Iroquois Falls Power Corp. v. Jacobs Canada Inc., 2008 ONCA 320
CITATION: Iroquois Falls Power Corp. v. Jacobs Canada Inc., 2008 ONCA 320
DATE: 20080428
DOCKET: C46908
COURT OF APPEAL FOR ONTARIO
CRONK, JURIANSZ and WATT JJ.A.
BETWEEN:
IROQUOIS FALLS POWER CORP.
Appellant (Plaintiff)
and
JACOBS CANADA INC., MCDERMOTT INCORPORATED, CHUBB INSURANCE COMPANY OF CANADA, and AMERICAN HOME ASSURANCE COMPANY
Respondents (Defendants)
AND BETWEEN
JACOBS CANADA INC. and MCDERMOTT INCORPORATED
Respondents (Plaintiffs by Counterclaim)
and
IROQUOIS FALLS POWER CORP. and COMPUTERSHARE TRUST COMPANY OF CANADA, in its capacity as TRUSTEE OF NORTHLAND POWER INCOME FUND and IROQUOIS FALLS POWER MANAGEMENT INC.
Appellant IFPC (Defendants By Counterclaim)
Counsel:
Warren H.O. Mueller, Q.C. and Robby Bernstein for Iroquois Falls Power Corp.
Duncan W. Glaholt, Q.C. and P.E. Du Vernet for Chubb Insurance Company of Canada and American Home Assurance Company
Robert Rueter and Jordan Nichols for Jacobs Canada Inc. and McDermott Incorporated
Heard: November 13, 2007
On appeal from the judgment of Justice Colin L. Campbell of the Superior Court of Justice dated March 20, 2007 with reasons reported at [2007] O.J. No. 2940.
JURIANSZ J.A.:
[1] The appellant, Iroquois Falls Power Corp. (“IFPC”), appeals from an order granting summary judgment against it and dismissing its action against all the defendants.
[2] IFPC is the successor to Northland Power Iroquois Falls Partnership. In January 1995, Northland contracted with Delta Catalytic Engineering and Construction Ltd. to “engineer, procure and construct” a natural gas electric co-generation plant with two heat recovery steam generators (“HRSGs”). Delta constructed the plant and turned it over to IFPC in January 1997. On April 13, 2000, IFPC noticed cracks developing in the HRSGs’ casings. More cracks developed over the months of June and July. When contacted by IFPC about the problem, Delta raised the possibility that the cracking might be due to improper maintenance practices. After some investigation, however, IFPC received an expert report on November 26, 2001 concluding that the cracking was caused by high nitric oxide (“NOx”) levels in the HRSGs. IFPC began this action against the defendants.
[3] By the time the action was started, Delta had been reorganized and then purchased by the respondent Jacobs Canada Inc. McDermott Incorporated is the parent company of Jacobs Canada, and guaranteed Delta’s obligations when Jacobs purchased Delta. Chubb Insurance and American Home Assurance issued a $104 million performance bond to cover the project. McDermott and the bonding companies are also defendants in IFPC’s action.
[4] IFPC commenced its action on June 1, 2005. The defendants Jacobs and McDermott brought a motion for summary judgment, arguing that the Professional Engineers Act, R.S.O. 1990, c. P. 28 (the “PEA”) stipulated a limitation period of twelve months for claims arising in respect of professional engineering services. This period had obviously expired before the Statement of Claim was issued.
[5] In response, IFPC brought a motion seeking to amend its Statement of Claim to include an express product durability warranty claim based on its contract, to which a six year limitation period would apply. The parties agreed that the summary judgment motion would be heard as if the proposed amendments to the Statement of Claim had been made. The motion to amend would be heard later, if necessary.
[6] The motion judge granted summary judgment dismissing the action against all defendants.
[7] For the reasons that follow, I would find that the respondents’ claim as originally brought is barred by the limitation period under the PEA as adopted by the Limitations Act, 2002, S.O. 2002, c. 24 Sch. B. However, the summary judgment motion was to proceed as if the amendments had been made, so the relevant limitation period is that covering the amended claim. Under the amended claim there is a genuine issue for trial as to whether services beyond the scope of professional engineering were provided to which a six year limitation period applies, and whether six years passed between the discoverability of the claim and its filing.
