A.L. et al. v. Ontario (Ministry of Community and Social Services) [Indexed as: L. (A.) v. Ontario (Ministry of Community and Social Services)]
77 O.R. (3d) 422
[2005] O.J. No. 1924
Court File No. 400/03
Ontario Superior Court of Justice
Divisional Court,
O'Driscoll, Jarvis and Molloy JJ.
May 13, 2005
Civil procedure -- Class proceedings -- Plaintiffs bringing action in negligence and breach of statutory duty against provincial government [page423] arising out of government's decision to discontinue entering into special needs agreements under s. 30 of Child and Family Services Act -- Motion judge erring in dismissing certification motion on basis that requirements of s. 5(1)(a) of Class Proceedings Act were not met as no cause of action in negligence existed -- Whether decision to discontinue special needs agreements was policy decision could not be determined at this stage -- Plaintiffs' negligence claim not relating to funding per se but rather to whether funding was provided within prescribed legislative mandate and in manner that reflected best interests of child -- Statement of claim also raising arguable cause of action in respect of misfeasance in public office capable of giving rise to claim in damages -- Class proceeding preferable procedure for this action -- Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5(1)(a), (d).
Torts -- Negligence -- Duty of care -- Section 30 of Child and Family Services Act providing that person unable to provide services for special needs child in his or her custody may enter into special needs agreement with government for provision of services -- Plaintiffs bringing action in negligence against provincial government arising out of government's decision to discontinue entering into special needs agreements under s. 30 of Act -- Motion judge erring in dismissing motion to certify action as class proceeding on basis that no cause of action in negligence existed -- Whether decision to discontinue special needs agreements was policy decision could not be determined at this stage -- Plaintiffs' negligence claim not relating to funding per se but rather to whether funding was provided within prescribed legislative mandate and in manner that reflected best interests of child -- Child and Family Services Act, R.S.O. 1990, c. C.11, s. 30.
Under s. 30 of the Child and Family Services Act, the Minister of Community and Social Services was empowered to enter into Special Needs Agreements to provide services for profoundly disabled children whose parents were unable to provide the services required because of the children's special needs. In 1997, the Ministry unilaterally directed that no new Special Needs Agreements would be entered into. The plaintiffs brought an action alleging that in the absence of the Special Needs Agreement program, parents unable to meet the needs of their disabled children could only obtain assistance for their children by giving up custody to the Children's Aid Society ("CAS"). This, they alleged, was a breach of statutory duty, breach of a common law duty of care, breach of parens patriae obligations and negligent. Their motion for certification of the action as a class proceeding was dismissed on the grounds that the requirements of s. 5(1)(a) of the Class Proceedings Act, 1992 ("CPA") were not met as the allegations of negligence in the statement of claim failed to disclose a cause of action, and the requirements of s. 5(1)(d) of the CPA were not met as a class proceeding was not the preferable procedure for the action, given that the only surviving cause of action was for declaratory relief in respect of the claim for breach of statutory duty. The plaintiffs appealed.
Held, the appeal should be allowed.
The motion judge erred in finding that, even if a duty of care was established based on foreseeability and proximity, a duty of care should not be recognized because, according to the defendant, the impugned decision was a policy decision made by persons of a high level of authority within government. The defendant's assertion was not evidence and, even if it were evidence, it would not be [page424] admissible at this stage, although it could be a relevant consideration at trial. It was not appropriate to determine at this stage whether the decision-making process was so policy-laden that no duty of care should be recognized. Moreover, the motion judge misapprehended the theory of the plaintiffs' case. Their claim was not based merely on the government's failure to allocate sufficient resources for the care of profoundly disabled children eligible for funding under the Special Needs Agreement provisions. Rather, they alleged that the discontinuance of the Special Needs Agreements put parents in the position of having to give up custody and control of their children to CAS so that their needs could be met. This was not a matter of funding per se, but rather whether the funding was provided within the prescribed legislative mandate and in a manner that reflected the best interests of the child. It could not be said that the plaintiffs' claim in negligence had no chance of success. The statement of claim also raised an arguable cause of action in respect of misfeasance in public office. It was arguable that the Minister breached a statutory duty in terminating the provision of special needs agreements and that this breach of statutory duty could support a damage claim, not merely a claim for declaratory relief.
