Ross v. RagingWire Telecommunications, Inc.

Opinion

The Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5, added by initiative, Prop. 215, as approved by voters, Gen. Elec. (Nov. 5, 1996)) gives a person who uses marijuana for medical purposes on a physician’s recommendation a defense to certain state criminal charges involving the drug, including possession (Health & Saf. Code, § 11357; see id., § 11362.5, subd. (d)). Federal law, however, continues to prohibit the drug’s possession, even by medical users. (21 U.S.C. §§ 812, 844(a)); see Gonzales v. Raich (2005) 545 U.S. 1, 26-29 [162 L.Ed.2d 1, *924125 S.Ct. 2195]; United States v. Oakland Cannabis Buyers’ Cooperative (2001) 532 U.S. 483, 491-495 [149 L.Ed.2d 722, 121 S.Ct. 1711].)

Plaintiff, whose physician recommended he use marijuana to treat chronic pain, was fired when a preemployment drug test required of new employees revealed his marijuana use. The lower courts held plaintiff could not on that basis state a cause of action against his employer for disability-based discrimination under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; see id., § 12940, subd. (a); hereafter the FEHA) or for wrongful termination in violation of public policy (see, e.g., Stevenson v. Superior Court (1997) 16 Cal.4th 880, 887 [66 Cal.Rptr.2d 888, 941 P.2d 1157]; Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170, 176-178 [164 Cal.Rptr. 839, 610 P.2d 1330]). We conclude the lower courts were correct: Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees. Under California law, an employer may require preemployment drug tests and take illegal drug use into consideration in making employment decisions. (Loder v. City of Glendale (1997) 14 Cal.4th 846, 882-883 [59 Cal.Rptr.2d 696, 927 P.2d 1200].) We thus affirm.

I. FACTS

This case comes to us on review of a judgment entered after the superior court sustained a demurrer to plaintiff’s complaint without leave to amend. In this procedural posture, the only question before us is whether plaintiff can state a cause of action. In reviewing the complaint to answer that question, we treat the demurrer as admitting the complaint’s well-pleaded allegations of material fact, but not its contentions, deductions or conclusions of law. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6 [40 Cal.Rptr.3d 205, 129 P.3d 394]; Serrano v. Priest (1971) 5 Cal.3d 584, 591 [96 Cal.Rptr. 601, 487 P.2d 1241].) The complaint’s allegations may be summarized for this purpose as follows:

Plaintiff Gary Ross suffers from strain and muscle spasms in his back as a result of injuries he sustained while serving in the United States Air Force. Because of his condition, plaintiff is a qualified individual with a disability under the FEHA and receives governmental disability benefits. In September 1999, after failing to obtain relief from pain through other medications, plaintiff began to use marijuana on his physician’s recommendation pursuant to the Compassionate Use Act.

On September 10, 2001, defendant RagingWire Telecommunications, Inc., offered plaintiff a job as lead systems administrator. Defendant required plaintiff to take a drug test. Before taking the test, plaintiff gave the clinic that *925would administer the test a copy of his physician’s recommendation for marijuana. Plaintiff took the test on September 14 and began work on September 17. Later that week, the clinic informed plaintiff by telephone that he had tested positive for tetrahydrocannabinol (THC), a chemical found in marijuana. On September 20, defendant informed plaintiff he was being suspended as a result of the drug test. Plaintiff gave defendant a copy of his physician’s recommendation for marijuana and explained to defendant’s human resources director that he used marijuana for medical purposes to relieve his chronic back pain. Defendant’s representative told plaintiff that defendant would call his physician, verify the recommendation, and advise him of defendant’s decision regarding his employment. On September 21, defendant’s board of directors met to discuss the matter and, on September 25, defendant’s chief executive officer informed plaintiff that he was being fired because of his marijuana use.

Plaintiff’s disability and use of marijuana to treat pain, he alleges, do not affect his ability to do the essential functions of the job for which defendant hired him. Plaintiff has worked in the same field since he began to use marijuana and has performed satisfactorily, without complaints about his job performance.

