Financial Services Commission of Ontario

Neutral Citation: 2017 ONFSCDRS 239

FSCO A15-004442

BETWEEN:

MARY STRANGES

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Arbitrator Benjamin Drory

Heard:

By written submissions completed July 14, 2017

Appearances:

Mr. Ben Fortino, legal counsel, for Ms. Mary Stranges

Ms. Anna-Marie Musson, legal counsel, for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Ms. Mary Stranges, was injured in a motor vehicle accident on September 17, 2004. She sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, through her representative, applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

1. Is Ms. Stranges entitled to payments for the cost of examinations in the amount of $11,599.99 for a catastrophic impairment assessment provided by AssessNet Inc., submitted December 4, 2014?

2. Is either party entitled to expenses arising from this proceeding?

Result:

1. Ms. Stranges is not entitled to payments for the cost of examinations in the amount of $11,599.99 for a catastrophic impairment assessment provided by AssessNet Inc., submitted December 4, 2014.

2. If the parties are unable to mutually agree on the entitlement to and/or quantum of the expenses of this matter, either of them may request an appointment with me for determination of same in accordance with the provisions of Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

BACKGROUND

The Applicant was involved in an accident on September 17, 2004. She sought entitlement to the cost of examinations respecting a catastrophic impairment assessment that was completed in 2015, in the amount of $23,099.99. State Farm partially approved (and paid) the assessment in the amount of $11,500.00; the balance of $11,599.99 is disputed.

EVIDENCE

For Ms. Stranges

The Applicant submitted that as a result of the September 17, 2004 accident she sustained injuries including back pain, neck pain, shoulder pain, anxiety, nausea with vomiting, headaches, and concentration difficulties. On December 4, 2014 she sought funding for catastrophic impairment assessments. The evaluation, produced by AssessNet Inc., was completed August 19, 2015 by assessors K. Denby (O.T.), Dr. J. Armenia (psychologist), Dr. A. Tartaglia (chiropractor; functional abilities assessor), Dr. A. Ghouse (physiatrist), and Dr. A. Persi (chiropractor; clinic director). The assessors’ opinion was that the Applicant’s impairments reached the threshold of catastrophic impairment on the basis of a Class 4 (Marked) impairment arising from mental or behavioural disorder.

The Applicant submitted that prior to the September 1, 2010 revisions to the Schedule, insured persons had an opportunity to secure rebuttal reports in response to insurer’s assessments, and these were paid by the insurer. Post-2010, the right to a catastrophic rebuttal report has been held to be a substantive right.² Further, the Supreme Court of Canada has repeatedly held that in interpreting legislative changes, there is a presumption against interference with vested or substantive rights. In Dikranian,³ the Supreme Court stated that to have a vested right (i) the individual’s legal situation must be tangible and concrete rather than general and abstract, and (ii) this legal situation must have been sufficiently constituted at the time of the new statute’s commencement, and the contract was signed before the amendment. It is the contract that creates rights and obligations between the parties.

Following the reasoning in Dikranian, Director’s Delegate Blackman found in Federico⁴ that a contract of insurance between an insurer and insured created rights and obligations as soon as it was formed, which included interest under the Old Schedule. These rights would have materialized or become sufficiently concrete as of the date of the accident, in that case four years before the legislative changes.

The Applicant referred to three accident cases from western provinces with statutory accident benefit schemes as suggestive of a trend towards a presumption against interference with vested rights.⁵ Among them, S.M. noted that a “retroactive” legislative amendment changes the past legal effect of a past situation, while a “retrospective” amendment changes the future legal effect of a past situation. Elliot suggested that legislation which impairs substantive or vested rights should only be given retrospective effect if the Legislature has clearly expressed such intention.

The Applicant submitted that R.J.⁶ established the right to funding for catastrophic rebuttal reports post-2010, where Arbitrator Wilson granted an interim motion. Arbitrator Wilson found the importance of a credible rebuttal was critical to the applicant, and would help the insurer in making a fair determination. He found that Ms. J.’s right to funding had vested at the time of the accident, and subsequent revisions to the Schedule did not amend those rights retroactively. The right to a rebuttal report was expressly recognized as a substantive contractual right, and the legal situation was sufficiently constituted at the time of the accident. The Applicant therefore submits that her rights under the Old Schedule vested on the date of her accident, and because the right to a catastrophic rebuttal report is a substantive right, there is a presumption against retrospective application of the 2010 amendments. Nothing in the New Schedule provides that existing, substantive rights were removed by the amendments.

