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IN THE PROVINCIAL COURT OF NOVA SCOTIACitation: R. v. Della Valle, 2011 NSPC 67Date: 14 September 2011Docket: 2202580Registry: SydneyBetween:HER MAJESTY THE QUEENvsJames Edward Della ValleDECISION.Charge:s. 17 Occupational Health and Safety Act of Nova ScotiaHeard:June 20 and 21 st , and September 14, 2011 at Sydney, N.SJudge:A. Peter Ross, P.C.J.Counsel:Mr. Peter Craig, Crown AttorneyMr. Tony Mozvik, Defense Attorney
2REASONS FOR DECISIONIntroduction[1] Mr. Della Valle was charged on July 16, 2010 with an offence under theOccupational Health and Safety Act of Nova Scotia which is alleged to have occurredbetween October 25 th , 2005 and April 6, 2006. The Information charges that “as anemployee of the Cape Breton Island Housing authority he failed to take everyreasonable precaution in the circumstances to protect the employee’s own safety andthat of other persons at or near the workplace contrary to s.17 of the OccupationalHealth and Safety Act”[2] Mr. Della Valle is one of three persons charged as a result of the discovery ofasbestos-containing vermiculite insulation in certain rental units of the Cape BretonIsland Housing Authority in 2006. Mr. Della Valle pled not guilty and the mattereventually went to trial in this court in June of 2011.[3] I have concluded that Mr. Della Valle is guilty of the offence and will set outreasons for this decision below.[4] S. 17 states that every employee, while at work, shall take every reasonableprecaution in the circumstances to protect the employee's own health and safety andthat of other persons at or near the workplace. Crown describes this as a “general dutyprovision” made necessary in regulatory legislation by the fact that the regulators cannotforesee every possible contingency.[5] Although the duty to act arises from the defendant’s employment with the CBIHA,the duty he is alleged to have breached was owed not only to other employees orworkers, but in large measure to tenants in various housing units owned and maintainedby CBIHA. This case is thus largely concerned with the possible risk to those “other
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CITATION: Brito v. Canac Kitchens,
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Page: 3a) What, if any, period of n
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Page: 5[18] Having regard for Canac
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CITATION: Chandran v. National Bank
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Page: 3against him by the employees
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Page: 5the employees who raised the
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Page: 7had no obligation under the
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Page: 9[37] Mr. Chandran’s last j
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Page: 11large number of unsolicited
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Page: 13disciplinary letter against
Page 21 and 22: Page: 15evidence of acrimony betwee
Page 23 and 24: Page: 17Toronto office. He admitted
Page 25 and 26: Page: 19increase in the quantum of
Page 27 and 28: Page: 21Weissach Motors and MCL Mot
Page 29 and 30: Page: 23“There can be no catalogu
Page 31 and 32: Page: 25[123] On the basis of the a
Page 33 and 34: QUEEN’S BENCH FOR SASKATCHEWANDat
Page 35 and 36: - 3 -meet his financial obligations
Page 37 and 38: - 5 -[11] On June 28, 2002, without
Page 39 and 40: - 7 -and a capital gain of $23,874.
Page 41 and 42: - 9 -may have delayed commencement
Page 43 and 44: - 11 -had purchased late in 2001 an
Page 45 and 46: - 13 -[34] Stated in another way, w
Page 47 and 48: - 15 -supervised by the plaintiff.
Page 49 and 50: - 17 -purchasing agent for a compan
Page 51 and 52: - 19 -sales, conducting retail sale
Page 53 and 54: - 21 -employment with Bennett Dunlo
Page 55 and 56: - 23 -[54] The issue was taken up b
Page 57 and 58: - 25 -59 ... Damages attributable t
Page 59 and 60: - 27 -not have any information rega
Page 61 and 62: - 29 -[66] Both Mr. Coppola and Mr.
Page 63 and 64: - 31 -expense accounts which contai
Page 65 and 66: - 33 -by the plaintiffs in the abov
Page 67 and 68: - 35 -Pre-judgment interest[76] Mr.
Page 69 and 70: - 37 -the six month notice period.
Page 71: SummaryFollowing concerns raised by
Page 75 and 76: 4agreed statement) and also by test
Page 77 and 78: 6e. that it was not his responsibil
Page 79 and 80: 8Department of Labour. The firm adv
Page 81 and 82: 10that “the buck stopped with me
Page 83 and 84: 12without any knowledge of this and
Page 85 and 86: 14[41] Various other cases, cited i
Page 87 and 88: 16[49] There is nothing wrong with
Page 89 and 90: 182 The foundation of this Act is t
Page 91 and 92: 20(b) the co-operative auditing of
Page 93 and 94: - 2 -The Honourable Justice Turnbul
Page 95 and 96: - 2 -concluded that, while the mill
Page 97 and 98: - 4 -[6] The union’s position is
Page 99 and 100: - 6 -it must be reasonable; (3) it
Page 101 and 102: - 8 -the majority relied in part on
Page 103 and 104: - 10 -Taken with the low testing ra
Page 105 and 106: - 12 -should depart from those prec
Page 107 and 108: - 14 -IV.Issues - AnalysisA. Introd
Page 109 and 110: - 16 -distinguished any analogy bet
Page 111 and 112: - 18 -industry. The lead case appea
Page 113 and 114: - 20 -rather than a reactive, appro
Page 115 and 116: - 22 -employers of the burden of de
Page 117 and 118: - 24 -Canada, Local 0004, supra. Al
Page 119 and 120: - 26 -C. Summary Observations on th
Page 121 and 122: - 28 -hazardous materials to variou
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IN THE COURT OF QUEEN’S BENCH OF
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2assistance and remain employed. Ki
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4a) there is a strong prima facie c
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6discrimination. The letter also st
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8applicable guidelines. He was give
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10Correct Legal Test[15] Killam’s
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12position. However, because of the
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Page: 2FACTS[2] The respondent is a
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Page: 4REASONS OF THE APPLICATION J
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Page: 6trade, certain of such coven
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Page: 8[17] It is convenient to rep
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Page: 10duties for the Company or w
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Page: 12[30] Effectively, because t
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SUPREME COURT OF NOVA SCOTIACitatio
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Page: 341. In every proceeding comm
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Page: 5[8] There is ample case auth
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Page: 7some amount be awarded for p
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NOTE: This document is subject to e
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2011 SCC 20File No.: 32968.2009: De
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allowed the appeal and declared the
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established. There is no concrete e
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Section 5 of the AEPA, correctly in
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pursue, rather than protecting the
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expression under s. 2(b), so too sh
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Nor did invoking Charter values in
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Per Deschamps J.: The holding in He
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from the legislation was unequivoca
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KMart Canada Ltd., [1999] 2 S.C.R.
