A-531-85
Wiebe Door Services Ltd. (Applicant)
v.
Minister of National Revenue (Respondent)
INDEXED AS: WIEBE DOOR SERVICES LTD. v. M.N.R. (F.CA.)
Court of Appeal, Pratte, Mahoney and Mac-
Guigan JJ.—Calgary, May 1; Ottawa, June 18,
1986.
Master and servant — Application to set aside Tax Court
decision upholding assessment of company for unemployment
insurance premiums and Canada Pension Plan contributions
— Applicant's business carried on through door installers and
repairers who agreed to make own unemployment insurance
and Canada Pension Plan payments — Tax Court finding
workers engaged in insurable employment — Application
allowed — Error in use of Lord Denning's "integration" or
"organization" test — Test criticized as difficult to apply —
Prefer general test applied by Lord Wright in Montreal
Locomotive Works case as emphasizes combined force of
whole scheme of operations — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 28.
Unemployment insurance — Nature of relationship between
company and door installers and repairers — Understanding
that workers running own businesses and responsible for own
tax, unemployment insurance and Canada Pension Plan pay
ments — Tax Court erred in application of "integration" test
to find workers in insurable employment — Better approach
test in Montreal Locomotive Works — Necessary to weigh all
relevant factors.
This is an application to set aside the Tax Court's decision
upholding an assessment for the payment of Unemployment
Insurance premiums and Canada Pension Plan contributions.
The applicant installs doors and repairs overhead doors. It
carries on its business through the services of installers. It has a
specific understanding with each installer that he would be
running his own business and would be responsible for his own
taxes, unemployment insurance premiums and Canada Pension
Plan contributions. The Tax Court found that the applicant's
employees were engaged in insurable employment by applying
the "integration test" set out by Lord Denning in Stevenson
Jordan and Harrison, Ltd. v. Macdonald and Evans. The
integration test is that under a contract of service, a man is
employed as part of the business and his work is done as an
integral part thereof while under a contract for services, his
work is not integrated into the business, but is only accessory to
it. The Tax Court held that the work done by the installers was
an integral part of the applicant's business. The applicant
contends that the Tax Court erred in using the integration test,
which applies only to workers having a high degree of profes
sional skill.
Held, the application should be allowed.
In response to certain inadequacies in the traditional control
test used to determine the employment relationship, Lord
Wright applied a different test in Montreal v. Montreal
Locomotive Works Ltd. It involved (1) control (2) ownership of
the tools (3) chance of profit, and (4) risk of loss. In context,
the test is general and involves "examining the whole of the
various elements which constitute the relationship between the
parties". The test set out by Lord Denning (usually termed the
"organization test" but referred to herein by the Tax Court as
the "integration test") is also a general one and is firmly
established in Canada. It has, however, had less popularity in
other common-law jurisdictions where a "multiple" test, taking
all the factors into account, has been preferred. Lord Wright's
test is more general than Lord Denning's, emphasizing "the
combined force of the whole scheme of operations." Lord
Denning's test is more difficult to apply as often the answer is
dictated by the form of the question, by showing that without
the work of the "employees" the "employer" would be out of
business. Thus applied this is not a fair test, because in a
factual relationship of mutual dependency it must always result
in an affirmative answer. If the businesses of both parties are so
structured as to operate through each other, they could not
survive independently without being restructured. But that is a
consequence of their surface arrangement, and not necessarily
indicative of their intrinsic relationship. The total relationship
of the parties remains of the essence. Lord Denning's organiza
tion test produces acceptable results when properly applied, i.e.
when the question of organization or integration is approached
from the persona of the "employee", and not from that of the
"employer". The Trial Judge must weigh all the relevant
factors. The contention that Lord Denning's test should be
applied only in the case of highly skilled workers is not support
able. However, the Tax Court erred in law in its use of that
test.
CASES JUDICIALLY CONSIDERED
APPLIED:
Montreal v. Montreal Locomotive Works Ltd., [1947] 1
D.L.R. 161 (P.C.); Market Investigations, Ltd. v. Minis
ter of Social Security, [1968] 3 All E.R. 732 (Q.B.D.);
Ferguson v John Dawson & Partners (Contractors) Ltd,
[1976] 3 All ER 817 (C.A.).