Ms. Stranges also provided an unreported interim Order by Arbitrator Robinson dated July 12, 2017, in which he accepted Arbitrator Wilson’s reasoning in R.J., and was satisfied that vested and substantive rights are not to be interfered with lightly, even in the aftermath of legislative change. He accepted that there was financial need and material time constraints, and as a matter of procedural fairness the applicant’s case should not be starved by his inability to fund specialized catastrophic impairment reports, which were clearly necessary to enable him to put his best case forward. Arbitrator Robinson granted the applicant an interim Order funding catastrophic impairment rebuttal reports.

With respect to quantum, Ms. Stranges submitted that because her accident pre-dated the New Schedule, the Fernandes⁷ decision is on point. There, Arbitrator Alves noted the Old Schedule did not impose a limit relating to rebuttal reports for catastrophic impairment assessments. As such, she held that the cost of a rebuttal report “shall be reasonable”. Therefore, under the Old Schedule, the only requirement for catastrophic rebuttal reports was that of reasonableness—and absent any evidence to the contrary, $23,009.99 was a reasonable amount for five assessors to complete a comprehensive assessment determining catastrophic impairment.

For State Farm

State Farm submitted that it approved $11,500.00 of the assessment costs under s. 25(5) of the New Schedule, which limits the amount payable to $2,000.00 per assessment, examination, or report. State Farm submitted no further amount is payable under the legislation, and also that some of the assessments sought were unreasonable and duplicative.

State Farm submitted that on September 17, 2004, the Applicant was stopped at a stop sign exiting a shopping plaza, when she was struck by a Hamilton city bus. The impact was so light the bus driver was not aware a collision took place. The Applicant went to St. Joseph’s Hospital the next day; X-rays were negative and she was discharged the same day. State Farm submitted that from a physical perspective, medical assessors agreed Ms. Stranges suffered soft-tissue injuries as a result of the accident; from a psychological perspective, her impairments were not due to the accident.

State Farm submitted that the Applicant’s OCF-18 consisted of the following:

Item

Amount

Approved by State Farm?

Physiatry Assessment—Dr. Ghouse

$2,000.00

Yes

Psychological Assessment—Dr. Armenia

$2,000.00

Yes

Psychometric Testing—Dr. Armenia

$2,000.00

No

Activities of Daily Living (ADL Profile)—Janet Fisher, O.T.

$2,000.00

Yes

Assessment of Motor Skills—J. Fisher

$2,000.00

No

Travel Expenses of J. Fisher

$162.82

No

Functional Abilities Evaluation—Dr. Tartaglia

$2,000.00

Yes

File Review/Summary—Dr. Persi

$2,000.00

Yes

WPI Formulation—Dr. Persi

$2,000.00

No

Consensus CAT Opinion—Dr. Persi

$2,000.00

No

Completion of Claims Form

$200.00

Yes

Dr. Armenia only submitted one report titled Psychology Evaluation, notwithstanding its characterization as two separate assessment activities, and there was no indication any psychometric testing was completed. The Assessment of Motor and Process Skills was completed by the same O.T. as the ADL Assessment, and its results were incorporated with reference to the ADL Assessment. The WPI Formulation report was proposed but not completed, and the Consensus report was not completed; instead, Dr. Persi (Clinical Director of AssessNet) provided a one-page Executive Summary reiterating his file summary. State Farm approved and funded the file summary.

State Farm submitted that, per s. 25(1)5 of the New Schedule, the fees associated with a catastrophic impairment assessment must be reasonable, and the onus is on the Applicant to prove the assessment costs are reasonable. That provision reads:

(1) The insurer shall the pay the following expenses incurred by or on behalf of an insured person:

5. Reasonable fees charged for preparing an application under section 45 for determination of whether the insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose.

