A-132-74
David Cooper (Appellant)
v.
Minister of National Revenue (Respondent)
Court of Appeal, Urie and Le Dain JJ. and
MacKay D.J. Toronto, December 15, 1976 and
February 8, 1977.
Income tax — Income calculation Profits on sale of
mining shares Whether interest in mining property acquired
under prospecting arrangement within ambit of s. 83(3) of
Income Tax Act — Whether appellant disposed of his shares
while or after carrying on campaign to sell to public thus
excluding from exemption under s. 83(4) of the Act Appeal
dismissed — Income Tax Act, R.S.C. 1952, c. 148, ss. 10(1)(j)
and 83.
Respondent claims that profits realized by the appellant on
the sale of shares of the capital stock of a corporation were part
of his income. Appellant contends that the shares were acquired
in consideration for the transfer to the corporation of an
interest in a mining property that he acquired by arranging to
provide money and expenses for prospecting by a prospector
and that the amounts received were therefore excluded from his
taxable income by virtue of sections 10(1)(j) and 83 of the
Income Tax Act. The respondent counters that the appellant
disposed of his shares while or after carrying out a campaign to
sell shares of the corporation to the public so that by virtue of
subsection 83(4) of the Act, paragraphs 83(2)(b) and 83(3)(b)
do not apply.
Held, the appeal is dismissed. Although the appellant
acquired his interest in the mining property under an arrange
ment to carry out prospecting and that prospecting was in fact
carried out, he disposed of his shares while carrying on a
campaign to sell shares of a corporation to the public.
Appleby v. M.N.R. [1972] F.C. 703, applied. Appleby v.
M.N.R. [1975] 2 S.C.R. 805, distinguished.
APPEAL.
COUNSEL:
Paul J. Sullivan for appellant.
J. R. Power and C. Fien for respondent.
SOLICITORS:
Shibley, Righton & McCutcheon, Toronto,
for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
LE DAIN J.: This is an appeal from a judgment
of the Trial Division dismissing an appeal from a
decision of the former Tax Appeal Board which
had dismissed an appeal from income tax re
assessments for the 1965 and 1966 taxation years.
By his re-assessments the respondent Minister
included in the income of the appellant certain
profits realized by the latter on the sale of shares
of the capital stock of a corporation. The appellant
contends that the shares were the consideration for
the transfer to the corporation of an interest in a
mining property that he acquired under an
arrangement with a prospector pursuant to which
he advanced money for, or paid, the expenses of
certain prospecting which was carried out by the
prospector.
The issues on appeal involve the application of
section 10(1)(j) and part of section 83 of the
Income Tax Act, R.S.C. 1952, c. 148, as amended,
which, as they applied to the taxation years 1965
and 1966, read as follows:
10. (1) There shall not be included in computing the income
of a taxpayer for a taxation year
(j) an amount received as a result of prospecting that section
83 provides is not to be included.....
83. (1) In this section,
(a) "minerals" do not include petrôleum or natural gas,
(b) "mining property" means a right to prospect, explore or
mine for minerals or a property the principal value of which
depends upon its mineral content, and
(e) "prospector" means an individual who prospects or
explores for minerals or develops a property for minerals on
behalf of himself, on behalf of himself and others or as an
employee.
(2) An amount that would otherwise be included in comput
ing the income of an individual for a taxation year shall not be
included in computing his income for the year if it is the
consideration for
(a) a mining property or interest therein acquired by him as
a result of his efforts as a prospector either alone or with
others, or
(b) shares of the capital stock of a corporation received by
him in consideration for property described in paragraph (a)
that he has disposed of to the corporation,
unless it is an amount received by him in the year as or on
account of a rent, royalty or similar payment.
(3) An amount that would otherwise be included in comput
ing the income for a taxation year of a person who has, either
under an arrangement with the prospector made before the
prospecting, exploration or development work or as employer of
the prospector, advanced money for, or paid part or all of, the
expenses of prospecting or exploring for minerals or of develop
ing a property for minerals, shall not be included in computing
his income for the year if it is the consideration for
(a) an interest in a mining property acquired under the
arrangement under which he made the advance or paid the
expenses, or, if the prospector was his employee, acquired by
him through the employee's efforts, or
(b) shares of the capital stock of a corporation received by
him in consideration for property described in paragraph (a)
that he has disposed of to the corporation,
unless it is an amount received by him in the year as or on
account of a rent, royalty or similar payment.
