A-617-75
Burnbrae Farms Limited (Applicant)
v.
Canadian Egg Marketing Agency (Respondent)
Court of Appeal, Jackett C.J., Urie J. and
MacKay D.J.—Toronto, January 6 and 7, 1976.
Judicial review—Decision by CEMA revoking applicant's
grading station operator's licence—Whether Agency failed to
follow principles of natural justice in refusing to grant
adjournment—Whether panel members biased—Whether
panel had previously decided to form intent to revoke—
Whether panel erred in assuming prior decision valid—Farm
Products Marketing Agencies Act, S.C. 1970-71-72, c. 65, ss.
2, 17, 18, 23(1)—Canadian Egg Licensing Regulations, ss. 3, 8,
9, 10.
Applicant, holder of a grading station operator's licence
issued by respondent, CEMA, failed to collect levies from other
producers and to pay levies as a producer itself. This failure
was a form of protest against the manner in which the market
ing plan was being administered. Notice of intention to revoke
its licence was given October 2, 1975, notice of hearing fol
lowed on October 17, and the hearing, at which the licence was
revoked, occurred October 24. Applicant claims that the deci
sion failed to follow principles of natural justice in that a
request for adjournment was refused, certain members of the
panel were biased, and that there was a real apprehension or
likelihood of bias. Applicant further alleges that the panel
included the Executive of the Board of CEMA which had
previously made a formal decision to form an intent to revoke,
and that the panel erred in law in proceeding on the assumption
that the prior decision was valid.
Held, the application is dismissed. Applicant's last point is
dependent upon reading sections 9 and 10 of the Regulations as
requiring two quasi-judicial decisions as a condition precedent
to suspension or revocation. Section 10 is merely a procedural
safeguard to ensure the licensee fair opportunity to respond
before revocation or suspension, and is purely administrative.
As to refusal to adjourn, a statutory tribunal has a wide
discretion to decide if and when a properly convened hearing
will be adjourned. Supervisory jurisdiction under section 28 can
be exercised only if such refusal has deprived a complainant of
reasonable opportunity of meeting the case against him. Appli
cant's desire for more time to prepare is irrelevant; the period
allowed from the giving of the show cause notice to the date of
the hearing was adequate. As to bias, under the statutory
scheme, an apprehension of bias based only on the fact that
some panel members have, by virtue of the area from which
they come, a business background with economic interests
which conflict with those of a particular licensee cannot be a
disqualification. Nor is there evidence of actual bias, but only
an expressed intention to carry out the statutory function.
Participation in the administrative action under section 10 did
not involve forming any view as to what action should be taken
under section 9, and in no way disqualified the members. And,
the consulting of counsel for CEMA by panel members did not
constitute the taking of evidence by one party in the absence of
the other. There is no suggestion of possible miscarriage of
justice by reason of the advice taken, and the procedure was
proper.
APPLICATION for judicial review.
COUNSEL:
H. Turkstra for applicant.
F. Lemieux and K. L. Boland for respondent.
SOLICITORS:
Turkstra and Dore, Hamilton, for applicant.
Herridge, Tolmie, Gray, Coyne & Blair,
Ottawa, for respondent.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is a section 28 application to
set aside a decision of the Canadian Egg Market
ing Agency dated October 24, 1975, revoking the
Grading Station Operator's Licence, Number
1240, that had been issued to the applicant.
The matters necessary to understand the ques
tions raised by the application may be summarized
as follows:
1. The Farm Products Marketing Agencies Act
(S.C. 1970-71-72, c. 65), which came into force
early in 1972, provided inter alia (section 17)
for a proclamation of the Governor in Council to
establish an "agency" with powers relating to
any of certain farm products. An agency so
established is a body corporate. Such a procla
mation must (section 18), inter alia, set out the
terms of a "marketing plan" that the agency is
empowered to implement, fix the number of
members of the agency "at least a majority of
whom shall be primary producers", and deter
mine the manner of appointment of such mem
bers. An agency so established has power, inter
alia (section 23(1)), to "make such orders and
regulations as it considers necessary" in connec
tion with the marketing scheme, by order, to
require persons engaged in the marketing of the
product "to deduct from any amount pay
able... to any other person engaged in the
production or marketing of such ... product any
amount payable to the agency by such other
person by way of licence fees, levies or charges"
provided for in the marketing plan and to remit
amounts so deducted to the agency, and to do all
other things necessary or incidental to the exer
cise of its powers or the carrying out of its
functions. The "marketing plan" which must be
set out in the proclamation is (section 2(e)) "a
plan relating to the promotion, regulation and
control of the marketing of any regulated prod
uct in interprovincial or export trade", that
includes "provision" for all or any of certain
features, one of which is "a system for the
licensing of persons engaged in the ... produc
tion of the ... product for, or the marketing
thereof in, interprovincial or export trade"
(including provision for certain fees payable to
the agency and "for the cancellation or suspen
sion of any such licence where a term or condi
tion thereof is not complied with"), and another
of which is "the imposition and collection by
the ... agency of levies or charges from persons
engaged in the ... production of the ... product
or the marketing thereof".