Based on these allegations, plaintiff alleges defendant violated the FEHA by discharging him because of, and by failing to make reasonable accommodation for, his disability. (Gov. Code, § 12940, subd. (a).) Plaintiff also alleges defendant terminated his employment wrongfully, in violation of public policy. (See Stevenson v. Superior Court, supra, 16 Cal.4th 880, 887; Tameny v. Atlantic Richfield Co., supra, 27 Cal.3d 167, 170, 176-178.) The superior court sustained defendant’s demurrer without leave to amend and entered judgment for defendant. The Court of Appeal affirmed. We granted plaintiff’s petition for review.

H. DISCUSSION

A. The FEHA

The FEHA declares and implements the state’s public policy against discrimination in employment. (Gov. Code, §§ 12920-12921.) The particular section of the FEHA under which plaintiff attempts to state a claim, Government Code section 12940, provides that “[i]t shall be an unlawful employment practice . . . (a) For an employer, because of the . . . physical disability [or] medical condition ... of any person, to refuse to hire or employ the person ... or to bar or to discharge the person from employment . ...” An employer may discharge or refuse to hire a person who, because of a disability or medical condition, “is unable to perform his or her *926essential duties even with reasonable accommodations.” (Id., § 12940, subd. (a)(1), (2).) The FEHA thus inferentially requires employers in their hiring decisions to take into account the feasibility of making reasonable accommodations.

Plaintiff, seeking to bring himself within the FEHA, alleges he has a physical disability in that he “suffers from a lower back strain and muscle spasms in his back . . . .” He uses marijuana to treat the resulting pain. Marijuana use, however, brings plaintiff into conflict with defendant’s employment policies, which apparently deny employment to persons who test positive for illegal drugs. By denying him employment and failing to make reasonable accommodation, plaintiff alleges, defendant has violated the FEHA. Plaintiff does not in his complaint identify the precise accommodation defendant would need to make in order to enable him to perform the essential duties of his job. One may fairly infer from plaintiff’s allegations, however, that he is asking defendant to accommodate his use of marijuana at home by waiving its policy requiring a negative drug test of new employees.1 “Just as it would violate the FEHA to fire an employee who uses insulin or Zoloft,” plaintiff argues, “it violates [the] statute to terminate an employee who uses a medicine deemed legal by the California electorate upon the recommendation of his physician.” In this way, plaintiff reasons, “the [FEHA] works together with the Compassionate Use Act... to provide a remedy to [him].”

Plaintiff’s position might have merit if the Compassionate Use Act gave marijuana the same status as any legal prescription drug. But the act’s effect is not so broad. No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law (21 U.S.C. §§ 812, 844(a)), even for medical users (see Gonzales v. Raich, supra, 545 U.S. 1, 26-29; United States v. Oakland Cannabis Buyers’ Cooperative, supra, 532 U.S. 483, 491-495). Instead of attempting the impossible, as we shall explain, California’s voters merely exempted medical users and their primary caregivers from criminal liability under two specifically designated state statutes. Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and obligations of employers and employees.

