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We thank you for visiting our website and your interest in our offerings. Protecting your personal data is of the utmost importance to our executive management. You can generally visit our website without providing any personal data. Processing of your personal data may be necessary, however, if you want to use certain services made available through our internet presence. In this case we will always ask for your consent first.
We want you to always feel safe and secure while enjoying your visit to our website, we therefore want to assure you that we have taken appropriate technical and organizational measures to ensure the greatest level of protection possible for your rights, and that we are continuously acting in such a way as to ensure that relevant legislation is complied with by both our staff and external service providers. Nonetheless there may still be security issues found in web-based services, so that absolute protection cannot be guaranteed. If you prefer, we would be happy to receive your personal data through other communication channels (for example by post, by telephone or fax).
Your personal data will be protected in accordance with the General Data Protection Regulation, the German Federal Data Protection Act, and several other sector-specific laws which all use the same terms and definitions explained below.
Personal data means any information relating to an identified or identifiable natural person (in the following referred to as “data subject” ); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more characteristics specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
The controller responsible for processing in the sense of the General Data Protection Regulation and the data protection legislation of the Member States of the European Union as well as additional sector-specific laws with data protection implications is COGNOS AG, Alte Rabenstraße 2, 20148 Hamburg.
You have the right to obtain confirmation from the controller responsible for processing as to whether or not personal data concerning you are being processed. Where this is the case, you also have the right to be informed about the circumstances of data processing. This right of access includes the relevant data, the processing purposes, the processing category of personal data, and the recipient to whom the data are or have been transmitted. In addition the right covers the planned duration of storage, the origin of the data, to the extent that they were not supplied by yourself, and any existence of an automated decision-making process, including profiling. The right of access also includes the right to be informed about the right to restriction of processing or erasure of the personal data and the right to be informed about the existence of a right to lodge a complaint with a supervisory authority.
The purpose for which the data were collected no longer exists or the data are no longer necessary in relation to the purpose.
You have exercised your right to object to data processing.
You have since withdrawn your consent to data processing and there is no other legal ground for the processing.
The data were erased due to a legal obligation to do so.
The data were processed without legal basis.
You have the right to receive the personal data concerning you which you have provided to us as a controller, in a structured, commonly used and machine-readable format, and you have the right to obtain transmission of those data to another controller without hindrance by the controller responsible for processing to whom the data were provided. This right shall apply where automated data processing was carried out for the performance of a contract or was based on given consent. This entitlement also includes the right to have the data transmitted directly from one controller to another, where technically feasible.
The right to object includes the option to object to the processing of your own data for marketing purposes. In addition, you also have the right to object, on grounds of relating to your particular situation, to originally lawful data processing for other purposes.
The right to restriction of processing enables you obtain from the controller, if certain conditions apply, that your personal data held by the controller are blocked from further processing. You can for instance demand that the data be blocked for the period required for clarification, if the accuracy of the data has been contested.
The right to rectification includes your entitlement as data subject to obtain from us as the controller without undue delay the rectification of inaccurate personal data concerning you.
We will ask for your consent for most data processing operations. In these cases, Art. 6 I lit. a and Art. 7 GDPR serve as legal basis for the processing operations. Data processing may also partly be necessary for the performance of a contract and/or for the initiation of a contractual relations, this applies in particular to the delivery of any information material requested by you and the application for admission. In this case, the legal basis for processing is Art. 6 I lit. b GDPR. If the processing of data is necessary for compliance with legal obligations, for example for a request for tax information, processing is based on Art. 6 I lit. c GDPR. Under certain circumstances data processing may also be necessary in order to protect the vital interests of the data subject or other natural persons, in which case the legal basis would be Art. 6 I lit. d GDPR. If none of these legal exceptions apply, processing may still be authorized by Art. 6 I lit. f GDPR. This legal ground may be applicable, if processing is necessary for the purposes of a legitimate interest pursued by our company or a third party and to the extent that interests, fundamental rights and freedoms accruing to us as the controller do not take precedence. A legitimate interest could for instance be the conducting of our company’s business operations in order to protect the interests of our staff and shareholders. We also consider the tracking of user behavior in connection with advertising by means of cookies which do not involve sensitive data and which bear no references to persons a legitimate interest.
If we process data in a third country (i.e. in a country outside the European Union or the European Economic Area), or we do so in connection with the use of the services of third parties or the disclosure and/or transmission of data to third parties, this may be done solely for the purpose of fulfilling contractual obligations or for precontractual actions, on the basis of consent given by you, on the basis of a legal obligation or on the basis of our legitimate interests. We will only process or transfer data in or to a third country or have data processed there, if the conditions of Art. 44 ff. GDPR have been met. Processing may be performed for example on the basis of special guarantees such as where an adequate level of protection comparable with the EU standard has been confirmed (e.g. “Privacy Shields”), on the basis of compliance with officially recognized contractual obligations or after submission of audit evidence proving any other recognized level of protection (exceeding any voluntary “Safe Harbor” commitment) (see also the extended requirements of the “Dusseldorf circle”).
If we disclose or transfer data to other persons and companies (processors, COGNOS group companies or third parties) or otherwise enable them to obtain access to data during our processing, this is always done on the basis of a legal permission (e.g. if the transfer of payment data to the group company responsible for payment operations is necessary for fulfilling the contract or if address data are disclosed to the shipping provider for the delivery of any course material in accordance with Art. 6 Para. 1 lit. b GDPR), consent, a legal obligation or due to a legitimate interest or data processing on behalf of a controller in accordance with Art. 28 GDPR.
In order to protect your data during transmission, we use current state of the art in encryption techniques via HTTPS.
A cookie is a small data file which is sent from the web server to your computer, if you surf our web pages. A cookie contains only information which we ourselves send to your computer – cookies cannot be used to retrieve private data. Accepting cookies does not give us any access to your personal information.
We do not use any cookies for the purpose of audience measurement or usage analysis on our COGNOS website.
During each page view, access data regarding this operation are stored by us or our hosting provider in a log file. In connection with the website access we receive usage data which are temporarily stored for statistical purposes and then erased again. Log data are collected solely for internal purposes and are not transferred to third parties.
URL from which the file was requested/desired function was called.
The stored data will be made anonymous at the earliest time possible (last octet of IP address is removed) and only used for the purposes of identifying and tracking unauthorized access and access attempts to the web server. No further analysis, except for statistical purposes in anonymized form, is performed. These data are not referenced to specific individuals, no individual user profiles will be created. We will not collect any personal data through our websites without your consent. Any consent granted by you in this respect may be withdrawn at any time with effect for the future. We would like to point out that specific provisions of law may mean, under certain circumstances, that we may have to continue holding your data for a period prescribed by legislation despite your objection. Data which are collected by automated means on the websites for the purposes of securing the web services will be exclusively processed within the territorial scope of the EU Data Protection Directive.
When you use some areas of our internet presence, we ask you as a user to provide some information which can be unambiguously attributed to your person.
your consent to the collection and processing of personal data.
Which data are required in the actual case is determined by the respective input fields. The data will always be encrypted when they are transmitted. Data which you provide to us through the “Request for information material” and “Online application“ pages of our website, may also be processed using the Salesforce CRM solution. This software solution is also hosted outside the territorial scope of the EU Data Protection Directive. Due to the service provider’s contractual obligations, which exceed the minimum requirements of the Safe Harbor commitments, and submitted audit evidence (see also trust.salesforce.com/trust) an adequate level of protection has been demonstrated (see also the extended requirements of the “Dusseldorf circle”). Any data collected in this context will only be used for the purposes of providing information material, where consent has been given to promotions for this purpose, and for the purpose of precontractual actions where an educational program was applied for. Personal data will only be disclosed to the carefully selected shipping provider, which in turn will only use them for fulfilling the contract. Access data made available by the internet service provider when registering, such as the assigned IP address and the date and time of registration, are logged to prevent the improper use of our services and make it possible to investigate any offences committed. The data will not be disclosed further, unless we are under a legal obligation to do so.
Registration on our website is always on a voluntary basis and only where we offer you services that can only be offered to registered users. Every registered person can change his or her user-related data at any time or have them deleted completely unless this is precluded by a legal retention requirement. We will also provide information, upon request, to you as to what personal data we hold about you. Please feel free to contact our designated Data Protection Officer any time in this respect.