2. The Canadian Egg Marketing Agency Proc
lamation was made by the Governor in Council
on December 19, 1972, pursuant to the Farm
Products Marketing Agencies Act. This procla
mation established the respondent, the Canadian
Egg Marketing Agency (hereinafter referred to
as "CEMA"), consisting of ten members, to
exercise powers in relation to eggs from domes
tic hens produced anywhere in Canada and had
attached to it a schedule setting out inter alia
the manner of appointment of CEMA's mem
bers and the terms of the marketing plan to be
implemented by CEMA. Leaving aside the pre-
liminary period, that schedule provided that
"The Commodity Board for each province,"
which was defined, "may from time to time
appoint a Canadian citizen who is a resident of
the province for which that Board is established
to be a member of the Agency" (section 2(2)).
The schedule also
(a) set out a detailed "marketing plan",
(b) required CEMA to establish a system for
licensing of persons engaged in the marketing
of eggs in interprovincial or export trade (and
incidentally thereto, to prescribe the terms
and conditions to which each licence is subject
"including a condition that the person to
whom the licence is issued shall at all
times ... comply with orders and regulations
of the Agency"), and
(c) authorized CEMA, by order or regula
tion, to impose levies and charges on persons
engaged in the production or marketing of
eggs.
3. In May, 1973, CEMA enacted the Canadian
Egg Licensing Regulations. These regulations
(section 3) prohibit any person from engaging in
the marketing of eggs in interprovincial or
export trade, as a producer, grading station
operator, producer-vendor or processor, unless
he holds a licence under the regulations and
pays a prescribed annual fee; they provide (sec-
tion 8) that every licence shall be issued subject,
inter alia, to the condition that "the licensee
shall at all times ... comply with orders and
regulations of the ... Agency"; and they further
provide (section 9), "The Agency may suspend,
revoke or refuse to issue a licence ... where the
applicant or licensee has failed to observe, per
form or carry out any condition of the licence".
This latter provision must be read with a proce
dural provision (section 10), which provides that
"Where the Agency intends to suspend or
revoke a licence, the Agency shall give to the
licensee by registered mail ... notice of its
intention to suspend or revoke the licence, ...
and such notice shall fix a time of not less than
14 days from the mailing thereof for the licensee
to show cause why the licence should not be
suspended or revoked ...."
4. The 1972 proclamation was amended on Sep-
tember 15, 1975, inter alia to increase the mem
bership of CEMA by two members appointed by
the Governor in Council.
5. CEMA required payment of levies by pro
ducers to be collected by grading station opera
tors and paid over to CEMA through duly con
stituted agencies.
6. On May 1, 1975, a grading station operator's
licence was issued to the applicant (presumably
by way of renewal of previous licences).
7. The applicant should, under the statutory
scheme, have collected levies from others, who
were producers, and paid them to CEMA, and
should, as a producer, have paid levies to
CEMA, but it wilfully failed to do either of
those things.
8. A document dated October 2, 1975, entitled
"Notice of Intention to Revoke Grading Station
Operator's Licence No. 1240" and signed by the
General Manager of CEMA was sent to the
applicant. This document reads:
The Canadian Egg Marketing Agency on the 1st day of
May, 1975 issued to you a grading station operator's
licence pursuant to the Canadian Egg Licensing Regula
tions authorizing you to engage in the marketing of eggs as
a grading station operator in interprovincial or export
trade and authorizing you to engage in the selling and/or
buying of eggs in interprovincial or export trade.