The FEHA does not require employers to accommodate the use of illegal drugs. The point is perhaps too obvious to have generated appellate litigation, but we recognized it implicitly in Loder v. City of Glendale, supra, 14 Cal.4th 846 (Loder). Among the questions before us in Loder was whether an employer could require prospective employees to undergo testing for illegal drugs and alcohol, and whether the employer could have access to the *927test results, without violating California’s Confidentiality of Medical Information Act (Civ. Code, § 56 et seq.). We determined that an employer could lawfully do both.2 In reaching this conclusion, we relied on a regulation adopted under the authority of the FEHA (Cal. Code Regs., tit. 2, § 7294.0, subd. (d); see Gov. Code, § 12935, subd. (a)) that permits an employer to condition an offer of employment on the results of a medical examination. (Loder, at p. 865; see also id. at pp. 861-862.) We held that such an examination may include drug testing and, in so holding, necessarily recognized that employers may deny employment to persons who test positive for illegal drugs. The employer, we explained, was “seeking information that [was] relevant to its hiring decision and that it legitimately may ascertain.” (Id. at p. 883, fn. 15.) We determined the employer’s interest was legitimate “[i]n light of the well-documented problems that are associated with the abuse of drugs and alcohol by employees—increased absenteeism, diminished productivity, greater health costs, increased safety problems and potential liability to third parties, and more frequent turnover . . . .” (Id. at p. 882, fn. omitted.) We also noted that the plaintiff in that case had “cite[d] no authority indicating that an employer may not reject a job applicant if it lawfully discovers that the applicant currently is using illegal drugs or engaging in excessive consumption of alcohol.” (Id. at p. 883, fn. 15.) The employer’s legitimate concern about the use of illegal drugs also led us in Loder to reject the claim that preemployment drug testing violated job applicants’ state constitutional right to privacy. (Id. at pp. 887-898; see Cal. Const., art. I, § 1.) In so holding we relied in part on Wilkinson v. Times Mirror Corp. (1989) 215 Cal.App.3d 1034, 1046-1053 [264 Cal.Rptr. 194], in which the Court of Appeal had earlier reached the same conclusion. (Loder, supra, at pp. 888-889.)

The Compassionate Use Act (Health & Saf. Code, § 11362.5) does not eliminate marijuana’s potential for abuse or the employer’s legitimate interest in whether an employee uses the drug. Marijuana, as noted, remains illegal under federal law because of its “high potential for abuse,” its lack of any “currently accepted medical use in treatment in the United States,” and its “lack of accepted safety for use . . . under medical supervision.” (21 U.S.C. § 812(b)(1); see Gonzales v. Raich, supra, 545 U.S. 1, 14.) Although California’s voters had no power to change federal law, certainly they were free to disagree with Congress’s assessment of marijuana, and they also were free to view the possibility of beneficial medical use as a sufficient basis for exempting from criminal liability under state law patients whose physicians recommend the drug. The logic of this position, however, did not compel the voters to take the additional step of requiring employers to accommodate *928marijuana use by their employees. The voters were entitled to change the criminal law without also speaking to employment law.

The operative provisions of the Compassionate Use Act (Health & Saf. Code, § 11362.5) do not speak to employment law. Except in their treatment of physicians, who are protected not only from “punish[ment]” but also from being “denied any right or privilege ... for having recommended marijuana” (id., subd. (c)), the act’s operative provisions speak exclusively to the criminal law. Subdivision (d) of section 11362.5 provides that “[sjection 11357, relating to the possession of marijuana, and [sjection 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.” Subdivision (e) of section 11362.5 simply defines . “primary caregiver.” The operative provisions do not mention employment law.

Neither is employment law mentioned in the findings and declarations (Health & Saf. Code, § 11362.5, subd. (b)(l)(A)-(C), (2)) that precede the Compassionate Use Act’s operative provisions. In those introductory provisions, the voters declared their intent “[tjo ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes” under the conditions stated in the act (id., subd. (b)(1)(A)), to ensure that medical users of marijuana and their primary caregivers “are not subject to criminal prosecution or sanction” (id., subd. (b)(1)(B)), and “[tjo encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana” (id., subd. (b)(1)(C)). In a final introductory provision, the voters declared that “[njothing in this section [i.e., the Compassionate Use Act] shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes.” (Id., subd. (b)(2).)