APPEAL from the decision of Cullity J. (2003), 2003 32458 (ON SC), 65 O.R. (3d) 289, [2003] O.J. No. 2405 (S.C.J.), dismissing a motion to certify an action as a class proceeding.
Finney v. Barreau du Québec, [2004] 2 S.C.R. 17, [2004] S.C.J. No. 31, 2004 SCC 36, 240 D.L.R. (4th) 410, 321 N.R. 361, J.E. 2004-1254, 16 Admin. L.R. (4th) 165, 24 C.C.L.T. (3d) 1; Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, [2003] S.C.J. No. 74, 233 D.L.R. (4th) 193, 312 N.R. 305, 2003 SCC 69, 19 C.C.L.T. (3d) 163, 11 Admin. L.R. (4th) 45 (sub nom. Odhavji Estate v. Metropolitan Toronto Police Force), consd Wynberg v. Ontario, 2005 8749 (ON SC), [2005] O.J. No. 1228, 252 D.L.R. (4th) 10, [2005] O.T.C. 240, 128 C.R.R. (2d) 1 (S.C.J.), distd Other cases referred to Anns v. Merton London Borough Council, [1978] A.C. 728, [1978] W.L.R. 1024, 121 Sol. Jo. 377, 75 L.G.R. 555 (H.L.); Cooper v. Hobart, [2001] 3 S.C.R. 537, [2001] S.C.J. No. 76, 96 B.C.L.R. (3d) 36, 206 D.L.R. (4th) 193, 277 N.R. 113, [2001] 11 W.W.R. 221, 2001 SCC 79, 8 C.C.L.T. (3d) 26 (sub nom. Cooper v. Registrar of Mortgage Brokers (B.C.)); Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93, 49 B.C.L.R. (2d) 273, 74 D.L.R. (4th) 321, 117 N.R. 321, [1990] 6 W.W.R. 385, 4 C.C.L.T. (2d) 1, 43 C.P.C. (2d) 105 (sub nom. Hunt v. T & N plc) Statutes referred to Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5(1) Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 1 [as am.], 29 [as am.], 30
R. Douglas Elliott, Won J. Kim, J. Adam Dewar, Megan McPhee and Laughlin J. Campbell, for appellants. Roderick Winsor and Alva Orlando, for respondent.
The judgment of the court was delivered by
MOLLOY J.:-- [page425]
Introduction
1The plaintiff [A.L.-child] is a profoundly disabled minor child. The plaintiff [A.L.] is his mother. They appeal from a decision of Cullity J., dated June 16, 2003, dismissing their motion for certification of the within action as a class proceeding. The basis for the motion judge's decision is that the allegations of negligence in the statement of claim failed to disclose a cause of action and the action therefore did not meet the requirements of s. 5(1)(a) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the "CPA").
2The background of the action and the evidence filed on the certification motion are well summarized in the decision of the motion judge. I will not repeat them here except to say that the plaintiffs' cause of action relates to a program under s. 30 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the "CFSA") pursuant to which children's aid societies and/or the Minister were empowered to enter into Special Needs Agreements to provide services for profoundly disabled children whose parents were unable to provide the services required because of the children's special needs. In 1997, notwithstanding the legislative provision for these agreements, the Ministry unilaterally directed that no new Special Needs Agreements would be entered into. The plaintiffs allege that this directive was part of a budget reduction strategy. The plaintiffs further allege that in the absence of the Special Needs Agreement program, parents unable to meet the needs of their disabled children could only obtain assistance for their children by giving up custody to the Children's Aid Society. This, they alleged, was a breach of statutory duty, breach of a common law duty of care, breach of parens patriae obligations and negligent.
Arguable Cause of Action: S. 5(1)(a) of the CPA
3The motion judge correctly identified the tests for determining whether this is an appropriate action for certification. Further, in considering the requirement in s. 5(1)(a) of the CPA that a statement of claim must disclose a cause of action, the motion judge correctly identified the legal test to be applied, i.e., the test set out in Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93 that it must be "plain and obvious" the action cannot succeed before it can be dismissed at this stage. However, in my view, the motion judge erred in his application of this test and, in particular, erred in concluding that the negligence cause of action could not possibly be successful at trial.
