Utilities Kingston) v. International Brotherhood of Electrical Workers, Local 636, [2009] O.J. No. 2011 per Swinton J. at para. 10 (Div. Ct.)
[^24]: Keepright Workers’ Independent Union et al. and Keeprite Products Ltd. (1980), 29 O.R. (2d) 513 (C.A.).```