Plaintiff would read the first of these findings and declarations (Health & Saf. Code, § 11362.5, subd. (b)(1)(A)) as if it created a broad right to use marijuana without hindrance or inconvenience, enforceable against private parties such as employers. The provision states in full: “The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows: [f] (A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.” Not to require employers to accommodate marijuana use, plaintiff contends, “would eviscerate the right *929promised to the seriously ill by the California electorate.” To the contrary, the only “right” to obtain and use marijuana created by the Compassionate Use Act is the right of “a patient, or ... a patient’s primary caregiver, [to] possessf] or cultivate[] marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician” without thereby becoming subject to punishment under sections 11357 and 11358 of the Health and Safety Code. (Id., § 11362.5, subd. (d).) An employer’s refusal to accommodate an employee’s use of marijuana does not affect, let alone eviscerate, the immunity to criminal liability provided in the act. We thus give full effect to the limited “right to obtain and use marijuana” (id., subd. (b)(1)(A)) granted in the act (id., subd. (d)) by enforcing it according to its terms.

The proponents of the Compassionate Use Act (Health & Saf. Code, § 11362.5) consistently described the proposed measure to the voters as motivated by the desire to create a narrow exception to the criminal law.3 The proponents spoke, for example, of their desire to “protect patients from criminal penalties for marijuana” (Ballot Pamp., Gen. Elec. (Nov. 5, 1996) argument in favor of Prop. 215, p. 60) and not to “send cancer patients to jail for using marijuana” (id., rebuttal to argument against Prop. 215, p. 61). Although the measure’s opponents argued the act would “make it legal for people to smoke marijuana in the workplace ... or in public places . . . next to your children” (id., rebuttal to argument in favor of Prop. 215, p. 60), the argument was obviously disingenuous because the measure did not purport to change the laws affecting public intoxication with controlled substances (Pen. Code, § 647, subd. (f)) or the laws addressing controlled substances in such places as schools and parks (Health & Saf. Code, §§ 11353.5, 11353.7), and the act expressly provided that it did not “supersede legislation prohibiting persons from engaging in conduct that endangers others” (id., § 11362.5, subd. (b)(2)). Proponents reasonably countered the argument by observing that, under the measure, “[pjolice officers can still arrest anyone for marijuana offenses. Proposition 215 simply gives those arrested a defense in court, if they can prove they used marijuana with a doctor’s approval.” (Ballot Pamp., supra, rebuttal to argument against Prop. 215, p. 61.)4

*930In conclusion, given the Compassionate Use Act’s modest objectives and the manner in which it was presented to the voters for adoption, we have no reason to conclude the voters intended to speak so broadly, and in a context so far removed from the criminal law, as to require employers to accommodate marijuana use. As another court has observed, “the proponents’ ballot arguments reveal a delicate tightrope walk designed to induce voter approval, which we would upset were we to stretch the proposition’s limited immunity to cover that which its language does not.” (People v. Galambos (2002) 104 Cal.App.4th 1147, 1152 [128 Cal.Rptr.2d 844].)

Arguing against this conclusion, plaintiff notes that “ ' “[the] power of the initiative must be liberally construed ... to promote the democratic process.” ’ ” (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 219 [149 Cal.Rptr. 239, 583 P.2d 1281], quoting San Diego Bldg. Contractors Assn. v. City Council (1974) 13 Cal.3d 205, 210, fn. 3 [118 Cal.Rptr. 146, 529 P.2d 570].) There is no question, however, that the voters had the power to change state law concerning marijuana in any respect they wished. Thus, the question before us is not whether the voters had the power to change employment law, but whether they actually intended to do so. As we have explained, there is no reason to believe they did. For a court to construe an initiative statute to have substantial unintended consequences strengthens neither the initiative power nor the democratic process; the initiative power is strongest when courts give effect to the voters’ formally expressed intent, without speculating about how they might have felt concerning subjects on which they were not asked to vote. As plaintiff notes, “[t]he judiciary’s traditional role of interpreting ambiguous statutory language or ‘filling in the gaps’ of statutory schemes is, of course, as applicable to initiative measures as it is to measures adopted by the Legislature.” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1202 [246 Cal.Rptr. 629, 753 P.2d 585].) We detect, however, no relevant ambiguity in the Compassionate Use Act, which simply does not speak to employment law. In any event, our power to resolve ambiguities in statutory language is only a tool for achieving the ultimate goal of statutory interpretation, which is to effectuate the enactors’ intent.

