





CITATION: Ontario
      (Labour) v. Enbridge Gas Distribution Inc., 2011 ONCA 13





DATE:  20110107



DOCKET: M38813



COURT OF APPEAL FOR ONTARIO



Watt J.A. (In Chambers)



BETWEEN



Her Majesty the Queen (Ontario Ministry of Labour) and
          Her Majesty the Queen (Technical Standards and Safety Authority)



Respondents



and



Enbridge Gas Distribution Inc. and Precision Utility
          Limited



Moving Parties



Cynthia R. C. Sefton and David S. Reiter, for Enbridge Gas



Frank Crewe, for Precision Utility Limited



David R. McCaskill and Alexandra Bednar, for the Ministry of
          Labour



Thomas Ayres, for the Technical Standards and Safety Authority



Heard: August 26, 2010



On an application for leave to
          appeal under ss. 131(1) and (2) of the
Provincial Offences Act
, R.S.O.
          1990, c. P. 33 from the decision of Justice Denise E. Bellamy of the Superior
          Court of Justice on April 14, 2010, allowing an appeal from the judgment of
          Justice Mary L. Hogan of the Ontario Court of Justice, dated October 25,
          2007.



Watt J.A.:



[1]

Explosions damage and destroy things. Sometimes, their victims are
    people. Like here. An explosion damaged and destroyed several buildings. Hurt
    some people too. And killed others. This explosion was preventable. If only...

[2]

A contractor using a backhoe displaced a natural gas pipeline. Natural
    gas crept into the basement of a two-storey commercial plaza. A source of
    ignition entered the mix. An explosion and fire followed. Buildings were
    damaged and destroyed. People were injured. And seven people were killed.

[3]

During the year following the explosion, prosecutions under provincial
    safety legislation began against three companies. The contractor whose employee
    displaced the pipeline. The utility that owned the pipeline. And a company with
    which the utility had contracted to provide accurate information to the
    contractor about the location of pipelines in the area that was to be
    excavated.

[4]

The charges against the companies, contained in separate informations,
    were tried together. The contractor entered a plea of guilty during the prosecutions
    case-in-chief, was ordered to pay a substantial fine and victim fine surcharge,
    and disappeared from the proceedings.

[5]

When the prosecutions case had been completed, the utility and locator,
    without indicating whether they proposed to adduce evidence in their own
    defence, sought dismissal of the charges on several grounds. The trial judge,
    who characterized the application as a motion for a directed verdict of
    acquittal, granted the application and dismissed the charges.

[6]

The prosecutors appealed the trial judges decision to the Superior
    Court of Justice. A judge of that court allowed the appeal, set aside the
    dismissals and ordered a new trial on all charges.

[7]

The utility and locator seek leave to appeal under ss. 131(1) and (2) of
    the
Provincial Offences Act
, R.S.O. 1990, c. P. 33 (
POA
). For the
    reasons that follow, leave to appeal is refused.

THE BACKGROUND FACTS

[8]

The nature of the proposed grounds of appeal
    does not command any recapture of the circumstances of the tragic aftermath of
    the explosion and fire that occurred at a west-end commercial plaza on April
    24, 2003. But, to place the proposed grounds of appeal in a setting that befits
    them, requires a brief sketch of the circumstances that led to the explosion
    and a bit of procedural history about the prosecution.

The Project

[9]

In April 2003, the City of Toronto undertook a
    major reconstruction of a stretch of Bloor Street West between Kipling Avenue
    and the East Mall. The project involved replacement of the road surface, curbs
    and associated storm drains, and sidewalk reconstruction.

[10]

The construction zone included the area in front
    of a two-storey commercial plaza at 3885-3891 Bloor Street West. To remove the
    existing curb and gutter, as well as the adjacent sidewalk, the excavator used
    a backhoe.

The Principals

[11]

Three companies had a hand in the explosion of
    April 24, 2003. Each had a different role:

the utility:               Enbridge Gas
    Distribution Inc. (Enbridge)

the
    locator:               Precision Utility Limited (PUL)

the
    excavator:           Warren Bitulithic Limited (Warren)

[12]

Enbridge owns a natural gas distribution system.
    As a licence holder under the
Technical Standards and Safety Act
,
    2000, S.O. 2000, c. 16, (the
TSSA Act
) Enbridge is licenced to
    distribute natural gas by the Technical Standards and Safety Authority (TSSA).
    The TSSA is a not-for-profit safety organization and an agency of the
    Government of Ontario.

