Date: 20061031
Docket: T-370-05
Citation: 2006 FC
1317
Ottawa, Ontario, October 31, 2006
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
CHIEF
PENSIONS ADVOCATE
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
I. Introduction
[1]
The Chief
Pensions Advocate (the “Applicant”) seeks judicial review, pursuant to the Federal
Courts Act, R.S.C. 1985, c. F-7, as amended, of Interpretation decision No.
I-1 made by the Veterans Review Appeal Board (the “VRAB” or the “Board”) on
February 1, 2005. In that decision, the VRAB interpreted subsection 32(1) and
section 111 of the Veterans Review and Appeal Board Act, S.C.1995, c.
18, as amended (the “VRAB Act” or “the Act”) and concluded that new evidence
submitted to the Board upon an application for reconsideration of an appeal
decision would generally be subject to the requirements of “due diligence”.
[2]
The
Applicant seeks an Order to quash or set aside Interpretation decision No. I-1.
II. Background
[3]
The
Applicant is the head of the Bureau of Pension Advocates, a body that was
continued pursuant to section 6.1 of the Department of Veterans Affairs Act,
R.S.C. 1985, c. V-1. The Bureau’s role is to assist applicants for pensions and
pensioners, upon request, in applications for review or appeals pursuant to the
Act.
[4]
On
December 9, 2003, he submitted a formal request to the VRAB for an
Interpretation Hearing pursuant to subsection 37(1) of the VRAB Act. A hearing took
place on November 23, 2004. The Bureau of Pensions Advocates, the Royal
Canadian Legion, Dominion Command, the Canadian Peacekeeping Veterans
Association and the Company of Master Marines of Canada appeared before the Board and made
submissions. The following question was addressed:
What criteria should be applied by the
Veterans Review and Appeal Board (the Board) when determining whether to
reconsider a decision based on the presentation of new evidence, under
subsection 32(1) or section 111 of the Veterans Review and Appeal Board Act?
[5]
In its
decision, the Board said that it was dealing with the interpretation of section
31, in addition to the interpretation of sections 32 and 111. It reviewed the
scheme of the Act, including the various levels of review relating to pension
entitlement. It concluded that a person seeking reconsideration of a decision
of the Board on the basis of new evidence must generally demonstrate that there
had been no lack of due diligence in obtaining that evidence. It also addressed
the factors of credibility, relevance and impact upon the final outcome.
[6]
The Board
specifically adopted the reasoning of the Federal Court in MacKay v. Canada,
129 F.T.R. 286 (Fed. T.D.), where the Court relied on the decision of the
Supreme Court of Canada in Palmer v. The Queen, [1980] 1 S.C.R. 759. In Palmer,
the Court discussed the circumstances when new evidence would be admitted upon an
appeal made pursuant to section 610(1)(d) of the Criminal Code, R.S.C.
1970, c. C-34. The Court identified these circumstances having regard to,
in the words of the enactment, “the interests of justice” and set forth the
following principles at page 775:
…
(1)
The
evidence should generally not be admitted if, by due diligence, it could have
been adduced at trial provided that this general principle will not be applied
as strictly in a criminal case as in civil cases: see McMartin v. The Queen.
(2)
The
evidence must be relevant in the sense that it bears upon a decision or
potentially decisive issue in the trial.
(3)
The
evidence must be credible in the sense that it is reasonably capable of belief,
and
(4)
It must be
such that if believed it could reasonably, when taken with the other evidence
adduced at trial, be expected to have affected the result.
[7]
On the
basis of the overall scheme of the VRAB Act and the Board’s characterization
of its appeal decisions as final and binding, the Board concluded that it
should generally only exercise its
discretionary power to reconsider a decision on the basis of
new evidence when such evidence meets the standard of due diligence.
[8]
It also
relied on administrative efficiency as a secondary consideration. In its
synopsis of the Interpretation Decision, the Board summarized its conclusions
as follows:
The Board has concluded that the
diligence principle of the test is applicable to reconsideration applications
because it is consistent with the intent and spirit of the legislation and
ultimately is in the best interests of appellants. The application of the
principle of diligence recognizes that the proper time for gathering all
relevant evidence and preparing an applicant’s case in a complete and thorough
manner is before a review hearing (termed a “review” at the first stage of
appeal before the Board) takes place. The application of the diligence
principle allows for the reasonable assumption that any evidentiary gaps or
shortcomings at that “review” stage will have been addressed by the final
hearing before the Board, which is termed the “appeal” stage.
