The Workers’ Compensation Board v Petkau, 2018 SKCA 85

Court of Appeal for Saskatchewan Docket: CACV3197 Citation: The Workers’ Compensation Board v Petkau , 2018 SKCA 85 Date: 2018-11-01 Between: The Workers’ Compensation Board Appellant (Applicant) And Fred Petkau Respondent (Respondent) Before: Caldwell, Ryan-Froslie and Schwann JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Mr. Justice Caldwell The Honourable Madam Justice Ryan-Froslie On Appeal From: 2018 SKQB 7 , Regina Appeal Heard: September 6, 2018 Counsel: K.

James Rose for the Appellant Perry Polishchuk for the Respondent Schwann J.A. I. Introduction [ 1 ] Fred Petkau pled guilty to defrauding the Saskatchewan Workers’ Compensation Board (WCB) of a value exceeding $5,000 contrary to s. 380(1) of the Criminal Code in relation to workplace benefits he had improperly received from the WCB. In addition and subsequent to these criminal proceedings, the WCB had issued an order under The Workers’ Compensation Act, 2013 , SS 2013, c W- 17.11 [ WC Act ], against Mr. Petkau claiming $39,130.68 for benefit overpayments (WCB Order).

The subject matter of the WCB Order and the criminal proceedings was the same. [ 2 ] Mr. Petkau assigned into bankruptcy on January 9, 2015. Prior to his discharge from bankruptcy, a Queen’s Bench judge was asked to rule on whether, pursuant to s. 178(1) (

e) of the Bankruptcy and Insolvency Act , RSC 1985, c B-3 [ BIA ], the WCB debt survived Mr. Petkau’s discharge from bankruptcy and, if so, how much of it survived. The Chambers judge accepted the evidence and findings in the criminal proceedings as a determination of the quantum of the fraud for purposes of s. 178(1) (e). The WCB appeals from that decision. [ 3 ] For the reasons given, I would dismiss WCB’s appeal. The Chambers judge did not err in determining that, for purposes of s. 178(1) (

e) of the BIA , only $5,001 of Mr. Petkau’s WCB debt would survive his discharge from bankruptcy II. FACTUAL background [ 4 ] The facts in this matter were set out in some detail by the Chambers judge ( Workers’ Compensation Board v Petkau , 2018 SKQB 7 ) and are recounted below only to the extent necessary to address this appeal. [ 5 ] Mr. Petkau sustained a workplace injury for which he received WCB benefits from April 2011 to September 2012. Following a tip from an outside source, which suggested Mr. Petkau had been working on the side while receiving benefits, Mr.

Petkau was charged with defrauding the WCB of $50,414.94, contrary to s. 380(1) of the Criminal Code . [ 6 ] Before his criminal proceedings concluded, Mr. Petkau assigned into bankruptcy on January 9, 2015. He listed the WCB as one of his unsecured creditors, which prompted the WCB in turn to respond with a proof of claim for $44,172.21. [ 7 ] On June 19, 2015, before Mr. Petkau was discharged from bankruptcy, he entered a guilty plea before Dufour J. of the Court of Queen’s Bench in relation to the criminal charge. Justice Dufour established the amount of Mr.

Petkau’s fraudulent conduct at $5,001. [ 8 ] After the conclusion of Mr. Petkau’s criminal proceedings, but while he remained an undischarged bankrupt, the WCB issued the WCB Order pursuant to s. 112 of the WC Act fixing the amount of Mr. Petkau’s overpayment at $39,130.68. The full text of the WCB Order provides: The Worker, Fred Petkau, sustained injury in a work related accident on December 22, 2007. The Board accepted responsibility for the injury and paid compensation to Mr. Petkau, pursuant to the provision of The Workers’ Compensation Act, 1979. The Board finds that benefit payments exceeded entitlement.

The overpayment occurred when the Workers’ Compensation Board became aware that Mr. Petkau received entitlements and expense benefits for injuries upon which he had misrepresent [sic] facts to the Board concerning his work capacity and earnings while on benefits, and upon facts that the entitlements and benefits had been

calculated, and the worker was therefore not entitled to benefits received. The overpayment covers the periods from April 1, 2011 toSeptember 30, 2012. The Board was not fully aware of the fraudulent acts of the worker until June 19, 2015. The overpayment has beencalculated to be $39,130.68. Upon demand for repayment made to the worker by the Board, the Board finds that Fred Petkau has neglected or refused to repay theoverpayment. IT IS THERFORE ORDERED by the Board that Fred Petkau forthwith pay the sum of $39,130.68 to the Board as recompense for theoverpayment received.