We use hosting services to provide the following services: platform services, computing capacity, data storage, database services, security settings and technical service and maintenance, these are necessary for website operation. In this connection we and/or our hosting service provider process user-related, contact, usage and contract data as well as meta and communication data on the basis of our legitimate interest in the provision of our online presence in accordance with Art. 6 Para. 1 lit. f GDPR in conjunction with Art. 28 GDPR.
If you have any request you would like to send via the contact form, the information provided by you in the request form including any contact information given by you will be stored for processing the request and for any queries. They will not be disclosed to third parties. Should this, however, be necessary for processing your request, we would ask for your permission to do so before disclosing them.
We process and hold your personal data only as long as this is required for the purpose of storage or under the statutory provisions of EU directives and/or regulations. Such data are routinely erased when the purpose of storage no longer exists or the retention periods stipulated in EU directives and/or regulations have expired. The length of data storage is determined by the applicable statutory retention periods. The statutory requirements for data retention in Germany are 6 years in accordance with Section 257 Para. 1 German Commercial Code, 10 years in accordance with Section 147 Para. 1 German Tax Code, and apart from these, we are subject to the retention periods prescribed by the Higher Education Laws of Germany’s Federal States. Your data will routinely be erased after the retention periods have expired, unless they are still required for fulfilling a contract or precontractual actions.

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In an unpublished, partly divided opinion, the Court of Appeals for the Ninth Circuit affirmed a ruling by Judge Susan Illston for the Northern District of California, finding that MHN’s arbitration agreement in an employment contract is unconscionable and unenforceable. Zaborowski v. MHN Government Services, Inc., et al., No. 13-15671 (9th Cir. Dec. 17, 2014) (slip op. available here). As to the unconscionability issue, the three judges on the panel agreed, but split where Judge Ronald Gould dissented as to the lower court’s decision not to sever the offending provisions, holding the whole agreement unenforceable instead.
The Ninth Circuit agreed with the lower court that the arbitration agreement was both procedurally and substantively unconscionable. Substantively, multiple aspects of the arbitration clause were correctly found to be unconscionable, including a “unjustifiably one-sided” arbitrator-selection clause; a drastically shortened six-month limitations period; a costs-and-fees shifting clause which awarded fees to a “substantially prevailing party” in contrast to statutory cost-shifting provisions in state and federal law; and excessive filing fees and waiver of punitive damages. Slip op. at 3-6 (citing Chavarria v. Ralph’s Grocery Co., 733 F.3d 916). Regarding the unreasonably shortened statute of limitations, the Ninth Circuit found that it did not provide a party sufficient time to effectively pursue judicial remedies, stating, “[t]he district court correctly noted that violations of labor laws are not discovered overnight: It takes time to recognize the violation, investigate it, and file a claim.” Additionally, it found that “the costs-and-fee-shifting clause results in an ‘unreasonable’ and ‘unexpected’ allocation of risks [citing Samaniego v.Empire Today LLC, 140 Cal. Rptr. 3d 492, 497 (2012)],” which serves to chill employees from seeking vindication of their rights through arbitration.
Judge Gould dissented as to the issue of severance; he would reverse the district court’s ruling on this issue, require severance, and leave the arbitration agreement in place. He wrote, “[i]n my view, Concepcion and its progeny should create a presumption in favor of severance when an arbitration agreement contains a relatively small number of unconscionable provisions that can be meaningfully severed and after severing [them], the arbitration agreement can still be enforced.” Slip op., Gould dissenting op. at 2 (citing AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011)).
On December 15, 2014, the U.S. Supreme Court denied Chase Investment Services Corp.’s petition for certiorari to review a precedent-setting decision in March by the Ninth Circuit in Baumann v. Chase Investment Services Corp., where the court had held the company could not remove the plaintiff’s wage-and-hour claims for PAGA penalties to federal court either under CAFA or traditional diversity jurisdiction. No. 12-55644 (9th Cir. March 13, 2014) (Mr. Baumann is represented by Capstone Law APC). Previously, a Ninth Circuit panel had denied Chase’s request to have the full court rehear the decision in the case. The decision by the Ninth Circuit in March reversed a California district court’s ruling that the aggrieved employees’ claims to civil penalties could be aggregated to satisfy the amount in controversy requirement for diversity jurisdiction.
Meanwhile, on the same day, the U.S. Supreme Court ruled that a class action defendant is not required to provide evidence to support its effort to remove its case. Dart Cherokee Basin Operating Co. LLC v. Owens, Case No. 13-719, 574 U.S. __ (2014) (slip op. available here). The plaintiff, royalty owner Brandon Owens, originally filed suit in Kansas state court. The majority concluded that the Tenth Circuit Court of Appeals had abused its discretion in refusing to review the lower court’s erroneous decision that the defendant, an energy company, had provided insufficient evidence to support its removal bid in a multi-million dollar class action over oil and gas royalties to federal court and further, could not cure the defect by submitting evidence post-removal. A defendant only needs to include a “plausible allegation” that the amount in controversy meets the jurisdictional threshold in a notice of removal, not evidentiary proof. Slip op. at 7.
The Court previously granted the defendant’s petition for writ of certiorari. Dart argued that the Tenth Circuit’s ruling split with other circuit courts which had held that the notice of removal need only satisfy a notice-pleading standard requiring a “short and plain statement of the grounds for removal.” 28 U.S.C. § 1446(a). Justice Ruth Bader Ginsburg wrote for the 5-4 majority, “[the Tenth Circuit’s denial of Dart’s request for review] froze the governing rule in the circuit for this case and future [CAFA] removal notices, with no opportunity for defendants in Dart’s position responsibly to resist making the evidentiary submission” and that the denial created a “bizarre” situation. Slip op. at 12-13. Justices John Roberts, Stephen Breyer, Samuel Alito, and Sonia Sotomayor also joined the majority, holding that a removal notice need only plausibly allege, not detail proof of, the amount in controversy.
Writing for the dissenters, Justice Antonin Scalia, joined by Justices Anthony Kennedy and Elena Kagan, said that the review was “improvidently granted” and the case should not have been taken up at all. Slip op., Scalia dissenting op. at 2. Since the Tenth Circuit gave no reason for its refusal to review the district court ruling, there was no evidence that the appeals court had abused its discretion. “Not long ago we held . . . that an appellate court should not presume that a district court intended an incorrect legal result when the order is equally susceptible of a correct reading . . . .” Slip op., Scalia dissenting op. at 2-3 (citing Sprint/United Management Co. v. Mendelsohn, 52 U.S. 379, 386 (2008)). Justice Clarence Thomas concurred with the dissent as to all but the last sentence—he opined that the high court did not even have jurisdiction to even review the Court of Appeals’ denial of permission to appeal.
On December 9, 2014, the United States Supreme Court ruled in a 9-0 decision that hourly warehouse workers at two Amazon.com warehouses in Nevada are not entitled to compensation under the Fair Labor Standards Act (“FLSA”) for time spent waiting to undergo and going through security screens at the end of their shifts. Integrity Staffing Solutions Inc. v. Busk, 574 U.S. __, No. 13-433 (2014) (slip op. available here). The Court reversed the Ninth Circuit Court of Appeals’ decision which held that the half hour at the end of each workday that employees spent waiting to go through the antitheft security checks could be compensable under the FLSA because the screens were “necessary” to the employees’ primary work as warehouse employees and done solely for the benefit of Integrity Staffing, the employer. Busk v. Integrity Staffing Solutions Inc., 713 F.3d 525 (9th Cir. 2013).
Justice Clarence Thomas, writing for the Court, reasoned that the security screens were neither “integral” nor “indispensable” to the employees’ principal work activities of packing goods for shipment, and thus did not under the FLSA, as amended by the Portal-to-Portal Act. Slip op. at 5 (internal citations omitted). The Court held that an activity is not integral and indispensable to an employee’s principal activities “unless it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform those activities.” Slip op. at 6. Applying that standard to the case before it, the Court held that the security screenings were not an “intrinsic element” of retrieving products from warehouse shelves or packaging them to be shipped, stating that Integrity Staffing “could have eliminated the screenings altogether without impairing the employees’ ability to complete their work.” Id. at 7. The Court also noted that its conclusion is consistent with the Department of Labor’s (“DOL”) regulations, and its 1951 Opinion Letter, which found non-compensable pre-shift security checks at a rocket-powder plant for employees carrying matches and other items that had direct bearing on the safety of the employees (the DOL had also argued as an amicus for Integrity Staffing).