Finally, plaintiff contends that legislation enacted after the Compassionate Use Act (Health & Saf. Code, § 11362.5) requires employers to accommodate employees’ use of medical marijuana at home. Plaintiff attempts to find such a rule in Health and Safety Code section 11362.785, subdivision (a) (added by Stats. 2003, ch. 875, § 2), which took effect more than two years after defendant terminated plaintiff’s employment. The statute provides as follows: “Nothing in this article shall require any accommodation of any medical use of marijuana on the property or premises of any place of employment or during the hours of employment or on the property or premises of any jail, correctional facility, or other type of penal institution in which prisoners *931reside or persons under arrest are detained.” (Health & Saf. Code, § 11362.785, subd. (a).) Plaintiff would read this language as if it articulated express exceptions to a general requirement of accommodation that appears only implicitly. Plaintiff’s interpretation might be plausible if the failure to infer a requirement of accommodation would render the statute meaningless, but such is not the case. Even without inferring a requirement of accommodation, the statute can be given literal effect as negating any expectation that the immunity to criminal liability for possessing marijuana granted in the Compassionate Use Act gives medical users a civilly enforceable right to possess the drug at work or in custody.

In any event, given the controversy that would inevitably have attended a legislative proposal to require employers to accommodate marijuana use, we do not believe that Health and Safety Code section 11362.785, subdivision (a), can reasonably be understood as adopting .such a requirement silently and without debate.

Arguing to the contrary as amici curiae, five present and former state legislators who authored the bill adding section 11362.785 to the Health and Safety Code state they “believed that this statutory enactment clearly and sufficiently expressed [their] belief that the FEHA does require employers generally to accommodate off-duty, off-premises medical cannabis use by their employees, absent an undue hardship.” Amici curiae do not assert, however, that they shared their view of the proposed legislation with the Legislature as a whole. We therefore have no basis for imputing the authors’ views to the whole Legislature. “ ‘In construing a statute we do not consider the motives or understandings of individual legislators who cast their votes in favor of it. [Citations.] Nor do we carve an exception to this principle simply because the legislator whose motives are proffered actually authored the bill in controversy [citation]; no guarantee can issue that those who supported his proposal shared his view of its compass.’ ” (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699-700 [170 Cal.Rptr. 817, 621 P.2d 856], quoting In re Marriage of Bouquet (1976) 16 Cal.3d 583, 589-590 [128 Cal.Rptr. 427, 546 P.2d 1371].)

We thus conclude that plaintiff cannot state a cause of action under the FEHA based on defendant’s refusal to accommodate his use of marijuana.

B. Wrongful Termination in Violation of Public Policy

Plaintiff also attempts, based on defendant’s refusal to accommodate his use of marijuana, to state a cause of action for wrongful termination in violation of public policy. The legal principles that underlie such a claim are well established: Either party to a contract of employment without a specified *932term may terminate the contract at will (Lab. Code, § 2922), but this ordinary rule is subject to the exception that an employer may not discharge an employee for a reason that violates a fundamental public policy of the state. (Stevenson v. Superior Court, supra, 16 Cal.4th 880, 887; Tameny v. Atlantic Richfield Co., supra, 27 Cal.3d 167, 170, 176-178.) To support such a cause of action, the policy in question must satisfy four requirements: “First, the policy must be supported by either constitutional or statutory provisions. Second, the policy must be ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual. Third, the policy must have been articulated at the time of the discharge. Fourth, the policy must be ‘fundamental’ and ‘substantial.’ ” (Stevenson v. Superior Court, supra, 16 Cal.4th 880, 889-890, fn. omitted.)

Defendant contends his discharge violated fundamental public policies supported by the Compassionate Use Act (Health & Saf. Code, § 11362.5), the FEHA (Gov. Code, § 12900 et seq.), and the privacy clause of the California Constitution (Cal. Const., art. I, § 1). We disagree.