This Order will be filed with the Court of Queen’s Bench as a Judgment of that Court pursuant to the provisions ofSection 170 of The Workers’ Compensation Act, 2013, S.S. 2013, c W-17.11. (Italics emphasis added) [9] The emphasized words set out in the second paragraph of the WCB Order provide that the WCB became “fully aware” ofMr. Petkau’s fraudulent acts on June 19, 2015. As mentioned, June 19, 2015, is the date Mr. Petkau had pled guilty to fraud in hiscriminal proceedings. [10] Adding a layer of complexity to matters, Mr.

Petkau accepted an offer to purchase his house (the property) prior to hisdischarge from bankruptcy. Before the property transaction closed, the WCB registered the WCB Order as an enforcement chargeagainst the property. In spite of this registration and on the advice of legal counsel and his bankruptcy trustee, Mr. Petkau transferred titleto his property to the purchaser subject to the WCB enforcement charge. [11] Mr. Petkau was discharged from bankruptcy several weeks later on October 12, 2015.

His certificate of discharge provides:“the bankrupt is discharged and released from all debts, except those matters referred to subsection 178(1) of the Act” (emphasis added). [12] Mr. Petkau applied to the Court of Queen’s Bench for an order discharging the WCB enforcement charge that had beenregistered against the property. His application was met by a competing motion from the WCB to lift the stay of proceedings that isautomatically imposed by s. 69.3 of the BIA on a nunc pro tunc basis and to quantify the amount of Mr. Petkau’s fraud for purposes of s.178(1)(

e) of the BIA as a debt owing to the WCB that would survive his bankruptcy discharge. [13] The Chambers judge made three rulings. First, he concluded that Mr. Petkau’s conduct in relation to the WCB was fraudulentin nature and thus fell within s. 178(1)(

e) of the BIA, that is, Mr. Petkau would not be released from his fraud-based debt and it wouldsurvive his bankruptcy discharge. Second, the Chambers judge lifted the stay of proceedings against the WCB on a retroactive basis.Third, the Chambers judge quantified the amount of Mr. Petkau’s debt to the WCB that had been incurred as the result of hismisrepresentations and fraudulent actions to be $5,001, which was the same amount that had been determined in his criminalproceedings. [14] The WCB appeals from the quantification portion of that decision. III.

THE Chambers decision [15] The first issue the Chambers judge dealt with was whether the WCB’s claim arose from Mr. Petkau’s fraudulentmisrepresentation and, by extension, whether it was a claim that could survive his discharge from bankruptcy pursuant to s. 178(1)(

e) ofthe BIA. To assess this issue, the Chambers judge adopted the principle set out in Ma v Toronto-Dominion Bank (2000), (ON SC), 19 CBR (4th) 117 (Ont Sup Ct) [Ma], which held that fraud must be strictly proven and that it is inappropriate todetermine fraud based solely on written materials: [46] The TD Bank claims that the issues raised by the proposed action are sufficiently complex such that they cannot be determinedin a

summary fashion and on a motion. I agree. The case which the TD Bank wishes to advance against Ma relates to an allegedfraudulent misrepresentation or the obtaining of property by false pretences. Following Molloy, these allegations must be strictly proven.It is in my opinion inappropriate to determine issues of fraud, which will undoubtedly require an assessment of the credibility of thewitnesses to be called, on a motion made on the basis of written material. [16] The WCB had pressed the Chambers judge to accept the WCB Order, which, as noted, had come about subsequent to thecriminal proceedings as proof of Mr.

Petkau’s fraudulent conduct. The Chambers judge declined to do so, stating: [10] Alarmingly, in reaching its conclusion that Mr. Petkau acted fraudulently, the Board held no hearing and did not reference thecriminal proceedings. I note that s. 171 of the WCA expressly states that “nothing in the Act is to be interpreted as requiring the board togive an oral hearing in any proceedings before it.” I cannot accept that a finding of fraud for the purposes of s. 178(1)(

e) of the BIA canbe made in the absence of notice and a hearing before the adjudicating body. In this regard, I agree with the above statement in Ma (Re):a finding of fraud cannot be made on the basis of written material. And, even at that, the court has no idea what written evidence theWCB relied upon to reach its conclusion that Mr. Petkau acted fraudulently. [17] In assessing the facts with the decision in Ma in mind, the Chambers judge took into account Mr. Petkau’s unchallengedaffidavit evidence. It provided: [11] Mr.