The application of the diligence
principle by the Board ultimately works to the advantage of the appellant and
failures to obtain evidence necessary to establish a case are neither in the
interests of the appellant nor of the administrative system as a whole. The
Board recognizes that any pension or benefit to which the appellant is entitled
should be awarded as early in the appeal process as possible, therefore it is
incumbent upon the system to ensure the appellant’s best possible case is put
forward at the earliest possible time.
III. Submissions
A. The Applicant
[9]
The
Applicant submits that the Board’s decision is reviewable on the standard of
correctness since it arises from the interpretation of the VRAB Act. He further
argues that the decision is incorrect since the Board improperly supplemented
the text of the statute by reading in the concept of due diligence, contrary to
the plain language of subsection 32(1) and section 111 of the VRAB Act. The
Applicant submits that the Board ignored the relevant principles of statutory
interpretation, thereby committing an error of law.
[10]
Essentially,
the Applicant argues that the clear and unambiguous language of the statutory
provisions in issue should be interpreted according to that language and in a
way that promotes the purposes of the VRAB Act. He submits that the statute
contemplates the reconsideration of a claim on the basis of new evidence,
without any limitations that would be imposed if the criterion of due diligence
were imposed relative to such evidence.
B. The Respondent
[11]
For his
part, the Respondent argues that the appropriate standard of review according
to a pragmatic and functional analysis is patent unreasonableness. He submits
that, in some cases, deference is due to a tribunal’s interpretation of
questions of law and relies in this regard on the decision in Pezim v.
British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557.
[12]
The
Respondent argues that the Board correctly interpreted subsection 32(1) and
section 111 of the VRAB Act when it concluded that evidence submitted upon a
request for reconsideration of a final decision would be assessed upon the
standard of due diligence. He submits that the words “new evidence” are a term
of art that has been judicially considered in a number of cases.
[13]
Further,
the Respondent submits that the Board’s Interpretation decision is consistent
with the intention, expressed in section 31 of the Act, that decisions of the
Board be final. The requirement of due diligence relative to new evidence, as a
basis for reconsideration of an appeal decision, promotes that goal
because it encourages an applicant to present the necessary evidence at the
earliest possible time and reduces the likelihood of repeated requests
for reconsideration.
[14]
In
summary, the Respondent takes the position that the Board’s Interpretation
decision is correct and in any event withstands review upon the standard of
patent unreasonableness.
IV. Discussion and Disposition
[15]
The broad
purpose of the VRAB Act is to provide a means for review of a decision upon an
application for a pension. The Board may review an original decision made by
the Minister or his delegate pursuant to the Pension Act, R.S. 1985, c.
P-6 as amended. That right of review is conferred by section 84 of the Pension
Act, supra which provides as follows:
|
84.
An applicant who is dissatisfied with a decision made by the Minister under
this Act, except under section 83, or under subsection 34(5) of the Veterans
Review and Appeal Board Act, may apply to the Veterans Review and Appeal
Board for a review of the decision.
|
84.
Le demandeur qui n’est pas satisfait d’une décision du ministre prise sous le
régime de la présente loi, mais non sous celui de l’article 83, ou du
paragraphe 34(5) de la Loi sur le Tribunal des anciens combattants
(révision et appel) peut la faire réviser par le Tribunal.
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[16]
The Board
is created pursuant to section 4 of the VRAB Act. This section provides
as follows:
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4.
There is hereby established an independent board, to be known as the Veterans
Review and Appeal Board, consisting of not more than twenty-nine permanent
members to be appointed by the Governor in Council and such number of
temporary members as are appointed in accordance with section 6.
|
4.
Est constitué un organisme indépendant, le Tribunal des anciens combattants
(révision et appel), composé d’au plus vingt-neuf membres titulaires nommés
par le gouverneur en conseil ainsi que des membres vacataires nommés en
application de l’article 6.
|
[17]
The
Board’s mandate is to act as a review and appeal body respecting pension and
benefit decisions for Veterans, Members of the Canadian Armed Forces and
their dependants. Its mandate is set out in section 18 of the Act and reads as
follows:
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18.
