COURT FILE NOS.: CR-16-10000325-0000 and CR-16-10000326-0000 DATE: 20160531 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – KEMON EDWARDS Accused
Erin Pancer, for the Crown Magda Wyszomierska, for the Accused
HEARD: May 24, 25,26, 27 & 30, 2016
RULING ON EXPERT EVIDENCE A.J. O’Marra j.
[1] Kemon Edwards is charged in a four count indictment with criminal negligence in discharging a firearm causing bodily harm, and three related possession of a firearm offences. On his trial, the Crown seeks to tender the evidence of two witnesses as experts: Detective Scott Ferguson, Provincial Coordinator of the Firearms Tracing Enforcement Program as to the identification of the characteristics of an armed person in reference to a video surveillance tape of a person alleged to be the accused; and Dr. Robert Gerard, PhD. from the Centre of Forensic Sciences, Chemistry Section with respect to the detection of gunshot residue (GSR) on the clothing of the accused.
Background Summary
[2] On March 6, 2014, a group of males were involved in an argument at the York University Student Centre. The group of males dispersed running in different directions. One of the males was seen running from where the group had been arguing with a handgun in his hand. As students began to flee, pushing away from tables where they sat the male tripped over a chair and fell. The gun discharged as he fell, the bullet striking a female student in her leg. Another student was injured by flying pieces of wood as the bullet passed through a table. The male was seen by witnesses to continue running toward the York University bus lanes. At approximately 10:40 p.m. a 911 call was made to the police.
[3] During the subsequent police investigation an examination of the campus surveillance video showed a male person matching the description of the person carrying the handgun run through the campus and enter Viva Bus No. 5157. The onboard surveillance video from the bus showed the male enter the bus through its middle doors and then to slump backward onto a nearby seat. After putting both hands to the area of his waist he got up and moved in a crouched over position to seats closer to the rear of the bus and laid down, out of sight of the camera. He remained in that position for approximately 10 minutes when at 10:52 p.m. he walked off the bus with his right hand in his coat pocket. He exited the bus before it left from the University bus stop. From the time he entered the bus until he exited he put his hat on, took it off and put the hood of his jacket up over his head.
[4] The Crown provided a 58 second excerpt of the bus video to Detective Scott Ferguson to review to assess whether the person displayed the characteristics of an armed person. The Crown intends to call Detective Ferguson to testify as to the general characteristics of an armed person, but specifically with respect to his assessment as to whether he could identify those characteristics he considers consistent with that of a person carrying a firearm.
[5] Mr. Edwards was arrested March 13, 2014 at a Pizza Pizza store in Toronto. The jacket and pants that he was wearing at the time of his arrest were submitted for examination as to the presence of gunshot residue at the Centre of Forensic Sciences. Subsequent to his arrest, a search warrant was conducted at his residence and a Pittsburgh Penguins baseball cap, similar to the one seen to be worn by the male in the surveillance videos was seized from that location. The hat was submitted for examination for GSR as well. The items were examined by Dr. Robert Gerard who testified that particles of GSR were found on all three articles. He will testify that GSR consists of three elements: lead, antimony and barium. These materials fuse into microscopic particles during the discharge process of the cartridge when fired.
Expert Evidence
[6] In R. v. Mohan, [1994] 2 S.C.R. 9, the Supreme Court of Canada set out four criteria that control the admissibility of expert opinion evidence, later restated in R. v. Abbey, 2009 ONCA 624, [2009] O.J. No. 3534 by the Court of Appeal at para. 80:
- The proposed opinion must relate to a subject matter that is properly the subject of expert opinion evidence;
- The witness must be qualified to give the opinion;
- The proposed opinion must not run afoul of any exclusionary rule apart entirely from the expert opinion rule; and
- The proposed opinion must be logically relevant to a material issue.
[7] In meeting the four prerequisites the court indicated that a cost-benefit analysis should be considered by balancing a number of factors:
- Significance of the issue the opinion addresses;
- Necessity or probative potential of the opinion;
- The reliability of the opinion itself, the subject matter, the methodology, the expert’s expertise, objectivity and impartiality;
- The complexity of the issue: will the jury be able to effectively and critically assess the evidence or abdicate their function;
- Will it protract the proceeding;
- The judge’s power to restrict the scope of the opinion and to provide limiting instructions.