[13]

Ontario Regulation 210/01, passed pursuant to
    the
TSSA Act
, governs oil and gas pipeline systems. Anyone engaged in an
    activity, use of equipment, process or procedure to which the Act and
    Regulation 210/01 apply must comply with the Act and Regulation. Section 9(1)
    of the Regulation prohibits digging, excavating or breaking ground with
    mechanical equipment without first ascertaining from the licence holder the
    location of any pipeline that may be interfered with. Under s. 9(2) of the
    Regulation, Enbridge, as the licence holder, must provide as accurate
    information as possible on the location of any pipeline within a reasonable
    time in all the circumstances to anyone involved in excavation activities that
    may interfere with the pipeline.

[14]

To discharge their obligation under s. 9(2) of
    the Regulation, Enbridge contracted with PUL, a company that provides
    information to excavators about pipeline locations. The Regulation does not
    provide a specific form for the information about pipeline locations. The
    practice in the industry, however, is one of paint and paper: paint markings
    on the surface of the ground plainly visible to excavators and a sketch of the services
    on paper.

[15]

A scheme similar to that imposed by Regulation
    210/01 under the
TSSA Act
is enacted by Regulation 213/91 passed
    pursuant to the
Occupational Health and Safety Act
, R.S.O. 1990, c. O. 1
    (
OHSA
). Under s. 228(1)(a) of this Regulation, gas services in and near
    an area to be excavated must be accurately located and marked before any
    excavation begins. The employer responsible for the excavation must request the
    owner of the service to locate and mark the service.

[16]

Warren is a road paving and construction
    company. The City of Toronto contracted with Warren to carry out the road and
    related reconstruction of Bloor Street West. Thus, Warren was the
    employerresponsible for the excavation under the applicable
OHSA
Regulation
    and the person involved in the excavation under the governing
TSSA

Act
Regulation.

The Preliminaries

[17]

Warren asked Enbridge to identify and mark its
    underground natural gas pipelines in the area involved in the reconstruction
    before Warren began excavation. Enbridge contracted with PUL to provide the
    necessary information for Warren. PUL assigned one of its employees to locate
    and mark Enbridges pipelines in the area affected by the reconstruction.

[18]

The PUL employee assigned the task of locating
    and marking Enbridges pipelines in the area affected by the reconstruction
    neither identified nor marked a three-quarter inch pipeline into the commercial
    plaza at 3885-3891 Bloor Street West.

The Accident

[19]

Warrens backhoe operator inadvertently struck
    Enbridges unmarked pipeline into the plaza. The displacement dislodged the
    pipe from its fitting attached to the outside wall of the plaza. An unregulated
    flow of natural gas escaped into the basement of the plaza.

[20]

About six to nine minutes after the pipe had
    become dislodged, an unknown source of ignition caused the gas to explode. The
    blast levelled the plaza. The force of the explosion and the ensuing fire
    damaged or destroyed several structures nearby. Seven people were killed,
    several more injured.

The Prosecutions

[21]

In the year following the explosion, both the
    Ministry of Labour and the TSSA commenced proceedings against Enbridge and PUL.
    The TSSA also charged Warren.

[22]

The charges against Enbridge and PUL alleged
    breaches of the
OHSA
and the
TSSA

Act
and their respective
    Regulations arising from the failure to locate and mark for Warren the natural
    gas pipeline into the plaza disrupted by Warrens backhoe operator. The charges
    against Warren alleged breaches of the
TSSA

Act
and the
    Regulation governing gas pipeline systems arising out of Warrens excavation
    without proper information about relevant pipeline locations and damage to the
    pipeline itself.

The Trial Proceedings

[23]

At the end of the prosecutions case-in-chief,
    counsel for Enbridge and PUL, without electing whether to call evidence in
    response to the charges, sought an order dismissing all the charges on the
    ground that the prosecutors had not proven the essential elements of each
    offence beyond a reasonable doubt.

[24]

Enbridge and PUL argued that the prosecution
    under the
OHSA
was barred because the information was not laid within
    the time permitted or required by s. 69 of the Act. Even if the limitations
    period had not expired, the companies argued, the
OHSA
imposed no
    statutory duty on either Enbridge or PUL to provide an accurate locate.
    Neither fell within the scope of the term employer within the
OHSA
,
    thus were not subject to prosecution under the Regulation. The companies
    advanced a similar argument about the applicability of the
TSSA

Act
and
    Regulation, except that no limitations period was applicable to that
    prosecution.

