A-233-79
Sharon Anne Calder, Stephen Woodcock, Phyllis
Westhaver, Betty D. Godfrey, Richard West,
James E. Connors, Leighton Mousseau, Michael
Hughes, Namen Somerton, Mike Lelacheur,
Wendy Blenkhorn, Kathleen Tupper, Sylvia Weir,
Brent Molyneaux, Helen Wallace, Alexander
Ross, Esther Chesnutt, Gerald Conway, Margaret
Rogers, Judy Fobin, Harry Brightman, Gary
Tanner, Charles Cruikshank, Ethel Cunningham,
William Leadley, John Zinck, Jane Fillis, Cathe-
rine Barrett, Roderick MacEachern, Ezek J.
Essein, Carol G. Tattrie, Marjorie Falconer,
Robert Sugg, Leonard Ashe, Donald W. Cooke
and Margaret Bennett (Applicants)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Urie and Le Dain JJ. and Kelly
D.J.—Halifax, November 6; Ottawa, December
17, 1979.
Judicial review — Unemployment insurance — Application
to review and set aside Umpire's dismissal of appeal from
decision of Canada Employment and Immigration Commis
sion — Extended benefits received during extended benefit
period as permitted by s. 166(2) of the Unemployment Insur
ance Regulations — Incorrect statistical data used in deter
mining extended benefit period — Applicants were notified
that they were required to repay overpayment pursuant to s. 57
of the Act — Whether or not s. 166(2) of the Regulations was
ultra vires because of being unauthorized by s. 58(u) of the Act
— Whether or not s. 57 of the Act applied to the Commission's
failure, through its own fault, to apply provisions of s. 37 —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 —
Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48,
ss. 37(2)(b)(ii), 49(1), 57(1), 58(u) — Unemployment Insurance
Regulations, SOR/71-324, s. 166(2).
This is a section 28 application to review and set aside the
decision of an Umpire under the Unemployment Insurance Act,
1971, dismissing an appeal from a decision of a Board of
Referees, which had dismissed an appeal from a decision of the
Canada Employment and Immigration Commission. Appli
cants received extended benefits during an extended benefit
period determined by former section 37 of the Act. In making
this determination, the Commission was permitted by subsec
tion 166(2) of the Unemployment Insurance Regulations, to
use statistics provided by Statistics Canada. When it was
discovered that incorrect statistical data had been used in these
calculations, the Commission informed the applicants that the
overpayments were to be recovered pursuant to section 57 of
the Act. Applicants argue that the Umpire erred in law, firstly,
because subsection 166(2) of the Regulations was ultra vires as
it was not authorized by paragraph 58(u) of the Act, and
secondly, because section 57 of the Act did not apply to the
failure of the Commission, through its own error and without
fault on the part of the applicants, to apply the provisions of
section 37.
Held, the application is dismissed. The Commission has not
failed to exercise its regulation-making power under paragraph
58(u) because some matters of significance have been left to
the judgment of Statistics Canada. Under that section, the
Commission was to prescribe the period for which an average
of rates of unemployment should be determined for the pur
poses of section 37, but the Commission was not empowered to
prescribe how the rates themselves should be determined. In
leaving that statistical function to be carried out by Statistics
Canada the Commission was not delegating its regulation-mak
ing authority or converting it into a discretionary decision-mak
ing power, but was adopting for its own administrative purposes
statistical information produced by another agency. Parliament
indicated an intention that reliance may be placed on the rates
of unemployment determined by Statistics Canada. The
Umpire did not err in failing to hold that section 57 of the Act
does not apply to a case of overpayment as a result of computer
error by the Commission in the application of former section
37. It cannot be argued that section 57 impliedly contemplates
the reconsideration of a decision with respect to a claim for
unemployment insurance benefits and that in the present case
there was no decision to reconsider, but simply an operating
error in the processing of data received from Statistics Canada.
Langford v. Employment and Immigration Commission
[ 1979] 2 F.C. 693, distinguished.
APPLICATION for judicial review.
COUNSEL:
Edna Chambers, Andrew Pavey and Archie
Kaiser for applicants.
Martin C. Ward for respondent.