CONSIDERED:
Regina v. Walker (1858), 27 L.J.M.C. 207; Hôpital
Notre-Dame de l'Espérance and Théoret v. Laurent,
[1978] 1 S.C.R. 605; Stevenson Jordan and Harrison,
Ltd. v. Macdonald and Evans, [1952] 1 T.L.R. 101
(C.A.); Co-Operators Insurance Association v. Kearney,
[1965] S.C.R. 106.
REFERRED TO:
Massey v. Crown Life Insurance Co., [1978] 1 W.L.R.
676 (Eng. C.A.); Narich Pty. Ltd. v. Commr. of Pay-roll
Tax (1983), 58 A.L.J.R. 30 (P.C.); Mayer v. J. Conrad
Lavigne Ltd. (1979), 27 O.R. (2d) 129 (C.A.); Re/Max
Real Estate Calgary South v. M.N.R., decision dated
July 14, 1982, Umpire under Unemployment Insurance
Act, 1971, N.R. 1069, not reported; Sairoglou v. M.N.R.,
decision dated August 6, 1982, Umpire under Unemploy
ment Insurance Act, 1971, N.R. 1085, not reported;
Terra Engineering Laboratories Ltd. v. M.N.R., decision
dated August 28, 1979, Umpire under Unemployment
Insurance Act, 1971, N.R. 858, not reported; Barnard v.
T.M. Energy House Ltd., [1982] 4 W.W.R. 619 (B.C.
Co. Ct.).
COUNSEL:
Michael A. Wedekind for applicant.
Larry Huculak for respondent.
SOLICITORS:
Foster Wedekind, Calgary, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.: This section 28 [Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10] application is
brought to set aside a decision by the Tax Court,
which upheld an assessment against the applicant
for the payment of Unemployment Insurance pre
miums and Canada Pension Plan contributions for
the years 1979, 1980 and 1981. Counsel for the
applicant admitted before this Court that the
assessment for the 1979 year was correct, in that
the only two persons then in question were admit
tedly employees in that year, but contended that
the twelve persons in relation to whom the appli
cant was assessed in 1980 and 1981 were all
independent contractors rather than employees.
The applicant is in the business of installing
doors and repairing overhead doors in the Calgary
area, with about 75% of its business being on the
repair side. It carries on its business through the
services of a considerable number of door installers
and repairers, with each of whom it has a specific
understanding that they would be running their
own businesses and would therefore be responsible
for their own taxes and any contributions for
workers' compensation, unemployment insurance
and Canada Pension Plan. Such an agreement is
not of itself determinative of the relationship be
tween the parties, and a court must carefully
examine the facts in order to come to its own
conclusion: Massey v. Crown Life Insurance Co.,
[1978] 1 W.L.R. 676 (Eng. C.A.); Narich Pty.
Ltd. v. Commr. of Pay-roll Tax (1983), 58
A.L.J.R. 30 (P.C.).
The essential part of Tax Court's reasons for
decision is as follows:
The Court must determine whether the Appellant's
employees were engaged in insurable employment during the
years 1979, 1980 and 1981. Regarding the year 1979, the
Appellant admitted that he had two employees, Paul Jeffrey
and Clint Fayant in whom he'd taken a special interest. They
had no truck in 1979, and in that year were hired as employees.
Insofar as these two employees are concerned, for the assess
ment made for the year 1979, this appeal is dismissed.
Section 3(1) of the Unemployment Insurance Act defines
insurable employment as:
"employment in Canada by one or more employers under
any express or implied contract of service, or apprenticeship,
written or oral, whether the earnings of the employed person
are received from the employer or some other person, and
whether the earnings are calculated by time or by the piece,
or partly by time and partly by the piece, or otherwise."
Case law has established a series of tests to determine
whether a contract is one of service or for the provision of
services. While not exhaustive the following are four tests most
commonly referred to:
(a) The degree or absence of control, exercised by the alleged
employer.
(b) Ownership of tools.
(c) Chance of profit and risks of loss.
(d) Integration of the alleged employees work into the
alleged employers business.
Let us now subject the evidence to each of the above tests.
Firstly: The Control Test
The workers worked mostly on their own. They were free to
accept or refuse a call. They were not required to work or
attend at the Appellant's place of business, except to pick up a
door or parts. The Appellant did exercise some measure of
control over the workers. Firstly, the Appellant assigned the
jobs to the installer. The job was guaranteed for one year.