The Compassionate Use Act (Health & Saf. Code, § 11362.5), as we have explained, simply does not speak to employment law. Nothing in the act’s text or history indicates the voters intended to articulate any policy concerning marijuana in the employment context, let alone a fundamental public policy requiring employers to accommodate marijuana use by employees. Because the act articulates no such policy, to read the FEHA in light of the Compassionate Use Act leads to no different result. Plaintiff argues that the statutory provision on which a wrongful termination claim is based “does not have to . . . prohibit the employer’s precise act. . . .” (Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 80-81 [14 Cal.Rptr.3d 893].) Even so, the provision in question still “ ‘must sufficiently describe the type of prohibited conduct to enable an employer to know the fundamental public policies that are expressed in that law’ ” (id. at p. 81, quoting Sequoia Ins. Co. v. Superior Court (1993) 13 Cal.App.4th 1472, 1480 [16 Cal.Rptr.2d 888]; see Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1256, fn. 9 [32 Cal.Rptr.2d 223, 876 P.2d 1022]) and to “ ‘have adequate notice of the conduct that will subject [the employer] to tort liability to the employees [it] discharge^]’ ” (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 79 [78 Cal.Rptr.2d 16, 960 P.2d 1046], quoting Stevenson v. Superior Court, supra, 16 Cal.4th 880, 889). The Compassionate Use Act did not put defendant on notice that employers would thereafter be required under the FEHA to accommodate the use of marijuana.

Plaintiff also argues that his discharge violated the public policy that underlies an adult patient’s right “to determine whether or not to submit to lawful medical treatment” (Cobbs v. Grant (1972) 8 Cal.3d 229, 242 [104 *933Cal.Rptr. 505, 502 P.2d 1])—a right we have located both in the privacy clause of the state Constitution (art. I, § 1) and in the common law. (Conservatorship of Wendland (2001) 26 Cal.4th 519, 531-532 [110 Cal.Rptr.2d 412, 28 P.3d 151].) The body of law to which plaintiff refers protects the right of competent adult patients to refuse medical treatment (id. at p. 531) and imposes, inferentially, an obligation on health care providers to seek patients’ informed consent before undertaking medical procedures (ibid.). Defendant’s decision not to accommodate plaintiff’s marijuana use does not implicate plaintiff’s right to refuse medical treatment.

In the course of this argument, plaintiff attempts to describe a right of medical self-determination broader than the right to refuse treatment we recognized in Conservatorship of Wendland, supra, 26 Cal.4th 519, 531-532, and in Cobbs v. Grant, supra, 8 Cal.3d 229, 242. Plaintiff relies on Abigail Alliance v. Von Eschenbach (D.C. Cir. 2006) 370 U.S. App.D.C. 391 [445 F.3d 470, 486], in which a federal court held that a terminally ill patient with no other government-approved treatment options had a due process right under the United States Constitution to have access to an investigational new drug that the Food and Drug Administration had not approved for commercial sale but had determined to be sufficiently safe for testing on human beings. Analogizing to Abigail Alliance, plaintiff argues that “[i]n California, medical marijuana use is legal, so under the state [Constitution RagingWire was not permitted to prohibit [plaintiff] from using it.” Assuming for the sake of argument Abigail Alliance has any relevance to the case before us, the decision does not compel a different result because defendant has not prevented plaintiff from having access to marijuana. Defendant has only refused to employ plaintiff. To assert that defendant’s refusal to employ plaintiff affects his access to marijuana is merely to restate the argument that the Compassionate Use Act (Health & Saf. Code, § 11362.5) gives plaintiff a right to use marijuana free of hindrance or inconvenience, enforceable against third parties. That argument we have already rejected. (See, ante, at pp. 928-929.)

We thus conclude plaintiff cannot state a cause of action for wrongful termination in violation of public policy.

m. DISPOSITION

The judgment of the Court of Appeal is affirmed.

George, C. J., Baxter, J., Chin, J., and Corrigan, J., concurred.