Detective Scott Ferguson and Characteristics of an Armed Person
[8] Detective Ferguson testified on the voir dire that generally all persons who carry firearms, including police officers display general behavioural characteristics that indicate they are carrying a firearm. With respect to persons carrying illegal firearms:
- They will usually conceal it where it is accessible to the person’s dominant hand.
- The most common area for a legal firearm carrier to conceal a firearm is in the waistband area where it will be accessible to the dominant hand or pockets accessible to the dominant hand.
- There are certain body movements and behaviour patterns consistent with armed persons carrying a legal firearm because they rarely utilize a holster. Frequently, the person will touch or brush the area of the concealed firearm to ensure its presence. Such conduct is referred to as a security touch or tap.
- Often the person carrying the illegal firearm will adjust the firearms using a hand or wrist maintaining it in place. Being kept in the waist area, the firearm tends to shift with a movement, due to the weight of the firearm which is generally between one to three pounds.
- Another indicator is the stance of the person when confronted by police. The person carrying an illegal firearm will blade his body with the armed side turned away from view.
- Another indicator is that the person will maintain a stiff or straight arm on the side where the firearm is kept to maintain its position.
- There may also be a protrusions or bulges in the clothing as a result of the concealed weapon.
[9] On viewing and assessing the video tape, Detective Ferguson discussed three indicators or behaviours he considered to be characteristics of an armed person displayed by the person in the video:
- The male’s movement of both of his hands to his waistband area after entering the bus and sitting on the front seats is consistent with security taps or an adjustment to a firearm in the front waistband area;
- As the male ducked down and moved to a rear seat he kept his right arm close to his right side;
- When he exited the bus he kept his right hand in his right coat pocket and right arm close to his side walking toward the exit and as he stepped off the bus.
[10] Detective Ferguson stated that he was of the view the actions were consistent with a person carrying a firearm, although he could not say that the person was carrying a firearm.
[11] Is Detective Ferguson an expert?
[12] The Crown seeks to call Detective Ferguson by as a non-scientific expert. His views with respect to the characteristics of armed persons are based on his training, his training of other police officers, as well as his own policing experiences.
[13] Detective Ferguson has been a police officer since 1991 with 25 years of policing experience. After several years as a Detective Constable in the Major Crime Unit, he became a member of the Provincial Weapons Enforcement Unit where he received training from then Detective Steve Horwood, then Provincial Coordinator of the Provincial Weapons Enforcement Unit in the area of the “characteristics of armed persons”, who received his training from the U.S. Alcohol, Tobacco and Firearms Bureau.
[14] Detective Ferguson was a member of the Firearms Enforcement Unit from 1999-2004 conducting covert investigations and enforcement operations relating to the criminal use of firearms, ammunition, and explosives. In 2001, he served on the Gun Task Force for three months conducting surveillance and arrests of persons carrying and using illegal firearms employing the training he received.
[15] Detective Ferguson lectured to police officers with Detective Horwood for a number of years and continued in that role throughout the remainder of his career to date. Since 2006 he has been responsible for the training of all Toronto Police Service members on the characteristics of an armed person. In 2011, as the Provincial Coordinator for the Criminal Intelligence Services and Firearms Training and Enforcement Program one of the main areas of his training responsibilities has been to teach the characteristics of an armed person to other police services. He has taught the observational considerations to several thousand police officers, provincially, nationally and internationally.
[16] The purpose of the training is to enhance public and police safety by alerting officers to the behaviour of persons who exhibit behaviours that indicate the person may be carrying a firearm. The characteristics are to be considered in view of the totality of the circumstances that give rise to a suspicion the person may be armed. In addition, the training is provided to assist officers to be complete and thorough in articulating an investigative detention.
[17] He has worked with members of the RCMP National Weapons Enforcement Support Team (NWEST) to establish a national standard for the training of characteristics of an armed person. The training is used by many law enforcement agencies, including the RCMP, the OPP, the U.S. Secret Service, the F.B.I., and the ATF.