Petkau offers the following statement respecting the deliberations taken by the WCB to reach its conclusion. He states: I do not recall what, if any, notice I received of the September 14, 2015 Board Order. I was not a party to or advised of any Workers’Compensation Board hearing that led to that Board Order. I do not recall what, if any information I may have received regarding theSeptember 14, 2015 Board Order. I did not and I do not know if there was or is a process for me to appeal or request a review of theSeptember 14, 2015 Board Order.

[ 18 ] In the end, as reflected by his reasoning set out above, the Chambers judge found the criminal trial process to be a different and more involved matter in comparison to how the WCB Order had come about. He concluded that Mr. Petkau’s guilty plea to the s. 380(1) charge amounted to sufficient and satisfactory proof of the type of conduct envisioned by s. 178(1) (

e) of the BIA (para 14). [ 19 ] Having found “fraud” on Mr. Petkau’s part, the Chambers judge next turned his mind to the amount of the WCB debt that was attributable to Mr. Petkau’s fraudulent actions. Once again, he compared the WCB proceedings with, as he stated, its perplexing array of numbers, to the criminal proceedings and, once again, he preferred the criminal process over the process that led to the WCB Order.

On this point, the Chambers judge concluded: “Justice Dufour’s statements at the sentencing hearing on June 19, 2015 provide the only certain findings I can find respecting the amount of the money that Mr. Petkau defrauded the WCB” (at para 17). [ 20 ] With regard to the amount of the debt or liability associated with Mr. Petkau’s fraudulent actions, the Chambers judge took note of the sentencing transcript that in his view demonstrated Dufour J.’s uneasiness with the precise amount of the WCB debt in relation to Mr. Petkau’s fraudulent actions.

Ultimately, the Chambers judge accepted the figure of $5,001 that Dufour J. had adopted in the criminal prosecution, stating: [18] Finally, given the uncertainty of the evidence and the guilty plea before him, Justice Dufour “pegged” the amount Mr. Petkau received that he “ought not to have gotten” at $5,001.00. This is the only judicial finding of the amount of debt incurred through Mr. Petkau’s misrepresentation and fraudulent statements.

It is the amount I will accept . (Emphasis added) [ 21 ] Finally, the Chambers judge considered whether the stay of proceedings imposed by the BIA should be lifted to give effect to the WCB claim on a nunc pro tunc basis. The Chambers judge examined the law in relation to lifting a stay of proceedings under s. 69.4 against the facts of this case and concluded that the exercise of discretion favoured granting the relief sought. However, in relation to the scope of the stay decision, the Chambers judge once again expressed concern as to whether Mr.

Petkau’s fraudulent conduct had been established to the full extent of the WCB Order. On this point, he said: [25] ... However, in this instance, even if I were to lift the stay retroactively, the entry of the judgment based on the WCB’s order of September 14, 2015 does not meet the requirements of strict proof of fraud because it was entered without notice to Mr. Petkau, without a hearing, without a right of appeal and absent written reasons. [ 22 ] By way of order, the Chambers judge ruled that Mr. Petkau’s conduct fell within s. 178(1) (

e) of the BIA , with $5,001 of the WCB debt attributable to his fraudulent conduct. The Chambers judge then reduced the enforcement charge that had been registered against Mr. Petkau’s property to $5,001 and ordered that, upon payment of that sum to the WCB, the charge would be satisfied and Mr. Petkau would be relieved of any further obligation to the WCB. IV. ISSUES [ 23 ] In its notice of appeal, the WCB identified the following errors said to have been made by the Chambers judge: (

a) the learned Chambers judge failed to apply s. 20(1) (

a) of the WC Act , which mandates that the WCB has exclusive jurisdiction to examine, hear and determine all matters and questions arising pursuant to that Act ; and (

b) the learned Chambers judge failed to apply ss. 20(3) and (4) of the WC Act , which mandates that all decisions of the WCB are final and conclusive and that determinations and all questions of fact and law are not open to question or review by any court. [ 24 ] At its root, the WCB takes the position that, pursuant to the WC Act , it has the exclusive jurisdiction to determine the amount of any overpayment of workers’ compensation benefits and that its decision on such matters is final, conclusive and beyond review by a court. As such, the WCB argues the amount of the debt attributable to Mr.