Within that time the Appellant would require the installer to
correct any faulty or defective installation or repair. On the
basis of the Control Test, the evidence is indecisive.
Secondly: Ownership of Tools
Each worker owned his own truck and tools. The appellant
provided only the special racks for transporting doors and the
special cement drill, when required. On the basis of this test,
the workers would seem to be independent contractors.
Thirdly: Chance of Profit or Risk of Loss
Each worker had a limited chance of profit. He got paid by
the job. If he worked quickly and efficiently he could do more
jobs per day if these were available. If on the other hand he was
careless and did not properly complete the job, he would be
required at his own expense as to gas, parts and services to redo
or correct his work. On the basis of this test the workers would
seem to be independent contractors.
Fourthly: The Integration Test
The Appellant was in the business of servicing and installing
overhead electrically controlled doors. All the work performed
by the installers formed an integral part of the Appellant's
business. Without the installers, the Appellant would be out of
business.
In Stevenson Jordan et al vs. MacDonald and Evans, (1951)
T.L.R. 101 at page 111, Lord Denning put forth his often
repeated test in these words:
"One feature which seems to run through the instances is
that, under a contract of service, a man is employed as part
of the business and his work is done as an integral part of the
business: whereas, under a contract for services his work,
although done for the business, is not integrated into it but is
only accessory to it."
Lord Denning's test has been applied and followed in our
Courts on many many occasions. In the case before me, this
test tips the scales in favour of a contract of service, and not a
contract for services.
This appeal is therefore dismissed, and the determination of
the Respondent is upheld.
The applicant argued before us that the Tax
Court committed an error of law in its use of the
so-called "integration" test, which it contended
was rightly applied only in relation to workers
possessed of a high degree of professional skill and
therefore not applicable at all to the present facts.
The question of whether a contract is one of
service, in which case it indicates a master-servant
or employment relationship, or for services, in
which case the relationship is between independent
contractors, has arisen most often in the law of
torts, as surveyed recently by Professor Joseph
Eliot Magnet, "Vicarious Liability and the Profes
sional Employee" (1978-79), 6 C.C.L.T. 208, or in
labour law, as recently summarized by Professor
Michael Bendel, "The dependent contractor: An
unnecessary and flawed development in Canadian
labour law" (1982), 32 U.T.L.J. 374.
The traditional common-law criterion of the
employment relationship has been the control test,
as set down by Baron Bramwell in Regina v.
Walker (1858), 27 L.J.M.C. 207, at page 208:
It seems to me that the difference between the relations of
master and servant and of principal and agent is this:—A
principal has the right to direct what the agent has to do; but a
master has not only that right, but also the right to say how it is
to be done.
That this test is still fundamental is indicated by
the adoption by the Supreme Court of Canada in
Hôpital Notre-Dame de l'Espérance and Théoret
v. Laurent, [1978] 1 S.C.R. 605, at page 613, of
the following statement: "the essential criterion of
employer-employee relations is the right to give
orders and instructions to the employee regarding
the manner in which to carry out his work."'
Nevertheless, as Professor P. S. Atiyah, Vicari
ous Liability in the Law of Torts, London, Butter-
worths, 1967, page 41, has put it, "the control test
as formulated by BRAMWELL, B., ... wears an air
of deceptive simplicity, which ... tends to wear
thin' on further examination." A principal
inadequacy is its apparent dependence on the exact
terms in which the task in question is contracted
for: where the contract contains detailed specifica
tions and conditions, which would be the normal
expectation in a contract with an independent
contractor, the control may even be greater than
where it is to be exercised by direction on the job,
as would be the normal expectation in a contract
with a servant, but a literal application of the test
might find the actual control to be less. In addi
tion, the test has broken down completely in rela-
' Although this is a civil-law case, the Court's expressed view
is that that law is in this respect the same as the common law.
tion to highly skilled and professional workers,
who possess skills far beyond the ability of their
employers to direct.