It is a condition of your licence that you shall at all
times during the term of the licence comply with orders
and regulations of the Agency.
You are aware of the terms of the Canada Egg Pur
chasing Levies Order and the Canada Interim Egg Levies
Order which impose levies on producers. The levies cur
rently imposed are 3.5 cents per dozen. By the terms of
these Orders where the eggs are sold to a grading station
the levies are to be collected by the grading station to
whom such eggs are delivered by deducting the amount of
the levy from the moneys payable to the producer. In
addition, by the terms of the Levies Orders cited above you
are to pay such moneys collected from the producers to the
Ontario Egg Producers Marketing Board.
It is alleged against you that you are refusing to collect
from producers the levies imposed pursuant to the Levies
Orders referred to above and are refusing to pay such
levies to the Ontario Fowl and Egg Producers Marketing
Board in accordance with their direction. Pursuant to
section 9 of the Canadian Egg Licensing Regulations the
Agency may revoke a licence where a licensee has failed to
observe any condition of the licence.
TAKE NOTICE THEREFORE that pursuant to section 10 of
the Canadian Egg Licensing Regulations the Canadian
Egg Marketing Agency gives you notice of its intention to
revoke the grading station operator's licence which it has
issued to you and hereby gives you notice of such intention.
Pursuant to the provisions of section 10 the Canadian
Egg Licensing Regulations, you are given until the 16th
day of October, 1975 to show cause why your grading
station operator's licence should not be revoked. This is an
opportunity for you to provide the Agency with any facts
or arguments which may have a bearing on the question.
Revocation of your licence has the result that you are
prohibited from marketing eggs as a grading station opera
tor in interprovincial and export trade and authorizing you
to engage in the selling or buying of eggs in interprovincial
trade.
9. A document dated October 17, 1975, and
entitled "Notice of Hearing" was sent to the
applicant. This document reads:
TAKE NOTICE that the Canadian Egg Marketing Agency
at a hearing to be held on Friday the 24th of October,
1975 at 1:00 p.m. in the Gatineau Room, Conference
Centre, in the City of Ottawa will consider whether your
grading station operator's licence authorizing you to
engage in the marketing of eggs in interprovincial or
export trade should be revoked on the grounds that you
have violated a condition of such licence in that you have
failed to comply with the terms of the Canada Egg Pur
chasing Levies Order, as amended and the Canada Interim
Levies Order as amended, by not collecting such levies
from the following producers: Ed Becker, Kaiser Lake
Farms, Embury Bros. Farm Ltd., Hemlock Park Co-Op
Farm Ltd., Richard Paddle (Sillcrest), Aeggco Ltd., J.
Burman, Joe David, R. McEwen, Burnbrae McCallum,
Joe Hudson.
AND FURTHER TAKE NOTICE that you may adduce such
evidence in respect of the matter as you or your counsel
may be advised and you may either in person or through
counsel make such further and other submissions beyond
the opportunity accorded to you by letter of October 2nd,
1975.
AND FURTHER TAKE NOTICE that if you do not attend at
this hearing, the Agency may proceed in your absence and
you will not be entitled to any further notice in the
proceedings.
10. CEMA held the hearing on October 24,
1975, at which it was represented by counsel
who put forward evidence against the applicant,
and the applicant was represented by counsel
who put forward evidence including the appli
cant's own testimony.
11. An order bearing date October 24, 1975,
was made by CEMA. This order reads:
It is ordered that, Burnbrae Farms Limited having
failed to collect and remit levies as required by the Canada
Egg Purchasing Levies Order and the Canada Interim Egg
Levies Order, the Licence of Burnbrae Farms Limited
issued pursuànt to the Canadian Egg Licencing Regula
tions, being a Grading Station Operator's Licence author
izing that' company to engage in the selling and/or buying
of eggs as a Grading Station in interprovincial or export
trade, is hereby revoked effective immediately.
This latter order is the subject matter of this
section 28 application.
Certain points are not in dispute, viz:
1. No attack has been made on the validity of
the Proclamations made by the Governor in
Council or the validity of the licensing regula
tions or levy order made by CEMA and no
determination of their validity has to be made;
for the purpose of this application, it is common
ground that their validity must be assumed.