[18] The defense position with respect to Detective Ferguson is that he is not a properly qualified expert. Counsel contends that he has basically taken a three hour course with Det. Steve Horwood, his predecessor as Provincial Coordinator in 1998-99 and he has repeated it ever since. Although he has lectured about the subject to officers throughout the intervening years he has not published any articles, conducted any research and his views are not supported by any scientific studies. His opinions are based largely on his own limited experience having been on assignment to a Gun Task Force for three months.
[19] On the issue of whether Det. Ferguson is qualified to give opinion evidence on the characteristics of an armed person I find the recent case of R. v. Woodcock, [2010] O.J. No. 1281, aff’d. on appeal, 2015 ONCA 535, [2015] O.J. No. 3786, instructive. The case was quite similar to the matter before this court in my view. There the defence raised the same objections to the qualification of Detective Horwood as an expert.
[20] Detective Horwood, a member of the Toronto Police Service from 1976-2008 and employed by the ATF since 2009, having worked exclusively in the domain of illegal firearms was permitted to testify as to the characteristics of an armed person to give the jury the tools to critically assess a surveillance video to be viewed in that case. However, the Crown was forbade from showing Detective Horwood the video and adducing from him that the accused displayed characteristic of an armed person. On cross-examination, the defence questioned him on his observations of the accused on the video in that case. As a result, the Crown was permitted to play the video for his comment in re-examination.
[21] In Woodcock the defence raised the same objections to the expertise of Horwood, the person who trained Ferguson. He had not published articles on the subject, his views were not supported by any scientific studies, there was no form of quality assurance to evaluate his opinions based largely on his own experience, and he was without academic credentials. The court noted that Detective Ferguson has had extensive experience over his policing experience in conducting investigations, conducting surveillance and effecting of arrests of persons in possession of illegal firearms.
[22] In R. v. Mohan supra at para. 27 the Court made clear that an expert may be a person “who has shown to have acquired special or particular knowledge through study or experience in respect of the matters in which he or she undertakes to testify.”
[23] In R. v. Woodcock, the trial judge stated the following at para. 12:
Expert evidence as to the methods employed to carry illegal firearms is akin to evidence from experienced officers as to practices in the drug trade. In R. v. O. (N), 2009 ABCA 75, [2009] A.J. No. 213, the Alberta Court of Appeal wrote,
- In R. v. Chan (1993), 145 A.R. 309 at para. 9, this court summarized the “rule of the admissibility of expert evidence” as follows, citing R. v. Marquard, [1993] 4 S.C.R. 223:
The only requirement for the admission of expert evidence is that the “expert witness possesses special knowledge and experience going beyond that of the trier of fact”: … deficiencies go to weight, and not admissibility. As stated by Sopinka, Lederman and Bryant, The Law of Evidence of Canada (1992), at pp. 536-537:
The admissibility of [expert] evidence does not depend on the means by which the skill was acquired as long as the court is satisfied that the witness is sufficiently experienced in the subject matter at issue, the court will not be concerned with whether his or her skill was derived from specific studies or by practical training, although that may affect the weight to be given to the evidence.
- It is immaterial how this “special or particular knowledge” or “special knowledge and experience” was acquired: R. v. Rayner, 2000 NSCA 143, 189 N.S.R. (2d) 144. It may be from study or instruction, practical experience or observation; formal study is not a requirement: ibid.
[24] I am satisfied that Detective Scott Ferguson had acquired the necessary special knowledge in the area of illegal firearms and the behaviour or characteristics of those who carry firearms as a result of his training and experience acquired over the past 25 years sufficient to permit him to give evidence as to the characteristics and behaviours of an armed person.
[25] Is his evidence sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence, see: R. v. Abbey, at para 76.
[26] In the cost-benefit analysis, the evidence must be necessary and probative value exceed its prejudicial potential.
[27] On the issue of necessity, the Supreme Court in R. v. Mohan supra at para. 22, stated that the expert opinion must be necessary in the sense that it provides information “which is likely to be outside the experience and knowledge of a judge or jury”.