Decision of the motion judge
[8] The motion judge found that the appellant’s Statement of Claim sought damages in respect of engineering services and thus the twelve month limitation period set out in the PEA applied. He found he had no jurisdiction to grant an extension of the period, and that alternatively, if he had such jurisdiction he would not exercise it because of prejudice to the respondents flowing from the delay. He found that any applicable limitation period began running on April 13, 2000 when the cracks in the HRSGs were first discovered, and thus even if the six year general limitation period for contract damages applied, it had expired by the time the plaintiff served the proposed amendments to its claim in June 2006.
[9] When IFPC’s claim was filed, the Limitations Act, 2002 was in effect. The transitional provisions of that Act provide that any “former limitation period” would continue to apply if the claim was discovered before the effective date, January 1, 2004, and the former limitation period had not expired before that date. Thus the motion judge had to decide whether the “former limitation period” had expired before IFPC brought its claim.
[10] The “former limitation period” was found in s. 46 of the PEA, in force at the time of the events but repealed by the coming into force of the Limitations Act, 2002. Section 46(1) of the PEA provided that a proceeding “for damages arising from the provision of a service that is within the practice of professional engineering” could not be commenced “after twelve months after the date on which the service was, or ought to have been, performed.” Section 46(2), however, allowed the court to extend the limitation period after its expiry “if the court is satisfied that there are apparent grounds for the proceedings and that there are reasonable grounds for applying for the extension.”
[11] The motion judge found that the “former limitation period” referred to in the Limitations Act, 2002 was the twelve month period specified in s. 46(1). He concluded that since s. 46(2) had been repealed, the court no longer had jurisdiction to grant an extension. He went on to say that even if the court did still have the jurisdiction to grant an extension, he would not do so because the defendants had suffered prejudice as a result of IFPC’s delay in commencing the action.
[12] The motion judge rejected IFPC’s submission that its amended claim expressly sought damages beyond the scope of engineering services. He said at para. 68:
Even if the proposed amendments are taken into consideration, absent the prejudice urged by the Defendants, I fail to see any factual difference between the claims alleged against the Defendants as contractors than as engineering services which have the benefit of the provisions of the PEA. They are exactly the same. Even if the different claims could give rise to different damages when they were performed, they were sued as engineers by engineers who should have the benefit of the PEA limitation period.
[13] IFPC contended that even if dismissed against Jacobs, its claim should be allowed to proceed against McDermott on the guarantee. The motion judge rejected this argument because IFPC did not commence its claim until more than six years had elapsed from the time it became aware of the facts on which its claim was based and was thus barred by the six year contract limitation period as well as the PEA period.
[14] Given his conclusion that the limitation period had expired, whether the claim was regarded as subject to the limitation period in s. 46 of the PEA or the six year period for contracts and torts, the motion judge granted summary judgment to all defendants. The bonding companies had not brought their own summary judgment motion, but he reasoned that the expiry of the limitation period on the underlying claim also meant that McDermott and the bonding companies could not be held liable.
Analysis
[15] There are three issues to be determined on this appeal:
When did the limitation period for professional engineering services expire?
Does the appellant have a product durability warranty claim against Jacobs that is governed by an unexpired six year limitation period?
Did the motion judge err in dismissing the claim against McDermott on its guarantee and against the bonding companies on their bonds?
Since this is an appeal of a summary judgment, IFPC must simply show that there is a genuine issue for trial on any of these three questions.
1. When did the limitation period for professional engineering services expire?
[16] At the time of the events, s. 46 of the PEA dealt with the limitation of actions arising from the provision of engineering services. The section provided:
46 (1) Proceedings shall not be commenced against a member of the Association or a holder of a certificate of authorization, a temporary licence, or a limited licence for damages arising from the provision of a service that is within the practice of professional engineering after twelve months after the date on which the service was, or ought to have been, performed.
Extension of time
(2) The court in which an action mentioned in subsection (1) has been or may be brought may extend the limitation period specified in subsection (1) before or after the expiration of the period if the court is satisfied that there are apparent grounds for the proceedings and that there are reasonable grounds for applying for the extension.