In a concurring opinion joined by Justice Elena Kagan, Justice Sonia Sotomayor noted the DOL reached the same conclusion regarding similar security screenings shortly after Congress amended the FLSA by enacting the Portal-to-Portal Act in 1947 and stated that the Court owes deference to the DOL’s determination. Though the concurrence omitted the “intrinsic element” language, it defined an “indispensable activity” as “one where an employee could not dispense with it without impairing his ability to perform the principal activity safely and effectively” (emphasis added). Slip op., Sotomayor concurring op. at 1. The concurrence stated that the security searches were merely “part of the process by which the employees egressed their places of work, akin to checking in and out and waiting in line to do so—activities that Congress clearly deemed to be preliminary or postliminary [under the Portal-to-Portal Act].” Id. (internal citations omitted).
Because it is based entirely on the FLSA and the Portal-to-Portal Act, Busk should have little to no effect on lawsuits brought under the California Labor Code or related regulations or rules. Indeed, unlike the FLSA, California’s wage and hour laws expressly provide that all time during which an employee is “subject to the control of an employer” is compensable. California Industrial Welfare Commission Order 9.
In November, the California Court of Appeal, Fourth Appellate District, ruled unanimously in a wage-and-hour action involving Garden Fresh (owner and operator of Souplantation & Sweet Tomatoes restaurants) that courts, not arbitrators, decide whether an agreement to arbitrate disputes between parties authorizes class or representative arbitrations, where an agreement is silent as to the availability such non-individual arbitrations. Garden Fresh Restaurant Corp. v. Superior Court of San Diego County, No. D066208 (Fourth Dist. Div. 1 Nov. 17, 2014) (slip op. available here). Citing the Sixth Circuit’s decision in Reed Elsevier Inc. v. Crockett, 734 F.3d 594 (6th Cir. 2013), the court held that, where an arbitration agreement does not “clearly and unmistakably” provide for class and/or representative arbitration, a “gateway issue” for the court to determine is whether a collective arbitration is allowed. Slip op. at 14.
In 2013, the plaintiff, former employee Moreno, filed a class and representative action under the Private Attorney General Act (PAGA) against Garden Fresh, alleging violations of the California Labor Code, PAGA, and California Unfair Competition Law. Garden Fresh moved to compel to arbitration the plaintiff’s individual claims since plaintiff had signed arbitration agreements, and moved to dismiss the class and PAGA claims, arguing that the arbitration agreements did not address the arbitration of such claims. A trial court granted the motion to compel, but referred the claims to an arbitrator, deferring to the arbitrator to determine whether the parties’ agreements contemplated class and/or representative arbitration.
Citing Reed Elsevier, where the Sixth Circuit had stated that the Supreme Court had “given every indication that classwide arbitrability is a gateway issue” because resolving the question is fundamental to how the parties will resolve their dispute, the court stated, “[f]or similar reasons, we conclude that a court, not an arbitrator, should also decide whether the parties agreed to arbitrate representative claims, such as the [PAGA] claim in this case . . . .” Slip op. at 11-12. The United States Supreme Court has repeatedly left the question open, but has stated in the past that class proceedings change the scope and nature of arbitration so fundamentally that it cannot be assumed that the parties agreed to it implicitly, even though they entered into an arbitration agreement. The panel cited Concepcion, which held that class arbitration was inconsistent with arbitration under the Federal Arbitration Act, to support expanding its conclusions to representative claims in addition to classwide claims. Ultimately, the ruling vacated part of the trial court’s order and directed it to answer the question as to whether the parties agreed to arbitrate class and/or representative claims and to determine whether the PAGA claims should be bifurcated and handled outside of arbitration.


The PEOPLE, Plaintiff and Appellant, v. Alexis Alejandro FUENTES, Defendant and Respondent.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Holly D. Wilkens, Steven T. Oetting, Lise Jacobson and Kristen Kinnaird Chenelia, Deputy Attorneys General; Tony Rackauckas, District Attorney, and David R. Gallivan, Deputy District Attorney, for Plaintiff and Appellant. Frank Ospino, Public Defender, Jean Wilkinson, Chief Deputy Public Defender, Mark S. Brown, Assistant Public Defender, and Miles David Jessup, Deputy Public Defender, for Defendant and Respondent.
The issue presented here is whether a trial court has the discretion under Penal Code 1 section 1385, subdivision (a) (section 1385(a)) to dismiss a sentencing enhancement allegation for a gang-related offense (§ 186.22, subdivision (b)(1) (section 186.22(b)(1))), or if the court is limited to its authority under section 186.22, subdivision (g) (section 186.22(g)), which provides that “[n]otwithstanding any other law, the court may strike the additional punishment for the enhancements provided in this section.” In other words, by enacting section 186.22(g), did the Legislature eliminate a trial court's section 1385(a) discretion to dismiss or strike entirely a section 186.22(b)(1) gang enhancement?
For reasons that follow, we conclude that a trial court has the discretion to strike the gang enhancement altogether under section 1385(a).
On May 2, 2013, after an off-the-record conference in chambers, the trial court indicated the following: if defendant pleaded guilty to counts 1 and 2, the court would dismiss the gang enhancement allegation (§ 186.22(b)(1)), pursuant to its discretion under section 1385(a). The prosecutor, however, objected to the indicated sentence, arguing that the court lacked discretion to dismiss the enhancement and that its authority was limited to striking the additional punishment under section 186.22(g). Defendant moved to dismiss the gang enhancement allegation under section 1385(a).
As part of the agreement in which defendant pleaded guilty to the charges, he offered the following statements as a basis for his plea: “[O]n 3–14–13, I willfully took a car with the intent to deprive the owner of it and without consent of the owner. I was also in possession of such vehicle.” Over the District Attorney's objection, the trial court accepted the defense invitation to dismiss the gang enhancement allegation under section 1385(a). The court orally stated its reasons for dismissing the enhancement allegation; however, those reasons are not reflected in the court minutes. The trial court pronounced judgment and placed defendant on three years' probation with additional terms and conditions.
The District Attorney appealed. He argued that the phrase “[n]otwithstanding any other law” in section 186.22(g) shows the Legislature intended that section to replace or supplant the court's general authority under section 1385(a) to strike or dismiss gang allegations. For that reason, the trial court had the authority to strike the additional punishment for the enhancement, but not the enhancement itself. Disagreeing with a decision from a different division within its district (People v. Campos (2011) 196 Cal.App.4th 438), the Court of Appeal here stated that the “[n]otwithstanding any other law” phrase supports the District Attorney's interpretation only if section 186.22(g) is “contrary to, in conflict with, or inconsistent” with section 1385(a). It concluded section 186.22(g) was not. Therefore, under section 1385(a), the trial court had the discretion to dismiss the gang enhancement allegation altogether, and it was not limited to striking the additional punishment for the enhancement under section 186.22(g).
Because the trial court failed to state its “reasons for the dismissal ․ in an order entered upon the minutes,” as section 1385(a) mandated at the time (see Stats.2000, ch. 689, § 3, p. 4558), the Court of Appeal remanded the case to the trial court to allow it to do so. (See People v. Bonnetta (2009) 46 Cal.4th 143, 151 [§ 1385's “mandatory requirement” for court's written minute order].)2 It affirmed the trial court's judgment in all other respects.
We granted the District Attorney's petition for review.
Since its inception nearly three decades ago, the STEP Act has provided trial courts with the discretion to “strike the additional punishment for the enhancements provided in” section 186.22. (§ 186 .22, former subd. (b)(4) [now § 186.22(g) ]; Stats.1988, ch. 1242, § 1, pp. 4127–4130.) After several amendments,3 section 186.22(g) currently provides in full: “Notwithstanding any other law, the court may strike the additional punishment for the enhancements provided in this section or refuse to impose the minimum jail sentence for misdemeanors in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition.” (Italics added.) Under section 186.22(g), a trial court's discretion is limited to striking any additional punishment for an enhancement provided in section 186.22(b)(1), and to refusing to impose a minimum jail sentence for section 186.22(d), in “the interests of justice.” It does not authorize striking the enhancement itself.