(4) Paragraph (b) of subsection (2) and paragraph (b) of
subsection (3) do not apply:
(a) in the case of a person who disposes of the shares while
or after carrying on a campaign to sell shares of the corpora
tion to the public, or,
(b) to shares acquired by the exercise of an option to pur
chase shares received as consideration for property described
in paragraph (a) of subsection (2) or paragraph (a) of
subsection (3).
The issues on appeal are the following:
1. Was there an arrangement to carry out pros
pecting and was prospecting in fact carried out?
2. Did the appellant acquire his interest in a
mining property under the arrangement?
3. Did the appellant dispose of his shares in the
corporation while or after carrying on a campaign
to sell shares of the corporation to the public?
The facts are as follows. The appellant had been
employed only a short time as a commission sales
man of M. Greene and Associates Limited, secu
rity dealers, (hereinafter referred to as "Greene &
Associates"), when he met one Dr. W. N. Ingham,
a consulting geologist, who was at the time of their
meeting doing work for Greene & Associates in
connection with a mining property in which they
were interested. There is no evidence as to how
Ingham came to speak to the appellant and in
particular whether anyone else in Greene &
Associates suggested that he speak to him. At the
time of their meeting Ingham was a knowledgeable
and experienced geologist and prospector. The
appellant had never before made an arrangement
with a prospector, and he struck Ingham as lack
ing in knowledge of such matters. The appellant
fell into a general discussion of mining matters
with Ingham and asked Ingham if he knew of any
interesting mining prospects. Ingham said he knew
of an interesting area. He had in mind an area in
Malartic Township with which he was particularly
familiar because of previous work. The appellant
evinced an interest in acquiring a mining property,
and Ingham suggested that they enter into a grub-
staking agreement. An agreement was drawn up
by a solicitor, C. Marshall Hames, and signed by
the appellant and Ingham on March 1, 1965.
Neither the appellant nor Ingham was able to
produce a copy of this agreement, and Hames was
not called upon to do so. The appellant and
Ingham were agreed in their testimony, however,
as to the existence of the agreement and its essen
tial nature. Both testified that Ingham was to
select an area that looked promising, based on his
previous knowledge and experience, and to do
some prospecting, with a view to making a recom
mendation as to whether to stake claims. The
appellant agreed to pay Ingham $800, of which
$200 was paid in advance and the balance was to
be payable upon completion of the work. Ingham
testified that he was to receive the $800 whether or
not it was decided to stake claims.
Ingham selected an area in Malartic Township
about 15 miles from his office in Val d'Or in which
to do some prospecting. The selection was based on
what Ingham had learned of the area while work
ing as a resident geologist at Val d'Or for the
Quebec Department of Mines during the years
1944 to 1956. During this period he had prepared
a geological map of the whole of the Malartic
Township. Since working for the Quebec govern
ment he had maintained contact with the area as a
consulting geologist operating out of Toronto, with
an office in Val d'Or from about 1964. He was
thus very familiar with the geology and mining
potential of the region. The selection of the area in
which to prospect was also based in part on the
activity and interest being generated by Camflo
Matagami Mines, about four miles from the site
selected by Ingham. Moreover, there were at the
time about twelve companies mining gold or base-
metal ores in the Malartic-Val d'Or area. It was
an active mining area in which the prospects for
further discovery were favourable.
Following the agreement with the appellant
Ingham went to Val d'Or, hired another prospec
tor, James House, to assist him, particularly with
the heavy labour of digging and removing snow,
and set out to try to locate some old trenches along
the shore of Lake Malartic that he recalled from
his earlier explorations of the area. They did not
have any success on the first day, but on the
second day they located one of the trenches and
worked for another day or two to clear the snow
and expose the rock in it. House did most of this
work with Ingham checking on it from time to
time. Ingham also examined a shear zone forma
tion elsewhere in the area but did not take any
samples from it. He took five samples of rock from
the trench by the shore of the lake and had them
assayed. All but one of them failed to show any
significant gold content. The one that did show
something significant was considered to be
encouraging although still relatively modest.