Perhaps the earliest important attempt to deal
with these problems was the development of the
entrepreneur test by William O. (later Justice)
Douglas, "Vicarious Liability and Administration
of Risk I" (1928-29), 38 Yale L.J. 584, which
posited four differentiating earmarks of the entre
preneur: control, ownership, losses, and profits. It
was essentially this test which was applied by Lord
Wright in Montreal v. Montreal Locomotive
Works Ltd., [1947] 1 D.L.R. 161 (P.C.), at pages
169-170:
In earlier cases a single test, such as the presence or absence of
control, was often relied on to determine whether the case was
one of master and servant, mostly in order to decide issues of
tortious liability on the part of the master or superior. In the
more complex conditions of modern industry, more complicated
tests have often to be applied. It has been suggested that a
fourfold test would in some cases be more appropriate, a
complex involving (1) control; (2) ownership of the tools;
(3) chance of profit; (4) risk of loss. Control in itself is not
always conclusive. Thus the master of a chartered vessel is
generally the employee of the shipowner though the charterer
can direct the employment of the vessel. Again the law often
limits the employer's right to interfere with the employee's
conduct, as also do trade union regulations. In many cases the
question can only be settled by examining the whole of the
various elements which constitute the relationship between the
parties. In this way it is in some cases possible to decide the
issue by raising as the crucial question whose business is it, or
in other words by asking whether the party is carrying on the
business, in the sense of carrying it on for himself or on his own
behalf and not merely for a superior. In the present case the
business or undertaking is the manufacture of the warlike
vehicles. The respondent might have been making them with a
view to selling them to the Government for its own profit. The
Government as purchaser might in that case advance funds or
subsidize the work: the Crown might, as it would presumably,
take powers of supervision, inspection and regulation, having
specified the tests which each vehicle is to satisfy. The Govern
ment might even provide the material or the factory to the
actual manufacturer. These and kindred powers might be very
wide, without the result being that the manufacturer was not
doing the work for his own profit and at his own risk. But in
reviewing in the present case the contracts which are the
determining matters, their Lordships with great respect to the
Judges below who have taken a different view, find themselves
in agreement with the judgment of the Supreme Court. The
combined force of the whole scheme of operations seems to
them to admit of no other conclusion. The factory, the land on
which it was built, the plant and machinery were all the
property of the Government which had them appropriated or
constructed for the very purpose of making the military vehi
cles. The materials were the property of the Government and so
were the vehicles themselves at all stages up to completion. The
respondent supplied no funds and took no financial risk and no
liability, with the significant exception of bad faith or wanton
neglect: every other risk was taken by the Government. It is
true that the widest powers of management and administration
were entrusted to the respondent but all was completely subject
to the Government's control. A "fee" was payable in respect of
each completed vehicle, but when the whole plan is considered,
that was solely as a reward for personal services in managing
the whole undertaking. It was something very different from
the risk of profit or loss which an independent contractor has to
assume; every item of expense was borne by the Crown, just as
the Government took every possible risk of loss or damage
except in the very unlikely event, as already noted, of bad faith
or wilful neglect on the part of the respondent. The undertaking
throughout was the undertaking of the Government and not the
undertaking of the respondent which was simply an agent or
mandatory or manager on behalf of the Crown. The accuracy
of the positive announcement in each of the contracts that the
respondent was acting throughout under the contracts for and
on behalf of the Government and as its agent cannot be
controverted. [Emphasis added.]
Taken thus in context, Lord Wright's fourfold
test is a general, indeed an overarching test, which
involves "examining the whole of the various ele
ments which constitute the relationship between
the parties." In his own use of the test to deter
mine the character of the relationship in the Mon-
treal Locomotive Works case itself, Lord Wright
combines and integrates the four tests in order to
seek out the meaning of the whole transaction.
A similar general test, usually called the "organ-
ization test" (though termed the "integration test"
by the Tax Court here), was set forth by Denning
L.J. (as he then was) in Stevenson Jordan and
Harrison, Ltd. v. Macdonald and Evans, [1952] 1
T.L.R. 101 (C.A.), at page 111:
One feature which seems to run through the instances is that,
under a contract of service, a man is employed as part of the
business, and his work is done as an integral part of the
business; whereas, under a contract for services, his work,
although done for the business, is not integrated into it but is
only accessory to it.