[28] Is the information provided by Detective Ferguson of assistance to the jurors in drawing their own inferences about the person whose conduct can be observed on the video?
[29] In this instance, the jury would be unaware of such characteristics, being unlikely to have considered the matter in their everyday life experience. Detective Ferguson’s evidence as to what they may consider would put the jurors in the same position as a person trained in such concepts as to what he or she may look for when assessing the totality of circumstances and actions of the person to discern whether a reasonable inference can be drawn that the person is carrying a firearm. With Ferguson’s evidence, the jurors would be able to critically assess the evidence themselves. The concepts are neither complex nor confusing. His evidence, in my view, is necessary to allow the jury to draw inferences it deems appropriate from the factual matrix before it. (See Woodcock at para. 18).
[30] As in Woodcock, in the event that the jury is satisfied that the accused is the person seen entering the bus, flopping down onto a seat and touching his waist area, moving to the rear in a rear seat in a crouched position with his right arm held close to his side, and exiting the bus 10 minutes later with his hand held in his right pocket and arm close to his side, they can draw their own conclusions about the significance, if any of the evidence in the context of all the other evidence.
[31] The jury will be able to critically assess the evidence. The evidence is not confusing or complex, nor will it consume undue time in the conduct of the trial.
[32] Defence counsel contends that the officer’s evidence should be excluded on the same basis as in R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272. In that case, the accused testified that he was unaware that 1.5 million dollars of powder cocaine had been hidden in a secret compartment in the truck he attempted to drive across the U.S-Canada border. The Crown called a police officer with 33 years’ experience and involvement in over 100 drug cases as an expert to testify that in all of his experience he had never encountered a blind courier – that is a courier, who did not have knowledge of what he or she was transporting.
[33] The court held that the opinion was legally irrelevant. The officer opining about the knowledge of other accused the officer had encountered in his career had no legal relevance to the guilt or innocence of the accused in that case. Such testimony would have no probative value as to whether Sekhon had knowledge of the hidden cocaine.
[34] Counsel argues that if Ferguson is permitted to comment on the video in the manner proposed it would have the same effect as in Sekhon. He would be commenting on the ultimate issue, rather than assisting the trier of fact in assessing the behaviours exhibited in the video.
[35] In my view, there is some danger with the officer commenting directly on his observations of the video that the person displays characteristics consistent with being armed, to verge on jury’s role of addressing the ultimate issue as to whether the person, if identified as the accused possessed a firearm. It has the potential to displace the jury’s own inferential assessment by them in deference to the officer’s opinion as an expert.
[36] Detective Ferguson may be qualified as an expert to outline the behavioural characteristics of an armed person in general to assist the jury in its own observation and assessment of the bus video as to whether the person in the video, if identified as the accused, displays the characteristics consistent with that of an armed person. However, he is not to view the tape in the presence of the jury or offer his analysis, or comment on its content. In my view that will obviate the concern addressed in Sekhon.
[37] The Crown submitted that should Detective Ferguson not be permitted to comment on the content of the video she intended to call the officer, who during the investigation, first viewed the bus video to lead his observations as to the actions of the person on the bus, based on his training, likely from Det. Ferguson, as to the characteristics of an armed person. In my view, to permit such evidence would be tantamount to a surrogate witness testifying in the place of Det. Ferguson. The same risk of prejudicial potential would arise. If the officer is called to introduce the video he shall not be permitted to comment on the characteristics observed.
Dr. Gerard and the GSR Results
[38] The defence does not contest the expertise of Dr. Gerard to give an opinion on the composition, detection and mechanism of dispersal of GSR. The defence, however, contends that that the court should restrict his evidence to what he detected and the manner of transfer, but not speak in terms of the significance of the number of particles found on the articles examined or to comment on the percentage rate of particle transfer, based on an unpublished study he and others at the Centre of Forensic Sciences have conducted recently.
[39] In this instance, Dr. Gerard testified that on examination of the accused’s clothing, after sampling and using an electron microscope, he discerned one particle of GSR on the pants, four particles of GSR on the jacket worn at the time of the accused’s arrest, and one particle on the hat, similar to the one seen in the bus video located at the accused’s residence.