Ingham said that because of the activity in the
area and the rush to stake claims there was no
time to be lost on further prospecting. He reported
the results of his work to the appellant and recom
mended that claims be staked in an area centering
on the trench from which the samples had been
taken. The appellant told him to go ahead. Ingham
said that he based his recommendation on the
analysis of the samples taken from the old trench,
his research into the geology of the area, and the
other activity in the area. He referred to the result
of the sampling as affording "a little encourage
ment" and "a small gold assay." It would appear
that in addition to the study he had made of the
area before he met the appellant Ingham carried
out some further research after the agreement
with the appellant into the geology of the particu
lar area which he had selected for prospecting.
Ingham staked twenty-four claims for the appel
lant covering an area of 1,200 acres. He forwarded
the title to these claims to the appellant in a letter
dated April 26, 1965 in which he said, "These
documents complete my part of the agreement
made on March 1 between David Cooper as
`Grubstaker' and myself as `Prospector' ", and he
received payment from the appellant of the bal
ance of $600 owing under the agreement.
By agreement dated April 28, 1965 the appel
lant sold the claims to Hampshire Mines Limited.
This company, which later changed its name to
Kaiser Mines of Canada Limited, will for conveni
ence be hereinafter referred to as "Kaiser". The
consideration for the transfer was 800,000 shares,
later reduced to 700,000 shares, of the capital
stock of Kaiser, of which 70,000 were held as free
vendor shares and 630,000 were escrowed.
Kaiser entered into an underwriting option
agreement dated April 28, 1965, with Greene &
Associates. The appellant estimated that in the
course of the sale of Kaiser stock to the public he
probably sold between 75,000 and 100,000 shares
on behalf of Greene & Associates. He estimated
that this volume might have involved between 30
and 50 separate sales. In the fall of 1965 the
appellant sold the 70,000 free shares held by him
through his own brokers for a total price of
$32,796.14. In the fall of 1966 he sold his 630,000
escrowed shares to a company that had taken over
Kaiser for a total price of $57,000.
By notice of re-assessment dated June 3, 1969
the respondent re-assessed the appellant for the
1965 and 1966 taxation years bringing into income
the appellant's profits of $32,796.14 and $56,460
on the sale of his Kaiser shares. The appellant's
appeal from this re-assessment was dismissed by
the Tax Appeal Board, and an appeal by him from
the Board's decision was dismissed by the Trial
Division of this Court.
It is not disputed that Dr. Ingham was a pros
pector. Whether what was contemplated by the
grubstaking agreement that he made with the
appellant and what he in fact did in the first week
or two of March was prospecting within the mean
ing of section 83 of the Act is another question.
This is the first question to be determined. The
learned Trial Judge, having come to the conclusion
that the appellant did not acquire his interest in
the mining property as a result of the work done
by Ingham and House in the field but as a result of
a decision to stake claims based on other consider
ations, did not express a firm opinion as to whether
that work could be considered to be prospecting.
He did, however, express strong doubts that it
could. "Additionally", he said, "I am extremely
doubtful that selecting five samples of rocks within
a few feet of each other in a 1,200 acre area
without any exploration of the balance of the area
can be said to be `prospecting' as that term is used
in section 83." With respect, I cannot agree with
this view. I do not think that the character of what
was done, assuming it to be a bona fide effort, is to
be determined by the extent and duration of it. It
was clearly a recognized form of prospecting:
walking over the ground, uncovering rock forma
tions, examining and taking samples from them for
analysis. The extent and duration of what was
done were limited by several factors: Ingham's
familiarity with the area, the conditions of the
ground, and the sense of urgency. Ingham's knowl
edge and experience would permit him to focus his
prospecting efforts. It should be remembered also
that in addition to taking samples from the trench
he did some further research, based on public
records, into the geological features of the area.
This too was a form of prospecting.
The essential conclusion of the Trial Judge,
however, is that, whether or not the work carried
out by Ingham after the grubstaking agreement
can be called prospecting, the decision to stake was
not based on this work but on the knowledge of the
area that Ingham had previously acquired and on
the current activity in it, in particular the Camflo
development some four miles away from the area
chosen for staking. This is clearly indicated in the
following passage of his judgment:
To qualify for exemption, the appellant must establish:
(a) that the prospecting efforts in respect of the subject
property were expended by the prospector before the proper
ties were acquired; and
(b) that the properties were acquired as a result of any such
efforts. (See M.N.R. v. Karfilis [1967] 1 Ex.C.R. 129 at 154.