[25]

The application succeeded before the trial judge
    who dismissed all charges against Enbridge and PUL.

The Appeal to the Superior
    Court of Justice

[26]

The Ministry and TSSA appealed to the Superior
    Court of Justice. Bellamy J. allowed the appeal, quashed the order dismissing
    the charges against Enbridge and PUL and ordered a new trial on all charges to
    be held before a judge other than the judge who had presided at the original
    trial.

[27]

Bellamy J. agreed with the trial judge that s.
    69 of the
OHSA
did not bar the prosecution under that Act. The appeal
    judge differed from the trial judge on all remaining issues. Bellamy J.
    concluded that both Enbridge and PUL came within the definition of employer
    in s. 25 of the
OHSA
. Each had a duty to provide accurate information to
    Warren about the location and nature of Enbridges pipeline and failed to
    discharge that duty. The failure to provide
any
information was a
    failure to provide as accurate information as possible under s. 9(2) of the
    Regulation under the
TSSA

Act
. Enbridge failed to ensure that PUL
    provided the necessary information to Warren.

THE APPLICATION FOR LEAVE TO APPEAL

[28]

Enbridge and PUL seek leave to appeal to a panel
    of this Court under s. 131 of the
POA
. In their proposed notice of
    appeal, Enbridge and PUL raised five grounds of appeal. Four duplicate the
    grounds raised on the directed verdict application before the trial judge and
    reiterated before Bellamy J. on the appeal from the dismissal of the charges.
    What is new and different is a claim that Bellamy J. erred in law in permitting
    the prosecutors to resile on appeal from positions they had taken at trial and
    to advance a new basis of liability upon which to obtain a new trial.

[29]

Enbridge and PUL also seek leave to appeal from
    what they contend are errors made by the Superior Court judge in her
    interpretation of the former s. 228(1) of Ont. Reg. 213/91 under the
OHSA
and of s. 9(2) of Ont. Reg. under the
TSSA

Act
. The applicants
    say that the
OHSA
imposed no duty on them to provide accurate
    information about pipeline locations and, under the
TSSA

Act
, the
    failure to provide any information is not the equivalent of provision of
    inaccurate information. They add that Bellamy J. was wrong to have considered a
    subsequent amendment to s. 228(1) of Ont. Reg. 213/91 and to have characterized
    it as a clarification of the former and applicable section.

[30]

Enbridge and PUL also seek leave to appeal to
    re-litigate the applicability of the limitation provisions of s. 69 of the
OHSA
to the prosecutions under that Act in this case.

THE GOVERNING PRINCIPLES

[31]

A brief reminder about the principles that
    govern leave to appeal under s. 131 of the
POA
and explore the
    relationship between a prosecutors theory of liability and the essential
    elements of an offence will help to frame consideration of the proposed grounds
    of appeal.

The Standard for Granting
    Leave to Appeal

[32]

Enbridge and PUL have no appeal as of right to
    this court from the decision of a judge of the Superior Court of Justice. They
    require leave to appeal. To obtain leave to appeal, Enbridge and PUL must meet
    the demands made on them by ss. 131(1) and (2) of the
POA
.

[33]

Section 131(1) of the
POA
contains two
    requirements:



·

special grounds

·

a question of law alone



Both requirements must be
    met. What constitutes special grounds in s. 131(1) is informed by s. 131(2).
    To determine whether special grounds exist, the judge hearing the application
    must consider all the circumstances of the case and determine whether it is
essential




(i) in
        the public interest; or

(ii)
        for the due administration of justice



that leave to appeal be
    granted. An applicant need not satisfy both requirements i and ii. Satisfaction
    of either will do.

[34]

The threshold for granting leave to appeal is
    very high:
R. v. Zakarow
(1990), 74 O.R. (2d) 621 (C.A. - Chrs), at p.
    625;
R. v. Krukowski
(1991), 2 O.R. (3d) 155 (C.A. -Chrs), at p. 159.
    The clear import of the provisions of ss. 131(1) and (2) of the
POA
is
    that the decisions of the Superior Court of Justice, in its appellate capacity,
    are intended to be final in the overwhelming majority of cases:
Krukowski
at p. 159. Reviews of decisions of the Superior Court of Justice are limited to
    exceptional cases where the resolution of a question of law alone may have an
    impact on the jurisprudence in a way that is of interest to the public at
    large, or at least a broad segment of it:
Krukowski
at pp. 159-160.