2. The applicant concedes
(a) that the licence that is the subject matter
of the order under attack was issued condi
tional upon compliance with CEMA's orders
and regulations; and
(b) that CEMA had made an order requiring
the applicant to remit certain levies and that
the applicant had, prior to the making of the
order under attack, failed to comply with such
orders.
Indeed, it is quite clear that the applicant had
deliberately flouted the orders for payment of
levies to CEMA as a form of protest against the
manner in which the marketing plan that CEMA
was charged with implementing was being admin
istered and that the applicant made it quite clear
at the licence cancellation hearing that it intended
to continue to flout such orders until some vague
undefined changes in the administration of that
plan were made. It is also clear that the applicant
and others who shared his point of view had
embarked on a programme of action calculated to
frustrate the marketing plan as it was being imple
mented by CEMA and that such programme
included
(a) the non-payment of levies,
(b) the defence against the licence-cancellation
proceedings, and
(c) various legal proceedings, including this sec
tion 28 application.
I mention this programme of action not as an
indication as to how this or any other legal pro
ceeding should be decided but to underline the
obvious fact that, where the applicant has deliber
ately chosen to defy the legal requirements flowing
from the Farm Products Marketing Agencies Act,
no matter how justified such defiance of the law
may be from his point of view, the courts and other
tribunals involved must carry out their duties of
rendering such decisions as are required by the law
in the circumstances.
It is against that background, in my view, that
the applicant's attacks on the order made by
CEMA under date of October 24, 1975, must be
considered.
The attacks so made by the applicant on the
order of October 24, 1975, are with one exception
summarized by the memorandum filed by the
applicant in this Court as follows:
The applicant submits that the decision dated October 24,
1975 (whenever it was, in fact, made) should be set aside on the
following grounds:
(a) CEMA failed to follow the principles of natural justice
in that it:
(i) Refused a reasonable and necessary request for an
adjournment, thus preventing the Applicant from obtain
ing a fair and proper hearing;
(ii) Proceeded to hold a hearing by a panel which included
members who were biased against the Applicant because
they either directly, or as representatives of other persons,
had a proprietary interest in having Burnbrae Farms
removed from the Montreal market;
(iii) Conducted the hearing notwithstanding that there
was a real apprehension of and likelihood of bias against
Burnbrae Farms as an eastern Ontario egg producer and
agitator for reform of the national plan. The existence of
such bias was evidenced by the Directors' administration
of the national egg plan, by the timing and manner of the
October proceedings, by the conduct of the staff of the
Agency in the period immediately preceding the hearing,
all of which clearly showed that CEMA's actions were
designed to crush the eastern Ontario opposition to its
administration for the protection of the interests of the
other provinces;
(iv) The panel of Directors who sat on October 24th
included the Executive of the Board of CEMA who had
previously made a formal decision to form an intention to
revoke the licence and who had sat for that purpose on a
previous occasion with John Hyde, a Director with
acknowledged bias against the Applicant;
(b) The hearing of October 24th was a show cause hearing
which required for its validity a prior valid decision to
revoke. There is no evidence that the Executive of CEMA is
authorized to make the decision required for CEMA to form
that intention and the formation of that intention was a
decision which was made without notice and is in its absence
and is in law void. The panel sitting on October 24th erred in
law in proceeding on the assumption that the prior decision
of the Executive was valid.'
I find it convenient to deal first with the last of
these attacks. This attack is based upon an inter
pretation that the applicant puts upon sections 9
and 10 of the Canadian Egg Licensing Regula
tions, which I quote in full at this point, for
convenience:
9. The Agency may suspend, revoke or refuse to issue a
licence where the applicant or licensee is not qualified by
experience, financial responsibility or equipment to engage
properly in the business for which application is made or where
the applicant or licensee has failed to observe, perform or carry
out any condition of the licence.
10. Where the Agency intends to suspend or revoke a
licence, the Agency shall give to the licensee by registered mail
addressed to him at his address recorded in the books of the
Agency notice of its intention to suspend or revoke the licence,
as the case may be, and such notice shall fix a time of not less
than 14 days from the mailing thereof for the licensee to show
Paragraph 6(a)(v) of section 2 of the applicant's memoran
dum was withdrawn by counsel for the applicant during the
course of argument.
cause why the licence should not be suspended or revoked, as
the case may be.