See also: Winchell v. M.N.R. quoted supra [74 DTC 6152].)
In this case, the prospector, Dr. Ingham, acting and relying
on information and material acquired by him as a resident
geologist working for the Quebec Government, decided, before
doing any exploring or prospecting whatsoever that an area
centering on certain excavated trenches might be a promising
area for mineral occurrences. Based on this background infor
mation plus the fact that Camflo Matagami Mines Ltd. had a
successful gold mine only four miles away, he recommended to
the appellant that subject claims be staked. I believe it to be a
necessary inference from the evidence that the claims would
have been staked without the collecting and assaying of the five
rock samples. Accordingly, I have the view that subject claims
were not acquired as a result of any prospecting efforts as
required in (b) above. Additionally, I am extremely doubtful
that selecting five samples of rocks within a few feet of each
other in a 1,200 acre area without any exploration of the
balance of the area can be said to be "prospecting" as that term
is used in section 83. I infer from the evidence that Dr. Ingham
intended all along to stake claims in this area and that the
selection of a few rock samples does not alter the true nature of
his mission. Dr. Ingham was an experienced geologist and
admitted familiarity with the provisions of section 83. I have
the view that the selection of the rock samples was an attempt
on his part to comply with said section 83 and that such
"token" prospecting or exploration as was carried out in this
case does not meet the requirements of section 83.
It was the contention of the appellant that the
Trial Judge was in error in holding, with reference
to subsection 83(3), that the mining properties
must have been acquired as a result of the pros
pecting efforts. It was said that this test is appli
cable to subsection (2), where the terms are "as a
result of his efforts as a prospector", rather than to
subsection (3), where the language is "under the
arrangement under which he made the advance or
paid the expenses". Although the precise formula
tion of the test which the Trial Judge adopted may
be more obviously applicable to the terms of sub
section (2), where it is the prospector who acquires
the mining property, than to those of subsection
(3), the Trial Judge was not, in my opinion, in
error in proceeding on the assumption that there
must be in the case of subsection (3), a causal
relationship between the prospecting efforts and
the acquisition of the property. Section 10(1)(j) of
the Act indicates that what is generally contem
plated by section 83 is an amount received "as a
result of prospecting". The evident purpose of
section 83 is to encourage prospecting as the
means by which mineral resources are discovered.
The arrangement referred to in subsection (3)
must have for its object the kind of work that is
identified there as "prospecting or exploring for
minerals" or "developing a property for minerals".
When the subsection speaks of an interest in
mining property being acquired "under" such an
arrangement it must mean as a result of the
prospecting work carried out pursuant to such an
arrangement. If the prospecting work has no bear
ing on the acquisition of the property then the
property cannot, in any meaningful sense, be said
to have been acquired under an arrangement of
the kind contemplated by the Act. The staking of
claims pursuant to an agreement that provides for
the staking of claims as well as prospecting is
something done "under" the agreement, but the
staking of claims alone is clearly not what is
contemplated by section 83. Thus the question is
whether the prospecting had a bearing on the
decision to stake claims. It need not, in my opin
ion, be the exclusive basis for such decision. Nor
do I think its relative importance as a factor
underlying the decision is crucial. It is sufficient,
in my view, if the result of the prospecting is a
factor taken into consideration in the decision as to
whether to stake claims. Otherwise, bona fide
prospecting efforts that contribute to the location
of mineral deposits might be excluded from the
exemption by reason of the extent of a prospector's
prior knowledge of an area.
The Trial Judge concluded, in effect, that the
work carried out by Ingham in March 1965 had no
bearing whatever on the decision to stake claims.
He inferred from the evidence that Ingham intend
ed all along, as a result of the knowledge he
already possessed and of the Camflo development,
to stake claims in the area, and that he would have
staked claims whether or not he had taken rock
samples from the trench. In my opinion, the evi
dence does not support this inference. There is no
evidence whatever to support the inference that
Ingham would have recommended the staking of
claims in a particular area without an opportunity
to test by some further prospecting the general
impressions he had acquired in his previous work.
The Trial Judge's finding of fact concerning the
basis of Ingham's recommendation to the appel
lant does not, in my view, adequately reflect the
evidence. As indicated above, the Trial Judge
found that: "Based on this background informa
tion plus the fact that Camflo Matagami Mines
Ltd. had a successful gold mine only four miles
away, he recommended to the appellant that sub
ject claims be staked."