The Board has full and exclusive jurisdiction to hear, determine and deal
with all applications for review that may be made to the Board under the Pension
Act or the Canadian Forces Members and Veterans Re-establishment and
Compensation Act, and all matters related to those applications.
|
18.
Le Tribunal a compétence exclusive pour réviser toute décision rendue en
vertu de la Loi sur les pensions ou prise en vertu de la Loi sur
les mesures de réinsertion et d’indemnisation des militaires et vétérans des
Forces canadiennes et pour statuer sur toute question liée à la demande
de révision.
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[18]
Section 21
of the VRAB provides that a review panel may uphold, vary or reverse a
Ministerial decision that is being reviewed; refer any matter back to the
Minister for reconsideration; or refer any matter that has not been dealt with
back to the Minister for a decision. Section 23 of the VRAB Act allows a review
panel, upon its own motion, to reconsider a decision made under section 21.
Section 25 provides a right of appeal to the Board by an applicant who is
dissatisfied with a decision made pursuant to section 21 or 23.
[19]
The
Board’s jurisdiction with respect to appeals is found in section 26 of the Act,
as follows:
|
26.
The Board has full and exclusive jurisdiction to hear, determine and deal
with all appeals that may be made to the Board under section 25 or under the War
Veterans Allowance Act or any other Act of Parliament, and all matters
related to those appeals.
|
26.
Le Tribunal a compétence exclusive pour statuer sur tout appel interjeté en
vertu de l’article 25, ou sous le régime de la Loi sur les allocations aux
anciens combattants ou de toute autre loi fédérale, ainsi que sur toute
question connexe.
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[20]
The
decision at issue here was made by the Board pursuant to subsection
37(1) which provides as follows:
|
37.
(1) The Minister, the Chief Pensions Advocate, any veterans’ organization
incorporated by or under an Act of Parliament or any interested person may
refer to the Board for hearing and decision any question of interpretation
relating to this Act, to the Pension Act, to any other Act of
Parliament pursuant to which an appeal may be taken to the Board or to any
regulations made under any such Act.
|
37.
(1) Le ministre, l’avocat-conseil en chef du Bureau, toute organisation
d’anciens combattants constituée en personne morale sous le régime d’une loi
fédérale, ainsi que toute personne intéressée, peuvent saisir le Tribunal de
toute question d’interprétation de la présente loi, de la Loi sur les
pensions, de toute autre loi fédérale permettant d’en appeler au
Tribunal, ou des règlements d’application de l’une ou l’autre de ces lois.
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[21]
Since the
Board is an administrative tribunal exercising statutory power, the Court must
determine the applicable standard of review by conducting a pragmatic and
functional analysis. That analysis requires consideration of four factors, that
is the presence or absence of a privative clause; the expertise of the
tribunal; the purpose of the legislation and of the particular provisions in
issue; and the nature of the question.
[22]
The Act
contains a provision that is in the nature of a privative clause. Specifically,
section 31 of the Act provides as follows:
|
31.
A decision of the majority of members of an appeal panel is a decision of the
Board and is final and binding.
|
31.
La décision de la majorité des membres du comité d’appel vaut décision du
Tribunal; elle est définitive et exécutoire.
|
Decisions of the Board are amenable to judicial review
pursuant to section 18.1 of the Federal Courts Act, supra. However,
the language of section 31 suggests a high degree of deference.
[23]
The Board
is a specialized tribunal and experienced in the discharge of its statutory
mandate. This factor also favours a high degree of deference.
[24]
The
purpose of the VRAB Act, broadly speaking, is to provide an avenue for review
of decisions made concerning pensions for eligible persons. Sections 32 and 111
outline the circumstances where the Board has the discretion to reconsider its
own prior decisions. The Board may act upon its own motion or upon the
application of a person concerned. A concerned person may seek reconsideration
upon the basis of an error of fact or law, or upon the basis of new evidence.
[25]
Subsection
32(1) and section 111 are in issue here and they provide as follows:
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32.