[17] This provision, along with many other specific limitation periods, was repealed by the Limitations Act, 2002. The Act’s transitional provisions governed claims that—like this one—are based on acts or omissions that took place before the statute’s effective date (January 1, 2004) but were commenced after its effective date. Section 24(3) of the Act provides that if the “former limitation period” expired before the effective date, no proceeding may be commenced in respect of the claim. If the “former limitation period” did not expire before the effective date, then s. 24(5)2 provides the “former limitation period” continues to apply. Therefore, it must be determined whether the “former limitation period” expired before the effective date.
[18] The respondents argue that the “former limitation period” is the twelve month period specified by s. 46(1) of the PEA. On this characterization, the former limitation period had expired long before IFPC filed its claim. The appellant, however, contends that the jurisdiction of the court under s. 46(2) to extend the twelve month period must be considered to be part of the “former limitation period” referred to by s. 24(5) of the Limitations Act, 2002. On this characterization, the transitional provisions preserve the jurisdiction of the court to extend the time within which a claim may be brought. In its proposed amended claim, IFPC seeks an extension of time to bring its claim in respect of engineering services.
[19] IFPC relies on this court’s recent decision in Philion (Litigation Guardian of) v. Lemieux Estate, 2007 ONCA 281, [2007] O.J. No. 1405 (C.A.). However, Philion is a different case from this one. It involved a clear statutory provision that delayed the commencement of the limitation period. Here, on the other hand, we are concerned with a provision that gave the court a separate discretionary power to extend the limitation period.
[20] After the hearing of this matter, counsel for the appellant drew the panel's attention to this court’s recent decision in Guillemette v. Doucet (2007), 2007 ONCA 743, 88 O.R. (3d) 90. This too is a different case. The limitation period in that case was set out in s. 4 of the Solicitors Act, R.S.O. 1990, c. S.15. It allowed the extension of the prescribed time period when special circumstances exist. Unlike this case, it remained in force after the coming into effect of the Limitations Act, 2002. The court found that the “special circumstances” qualifier in s. 4 of the Solicitors Act fell within s. 20 of the Limitations Act, 2002, which provides “This Act does not affect the extension, suspension or other variation of the limitation period or other time limit by or under another Act.” The court went on to find, alternatively, that if the transitional provisions applied, they retained the limitation period in the Solicitors Act and did not apply the new Limitations Act period. Section 4 of the Solicitors Act allowed a judge to find “special circumstances” at any time after the solicitor’s accounts were delivered. Again, the distinction I see is that s. 4 remained in force after the Limitations Act came into effect while in this case, the PEA extension provision was repealed by the time the appellant sought to rely on it.
[21] As I see it, the question is a matter of straightforward statutory interpretation. Section 46(1) of the PEA stated that proceedings for damages arising from professional engineering services could not be commenced after twelve months. Read on its own, the section unequivocally stipulated a limitation period. Section 46(2) did not detract from this, but confirmed it by referring to “the limitation period specified in subsection (1)”. Rather than qualifying the limitation period, s. 46(2) bestowed the court with jurisdiction to extend “the limitation period” in its discretion.
[22] The appellant had not applied for an extension of the limitation period prescribed by s. 46(1) when the court’s jurisdiction to grant an extension was repealed by the Limitations Act, 2002 on January 1, 2004. Any right the appellant had to apply for an extension prior to the repeal of s. 46(2) was not an accrued or vested right. As Chouinard J. wrote in Québec (Attorney General) v. Expropriation Tribunal, 1986 13 (SCC), [1986] 1 S.C.R. 732 at 742:
A vested right is one which exists and produces effects. That does not include a right which could have been exercised but was not, and which is no longer available under the law. The courts and scholarly commentators distinguish between a vested right and what they call either a possibility or an option.
[23] Since the right was not vested, the motion judge was correct that as a consequence of the repeal of s. 46(2) he could no longer grant an extension of the limitation period on an application made after January 1, 2004. The motion judge correctly decided that there was no genuine issue for trial as to whether the limitation period for bringing a claim in respect of professional engineering services had expired.
[24] While this disposes of IFPC’s claim in respect of engineering services, the trial judge went on to hold that even if he still had the discretion to extend the period, he would not do so. He based that conclusion on actual and implied prejudice to the defendants due to the passage of time, the loss of documents, the death of witnesses and the fact the turbines had been replaced and could no longer be inspected. These findings were open to him on the record.
2. Does the appellant have a product durability warranty claim against Jacobs that is governed by an unexpired six year limitation period?