Ingham testified as to what he agreed to do for
the appellant as follows:
I agreed to select a certain vicinity or area within a larger
area of Val d'Or and go to that place and examine it and look
for economic minerals. And, I further agreed, that if in my
opinion, I found something encouraging and looked interesting,
I will tell him that I found something encouraging and I would
advise him and if he wanted to, it was time to stake some
claims on the property.
There was the following testimony by him as to
why he selected the area he did for prospecting:
Q. Yes, what I am wondering is on what basis did you decide
where to start looking?
A. Well, several. One, my general knowledge of the area
gained through the mapping and through study of other
information in that vicinity. And then, secondly, a
memory of having seen some old trenches in that vicinity
on which there was no published information whatsoever,
so my idea was to go and prospect that particular spot as
a likely place to find something, and so that's what led me
there.
He testified as to what he reported to the appellant
as follows:
I telephoned him and said that a little encouragement had
been found in one of the old trenches, as a result of our
sampling and that in addition to that I had researched in detail,
the geology of the particular part of Malartic which I thought
favourable; a good place to do more work than had already
been done ....
... I told him that I confirmed that there was some gold in this
one spot and that the other conditions looked favourable and I
thought he should stake.
... I told him that as a result of the prospecting I had a small
gold assay and as a result of other things happening in the area
and, as a result of my own research in the particular vicinity,
that I believed that claims were worth staking and did he want
to go ahead and stake it. And his answer was, "yes" do it.
According to the testimony, then, Ingham did
not start out with firm instructions to stake claims
at places of his own choosing in an area selected by
him. The understanding was that he would pros
pect in an area that he considered promising and
report to the appellant. His recommendation to
stake claims was based, at least in part, on the
results of his prospecting, which included further
research, consisting of the study of public records,
into the geology of the area. It is my impression
that the Trial Judge overlooked or failed to attach
any weight at all to this further research. I am
unable to conclude on the evidence that it is a
reasonable inference that neither Ingham nor the
appellant considered that any further prospecting
was necessary or desirable before deciding whether
or whereto stake claims. The surface prospecting
that was carried out was concentrated on a par
ticular site but it was not, with respect, the per
functory or superficial effort that merits charac
terization as a "token" one. Ingham took the
trouble to engage House, and House expended
considerable effort covering several days locating
the trench and exposing the rock to Ingham's
satisfaction. It was not the effort of a man who
was engaged in a mere pretense. The trench deter
mined the area that was staked, some of it includ
ing the bed of the Lake. The prospecting that was
focused on the trench had a direct bearing, in my
opinion, on the decision to stake. '
It is necessary to turn now to the question of
whether the appellant can be said to have been
carrying on the campaign to sell the shares of
Kaiser to the public. The meaning of these words
was considered by the Supreme Court of Canada
in Appleby v. M.N.R. [1975] 2 S.C.R. 805. There,
a majority of the Court, affirming judgments of
the Trial and Appellate Divisions of this Court,
held that an individual who was the sole beneficial
shareholder of the company that made the under
writing option agreement for the sale of shares was
carrying on the campaign to sell the shares to the
public within the meaning of subsection 83(4) of
the Act. It would appear from the facts of that
case that Appleby personally controlled and direct
ed the entire sales campaign through his active
intervention, and that his company was in effect
his instrument for carrying on the campaign.
Judson J., delivering the majority judgment for
himself and Ritchie and de Grandpré JJ., empha
sized the active and controlling role played by
Appleby as follows [at pages 810-11]:
The trial judge also found that Appleby was personally instru
mental in the making of the underwriting agreements that were
entered into by the three mining companies; that if he did not
personally write the sales literature that the securities company
mailed to promote the sale of shares, he ordered the writing of
this material and saw to it that none of it was sent out without
his having read and approved of it. Finally, it was Appleby
himself who every day telephoned W. D. Latimer Company
Limited in order to set the prices at which the latter was
authorized to buy and sell the shares of the three mining
companies. The appellant's factum filed in this Court states the
position of Latimer in these terms: "Latimer was in the terms
of the trade `running the box' for J. Appleby Securities Limit
ed." It is obvious to me that it was running the box on the sole
instructions of Appleby, who at the same time had his own
shares to dispose of.