In 1988, defendant maintains, section 1385 did not specifically allow a trial court to dismiss only the punishment for an enhancement; that express authority came over a decade later with the Legislature's enactment of section 1385(c)(1). (Stats.2000, ch. 689, § 3, pp. 4558–4559.) Thus, when enacted, section 186.22(g) (originally codified as § 186.22, subd. (d)), “complemented, rather than displaced, section 1385(a) by granting the trial court such additional power.” The People, however, describe this reasoning as based on a “technicality” and one that is “illusory,” and maintain a conflict did exist between section 1385 and section 186.22 in 1988. Notwithstanding the subsequent enactment of section 1385(c)(1), the People counter that section 1385(a), at all times relevant here, also included the discretion to strike just the punishment of an enhancement. That discretion was also set out in former section 1170.1(h) with respect to certain enumerated enhancements, until it was repealed in 1997. We briefly recount the relevant history below.
We affirm the Court of Appeal's judgment and remand the matter with directions to affirm the trial court's judgment.
FN1. All further statutory references are to the Penal Code unless otherwise noted.. FN1. All further statutory references are to the Penal Code unless otherwise noted.
4. As noted above (see ante, at p. 3, fn. 2), section 1385(a) no longer requires that the court's reasons be set out in the minutes in all cases.
6. As discussed further below (see post, at pp. 10–11), former section 1170.1(h) was repealed in 1997.
WE CONCUR: CANTIL–SAKAUYE, C. J., WERDEGAR, CORRIGAN, LIU, CUÉLLAR, and KRUGER, JJ.


text:
Neutral citation: 2005 SCC 50.
2005: May 10; 2005: September 30.
Criminal law — Evidence — Admissibility — Post‑offence conduct — Right to silence — Accused going to police station of his own volition and asking that officers be sent to a ranch where he lived — Accused refusing to answer police’s questions as to why officers were needed — Three murder victims found at the ranch — Trial judge instructing jury that accused’s silence was post‑offence conduct and that an inference of guilt could be drawn from it — Whether evidence of accused’s silence admissible as post‑offence conduct.
Criminal law — Right to silence — Limits — Waiver — Accused going to police station of his own volition and asking that officers be sent to a ranch where he lived — Accused refusing to answer police’s questions as to why officers were needed — Whether right to silence engaged if accused not detained or arrested — Whether accused waived his right to silence by voluntarily going to police station and answering some questions.
The accused went to a police station and asked that a car be sent to the ranch where he lived. Despite repeated questions from the police, he refused to explain why a car was necessary or what would be found there. The officers dispatched to the ranch discovered three victims. All three died from axe wounds to the head. The accused was charged with three counts of second degree murder. At trial, the evidence against the accused was entirely circumstantial. He admitted finding the victims but denied killing them. With respect to the accused’s refusal to respond to some police questioning, the trial judge told the jury that this silence was “post‑offence conduct” and that an inference of guilt could be drawn from it. The jury found the accused guilty, but the Court of Appeal set aside the convictions and ordered a new trial.
Referred to: R. v. Chambers,  2 S.C.R. 1293; R. v. White,  2 S.C.R. 72; Rothman v. The Queen,  1 S.C.R. 640; R. v. Hebert,  2 S.C.R. 151; R. v. B. (S.C.) (1997), 36 O.R. (3d) 516; R. v. Crawford,  1 S.C.R. 858; R. v. Lavallee,  O.J. No. 540 (QL); R. v. Ouellette (1997), 200 A.R. 363; R. v. M.C.W. (2002), 169 B.C.A.C. 128, 2002 BCCA 341; R. v. Cleghorn,  3 S.C.R. 175.
APPEAL from a judgment of the British Columbia Court of Appeal (Finch C.J. and Rowles and Huddart JJ.A.) (2004), 195 B.C.A.C. 276, 319 W.A.C. 276, 184 C.C.C. (3d) 242,  B.C.J. No. 562 (QL), 2004 BCCA 175, setting aside a conviction on three counts of second degree murder. Appeal dismissed.
Oleh Kuzma, Q.C., and Ursula Botz, for the appellant.
Greg DelBigio and Lisa Sturgess, for the respondent.
Ian R. Smith, for the intervener the Criminal Lawyers’ Association (Ontario).
1 Abella J. — On May 4, 2000, three men who lived or worked at a ranch in British Columbia were murdered there. All three died from axe wounds to the head.
2 One of the victims, Aale Heikkila, was a trapper and wildlife photographer who lived on the ranch. The police found him unconscious with serious injuries. He died on May 24, 2000 without regaining consciousness. The two other victims, Terrance Price and Kimberley Martindale, were ranch hands who worked for the owner, Robert Erhorn. They were dead when the police arrived.
3 Thomas Turcotte, who was living rent‑free in a cabin on the ranch in exchange for doing odd jobs for Mr. Erhorn, testified that he found the three bodies. At trial, he admitted finding the victims but denied killing them.
4 He was convicted of murdering the three men. The evidence against him was entirely circumstantial.
5 Mr. Turcotte’s conduct the morning he went to the police station of his own volition and asked that a car be sent to the ranch frames this appeal. Despite repeated questions from the police, he refused to explain why a car was necessary or what would be found at the ranch. The trial judge told the jury that this silence was “post-offence conduct”, and that an inference of guilt could be drawn from it.
6 The issue is the propriety of both the designation and the inference.
7 On May 4, 2000, according to Mr. Turcotte, after doing some work on a neighbour’s property, he returned to the ranch between 6:25 and 6:45 a.m. The ranch is located about 32 kilometres south of the town of Vanderhoof. He said that he found Kimberley Martindale lying on the ground, covered in blood and not breathing. He then found Terrance Price in the woodshed, covered in blood. It was Mr. Turcotte’s impression that Mr. Price had been shot. The last body he said he found was that of Aale Heikkila, on the ground outside his trailer.
8 Mr. Turcotte testified that, thinking all three men were dead, he decided to inform the police. Since there were no working phones on the ranch, he took Mr. Heikkila’s truck and drove to the Vanderhoof RCMP detachment.
9 As soon as he arrived, at about 9:30 a.m., he repeatedly asked a clerk working at the detachment, Ruth Stewart, to send a car to the ranch. A few minutes after his arrival at the detachment, Ms. Stewart asked the two police officers who were present while Mr. Turcotte was talking to her, Corporal Kenneth Curle and Constable Ross Davidson, to take over. According to Constable Davidson, Mr. Turcotte immediately and repeatedly requested that the officers send a car to the ranch, but refused to explain why. Mr. Turcotte, Constable Davidson said, then pushed a set of keys under the partition between the office and the front foyer and told him that the keys were for the locked truck parked outside and that there was a rifle in the truck.
10 After a few minutes, both officers escorted Mr. Turcotte into an interview room. On the way, Corporal Curle asked Mr. Turcotte his name, which he gave without hesitation. In the interview room itself, in response to questions from the officers, Mr. Turcotte gave them his middle name and date of birth.
11 Once seated in the interview room, Mr. Turcotte repeated his request that a car be sent to the Erhorn Ranch. Corporal Curle testified that he then asked him three questions in quick succession: What can we do for you? What happened out there? What were you doing there? Mr. Turcotte responded that he was “working a little bit”. According to Corporal Curle, Mr. Turcotte then stated, “you’d better send a car and put me in jail” and “[t]here’s a rifle in the truck out there.” At trial, Mr. Turcotte’s explanation for telling the police that there was a rifle in the truck was that he thought it might have been the murder weapon. The evidence disclosed that the rifle, which belonged to Mr. Heikkila was not in fact used in any of the murders.
12 Corporal Curle asked what they would find at the ranch. Mr. Turcotte repeated that the officers should send a car. They then asked him if anyone, including any officers, would be in danger there. Mr. Turcotte replied that there was no danger.