[25] The appellant says that the limitation period of the PEA applies only to professional engineering services and does not apply to acts or omissions of engineers outside the scope of professional engineering practice. In this case, the appellant submits that it advanced claims against Delta as a product procurer and construction contractor (in fact, the contract between the parties was referred to by both parties as an “engineer, procure and construct” or “EPC” contract) and under a warranty of the durability of the HRSGs and that a six year limitation period applies to these claims.
[26] The “practice of professional engineering” is defined in s. 1 of the PEA to mean:
any act of designing, composing, evaluating, advising, reporting, directing or supervising wherein the safeguarding of life, health, property or the public welfare is concerned and that requires the application of engineering principles, but does not include practising as a natural scientist.
[27] I agree that any work done by engineers that does not fall within this definition would not have the benefit of the special limitation period in the PEA. As McLachlin J. observed in George L. Brough Marine Consultants Ltd. v. Aqua Terra Flotations Ltd. (1983), 18 B.L.R. 217 (B.C.S.C.) at 224, “work does not become ‘engineering’ simply because it is performed by engineers”. In Kerbel v. Carson, Dunlop & Associates Ltd. (1994), 27 C.P.C. (3d) 114 (Gen. Div.) Feldman J. found a claim against the defendant as a consulting engineer was barred by s. 46(1) of the PEA, but allowed the action to proceed against him as a building inspector. When engineers compete in business with non-engineers by providing non-engineering services and products they do not have the advantage of the shorter limitation period.
[28] The question, then, is whether the appellant has advanced claims against the defendants that fall outside the definition of professional engineering practice.
[29] I consider first the claim without the proposed amendments. The appellant submits that its original Statement of Claim advanced an implied warranty of product durability claim against Jacobs in its capacity as a product procurer and construction contractor. Such a claim, if it were advanced, would be subject to a six year limitation period. Although the motion judge made comments to the contrary, the appellant’s action was commenced within six years of when the first cracks in the HRSGs were discovered: cracks were first observed on April 13, 2000 and the claim was filed on June 1, 2005.
[30] The appellant identified a few passages in the lengthy original Statement of Claim to support the contention that its original claim included a pleading of implied warranty of durability of the HRSGs. However, in my view, a fair reading of the Statement of Claim is that it asserts a claim relating to engineering design deficiencies. As the Statement of Claim states at the outset in paragraph 1(a), the claim is for damages “consequent upon the breach by Delta of its engineering design obligations as hereinafter pleaded.” The scattered references to an implied warranty relate to an implied warranty of design suitability. To give but one example, paragraph 12 pleads: “Delta assumed an implied obligation to design all principal components of the Project in such a way that they would be suitable for long term performance, reliability and reasonably expected durability.”
[31] I would conclude that the substance and true nature of the claim that IFPC advances against Jacobs in its original Statement of Claim is entirely in respect of the practice of professional engineering. The motion judge was right to conclude that it was barred by the limitation period in the PEA.
[32] I turn then to the appellant’s proposed amended Statement of Claim. The proposed amendments expressly advance a claim for breach of warranty under Article 2.3 of the contract. They allege that the contract contained various “performance specifications” related to the long operating life to be expected of the HRSGs. The amendments assert that these performance specifications were strict liability obligations and constituted warranties that were breached by Delta. The proposed claim particularly identifies and relies upon the express warranty in Article 2.3.1 of the EPC contract.
[33] The motion judge concluded that there was no factual difference between the claims advanced against the defendants as contractors and those advanced against them for engineering services. He said: “They are exactly the same. Even if the different claims could give rise to different damages when they were performed, they were sued as engineers by engineers who should have the benefit of the PEA limitation period.”
[34] I do not agree with this proposition. The fact that the plaintiffs were engineers is irrelevant. So is the fact that the damages may be the same. It is the source of the damages that matters. Section 46 applies only to proceedings “for damages arising from the provision of a service that is within the practice of professional engineering.” The statutory definition in the PEA refers to acts of “designing, composing, evaluating, advising, reporting, directing or supervising.” It does not refer to procuring and constructing or to providing warranties of products.