The applicant's attack based upon these sections is
dependent upon reading them as requiring two
decisions to be made by CEMA on a quasi-judicial
basis as a condition precedent to suspension or
revocation of a licence, viz:
(a) a decision under section 10 forming an
intention to suspend or revoke the licence, and
(b) a decision under section 9 to suspend or
revoke the licence.
While section 10 has not been framed as felicitous-
ly as it might have been, it is quite clear to me that
a fair reading of the two sections requires that
section 10 be regarded as being merely a proce
dural provision designed to ensure that the licensee
be given a fair opportunity of answering what is
alleged against him before suspension or revoca
tion action is taken against him under section 9.
The result in my view is that what is contemplated
is
(a) purely administrative action under section
10 to put the licensee in a position to answer
that which is alleged against him, which proce
dural action requires no prior opportunity to be
heard and is of a kind that can quite properly be
delegated to an executive body or appropriate
officials (and, in the absence of challenge by the
Agency itself, must be assumed to have been so
delegated when an executive body or an official
of the Agency purports to have taken the con
templated action); and
(b) actual suspension or revocation under sec
tion 9, which must be carried out by the Agency
itself on a quasi-judicial basis.
I turn now to the attacks based upon the alleged
failure of CEMA to follow the principles of natu
ral justice before making the order under attack.
These attacks fall under two main heads, viz:
(a) a refusal to grant the applicant an adjourn
ment of the hearing on the licence revocation
question, and
(b) bias or apprehension of bias.
In my view, there is no basis for complaint in the
refusal of an adjournment in this case. Generally
speaking, as I understand it, a statutory tribunal
is, subject to any special requirements established
by law, the master of its own proceedings and, in
particular, has a very wide discretion to decide if
and when a properly convened hearing will be
adjourned and, if adjourned, for how long it will be
adjourned. Again, speaking very generally, a
supervisory jurisdiction such as is conferred by
section 28 of the Federal Court Act can only be
exercised to set aside a decision of such a tribunal
for refusal to grant an adjournment if, as a result
of such refusal, the person concerned has been
deprived of a reasonable opportunity of answering
the case that is being put against him. In the
present case, the applicant was given a show cause
notice shortly after October 2 by which it was
given some two weeks to show cause and, then, it
was given notice of a hearing to be held on Octo-
ber 24. Prima facie, this was ample time for
preparation of any answer that it might have had
to the rather simple case that was being put
against it. Its complaint is, however, that it had
chosen to use much of that time in connection with
legal proceedings that it was embarking on, as I
see it, in the course of the programme of opposi
tion against the marketing plan as it was being
implemented, to which I have referred, and that it
required, after receiving the notice of hearing, time
to organize a case that it desired to put before the
Agency, the purpose of which was to convince the
Agency that the Agency was implementing the
marketing plan in a way that was inequitable to
the applicant and persons in a like position. Not
only is the case that the applicant desired more
time to prepare completely irrelevant, in my opin
ion, to the subject matter of the hearing, but, as it
seems to me, the period allowed from the time the
show cause notice was given to the date of hearing
was not inadequate for its preparation. 2 I can see
no basis in the refusal of the adjournment for
setting aside the order under attack.
2 The only arguable relevance of such a case is that it might
have tended to show that the licence should not have been
revoked at all or should only have been suspended. In my view,
a case based on unevenness of enforcement as between the
applicant and others was completely irrelevant to that question
as long, at least, as the applicant persisted in its own refusal to
pay the levies.
I come to the allegations of bias or apprehension
of bias. As I appreciate the various forms in which
such allegations are formulated, they are based on
facts which, in my view, fairly regarded, can be
described as follows:
(a) members of CEMA who sat at the hearing
leading to the decision under attack were repre
sentative of producers in provinces other than
Ontario, where the applicant carries on business,
and whose economic interests accordingly con
flict with those of the applicant and others in the
same position as the applicant, and
(b) the expressed intention of persons acting on
behalf of CEMA to enforce the legal require
ments of the marketing plan against those who
had wilfully breached such requirements by way
of protest against the way the plan was being
implemented by the majority decisions of the
members of CEMA.