[35]

Demonstration of error in the judgment below,
    without more, does not satiate the demands of ss. 131(1) and (2). The other
    criteria of the subsections must be met. The error must involve a question of
    law alone, not a question of fact or of mixed fact and law:
Krukowski
at
    p. 159;
R. v. Rankin
(2007), 216 C.C.C. (3d) 481 (Ont. C.A. - Chrs), at
    para. 30. The resolution of the questions of law in the circumstances must be
essential
in the public interest (not merely the interest of the litigants), or for the
    due administration of justice:
Zakarow
at pp. 625-626.

[36]

Grounds of appeal that raise issues of statutory
    interpretation often have application beyond the factual idiosyncrasies of
    individual cases. But simply phrasing the proposed ground of appeal as a
    question of statutory interpretation is not an open sesame to leave to appeal.
    The subject-matter of the statute, as well as the nature and extent of its
    influence on our daily activities, is of importance:
Zakarow
at p. 626.
    The influence of the statute must be such that its interpretation rises to the
    threshold of essential in the public interest or essentialfor the due
    administration of justice:
Zakarow
at p. 626.

[37]

Another appropriate factor of which to take
    cognizance in deciding about leave to appeal is whether the proposed ground of
    appeal involves a matter of first impression or the application of well-established
    principles to the facts of the case:
Rankin
at para. 33.

[38]

Despite the generality of the language of s.
    839(1) of
Criminal Code
which stands in stark relief to the specificity
    of ss. 131(1) and (2) of the
POA
, the decision of this Court in
R. v.
    R. (R.)
(2008), 234 C.C.C. (3d) 463 identifies two factors that can inform
    the meaning to be assigned to the touchstones in s. 131  the significance of
    the proposed question of law to the administration of justice in the province,
    and the strength of the proposed grounds of appeal:
R. (R.)
at paras. 30
    and 37.

The Prosecution Theory,
    Particulars, and Proof of Guilt

[39]

Every offence, whether its origins are criminal
    or regulatory, contains its own essential elements. A finding of guilt of any
    offence may only be made if the prosecutor establishes each essential element
    in the offence to the degree required by the applicable standard of proof. To
    survive an application for a directed verdict of acquittal or a non-suit at the
    conclusion of its case-in-chief, the prosecution must introduce some evidence
    on the basis of which a reasonable trier of fact, properly instructed, could
    find guilt:
R. v. Arcuri
, [2001] 2 S.C.R. 828, at paras. 1, 21 and 26.
    Where the evidence adduced on an essential element or as a whole is circumstantial,
    a judge on a motion for a directed verdict or non-suit must engage in a limited
    weighing of the whole of the evidence to determine whether a reasonable trier
    of fact, properly instructed, could return a finding of guilt:
Arcuri
at
    paras. 29-30.

[40]

The legal standard of proof, proof beyond a
    reasonable doubt, has no direct application on a motion for non-suit or a
    directed verdict of acquittal at the end of the prosecutions case-in-chief.

[41]

In any prosecution, what the prosecutor must
    prove beyond a reasonable doubt are the essential elements of the offence as
    charged and particularized in the charging document. The prosecutor is bound by
    any particulars, voluntarily supplied or court ordered, subject to any rights
    of amendment that may exist under the governing procedural law and the doctrine
    of surplusage:
R. v. Cox and Paton
, [1963] S.C.R. 500, at p. 511.

[42]

In any prosecution, the prosecutor will have a
    theory of the case, usually expressed in opening and closing submissions or
    addresses. But the prosecutors theory of the case is not something that the
    prosecutor is bound to prove in order to establish guilt. The prosecutors
    theory is neither an essential element of the offence, nor a particular
    voluntarily supplied:
R. v. Groot
(1998), 129 C.C.C. (3d) 293 (Ont.
    C.A.), at paras. 14-18;
R. v. Govedarov
(1974), 16 C.C.C. (2d) 238 (Ont.
    C.A.), at pp. 270-71, affd [1976] 2 S.C.R. 308. The prosecutor is bound to
    prove the essential elements of the offence as charged beyond a reasonable
    doubt. Nothing more. Nothing less. See,
R. v. Largie
(2010), 258 C.C.C.
    (3d) 297 (Ont. C.A.), at paras. 158 and 165.