13 It was Constable Davidson’s evidence that Mr. Turcotte then told the officers “out of the blue” that they should “[s]end an ambulance too”. Corporal Curle did not recall the subject of an ambulance being raised at this point, and his notes, which he took during the conversation in the interview room, had no reference to an ambulance being mentioned at this stage of the conversation.
14 Corporal Curle then took Mr. Turcotte to another area of the detachment and dispatched two officers, Constables Michael Pisio and Marion Erickson, to the Erhorn Ranch. It was at this stage that Corporal Curle said he asked Mr. Turcotte whether an ambulance was needed. As a result of Mr. Turcotte answering “maybe”, Corporal Curle sent an ambulance to the ranch.
15 Constable Davidson then took the keys Mr. Turcotte had given them and unlocked Mr. Heikkila’s truck. He found a loaded hunting rifle between the two front seats.
16 At about 10:00 a.m., Corporal Curle asked Mr. Turcotte “Do you want to tell me what is going on?” He replied “Has a car got there yet?” When Corporal Curle responded “No”, Mr. Turcotte said “I’ll wait.” Just after this conversation, Corporal Curle received a phone call from Constable Pisio who told him that a dead man had been found at the ranch.
17 At 10:06 a.m., Corporal Curle detained Mr. Turcotte for further investigation and informed him of his rights. When Mr. Turcotte was asked whether he wanted to talk about what happened at the ranch, he once again indicated that he did not want to make a statement.
18 After his detention, Mr. Turcotte’s clothing was seized. A small amount of blood, which turned out to belong to Mr. Price and Mr. Martindale, was found on his left boot and lower pant leg. His fingerprints matched those on an orange juice container and a “ghetto blaster” found at the scene of the crimes, both belonging to Mr. Heikkila.
19 At 4:33 p.m. that afternoon, Mr. Turcotte was arrested for the murders.
20 Despite a thorough search of the ranch shortly after the killings, no murder weapon was immediately found. It was not until two months later that a double-sided axe, the only weapon used in the murders, was found at the ranch under a tarp on top of Mr. Heikkila’s trailer. The defence argued that since Mr. Turcotte had been in custody since his arrest, someone else must have put the axe there.
21 Mr. Turcotte’s evidence at trial was that he never said “put me in jail” at the detachment. He acknowledged, however, that he might have told the officers to “lock me up” until the police got to the ranch so that they would shift their focus from him and deal with the situation at the ranch as quickly as possible.
22 As for the evidence of the fingerprints on Mr. Heikkila’s juice container and ghetto blaster, Mr. Turcotte testified that he might have handled them while working for Mr. Heikkila.
23 A defence expert, Daniel Christman, said that the amount of blood on Mr. Turcotte’s clothing was so small as to be consistent with his having found the bodies, but not with his being the murderer. Similarly, a Crown witness, Jennifer Rice, a forensic pathologist, testified that because of the location of the victims’ wounds, she would have expected the axe blows to Mr. Price and Mr. Martindale to have caused significant spattering of blood, of which there was no evidence on Mr. Turcotte when he came to the station.
24 The defence argued that Mr. Turcotte had clearly not cleaned up before coming to the police station, since Ms. Stewart testified that Mr. Turcotte’s hands were dirty when he arrived at the detachment, and Constable Davidson testified that he was wearing dirty work clothes.
25 When Mr. Turcotte was asked why he did not give the police a reason for sending a car to the ranch, he gave a number of explanations: he had “messed up”; he was in shock and had panicked; he “just wasn’t reacting right”; and he was not thinking clearly. He also answered that he did not know if he could trust the police and felt, from the way the police were acting, that he was already under suspicion.
26 According to the evidence, Mr. Turcotte was a loner, uncomfortable with people, suspicious of the police, and rarely went into town. He had no history of violence and the Crown offered no motive for the murders.
27 The Crown relied exclusively on circumstantial evidence, including Mr. Turcotte’s conduct at the police station; his fingerprints on the two items found at the ranch; and forensic analysis of the small blood stains found on Mr. Turcotte’s left boot and lower pant leg showing that the blood belonged to Mr. Price and Mr. Martindale. A Crown expert witness, Sergeant John Mellis, testified that the blood spatter may have been minimal because of the nature of the blows and the shape of the axe.
28 Several voir dires were held during the trial, but at no time did the defence take issue with the admissibility of Mr. Turcotte’s refusal to answer the police questions. The only disputed issue was the use to which the silence could be put by the jury.
You may hear questions and answers that relate to what he did and what he said from the time he was interviewed in the interview room of the Vanderhoof R.C.M.P. Detachment station up to the time he was formally arrested.
I am going to permit you to hear this evidence solely for the purpose of you assessing the evidence as it relates only to the state of mind of Mr. Turcotte at the time. I want you to be aware as you hear this evidence that a detained person has a right guaranteed by our Charter of Rights and Freedoms to remain silent . . . .
Under no circumstances can you draw any inference of guilt or innocence from the fact that a person . . . exercises his constitutional right to remain silent. The only purpose you may make of any of the evidence pertaining to the discussions between Corporal Curle and Mr. Turcotte is in relation to Mr. Turcotte’s state of mind at the time on May 4th, 2000.
And even though he claims to be in a state of shock and panic, he says he started suspecting that the police were suspecting him. That may tell you something about the guilty mind of Mr. Turcotte at the time. But again, it doesn’t show that he was in a state of shock or panic, but rather that he was thinking about what he said and chose to say what he wanted to say and didn’t want to say.
None of Davidson, Curle or Ms. Stewart observed any signs of shock or panic. In his own mind he’s thinking because he’s getting suspicious, and why would he get suspicious unless he had something to be guilty about? Why is he thinking the police suspect him? His mind is thinking about that and then he acts appropriately. . . . His mind throughout the course of the day shows no signs of panic, no signs of shock, it shows that he was thinking about what he did and said and was very careful about what he didn’t want to say.
Lastly, the Crown mentioned to you consciousness of guilt, or what I call post-offence conduct, and that is the post-offence conduct relating to why Mr. Turcotte did not just say there were three bodies out there.
There is a contest between the Crown and Mr. Turcotte as to whether his post‑offence conduct of not advising why he wanted a police car out at the ranch relates to the crimes charged in the Indictment, or to some other blameworthy act, or it was just a manifestation of the gruesome circumstances Mr. Turcotte happened on at the Erhorn Ranch. If you determine it relates to the crime charged then you may weigh that evidence when deciding whether Mr. Turcotte is guilty or not guilty of the offences charged. But if you determine it relates to the emotional circumstances of Mr. Turcotte at the time, or some other blameworthy act, then you should disregard the evidence and give it no weight in your deliberations as to whether Mr. Turcotte is guilty or not guilty.
32 The jury found Mr. Turcotte guilty of three counts of second degree murder. He was sentenced to life in prison with no eligibility for parole for 20 years.
33 The British Columbia Court of Appeal set aside the convictions and ordered a new trial: (2004), 195 B.C.A.C. 276, 2004 BCCA 175. The determinative issue on appeal was whether the trial judge’s instruction to the jury that they could draw an inference of guilt from Mr. Turcotte’s post‑offence conduct, specifically his silence, constituted reversible error.
34 Relying on R. v. Chambers,  2 S.C.R. 1293, Rowles J.A., writing for a unanimous court (Finch C.J. and Huddart J.A.), held that because there was no statutory or common law rule requiring Mr. Turcotte to respond to the police’s questions, he had the right to remain silent. She concluded that the evidence of silence was irrelevant, and that even if Mr. Turcotte’s evidence was disbelieved, his silence could not constitute affirmative evidence that he had committed the offences.
35 The Crown appealed. For the reasons that follow, I would dismiss the appeal.
36 The essence of the Crown’s argument is that Mr. Turcotte’s refusal to respond to some of the questions from the police can be relied on as post-offence conduct from which an inference of guilt can be drawn.
37 “Post-offence conduct” is a legal term of art. It is not meant to be a neutral term embracing all behaviour by an accused after a crime has been committed, but only that conduct which is probative of guilt. It is, by its nature, circumstantial evidence.