4The plaintiffs' claim in negligence is a novel one. There is no precedent for recognizing a duty of care on government in [page426] the situation described by the plaintiffs. Therefore, as was held by the motion judge, it is appropriate to apply both stages of the test in Anns v. Merton London Borough Council, [1978] A.C. 728, [1978] 2 W.L.R. 1024 (H.L.) (the "Anns test"). The first stage of the Anns test requires the court to consider: (1) foreseeability (whether the harm that occurred was a foreseeable consequence of the defendant's act); and (2) proximity (whether the relationship between the parties was such that a duty of care arises). If these two tests are met, then a prima facie duty of care arises: Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, [2001] S.C.J. No. 76, at pp. 550-51 S.C.R. At the second stage of the Anns test the court will consider residual policy considerations involving the effect of recognizing a cause of action in the circumstances alleged. It is at this stage that the court will often consider the distinction between policy-based government decisions and decisions that are operational in nature: Cooper v. Hobart at p. 554 S.C.R.
5The motion judge did not rule on whether the first stage of the Anns test was met. Rather, he found that even if a duty of care was established based on the foreseeability and proximity criteria in the first stage of Anns, the potential cause of action could not survive the scrutiny of the second stage of Anns. In coming to that conclusion, he relied upon the respondent's submission that the decision as to whether to allocate or limit funding to children with disabilities was a policy decision "made by persons of a high level of authority within government". He then held that in order to establish causation, it would be necessary to inquire into whether the plaintiffs would otherwise have received funding under the program, and this would involve the court in considering the exercise of ministerial discretion with respect to funding priorities. This, he stated, related to the division of powers between the executive and the judiciary and was sufficient to negative a duty of care under the second branch of the Anns test.
6In my opinion, the motion judge erred in two respects in reaching this conclusion. First, although evidence is admissible, and indeed required, with respect to other branches of the test for certification, it is not admissible under s. 5(1)(a) in determining whether there is an arguable cause of action. The assertion in the respondent's factum that the decision to discontinue Special Needs Agreements was a policy- driven decision made at the highest level of government is not evidence. Even if it were evidence, it would not be admissible at this stage, although it could well be a relevant consideration at trial. At this point in the proceeding, the plaintiffs have not had full discovery or production of [page427] all documents relevant to the government's decision and have not had an opportunity to examine or cross- examine all relevant witnesses on the decision-making process. There has been no determination as to the nature of the decision that was made. It is therefore not appropriate at this stage to determine whether the decision-making process was so policy laden that it cannot survive the second stage of the Anns test. That is a factual determination that can only be made at trial.
7Second, the plaintiffs' claim is not based merely on the government's failure to allocate sufficient resources for the care of profoundly disabled children eligible for funding under the Special Needs Agreement provisions. Rather, the plaintiffs allege that the discontinuance of the Special Needs Agreements put parents in the position of having to give up custody and control of their children to CAS so that their needs could be met. This is not a matter of funding per se, but rather whether the funding is provided within the prescribed legislative mandate and in a manner that reflects the best interests of the child.
8Children in our society are entitled to the necessaries of life. If parents fail to meet, or are unable to meet, the needs of their children, the jurisdiction of the state is invoked and, where necessary, the children will be removed from their parents and placed in the care of the state. The CFSA is a statutory recognition of the government's obligations to intervene in the best interests of a child to ensure the protection of that child. It is recognized that the financial burden of meeting the needs of a child with profound disabilities can be enormous and that state-funded programs to meet those needs are sometimes unavailable or difficult to access. Section 30 of the CFSA enables either a Children's Aid Society or the Minister to provide services to a child whose parents are unable to provide for his or her needs because of the child's disability, without the parent having to give up custody of the child. The mechanism for doing so is the Special Needs Agreement and only those " unable to provide the services required by a child in his or her custody because the child has a special need" are eligible for such assistance. This is a safety net type provision. It will not be applicable when services for the child can be obtained by other means; it will not be available for merely desirable services, but only for actual "requirements" of the child because of the child's disability. However, in circumstances where the nature of the disability makes it impossible for the parent to provide what the child requires, s. 30(1) provides a mechanism for meeting those exceptional needs and avoiding a situation where the child could be found to be in need of protection solely because his parents are unable to accommodate the [page428] child's disability. Thus, the Special Needs Agreement safety net was available to meet those exceptional situations where parents were simply unable to get services otherwise and a child's fundamental needs as a result of disability were therefore not being met. For parents, the alternative to the Special Needs Agreement would be either failing to meet the needs of their children or losing their children to the state, neither of which could be said to be in the best interests of the child.