(1) Notwithstanding section 31, an appeal panel may, on its own motion,
reconsider a decision made by it under subsection 29(1) or this section and
may either confirm the decision or amend or rescind the decision if it
determines that an error was made with respect to any finding of fact or the
interpretation of any law, or may do so on application if the person making
the application alleges that an error was made with respect to any finding of
fact or the interpretation of any law or if new evidence is presented to the
appeal panel.
111.
The Veterans Review and Appeal Board may, on its own motion, reconsider any
decision of the Veterans Appeal Board, the Pension Review Board, the War
Veterans Allowance Board, or an Assessment Board or an Entitlement Board as
defined in section 79 of the Pension Act, and may either confirm the
decision or amend or rescind the decision if it determines that an error was
made with respect to any finding of fact or the interpretation of any law, or
may, in the case of any decision of the Veterans Appeal Board, the Pension
Review Board or the War Veterans Allowance Board, do so on application if new
evidence is presented to it.
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32.
(1) Par dérogation à l’article 31, le comité d’appel peut, de son propre
chef, réexaminer une décision rendue en vertu du paragraphe 29(1) ou du
présent article et soit la confirmer, soit l’annuler ou la modifier s’il
constate que les conclusions sur les faits ou l’interprétation du droit
étaient erronées; il peut aussi le faire sur demande si l’auteur de la
demande allègue que les conclusions sur les faits ou l’interprétation du
droit étaient erronées ou si de nouveaux éléments de preuve lui sont
présentés.
111.
Le Tribunal des anciens combattants (révision et appel) est habilité à
réexaminer toute décision du Tribunal d’appel des anciens combattants, du
Conseil de révision des pensions, de la Commission des allocations aux
anciens combattants ou d’un comité d’évaluation ou d’examen, au sens de
l’article 79 de la Loi sur les pensions, et soit à la confirmer, soit
à l’annuler ou à la modifier comme s’il avait lui-même rendu la décision en
cause s’il constate que les conclusions sur les faits ou l’interprétation du
droit étaient erronées; s’agissant d’une décision du Tribunal d’appel, du
Conseil ou de la Commission, il peut aussi le faire sur demande si de
nouveaux éléments de preuve lui sont présentés.
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[26]
The
discretionary authority of the Board to entertain an application for
reconsideration favours a high degree of deference.
[27]
Finally,
there is the nature of the question. In the present case, it is a question of
statutory interpretation. That is a legal question that generally attracts the
standard of correctness. This approach was followed by the Court in Trotter
and Reid v. Canada (Attorney General), [2005] 4 F.C.R. 193, 272
F.T.R. 1 (F.C.).
[28]
Three of
the four factors engaged in a pragmatic and functional analysis favour a
deferential view of the Board’s decision. However, the nature of the question,
that is involving statutory interpretation, tends toward the standard of
correctness and, on balance, I conclude that correctness is the applicable
standard of review.
[29]
According
to the decision of the Supreme Court of Canada in Rizzo and Rizzo Shoes Ltd.
(Re), [1998] 1 S.C.R. 27, the guiding canon for questions of statutory
interpretation is the purposive approach. At pages 40-41, Justice Iacobucci,
speaking for the Court, said the following:
Although much has been written
about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory
Interpretation (1997); Ruth Sullivan, Driedger on the Construction of
Statutes (3rd ed. 1994) (hereinafter "Construction of
Statutes"); Pierre-André Côté, The Interpretation of Legislation in
Canada (2nd ed. 1991), Elmer Driedger in Construction of Statutes
(2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He
recognizes that statutory interpretation cannot be founded on the wording of
the legislation alone. At p. 87 he states:
Today there is only one principle or
approach, namely, the words of an Act are to be read in their entire context
and in their grammatical and ordinary sense harmoniously with the scheme of the
Act, the object of the Act, and the intention of Parliament.
…
I also rely upon s. 10 of the Interpretation
Act, R.S.O. 1980, c. 219, which provides that every Act "shall be
deemed to be remedial" and directs that every Act shall "receive such
fair, large and liberal construction and interpretation as will best ensure the
attainment of the object of the Act according to its true intent, meaning and
spirit".
[30]
Section 3
of the VRAB Act sets out the following general rule of construction for
this statute:
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3.
The provisions of this Act and of any other Act of Parliament or of any
regulations made under this or any other Act of Parliament conferring or
imposing jurisdiction, powers, duties or functions on the Board shall be
liberally construed and interpreted to the end that the recognized obligation
of the people and Government of Canada to those who have served their country
so well and to their dependants may be fulfilled.