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By Abella J. (dissenting)Health Ser
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Adams, Roy J. “Prospects for Labo
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International Labour Organisation.
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Gaétan Migneault and Michelle Brun
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TABLE OF CONTENTSParagraphReasons o
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(b) Qualitative Differences Between
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yThe judgment of McLachlin C.J. and
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majority of this Court found a brea
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[10] The UFCW also attempted to bar
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[14] With respect to the particular
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employees from a collective bargain
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and to realize common purposes” (
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(b) Dunmore[26] This Court’s deci
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support discredited the organizing
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[34] Dunmore established that claim
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[38] The decision in Health Service
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[42] The Court in Health Services e
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impugned law or state action has th
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[51] In our view, the majority deci
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Indeed, the fact that Health Servic
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[64] Consistent with this framework
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must not depart from the context of
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ealize common purposes (emphasis ad
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LeBel J., written on behalf of a mi
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(ix) The Argument on Academic Criti
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given a generous and purposive inte
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trade unions should negotiate in go
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[101] Sections 5(6) and (7) are cri
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[107] These considerations lead us
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protections would be inappropriate
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3. Does s. 3(b.1) of the Labour Rel
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of s. 2(d) employers “must engage
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per Dickson C.J. in dissent; R. v.
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3. A prior decision that creates un
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[137] Professor Debra Parkes has su
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[140] In the case of Health Service
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[145] Third, the constitutionalizat
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“recognized that under most Canad
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constitutionalize collective bargai
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[159] In addition, the Court was ag
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or effect of a measure when determi
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. . . the state must not substantia
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[173] First, the collective bargain
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ight to bargain because employers a
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incapable of being performed by an
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(2) Section 2(d) Protects Freedoms
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[193] The Chief Justice and LeBel J
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as described in Health Services, it
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[204] Health Services rejected the
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associations must receive identical
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Health Services would in fact be co
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[217] In response to this argument,
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The question at stake in this appea
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constitutional law the particular f
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can, then we must seriously questio
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[235] The labour history offered in
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[241] It is true that there is a lo
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understanding of freedom of associa
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The voluntary nature of collective
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equirements it finds to the case be
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exclusivity and a mechanism for res
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takes time before the unworkability
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argain in good faith change these m
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employee, to make a “take it or l
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obligations, and Charter values —
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[279] Nonetheless, the Chief Justic
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[283] It is true, as my colleagues
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They base their view on a statement
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. . . the freedom to work for the e
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case at bar (2008 ONCA 760, 92 O.R.
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[302] As the majority in the instan
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[305] All that was required by the
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ound” by s. 2(d) seems to have be
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to Bargain Collectively: The Implic
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cases in which the vulnerability of
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[323] The AEPA was enacted in 2002
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10-1920; Donald D. Carter et al., L
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Agriculture and Food, the Honourabl
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activities of the “employees’ a
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[346] The reason for the protection
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[351] I acknowledge that different
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May 813, does “not differ in any
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argaining, including exclusivity, b
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accordance with a bargaining regime
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5. (1) The employer shall give an e
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Solicitor for the intervener the At
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CLIENT UPDATELABOUR & EMPLOYMENT LA
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SUPREME COURT OF NOVA SCOTIACitatio
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Page: 3failure to observe, perform
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Page: 5offences under the Immigrati
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Page: 7(5) Interest was payable on
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Page: 910.08 Should there be a disa
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Page: 11that the arbitration in que
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Page: 13[31] In Knox v. Conservativ
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Page: 15The Applicants should not b
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the court refuses to review the arb
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Page: 19(d) the composition of the
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Page: 21[49] The Applicant states t
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Page: 23[55] In addition, the Respo
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Page: 2577.06 (1) Party and party c
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:" .. "Schedule AIN THE MATTER OF A
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., ....3OVERVIEWTheClaimant, Ms. Co
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....5The Companybegan business. Inc
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7Subsequently the Jennifer Allan bu
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9She was then given a letter dated
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· ,111. Ms. Cormier knowingly cont
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13Mr. Nordqvist testified that Ms.
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15Ms. Cormier decided to set up suc
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"17ofthat because of difficulties M
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,.19Ms. Carter was invited to a mee
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. .,'21I am also satisfied that the
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23call from Ms. Cormier that Revenu
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,. ."25There is also evidence that
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· . ,27Ms. Gallant did no scheduli
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. \. .. ~..29Ms. Cormier testified
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. '...31the files relating to some
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. ",.'933Ms. Cormier testified that
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...35environment including any lack
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.'37In the year 2000, there was ano
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..39identified anything that she wa
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" .' .,.\1.·....l -,1'.• ,~.,.".
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