The organization test was approved by the
Supreme Court of Canada in Co-Operators Insur
ance Association v. Kearney, [1965] S.C.R. 106,
at page 112, where Spence J. for the Court quoted
with approval the following passage from Fleming,
The Law of Torts (2nd ed., 1961), at pages
328-329:
Under the pressure of novel situations, the courts have
become increasingly aware of the strain on the traditional
formulation [of the control test], and most recent cases display
a discernible tendency to replace it by something like an
`organization' test. Was the alleged servant part of his employ
er's organization? Was his work subject to co-ordinational
control as to `where' and `when' rather than to `how'?
As Bendel points out, supra, at page 381, the
organization test is now "firmly established in
Canada." He explains its attractiveness as follows,
supra, at page 382:
The aspect of the organization test which makes it so attrac
tive in the labour relations context is that integration into
another person's business, the key feature of the test, is a very
useful indicator of economic dependence. The relationship be
tween integration and economic dependence has been explained
this way by the Ontario Labour Relations Board (in a case
predating the Ontario dependent contractor amendments):
The essence of operating a business is holding out to a
market society the availability of goods and services at the
best possible price having regard to competing pressures
exacted upon a particular market. It seems patently obvious
to this Board that a particular business will not flourish in
circumstances where growth is totally integrated with the
operations of a particular customer. The essence of resolving
and distinguishing the contractor from the employee is his
independence ... In instances where the driver's means of
financial support is [sic] inextricably bound up with the
respondent we are of the view that he cannot be considered
an independent contractor.
The organization test has recently been
described by MacKinnon A.C.J.O. for the Ontario
Court of Appeal as an enlargement of, and pre
sumably an advance upon, Lord Wright's test:
Mayer v. J. Conrad Lavigne Ltd. (1979), 27 O.R.
(2d) 129 (C.A.), at page 132. However, it has had
less vogue in other common-law jurisdictions. In
fact A. N. Khan, "Who is a Servant?" (1979), 53
Austr. L.J. 832, at page 834, makes bold to say of
the English and Australian cases:
However, the "integration" or "organization" test if applied
in isolation can lead to as impractical and absurd results as the
control test. The courts, therefore, came to the conclusion that
a "multiple" test should be applied, in that all the factors
should be taken into account. Thus in Morren v. Swinton &
Pendlebury Borough Council [[1965] 1 W.L.R. 576] Lord
Parker C.J. stated that the control test was perhaps an over
simplification. His Lordship added that: "clearly superintend
ence and control cannot be the decisive test when one is dealing
with a professional man, or a man of some particular skill and
experience." Thus the courts started modifying and transform
ing the test into "common sense" test, [Somervell L.J. in
Cassidy v. Minister of Health, [1951] 2 K.B. 343] or "multi-
ple" test [see Mocatta J. in Whittaker v. Minister of Pensions
& National Insurance [1967] 1 Q.B. 156].
Professor Atiyah, supra at pages 38-39, ends up
with Lord Wright's test from the Montreal
Locomotive Works case, as he finds it more gener
al than Lord Denning's, which he sees as decisive
in only some cases.
I am inclined to the same view, for the same
reason. I interpret Lord Wright's test not as the
fourfold one it is often described as being but
rather as a four-in-one test, with emphasis always
retained on what Lord Wright, supra, calls "the
combined force of the whole scheme of opera
tions," even while the usefulness of the four subor
dinate criteria is acknowledged.
Lord Denning's test may be more difficult to
apply, as witness the way in which it has been
misused as a magic formula by the Tax Court here
and in several other cases cited by the respondent, 2
in all of which the effect has been to dictate the
answer through the very form of the question, by
showing that without the work of the "employees"
the "employer" would be out of business ("With-
out the installers, the Appellant would be out of
2 See Umpires' decisions in Appeals from M.N.R.'s decisions
in Re/Max Real Estate Calgary South v. M.N.R., decision
dated July 14, 1982, N.R. 1069, not reported; Sairoglou v.
M.N.R., decision dated August 6, 1982, N.R. 1085, not report
ed; Terra Engineering Laboratories Ltd. v. M.N.R., decision
dated August 28, 1979, N.R. 858, not reported; Barnard v.
T.M. Energy House Ltd., [1982] 4 W.W.R. 619 (B.C. Co.
Ct.).
business"). As thus applied, this can never be a
fair test, because in a factual relationship of
mutual dependency it must always result in an
affirmative answer. If the businesses of both par
ties are so structured as to operate through each
other, they could not survive independently with
out being restructured. But that is a consequence
of their surface arrangement and not necessarily
expressive of their intrinsic relationship.