Petkau’s fraudulent conduct for overpayment of his workplace benefits could not be altered by the Chambers judge and he therefore erred in law in fashioning an order that effectively reduced the amount of Mr. Petkau’s WCB debt by discharging the balance owing on payment of the reduced amount. V. analysis [ 25 ] It is the WCB’s position on appeal that the Chambers judge failed to recognize the importance of and pay heed to s. 20(1) (

a) and s. 112 of the WC Act . Those sections provide: Jurisdiction 20

(1) The board has exclusive jurisdiction to examine, hear and determine: (

a) all matters and questions arising pursuant to this Act. Overpayments 112

(1) Any compensation payments made by the board to a worker beyond the period of the worker’s loss of earning capacity or to a worker or the worker’s dependant in an amount in excess of that to which he or she is entitled are deemed to be an overpayment.

(2) The amount of any overpayment is deemed to be a debt due and owing to the board and may be recovered from the worker or worker’s dependant in any manner authorized by law. [ 26 ] Section 20(1) of the WC Act clothes the WCB with the exclusive jurisdiction to examine, hear and determine all matters and questions arising under the WC Act .

Section 112 – which deals with overpayment of benefits – is a matter that would fall within its

exclusive jurisdiction.

Section 112 provides that any compensation payment made by the WCB to a worker in an amount in excess of that to which the worker is entitled is deemed to be an overpayment. The

section goes on to provide that the overpayment is a debt due and owing to the WCB recoverable in any manner authorized by law. [ 27 ] Having regard to the plain meaning and obvious legislative intent of these two provisions, the WCB argues it was an error of law for the Chambers judge to have effectively reduced Mr. Petkau’s overpayment debt since only the WCB has the legal authority to establish the amount of an overpayment.

As I see it, the essence of the WCB’s argument appears to be that, although the Chambers judge was asked to rule on matters under the auspices and for the purposes of the BIA , in so doing, he was required to defer to the quantum of Mr. Petkau’s fraud that had been determined under the WCB Order. In other words, the amount of Mr. Petkau’s fraudulent action as determined by the WCB was binding in a BIA context. [ 28 ] There are two reasons why the WCB’s argument cannot succeed. [ 29 ] The first reason relates to the factual finding that had been made in the criminal proceedings against Mr.

Petkau before Justice Dufour. To recap, Mr. Petkau had been charged with: That Fred Petkau between the 1 st day of April, A.D. 2011 and the 30 th day of September, A.D. 2012 at or near Waldheim in the Province of Saskatchewan did by deceit, falsehood, or other fraudulent means, defraud the Saskatchewan Workers’ Compensation Board of money of a value exceeding $5000.00, to wit $50,414.94, contrary to Section 380(1) of the Criminal Code . [ 30 ] However, on the first day of the trial, the Crown amended the indictment by striking the words “to wit $50,414.94”. Mr.

Petkau then proffered a guilty plea to the amended indictment. The significance of this change meant that, in order for Dufour J. to accept Mr. Petkau’s guilty plea as tendered, he had to be satisfied on the facts before him that, among other things, Mr. Petkau had defrauded a person of money in excess of $5,000.

The Crown led evidence at the sentencing hearing to establish the actus reus of the offence and presumably to establish the magnitude of the debt as an aggravating circumstance for sentencing purposes (s. 380.1(1)(a)). [ 31 ] A complete transcript of the evidentiary portion of the sentencing hearing was not filed with the Chambers judge or, for that matter, with this Court. Based on the portion of the transcript that was filed, it appears as though a number of witnesses had been called by the Crown to establish the quantum of money or overpayment of benefits that the WCB claimed corresponded to Mr.

Petkau’s “falsehoods” and “fraudulent” acts. This point is evident from the comments of Crown counsel found at page T3 of the transcript: MR. RITTER: But -- but we also have more -- not just his evidence to that, but also the evidence from the Worker’s Compensation people; the witnesses, the case managers who testified and said, We calculated his overpayment. This is how we calculated it. This is -- and there is absolutely no doubt that that amount of money was paid to Mr. Petkau.