[40] Dr. Gerard testified that GSR can be deposited on a person or a person’s clothing in one of three possible ways:
- The person discharged a firearm;
- The person was in close proximity to another person who discharged a firearm; and
- The particles of GSR on another surface were transferred by contact with that surface by the person.
[41] Dr. Gerard testified that based on his examination he could only say that there was the presence of GSR on the accused’s clothing. He could not offer an opinion as to how or when those particles had been deposited on the accused’s clothing.
[42] The defense position with respect to Dr. Gerard is that even though he is an expert with respect to the detection of GSR, in this instance, he is unable to assert that the GSR came from a recently discharged firearm and not simply as the result of contamination from an innocent source. He can offer no opinion as to the source of the deposit of GSR on the accused’s clothing.
[43] However, there is a significant source of potential contamination, so significant that had he been aware he would have refused to examine two of the items submitted – the accused’s jacket and his pants. One of the officers involved in the arrest of the accused had his annual use of force training during which he spent approximately half a day in the open firing range on the day of the arrest March 13, 2014 qualifying with his sidearm.
[44] Detective Mark Haljast testified on the voir dire that he spent approximately half a day firing his pistol, discharging approximately 200 rounds of ammunition in an open range at the Police College with several other officers also attending use of force training. As a plainclothes officer he wore plain clothes, his safety vest and duty belt. After participating in his re-qualification, he assisted in cleaning up the spent cartridges in the range. He went to the clean room where he cleaned his sidearm was by using brushes and cloths provided there. His firearm was then deposited in a slot in a trolley which was removed to the Armoury where again it was cleaned, oiled and repaired if necessary. At the end of his training the pistol was returned to him.
[45] Staff Sergeant David Gillis who is in charge of the training of the officers during a use of force testified that the firing range, although open is vented with fans pursuant to Health and Safety requirements operated to remove the GSR (specifically lead) particulates from the air.
[46] Detective Haljast was involved in the arrest of the accused approximately one hour after he completed the shooting requirements of his use of force training. He wore plain clothes and carried his firearm in a plainclothes holster during the arrest. He wore the same clothes, safety vest and carrier as he did during his shooting qualification.
[47] Entered into evidence on the voir dire was a video surveillance tape of the arrest of Mr. Edwards during which numerous officers took Mr. Edwards to the ground in the Pizza Pizza store. One of the officers, Detective Haljast, can be seen to have his hat knocked off, falling into the melee on the floor with the accused. He bent over and was actively engaged in the arrest and handcuffing of the accused. His outer jacket was open and his exposed vest appears to come into contact with another officer, Detective Isabella who took control of the accused after he was handcuffed. Detective Haljast then removed his holstered gun and belt that had come loose from his waist and put it on a nearby table where articles removed from the accused were deposited during his search and later picked up by other officers. Detective Haljast returned his firearm to his waist.
[48] The clothing of the accused worn during the arrest, his pants and jacket, was tested for GSR.
[49] Dr. Gerard in viewing the video of the arrest and in hearing the circumstances of Detective Haljast having qualified on the shooting range the day of the arrest, was of the view that there was a risk of contamination in those circumstances. Had he known what happened he would have declined the examination of the accused’s pants and jacket.
[50] Later that day Detective Isabella attended to execute the search warrant at the accused’s residence. Prior to conducting the search he removed his outer jacket and vest, the one worn during the arrest of the accused, and put on latex gloves to conduct the search. Detective Isabella located the hat, which was subsequently put in a paper bag and transported for examination for GSR. Dr. Gerard was of the view that in those circumstances it was less likely that there was contamination. He would still have conducted the testing of the hat.
[51] In my view, this case is very much similar to that of R. v. Stevenson, [2009] O.J. No. 6466, aff’d by the Court of Appeal R. v. Stevenson, [2014] O.J. No. 5645; leave to appeal dismissed by the Supreme Court of Canada R. v. Stevenson, [2015] S.C.C.A. No. 37. In that case the defense argued that the possibility of contamination must inform the assessment of the probative value of the evidence and the weighing of its prejudicial effect. However, as the trial judge noted, the issue of contamination does not affect the validity of the evidence as being evidence of GSR. It only affects the weight to be accorded to the presence of GSR by the jury, and therefore its assessment of whether the GSR results are probative as to the identity of the shooter.