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3.
Les dispositions de la présente loi et de toute autre loi fédérale, ainsi que
de leurs règlements, qui établissent la compétence du Tribunal ou lui
confèrent des pouvoirs et fonctions doivent s’interpréter de façon large,
compte tenu des obligations que le peuple et le gouvernement du Canada
reconnaissent avoir à l’égard de ceux qui ont si bien servi leur pays et des
personnes à leur charge.
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[31]
The
purpose of the Act is to provide a forum for the review and appeal of decisions
concerning the award of pension benefits. The Act is not designed to create
hardships in the matter of awarding pension benefits. As well, the statute
contemplates that qualified persons continue to have access to the hearing and
review processes even after a determination has been made concerning the award
of pension benefits. I refer to the decision in Leclerc v. Canada (Attorney General), 150 F.T.R. 1 (Fed T.D.), where the Court commented
on the Act’s predecessor legislation in general and its reconsideration
provision in particular. The Court stated at page 10:
… The effect of the scheme is that once a
pension is awarded it is always reviewable, and in the course of such reviews
the Board may have regard to any new evidence and amend its earlier findings of
fact or of law in the event that it considers them to be erroneous. …
[References omitted]
[32]
The effect
of the Board’s Interpretation Decision is to impose a threshold issue when a
request for reconsideration is made upon the basis of new evidence, that is whether
an applicant can justify the prior unavailability of such evidence upon the
basis of due diligence. The Board relies mainly upon the characterization of
its decisions as final and binding, under section 31 of the Act, in reaching
this conclusion.
[33]
In my
opinion, the Board’s focus on section 31 and administrative efficiency is
misplaced. The purpose of the Act is to provide a forum for the review of
decisions concerning pensions for qualified persons and their dependants.
Notwithstanding section 31, the Act provides for reconsideration of such
“final” decisions, in the exercise of the Board’s discretion. Section 3 of the
Act clearly states that the Act is to receive a liberal construction.
Evidentiary doubt is to be resolved in favour of the person seeking a pension,
if the evidence is credible and uncontradicted, pursuant to section 39.
[34]
Section 39
is a critical provision in this statute which, according to section 3, is to be
given a liberal interpretation, for the benefit of qualified persons. Section
39 provides as follows:
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39.
In all proceedings under this Act, the Board shall
(a)
draw from all the circumstances of the case and all the evidence presented to
it every reasonable inference in favour of the applicant or appellant;
(b)
accept any uncontradicted evidence presented to it by the applicant or
appellant that it considers to be credible in the circumstances; and
(c)
resolve in favour of the applicant or appellant any doubt, in the weighing of
evidence, as to whether the applicant or appellant has established a case.
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39.
Le Tribunal applique, à l’égard du demandeur ou de l’appelant, les règles
suivantes en matière de preuve :
a)
il tire des circonstances et des éléments de preuve qui lui sont présentés
les conclusions les plus favorables possible à celui-ci;
b)
il accepte tout élément de preuve non contredit que lui présente celui-ci et
qui lui semble vraisemblable en l’occurrence;
c)
il tranche en sa faveur toute incertitude quant au bien-fondé de la demande.
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[35]
In my
opinion, the statutory framework suggests that due diligence is not to be
considered the predominant factor. Section 3 should guide the interpretation of
the Act. It is a rule of construction that is specifically said to be liberal
and to favour an applicant. The undoubted discretion of the Board to entertain
an application for reconsideration on the basis of new evidence must be exercised in a way that respects
other provisions of the Act, in particular sections 3 and 39.
[36]
While
section 31 says that appeal decisions are final and binding, other sections of
the Act clearly and unambiguously state that the Board has the discretion to
reconsider a prior decision. Legislation must be interpreted in a coherent
manner. In this regard, I refer to Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, where the
Court said, at page 38, that “there is a presumption that the legislature did
not intend to make or empower the making of contradictory statements”.