On these facts, both divisions of the Federal Court have
found that Appleby disposed of his own shares in the Winston,
Boeing and Marlboro mining companies while carrying on a
campaign to sell shares of these companies to the public. They
were also of the opinion that the fact that he used a company,
completely under his domination as a participant in his activi
ties did not enable him to escape the exclusion from exemption
contained in s. 83(4)(a) of the Income Tax Act, above quoted.
With these conclusions 1 agree.
Martland J., in a concurring opinion, said [at
page 807] that Appleby had "used his own com
pany as a vehicle to achieve his purpose", and that
"a person can be found to have carried on a
campaign for the sale of shares if he causes his
own company to carry it out on his behalf." He
took care, however, to limit the necessary implica
tions of his own conclusion as follows:
In my opinion the application of s. 83(4) of the Income Tax
Act, R.S.C. 1952, c. 148, to the circumstances of this case does
not involve the conclusion that if a limited company carries on
a campaign to sell shares, within the meaning of that subsec
tion, the agents of that company can also be said to have
carried on that campaign. That is not the position in this case.
Pigeon J., dissenting, took the view that the
words "carrying on a campaign to sell shares" in
subsection 83(4) refer to the individual or entity
who, in law, is the seller of the shares and the
person entitled to the proceeds of such sales. He
held that the securities company was the person
who in law was making the sales, and that it could
not be assimilated to or identified in law with its
shareholder, Appleby.
With respect, it appears to me to be a necessary
implication of the decision of the majority in the
Appleby case that a person may in certain circum
stances be considered to be carrying on a cam
paign to sell shares to the public although he is not
in law the person who is the seller of the shares or
the person who is entitled to the proceeds of such
sale. The question is how far this implication ought
to extend beyond the very particular facts of the
Appleby case. Clearly the facts are quite different
in the present case. The appellant was not a share
holder of Greene & Associates, much less a person
in control of it. He testified that he had nothing to
do with the underwriting agreement although he
was in a position by virtue of his shareholding in
Kaiser to elect or cause to be elected a majority of
the directors of that company. His role in the sales
campaign was that of a commission salesman who
sold an estimated 75,000 to 100,000 shares of
Kaiser to customers. On these facts the Trial
Judge held that the appellant was carrying on the
campaign to sell the Kaiser shares to the public.
He relied particularly on a passage from the judg
ment of this Court in the Appleby case, [ 1972]
F.C. 703, in which Thurlow J. (as he then was)
said at p. 705:
So, in our view, if, as in the present case, an officer or employee
in the course of his duties carries on a campaign to sell shares
he is, in fact, personally carrying on that campaign even though
he is doing it as part of the business activities of his employer.
In my respectful opinion the decision of the
Supreme Court of Canada in the Appleby case has
not made this statement of principle inapplicable.
The question, of course, is when as a matter of fact
an officer or employee should be considered to be
carrying on the campaign to sell shares to the
public for which his company is primarily respon
sible. It would not be reasonable to fix every
employee of an incorporated securities dealer,
regardless of his function, with participation in the
carrying on of the campaign for purposes of sec
tion 83(4). One view might be that the officer or
employee must have a certain control or direction
over the campaign so that it can reasonably be
considered to be his campaign. On the other hand
it does not seem reasonable to exclude one, who,
though not in a position to control or direct, is
nevertheless actively engaged as a salesman in
promoting the market for his own shares. A "cam-
paign" to sell shares is a course of action that
involves not only juridical acts but non-juridical
activity of an organizational and promotional
nature. The juridical act of sale is the culmination
of an effort to create and develop a market for the
shares and to induce persons to purchase them. It
is that effort that is the campaign. Where it is not
carried out by a single person it requires some
organization involving more than one person. In
my view, anyone actively involved in that organi
zation and effort must be held to be carrying on
the campaign. It must at least be true of a sales
man who is actively promoting the shares and who
actually sells a considerable number of them to
several individuals. I am, therefore, of the opinion
that the appellant must be held to have disposed of
his shares in Kaiser while or after he carried on a
campaign to sell the shares of the company to the
public. For these reasons I would dismiss the
appeal.
* * *
URIE J.: I concur.
* * *
MACKAY D.J.: I concur.
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.