[52] The possibility of gunshot residue transference is part of the fact finding process to be conducted by the jury. The trial judge stated: “In the end result, therefore, the issue of contamination is for the jury to assess.”
[53] I do not agree with counsel’s submission that the risk of contamination presented by the circumstances of the accused’s arrest negates the possibility of the discharged of a firearm as being a potential source of the GSR such that the witness should be prevented from testifying as to the detection of GSR on the pants and jacket.
[54] The Court of Appeal in Stevenson observed at para. 77:
The GSR evidence was one brick in the Crown’s evidentiary wall. Alone, it could not connect the appellant with the discharge of a firearm. Dr. Gerard readily acknowledged the limits of the evidence. However, the jury could, after considering the evidence of the possibility that the GSR was transferred from another source and the body of evidence implicating the appellant as the killer, conclude that the GSR on the appellant’s hands and clothing was explained by his recent discharge of a firearm.
[55] In this instance, as in Stevenson, the jury will be directed that the expert, Dr. Gerard, cannot offer an opinion as to how the GSR came to be on the accused’s clothing. Just as it will be directed to consider all the circumstances for the potential of contamination in its fact-finding process. The circumstances of the risk of contamination present in this case will no doubt be fully explored and laid before the jury to consider in its assessment.
[56] Counsel argued that the timing of the collection distinguishes Stevenson from this case – the collection of GSR from hands and clothing within hours of the shooting as opposed to GSR collection one week after the fact.
[57] Dr. Gerard testified that the greater the passage of time the more likely there will be loss of particles, or possible contamination if exposed to surfaces with GSR present. The issue of contamination does not affect the validity of the evidence that GSR was detected. The potential for contamination affects the weight to be accorded to the evidence by the jury and its assessment of whether the results are probative of the identity of the person who discharged the firearm. Considering the possibilities of how GSR came to be deposited on the clothing of the accused is part of the fact-finding process of the jury.
[58] As noted by the Court of Appeal this is not the kind of scientific expert opinion evidence that could be given an exaggerated importance by the jury. This is a case in which GSR was detected on the clothing of the accused, which is all Dr. Gerard can testify to. How or when it got there is beyond the expertise of Dr. Gerard. He can offer no opinion on that matter. However, he can comment on the risk of contamination from potential exculpatory sources, in relation to the jacket and pants, based on the circumstances of the arrest of the accused, and the hat, located later at the residence of the accused.
[59] I see no basis to limit the expert’s comments as to the significance or lack of significance as to the number of particles detected on examination of the articles based on his experience as a forensic scientist examining articles for GSR.
[60] However, I am prepared to limit Dr. Gerard’s evidence with respect to opining as to the percentage of GSR particle transfer from one source to another, other than there would be some diminution of particle transfer based on the nature and characteristics of such particulate.
[61] On the voir dire, his evidence as to the diminishing percentages of particle transfer from a source with a high concentration of GSR to a surface with no GSR was based on his research with others at the CFS, a study which has not been submitted for peer review or reported to the scientific community. Indeed, in cross-examination Dr. Gerard indicated that subject to peer review the report may be subject to revisions. Further, because it has not been finalized, he could not provide even a draft outlining the methodology used. I agree with counsel that the defence would not be able to properly consider his evidence or challenge it in the absence of the availability of the final peer-reviewed study.
[62] That is not to say Dr. Gerard cannot comment, based on his scientific experience, generally that only some or no GSR may be transferred from one source to another on contact.
A.J. O’Marra J.