[35] In my view, the question whether the acts of Delta in product procurement, construction and warranty fall within the practice of professional engineering should not have been decided on a summary judgment motion. It is not plain and obvious to me that such claims relate to damages that arise from “the practice of professional engineering”. It is a question upon which expert evidence, as was led in George L. Brough Marine Consultants, might prove useful. The question is one of mixed fact and law that requires the application of the statutory definition to particular acts of the defendants. Whether the amended Statement of Claim seeks damages that arise other than from the practice of professional engineering is, at the very least, a genuine issue for trial.
[36] The respondents argue further that the proposed warranty durability claim is barred by the six year limitation period in any event as it was served more than six years after the first cracks in the HRSGs were discovered. The first cracks appeared on April 13, 2000 and the amended claim was served on June 9, 2006. There are two reasons I would not give effect to this submission.
[37] First, the parties agreed that this summary judgment motion was to be determined as if the proposed amendments to the Statement of Claim had been made. On this motion, the respondents cannot invoke the general rule that disallows amendments to pleadings that have the effect of relieving against a limitation period. In advancing this argument, the respondents relied on Weldon v. Neal (1887), 19 Q.B.D. 394, and Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 8620 (ON CA), 56 O.R. (3d) 768 (C.A.), but these are pleadings cases. The respondents Jacobs and McDermott argue at paragraph 90 of their factum that “there is no tenable basis upon which the doctrine of special circumstances could apply on the facts of this case to permit the Plaintiff to amend its Statement of Claim to assert its new proposed claim beyond the limitation period”. That may well be so, but it is a question to be determined in the adjourned motion to amend.
[38] Second, discoverability of the claim is a genuine issue for trial. The limitation period begins to run when there are facts that should make a plaintiff aware it has a cause of action. The first cracks in the HRSG casings were observed on April 13, 2000. More cracks were observed developing in June and July 2000. IFPC first gave notice to the defendants of the cracks in July 2000. The HRSGs continued in operation after cracks were first observed.
[39] The nature, extent and gravity of the cracking are relevant to determining when the claim was discoverable. Summary judgment could be granted only if it were plain and obvious that IFPC should have been aware it had a cause of action as soon as the first cracks were noticed. Perhaps any cracking is intolerable in HRSGs. On the other hand, cracking of a minor nature might not affect the operability of HRSGs. The case may well be like that of John Maryon International Ltd. v. New Brunswick Telephone Co. Ltd. (1982), 1982 2906 (NB CA), 141 D.L.R. (3d) 193 (N.B.C.A.), leave to appeal to S.C.C. refused, [1982] 2 S.C.R. vii. In that case, LaForest J.A. held that time did not begin to run when the initial cracks appeared in a telecommunications tower; it only began to run when there was sufficiently serious cracking to enable the plaintiff to recognize a threat to the structural integrity of the tower. It is a question that depends on evidence.
[40] I do not consider it plain and obvious that the limitation period began to run more than six years before the proposed amendments to IFPC’s claim were served on June 9, 2006. It is a genuine issue for trial whether the cracking observed in the HRSG casings before June 9, 2000 was significant enough to constitute real damage, thus enabling IFPC to know the HRSGs were defective and it had a cause of action.
[41] The respondents also argued that IFPC, in its proposed amendments, seeks to withdraw a direct admission made in its Statement of Claim that it is not relying on Article 2.3 of the EPC contract. The appellant responds that it is not seeking to withdraw an admission of fact but merely changing its legal position, which it is entitled to do. Again, whether the proposed amendment should be disallowed because of this change is not an issue for the summary judgment motion, but rather a question for the adjourned motion to amend the pleadings.
[42] I would conclude that the motion judge erred in granting summary judgment to Jacobs on the product durability warranty claim in the proposed amended Statement of Claim. However, as set out above, I would find that he was correct in granting summary judgment against the defendants in respect of the portion of the appellant’s claim regarding the design deficiencies of the HRSGs.
3. Did the motion judge err in dismissing the claim against McDermott on its guarantee and against the bonding companies on their bonds?
[43] IFPC asserts that even if its existing claim against Jacobs is dismissed because the limitation period has expired, it may still claim against McDermott on its guarantee of Delta’s performance of the contract. IFPC points out that the guarantee provides that it is not bound to exhaust its recourse against Jacobs before claiming on the guarantee (Article 4.05), that McDermott agreed to be liable as a principal contractor and principal debtor (Article 2.05), and that McDermott contracted to indemnify it from any damages resulting from a failure by Delta to properly perform the contract (Article 3.01).