Absolutely no doubt about that. [ 32 ] Following submissions as to sentence from both Crown and defence counsel, the trial judge delivered an oral decision. In it, he expressed difficulty accepting the Crown’s position that Mr. Petkau’s fraud in relation to the WCB benefits was in the $50,000 range. This is clear from the following excerpt of his decision: One of the problems I have is determining just how much money you took improperly. The Crown takes the position that it’s about $50,000. I have difficulty accepting that.

What the evidence showed is that had you been cut off from benefits entirely, then you wouldn’t have gotten that money, okay? Soon as you started working, if they shut you off, there’s about $50,000 that flows after that. But they also said -- the witnesses said that there would’ve been a reassessment, had they found out that you were making money, and what I don’t know is what they would have reassessed you at, or how they would have treated the money you made because from what I heard from the witnesses, it -- it’s not a dollar-for do1lar recapture or clawback in any event.

There’s a little bit more of a - a complex formula that goes into it. I don’t even know for sure if they would’ve cut you off or changed it all because the evidence I got, as to how much money you were working was $150 a month or so. I’m taking half of Mr. Penza’s (phonetic) $300 a month on that. [ 33 ] Justice Dufour found the Crown’s evidence about how much money Mr. Petkau had improperly received unpersuasive.

He concluded: And I agree that it would’ve been a difficult thing for the Crown to prove, but the onus is on the Crown to prove beyond a reasonable doubt what it is that you got that you should not have gotten. And I am not persuaded on the evidence that it is anywhere near $50,000. I am not simply going to reach into the air and snap out a dollar figure. I’m not going to do that.

I am going to accept the guilty plea at theft over $5,000, and, given that I have no ability to calculate how that -- much money that would be that you took that you shouldn’t have gotten, I am going to arbitrarily peg it at $5,001 that you got that you ought not to have gotten . (Emphasis added) [ 34 ] The criminal decision was not appealed. [ 35 ] In spite of the result in the criminal trial in relation to the quantum of debt attributable to Mr. Petkau’s fraudulent actions, the WCB says that “after becoming aware” of Mr. Petkau’s fraudulent misrepresentations on June 19, 2015 (presumably in reference to Mr.

Petkau’s guilty plea and the sentencing hearing), it was entitled to independently calculate the precise amount of Mr. Petkau’s overpayment said to have resulted from Mr. Petkau’s fraudulent conduct. In other words, using a “belt and suspenders” type of argument, the WCB appears to be arguing that, while it can rely on the criminal finding of fraud for purposes of s. 178(1) (

e) of the BIA , it alone has the jurisdiction to “quantify” the fraudulent conduct through its own processes. [ 36 ] I do not accept the WCB’s argument for the simple reason that, on the facts, a ruling on fraud and the quantum related to that fraud had already been made in the criminal proceedings before the WCB embarked on the process that led to the WCB Order. [ 37 ] As mentioned, the trial judge fixed the amount of Mr. Petkau’s fraud at $5,001, stating: “I am going to arbitrarily peg it at $5,001 that you got that you ought not to have gotten”.

[ 38 ] In the face of this ruling, the WCB argues Dufour J. did not actually make a finding about quantum. As I understand this argument, the WCB says the trial judge simply picked a de minimis number in excess of $5,000 to satisfy the actus reus of the s. 380(1) offence and did no more than that. [ 39 ] Again, this argument calls for us to ignore the plain wording of Dufour J.’s ruling. While the method he chose to fix the amount was admittedly arbitrary and no doubt lacked the precision the Crown had been seeking through its witnesses at the sentencing hearing, there can be no mistaking the fact that he determined the value of the fraud for purposes of s. 380(1) (

a) of the Criminal Code , or, as he stated to Mr. Petkau: “that you got that you ought not to have gotten.” In short, a ruling on this point had been made in the criminal proceedings long before the WCB sought to resurrect the issue through its internal September 2015 process. This factual finding was placed squarely before the Chambers judge and he was entitled to accept or reject it for purposes of s. 178(1) (

e) of the BIA . [ 40 ] This brings me to the second difficulty presented by the WCB’s argument. Here, the WCB argues the Chambers judge erred by “altering” the debt it had calculated as being attributable to Mr. Petkau’s fraud by accepting Dufour J.’s ruling. [ 41 ] In my view, the Chambers judge did no such thing. He was asked to make a ruling under s. 178(1) of the BIA . Section 178(1) lists eight classes of debts that are not released from a bankrupt’s order of discharge. The onus is on the creditor who seeks to have a debt or liability survive discharge to bring it within one of those provisions (Lloyd W.