[37]
As well,
in MacKeigan v. Hickman, [1989] 2 S.C.R. 796 at page 825, Justice McLachlin
(as she then was) said the following:
I start from the fundamental
principle of construction that provisions of a statute dealing with the same
subject should be read together, where possible, so as to avoid conflict:
Driedger, Construction of Statutes (2nd ed. 1983), p. 66. In this way,
the true intention of the legislature is more likely to be ascertained. …
[38]
In other
words, the Board must exercise its statutory discretion in a manner that
respects and promotes the purpose of the legislation.
[39]
The Act
confers the discretion of reconsideration upon the Board but neither the Act nor
the Veterans Review and Appeal Board Regulations, SOR/96-67, provide
guidance as to the manner in which that discretion is to be exercised. In my
opinion, that discretion is to be exercised in a manner consistent with the
promotion of the statutory purpose. In Canadian Pacific v. Matsqui Indian
Band, [1995] 1 S.C.R. 3, Chief Justice Lamer said the following at paragraph
18:
In considering whether [the
trial judge] exercised his discretion reasonably, it is important that we not
lose sight of Parliament’s objectives in creating the new…powers. … [T]he
underlying purpose and functions of the … scheme provide considerable guidance
in applying the principles of administrative law to the statutory provisions at
issue here. …
[40]
I add that
the statutory scheme of the VRAB Act is unique relative to other programs of
redress, for example programs established pursuant to human rights legislation or
to legislation governing the provision of employment-related benefits. In my
opinion, it was wholly within the power and jurisdiction of Parliament to
create this system of review and appeal that allows for the reconsideration of
prior decisions, with a statutory direction for the favourable consideration of
evidence to the benefit of an applicant for pension benefits. Again, I refer to
sections 3 and 39 of the VRAB Act.
[41]
In MacKay,
supra, Justice Teitelbaum repeatedly referred to these provisions
and noted that it provided a guide to the interpretation of the Act. He further
observed that the words of section 3 informed the Board in its requirements of
evidence when a request for reconsideration was made. Indeed, Justice Teitelbaum
expressed the opinion that sections 3 and 39 are highly relevant to the
manner in which the Board is to exercise its discretion to reconsider. At page
291, he said the following:
There is no definition of new
evidence in the Veterans Review and Appeal Board Act. However, s. 39 of
the Veterans Review and Appeal Board Act does establish general
principles for how the VRAB is to dispose of evidence.
Section 39 reads:
“In all proceedings under the Act, the
Board shall:
(a) draw from all the
circumstances of the case and all the evidence presented to it every reasonable
inference in favour of the applicant or appellant;
(b) accept any
uncontradicted evidence presented to it by the applicant or appellant that it
considers to be credible in the circumstances; and
(c) resolve in favour
of the applicant or appellant any doubt, in the weighing of evidence, as to
whether the applicant or appellant has established a case.”
In effect, s. 39 requires that
when new and credible evidence is presented during a reconsideration
proceeding, the VRAB has a duty to consider and weigh the evidence in the
applicant's favour.
[42]
The Board,
in this Interpretation decision, said that Justice Teitelbaum had “fully and
deliberately” addressed the issue of due diligence in respect of new evidence.
With respect, the Board is overstating the matter. Justice Teitelbaum addressed
the issue of due diligence at page 292, as follows: “Despite the seeming
belatedness of Dr. Murdoch's report, I do not find that the applicant failed to
exercise due diligence. …” Otherwise, he focused on the criteria of
credibility, relevance and effect upon the ultimate outcome of the application
for reconsideration, within the statutory framework.
V. Conclusion
[43]
This
application for judicial review addresses a general question of statutory
interpretation, not the application of the law to particular facts. The issue
before the Court is whether the Board may consider the principle of “due
diligence” in deciding whether to exercise its discretion to reconsider an
appeal decision, pursuant to subsection 32(1) and section 111 of the VRAB Act.
In my opinion, that question can be answered affirmatively, subject to the
provision that the Board’s discretion must be exercised in a manner that
conforms with the broad purpose of the Act and respects the intent and meaning
of sections 3 and 39. Due diligence should not be given disproportionate
weight.
[44]
Accordingly,
this application for judicial review is dismissed. In the exercise of my
discretion pursuant to Rule 400(1) of the Federal Courts Rules,
SOR/98-106 as amended, there will be no order as to costs.
ORDER
The application for judicial review is
dismissed. In the exercise of my discretion, there is no order as to costs.
“E. Heneghan”
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