9Thus, at its core, the plaintiffs' objection in this action is not with the level of funding provided to children whose special needs could not otherwise be met, but rather with the manner in which services are to be delivered. The statutory mandate was for the Ministry to deliver those services through Special Needs Agreements. Without that mechanism, children with special needs were still entitled to have those needs met, but only by being designated as "in need of protection" which entailed their being taken from their parents and placed in the custody and control of a children's aid society. The state would still be funding those services (as it would be required to do both under its parens patriae obligations at common law and the requirements of the CFSA), but the funds would flow through the CAS to the service provider rather than through a Special Needs Agreement. Thus, the plaintiffs' case is not really about the level of budget commitments or the allocation of scarce resources as a question of government policy and priority. Rather, the plaintiffs argue this was an operational decision as to the manner in which services would be provided, with the government deciding to ignore the statutorily mandated route and with the result that children's needs were not met at all or parents lost custody of their children so that the needs were met through the Children's Aid Society.
10The defendant argued that the structure of the CFSA is such that Special Needs Agreements would only arise in situations in which children were placed in residential settings and would always involve the CAS taking custody of the children. The defendant argues that s. 30 of the CFSA (Special Needs Agreements) incorporates the requirements of s. 29 (Temporary Care Agreements). I do not agree that this is the necessary construction of the Act. The language of the two provisions must be examined closely. Section 30(1) refers to an agreement for the provision of services and the supervision or care and custody of the child by the society. Therefore, under a Special Needs Agreement a society may take care and custody of the child, but does not necessarily do so. Depending on the circumstances, the society may merely supervise the provision of services to the child. This is to be contrasted with s. 29 which is stipulated to apply to [page429] an agreement "for the society's care and custody of the child". Special Needs Agreements do not always require a residential placement. If a residential placement is not required, then none of the provisions of s. 29 are brought into play. If the agreement does relate to a residential placement, s. 30(4) provides that certain of the provisions of s. 29 apply "with necessary modifications". One of the sections incorporated is s. 29(8) which sets out the mandatory contents of a temporary care agreement, one of which is a statement that the child's care and custody are transferred to the society. In my opinion, clearer language than this would be necessary to achieve the effect urged by the defendant. The provisions of s. 29 are incorporated only "with necessary modifications". It seems to me that a necessary modification to tailor the provisions of s. 29 to a Special Needs Agreement format would be to change "care and custody" to "supervision" if there was no other reason to require the society to take custody of the child. This would be in keeping with the overall objectives of the legislation, which provides that wherever possible children's services should be provided in a manner that "respects children's needs for continuity of care and for stable family relationships" and supports the "autonomy and integrity of the family unit": s. 1(2), subparas. 1 and 3(i).
11The defendant points to the permissive language in s. 30 of the CFSA as negating a cause of action. The section does provide that the society or Minister "may" enter into a Special Needs Agreement. However, the plaintiffs complaint here is not with respect [to] any particular exercise of discretion whereby, for example, the state exercised its discretion not to enter into an agreement with a particular person. Rather, the plaintiffs say that the government completely abandoned the statutorily mandated program and in effect refused to exercise its discretion at all regardless of the merits of any particular case. The plaintiffs allege that the Ministry directed that the statute should not be administered as enacted.