SOLICITORS:
Dalhousie Legal Aid Service, Halifax, for
applicants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
LE DAIN J.: This is a section 28 application to
review and set aside the decision of an Umpire
under section 95 of the Unemployment Insurance
Act, 1971, S.C. 1970-71-72, c. 48, dismissing an
appeal from a decision of a Board of Referees,
which had dismissed an appeal from a decision of
the Canada Employment and Immigration Com
mission.
The applicants are part of a much larger
number of unemployment insurance claimants in
the Province of Nova Scotia, said to be over 5,000,
from whom the Commission has claimed repay
ment of varying amounts of unemployment ben
efits paid to them during an extended benefit
period as a result of an error made by the Com
mission in the application of the relevant data. It
was agreed at the hearing before the Umpire that
the case of the applicant Sharon Anne Calder
should be taken as representative and that the
decision in her case should apply to that of the
other applicants. The applicants raise issues of law
which are common to them all. There is no dispute
of fact. The facts concerning the case of the appli
cant Sharon Anne Calder (hereinafter referred to
as "the applicant") indicate the general nature of
the Commission's decision in these cases.
The applicant was employed as a substitute
school teacher by the Halifax Board of School
Commissioners from February 10, 1976, to July
28, 1976, when she was laid off because of a
shortage of work. The applicant applied for unem
ployment insurance, and from the time of her
lay-off until June 1977, she received $202 in ben
efits every two weeks. On June 29, 1978, she
received a letter from the Commission informing
her that she was not entitled to the benefits she
had received from May 1, 1977, to June 11, 1977.
The letter reads as follows:
We regret to inform you that an error has been made on your
claim for Unemployment Insurance. The error caused us to pay
you benefits longer than we should between April and Septem-
ber last year.
The error was caused by an incorrect use of unemployment
rates in the region where you lived. The length of UI benefits
depends, in part, on this rate.
We are obliged by law to recover overpayments. It would be
much appreciated if yôu would contact your local UI office and
arrange to discuss your case.
We very much regret this error. With your cooperation, we
will do everything we can to limit hardship or inconvenience to
you. Please have ready any Records of Employment you have
not used to establish a claim as these may affect the
overpayment.
We are acting under the authority of the former Section 37
and the present Section 57 of the Unemployment Insurance
Act. Any decisions leading to overpayments are subject to
appeal. Therefore, once we have notified you of the amount of
the overpayment, you may appeal to a Board of Referees under
Section 94 of the Act. You may wish to discuss this when you
contact our office.
On July 31, 1978, the Commission sent the
applicant a "Notice of Non-Entitlement" which
stated in part:
After a review of your recent claim, we find that you were
not entitled to benefits from 1 May, 1977 to 11 June, 1977. As
a result, the Commission has decided that an overpayment of
benefits has been made to you.
This decision arises from an incorrect use, by the Commis
sion, of the unemployment rate in the region where you lived.
The length of time you are entitled to benefits depends, in part,
on this rate.
The Commission is obliged to recover this overpayment. We
will advise you shortly of the exact amount owing and you may
negotiate an installment repayment arrangement with the
Commission, if you have not already done so.
Across the bottom of this notice is printed the
words, "Pursuant to former Section 37 and present
Section 57 of the Unemployment Insurance Act,
1971."
By letter from the Commission the same date
the applicant was informed of the amount of the
alleged overpayment as follows:
An examination of your claim indicates that you have
received $606.00 in Unemployment Insurance benefits to which
you were not actually entitled.
This overpayment of benefits was caused by an incorrect use,
by the Commission, of the Unemployment Rate in the Region
where you lived.
The weeks for which overpayment was claimed
were the thirteenth to the eighteenth weeks inclu
sive of extended benefits at $101 per week.
The right to extended benefits in this case was
governed by section 37 of the Act, as it was before
being repealed effective September 11, 1977, by
the Employment and Immigration Reorganization
Act, S.C. 1976-77, c. 54, s. 41. By section 73 of the
latter Act the former section 37 applied to an
extended benefit period arising out of an initial
benefit period that was established before the
repeal. Former section 37 of the Act reads as
follows:
37. (1) When at the end of
(a) a re-established initial benefit period of a minor attach
ment claimant who has no extended benefit period under
section 34, or
(b) the extended benefit period under section 34 of any other
claimant
the rate of unemployment in the region where the claimant
resides (in this section called the "regional rate") exceeds four
per cent and the national rate of unemployment (in this section
called the "national rate") is less than the regional rate by
more than one percentage point, the claimant shall, if he resides
in Canada, be given an extended benefit period not exceeding
eighteen consecutive weeks and benefits are payable for any
week of unemployment that falls in that period and sections 35
and 36 are applicable thereto.