38 The more traditional designation of such conduct, “consciousness of guilt” evidence, was changed by this Court to “post-offence conduct” evidence in R. v. White,  2 S.C.R. 72. Major J. held, at para. 20, that use of the phrase “consciousness of guilt” should be discouraged because it might undermine the presumption of innocence or may mislead the jury. In White, at para. 19, Major J. provided a non-exhaustive list of conduct that is typically admitted as post-offence conduct evidence: flight from the scene of the crime or the jurisdiction in which the crime was committed; attempts to resist arrest; failure to appear at trial; and acts of concealment such as lying, assuming a false name, changing one’s appearance, and hiding or disposing of evidence. In White, the post-offence conduct was the accused’s running from the police to avoid arrest, the attempted disposal of one of the murder weapons, and fleeing the jurisdiction following the killing.
39 Although the terminology has been changed, the evidentiary concept has not. As with evidence of “consciousness of guilt”, only evidence after a crime has been committed that is probative of guilt can be relied on as “post-offence conduct”.
40 The first issue, therefore, is to determine whether the trial judge erred in designating Mr. Turcotte’s refusal to answer some of the police questions as “post-offence conduct” capable of supporting an inference of guilt. This in turn requires a determination of whether Mr. Turcotte had the right to refuse to answer the police’s questions. The Crown’s dual argument is that no right to silence was engaged in this case, but that even if it was, Mr. Turcotte’s conduct in going to the police station and answering some of the police’s questions, showed that it was a right he chose to waive.
42 Although its temporal limits have not yet been fully defined, the right to silence has also received Charter benediction. In R. v. Hebert,  2 S.C.R. 151, the first decision from this Court recognizing it as a s. 7 right, an accused, who had been arrested and advised of his rights, refused to provide a statement to the police after consulting counsel. He was then placed in a cell with an undercover officer posing as a suspect under arrest. During the course of their conversation, the accused incriminated himself. The question before the Court was whether the statement to the undercover officer was admissible. Writing for the majority, McLachlin J. held that it was not admissible because it violated the accused’s right to silence found in s. 7 of the Canadian Charter of Rights and Freedoms .
45 Although Chambers dealt specifically with silence after the accused had been cautioned, it would equally be “a snare and a delusion” to allow evidence of any valid exercise of the right to be used as evidence of guilt.
47 Evidence of silence is, however, admissible in limited circumstances. As Cory J. held in Chambers, at p. 1318, if “the Crown can establish a real relevance and a proper basis”, evidence of silence can be admitted with an appropriate warning to the jury.
48 There are circumstances where the right to silence must bend. In R. v. Crawford,  1 S.C.R. 858, for example, the Court was confronted with a conflict between the right to silence and the right to full answer and defence. Two men were charged with second degree murder after a man was beaten to death. At their joint trial, each blamed the other. Crawford, one of the accused, had not given the police a statement, but he chose to testify at trial in his own defence. His co-accused’s counsel cross-examined him on his failure to make a statement to the police. This failure was negatively contrasted with the fact that his co-accused had given a full statement to the police at the earliest opportunity. Sopinka J., writing for the majority, held that a balance between the two competing rights can be achieved if the evidence of silence is admitted, but used only to assess credibility and not to infer guilt. Since the jury had been invited to infer guilt from Crawford’s silence, the Court ordered a new trial.
49 Evidence of silence may also be admissible when the defence raises an issue that renders the accused’s silence relevant. Examples include circumstances where the defence seeks to emphasize the accused’s cooperation with the authorities (R. v. Lavallee,  O.J. No. 540 (QL) (C.A.)); where the accused testified that he had denied the charges against him at the time he was arrested (R. v. Ouellette (1997), 200 A.R. 363 (C.A.)); or where silence is relevant to the defence theory of mistaken identity and a flawed police investigation (R. v. M.C.W. (2002), 169 B.C.A.C. 128, 2002 BCCA 341).
50 Similarly, cases where the accused failed to disclose his or her alibi in a timely or adequate manner provide a well established exception to the prohibition on using pre-trial silence against an accused: R. v. Cleghorn,  3 S.C.R. 175. Silence might also be admissible if it is inextricably bound up with the narrative or other evidence and cannot easily be extricated.
51 The Crown argued that any right to silence is engaged only when the accused comes within “the power of the state” and that the right has no relevance when the state has done nothing to use that power against the individual. This, with respect, makes the right’s borders too confining. In general, absent a statutory requirement to the contrary, individuals have the right to choose whether to speak to the police, even if they are not detained or arrested. The common law right to silence exists at all times against the state, whether or not the person asserting it is within its power or control. Like the confessions rule, an accused’s right to silence applies any time he or she interacts with a person in authority, whether detained or not. It is a right premised on an individual’s freedom to choose the extent of his or her cooperation with the police, and is animated by a recognition of the potentially coercive impact of the state’s authority and a concern that individuals not be required to incriminate themselves. These policy considerations exist both before and after arrest or detention. There is, as a result, no principled basis for failing to extend the common law right to silence to both periods.
52 Nor do I share the Crown’s view that by attending at the detachment and answering some of the police’s questions, Mr. Turcotte waived any right he might otherwise have had. A willingness to impart some information to the police does not completely submerge an individual’s right not to respond to police questioning. He or she need not be mute to reflect an intention to invoke it. An individual can provide some, none, or all of the information he or she has. A voluntary interaction with the police, even one initiated by an individual, does not constitute a waiver of the right to silence. The right to choose whether to speak is retained throughout the interaction.
54 Even before his detention at 10:06 a.m., Mr. Turcotte had no duty to speak to or cooperate with the police. He exercised this right by refusing to answer some of the questions put to him by the police, declining to explain why a car should be sent to the Erhorn Ranch and refusing to say what the police would find there. Although he answered some of the police’s questions, when he did not answer others he was nonetheless exercising his right to silence.
55 This is significant in deciding whether evidence of his silence was admissible as post-offence conduct, that is, evidence that is probative of guilt. Conduct after a crime has been committed is only admissible as “post-offence conduct” when it provides circumstantial evidence of guilt. The necessary relevance is lost if there is no connection between the conduct and guilt. The law imposes no duty to speak to or cooperate with the police. This fact alone severs any link between silence and guilt. Silence in the face of police questioning will, therefore, rarely be admissible as post-offence conduct because it is rarely probative of guilt. Refusing to do what one has a right to refuse to do reveals nothing. An inference of guilt cannot logically or morally emerge from the exercise of a protected right. Using silence as evidence of guilt artificially creates a duty, despite a right to the contrary, to answer all police questions.
56 Since there was no duty on Mr. Turcotte’s part to speak to the police, his failure to do so was irrelevant; because it was irrelevant, no rational conclusion about guilt or innocence can be drawn from it; and because it was not probative of guilt, it could not be characterized for the jury as “post-offence conduct”.
That may tell you something about the guilty mind of Mr. Turcotte at the time. But again, it doesn’t show that he was in a state of shock or panic, but rather that he was thinking about what he said and chose to say what he wanted to say and didn’t want to say.
In order to make this claim, it was necessary for the Crown to suggest that his silence was motivated by a different state of mind, namely his guilty conscience. Characterizing the silence as state of mind evidence was simply another way of arguing that the silence was post-offence conduct probative of Mr. Turcotte’s guilt.
58 While not admissible as post-offence conduct or state of mind evidence, Mr. Turcotte’s behaviour at the RCMP detachment, including his refusal to answer some of the police’s questions, was, arguably, admissible as an inextricable part of the narrative. As previously indicated, no issue was raised about its admissibility either at trial or on appeal. But, having admitted his silence into evidence, the trial judge was obliged to tell the jury in the clearest of terms that it could not be used to support an inference of guilt in order to contradict an intuitive impulse to conclude that silence is incompatible with innocence. Where evidence of silence is admitted, juries must be instructed about the proper purpose for which the evidence was admitted, the impermissible inferences which must not be drawn from evidence of silence, the limited probative value of silence, and the dangers of relying on such evidence.
59 The failure to give the jury this limiting instruction, particularly given the circumstantial nature of the Crown’s case, was highly prejudicial.
60 Given the significance of the error, I agree with the Court of Appeal that the curative proviso is inapplicable and a new trial is required.
61 I would dismiss the appeal.
Solicitor for the appellant: Attorney General of British Columbia, Prince George.
Solicitor for the respondent: Gregory P. DelBigio, Vancouver.