Section 25(5) of the New Schedule states:

(5) Despite any other provision of this Regulation, an insurer shall not pay,

(a) more than a total of $2,000 in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it, whether it is conducted at the instance of the insured person or the insurer;

State Farm referred to FSCO’s Superintendent’s Guideline No. 08/10 (Costs of Assessments and Examinations Guideline),⁸ which outlines that an assessment or examination can result in multiple reports and still be considered one assessment, and the $2,000.00 amount is an all-inclusive amount, including travel expenses and the preparation of one or more reports. State Farm submitted that the disputed OCF-18 clearly proposed one assessment process each for the O.T., psychologist, and clinic director. The Applicant’s characterization of the OCF-18 as contemplating separate assessments, at a cost of $2,000.00 each, was simply an attempt to circumvent the legislation and statutory cap.

State Farm maintained that the testing and assessments proposed in the OCF-18 were part-and-parcel of the same thing, but submitted that even if they were distinct, the balance of the OCF-18 was unreasonable and the cost excessive. The psychometric testing, consensus report, and WPI formulation were proposed but not actually completed, and did not form part of the Applicant’s Application for Catastrophic Impairment Determination (“OCF-19”). In addition, State Farm submitted that FSCO’s Superintendent’s Guideline No. 03/14⁹ (Professional Services Guideline) denotes maximum hourly fees for health practitioners applicable to “conducting an assessment, provision of a certificate, report or treatment plan under s. 25(3) of the SABS”. There, the maximum hourly rates for licensed psychologists are $146.61 (non-catastrophic (“non-CAT”)) and $179.29 (catastrophic (“CAT”)), and for “unregulated providers”, including psychometrists, are $58.19 (non-CAT) and $89.07 (CAT).

State Farm submitted that the OCF-18 provided no detail about the amount of time the assessors required for the assessment, and was simply submitted as a flat-rate fee at the maximum amount. However, applying the maximum of $2,000.00, divided by the maximum hourly rates for a psychometrist, implied the claim was for approximately 22-34 hours of psychometrist’s time. Similarly, at a cost of $6,000.00, the amount claimed for Dr. Persi’s various CAT summaries translated to approximately 44-53 hours of clinician time—to prepare a 9-page summary of the other assessors’ assessments. The O.T. assessments were claimed at $4,000.00, which implied approximately 33-40 hours of O.T. time—or one week of full-time work. State Farm submitted these amounts were excessive and unjustifiable.

State Farm acknowledged the Applicant was entitled to the cost of reasonable s. 25 catastrophic assessments—which it funded. It clarified the reports submitted as part of the OCF-18 were not rebuttal reports, but rather reports completed for the purposes of the OCF-19. State Farm submitted there was no procedural fairness issue since it funded five s. 25 CAT assessments in accordance with the amounts submitted on the OCF-18; it was only the balance of the duplicative assessments that it did not agree to fund.

State Farm disputed the Applicant’s position that s. 25(5) of the New Schedule did not apply because her accident occurred in 2004, prior to the enactment of the New Schedule. State Farm submitted that the statutory amendments in the New Schedule apply to all existing policies and claims, per s. 268 of the Insurance Act:

Every contract evidenced by a motor vehicle liability policy, including every such contract in force when the Statutory Accident Benefits Schedule is made or amended, shall be deemed to provide for the statutory accident benefits set out in the Schedule and any amendments to the Schedule, subject to the terms, conditions, provisions, exclusions and limits set out in that Schedule.

Further, the transition provisions in both the Old Schedule and the New Schedule provide clear direction that the $2,000.00 statutory cap applies after September 1, 2010, regardless of the date of loss.

Section 2(2) of the New Schedule provides (emphasis mine):

2. An amount that would, but for subsection 3(1.3) of the Old Regulation, be paid under the Old Regulation after August 31, 2010 shall be paid under this Regulation in the amount determined,

i. under the Old Regulation, other than under section 24 of that Regulation, or

ii. under subsections 25(1), (3), (4) and (5).

Section 3 of the Old Schedule states (emphasis mine):

(1.2) Section 24 and Parts X, XI, XII, XIII and XV do not apply after August 31, 2010.