In so far as the representative character of the
members of CEMA is concerned, when the stat
ute, the proclamation and the licensing regulations
(all of which are accepted as valid for the purpose
of this section 28 application) are read together, it
appears
(a) that, of the 12 members of CEMA, at least
9 must be persons appointed by commodity
boards established for provinces other than
Ontario and "at least" 7 must be primary
producers,
(b) that it is the Agency so constituted that is
charged with implementing the marketing plan,
an essential part of which is the levies the
payment of which is a condition to the holding
of a licence, and
(c) that it is the Agency so constituted that is
charged with the responsibility of enforcing such
condition, inter alia, by suspending or revoking
licences.
Furthermore, in the absence of any special provi
sion concerning a quorum, at least one-half of the
members of CEMA must participate in any deci
sion that must be made by the Agency itself. (See
section 21 of the Interpretation Act, R.S.C. 1970,
c. I-23.) In such a statutory scheme, it does not
appear to me that an apprehension of bias that is
based only on the fact that some of the members
have, by virtue of the part of the country from
which they come, a business background with eco
nomic interests that conflict with those of a par
ticular licensee whose licence is in jeopardy can be
regarded as a disqualification.
In so far as actual bias is concerned, I have not
found any evidence that shows that any member
who participated in the decision under attack was
subject to any such disqualification. Certainly, in
my view, an expressed intention by members of
CEMA or its staff to carry out their statutory
function of implementing the marketing plan by
compelling members who flout its orders to comply
therewith cannot be taken as evidence of bias
having regard to CEMA's obligation to implement
the statutory scheme created by the statute, proc
lamation and regulations, all of which, as I have
said, are accepted as valid for the purpose of these
proceedings.
A special comment is required with reference to
the attack summarized in the applicant's memo
randum, as follows:
The panel of Directors who sat on October 24th included the
Executive of the Board of CEMA who had previously made a
formal decision to form an intention to revoke the licence and
who had sat for that purpose on a previous occasion with John
Hyde, a Director with acknowledged bias against the
Applicant;
In so far as the members of CEMA who, as
members of the Executive, participated in the
action under section 10 of the Canadian Egg
Licensing Regulations are concerned, for the rea
sons already given, I am of the view that what they
did was purely administrative, in no way involved
forming any view as to what action should be
taken under section 9, and in no way disqualified
them from participating in the Agency's decision
under section 9. With reference to their participa
tion with Mr. Hyde in the taking of action under
section 10, even if he had an "acknowledged bias
against the Applicant", nothing involved in the
section 10 action would, in my view, infect them
with such bias and, in any event, I do not find any
evidence in the record to support the statement
that he had "acknowledged bias against the Appli
cant". I do not overlook those parts of the evidence
of Mr. Hudson in which he expressed a belief that
Mr. Hyde was biased against him but, on the
reasoning that I have endeavoured to expound with
reference to the general question, there was, in my
view, no reasonable basis for such belief.
Finally, I should refer to a belated attack, not
reflected in the applicant's memorandum, that is
based on minutes of CEMA's proceedings that
came to the attention of the applicant after its
memorandum was filed. Briefly, the complaint is
that a member of the bar who was of counsel for
CEMA during the hearing was consulted by the
members who constituted the panel that par
ticipated in the hearing as to whether an alleviat
ing provision could legally be inserted in the revo
cation order. By analogy to other classes of cases,
it was contended that this constituted the taking of
evidence or listening to submissions of one party in
the absence of the other. Such questions must, of
course, be decided in each case by reference to the
particular legal system that has been set up. This
is not a case where there is a tribunal that has, to
decide a case between two opposing parties. In my
view, this is a case of the class where a statutory
authority has a duty to exercise a power of its own
motion but only after giving the person concerned
an opportunity to be heard, and by its very
nature—whether it is a government department or
other statutory authority—can only be expected to
operate and take decisions with the help of profes
sional or other staff. Such an authority must be
able to resort to 'appropriate staff help in the
working out of its decisions after it has given the
person concerned his opportunity to be heard.
There is no suggestion in this case of a possibility
of a miscarriage of justice by reason of the particu
lar advice taken and the procedure followed is the
very procedure contemplated by the long line of
cases concerning public departments and bodies
going back at least as far as the Arlidge case.'
In my opinion, this section 28 application should
be dismissed.
* * *
URIE J. concurred.
* * *
MACKAY D.J. concurred.
3 [1915] A.C. 120.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.