12In any event, the presence of a statutory discretion does not necessarily exclude a cause of action in negligence. In Finney v. Barreau du Québec, [2004] 2 S.C.R. 17, [2004] S.C.J. No. 31, 2004 SCC 36, the Supreme Court of Canada held that the body responsible for monitoring the competence of lawyers could be held liable for negligence in the manner in which it carried out those responsibilities. Although the case was decided under the Quebec civil law system, the court specifically noted (at para. 46) that its decision would be the same if it had applied an Anns test analysis, stating"The decisions made by the Barreau were operational decisions and were made in a relationship of proximity [page430] with a clearly identified complainant, where the harm was foreseeable." The court noted the direct relationship between the Barreau and the plaintiff-client. This distinguished the case from previous cases in which a duty of care to the public generally was found not to create a sufficient proximity to meet the Anns test. It is at least arguable that the plaintiffs in this case are similarly situated to the plaintiff in Finney as each would fall into the particular category of persons eligible for a Special Needs Agreement as stipulated in the legislation.
13At this stage in the proceeding, and recognizing the need to read the statement of claim broadly, I do not believe it is correct to say that the plaintiffs' argument in this regard has no chance of success. In my view, the motion judge misapprehended the theory of the plaintiffs' case and in doing so fell into error in holding the second stage of the Anns test was incapable of being met by the plaintiffs at trial.
14The statement of claim in this case also raises an arguable cause of action in respect of misfeasance in public office, as that tort has been recently considered and applied by the Supreme Court of Canada in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, [2003] S.C.J. No. 74 (which decision was released after the decision of the motion judge in this case). The Supreme Court held that although breach of a statute cannot create a cause of action in and of itself, it can be one of the elements of the tort of misfeasance in a public office: Odhavji at paras. 31-32. To establish the tort, the plaintiff must prove: (i) deliberate unlawful conduct in the exercise of public functions; and (ii) awareness that the conduct is unlawful and likely to injure the plaintiff. These requisite elements are pleaded in the statement of claim.
15The motion judge in this case held (at para. 48) that the question of whether the Minister breached a statutory duty in terminating the provision of special needs agreements "is one of some difficulty" and "should not be decided until all the evidence is in". He found that this aspect of the plaintiffs' claim raised a triable issue, but would have limited their available remedies to declaratory relief. In light of the development of the law in this area, and particularly in light of Odhavji, it is possible that this breach of statutory duty could support a damage claim for misfeasance in public office. The plaintiffs have pleaded that the Minister deliberately and knowingly breached his statutory duty, that the Minister was aware of the harm this would likely cause to the members of the plaintiff class, and that the harm was in fact sustained. Thus, the essential elements of the tort have been pleaded, even if not specifically labelled as misfeasance of public duty. Again, giving a liberal construction to the statement of [page431] claim, the damage claim arising from these pleaded facts should not be dismissed at this stage.
16The decision of Kiteley J. in Wynberg v. Ontario, 2005 8749 (ON SC), [2005] O.J. No. 1228, 252 D.L.R. (4th) 10 (S.C.J.) was released after the argument of this case and while our decision was under reserve. Further written submissions on the impact of this and other cases raised during argument were received. For the most part the decision of Kiteley J. focuses on issues not raised in this action, in particular issues of discrimination within government-funded programs for children with autism. However, one of the parties in that case also raised a cause of action based in negligence and that claim was dismissed by Kiteley J. (based on the Anns test) as not disclosing a cause of action: Wynberg at paras. 828-45. The decision in Wynberg is distinguishable from the case before us. First, in Wynberg there was no issue of Crown wardship, with parents being obliged to give up custody of their children in order to obtain services previously provided under Special Needs Agreements. Therefore, that claim did not involve the same degree of proximity as between the plaintiffs and the government as is asserted in this case. Second, in Wynberg there was no allegation of breach of statutory duty giving rise to an Odhavji type claim for misfeasance in public office. Third, although there was a determination in Wynberg that that any duty of care should be negated under the second branch of the Anns test because the government decision-making involved was a matter of policy, this was based on all of the evidence after a full trial. The case before us is at its very initial stages and in determining whether a possible cause of action exists, evidence is not admissible as to whether the decision to eliminate Special Needs Agreements was policy or operational. Finally, the determination in Wynberg that no duty of care arises was based, in part, on the decision of the Cullity J. in this case, and also did not take into account the more recent Supreme Court of Canada decisions in Finney and Odhavji. Therefore, notwithstanding the decision in Wynberg, I remain of the view that the plaintiffs in this case have articulated an arguable cause of action in negligence and misfeasance sufficient to satisfy s. 5(1)(a) of the CPA.