(1.3) No amount referred to in this Regulation shall be paid after August 31, 2010.

(1.4) An amount that would, but for subsection (1.3), be paid under this Regulation after August 31, 2010 shall be paid under the New Regulation, but in the amount determined,

(a) under this Regulation, other than section 24; or

(b) under subsections 25 (1), (3), (4) and (5) of the New Regulation.

State Farm submitted that FSCO’s April 2010 Transition Bulletin¹⁰ confirmed that the $2,000.00 assessment limit applied for fees after September 1, 2010 regardless of whether services were provided before or after that date.

State Farm submitted that the notion entitlement to accident benefits vests at the time of the accident was rejected in Lehman,¹¹ per Director’s Delegate Rogers in Barnes.¹² It submitted that the legislation creates rights to statutory accident benefits, but only those provided in the regulations, which may be amended from time to time. Section 268(1) of the Insurance Act expressly contemplates the Legislature may, from time to time, amend or change the accident benefits schedules.

State Farm summarized that assessments are capped at $2,000.00 each, per s. 25(5) of the New Schedule; it approved and funded assessments in accordance thereto; the balance of the assessments were excessive, representing between 22-53 hours of expert time per assessment, or in some cases unreasonable as they were not completed or incurred; the rights to statutory accident benefits change from time to time, and the terms of the policy are not necessarily fixed for the entire duration; and the Applicant’s claim for s. 25 CAT assessments could not have crystallized at the time of the accident, as it would have been impossible to determine if a s. 25 CAT assessment was required on the date of loss.

ANALYSIS

I start by noting that both sides ultimately agree the Applicant is entitled to reasonable reimbursement relating to her CAT examinations. The Insurer submitted that this is owing to s. 25(1) of the New Schedule, whereas the Applicant attributes it to the Fernandes decision’s interpretation of the Old Schedule. Regardless, both rationales end up at the same point—i.e., the applicable standard to evaluate the Applicant’s entitlement to the examinations is reasonableness. The Insurer paid the Applicant $11,500.00 for the catastrophic assessments; accordingly, the dispute is over whether the $11,599.99 balance is reasonable, and if so, payable.

Both parties made lengthy submissions respecting whether the Applicant had a “vested interest” in the catastrophic assessments at the time that the legislation changed in September 2010. I find the most significant precedent is MVACF and Barnes,¹³ submitted by State Farm. There, Director’s Delegate Rogers considered changes to attendant care provisions in the New Schedule that came into effect in 2014, and whether services provided after the new effective date applied. The hearing Arbitrator in the case found in favour of the applicant, and had relied on Director’s Delegate Blackman’s decision in Federico.¹⁴ In Federico, Delegate Blackman held that the transitional provision that reduced entitlement to interest from 2% to 1% did not apply to the insured person; one of his reasons was that the insured person had acquired a vested right to the higher interest rate.

Director’s Delegate Rogers overturned the Arbitrator’s decision; he found that the Arbitrator declined to follow the logic of other appeal decisions that conflicted with Federico and which confirmed the Legislature’s ability to change insurance policies from time to time under s. 268 of the Insurance Act. He found that the Arbitrator erred in finding that the amendment had retrospective application and that Ms. Barnes had acquired a vested right respecting the applicable attendant care rules.

Delegate Rogers held that any analysis of vested rights in accident benefits must be informed by the context provided by s. 268(1) of the Insurance Act—its language is clear, and establishes three principles. First, it displaces the concept of a motor vehicle liability policy as a private agreement between an insurer and its insured. The terms of the agreement are set by the legislation. Second, it makes the Schedule a part of every policy. Third, it makes all amendments to the Schedule a part of every policy, including all terms, conditions, provisions, exclusions, and limits.

Delegate Rogers disagreed with the Arbitrator’s conclusion that Ms. Barnes’ “situation” crystallized at the time of her accident. He felt that could not be accurate—Ms. Barnes had no right to attendant care after February 1, 2014 just because she had been injured in an accident before that date. Her right to attendant care was contingent upon her ongoing need, the provision of services, and her incurring an expense. In these circumstances, the amendment fit into the category of legislation that has immediate application; it changed “the future legal effect of an ongoing situation”—which is prospective application of an amendment, not retrospective.