(2) Where a claimant is given an extended benefit period
under subsection (1), that extended benefit period terminates
(a) at the earlier of
(i) the end of the week immediately following a week in
which the difference between the national rate and the
regional rate becomes one percentage point or less or the
regional rate becomes four per cent or less, and
(ii) the end of the sixth week of such extended benefit
period if the national rate is less than the regional rate by
no more than two percentage points;
(b) if such extended period is not terminated under para
graph (a), at the earlier of
(i) the end of the week immediately following a week in
which the difference between the national rate and the
regional rate becomes two percentage points or less or the
regional rate becomes four per cent or less, and
(ii) the end of the twelfth week of such extended benefit
period if the national rate is less than the regional rate by
no more than three percentage points; or
(c) if such extended period is not terminated under para
graph (a) or (b), the earlier of
(i) the end of the week immediately following a week in
which the difference between the national rate and the
regional rate becomes three percentage points or less or the
regional rate becomes four per cent or less, and
(ii) the end of the eighteenth week of such extended
benefit period.
It will be seen from the foregoing provision that
the extended benefit period to which a claimant
was entitled under section 37 depended on the
"regional rate" of unemployment and the differ
ence between that rate and the "national rate" of
unemployment at a particular time. In applying
section 37 of the Act the Commission used average
monthly regional and national rates of unemploy
ment furnished to it by Statistics Canada. In doing
so, the Commission acted pursuant to subsection
166(2) of the Unemployment Insurance Regula
tions, which, as it read at the relevant times
(SOR/71-324), was as follows:
166....
(2) For the purposes of section 37 of the Act, "national rate
of unemployment" and "regional rate of unemployment" at any
time means the average of the unadjusted monthly national or
regional rates of unemployment respectively as determined by
Statistics Canada for the most recent twelve month period
immediately preceding the time for which those rates are
available.
The statutory authority under which subsection
166(2) of the Regulations purports to have been
made is paragraph (u) of section 58 of the Act,
which, as it read before it was replaced effective
September 11, 1977 by the Employment and
Immigration Reorganization Act, S.C. 1976-77, c.
54, s. 49(2), was as follows:
58. The Commission may, with the approval of the Governor
in Council, make regulations
(u) averaging any rates of unemployment for the purposes of
paying extended benefits and prescribing the manner in
which such averaging shall be carried out;
The submission of the Commission to the Board
of Referees, which forms part of the record,
explains the nature of the error that was made in
the application of the data received from Statistics
Canada. Referring to the regional and national
rates of unemployment specified in subsection
166(2) of the Regulations, the Commission stated:
Those rates are established monthly for each of the 16
regions described in Schedule B of the Regulations (see exhibit
3 and 4).
Each month, the Commission receives from Statistics
Canada a new set of unemployment rates. Those rates are
immediately coded and sent to various pay centers where they
are used until updated by more recent rates.
Following coding errors, computers at regional pay centers
were fed with erroneous data with the result that benefit
periods which should have terminated at a certain time con
tinued beyond the limits set by the Act.
Four different situations arose from those errors:
a) regionally extended benefits were paid while the differ
ence between the national rate and regional rate was equal to
one percent; this contravenes the requirements of section
37(1) of the Act.
b) regionally extended benefit periods which should have
terminated at the end of the week following the week in
which the difference between the national rate and the
regional rate had become equal to one percent continued; this
contravenes the requirements of section 37(2)(a)(i) of the
Act.
c) regionally extended benefits were paid beyond the twelfth
week while the difference between the national rate and the
regional rate was equal to three percent; this contravenes the
requirements of section 37(2)(b)(ii) of the Act.
d) regionally extended benefit periods which had started at
least twelve weeks before and which should have terminated
at the end of the week following the week in which the
difference between the national rate and the regional rate
had become equal to three percent continued; this contra
venes the requirements of section 37(2)(c)(i) of the Act.