Solicitors for the intervener: Fenton, Smith, Toronto.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


Anderson v. W.A. Crosscup, Inc. et al.
The respondents, W.A. Crosscup, Inc. and Hartford Insurance Group, were represented by Jason Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents, W.A. Crosscup, Inc. and Hartford Insurance Group, have appealed from the March 12, 2004 Finding and Dismissal of the Commissioner acting for the Third District. We remand the case to the trial commissioner for further proceedings consistent with this opinion.
The claimant worked for various employers during that time. Two of those employers were uninsured for Workers’ Compensation purposes during certain time periods which the claimant was in their employment. The claimant worked for Joseph Cohn & Sons who were uninsured for Workers’ Compensation from August 1983 through January 1984 and January 1989 through October 1989. Additionally, the claimant worked for Ken Waterworth, Inc. who was uninsured for Workers’ Compensation from November 1989 through January 1990.
Hartford Insurance has expended $119,170.36 associated with the claimant’s left knee injury and $77,330.80 for the claimant’s carpal tunnel claim. The claimant’s treating physician’s report indicated that the claimant’s repetitive trauma work has caused the claimed injuries. Based on this report the Second Injury Fund and Hartford Insurance agree that the period of no insurance with Joseph Cohn & Sons is equivalent to 7.3% of the total liability in the case and the period of no insurance with Ken Waterworth, Inc., equates to 1.5% of the total liability in the case. The parties agree that based on the total payments Hartford Insurance has made the amount of reimbursement claimed against Joseph Cohn & Sons is $14,344.58 and the amount of reimbursement claimed against Ken Wortherworth, Inc. is $2,947.52.
The Second Injury Fund denies liability to Hartford Insurance under §§ 31-299b or 31-355. The Second Injury Fund asserts that neither §§ 31-299b or 31-355 nor any other statutory scheme allows the last carrier to seek reimbursement from the Second Injury Fund for a repetitive trauma claim.
The Second Injury Fund argues that it is not responsible for reimbursement to Hartford Insurance under §§ 31-299b or 31-355. It contends that § 31-299b applies to employers or insurers and not the Second Injury Fund. Similarly, it contends that § 31-355 creates a duty for the Second Injury Fund to pay compensation to a claimant who was employed by an uninsured employer, but does not mandate payment to a § 31-299 carrier.
“The statute clearly requires first that an award be made against the liable employer; only after it is found that the employer has failed to pay, may an order enter against the Fund.” Bethune v. A & A Seaford, 9 Conn. Workers’ Comp. Rev. Op. 79, 927 CRD-3-89-10 (February 20, 1991) citing Kramer v. General Electric Co., 37 Conn. Sup. 742 (1981). In this case there was never a § 31-355 order, therefore, the case must be remanded to the trial commissioner for consideration of a § 31-355 order. Technically, until there is a § 31-355 order we cannot consider whether Hartford Insurance can seek reimbursement from the Second Injury Fund under § 31-299b.
However, we note that there is nothing in § 31-355 that restricts to whom the Second Injury Fund makes payments after the § 31-355 order is in place. We have previously found that there are instances where the Second Injury Fund steps into the shoes of the employer regarding liability. Taylor v. Ron Fournier Builders, 4257 CRB-5-00-6 (July 30, 2001).2 Section 31-355 mandates in cases where the employer fails or is unable to pay a compensation award that the unpaid compensation be paid by the Second Injury Fund.
This definition appears to be broad enough to include a full and final stipulation. However as we stated previously, a determination regarding the § 31-355 order is a prerequisite to any further conclusions regarding apportionment being made.
The parties devote much discussion in their briefs to the case of Konovaluk v. Graphite Die Mold, Inc., 4437 CRB-3-01-9 (August 8, 2002), which dealt with a § 31-299b apportionment situation involving a number of insurers, including an insurer that had been declared insolvent. Potential liability on the part of the Second Injury Fund was implicated in that case, as a portion of the claimant’s exposure to metallic dust while working for one of his former employers was during a period when the employer carried no workers’ compensation insurance. However, none of the parties to that appeal raised the issue of the Fund’s involvement separately from that of the remaining solvent insurers. The thrust of this board’s decision in Konovaluk was on the effect of Hunnihan v. Mattatuck Manufacturing, Inc, 243 Conn. 438 (1997), where our Supreme Court held that the Connecticut Insurance Guaranty Association (CIGA), which had assumed liability for an insolvent insurer’s covered claims under § 38a-838(6) C.G.S., was not responsible for reimbursing a workers’ compensation insurer for a proportionate share of the insolvent insurer’s liability under § 31-299b. That definition of “covered claim” excepts claims made by insurers “as subrogation recoveries or otherwise.” The Hunnihan Court held that, given the express meaning of “otherwise” and the legislative purpose underlying the guaranty act (which was to protect policyholders and claimants, not other insurers), a claim by an insurer under § 31-299b was not a “covered claim” under the Connecticut Insurance Guaranty Act.
In Konovaluk, this board determined that the period of liability attributable to an insolvent insurer under § 31-299b should be apportioned among the remaining solvent insurers, based upon their proportionate shares of liability for the rest of the exposure period. No attempt was made to delve into possible complications involving the Second Injury Fund as a potential § 31-299b payor on behalf of an uninsured employer. The Fund’s general liability for claims against uninsured employers under § 31-355 does not stand on the same statutory footing as CIGA’s liability for the claims of insolvent insurers, as § 31-355(e) specifically accepts claims against insolvent insurers from the responsibility of the Fund, and assigns them to CIGA under §§ 38a-836 - 38a-853 C.G.S. There is no language in chapter 568 similar to that of the “covered claim” exception in § 38a-838(6) that would exempt the Fund from being liable to an insurer pursuant to a § 31-299b reimbursement claim. Thus, our holding in Konovaluk is not directly on point to the instant case.


(iii) If the defendant is assessed under subparagraph (ii) to be in need of treatment, the defendant must participate and cooperate with a licensed alcohol or drug addiction treatment program.
(iv) The defendant must remain subject to court supervision for at least six months, but not more than 12 months..
The Defendant must also make restitution, pay fines, and get follow up treatment as set forth at greater length by statute. Call our Pennsylvania attorneys today for a free consultation!
We explain your rights and options concerning ARD in summary and non-summary cases. You should talk to an attorney to see how ARD might apply to your particular case involving DUI (drunk driving – driving under the influence of drugs or alcohol), assault, theft, drug crimes, burglary, robbery, abuse, harassment, or other crime.
Our Western Pennsylvania law firm handles ARD cases in Pittsburgh and the surrounding areas, including Beaver, Butler, Washington, Westmoreland, and Allegheny Counties. Below you will find the actual language of the Pennsylvania Statute concerning ARD in Court cases (non-summary cases) that was updated as of early 2010. You should talk to an attorney to see how ARD might apply to your particular case involving DUI (drunk driving – driving under the influence of drugs or alcohol), assault, theft, drug crimes, burglary, robbery, abuse, harassment, or other crime.
Rule 310. Motion for Accelerated Rehabilitative Disposition.
After criminal proceedings in a court case have been instituted, the attorney for the Commonwealth may move, before a judge empowered to try court cases, that the case be considered for accelerated rehabilitative disposition.
Rule 311. Application Process and Notice of Motion by Attorney for the Commonweatlh.
(A) When accelerated rehabilitative disposition proceedings are initiated, the attorney for the Commonwealth shall advise the defendant and the defendant’s attorney of the attorney for the Commonwealth’s intention to present the case to an appropriate judge. Notice of the proceedings shall be given also to any victim or victims of the offense charged.
(B) Information or statements supplied by the defendant to the attorney for the Commonwealth in an ARD application shall not be used against the defendant for any purpose in any criminal proceedings except a prosecution based on the falsity of the information or statement supplied.
Our Pittsburgh criminal defense attorneys explain your rights and options for all cases in matters involving ARD Western Pennsylvania. The Commonwealth of Pennsylvania provides a “comment” section in regard to certain statues to explain the reasoning behind the law governing ARD in summary and non-summary cases.
Below please find the reasoning behind the Pennsylvania statue governing ARD. You should consult with an attorney to see how ARD might apply to your particular case involving DUI (drunk driving – driving under the influence of drugs or alcohol), assault, theft, drug crimes, burglary, robbery, abuse, harassment, or other crime. Call our attorneys if you have any questions.