Released: May 31, 2016
APPENDIX A
| Case Name | Age | Tenure | Position | Salary | Damages |
|---|---|---|---|---|---|
| Garner v. Bank of Nova Scotia, 2015 NSSC 122, [2015] N.S.J. No. 166, Plaintiff’s BOA Tab 4 | 59 | 35 years | Branch Manager | $105,000 | 24 months |
| Bolibruck v. Niagara Health System, [2015] O.J. No. 1074, Plaintiff’s BOA Tab 5 | 30 years | Program Director | $127,000 | 24 months | |
| Lee v. Bank of Nova Scotia, [2004] O.J. No. 3505, Plaintiff’s BOA Tab 6 | 57 | 29 years | Auditor | $41,100 | 26 months |
| Hussain v. Suzuki Canada Ltd., 2011 CarswellOnt 12251, Plaintiff’s BOA Tab 7 | 65 | 36 years | Assistant Warehouse Supervisor | $49,000 | 26 months |
| Brien v. Niagara Motors Ltd., 2009 ONCA 887, Plaintiff’s BOA Tab 8 | 51 | 23 years | Office Manager | 24 months | |
| Chorny v. Freightlined of Canada Ltd., [1995] B.C.J. No. 51, Plaintiff’s BOA Tab 9 | 56 | 28 years | Regional Manager | $149,000 | 24 months |
| Lowndes v. Summit Ford Sales Ltd., , [2006] O.J. No. 13, Plaintiff’s BOA Tab 10 | 59 | 28 years | General Manager | $69,000 | 24 months |
| Mitchell v. Wesburne Supply, [2000] A.J. No. 246, Plaintiff’s BOA Tab 11 | 57 | 28 years | Manager | $88,000 | 24 months |
| Knox v. Interprovincial Engineering, [1993] N.S.J. No. 103, Plaintiff’s BOA Tab 12 | 50 | 27 years | Acting General Manager | 24 months | |
| Johnson v. Marine Roofing Repair & Maintenance, 2015 BCSC 472, Plaintiff’s BOA Tab 13 | 65 | 24 years | Manager | $134,000 | 24 months |
| Fraser v. Kelowna, , [1993] B.C.J. No. 1740, Plaintiff’s BOA Tab 14 | 59 | 23 years | Manager | $54,000 | 24 months |
| Blackburn v. Victory Credit Union Ltd., [1997] N.S.J. No. 297, Plaintiff’s BOA Tab 15 | 51 | 32 years | Manager | $45,000 | 24 months |
| Bell v. Izaak Walton Killam Hospital for Children, [1986] N.S.J. No. 504, Plaintiff’s BOA Tab 16 | 54 | 26 years | Director | 24 months | |
| Kerr v. Canada Alloy Castings, [2000] O.J. No. 5169, Plaintiff’s BOA Tab 17 | 62 | 33 years | Local President | $96,000 | 24 months |
| Cowper v. Atomic Energy of Canada Ltd., [1999] O.J. No. 2021, Plaintiff’s BOA Tab 18 | 60 | 35 years | Senior Manager | $95,000 | 24 months |
APPENDIX B
| CASE NAME | AGE | LENGH OF SERVICE (YEARS) | CHARACTER OF EMPLOYMENT | NOTICE PERIOD (MONTHS) |
|---|---|---|---|---|
| Deschenes v. Metal Shapes Mfg. Incorporated, 2005 CarswellOnt 42 (Ont. S.C.) | 58 | 30 years | “Responsible position as part of the management team” | 18 |
| Novakowski v. Canadian Linen & Uniform Service Co., 2015 ABQB 53, 2015 CarswellAlta 69 (Alta. Q.B.) | 63 | 30 years | General Manager | 19 |
| Johnson v. Top-Co LP, 2009 ABQB 731, 2009 CarswellAlta 2095 (Alta. QB) | 53 | 34 years | Production Manager | 20 |
| Wright v. Kimberly-Clark Canada Inc., 1995 CarswellOnt 455 (Ont. S.C.) | 56 | 30 years | District Superintendent Human Resources | 20 |
| Burry v. Unitel Communications Inc., 1997 CarswellBC 2742 (B.C.C.A.) | 51 | 33 years | Project Manager/System Engineer | 20 |
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN – and – KEMON EDWARDS Respondent RULING ON EXPERT EVIDENCE A.J. O’Marra J. Released: May 31, 2016