The error in the applicant's case fell into catego
ry (c), that is, one which involved the application
of subparagraph 37(2)(b)(ii) of the Act. The
extended benefit period should have terminated at
the end of the twelfth week because the difference
between the regional rate and the national rate
was not more than three per cent.
The reconsideration of the claims of the appli
cants and the calculation of the amount to which
they were not entitled was made by the Commis
sion pursuant to subsection 57(1) of the Act,
which reads as follows:
57. (1) Notwithstanding section 102 but subject to subsec
tion (6), the Commission may at any time within thirty-six
months after benefit has been paid or would have been payable
reconsider any claim made in respect thereof and if the Com
mission decides that a person has received money by way of
benefit thereunder for which he was not qualified or to which
he was not entitled or has not received money for which he was
qualified and to which he was entitled, the Commission shall
calculate the amount that was so received or payable, as the
case may be, and notify the claimant of its decision.
Subsection 49(1) of the Act provides for repay
ment of an amount to which a claimant is not
entitled as follows:
49. (1) Where a person has received benefit under this Act
or the former Act for any period in respect of which he is
disqualified or any benefit to which he is not entitled, he is
liable to repay an amount equal to the amount paid by the
Commission in respect thereof.
Section 175 of the Regulations authorizes the
Commission, in certain cases, to declare that an
amount owing under section 49 of the Act is no
longer due and owing as follows:
175. (1) Amounts owing under sections 47, 49, 51 and 52 of
the Act may be declared by the Commission to be no longer
due and owing, where
(a) the sums in the aggregate do not exceed five dollars, and
a benefit period is not current;
(b) the claimant is deceased;
(c) the claimant is a discharged bankrupt;
(d) the claimant is an undischarged bankrupt, the final
dividend has been received and the trustee has been dis
charged; and
(e) the Commission considers that, having regard to all the
circumstances,
(i) the sums are uncollectable, or
(ii) the repayment of the sums would result in undue
hardship to the claimant.
(2) Where the Commission, pursuant to subsection (1),
declares that an amount is no longer due and owing, that
amount shall be written off.
The applicants contend that the Umpire erred in
law in dismissing the appeal from the decision of
the Board of Referees. They advance two grounds
of attack, which may be summarized as follows:
1. Subsection 166(2) of the Regulations is ultra
vires because it was not authorized by para
graph 58(u) of the Act;
2. Section 57 of the Act does not apply to a
failure of the Commission, through its own error
and without fault on the part of the claimant, to
apply the provisions of section 37 of the Act
respecting termination of an extended benefit
period.
The first ground of attack is, as I understand it,
that in so far as the decision of the Commission
pursuant to section 57 of the Act was based on
rates of unemployment furnished by Statistics
Canada, as contemplated by subsection 166(2) of
the Regulations, it was invalid as having been
based on an ultra vires provision. What the effect
might be on the original right to the extended
benefit period if subsection 166(2) were found to
be ultra vires was not discussed at the hearing and
does not have to be considered on this application.
The contention with respect to subsection 166(2) is
that it was not a valid exercise of the statutory
authority conferred by the former paragraph 58(u)
of the Act. It is argued that in making subsection
166(2) the Commission did not, as required by
paragraph 58(u), regulate the manner in which the
average regional and national rates of unemploy
ment should be determined but left the determina
tion to the discretion of Statistics Canada. The
making of subsection 166(2) constituted, it is said,
an unauthorized subdelegation of the power to
make regulations or the conversion of a power to
make regulations into a power to exercise a discre
tion in particular cases, contrary to the principles
affirmed in such cases as City of Verdun v. Sun
Oil Company Ltd. [1952] 1 S.C.R. 222; The
Attorney General of Canada v. Brent [1956]
S.C.R. 318; and Brant Dairy Co. Ltd. v. Milk
Commission of Ontario [ 1973] S.C.R. 131.