Houlden, Geoffrey B. Morawetz and Janis P. Sarra, The 2012–2013 Annotated Bankruptcy and Insolvency Act (Toronto: Carswell, 2012) at 933). [ 42 ] As discussed above, the WCB relied on s. 178(1) (

e) of the BIA , which provides: 178

(1) An order of discharge does not release the bankrupt from (

e) any debt or liability resulting from obtaining property or services by false pretences or fraudulent misrepresentation, other than a debt or liability that arises from an equity claim. [ 43 ] Applying the decision in Ma , the Chambers judge held that to make a finding of fraud for BIA purposes, the allegation had to be strictly proven and that since an allegation of fraud entailed an assessment of credibility, it could not be proven on written material alone. The WCB did not challenge the Chambers judge’s identification of the law on appeal.

As set out above, the Chambers judge simply preferred the process and findings that had been made in the criminal court as constituting the only forum where fraud had been tested and proven and the only “judicial finding of the amount of debt incurred through Mr. Petkau’s misrepresentation and fraudulent statements” (at para 18). Given the law applicable to s. 178(1) (

e) of the BIA , which the WCB had asked him to rule on, the Chambers judge was entitled to take this approach and make these findings for purposes of determining how much of Mr. Petkau’s debt survived his bankruptcy discharge. [ 44 ] Furthermore, the WCB’s argument appears to give credence to the possibility that a bare finding of fraud could be made by one judicial body with an assessment of the amount of the fraudulent conduct undertaken by a different body, that is to say, two findings made in seemingly disconnected legal processes.

This argument appears to run counter to the wording and intent of s. 178(1) (e), which calls for a causal connection to exist between the two. In Canada Mortgage and Housing Corp. v Gray , 2014 ONCA 236 , 119 OR (3d) 710, the Ontario Court of Appeal said as follows in relation to s. 178(1) (e): [31] There is a fatal flaw in the appellant’s argument. Irrespective of whether one considers fraudulent misrepresentation or false pretences, s. 178(1) (

e) requires a finding that the bankrupt “obtained property by” such conduct. A causal connection between the bankrupt’s wrongdoing and the creation of the debt or liability is required. It is not sufficient that the bankrupt engaged in fraud, or that the debt or liability “arose out of” a fraudulent scheme . ... (Emphasis added) [ 45 ] In making these observations, I am not suggesting that the fraud and quantification issues could never be bifurcated in some way.

However, an approach of that nature must include proof that the debt or liability results from the bankrupt having obtained property or services by false pretences or fraudulent misrepresentation. In other words, there has to be evidence of a causal connection between the alleged fraud and the debt or liability said to have resulted from it. The problem with WCB’s approach to quantification is that there is no way of knowing if the full amount claimed ($39,130.68) arose because of false pretences or fraudulent misrepresentations by Mr.

Petkau. [ 46 ] The Chambers judge was asked to rule on whether and to what extent the WCB debt survived Mr. Petkau’s bankruptcy. For the reasons given, I see no error with how he resolved this issue. VI. conclusion [ 47 ] To summarize, there is no dispute that the WCB has the exclusive jurisdiction under s. 112 of the WC Act to determine whether a worker received benefits in excess of that to which he or she is entitled to under that Act . That said, the WCB does not have the exclusive jurisdiction to determine matters under s. 178(1) (

e) of the BIA , nor is a judge who is asked to rule on this provision bound by the WCB’s findings. Each instance will turn on its own facts and the evidence placed before the court, notably whether the alleged fraud has been strictly proven and, if so, how much of the debt or liability is connected with the fraudulent conduct. [ 48 ] In this case, the only judicial determination establishing a causal connection between Mr. Petkau’s fraud and the debt to WCB said to have resulted from that fraud was made by Dufour J. in the criminal proceedings.

This was the conclusion reached by the Chambers judge and I see no tenable basis for appellate intervention. Accordingly, WCB’s appeal is dismissed with costs to Mr. Petkau in the usual way. “Schwann J.A.”

Schwann J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Caldwell J.A.” for Ryan-Froslie J.A. per authorisation