Delegate Rogers found that Delegate Blackman’s ruling on vested rights in Federico was unnecessary to that decision—it was obiter. Having ruled that the legislation itself prescribed interest at the old rate, there was no need to consider the issue of vested rights. He found the judicial review of the Divisional Court upheld Delegate Blackman’s decision on the interpretation of the legislation, but made no mention on the issue of vested rights. He noted Lehman¹⁵ also rejected the idea that rights to accident benefits arise from a private contractual agreement and vest at the time of the accident.

Delegate Rogers found it illogical to apply the concept of vested contractual rights to a relationship in which the parties have no direct input in terms of their relationship, and the terms may be amended from time to time without their input or consent. He held that the Federico approach is inconsistent with s. 268(1), incompatible with the history of frequent amendments to the Schedules, and that the Arbitrator had erred in applying Federico.¹⁶

I agree with Director’s Delegate Rogers. Federico itself was based on the Supreme Court of Canada’s decision in Dikranian.¹⁷ But Dikranian involved a student who contracted for student loans directly with the provider. There is little in the context of an individual purchasing automobile insurance akin to the situation in Dikranian; automobile insurance in Ontario is mandatory for all drivers, and no purchaser or insurer has any input into the terms of the Schedule that become incorporated—those terms are solely at the discretion of the Legislature. Neither contracting party has any opportunity to negotiate them. The notion of vested contractual rights seems inappropriate to apply to terms that one party is functionally obligated to purchase, and neither party has any input into nor control over.

I also note that the provisions considered in Federico (interest) are far more concrete than the cost of examinations arising from an accident. It would not be plausible to say that at the time of an accident, the examinations that an insured will need are crystallized and clear. In the words of S.M.,¹⁸ for a statutory entitlement to be acquired or accrued, it “must be more than a mere hope or expectation”. I find the argument that the Applicant was entitled to specific amounts for catastrophic assessments at the time of the accident was mere hope or expectation. The situation is more analogous to Delegate Rogers’ comment in Barnes that Ms. Barnes’ right to attendant care was contingent upon her ongoing need, the provision of services, and her incurring an expense. The Applicant’s need for catastrophic assessments did not crystallize at the time of the accident, such that it could have been presumed with certainty on September 17, 2004 that the Applicant was going to need the assessments that were sought, and costing over $23,000.

Many of the cases submitted by the Applicant relied on Federico. Two of them also related to interim benefits—cases where the insurer was unwilling to pay anything towards the costs of the assessments, which created procedural fairness concerns for the arbitrators in terms of the applicants having fair opportunities to develop and present their cases. This case is quite different—State Farm paid $11,500.00 for the assessments, and never disputed that reasonable costs for the assessments should be paid. The $11,500.00 is significant, and there are no procedural fairness concerns arising in relation to the Applicant’s purported inability to support her case.

I agree with Delegate Rogers that s. 268 of the Insurance Act gives the Legislature the power to amend the applicable Schedule at its discretion. And the New Schedule and the Old Schedule are both clear—in sections 2(2)2 and 3, respectively, the $2,000.00 cap (s. 25(5) of the New Schedule) applies to all examinations after August 31, 2010. In both Schedules, s. 25(5) of the New Schedule is noted as applicable, and s. 24 of the Old Schedule (outlining the former costs of examinations entitlements) is noted as inapplicable. There is no other way to interpret either provision. Accordingly, State Farm’s submission that the $2,000.00 cap (s. 25(5)) is applicable to Ms. Stranges’ assessments is correct.