Before considering the merits of this contention
it should be observed that the validity of subsec
tion 166(2) of the Regulations was considered by
this Court in the case of Langford v. Employment
and Immigration Commission [ 1979] 2 F.C. 693,
Montreal, September 21, 1979. It was argued in
that case that subsection 166(2) was invalid on the
ground that it gave to the expressions "national
rate of unemployment" and "regional rate of
unemployment" a meaning that could not be
reconciled with the definitions of "national rate of
unemployment", "average national rate of unem
ployment", and "rate of unemployment" found in
paragraphs (s) and (w) of subsection 2(1) of the
Act. That contention was rejected and subsection
166(2) was held to have been validly made in the
exercise of the authority conferred by paragraph
58(u) of the Act. Since the ground of attack on the
validity of subsection 166(2) that is urged in the
present case did not have to be considered in
Langford, the decision in that case is not a bar to
its consideration here.
The clarity of paragraph 58(u) of the Act in the
form it assumed at the time subsection 166(2) of
the Regulations was adopted certainly leaves
something to be desired, but its purpose appears to
have been to confer authority to regulate the deter
mination of the average rate of unemployment
required for the application of section 37 of the
Act. The provision indicates a legislative intention
that the rates of unemployment to be applied
under section 37 are to be average rates, and that
the Commission is to establish by regulation the
manner in which the averaging shall be carried
out. The Commission exercised its authority by
prescribing in subsection 166(2) of the Regula
tions that the average national and regional rates
of unemployment for purposes of the former sec
tion 37 of the Act shall be "the average of the
unadjusted monthly national or regional rates of
unemployment respectively as determined by Sta
tistics Canada for the most recent twelve month
period immediately preceding the time for which
those rates are available." To my mind that is a
regulation of the average to be used and the
manner in which it shall be determined. The deter
mination of the monthly rates of unemployment
and the average over a twelve-month period is a
statistical operation that has been properly left to
Statistics Canada, which was established under the
Statistics Act, S.C. 1970-71-72, c. 15 with the
following duties set out in section 3 of the Act:
3....
(a) to collect, compile, analyse, abstract and publish statisti
cal information relating to the commercial, industrial, finan
cial, social, economic and general activities and condition of
the people;
(b) to collaborate with departments of government in the
collection, compilation and publication of statistical informa
tion, including statistics derived from the activities of those
departments;
(c) to take the census of population of Canada and the
census of agriculture of Canada as provided in this Act;
(d) to promote the avoidance of duplication in the informa
tion collected by departments of government; and
(e) generally, to promote and develop integrated social and
economic statistics pertaining to the whole of Canada and to
each of the provinces thereof and to coordinate plans for the
integration of such statistics.
The Unemployment Insurance Act, 1971 in
paragraph 2(1)(s) indicates a legislative intention
that the unemployment rates determined by Statis
tics Canada may be relied on in the administration
of the Act. Paragraph 2(1)(s) reads:
2. (1) In this Act,
(s) "national rate of unemployment" means the rate of
unemployment as determined by Statistics Canada for the
whole of Canada, and "average national rate of unemploy
ment" means the monthly national rates of unemployment in
a year averaged for the year;
The applicants contend that the determination
of an average rate of unemployment involves
several matters of discretion or judgment which
should be controlled by the Commission and not
left to be decided by Statistics Canada. Two mat
ters in particular were emphasized in argument:
the absence of any definition of unemployment or
the criteria for determining who is to be considered
to be part of the labour force, and the absence of
any direction concerning the "rounding-off' of
percentages in determining averages. Counsel
stressed the significant effect which the approach
to these issues may have on average rates of
unemployment as applied to the operation of
former section 37 of the Act.
There may well be matters of some significance
that have been left to the judgment of Statistics
Canada, but it cannot be said for that reason, in
my opinion, that the Commission failed to exercise
its regulation-making power under paragraph
58(u). The essence of what the Commission was
given authority to do under paragraph 58(u) was
to prescribe the period for which an average of
rates of unemployment should be determined for
purposes of section 37. That the Commission has
done in subsection 166(2) of the Regulations in
prescribing that the period shall be "the most
recent twelve month period immediately preceding
the time for which those rates are available." The
Commission was not empowered to prescribe how
the rates themselves should be determined. In
leaving that statistical function to be carried out
by Statistics Canada the Commission was not in
my opinion delegating its regulation-making au
thority or converting it into a discretionary deci-
sion-making power, contrary to the principles rec
ognized in the cases that have been referred to, but
was adopting for its own administrative purposes
statistical information produced by another
agency. As I have said, it was justified in doing so,
not only by the terms of the Statistics Act but by
the terms of paragraph 2(1)(s) of the Unemploy
ment Insurance Act, 1971. In other words, in so
far as Parliament has made rights depend on rates
of unemployment, it has indicated an intention
that reliance may be placed on the rates of unem
ployment determined by Statistics Canada. The
determination of those rates is neither a power to
make regulations nor a power to adjudicate under
the Unemployment Insurance Act, 1971, so that it
cannot be said to involve, when carried out by
Statistics Canada, an invalid delegation of either
kind of power. For these reasons I am of the
opinion that the applicants' attack on the validity
of subsection 166(2) of the Regulations must fail.