What must always remain of the essence is the
search for the total relationship of the parties.
Atiyah's counsel in this respect, supra, at page 38,
is, I believe, of great value:
[I]t is exceedingly doubtful whether the search for a formula
in the nature of a single test for identifying a contract of service
any longer serves a useful purpose.... The most that can
profitably be done is to examine all the possible factors which
have been referred to in these cases as bearing on the nature of
the relationship between the parties concerned. Clearly not all
of these factors will be relevant in all cases, or have the same
weight in all cases. Equally clearly no magic formula can be
propounded for determining which factors should, in any given
case, be treated as the determining ones. The plain fact is that
in a large number of cases the court can only perform a
balancing operation, weighing up the factors which point in one
direction and balancing them against those pointing in the
opposite direction. In the nature of things it is not to be
expected that this operation can be performed with scientific
accuracy.
This line of approach appears to be in keeping with what
LORD WRIGHT said in the little-known Privy Council decision
in Montreal Locomotive Works... .
Of course, the organization test of Lord Den-
ning and others produces entirely acceptable
results when properly applied, that is, when the
question of organization or integration is
approached from the persona of the "employee"
and not from that of the "employer," because it is
always too easy from the superior perspective of
the larger enterprise to assume that every con
tributing cause is so arranged purely for the conve
nience of the larger entity. We must keep in mind
that it was with respect to the business of the
employee that Lord Wright addressed the question
"Whose business is it?"
Perhaps the best synthesis found in the authori
ties is that of Cooke J. in Market Investigations,
Ltd. v. Minister of Social Security, [1968] 3 All
E.R. 732 (Q.B.D.), at pages 737-738: 3
The observations of LORD WRIGHT, Of DENNING, L.J., and
of the judges of the Supreme Court in the U.S.A. suggest that
the fundamental test to be applied is this: "Is the person who
has engaged himself to perform these services performing them
as a person in business on his own account?". If the answer to
that question is "yes", then the contract is a contract for
services. If the answer is "no" then the contract is a contract of
service. No exhaustive list has been compiled and perhaps no
exhaustive list can be compiled of considerations which are
relevant in determining that question, nor can strict rules be
laid down as to the relative weight which the various consider
ations should carry in particular cases. The most that can be
said is that control will no doubt always have to be considered,
although it can no longer be regarded as the sole determining
factor; and that factors, which may be of importance, are such
matters as whether the man performing the services provides
his own equipment, whether he hires his own helpers, what
degree of financial risk he takes, what degree of responsibility
for investment and management he has, and whether and how
far he has an opportunity of profiting from sound management
in the performance of his task. The application of the general
test may be easier in a case where the person who engages
himself to perform the services does so in the course of an
already established business of his own; but this factor is not
decisive, and a person who engages himself to perform services
for another may well be an independent contractor even though
he has not entered into the contract in the course of an existing
business carried on by him.
There is no escape for the Trial Judge, when
confronted with such a problem, from carefully
weighing all of the relevant factors, as outlined by
Cooke J.
It is patently obvious that the applicant's con
tention that Lord Denning's test should be applied
only in the case of highly skilled workers is in no
way supportable. It is, however, equally apparent
that the Tax Court has erred in law in its use of
that test.
What was the effect of the error of law in this
case? If we excise the Tax Court's erroneous
application of the organization or integration test
from its decision, we are left with an inconclusive
result, though on two tests out of three it found for
3 This test has been widely cited. For example, it was referred
to by all three Court of Appeal judges in Ferguson y John
Dawson & Partners (Contractors) Ltd, [ 1976] 3 All ER 817,
and the two majority judges, supra, at pp. 824, 831, each
described it as "very helpful."
the applicant. This Court cannot on a section 28
application engage in an examination of the evi
dence as such, unless a particular result is so
inevitable on the facts that any other conclusion
would be perverse. I would therefore allow the
application, set aside the decision of the Tax Court
Judge in respect of the 1980 and 1981 tax years,
and refer the matter back to the Tax Court Judge
for a determination consistent with these reasons.
PRATTE J.: I agree.
MAHONEY J.: I agree.
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.