None of the above speaks to whether the disputed assessments were “reasonable”—which would have been the applicable test regardless of whether the Old Schedule or New Schedule applied. The Applicant made no further submissions on point. It seemed the Applicant was content to rest her case on the line of case law emanating from Federico (i.e., that it was improper for the Legislature to interfere with vested rights), and if so then accordingly the $2,000.00 cap on assessments did not apply, and then per Fernandes the only question was one of reasonableness—and the Applicant asserted the full $23,000.00 claimed was reasonable. More ought to have been submitted respecting the reasonableness of the OCF-18 itself. I agree with State Farm that the onus was on the Applicant to prove the reasonableness of the assessments claimed, above and beyond the $11,500.00 that State Farm approved. State Farm provided substantial submissions that called the reasonableness of the denied assessments into question. I agree that on their face the denied assessments appear duplicative, and are inconsistent with the caps outlined in s. 25(5) of the Schedule and the Professional Services Guideline. It does not seem reasonable that a 9-page summary of assessors’ reports would take 44-53 hours of clinician time, or that the O.T. assessments would require 33-40 hours (i.e., 4-5 full days) of work.

The Applicant has not satisfied her onus to show the reasonableness of the cost of the examinations sought. Her claim is denied.

EXPENSES:

If the parties are unable to mutually agree on the entitlement to and/or quantum of the expenses of this matter, either of them may request an appointment with me for determination of same in accordance with the provisions of Rules 75 to 79 of the Dispute Resolution Practice Code.

September 14, 2017

Benjamin Drory Date

Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:

1. Ms. Stranges is not entitled to payments for the cost of examinations in the amount of $11,599.99 for a catastrophic impairment assessment provided by AssessNet Inc., submitted December 4, 2014.

2. If the parties are unable to mutually agree on the entitlement to and/or quantum of the expenses of this matter, either of them may request an appointment with me for determination of same in accordance with the provisions of Rules 75 to 79 of the Dispute Resolution Practice Code.

September 14, 2017

Benjamin Drory

Arbitrator

Date

Footnotes

1. 1Effective September 1, 2010, the Statutory Accident Benefits Schedule—Effective September 1, 2010 (the “New Schedule”) came into force. The transition rules in the New Schedule provide that, subject to certain exceptions, benefits that would have been available pursuant to the Statutory Accident Benefits Schedule—Accidents on or after November 1, 1996 (the “Old Schedule”) shall be paid under the New Schedule, but in amounts determined under the Old Schedule. As a result, both the Old Schedule and New Schedule are applicable to accidents that occurred on or after November 1, 1996 and before September 1, 2010 and both should be considered.
2. 2Do and Guarantee Company of North America, (FSCO A11-000718, November 6, 2012; affirmed on appeal P12-00037, October 11, 2013; application for judicial review dismissed, 2015 ONSC 1891 (Div. Ct.).
3. 3Dikranian v. Quebec (AG), 2005 SCC 73, [2005] S.C.J. No. 75, at paras. 37, 51.
4. 4State Farm Mutual Automobile Insurance Co. and Federico (FSCO Appeal P12-00022, March 25, 2013).
5. 5Elliot (Litigation Guardian of) v. Saskatoon (City), [1985] S.J. no. 427 (Sask. Q.B.), [39]; S.M. v. Saskatchewan, 2009 SKAIA 12; Charles v. I.C.B.C., 1989 CanLII 2682 (B.C.C.A.), [5].
6. 6R.J. and Dominion of Canada General Insurance Co. (FSCO A12-001233, September 17, 2013).
7. 7Fernandes and Western Assurance Co. (FSCO A13-001614, September 30, 2014).
8. 8Cost of Assessments and Examinations Guideline, Superintendent’s Guideline No. 08/10 (Financial Services Commission of Ontario, November 2010).
9. 9Professional Services Guideline, Superintendent’s Guideline No. 03/14 (Financial Services Commission of Ontario, September 2014).
10. 10Transition to the New Statutory Accident Benefits Schedule—Effective September 1, 2010, Bulletin A04-10 (Financial Services Commission of Ontario, April 26, 2010).
11. 11Gan Canada Insurance Company and Lehman (FSCO Appeal P97-00064, August 10, 1998; upheld upon judicial review [2000] O.J. No. 4902).
12. 12Motor Vehicle Accident Claims Fund and Barnes (FSCO Appeal P16-00087, April 6, 2017).
13. 13Note 12, supra.
14. 14Note 4, supra.
15. 15Note 11, supra.
16. 16Note 12, supra, p. 11.
17. 17Note 3, supra.
18. 18Note 5, supra.