It is necessary to consider the second ground of
attack on the Umpire's decision—that he erred in
law in failing to hold that section 57 of the Act
does not apply to a case of overpayment as a result
of a computer error by the Commission in the
application of former section 37. Two arguments
were advanced in support of this contention. The
first is that section 57 impliedly contemplates the
reconsideration of a decision with respect to a
claim for unemployment insurance benefits, and
that in the present case there was no decision to
reconsider, but simply an operating error in the
processing of data received from Statistics
Canada. In my opinion this contention is without
merit. The authority conferred by section 57 is not
confined to the reconsideration of decisions, as
such, but is an authority to reconsider "any claim"
in respect of which benefit has been paid or should
have been paid. Benefit periods are established or
extended and benefit is paid or refused following a
claim, and the beneficiary is referred to through
out the benefit period as the claimant, as may be
seen from sections 20 and following of the Act.
The reconsideration of a claim is the reconsidera
tion of a right to benefit. That was what was done
in the present case in determining whether, in view
of the applicable rates of unemployment, benefit
should have been paid beyond a certain point.
The second argument against the application of
section 57 is based on the definition of "disenti-
tled" in subsection 16(1) of the Act, which, as it
read when section 37 was part of the Act, is as
follows:
16. (1) In this Part,
(a) "disentitled" means to be disentitled under section 23,
25, 29, 33, 36, 44, 45, 46, 54 or 55 or under a regulation;
It is argued that in view of this definition the
words "not entitled" in section 57 should be con
fined to the cases specified in subsection 16(1)(a),
where in each case it is provided that in certain
circumstances the claimant is "not entitled" to
benefit. As I understand the argument, it is, in
effect, that since "disentitled" is treated as the
equivalent of "not entitled" in the reference to the
sections specified in paragraph 16(1)(a), the defi
nition of "disentitled" in that paragraph should be
treated as a definition of "not entitled" as well. In
support of this argument reference is also made to
subsection 26(8) of the Interpretation Act, R.S.C.
1970, c. I-23, which provides:
26....
(8) Where a word is defined, other parts of speech and
grammatical forms of the same word have corresponding
meanings.
I am unable to accept this contention. In their
plain meaning the words "not entitled" in section
57 clearly cover the case in which a person has
been paid extended benefit beyond the time at
which his extended benefit period was terminated
by the terms of section 37. I cannot see how that
meaning can be excluded by reliance on the defini
tion of another word, "disentitled", which must
have been intended to apply to the sections of Part
II of the Act, such as subsection 27(2), the former
paragraph 36(3)(b), subsection 38(5), and section
54, in which that word, or a modification thereof
coming within the meaning of subsection 26(8) of
the Interpretation Act, is used. The latter rule
obviously applies to the meaning to be given to
"disqualifying" in section 54. But in my opinion
the words "not entitled" are neither another part
of speech nor another grammatical form of the
word "disentitled" within the meaning of that rule.
The words "other ... grammatical forms of the
same word" in subsection 26(8) must refer, I
think, to modifications of the form of a particular
word resulting from inflexion or declension and
not to different words which may have the same or
equivalent meaning.
Great stress was laid in argument on the hard
ship caused to individuals by the action of the
Commission pursuant to section 57. The under
standable concern with this effect cannot, however,
be a justification for an interpretation of the plain
words "not entitled" that would deny their
application to a case in which, through error,
benefit has been paid to a claimant which he or
she did not have a right, under the applicable
provisions, to receive. Relief from hardship is to be
dealt with otherwise, as indicated in section 175 of
the Regulations to which reference has already
been made.
For these reasons I would dismiss the section 28
application.
* * *
URIE J. concurred.
• * *
KELLY D.J. concurred.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.