[43]

The prosecutor may modify his or her theory or
    strategy as the trial progresses:
R. v. Pickton
, [2010] 2 S.C.R. 198, at
    para. 19. Trial fairness considerations may intervene and foreclose advancement
    of an alternative basis of liability inconsistent with the way the parties have
    conducted their cases throughout:
Largie
at para. 161;
R. v. Ranger
(2003), 67 O.R. (3d) 1 (C.A.), at para. 162.

[44]

The flexibility that permits the prosecutor to
    adjust his or her trial strategy to meet new or changing circumstances during
    the trial does not entitle the prosecution to shift ground on an appeal from
    acquittal. The prosecutor is not entitled to advance a new theory of liability
    on an appeal from acquittal, nor to raise arguments on appeal upon which the
    prosecution chose not to rely at trial:
R. v. Varga
(1994), 90 C.C.C.
    (3d) 484 (Ont. C.A.), at p. 494;
Wexler v. The King
, [1939] S.C.R. 350,
    at pp. 353-54 and 356-57;
Savard and Lizotte v. The King
, [1946] S.C.R.
    20, at pp. 33-34; 37; and 49.

The Principles Applied

[45]

Each of the proposed grounds of appeal requires
    separate consideration.

Ground #1: The Shifting
    Prosecution Theory

[46]

The first proposed ground of appeal seeks review
    of what is alleged to be a change in the prosecutors theory of the applicants
    liability between trial and appeal. To some extent this complaint is rooted in
    the interpretation of the provisions of s. 228(1) of Ont. Reg. 213/91 adopted
    by the appeal judge. That said, I will consider whether this proposed ground
    warrants leave to appeal independently of any argument about statutory
    interpretation.

[47]

I would not grant leave to appeal on this
    proposed ground. My reasons are several.

[48]

First, it is by no means clear that the basis of
    liability advanced by the prosecutor on the appeal from the dismissal of the
    informations amounted to a new theory of liability or advancement of an
    argument that the prosecutor chose not to put forward at trial. In other words,
    the factual substratum essential to found this argument is, at best,
    controversial.

[49]

Second, the principles involved in the proposed
    ground of appeal are well-settled, beyond dispute at least since the decision
    in
Wexler
over 70 years ago. Their application to the circumstances of
    this case involves a question of mixed law and fact, thus falls outside the
    reach of s. 131(1) of the
POA
.

[50]

Third, even assuming that what is proposed as a
    ground of appeal raises a question of law in the strict sense, it is not one
    that is likely to have an impact on firmly established jurisprudence in a way
    that is of general interest to a broad segment of the public.

[51]

And finally, it is unclear whether the
    applicants response before the appeal judge raised this issue upon which they
    now seek leave to appeal.

Ground #2: The
    Interpretation of Regulation 213/91 under the OHSA

[52]

This proposed ground of appeal raises an issue of statutory
    interpretation of the former and current provisions of s. 228(1) of Ont. Reg.
    213/91 passed pursuant to the
OHSA
.

[53]

The trial and appeal judge disagreed on whether the former s. 228(1)
    applied to the excavator, Warren, only, or extended to Enbridge and PUL. The
    applicability of s. 228(1) to Enbridge and PUL, according to the applicants,
    depends upon whether each is an employer under the
OHSA
.

[54]

Section 228(2) of the former Regulation by which liability is governed
    in this case required Warren to request Enbridge, as owner of the service, to
    locate and mark the service before excavation began. Enbridge contracted with
    PUL to locate and mark the service. The requirement of s. 228(2) that Warren
    request the owner, Enbridge, to locate and mark the service necessarily implies
    a duty on Enbridge, as owner, to do so. Were it otherwise, the service would
    not be located and marked since only the owner has the authority to do so.
    Enbridge plainly recognized this duty: it retained PUL to carry it out. By
    contracting with PUL to supply services, Enbridge became an employer under
    the Act. Likewise, PUL is a contractor who undertook with the owner, Enbridge,
    to perform work or supply services. Thus, PUL is an employer under the Act.

[55]

This proposed ground does not warrant granting leave to appeal. My
    reasons are threefold.