The rules set forth in this Chapter govern the procedures with regard to Accelerated Rehabilitative Disposition in court cases and in summary cases. See Committee Report, 14 Pa.B. 3593 (10/6/84) and 554-557 A.2d (Pennsylvania Reporter Series), for discussion of the history of the use of pretrial diversion programs in Pennsylvania.
The rules in this Chapter provide the procedural framework for the utilization of Accelerated Rehabilitative Disposition by the judges of the courts of common pleas in court cases and in summary cases, and by the minor judiciary in summary cases. These rules do not specify those classes of offenses or offenders that are eligible or ineligible for inclusion in the ARD program. In general, the district attorney has the responsibility for determining which cases will be recommended for entry into the ARD program. See Commonwealth v. Lutz, 495 A.2d 928 (Pa. 1985).
Recognizing the minor nature of summary offenses and that the various judicial districts have different administrative requirements for processing and disposing of ARD cases, the procedures in Rules 300, 301, and 302 were adopted in 1991 to provide each judicial district with the procedural mechanism to structure its own summary case ARD program, either before the minor judiciary or, when the local option is elected by the district attorney pursuant to Rule 300, in the court of common pleas. The statewide rules are intended to simplify the procedures for summary case ARD and to encourage prompt processing and disposition of cases considered for ARD.
In addition to the procedural aspects of ARD set forth in these rules, there are statutory provisions setting forth requirements related to ARD in certain specified classes of cases. See, e.g., Sections 1534, 1548, 1552, and 3731 of the Vehicle Code, 75 Pa.C.S. § § 1534, 1548, 1552, and 3731, and § 1520(a) of the Judicial Code, 42 Pa.C.S. § 1520(a).
The district attorney is responsible for designating which classes of offenses or offenders may not be considered for ARD in summary cases. This is accomplished, pursuant to paragraph (B)(2), by the district attorney’s filing a certification with the president judge. In addition, there may be classes of offenses or offenders that are statutorily excluded. See, e.g., Section 1520(a) of the Judicial Code, 42 Pa.C.S. § 1520(a), which excludes cases charging offenses under Titles 34 and 75 from being considered for or included in the summary case adjudication alternative authorized by the statute.
The president judge in each judicial district must formulate local procedures pursuant to paragraph (D) for the actual implementation of the summary case ARD programs in the court of common pleas or before the minor judiciary within his or her judicial district, thereby providing county-wide uniformity. These locally formulated procedures may include procedures that are in addition to those required by the Rules of Criminal Procedure to take into account the special nature and the special dispositional and administrative requirements of summary cases generally and specifically within the judicial district. For example, the costs imposed on a defendant who is admitted into a summary case ARD program should not be the same as the costs imposed on a defendant for ARD in a court case, but rather should be adjusted downward and kept minimal to reflect the minor nature of the summary case. The president judge, however, must implement without change the district attorney’s elections made pursuant to paragraph (B). See Commonwealth v. Lutz, 495 A.2d 928 (Pa. 1985).


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: Netter, Frank H.(Frank Henry),1906-1991.
: Summit, N.J.: Ciba,, c1953-c1973.
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§ 329-1 Sidewalk pavement standards.
§ 329-2 Responsibility to construct or repair.
§ 329-3 Notice to construct or repair.
§ 329-5 Deposit against fire hydrants prohibited.
§ 329-6 Deposit in street prohibited.
§ 329-7 Violations and penalties.
Vehicles and traffic — See Ch. 378.
All sidewalk pavements on streets less than 40 feet in width shall be four feet in width from the house or terrace to the curb, not including the curb. All sidewalks pavements on streets over 40 feet in width shall be five feet in width from the house or terrace to the curb, not including the curb. The surface of the sidewalk shall slope toward the roadway at a grade of 1/4 inch per foot.
No cellar door shall be allowed on any sidewalk unless the same is made level with such pavement, and no cellar door shall be allowed to be more than four feet in length.
All sidewalks shall be made of concrete or brick, well laid in sand or concrete, and no other material shall be used in making any pavement except by prior written permission and consent from the Mayor and Council.
All pavements and sidewalks shall be supported along the outer edge thereof by concrete curbing, and no other material or support shall be used unless a special permit therefor shall be first granted by the Mayor and Council. All concrete curbing and sidewalks shall be constructed in accordance with the latest standard detail drawings prepared by or for the Town and as the same may be amended and approved from time to time.
It shall be the duty of the owner or owners of every lot or premises situated and lying within the corporate limits of the Town and fronting on any street to make or cause to be made, in conformity with such grade as may be furnished by the Mayor and Council, a pavement or sidewalk and gutter in front of such lot or premises, such pavement or sidewalk and gutter to be made of such material and in such manner as provided for by this article, unless the Mayor and Council grant permission to use other material. It shall further be the duty of such owner or owners to keep such pavement or sidewalk and gutter in good and substantial repair.
Before the owner or owners of any lot or premises fronting upon any street within the Town proceed to repair or pave any sidewalk or gutter in front of any such lot or premises, such owner or owners shall first apply to the Mayor and Council for the grade of such pavement, sidewalk or gutter.
Within 45 days from the date of posting of the notice, in cases where the posting of the notice is authorized.
The notice shall be made out by a duly authorized official of the Town and may be served upon the owner or owners of said lot or premises in person, or upon his or their agent, guardian or legal representative, or by mailing the same to the address listed for real property taxation purposes as maintained by the County Treasurer for Washington County, Maryland. If mailed, the date of service shall be presumed to be the third business day after the date of mailing.
In case said owner or owners are unknown, cannot be found, or there is no known address for the owner or owners, or an agent, guardian or legal representative, the notice may be posted on the premises involved by a duly authorized official of the Town.
A duly authorized official of the Town may grant an extension of time for performance of the work required pursuant to a notice sent under the provisions of this section. In addition, the Mayor and Council, for good cause shown by the owner or owners of any such lot or premises who have been issued a notice, may extend the time for repair for good cause shown in writing to the Mayor and Council. It shall be within the sole discretion of the Mayor and Council to determine whether the owner or owners of any such lot or premises who has/have been issued a notice pursuant to this section has/have shown good cause for an extension of time.
If the owner or owners of any such lot or premises adjoining any street in the Town shall neglect or refuse to establish and maintain a proper grade, pave or repair the pavement, sidewalk or curb adjoining such lot or premises within the period of 45 days after service of the notice as herein provided, in the manner as aforesaid, or within 45 days from the date of the posted notice as authorized in Subsection C above, the Town may cause the work which is the subject of the notice to be performed, according to the notice aforesaid, and the costs thereof shall be paid by the owner or owners of the adjoining property.
If paid by the Town, the Town shall bill the costs for compliance with the notice to the owner or owners of the adjoining lot or premises, which said costs shall be a lien upon the adjoining lot or premises, as additional real property taxes. Unless repaid, said costs shall be collected as unpaid real property taxes.
For the purposes of this section, a duly authorized official of the Town is any one of the following: the Director of the Town's Public Works Department or a duly authorized substitute, the Mayor of the Town, the Town Clerk-Treasurer or the Town Manager.
This article shall be known as and may be cited as the "Smithsburg Snow Removal Ordinance."
Editor's Note: Original § 13-4102, General provisions, which immediately followed this section, was repealed at time of adoption of Code (see Ch. 1, General Provisions, Art. II).
No person shall cause or permit to be deposited any snow or ice on or against any fire hydrant.
After cessation of the snowfall or condition causing the ice, no person shall cause or permit to be deposited any snow or ice in or on any area of a street after such area has been plowed, treated or cleared by snow removal equipment on behalf of the Town, county or state.
If any person violates any of the terms of the sections of this article, such person, upon conviction thereof, shall be guilty of an infraction and shall be fined $50 for a first offense. For a second offense within a calendar year, a person convicted shall be subject to a fine of $100. For a third or subsequent offense within a calendar year, a person convicted shall be subject to a fine of $250. In addition thereto, the Town may invoice the cost incurred by the Town to have the violation corrected to the adjacent property owner, which costs, if not paid within 30 days, shall be collected as additional unpaid real estate property taxes.