[44] In response, McDermott, relying on Article 2.02 of the guarantee, submits that its liabilities under the guarantee cannot be any greater than those of Jacobs/Delta. It submits that once IFPC’s claim against Jacobs is dismissed, it follows that the claim on the guarantee must also be dismissed. McDermott asserts that Article 2.02 is a complete answer to IFPC’s reliance on the guarantee.
[45] Article 2.02 does fend off the first aspect of IFPC’s argument. IFPC submits that the broad language of Articles 2.05 and 3.01 indicate an intention that McDermott would remain liable even if a claim against Delta became unenforceable due to a statute of limitations. This interpretation of Articles 2.05 and 3.01 is not compatible with the clear words of Article 2.02 that “the Guarantor’s Obligations will at no time be greater than the liability of the Contractor to the Owner...” These words make clear that that once the liability of the contractor is extinguished by a limitation period, so is that of the guarantor.
[46] Article 2.02 does not provide a clear response to the second aspect of IFPC’s argument. IFPC submits that even if the particular claim it is making against Jacobs/Delta is only in respect to the practice of professional engineering (and thus out of time), the scope of Jacobs/Delta’s liability is broader than that, including claims under the contractual warranty. The contract and guarantee expressly state that IFPC is not required to bring a claim against the contractor in order to assert it against McDermott as guarantor. Conceived in this way, IFPC is not seeking to claim something that exceeds the total potential liability of the contractor; it is merely making a claim against the guarantor that exceeds the scope of the narrow claim actually initiated against the contractor.
[47] I would not reject the logic of IFPC’s argument on a conceptual level. The language of Article 2.02 would allow a claim against the guarantor not brought against the contractor as long as that claim does not exceed the scope of the contractor’s legal liability. However, the claim actually made by IFPC against McDermott as guarantor in its original Statement of Claim is for “payment under a Guarantee of the obligations of Delta under paragraph 1(a) hereof”. Paragraph 1(a) of the Statement of Claim indicates that IFPC is claiming against Jacobs for failings “consequent upon the breach by Delta of its engineering design obligations as hereinafter pleaded”. Therefore, even accepting that IFPC could have brought a broader claim against the guarantor than it did against the contractor, it did not do so. The claim actually advanced against McDermott on the guarantee is limited to liability that flows from Delta’s failings in the practice of professional engineering.
[48] However, the proposed amendments to the Statement of Claim broaden the claim against McDermott as guarantor, just as they would broaden the claim against Jacobs. In the proposed amendments IFPC advances its express product durability warranty claim against McDermott as guarantor, indemnitor and principal obligator.
[49] Again, because the parties agreed the summary judgment motion would be determined as if the proposed amendments were made, I would set aside the summary judgment in favour of McDermott in respect of the claim advanced in the proposed amendments. Whether IFPC is entitled to amend its claim against McDermott is an issue to be determined on IFPC’s motion to amend the Statement of Claim, which the parties agreed would follow the summary judgment motion.
[50] My analysis of the claim against the bonding companies follows the result on the claim against McDermott as guarantor. The claim advanced against the bonding companies in the Statement of Claim was for “…payment under a Performance Bond… in respect of the obligations of Delta as pleaded in the claim herein.” That claim was limited to damages flowing from the breach by Delta “of its engineering design obligations”. The proposed amended claim against the bonding companies is as broad as the proposed claim against Jacobs. I would also set aside the summary judgment granted in favour of the bonding companies on the claim advanced in the proposed amendments.
Conclusion
[51] Accordingly, for the reasons given, I would allow the appeal and set aside the summary judgment granted by the motion judge. I would substitute an order dismissing-- as against all respondents--those of the appellant's claims that are based on alleged design deficiencies in the HRSGs as advanced in its existing Amended Statement of Claim. This order is made without prejudice to the appellant’s right to proceed with the motion to amend its existing Amended Statement of Claim to advance its product durability warranty claim against all the respondents in accordance with its proposed Fresh Statement of Claim dated June 6, 2006.
[52] I would fix costs in favour of the appellant in the amount of $50,000, inclusive of disbursements and GST.
“R.G. Juriansz J.A.”
“I agree E.A. Cronk J.A.”
“I agree David Watt J.A.”
RELEASED: April 28, 2008