Existence of a Class: S. 5(1)(b) of the CPA
17The motion judge was prepared to accept the revised definition of the class proposed during the course of argument before him: para. 55 of the reasons. I agree. This requirement of the CPA is met. If the definition needs to be further fleshed out or refined, this can be handled by the case management judge. [page432]
Common Issues: S. 5(1)(c) of the CPA
18The motion judge also ruled on the appropriateness of the common issues to be tried: Reasons, paras. 56-59. Again, I agree. If further revision of the common issues is required this can be undertaken as the case continues with the supervision of the case management judge.
Preferable Procedure: S. 5(1)(d) of the CPA
19The motion judge held that a class proceeding was not the preferable procedure for this action based upon his determination that the only surviving cause of action was for declaratory relief. He reasoned that the expense of proceeding by way of class proceeding was disproportionate to the benefits that would be obtained, as any individual with standing could apply for declaratory relief and inconsistent verdicts in other cases would be unlikely because of issue estoppel and/or stare decisis. I believe it is implicit in his reasoning that if the entire cause of action had been found to be arguable, he would have found it appropriate to proceed by way of class action. However, since he did not rule on this expressly, I will deal with the point directly.
20In my view, a class action is the preferable procedure to deal with the common issues in this proceeding. There was evidence before the court indicating the difficulties experienced by individuals who have sought to resolve these issues. While some have been able to achieve success for their own children, they have not been able to effectively deal with the overarching concerns raised in this proceeding. The families affected by the government's actions number at least in the hundreds. They are, by definition, parents who have been unable to provide for their own children's special needs. What then can be inferred about their financial ability to carry on this sophisticated litigation against the government? Furthermore, individual claims might not be large in quantum, making individual actions too expensive to justify for the damages available. Requiring separate actions for all claimants would likely prove to be an obstacle to justice for the hundreds of potential plaintiffs. Finally, it is not desirable to have hundreds of individual cases all raising common issues of law and fact. If there was a multiplicity of such proceedings, no doubt all parties would be seeking some sort of consolidation. There would also be a risk of inconsistent verdicts. Proceeding separately with these claims would also be an inefficient use of court resources. Likewise, while a test case might be an appropriate procedure where the only relief claimed is declaratory, the nature of the causes of action asserted here and the damages claimed [page433] make a test case procedure unworkable. Accordingly, I find that this aspect of the s. 5(1) test under the CPA is also met.
The Representative Plaintiff
21Apparently during the original argument of this motion the defendant did not challenge the appropriateness of the representative plaintiff. However, in the argument of this appeal the defendant did take the position that [A.L.] was not an appropriate plaintiff, as she does not share the position of other members of the class. In particular, it was noted that she has reached an agreement with the Ministry to provide for her son's needs and she did not have to give up custody to do so. While the defendant does not challenge Ms. [L.]'s ability to direct the litigation, the possibility of her being in a conflict of interest with other members of the class was raised.
22It is true that Ms. [L.] was eventually successful in obtaining services for her child. However, while she did not lose custody of her child, she did face that prospect. She falls within the class of potential plaintiffs claiming relief. It is seldom the case that a representative plaintiff bears all of the characteristics of every potential member of the class. The fact that other plaintiffs might have larger dollar claims or more extensive grievances than the representative plaintiff, does not mean that the representative is necessarily in a position of conflict. I do not see any conflict here. Ms. [L.] is an appropriate representative plaintiff.
Conclusion and Order
23The appeal is allowed and the Order of Cullity J. dated June 16, 2003 is set aside. An order shall issue certifying this action as a Class Proceeding. Any issues arising from this Order such as amendment of the statement of claim, amendment of the litigation plan, notice to the Class and modifications to the definition of the Class or Common Issues are referred to the case management judge dealing with this action. If the parties are not able to agree on costs, written submissions may be made. Counsel for the plaintiffs is requested to coordinate this effort, with three copies of all submissions to be bound together and delivered to the Divisional Court office within 30 days of the release of this decision.
Appeal allowed. [page434]