[56]

First, the provisions of s. 228(1) of the Regulation under which this
    case was prosecuted are no longer in force. No other prosecutions under this
    version of the Regulation remain outstanding. It follows that the issues raised
    about its interpretation here do not extend beyond the borders of this case. To
    grant leave to appeal in the circumstances is not essential in the public
    interest or for the due administration of justice.

[57]

Second, the interpretation of the new s. 228(1) is not ripe for decision
    in this case. The new provision does not apply to this prosecution. Its
    interpretation can await a prosecution in which liability falls to be decided
    in accordance with its terms. Nor is there any pressing need to offer
    gratuitous advice about the relationship between the current and former provisions.

[58]

Third, the interpretation imposed upon the former provisions by the
    appeal judge is neither obviously wrong nor of doubtful correctness. Indeed,
    the practical effect of the contrary interpretation favoured by the trial judge
    yields a result that is antithetical to the legislative purpose of the
OHSA
 protection of workers from preventable harm.

Ground #3: The Limitations
    Bar of s. 69 of the OHSA

[59]

The applicants also seek leave to appeal on the
    applicability of s. 69 of the
OHSA
, a limitations provision, to the
    prosecution under the
OHSA
. Upon this issue, the trial and appeal judges
    were in agreement: s. 69 did not bar the prosecution.

[60]

This proposed ground of appeal does not warrant
    leave to appeal. Three factors inform my decision.

[61]

To begin, whether a limitations provision
    applies to bar a particular prosecution, as in this case, has no resonance for
    the general administration of justice. Of surpassing importance to the
    individual litigants, an appellate pronouncement on this issue is
not
essential
    either in the public interest or for the due administration of justice. Readily
    accessible precedent is abundant.

[62]

Next, I consider it highly doubtful whether the
    applicability of s. 69 of the Act to these circumstances involves a question of
    law alone as s. 131(1) of the
POA
requires. What would be involved, at
    least as it seems to me, would be, at best, a question of mixed fact and law:
Krukowski
at p. 159.

[63]

Further, the interpretation rendered by both
    judges below is consistent with the purpose underlying the governing
    legislation, the protection of workers in their workplace, as well as
    controlling precedent.

Ground #4: The
    Interpretation of s. 9(2) of the TSSA Regulation 210/01

[64]

Section 9(2) of Ont. Reg. 210/01, passed
    pursuant to the
TSSA

Act
, imposes an obligation on a licence
    holder, like Enbridge, to provide as accurate information as possible about
    the location of any pipeline. The information must be provided within a
    reasonable time in all the circumstances. Neither the Regulation nor the
    statute insists upon completion of a specific form to provide the required
    information. Industry practice involves both paint, visible location and
    directional marks on the surface to be excavated, and paper, a drawing or
    diagram that identifies the location.

[65]

The Regulation also imports a duty on an
    excavator, in this case, Warren. Before digging, the excavator must ascertain
    from the licence holder (Enbridge) the location of any pipeline with which the
    excavation may interefere.

[66]

The effect of the Regulation is to impose
    correlative duties on the licence holder and the excavator. To provide
    information, as accurate information as possible, about the location of the
    pipeline. And to ascertain, from information provided, the location of the
    pipeline.

[67]

The trial and appeal judge reached different
    conclusions about whether the statutory duty to provide information applied to
    Enbridge and PUL and was breached by a failure to provide
any
information, as opposed to provision of inaccurate information.

[68]

Setting to one side whether this issue was
    properly cognizable on an application for a directed verdict at the end of the
    prosecutors case-in-chief, I would not grant leave to appeal on this ground.

[69]

Although the issue raised in the proposed ground
    of appeal involves the interpretation of a statute concerned with workplace
    safety, the statute is not one with which the general public has daily
    involvement. As the name of the statute attests, the enactment is concerned
    with technical standards to ensure workplace safety in a narrow context.

[70]

Further, the proposed ground of appeal does not
    raise an issue of general importance that takes it beyond the singular facts of
    this case into the category of special grounds, either as essential in the
    public interest or essential for the due administration of justice.

[71]

Finally, the interpretation given by the appeal
    judge is consistent with the plain meaning of the terms of the statute and
    Regulation and, unlike that adopted by the trial judge, does not leave an
    obvious but unnecessary lacuna in the legislation.

CONCLUSION

[72]

In the result, the application for leave to
    appeal is dismissed and leave to appeal refused.

RELEASED:  January 7, 2011                                            David
    Watt J.A.


